Australia Abalone World Pty Ltd v Minister for Immigration

[2015] FCCA 632

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIA ABALONE WORLD PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 632

Catchwords:
MIGRATION – Migration Review Tribunal – refusal of a nomination under s.140GB – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958 ss. s.140GB, 476

Migration Regulations 1994 reg.2.72, 2.73

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

Applicant: AUSTRALIA ABALONE WORLD PTY LTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 427 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

Solicitors for the Applicant: Ms G. Anang
Christopher Levingston & Associates

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The proceeding before this Court, commenced by way of application on 23 February 2015, is summarily dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,367.

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

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking a constitutional writ in respect of a decision of the Tribunal affirming a decision of a delegate not to approve a nomination.  That decision of the Tribunal was made on 27 January 2015.

2. The grounds are as follows:

   1. The Migration Review Tribunal erred in finding that the applicant did not satisfy Regulation 2.72 (10) (f) of the Migration Regulations (1994) because the position associated with the nominated occupation was not genuine.

   Particulars

   a. In making the relevant finding, the Tribunal imported a requirement that the applicant be performing all of the duties of the subject position in order for the position to be genuine.

3. The application filed by the applicant identifies that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings

4. The Court raised with the applicant that the proceedings appeared doomed to failure and was minded to consider summarily dismissing the proceedings.  In considering the application under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. The Tribunal identifies that the application for review was made on 19 March 2014 following a decision of the delegate to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 and reg.2.72 of the Migration Regulations 1994. 

   2.  The applicant applied for approval on 13 January 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

6. The Tribunal extracted that criteria and, relevantly, in relation to reg.2.72(10) provides:

   2.72 Criteria for approval of nomination — Subclass 457

   (10)  If the person is a standard business sponsor — the Minister is satisfied that:

   (f) the position associated with the nominated occupation is genuine;

7. The Tribunal noted that the delegate decided not to approve the nomination on the basis the applicant did not satisfy rule 2.72(10)(f) because the position associated with the nominated occupation was not genuine.  The Tribunal carefully identified the evidence in claims before it in relation to the nomination.  The Tribunal noted the written submissions that were provided on 23 January 2015 and for the identical description of Ms Cui’s duties, and that is set out in paragraph 12 can also be found in annexure H to the document entitled “Genuine Position in Market Salary Rate Report”. 

8. The Tribunal said in para.18:

   18. 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”.

   …

   21. 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 Break 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.

   22. For these reasons the requirements of r.2.72(10)(f) are not met.

9. The grounds of the application were as follows:

   1. The Migration Review Tribunal erred in finding that the applicant did not satisfy the Regulation 2.72 (10)(f) of the Migration Regulations (1994) because the position associated with the nominated occupation was not genuine.

   Particulars

   a. In making the relevant finding, the Tribunal imported a requirement that the applicant be performing all of the duties of the subject position in order for the position to be genuine.

10. It was clearly a matter for the Tribunal to determine whether or not the position associated with the nomination is genuine.  That is a matter of finding of fact and the ground identified is seeking to challenge a finding of fact and does not identify any jurisdictional error.  It was open to the Tribunal to come to the finding that it made.  I am satisfied that the proceedings are doomed to failure. It was identified that these proceedings relate to another set of proceedings however that does not warrant adjourning proceedings that are doomed to failure. It is appropriate for the Court to deal with the proceedings and there is no utility in an adjournment given the reasons explained as it will only unnecessarily add to the parties costs and utilise limited court time.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings summarily dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 March 2015