Aussie Marketing Force Pty Ltd v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 3
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aussie Marketing Force Pty Ltd v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 3
File number(s): SYG 1984 of 2023 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 January 2025 Catchwords: MIGRATION – approval sought of nominated position under reg 5.19 of the Migration Regulations 1994 (Cth) under the Temporary Residence Transition Stream – allegation that Tribunal misunderstood reg 2.72(15)(c) of sch 2 of Migration Regulations 1994 (Cth) as to determination of the annual market salary rate in accordance with legislative instrument IMMI 18/033 – no jurisdictional error – application dismissed Legislation: Migration Regulations 1994 (Cth) regs 2.72 and 5.19
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (Cth)
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 28 November 2024 Date of hearing: 8 November 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Malik Lawyers Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs
Table of Corrections 14 January 2025 In paragraph 32, the words prior to “on a fair reading of the letter” have been inserted. 14 January 2025 In paragraph 32, the words following “salary rate was $75,850,” have been inserted. 14 January 2025 In paragraph 33, the words prior to “In this case, in my view,” have been inserted. ORDERS
SYG 1984 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSSIE MARKETING FORCE PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
The applicant, a company incorporated in Australia, applied for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations). The applicant nominated Ms Farheen Sultana, a citizen of India, in the position of accountant.
The Administrative Appeals Tribunal, in its decision dated 30 November 2023, was not satisfied that the applicant met reg 5.19(5)(o) of the Regulations, because it was not satisfied that reg 2.72(15)(c) had been met. Regulation 2.72(15)(c) required that the Minister is satisfied that the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under sub reg (17).
On that basis, the Tribunal found that reg 5.19(3)(b) of the Regulations required that the Tribunal refuse to approve the nomination. The applicant has sought judicial review to this Court of the Tribunal's decision on the basis that the Tribunal erred in finding that reg 2.72(15)(c) of the Regulations had not been met. For the reasons which follow no jurisdictional error is disclosed and the application is dismissed.
THE ALLEGED JURISDICTIONAL ERRORS
In the Further Amended Application filed on 15 November 2024, one ground was raised, being an allegation that the Tribunal erred in finding that reg 2.72(15(c) of the Regulations had not been met. The following 2 particulars were provided as to why the applicant so alleged:
(a)Particular 1 – The Tribunal misunderstood the applicable law as it considered that an annual market salary rate had to be determined in writing or alternatively, had to be otherwise precisely articulated, in order for reg 2.72(15)(c) to be met.
(b)Particular 2 – The Tribunal misunderstood the applicable law as it considered that the determination of the nominee’s proposed salary needed to be separate from the determination of the market salary rate in order for reg 2.72 (15)(c) to be met.
Before setting out the Tribunal's decision and the parties' submissions, it is helpful to set out the relevant legislative scheme applicable to the question the Tribunal was required to consider.
RELEVANT LEGISLATIVE PROVISIONS
In this case, the nomination of Ms Sultana in the position of an accountant with the applicant, related to a visa in the Temporary Residence Transition stream. Relevantly for that stream, reg 5.19(5) set out additional requirements to be met, including the following at reg 5.19(5)(o):
the requirements set out in sub regulation 2.72(15) are met, applying sub regulations 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;
Relevantly, reg 2.72(15) of the Regulations provided as follows:
(15) Subject to sub regulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short term stream or Medium term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under sub regulation (17); and (emphasis added)
(d)the annual market salary rate, excluding any non monetary benefits, for the occupation (determined by the person in accordance with an instrument made under sub regulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under sub regulation (17)); and
…
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(emphasis added)
The annual market salary rate is defined by reg 1.03, as meaning "the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full time basis for a year in the same workplace at the same location".
The relevant legislative instrument was Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (Cth) (IMMI 18/033), which provided at cl 8(b), in cases where there was not an Australian worker performing equivalent work:
Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. (emphasis added)
Relevant information was defined within the instrument IMMI 18/033, cl 4, to include, but not be limited to:
(a)information published on the Australian Government’s Job Outlook website;
(b)job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
(c)written advice from registered employer associations and/or unions;
(d)remuneration surveys generated across the relevant industry by a reputable organisation or body.
The Explanatory Statement to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) states:
The effect of sub regulations 2.72(15), (16) and (17) is as follows:
- salary assessment is not required if the nominee’s annual earnings will be more than the amount specified in a legislative instrument (currently $250,000 per year) (paragraph 2.72(15)(b))
- in all other cases, the annual market salary rate (defined in regulation 1.03) must be determined by the nominator in accordance with a methodology set out in a legislative instrument made under sub regulation 2.72(17) (paragraph 2.72(15)(c)). The annual market salary rate is the benchmark for assessing the nomination. It represents what an Australian citizen or permanent resident earns or would earn (in cases where there is no equivalent Australian worker), for performing the occupation in the same location on a full-time basis for a year; …
TRIBUNAL’S REASONS
The Tribunal at [17] of its reasons identified the relevant statutory question it had to determine, being whether reg 2.72(15) had been met, which required inter alia, that the annual market salary rate for the occupation had been determined by the applicant by reference to instrument IMMI 18/033.
At [18] and [19] of the Tribunal’s reasons, the Tribunal identified all the documents it had before it, which included the document described as “determination of the annual market salary rate for the nominated occupation” dated 15 November 2023 (Court Book (CB) 1204 to 1222).
The Tribunal noted at [55] of its reasons that it gave the applicant two opportunities to provide a determination of the annual market salary rate in accordance with the method set out in instrument IMMI 18/033. The Tribunal set out those requests at [48] and [51] of its reasons, which were sent to the applicant’s migration agent. The Tribunal also noted that the applicant, despite being invited to a hearing, declined and consented to the matter being determined on the papers.
At [45] of the reasons, the Tribunal considered that the applicant’s annual earnings were either $75,850 or $75,380.
When applying reg 2.72(15)(c) and whether the Tribunal was satisfied that the annual market salary rate was determined in accordance with instrument IMMI 18/033, it is clear from [46] to [55] of the reasons, that the Tribunal was looking at the material provided by the applicant, particularly the document described as “determination of the annual market salary rate for the nominated occupation” dated 15 November 2023 (CB 1204 to 1222), to see if it was satisfied that a determination as required by reg 2.72(15)(c) had been made.
The relevant parts of the document dated 15 November 2023 are reproduced below:
We hereby confirm that the proposed base salary for the nominee, amounting to AUD $75,850 per annum plus superannuation, is equitable and not less favourable than the base salary that would be offered to a comparably skilled Australian citizen or permanent resident undertaking equivalent responsibilities at the same location.
Considering that there is no Australian citizen or permanent resident currently occupying a similar position within our organisation, the determination of the base salary was conducted in accordance with the average market salary rate, as revealed in our comprehensive Market Salary Rate (MSR) research. Enclosed with this communication are all pertinent MSR documents, including job advertisements for analogous roles sourced from Seek and Jora (illustrating a salary range for the nominated occupation between $70,00 and $90,000), Indeed (indicating a salary of $71,600), Glassdoor (depicting an average salary of $70,500 or $70,955 for the nominated occupation in Sydney), and reputable Renumeration surveys from Payscale.com (displaying a salary range for the nominated occupation in Sydney from $65,094 to $91,000).
The inclusion of these documents in our nomination application attests to the thorough consideration given to determining a salary that exceeds the average market rate. This renumeration takes into account the nominee’s unique skills and extensive experience. Please kindly refer to the attached Market Salary evidence.
The Tribunal found that the determination dated 15 November 2023 did not constitute a determination of the annual market salary rate in accordance with IMMI 18/033. The Tribunal noted that the applicant stated that it had determined a salary that exceeds the average market rate, without making a determination of what the average market rate is ([53] of the reasons).
GROUND FOR JUDICIAL REVIEW
Particular 1 to Ground 1
Applicant’s submissions
In written submissions made on 10 October 2024, the applicant argued at [11] to [16] that:
11. Clause 2.72(15)(c) does not specify a requirement that the market rate be determined in writing. It only requires that the applicant determine the market rate for the occupation. The purpose of the regulation is to ensure that the sponsor is not using the visa category to obtain workers from overseas who will perform the work for less remuneration than an Australian based worker. Provided the sponsor uses the information sources specified in IMMI 18/033 and determines what equivalent Australian workers are being paid, regulation 2.72(15)(c) will have been met. There is no further requirement for articulation of what the determined rate was.
12.The statement by the Director of the sponsor dated 15 November 2023 that:
We hereby confirm that that the proposed base salary for the nominee, amounting to $75,850 per annum plus superannuation is equitable and not less favourable than the base salary that would be offered to a comparably skilled Australian citizen or permanent resident undertaking equivalent responsibilities at the same location
Could only be honestly made if a determination had been made about what the base salary that would be offered to a comparably skilled Australian citizen or permanent resident undertaking equivalent responsibilities at the same location was. The Tribunal made no finding that the director the sponsor was being dishonest.
13. The clear inference from this evidence was that a market rate had been determined and it was less than or equal to what the applicant was being paid. That the rate itself was not specifically identified does not mean that it had not been determined.
14. That rate had been determined by the supporting information at CB 1206 to 1222 which was remuneration surveys generated across the relevant industry by a reputable organisation or body within the meaning of IMMI 18/033. The purpose of providing that information to the Tribunal was to demonstrate that the determination had been made in accordance with IMMI 18/033.
15. By its written invitations the Tribunal required the sponsor to articulate the rate it had determined- and this had to be in writing. This is more than the regulation required.
16.the Tribunal misunderstood the applicable law as it considered that a rate had to be determined in writing or alternatively, had to be otherwise precisely articulated, in order for regulation 2.72(15)(c) to be met.
Minister’s submissions
The Minister contended that reg 2.72(15) expressly required the Tribunal to be satisfied that the nominator, had determined the annual market salary rate and had done so in a way that the determination was sufficiently clear, or indicative of a particular earnings figure. Further, the Minister said that reg 2.72(15(c) required that the said determination be “in accordance with” the legislative instrument IMMI 18/033, which in turn at paragraph 8(b) required the “annual earnings that would apply to an equivalent Australian worker” be determined by reference to “relevant information.” The Minister accepted that the information provided by the applicant at CB 1206 to CB 1222, was relevant information (TP 34.25), but contended that what the Tribunal found correctly was that at no point was it provided with a determination of the annual earnings for an equivalent Australian worker.
The Minister submitted that the Tribunal had to be satisfied that the nominator had made a determination as required by the regulations, the instruments and within reg 2.72(15)(c), because the identification of the annual market salary rate, was then necessary for the purposes of reg 2.72(15)(e), that the Tribunal be satisfied that “the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation.”
Consideration
For the purposes of reg 5.19(5)(0), reg 2.72(15) can only be met as expressly provided if the Tribunal is satisfied, inter alia, of the matters set out in reg 2.72(15)(c), that is “the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under sub regulation (17).”
As the Full Federal Court said in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [21], [23] and [27]:
[21] The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131] and the cases cited at footnote 109.
…
[23] Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.
…
[27] Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at 654 [137]:
…. where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.
Therefore, given that reg 2.72(15) expressly required the Tribunal to reach a state of satisfaction, given the express words used and including the matters pointed to by the Minister as set out at [21] of this judgment, the applicant needed to provide the Tribunal with evidence, be it orally or in writing, from which the Tribunal could then determine whether it was satisfied that the annual market salary rate had been determined in accordance with the legislative instrument. If so satisfied, the Tribunal could then continue with the other matters it needed to be satisfied of as required by reg 2.72(15)(e), being for example, that the nominee’s annual earnings were not less than the annual market salary rate.
On the express words of reg 2.72(15)(c), the determination did not need to be in writing, but on a proper construction of reg 2.72(15)(c) there did need to be articulated to the Tribunal, what the annual market salary rate had been determined because without such an articulation, the Tribunal did not have material from which it could form a state of satisfaction as required by reg 2.72(15)(c). The Tribunal understood what reg 2.72(15)(c) required. The Tribunal noted that the applicant was not attending the hearing and was simply giving the applicant a fair opportunity to provide a determination in writing, as the applicant had said that he did not want a hearing and wanted the Tribunal to consider the matter on the papers. That was the reason that the Tribunal was asking for the determination to be in writing, not because the Tribunal misunderstood reg 2.72(15)(c), but rather because the Tribunal was trying to be fair to the applicant by giving him an opportunity to provide the determination in a manner that the Tribunal could consider, which could only be in writing given that the applicant said he wanted the matter decided on the papers.
Accordingly, I reject the applicant’s submissions that the Tribunal so erred as set out in particular 1 to Ground 1.
Particular 2 to Ground 1
Alternatively, the applicant points to the document described as "determination of the annual market salary rate for the nominated occupation" dated 15 November 2023 (CB 1204 to 1222) and says that document contained the determination required by reg 2.72(15)(c) (TP 25.31).
Applicant’s Submissions
The applicant contended that the determination that was made was that the annual market salary rate was $75,850, because of the following paragraph of the said letter dated 15 November 2023:
We hereby confirm that the proposed base salary for the nominee, amounting to $75,850 per annum plus superannuation, is equitable and not less favourable than the base salary that would be offered to a comparably skilled Australian citizen or permanent resident undertaking equivalent responsibilities at the same location.
The applicant contended that the Tribunal's error was that it "misunderstood the applicable law, because it did not understand, for particular 2, that the calculation of the nominee’s salary could also be the calculation of the annual market salary rate": (TP 30.9-12).
Minister’s Submissions
The Minister contended that the applicant's reading of the letter dated 15 November 2023 is not a fair reading of the letter because if one goes to the same letter the third last sentence says:
The inclusion of these documents in our nomination application attests to the thorough consideration given to determining a salary rate that exceeds the average market rate.
The Minister contended that:
It refers to a determination having been made of a salary, that is for the nominee, that exceeds the average market rate. Not that is the same as the average market rate. So I accept, in principle, what my friend says, that to the extent that the determination of the annual market salary rate was the same as the nominee’s rate, that may meet the requirements. Because the requirements are that the nominee’s rate is not less than the average market rate. So if they are the same, that may meet the requirements of the Regulation. But here, the first point I make in response to my friend’s second particular, is that one needs to read the penultimate paragraph of 1204 with the second paragraph on 1205, which is that the nominator was not saying to the tribunal, “We have determined that the rates are the same”. In fact, a determination had been made that the nominee would be paid more. (TP 37.23-34)
Consideration
I do not accept the Minister’s submission as set out at [31] of this judgment, which suggests that the third paragraph of the letter could not be taken to be a determination of the annual market salary rate, because the $75,850 identified was said to exceed the average market salary rate. It is possible for the annual market salary rate and the average market salary rate to be two different figures, and for the nominee’s proposed annual salary to be both the same as the annual market salary rate and to exceed the average market salary rate. However, on a fair reading of the letter dated 15 November 2023, the applicant’s submission must be rejected because the letter must be read as a whole and it was open to the Tribunal not to read the third paragraph of that letter as stating that there was a determination that the annual market salary rate was $75,850, as the words in the third paragraph “equitable and is not less favourable” does not necessarily mean equal.
Further, I do not accept that on a fair reading of the Tribunal’s reasons it considered the determination of the nominee’s proposed salary needed to be separate from the determination of the market salary rate in order for reg 2.72 (15)(c) to be met. Read fairly, the Tribunal’s reasons indicate that the Tribunal took issue with the vagueness of the applicant’s evidence regarding any determination of the annual market salary rate and provided the applicant with multiple opportunities to clarify what determination had been made. In this case, in my view, reasonable minds can differ as to whether or not the letter disclosed a determination. Given, what Justice Gummow said in Eshetu, referred to at [23] of this judgment, it is difficult to find that no reasonable decision maker would have arrived at the conclusion the Tribunal did, that is, there was no determination disclosed in the said letter. Therefore, I find that the Tribunal correctly applied the law and reg 2.17(15)(c).
The Tribunal’s reasons as set out at [12] to [18] of this judgment do not disclose that the Tribunal thought the determination of the nominee’s proposed salary needed to be separate from the determination of the annual market salary rate. Rather, the Tribunal considered that the letter dated 15 November 2023 did not articulate what the annual market salary rate was that the applicant, as nominator, had determined.
I reject the applicant’s arguments as to particular 2 of Ground 1.
CONCLUSION
The application is dismissed.
I will hear the parties on costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 January 2025
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