Australia Abalone World Pty Ltd v Minister for Immigration
[2017] FCCA 252
•15 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIA ABALONE WORLD PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 252 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a nomination of a prospective employer – class 457 visa programme – Tribunal finding that the duties of the nominated position were not consistent with the title of the nominated position. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.140E, 140GB |
| Cases cited: Cargo First v Minister for Immigration [2015] FCCA 2091 Cargo First Pty Ltd v Minister for Immigration [2016] FCA 30 Khan v Minister for Immigration & Anor [2016] FCCA 333 Khan v Minister for Immigration [2016] FCA 877 |
| Applicant: | AUSTRALIA ABALONE WORLD PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 427 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Ms A Carr |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
The application as amended on 16 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 427 of 2015
| AUSTRALIA ABALONE WORLD PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 27 January 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not approve the nomination of Australia Abalone World Pty Ltd (Abalone World) for the employment of a foreign worker under the subclass 457 visa programme.
The following statement of background facts is derived from the submissions of the parties.
The visa applicant was Ms Cui Qi (Ms Cui). She is a citizen of the People’s Republic of China[1].
[1] Court Book (CB) 7
To meet the requirements of sub class 457, Ms Cui had to be nominated by a “standard business sponsor”[2]. Section 140E of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.59 of the Regulations apply to the approval or otherwise of a “standard business sponsor”. Approval as a sponsor was a prerequisite to having a nomination approved. Section 140GB of the Migration Act stated:
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
[2] Migration Regulations 1994 (Cth) (Regulations), Schedule 2, Clause 457.223(4)
(b) a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.
(3)The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.
(4)Different criteria and different processes may be prescribed for:
(a)different kinds of visa (however described); and
(b)different classes in relation to which a person may be approved as a sponsor.
The “prescribed criteria” referred to in s.140GB(2) are to be found in regulation 2.72 of the Regulations. These are particularly voluminous and are relevantly reproduced at CB 130-133. For present purposes the following sub regulations are relevant:
a)regulation 2.72(5): the Minister is satisfied that the nominator has identified the applicant or proposed applicant for the visa who will work in the nominated occupation;
b)regulation 2.72(8A): for nominations made after 1 July 2010, the Minister is satisfied that the applicant has provided as part of the nomination application, the name of the nominated occupation and the applicable ANZSCO[3] code, if there is one;
c)regulation 2.72(10)(e)(i)(A): for nominations made after 1 July 2010 the nominator has certified that the tasks of the position include a significant majority of the nominated occupation listed in the ANZSCO;
d)regulation 2.72(10)(f): the position associated with the nominated occupation is genuine.
[3] Australian and New Zealand Standard Classification of Occupations
On 13 January 2014, Abalone World made an application for nomination of an occupation for a subclass 457 visas for Ms Cui[4]. Abalone World nominated Ms Cui for the position and occupation of “Sales and Marketing Manager”. The ANZSCO code was also identified as “Sales and Marketing Manager”[5]. Abalone World did not nominate a ANZSCO digital code. Abalone World’s proposed employment related to a coffee business called “Muffin Break”, a franchise of which was owned by Abalone World.
[4] CB 1-9
[5] CB 4
Upon request by the Minister’s Department on 3 February 2014[6], Abalone World provided further information in support of the application on 3 March 2014[7]. A supporting letter from Muffin Break was also sent to the Minister’s Department on 4 March 2014[8].
[6] CB 13-19
[7] CB 20-39
[8] CB 40-41. It is curious that the letter bears the business address of the franchisee rather than the franchisor. The signatory is not named
Ms Cui’s main duties were stated as the setting up of a sales and marketing strategy, including the setting up of Australian coffee shops in China, and liaising with Chinese business communities and officials regarding the setting up of those coffee shops[9].
[9] CB 6
In response to the Minister’s Department’s request for further information Abalone World submitted Ms Cui’s contract of employment. The duties and responsibilities are listed at CB 25 and commence with the statement that the employer is in the business of operating coffee shops and intends to export the concept of Australian coffee shops to China. Ms Cui’s responsibility was stated to be the taking charge of the company’s coffee shop operations in China including setting up and daily management. That was to be her “global” responsibility. Within that she was required to:
a)set up a sales and marketing strategy to promote the company’s coffee shops in China;
b)liaise with Chinese wholesalers, retailers and government officials;
c)be responsible for assisting the employer’s operations on a day to day basis;
d)scheduling work, including liaising with other professionals in China;
e)promoting and marketing the business in China;
f)represent the employer to select appropriate clients;
g)providing advice as to business practices, government regulations and banking and commercial procedures;
h)review, approve and execute company documents.
There were other more general duties which are listed at CB 25-26.
The delegate refused the application on 19 March 2014[10] on the basis that she was not satisfied that regulation 2.72(10)(f) was met. That was because she was not satisfied that the nominated position was necessary for the operations of the business, as the statements made had not been supported by evidence, particularly evidence about negotiations about opening stores in China and evidence about business research[11].
[10] CB 42-53
[11] CB 52
The application for review was lodged on 7 April 2014[12].
[12] CB 54-55; (cf CB 56) for the date
On 22 January 2015 Abalone World’s new solicitor lodged submissions, among other things, addressing the delegate’s reasons. That submission attached evidence of the nominator’s plans, research and market testing[13]. The solicitor had also requested a deferral of the hearing, set down for 27 January 2015[14], but the Tribunal recorded at [5][15] that that request was refused. Abalone World did not appear at the scheduled hearing and the Tribunal proceeded to make a decision on that day[16], the decision being notified to Abalone World by letter dated the following day[17].
[13] see CB 70 and relevant annexures
[14] CB 62
[15] CB 124
[16] CB 123-133
[17] CB 122
The Tribunal affirmed the delegate’s decision as it was not satisfied that the nominated occupation was genuine. The Tribunal found that, in Ms Cui’s role with Muffin Break, her wide ranging duties were those of a manager and not those of a specialised “Sales and Marketing Manager”[18].
[18] CB 129 at [21]
The issue for the Tribunal, as for the delegate, was whether the position was “genuine”[19]. It referred to and extracted the ANZSCO description for “Sales and Marketing Manager” as a person who[20]:
[19] regulation 2.72(10)(f)
[20] CB 125-6
Plans, organises, directs, controls, and coordinates the sales and marketing activities within an organisation.
…
Specialisations:
Business Development Manager
Market Research Manager
The Tribunal said that it used this description as a guide[21].
[21] CB 126 at [13]
After reproducing the employee’s responsibilities and duties[22], the Tribunal then reproduced a submission originally given to the delegate[23], and highlighted sentences to the effect that the nominee, Ms Cui, has managed the nominator’s café operations for six months and could easily set up and manage similar operations in China.
[22] CB 126-7 at [14]
[23] CB 38
The Tribunal considered that on a fair reading of Ms Cui’s contract of employment her main duties involved the setting up and daily managing of the coffee shop operation in China. It considered that four of the listed duties were related to those of a “Sales and Marketing Manager”, but the balance appeared to be unrelated[24]. That led the Tribunal to conclude that Ms Cui performed some sales and marketing duties, but did not perform the duties of a Sales and Marketing Manager. It considered that her duties were those of a Muffin Break café manager and potentially of a clone operation in China. It concluded at [21][25]:
Given the wide range of duties of the nominated position which are not consistent with the duties of a Sales and Marketing Manager, the Tribunal is not satisfied that the position associated with the nominated position is genuine.
[24] CB 128 at [19]-[20]
[25] CB 129
The present proceedings
These proceedings began with a show cause application filed on 23 February 2015. That application was dismissed by another judge of this Court on 19 March 2015. On appeal to the Federal Court, consent orders were made remitting the matter to this Court for rehearing.
Abalone World now relies upon a further amended application filed in court by leave on 16 February 2017. There is one particularised ground in the further amended application which entirely replaces earlier grounds:
1. The Tribunal failed to complete the exercise of its jurisdiction, by failing to consider the applicant’s case in the context of all the information and evidence before it.
Particulars
(a)Error in failing to consider by reference to the material before it whether what the Tribunal found to be the visa applicant's main duties (the initial set up and daily management of a coffee shop operation in China) would involve a significant proportion of time devoted to duties encompassing those of a “Sales and Marketing Manager".
(b)Error in failing to consider whether the visa applicant’s duties which the Tribunal found to have been unrelated to those of a generic “Sales and Marketing Manager” could have come within the duties of a “Business Development Manager” which is one of the specialisations listed in the ANZSCO description of “Sales and Marketing Manager”.
I have before me as evidence the court book filed on 22 December 2016.
Both Abalone World and the Minister prepared helpful pre-hearing submissions and also made oral submissions at the trial of this matter on 16 February 2017. I found those submissions to be of assistance.
Consideration
Abalone World’s contentions
Abalone World relies upon the decision of Judge Smith of this Court in Cargo First v Minister for Immigration (Cargo First)[26] where his Honour said:
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.
[26] [2015] FCCA 2091 at [30]
Abalone World contends that while the Tribunal recognised that the occupation of “Sales and Marketing Manager” may legitimately include duties which were not within the ANZSCO description, the Tribunal fell into error in dissecting the duties of the nominated position at [19] and [20] of its reasons[27].
[27] CB 128
In that respect, that which the Tribunal saw as encapsulated in the words, “initial setting up and … and daily managing the coffee shop operation business in China” as Ms Cui’s main duties obviously included those four duties that the Tribunal saw as similar to the duties of a Sales and Marketing Manager. As explained in the document at CB 38, the concept of a coffee shop, or at least a Muffin Break coffee shop would be relatively new in China. The plan was to open twenty stores in China in a short period according to the document at CB 38 and that would obviously require marketing and a considerable amount of it. The Tribunal is said to have failed to consider the volume of marketing and the time that that may require in deciding that Ms Cui did not meet the description of “Sales and Marketing Manager”. That is the alleged first error.
The second error is said to stem from that fact that information before the Tribunal also included that one of the specialisations within the occupation of “Sales and Marketing Manager” was “Business Development Manager”. It was open to the Tribunal to find that Ms Cui’s global task would be the setting up and daily managing of a coffee shop business in China, but that task surely entailed development of the business and the management of that process – in other words being a “Business Development Manager”. That may at times have required her to liaise with Chinese business people and government officials, and other professionals in China and providing Abalone World with advice about business practices, government regulations and banking and commercial procedures in China.
The applicant submits that the Tribunal’s second error was therefore to fail to consider whether the duties that it found not to be those of a “Sales and Marketing Manager” may be encompassed within those of a “Business Development Manager”, being a specialisation within the more generic description of “Sales and Marketing Manager”.
Minister’s contentions
The Minister submits as follows.
In considering whether the nominated position was genuine, pursuant to sub-regulation 2.72(10)(f) of the Regulations, the Tribunal undertook a “qualitative assessment” as set out by Judge Smith in Cargo First at [30][28].
[28] Not disturbed on appeal (see Cargo First Pty Ltd v Minister for Immigration [2016] FCA 30)
At [12] of its decision, the Tribunal set out the relevant description of “Sales and Marketing Manager” of the ANZSCO. At [13], the Tribunal correctly stated that it only used the ANZSCO description as a guide. At [14]-[17], the Tribunal extracted parts of the documents before it relating to Ms Cui’s history with Muffin Break and what duties her new role would entail. In particular, at [14] of its decision, the Tribunal set out Ms Cui’s “Responsibilities/Duties” as they appeared in her contract of employment with Abalone World.
The Tribunal found at [18] that, Ms Cui’s main duties were “initial setting up matter (sic) and daily managing the coffee shop operation business in China”. At [19]-[20], the Tribunal found that, four of Ms Cui’s duties, as set out in her contract of employment, were similar to the duties of a “Sales and Marketing Manager”, however, the balance were unrelated to the nominated occupation. Ultimately, the Tribunal found at [20] that Ms Cui’s wide ranging duties were those of a manager, and not those of a specialist “Sales and Marketing Manager”. These findings of fact are said to have been reasonably open to the Tribunal to make on the material before it and for the reasons it gave[29].
[29] Ibid at [34]; see also Cargo First at [31]
As to the second particular, the Minister submits first, that “Sales and Marketing Manager” was the only position and nominated occupation in the application.
In Cargo First, Judge Smith stated at [25]:
Section 140GB is also within div.3A of the Act and is set out above. It can be seen that that provision allows an approved sponsor to nominate an applicant in relation to, amongst other things, a ‘proposed occupation’. Thus, at the outset, as I have already mentioned, the focus of the sponsorship provisions is upon an occupation…
In the application, under the heading “Position details (1 of 3)”[30], the role “Sales and Marketing Manager” appeared against “Job title/Position”, “Occupation” and “ANZSCO Code”. In Ms Cui’s employment contact, under the heading “2. Employment”[31] included “[t]he Employer employs the Employee and initially appoints the Employee to the position of Sales & Marketing Manager (‘Position’). The Employee accepts the appointment to the Position.” Annexures G and H of Abalone World’s representatives pre-hearing submissions[32] also referred to the position of “Sales and Marketing Manager”.
[30] CB 4
[31] CB 23
[32] CB 96-119
The material before the Tribunal only addressed the position of “Sales and Marketing Manager”, not that of “Business Development Manager”. Therefore, it was reasonably open to the Tribunal to assess the application against the nominated occupation of “Sales and Marketing Manager”.
Secondly, the Minister submits that “Business Development Manager” forms part of the nominated occupation “Sales and Marketing Manager”.
Relevantly, sub-regulation 2.72(8A)(a) states:
(8A) If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
if there is a 6-digit ANZSCO code for the nominated occupation – the name of the occupation and the corresponding 6-digit ANZSCO code…
In Cargo First, Judge Smith stated at [5]:
ANZSCO is the Australian and New Zealand Standard Classification of Occupations which is a classification system that provides for the standardised collection, analysis and dissemination of occupation data and replaced the former Australian Standard Classification of Occupations which had previously been used in respect of business visas and sponsors. The classification in ANZSCO is by reference to major group, sub-major group, minor group, unit group and occupation. Each level has a code with a specific number of digits. For example the major group has one digit whereas the occupation has six digits. Relevant to these proceeding, the major group is ‘Managers’ with a code of ‘1’, the sub-major group is ‘specialist managers’ with a code of ‘13’, the minor group is ‘advertising, public relations and sales managers’ with a code of ‘131’, the unit group is ‘advertising, public relations and sales managers’ with a code of ‘1311’ and the occupation is ‘sales and marketing manager’ with a code of ‘131112’.
As noted above, Abalone World nominated “Sales and Marketing Manager” against “ANZSCO Code”, the same nominated occupation as in Cargo First.
The relevant ANZSCO was extracted in the Tribunal’s decision at [12]. “Occupation” is the most detailed level of classification in the ANZSCO[33]. An occupation is classified according to the skill level and specialisation. Under “Sales and Marketing Manager”, the skill level is “1” and the specialisations are “Business Development Manager” and “Market Research Manager” to undertake the tasks of “plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation”.
[33] See Khan v Minister for Immigration & Anor [2016] FCCA 333 at [7]-[8] (not disturbed on appeal Khan v Minister for Immigration [2016] FCA 877)
The Minister submits that the Tribunal assessed Ms Cui’s position with the nominated occupation of “Sales and Marketing Manager” and found that the nominated occupation was not genuine. This finding is said to have been reasonably open to the Tribunal to make on the material before it. It was unnecessary for the Tribunal to make a specific finding, whether Ms Cui’s duties fell within the specialisation of a “Business Development Manager”, in circumstances where the Tribunal found that Abalone World’s position was not consistent with the tasks of the nominated occupation.
Resolution
The Tribunal left unexplored several issues which may have been pertinent to its consideration of Abalone World’s nomination. There was no consideration of the question why Ms Cui needed to be based in Australia in order to develop a coffee shop business in China. Secondly, Abalone World, which held a franchise from the established Muffin Break coffee shop business, intended to “clone” that business in China under a different name while Muffin Break developed its own business in China through a different entity. There was no exploration of the question of the extent to which Muffin Break approved of or even knew of the proposed Chinese business of Abalone World[34]. The Tribunal accepted that Ms Cui’s position was a real one but was not satisfied that the position was in reality as it was described. In my view, the Tribunal did not err in making its decision.
[34] The “letter of support” reproduced at CB 41 is on its face dubious
Abalone World asserts that the Tribunal failed to consider Abalone World’s case in the context of all the information and evidence before it. Abalone World pleads two particulars in support of the ground.
The first particular asserts that, the Tribunal failed to consider whether Ms Cui’s main duties would involve a significant proportion of time being devoted to duties of a “Sales and Marketing Manager”. This particular cannot be made out.
The Tribunal reasoned as follows at [18]-[21][35]:
The Tribunal considers that a fair reading of the contract of employment is that the applicant’s main duties are encapsulated in point 2 – “initial setting up matter (sic) and daily managing the coffee shop operation business in China”.
Of the remaining points, four are similar to the duty of a Sales and Marketing Manager:
·She is required to set up sales & marketing strategy to promote sponsor’s new coffee shop business in China.
·Promote & market the business of Employer in China.
·Represent the Employer to select appropriate clients for business in China.
·Represent the Employer to engage & choose appropriate clients for business in China.
[35] CB 128-129
The balance appear unrelated to the duties of a Sales and Marketing Manager:
·She is required to liaise with relevant Chinese Wholesalers, Retailers and Government official in matter relating to the New Coffee shop operations in China,
·Responsible for assisting the Employer’s business in China on a day to day basis.
·Scheduling work including liaising with other professionals in China.
·Represent the Employer to provide appropriate timely advice in relation to business practices, government regulations and banking & commercial procedures in China,
·Review, approve and execute company documents with other directors.
·Completing projects and work as directed by the Employer from time to time.
This leads the Tribunal to the conclusion that Ms Cui performs some sales and marketing duties, but does not perform the duties of a specialist Sales and Marketing Manager. The Tribunal considers on the evidence before it that Ms Cui’s duties are those of the manager of a Muffin Breach franchise at Carindale, and potentially also of a “clone” operation in China. Given the wide range of duties of the nominated position which are not consistent with the duties of a Sales and Marketing Manager, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
I accept that the Tribunal followed an evaluative analysis consistently with the observations by Judge Smith in Cargo First. The conclusions reached by the Tribunal were open to it on the material before it. Nothing in the material was overlooked.
The second particular asserts that, the Tribunal failed to consider whether Ms Cui’s duties fell within the duties of a “Business Development Manager”. This particular cannot be made out either.
While it is arguable that Ms Cui performed the functions of a “Business Development Manager” rather than a “Sales and Marketing Manager”, the latter was her job title and it was on that basis that the nomination was put forward. The Tribunal was entitled to rely upon the proposed contract of employment in order to establish Ms Cui’s main duties. It was open to the Tribunal to take the view that a substantial number of the duties proposed for Ms Cui were unrelated to the duties of her position as described. The Tribunal focussed correctly on the question of whether the nominated position accurately reflected the duties of the position and concluded that they did not. This was open to the Tribunal on the material before it. The Tribunal’s analysis was consistent with the approach of Judge Smith in Cargo First and no jurisdictional error is apparent.
Conclusion
I conclude that the decision of the Tribunal is not affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 March 2017
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