Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Attractive Cleaning (Aus) Pty Ltd sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' refusal to approve its nomination applications for the occupation of bricklayer. The company, trading as JS Homes, had nominated Ms Kaur as the primary sponsored person, with her husband and child listed as secondary applicants. The delegate had refused the nominations on the basis that the nominated position was not genuine and full-time, as required by regulation 2.72(10)(f) of the Migration Regulations 1994.

The sole ground of review argued by Attractive Cleaning was that the Tribunal failed to afford procedural fairness as prescribed by sections 359A and 359AA of the Migration Act 1958 (Cth). Specifically, the applicant contended that the Tribunal erred by failing to adequately inform Mr Singh, the company's director, about the relevance and consequences of departmental policy contained in PAM3, which was raised during the hearing. Attractive Cleaning argued that this failure constituted a breach of the statutory process for dealing with adverse information, leading to jurisdictional error.

Justice Kelly, in the Federal Court of Australia, found that the Tribunal was not satisfied that the nominated position was genuine, nor that it had been created to secure a migration outcome, concluding that regulation 2.72(10)(f) was not met. The Tribunal also found that labour market testing requirements under section 140GBA of the Act were not satisfied, noting that the nomination of a family member for a position essentially amounted to "self-sponsorship" without sufficient justification. The Court held that the information in PAM3, concerning the purpose of the 457 program and factors indicating a primary objective to facilitate entry or stay, was not the type of "adverse information" to which sections 359A and 359AA applied in the manner contended by the applicant. The Court was not satisfied that the provision of s 359AA was engaged, and therefore, the application was refused.