ABC Telecom Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1306

Federal Circuit Court of Australia

ABC Telecom Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1306

File number(s):	BRG 482 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	11 June 2021
Catchwords:	MIGRATION – Nomination application for the position of retail manager of a mobile phone and accessories business – erroneous advertisement placed instead for retail manager of a beauty salon – failure on part of applicant to establish that the position the subject of the nomination could not be filled by an Australian citizen or an Australian permanent resident – failure to satisfy mandatory criteria – public policy considerations - no jurisdictional error established – application dismissed.
Legislation:	Migration Regulations 1994 (Cth) r. 5.19(4)(h)(ii)(C), (D) and (F), (5).
Cases cited:	Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Number of paragraphs:	26
Date of last submission/s:	8 June 2021
Date of hearing:	8 June 2021
Place:	Brisbane
Solicitor for the Applicant:	Auslaw Partners
Senior Counsel for the Applicant:	Dr Haddrick
Junior Counsel for the Applicant	Mr McLean
Solicitor for the First Respondent:	Ms Helsdon of Sparke Helmore
Second Respondent:	Submitting appearance save as to costs

ORDERS

BRG 482 of 2020

BETWEEN:

ABC TELECOM PTY LTD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANTS SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	11 June 2021

IT IS ORDERED THAT:

1.The Amended Application for Review filed on 20 May 2021 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,967.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. On 25 January 2017, the applicant sought approval under r. 5.19 of the Migration Regulations 1994 (Cth) (‘the Regulations’) of a nomination for the position of a retail manager of a business which sold mobile phones and accessories both from a retail outlet situated at Nerang in the State of Queensland, as well as online through a platform named “Gumtree”.

2. Regulation 5.19 of the Regulations relevantly provided as follows:

   “Reg 5.19 - Approval of nominated positions – Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

   Application

   (1)  A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2)       The application must:

   (aa)  if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa—be made before 16 November 2019 (subject to subclause (2A)); and

   (a)  be made in accordance with approved form 1395 (Internet); and

   (b)       identify the position; and

   (c)  identify a person (the identified person) in relation to the position; and

   (d)       identify an occupation in relation to the position; and

   (e)  identify the subclass and stream to which the nomination relates, which must be one of the following:

   (i)  a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

   (ii)  a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

   (iii)  a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

   (iv)  Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

   (v)  a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

   (f)       be accompanied by the fee mentioned in regulation 5.37; and

   (fa)  be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

   (fb)  identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

   (g)  include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

   (2A)     Paragraph (2)(aa) does not apply if:

   (a)  the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

   (b)  the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

   Approval of nomination

   (3)       The Minister must, in writing:

   (a)  approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

   (b)       otherwise—refuse to approve the nomination.

   Requirements for approval – general

   (4)  The requirements to be met for the nomination to be approved are as follows:

   (a)       the application is made in accordance with subregulation (2);

   (b)       either:

   (i)  there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

   (c)  if it is mandatory, in the State or Territory in which the position is located, for a person to:

   (i)        hold a licence of a particular kind; or

   (ii)       hold registration of a particular kind; or

   (iii)  be a member (or a member of a particular kind) of a particular professional body;

   to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

   (d)  the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

   (da)  any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

   (e)  if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

   (f)  if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

   (g)  if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

   Temporary Residence Transition steam – additional requirements for approval

   (5)  If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

   (a)  at the time the application is made, the identified person holds:

   (i)  a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

   (ii)  a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

   (iii)  for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

   (iv)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

   (v)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

   (vi)  if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

   (b)       the occupation:

   (i)        is listed in ANZSCO; and

   (ii)  has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

   (c)  unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

   (i)  be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

   (ii)  apply to the identified person in accordance with an instrument made under that subregulation;

   (d)       either:

   (i)  there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

   (ii)       it is reasonable to disregard any such information;

   (e)  during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

   (i)  a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

   (ii)  a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

   (iii)  for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

   (f)  unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

   (i)  for a total period of at least 3 years (not including any periods of unpaid leave); and

   (ii)  on a full‑time basis, with the employment being undertaken in Australia;

   (g)  if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

   (h)       the nominator:

   (i)  was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

   (ii)  is actively and lawfully operating a business in Australia;

   (j)  the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (k)  there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (l)  the identified person will be employed on a full‑time basis in the position for at least 2 years;

   (m)  the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

   (n)  the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (o)  the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i)        paragraph 2.72(15)(a) did not apply; and

   (ii)  references to the nominee were references to the identified person; and

   (iii)  references to the person were references to the nominator;

   (p)       either:

   (i)  there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)       it is reasonable to disregard any such information;

   (q)  the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

   Minister may vary certain Temporary Residence Transition stream requirements

   (6)  The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

   (7)  Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

   (8)       The Minister may, by legislative instrument, specify:

   (a)       occupations for the purposes of paragraph (5)(c); and

   (b)  persons who are exempt from the operation of that paragraph; and

   (c)  for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (i)         the nominator;

   (ii)       the identified person;

   (iii)       the occupation;

   (iv)       the position in which the identified person is to work;

   (v)  the circumstances in which the occupation is undertaken;

   (vi)  the circumstances in which the person is to be employed in the position.

   Direct Entry stream – additional requirements for approval

   (9)  If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

   (a)  the nominator is actively and lawfully operating a business in Australia;

   (b)  if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;

   (c)  the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (d)  there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (e)  the identified person will be employed on a full‑time basis in the position for at least 2 years;

   (f)  the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

   (g)  the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (h)  the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i)        paragraph 2.72(15)(a) did not apply; and

   (ii)  references to the nominee were references to the identified person; and

   (iii)  references to the person were references to the nominator;

   (i)        either:

   (i)  there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)       it is reasonable to disregard any such information;

   (j)        the requirements set out in subregulation (10) or (12) are met.

   Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry Stream

   (10)      The requirements of this subregulation are as follows:

   (a)  the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

   (i)        made under subregulation (11); and

   (ii)       in force at the time the application is made;

   (b) the occupation applies to the identified person in accordance with that instrument.

   (11)  The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a)       the nominator;

   (b)       the identified person;

   (c)       the occupation;

   (d)       the position in which the identified person is to work;

   (e)       the circumstances in which the occupation is undertaken;

   (f)  the circumstances in which the person is to be employed in the position.

   Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

   (12)      The requirements of this subregulation are as follows:

   (a)       the position is located at a place in regional Australia;

   (b)       the business operated by the nominator is located at that place;

   (c)  the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (d)  the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

   (i)        made under subregulation (13); and

   (ii)       as in force at the time the application is made;

   (e)  the occupation applies to the identified person in accordance with that instrument;

   (f)  the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

   (i)  whether the identified person would be paid at least the annual market salary rate for the occupation;

   (ii)  whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (iii)  whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (g)       the body must:

   (i)  be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

   (ii)  be located in the State or Territory in which the position is located; and

   (iii)  have responsibility for the local area in which the position is located.

   (13)  The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a)       the nominator;

   (b)       the identified person;

   (c)       the occupation;

   (d)       the position in which the identified person is to work;

   (e)       the circumstances in which the occupation is undertaken;

   (f)  the circumstances in which the person is to be employed in the position.

   Labour Agreement stream—additional requirements for approval

   (14)  If the nomination relates to a visa in a Labour Agreement stream, the following requirements must also be met:

   (a)       the nominator is a party to a labour agreement;

   (b)       the labour agreement:

   (i)        is in effect; and

   (ii)  specifies the occupation as one in relation to which a position may be nominated for the purposes of this regulation;

   (c)  if the labour agreement specifies requirements that must be met by a party to the labour agreement—the requirements of the labour agreement have been met;

   (d)  the number of nominations approved by the Minister under this regulation on application by the nominator is less than the number of approved nominations permitted under the labour agreement for the year.

   Minister must give notice of approval or refusal

   (15)  As soon as practicable after deciding whether to approve, or refuse to approve, the nomination, the Minister must give the nominator:

   (a)       a copy of the written approval or refusal; and

   (b)       if the Minister refuses to approve the nomination:

   (i)  a written statement of the reasons why the nomination was refused; and

   (ii)  a written statement that the decision is a Part 5‑reviewable decision.

   Note:Division 4.1 deals with review of decisions. Paragraph 4.02(4)(e) provides that a decision under regulation 5.19 to refuse an application is a Part 5‑reviewable decision.

   Meaning of regional Australia

   (16)      In this regulation:

   regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.”

1. Under 5.19(4)(h)(ii)(C) of the Regulations, it was a requirement for approval of the nomination that the position the subject of the nomination could not be filled by an Australian citizen, or an Australia permanent resident, living in the same local area as the relevant place of business – in this case, Nerang.

2. Under 5.19(4)(h)(ii)(F) of the Regulations, it was a requirement for approval of the nomination that a body specified by the Minister in an instrument in writing which was located in the same State or Territory as the location of the proposed position (namely a “Regional Certifying Body”) had advised the Minister about whether there was a genuine need for the nominator to employ a paid employee in the nominated position, and whether the position could not be filled by an Australian citizen or an Australian permanent resident. There was no legislative requirement that the advice of such Body must be accepted.

3. The effect of r. 5.19(5) of the Regulations was that the Minister was required to refuse a nomination if either of r. 5.19(4)(h)(ii)(C) or (F) of the Regulations had not been satisfied.

4. On 31 January 2018, a delegate of the Minister refused the nomination application on the basis that the applicant did not satisfy the criteria as set out in r. 5.19(4)(h)(ii)(D) of the Regulations. An application for review of the decision of the delegate was subsequently made by the applicant to the Administrative Appeals Tribunal (‘the Tribunal’).

5. On 23 July 2020, the Tribunal affirmed the decision of the delegate, albeit on a different ground. The Tribunal found that the applicant had not satisfied the requirements under r. 5.19(4)(h)(ii)(C) of the Regulations. It was common ground at the hearing before the Court that the only advertisement for the nominated position placed by the applicant on “Seek.com” had erroneously sought job applications for the position of “Retail manager needed for our Beauty salon store located in Nerang, Gold Coast”, rather than the position of Retail Manager of a mobile phone and accessories sales business. At [44] of its reasons, the Tribunal said as follows:

   “[44] The Tribunal finds that the applicant did not satisfy the requirement that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as Nerang because he placed a misleading stipulation in the advertisement that limited the number of Australian citizens or Australian permanent residents applying for the position. The position may or may not have been filled by an Australian citizen or permanent resident who is living in the same local area as Nerang had the advertisement not had the stipulation "beauty salon store''. However, the applicant is unable to definitely satisfy the requirement that it ''cannot be filled" because he did not test the labour market for the position of retail manager in a mobile phone store. As such, the requirement in r.5.19(4)(h)(ii)(C) that the position ''cannot be filled by an Australian citizen or an Australian resident who was living in the same local area" as Nerang is not met.”

6. On 27 August 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 20 May 2021, the grounds of which were as follows:

   “1.      (Not pursued)

   2.        (Not pursued)

   3.        (Not pursued)

   4. The Tribunal misdirected itself as to correct legal principle, and therefore, the decision of the Tribunal was infected by jurisdictional error, and that error was material.

   Particulars

   ·The Tribunal member misdirected herself (and applicant’s representative) during the hearing on 23 June 2020, and that misdirection infected:

   (i) the answers given by Mr Kadir to the Tribunal’s qustions; and

   (ii) the Tribunal’s finding at paragraph [44] of Tribunal’s reasons.

   5. In focusing solely (in its reasons) upon the misdescription of the store as a “Beauty salon store”, the Tribunal:

   (a) failed to consider all the evidence adduced by the applicant (being a failure to consider relevant matters);

   (b) failed to ask itself the correct statutory question, or apply the correct test; and

   (c) in doing (a) and (b) above, jurisdictionally erred, and those errors were material.”

7. Central to the Court’s determination as to whether the Tribunal had erred in refusing to grant the nomination application was whether or not the erroneous placement of the job advertisement for a Retail Manager of a Beauty salon, [1] and the applicant’s subsequent response to its receipt of job applications as a consequence, justified the Tribunal’s finding that r 5.19(4)(h)(ii)(C) of the Regulations had not been satisfied.

   [1]           Court Book (CB) p. 57

8. In support of the submission that the applicant had satisfied the provisions of r. 5.19(4)(h)(ii)(C) of the Regulations, reliance was placed by the applicant upon a declaration made by a representative of the Queensland Chamber of Commerce and Industry (‘CCIQ’) that the applicant had satisfied the following requirements, namely that:

   ·“there is a need for a paid employee in the nominated position within the business activities of the nominating employer:

   ·the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and

   ·the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.”

9. It was common ground at the time of the hearing before the Court that CCIQ was an authorised certifying body, that CCIQ had correctly recorded on the Form 1404 that the applicable ANZSCO code for a Retail Manager position was 142 111, and that it had provided advice in support of the nomination application. The advice was set out as follows: [2]

   [2]           Court Book (CB) pp. 13 – 15 inclusive.

10. By Ground 5 of the Amended Application for Review, it was claimed on behalf of the applicant that by “focusing solely” in its reasons upon the erroneous job advertisement, the Tribunal had failed to consider relevant matters put before the Tribunal, had failed to ask itself the correct statutory question and apply the correct test, and that it had thereby fallen into jurisdictional error. There is no merit to any such claim.

11. The Tribunal was well aware of the requirement that r. 5.19(4)(h)(ii)(C) be met, and the applicant’s claims that it had duly advertised for the nominated position. First, at [20] – [24] inclusive of its reasons, the Tribunal said as follows:

    “[20]The Tribunal asked the applicant in the hearing about the recruitment summary and he confirmed that there was one adver1tisement placed on seek.com and that there were 15 applicants for the position but none of them had the experience and/or qualifications that were required for the position. The nominee was unique as not everyone knows how to fix a mobile phone; he had good knowledge of the business; knew Mandarin and could communicate with the suppliers and had done an accounting course and had sufficient knowledge of bookkeeping. He was tremendous as he travelled every day from Brisbane to attend at the Nerang shop.

    [21]The applicant sought to provide evidence of meeting the above regulation by means of advertising the position. The Tribunal noted that the position was advertised online with the following information: Seek advertisement for retail manager dated 11 December 2016, location Gold Coast, salary $45,000 to $59,999, work type full-time with classification-retail and consumer products, management-store and reads as follows:

    'Retail manager needed for our Beauty salon store located in Nerang, Gold Coast’ (emphasis added).

    [22]The Tribunal put to the applicant under s.359AA of the Act that since the only advertisement for the position had been for a 'beauty salon store' rather than a mobile phone store, that this would limit the number of Australian citizens or permanent residents with mobile phone experience or appropriate qualifications who were living in the same local area as Nerang applying for the position as they would have believed that it was related to beauty salon work. If the Tribunal relied on this information, it may find that the applicant did not satisfy r.5.19(4 )(h)(ii)(C).

    [23]The Tribunal invited the applicant to respond to this concern and he requested a 10-minute adjournment which was granted.

    [24]     When the hearing recommenced, the applicant said he had made a mistake.”

12. Secondly, the Tribunal made specific reference to the Form 1404 advice at [12(3)] of its reasons as being a document which was before it. At [25] of its reasons, the Tribunal specifically referred to the accompanying CCIQ Assessment Statement, as set out above, when it said:

    “[25] He also said that he had advertised the position on Gumtree for 14 days and the correct information had been provided with that advertisement namely that the position was in a mobile phone store. The Tribunal has carefully examined the documents provided and noted that the only Gumtree advertisements are for mobile phones not for vacant positions in the applicant's business. No documents have been provided following the hearing that would provide evidence of an advertisement for a vacant position having been placed on Gumtree. As such, the Tribunal places little weight on this claim that the position was advertised on Gumtree but even if it were placed on Gumtree it is the seek.com advertisement that was used as the basis for the recruitment summary to satisfy the regional certifying body such that could give advice to the Minister to satisfy r.5.19(4)(9h)(ii)(F). This is clear from the CCIQ Assessment Summary attached to the regional certifying body form 1404 which states "Can't be filled locally: recruitment efforts: seek 111216>> 15 applicants. Invoice and listing. Letter says none suitable."”
    
    (emphasis added)

13. At [26] – [35] inclusive, the Tribunal carefully analysed not only the fact of the placement of an erroneous advertisement, but also the selective manner in which job applications for the position of a Beauty Salon Manager were treated, as a consequence of the publication of the advertisement, once received. Neither was there any evidence of the subsequent publication of a correctly framed advertisement, in circumstances where it would have been obvious to the applicant that most applications received by the applicant related to a Beauty Salon management position, and not a management position related to the sale of mobile phones.

14. The Tribunal referred to the “Summary of applications received for the position of Retail Manager”,[3] which unsurprisingly recorded that in respect of 13 of the 15 applications, the applicants had “No relevant work experience or qualifications”, or some other disqualifying factor. That was to be expected in circumstances where applicants were applying for a different position to that which was sought. The Tribunal said as follows:

    [3]           CB p. 60.

    “[26]It is clear from the receipt for $297 from Seek; the copy of the on line advertisement and the screenshot showing 15 candidates that the seek.com advertisement was placed; ran for the time indicated and that 15 candidates responded to the advertisement.

    [27] The Tribunal's concerns go beyond the fact that the position was misleading and advertised as being in a beauty salon store.

    [28] The Tribunal .is concerned about the evidence of the recruitment summary; the applicant's statements in the hearing and the letter of the 21 July 2017 that state;

    We advertised this position on Seek for four weeks and received 15 job applications. We carefully reviewed all job applications. The nominee, Zongmin YAN, saw our online advertisement and dropped his resume in our store. Considering the nature of the business and the job duties of the nominated position, we found the nominee, Zongmin YAN, is the most suitable candidate. However, he does not have valid work permission to commence this permanent employment.

    We are convinced by his efforts and sincerity for this job through phone interview and interview in person. If Zongmin is an Australian permanent resident, we will absolute to employ him to commence this employment. Considering the nature and size of the business, a suitable experienced personnel from the local labor market is our first option. However, when the position is not able to be filled locally, we have no alternative but to hire an experienced overseas personnel to assist with the development of the business.

    [29]The Tribunal considered the recruitment summary which shows 15 candidates and all listed as unsuitable except the nominee. Two were interviewed according to the recruitment summary.

    [30] Against the remaining 13 candidates who were not interviewed are comments such as "candidate does not demonstrate relevant knowledge in relation to mobile accessories"; ''no relevant work experience or qualification" or "candidate demonstrate [sic] low interest in mobile retailing industry". The only way the director could ascertain the mobile phone experience or relevant knowledge of these candidates would be to review their resume; speak to them on the phone or contact them via email. However, these candidates were responding to a position advertised for a beauty salon and it is reasonable that their resumes and experience would reflect beauty salon work and or beauty salon qualifications. It is noted that only three candidates did not provide resumes. Had the director reviewed their resumes or contacted them, he would have found references to beauty salon work or qualifications and realised the advertisement was misleading.

    [31]Even more concerning is the assessment of candidate number three, who was listed as an Australian citizen and according to the recruitment summary, interviewed along with the nominee. The summary lists under the suitability assessment the following: ''candidate does not demonstrate relevant knowledge in relation to mobile accessories". It is implausible that the applicant could have interviewed candidate number three and not become aware that the candidate was under the impression the position was in a beauty salon. The Tribunal considers that the applicant did not review the resumes or information the applicants provided and did not interview candidate number three because if he had; beauty salon work or experience would have been raised by at least some of the candidates and almost certainly by candidate three.

    [32]The Tribunal is left with the conclusion that the recruitment summary is false and that the applicant had no intention of considering Australian citizens or permanent residents for the position since he ignored their resumes; failed to contact them; failed to interview them and rather went through the advertising and recruitment process simply to provide a migration outcome for the nominee.

    [33]The Tribunal must consider the submission dated 6 July 2020 by the registered migration agent who claims that "it is a subjective test in determining whether the position can be filled by any candidate who is an Australian citizen or an Australian permanent resident living in the same local area. The applicant is entitled to make a decision at his discretion''.

    [34]The Tribunal does not accept this argument since it is a legislative requirement that the applicant ensure that the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as Nerang. It is neither a subjective test nor is it at the applicant's discretion. The applicant was aware of his legislative responsibilities to both th13 Department and the regional certifying body to satisfy r.5.19(4)(h)(ii)(F) because he did place the seek.com advertisement albeit in a misleading fashion.

    [35] The agent states that the job opportunity was open to all local residents and the advertisement ran for four weeks. It may have run for four weeks but the misleading information that the business was a beauty salon would have deterred Australian citizens or Australian permanent residents who had the necessary experience and qualifications as a retail manager for a mobile phone shop. The job opportunity was not open to all local residents but only to those who believed they had the experience and qualifications as a retail manager for a beauty salon store, a position which did not exist.”

15. As found by the Tribunal, it was the responsibility of the applicant to put before the Regional Certifying Body such material as would assist the body in reaching a conclusion as to whether, at the time of the placement of the relevant advertisement, and in respect of the actual nominated position, the nominated position could not be filled by an Australian citizen or an Australian permanent resident. The applicant failed to satisfy its onus by failing to properly advertise the position.

16. The fact that the CCIQ representative recorded on the CCIQ Assessment Statement under the heading “RCB local Knowledge” that there were “Known difficulties with such positions as the hours are long, skillset broad and the pay relevantly poor” does not assist the applicant, particularly in circumstances where that representative seems not to have had regard to the fact that the wrong position was advertised. Had the representative been alive to such fact, one would have thought that next to the heading “Recruitment efforts”, where it appeared immediately above the heading “RCB local Knowledge”, the representative would have noted that there had been an erroneous placement of a job advertisement for the nominated position. The lack of any such reference gives no comfort to the Court that the representative actively intellectually engaged on the question as to whether any appropriate job advertisement had been placed or not.

17. Further, at [40] of its reasons, the Tribunal properly directed itself to an analogous factual situation considered by His Honour Judge Brown in Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 when it said:

    “[40] There is some case law on whether the wording of an advertisement can deter applicants from applying for a position and that a properly worded advertisement would attract more applicants who were suitably qualified and who were Australian citizens or permanent residents. In Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) the advertisement stipulated 'Asian language highly preferred' rather than 'beauty salon store'' which is the case here. Nonetheless the Tribunal notes that there are significant similarities and Judge Brown at [108], (109) and [115) found as follows:

    In this case, it is asserted that there was no evidence to support the Tribunal’s conclusion. I do not agree that this is the case. The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion "Asian language highly preferred".

    Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills ...

    Mr Albert contends that the evidence available to the Tribunal indicates that a number of applicants did in fact apply and were found wanting. This is the case, but this factor alone does not negate the logical possibility that an advertisement, without the specification, would have attracted more applicants, who were suitably qualified and who were Australian citizens or permanent residents than applied to the advertisement in question, which in effect was the finding of fact made by the Tribunal.”

1. During the course of argument, reference was made to Exhibit 2, which relevantly recorded that the relevant ANZSCO code for the position of “Beauty Salon Manager” was 142 114, rather than the “Retail Manager (General)” code 142 111 which was recorded as being the applicable code on the Form 1404. That was of no moment. First, the Seek.com advertisement made no reference to code 142 114. Secondly, the Court does not otherwise accept that a prospective applicant to the Seek.com advertisement would have been able to relevantly appreciate the distinction between, or the possible significance of, the difference between the two codes. There was no evidence to that effect in any event.

2. The Tribunal considered all of the material before it when finding that r. 5.19(4)(h)(ii)(C) of the Regulations had not been met. Quite apart from its finding at [32] of its reasons that the actions of the applicant had been designed to provide a migration outcome for the nominee, it was open to the Tribunal to find that the flawed advertising process had rendered nugatory the advice process involving CCIQ, such that no weight should be attached to its advice. Further, it could not be said that it was the intention of the legislature at the time of the enactment of r. 5.19 that the placement of erroneous job advertisements would satisfy the requirements of the regulation. As a matter of public policy, and for the reasons as found by the Tribunal, erroneously published job advertisements which have the effect of misdescribing the nominated position ought not to be allowed to found the making of a valid nomination application. There was no jurisdictional error on the part of the Tribunal in finding as it did.

3. In the light of the Court’s findings in respect of Ground 5 of the Amended Application for Review, and the finding that the applicant failed to meet the mandatory requirements of r. 5.19(4)(h)(ii)(C) of the Regulations, it is unnecessary for the Court to address the matters raised in Ground 4 of the Amended Application for Review. Had the Tribunal erred as claimed in Ground 4 of the Amended Application for Review, it could not be said that any such error was material. Even if the Tribunal had acted as the applicant claimed it should have acted, it could not realistically have resulted in a different decision being arrived at, because of the failure of the applicant to satisfy the mandatory requirements of r. 519(4)(h)(ii)(C) of the Regulations in any event. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

   “[45] 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.

   [46] 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. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

5. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

6. The Amended Application for Review is without merit and is dismissed.

7. The Court will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 June 2021