Song v Minster for Immigration and Citizenship [2025] FedCFamC2G 1952

1. The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 August 2022 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Training (class GF) Training (subclass 407) visa (training visa) under s 65 of the Migration Act 1958 (Cth) (Act).

1. On 1 January 2018, the applicant, a citizen of China, first arrived in Australia as the holder of a Training (subclass 407) visa (training visa) and started working with Kaizen Motors Pty Limited T/A Sydney City Toyota (Sydney Toyota), the business which successfully nominated him for his training visa.
2. On 8 February 2019, the applicant lodged an application for a second training visa for the purposes of receiving training as a motor mechanic at Sydney Toyota.
3. On 26 March 2019, a delegate of the First Respondent invited the applicant to comment on information for his second training visa application, namely, the inconsistencies found in the information the applicant submitted regarding his work history in his resume, which supported his second training visa application, and that which accompanied application lodged by the applicant in 2017 for a Tourist Stream (OFFSHORE) (Web) (FA 600) visa (tourist visa).
4. On 30 April 2019, a delegate of the First Respondent refused to grant the second training visa on the basis that it was not satisfied that the applicant met cl 407.217 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
5. In coming to this decision, the delegate was not satisfied that the applicant had been honest about his intentions for coming to Australia, noting the inconsistencies in his work history between applications, as well as his original stated intentions for coming to Australia being for tourist purposes. The delegate was also concerned that the applicant's application for the second training visa, which would involve more training in the same environment, raised concerns that the applicant was only seeking an opportunity to work, rather than to genuinely train.
6. On 9 May 2019, the applicant lodged an application for review of the delegate's decision with the Tribunal.
7. On 20 July 2022, the Tribunal invited the applicant to appear at a hearing on 8 August 2022 to give evidence and present arguments.
8. On 8 August 2022, the applicant appeared before the Tribunal represented by a migration agent.
9. On 11 August 2022, the Tribunal affirmed the decision under review not to grant the applicant a training visa.

1. The Tribunal first set out the background to the review. It noted the delegate's decision refused to grant the second training visa on the basis that the applicant did not meet cl 407.217 of the Regulations because, having regard to concerns about inconsistent information provided by the applicant to the Department throughout his visa history.
2. The Tribunal determined the review of the delegate's decision on an alternative criterion to that decided by the delegate.
3. In other words, the Tribunal decided to determine the matter on the basis as to whether the applicant satisfied the Subclass 407 Training visa criteria in cl 407.213 and cl 407.214 of the Regulations, in particular cl 407.213(b) and cl 407.214(c) of the Regulations. As pointed out by the first respondent, at paragraph [11] of the Tribunal decision, the Tribunal put to the applicant at the hearing that it would decide the review under different criteria to that decided by the delegate. It put to the applicant the two provisions that the Tribunal would consider in its determination of the review. The Tribunal noted it undertook discussions with the applicant pursuant to s 359AA of the Act.
4. The Tribunal outlined cl 407.213 and cl 407.214 of Schedule 2 of the Regulations. The relevant parts of cl 407.213 and cl 407.214 of Schedule 2 of the Regulations provided as follows:

The relevant parts of cls 407.213 and 407.214 read as follows:

407.213

Each of the following applies:

...

(i) a temporary activities sponsor; or

(ii) if the application was made on or before 18 May 2017 - a professional development sponsor or a training and research sponsor;

407.214

If the approved sponsor is not a Commonwealth agency:

...

(b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and

(c) the approval of the nomination has not ceased under regulation 2.75A; and

1. The Tribunal found that the applicant's sponsor, Sydney Toyota, was only approved as a "temporary activity sponsor" for a five-year period commencing on the 10 July 2017 to 10 July 2022. In other words, by the time of the hearing in the Tribunal Sydney Toyota's temporary sponsorship approval had expired. For this reason, the Tribunal concluded that the applicant could not meet the requirements in cl 407.213(b) of the Regulations.
2. In relation to the applicant's nomination application pertaining to the proposed occupational training program, the Tribunal found that this application was approved on the 21 March 2019 and expired on the 21 March 2020 in accordance with the reg 2.75A(2)(b) of the Regulations. For this reason, the Tribunal concluded that the applicant could not meet the requirements in cl 407.214(c) of the Regulations.
3. The Tribunal found no evidence before it that demonstrated any other approved temporary activities sponsor has had a nomination approved under reg 2.72A and reg 2.72B(2) of the Regulations. Therefore, the Tribunal found that applicant did not meet the requirements under cl 407.213 and cl 407.214 of the Regulations.
4. The Tribunal affirmed the decision not to grant the applicant the second training visa.

1. On 14 September 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 11 August 2022. The application contains four (4) grounds of review. They are (as written):
   1. The first and second respondents have not given detailed reason of the genuine position assessment of 407 training visa, the applicant been under training program, the applicant has been paid as the trainee. The applicant should be given the opportunity to submit the nomination while the applicant was under review.
   2. The applicant's migration history is not conflicted to the application of 407 visa, the applicant has been trained and gained skill with the sponsor.
   3. The first respondent has not fairly put all the material into consideration. The applicant tried to review this application at the time of final decision.
   4. There is bias in the decision.
2. On 24 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
3. On 10 September 2025, the proceedings were docketed to me and set down before me for final hearing on 30 October 2025.

1. At the hearing of this matter on 30 October 2025, the applicant appeared unrepresented. He was assisted by a Mandarin interpreter. Mr J Herschderfer of HWL Ebsworth appeared for the first respondent.
2. At the commencement of the hearing, after allowing the Court Book to be tendered as evidence, I allowed Mr Herschderfer to tender an affidavit sworn 30 October 2025, which annexed two documents, one was a document that was before the Tribunal the other (a spreadsheet showing that Sydney Toyota approval as a temporary activity sponsor had expired on 10 July 2022. Those documents showed that Sydney Toyota's status as a "temporary activities sponsor" under reg 2.72A had ceased on 10 July 2022 (prior to the Tribunal hearing on 11 August 2022). I explained this to the applicant through the interpreter. I gave the applicant the opportunity to object to the affidavit, and to have it translated as it had only been provided to the Court and the applicant on the morning of the hearing. The applicant said he did not need it to be interpreted, he said he understood the affidavit and he had no objection to it being tendered. He made the comment that at the time of the hearing in the Tribunal he was not aware Sydney Toyota's status as a "temporary activities sponsor" under reg 2.72A had ceased on 10 July 2022. I marked the affidavit exhibit R2.
3. I then asked the applicant if he wanted to make any oral submissions on any of his four grounds of review or why he considered the Tribunal made a wrong decision. The applicant declined to make any submissions. Mr Herschderfer made brief oral submissions summarising the first respondent's written submissions on each of the four grounds.

1. To succeed in his application before me the applicant must show that the Tribunal committed a jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32] and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
2. As explained to the parties at the hearing, the Court does not consider the merits of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below the Court sets out its consideration of the four grounds of judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.

1. Ground 1 appears to contain two complaints. First, a complaint that the Tribunal did not provide detailed reasons of the genuine position assessment of the second Training visa. The "genuine position assessment" appears to be a reference to the requirement under cl 407.217 as to whether the applicant was genuinely seeking a training opportunity in Australia or merely seeking an opportunity to work. The delegate held that this was the requirement the applicant did not satisfy and the reason why the delegate refused to grant the applicant a training visa.
2. The second appears to be a complaint that the applicant should have been given the opportunity to submit a new nomination while the application was before the Tribunal.
3. In my view these arguments are unmeritorious and do not disclose any jurisdictional error. Further, in so far as this ground seeks a merits review of the Tribunal decision, this Court does not have jurisdiction to do that: see Djokovic. This Court may only examine the legal validity of decisions in applications for judicial review.
4. As the first respondent points out, the first argument in ground 1 appears to be a complaint about the delegate's decision that the applicant did not meet the requirements of cl 407.217 of Schedule 2 to the Regulations in respect of his training visa because the delegate had concerns about whether the applicant was genuinely seeking a training opportunity in Australia or merely seeking an opportunity to work.
5. The failure to satisfy cl 407.217 in respect of the training visa was the basis for the delegate's decision. However, it was not the basis for the Tribunal's decision. The Tribunal decided the review on a different basis (not under cl 407.217). It decided the review on the basis that the applicant did not satisfy the requirements of cl 407.213 and 407.214. The Tribunal determined that the issue under those provisions was, "whether Mr Song is the subject of an approved nomination for a Subclass 407 Training visa, made by an approved temporary activities sponsor, for a program of occupational training on the basis of meeting the criteria in reg 2.72A of the Regulations and the nomination has not ceased under reg 2.75A.".
6. It was open to the Tribunal to make its determination under these provisions, and not cl 407.217 as the delegate had done. As the first respondent correctly submitted at paragraph [33] of its written submissions:

...the Tribunal put the applicant on notice [under s 359AA of the Act] that it had formed a preliminary view that the applicant did not satisfy cls 407.213 and 407.214: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. As the Tribunal subsequently affirmed the decision under review on this basis, no contention arising from a failure to give reasons relating to cl 407.217 can succeed.

1. The Tribunal further put to the applicant that Sydney Toyota was no longer an approved temporary activity sponsor as its 5-year approval as a sponsor expired on 10 July 2022: see [11] of the Tribunal decision.
2. The fact that Sydney Toyota had ceased to be a temporary activity sponsor of the applicant was dispositive of the application for review in the Tribunal. On that basis, cl 407.213(b) could not be satisfied.
3. Further, as the Tribunal found, the nomination application in respect of a proposed occupational training program to be offered to the applicant, in the position of Motor Mechanic (General) ANZSCO 321211 was approved on 21 March 2019 expired on 21 March 2020. Therefore, and additionally, the applicant could not meet the requirements in cl 407.214(c) of schedule 2 to the Regulations.
4. The first argument under Ground 1 has no merit.
5. As to the second argument in ground 1, that the applicant ought to have been allowed to "submit a nomination" during the review in the Tribunal, this also has no merit. As has already been outlined above, at the time of the Tribunal's decision, Sydney Toyota had ceased to be a 'temporary activities sponsor'. The Sponsorship Approval Notice, which shows that the temporary activities sponsorship expired on 10 July 2022, makes this apparent: see exhibit R2. Further, the applicant was represented at the Tribunal hearing by a migration agent. It is clear from the Tribunal decision at paragraph [25] there was no evidence before the Tribunal that any other approved temporary activities sponsor has had a nomination approved under reg 2.72A and reg 2.72B(3) of the Regulations in relation to the proposed occupational training for the applicant. There was no evidence adduce in this Court that the applicant was somehow denied an opportunity to adduce evidence of an alternative temporary activities sponsor before the Tribunal. No correspondence shows this, and no transcript of the hearing was tendered by the parties.
6. Ground 1 does not establish the Tribunal committed jurisdictional error.

1. Ground 2 merely contains a statement about the applicant's migration history "not being conflicted to the application of 407 visa", and a statement that the applicant "has been trained and gained skill with the sponsor".
2. This ground is meaningless. The applicant did not articulate what he meant by this ground at the hearing.
3. I consider this ground to be unmeritorious. I reject Ground 2.

1. In this ground the applicant essentially makes an unparticularised claim that the Tribunal failed to "put all the material into consideration". I have read this a general claim the Tribunal failed to consider the "material" the applicant gave to the Tribunal, although what that material was, was not explained by the applicant.
2. Unparticularised grounds of judicial review are liable to be dismissed: see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 (WZATH) at [60]. However, as Colvin J held in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9]:

...it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

1. At the hearing I followed the procedure which Colvin J held in DQQ17 ought to be followed in these types of cases. However, the applicant declined the invitation to make submissions about Ground 3 at the hearing before me or tell the Court what material the Tribunal overlooked.
2. To the extent the ground is a claim that the Tribunal had an obligation to investigate the applicant's claims, I agree with the first respondent the applicant has not demonstrated that the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which could have been easily ascertained: see Minister for Immigration and Citizenship v SZIAI ([2009] HCA 39; 2009) 83 ALJR 1123 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
3. Ground 3 does not disclose arguable jurisdictional error and is dismissed.

1. Ground 4 contains an unparticularised assertion of "bias" against the Tribunal.
2. As the first respondent correctly submitted, an allegation of bias is a serious allegation that must be "distinctly made and clearly proved": see Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69]. Without evidence, such an allegation must be dismissed.
3. For this reason, ground 4 is dismissed.

1. The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
3. The application is dismissed.

1. The first respondent seeks costs fixed in the sum of $5,600. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.