Li v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 665

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant is a male citizen of the People's Republic of China who applied for an Employer Nomination (Permanent) Visa on 11 January 2021.
2. The nominator was Teys Australia Biloela Pty Ltd (the Company). The proposed position in respect of the nomination was that of a meatworker.
3. On 16 July 2021, a delegate of the Minister refused to grant the Visa on the ground that the applicant did not satisfy the relevant criteria under Clause 186.213(1) of Schedule 2 to the Migration Regulations (1994) (Cth) (the Regulations) because he did not satisfy Public Interest Criterion (PIC) 4020.
4. The applicant made application for a review of the decision of the delegate before the then Administrative Appeals Tribunal (the Tribunal) on 5 August 2021. [1] However, by a letter dated 17 August 2021, the Company's migration agent advised the Department that they had received instructions from the Company to seek to withdraw the nomination application in respect of the applicant. [2]
5. By a letter dated 20 October 2021 sent to the Company, the Department confirmed that it had accepted the withdrawal of the nomination application in respect of the applicant. [3] In that letter, it was in part said:

"It is not possible to reconsider an application after it has been withdrawn. If at any time in the future you wish to apply for another application, a new application must be lodged."

1. On 4 November 2021, a lawyer acting on behalf of the Company advised the Department that the request for withdrawal of the nomination in respect of the applicant was an administrative error, " ... and (that) the Applicant wishes to continue the sub-class 186 nomination application." [4]
2. By an email sent by the Department to the lawyer for the company on 11 November 2021, [5] it was said as follows:

"There is no provision to undo a nomination withdrawal under the circumstance of an application being withdrawn on the request of the client. As such, if Teys Australia Biloela Pty Ltd still wish to nominate Mr Yonghui Li for an Employer Nomination Scheme Visa, they will need to lodge another nomination application."

1. Notwithstanding the withdrawal of the nomination application and the subsequent correspondence referred to above, matters proceeded before the Tribunal in what might be referred to as the usual way. A hearing took place before the Tribunal on 20 September 2023, at which time the applicant was legally represented. The Court infers that the fact of the withdrawal of the nomination application was not brought to the attention of the Tribunal.
2. On 16 November 2023, the Tribunal affirmed the decision of the delegate.
3. On 19 December 2023, the applicant's then lawyers filed an Originating Application for Review of the decision of the Tribunal.
4. On 8 April 2025, the applicant filed an Amended Application for Review, the Grounds of which were as follows:
   1. The Tribunal have directly breached s.359A of the Migration Act 1958 (Cth), failing to comply with their obligations under this section.

Particulars:

a) The ART never invited me to comment on or respond to the concerns regarding my nomination, as required under s.359A.

b) The First Respondent sought to dismiss my case based on issues related to the nomination, despite being fully aware that they had not fulfilled their legal obligations under s.359A.

c) The ART bears responsibility for properly addressing the nomination issue. Had it complied with its legal duty under s.359A, this issue might never have arisen, and the subsequent hearing may not have been necessary at all.

1. At the hearing before the Court on 6 May 2025, it was submitted on behalf of the first respondent that the application for review before the Court was futile, and doomed to failure, because of the provisions of Clause 186.242 of Schedule 2 to the Regulations, which relevantly provided as follows:

Clause 186.242

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Labour Agreement stream; and

(b) identified in the application for the grant of the visa.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

...

1. It was further submitted that once a nomination application had been withdrawn, and accepted by the Department, the Tribunal had no power to reinstate the original nomination application. It was clear that at the time of the handing down of the decision by the Tribunal on 16 November 2023, there was no valid nomination application on foot.
2. The Court accepts the submission made on behalf of the first respondent that even if the Tribunal had committed errors of the kind as submitted by the applicant, those errors were immaterial, and did constitute jurisdictional errors which enlivened the Court's review jurisdiction.
3. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] - [46], Bell, Gagler and Keane JJ found as follows:
   1. Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
   2. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
4. The Court further accepts the submission made on behalf of the first respondent that there was no power under the provisions of the Migration Act 1958 (Cth) (the Act) which authorised the reinstatement of a withdrawn nomination application.
5. The provisions of Clause 186.242(4) were determinative of the applicant's claims. The grounds of review as set out in the Amended Application for Review did not assist the applicant in the determination of the substantive question involving the absence of a valid subsisting nomination application. So much was decided by the Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, an analogous case to the present, where Jagot and Bromwich JJ agreed with Mortimer J (as Her Honour then was) at [88] - [90] when Her Honour said:
   1. That submission should be accepted. In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate's decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 "position nominated in an application for approval that seeks to meet the requirements of" reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The "position" referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant's declaration in the visa application is directed.
   2. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the "time of decision" criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at - . This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
6. The applicant has failed to establish jurisdictional error on the part of the Tribunal.
7. The applicant's grounds of review are without merit and are dismissed.
8. The Court will hear the parties as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] See Exhibit 1 - Court Book (CB) p. 108.

[2] Annexure SK-2 to the affidavit of Samantha Kearns filed on 31 October 2024.

[3] Annexure SK-3 to the Kearns affidavit.

[4] Annexure SK-4 to the Kearns affidavit.

[5] Annexure SK-5 to the Kearns affidavit.