Australian Group Investment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 823
•31 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Group Investment Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 823
File number(s): SYG 925 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 31 October 2023 Catchwords: MIGRATION – Reg 5.19 of the Migration Regulations 1994 (Cth) – consideration of the whether the Administrative Appeals Tribunal engaged in jurisdictional error – applicant company applied for a nomination of a position within its business – regulation required the applicant company to have fulfilled commitments relating to training obligations during most recent sponsorship approval – whether the Tribunal erred by founding its decision to refuse the visa on the basis that the company had not met its training obligations in each 12 month period during the sponsorship period – consideration of the construction attributed to the Instruments and the Regulations Legislation: Migration Act1958 (Cth) 140AA, 140E,
MigrationRegulations 1994 (Cth) 2.87B, 5.19, 187.223
Legislative Instrument IMMI 12/062, 13/030, 17/045
Cases cited: Dan Xu & Ors v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 856
FederalCommissioner of TaxationvConsolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 660
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 16 August 2023 Place: Sydney Solicitor for the Applicant: Ms Anang of Christopher Levingston & Associates Solicitor for the Respondents: Ms Frankel of Minter Ellison Lawyers ORDERS
SYG 925 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN GROUP INVESTMENT PTY LTD
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
31 OCTOBER 2023
THE COURT ORDERS THAT:
1.The first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 4 April 2019.
3.A writ of mandamus issue requiring the second respondent to re-hear the application for review according to law.
4.The first respondent to pay the scheduled costs of the applicant.
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 GOODCHILD
BACKGROUND
On 15 June 2017, Australian Group Investment Pty Ltd (the applicant) made an application for approval of a nomination of a position within its business in Australia.
On the same date, Ms Dan Xu (Ms Xu) the applicant in the related matter Dan Xu & Ors v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 856, lodged an application for a subclass 187 visa. The Applicant in the present proceedings nominated Ms Xu as the nominee to fulfill the position for which the nomination approval was sought.
The outcome of the related proceedings is dependent on the outcome of the present matter as per cl 187.223 of schedule 2 of the MigrationRegulations 1994 (Cth) (the Regulations), where to satisfy the requirements for the grant of a 187 visa, an applicant must demonstrate that the Minister has approved the corresponding business nomination application which is the subject of these proceedings.
On 10 August 2017, a delegate of the then Minister for Immigration and Border Protection refused to grant the applicant its nomination application on the basis that it did not provide any documentary evidence to support the application, and consequently ‘has not demonstrated that they meet subregulation 5.19(3)(b), (d), (e), (f). Therefore, the nominator does not meet subregulation 5.19(3)’.
The failure by the applicant to provide that documentary evidence appears to have been an oversight by the migration agent preparing the application. In any event, on 15 August 2017, the applicant lodged with the Administrative Appeals Tribunal (the Tribunal), an application for review of the delegate’s decision. In response to the Tribunal’s invitation to a hearing, by cover of letter dated 25 March 2019, the applicant’s solicitors provided several documents in effort to meet subregulation 5.19(3) and (4). The migration agent provided a statutory declaration dated 19 March 2019 declaring that the documents were attached to each application and sought an opportunity to rectify any error.
On 1 April 2019 the company director appeared at a hearing before the Tribunal with the assistance of her representative and a mandarin interpreter. The visa applicant in the related proceedings also appeared the hearing before the Tribunal with the assistance of her representative and a mandarin interpreter.
An issue arose at the hearing which required further information. By cover of letter 3 April 2019, the legal representatives for the applicant provided several further documents to the Tribunal. Included in those documents was two pieces of correspondence from Bond University to the applicant dated 2 April 2019 confirming the applicant’s contribution of $7230 towards training benchmark A for the 9 August 2017 to 9 August 2018 and confirming the applicant’s contribution of $7340 towards training benchmark A for the 9 August 2018 to 9 August 2019.
On 4 April 2019, the Tribunal affirmed the decision to refuse to approve the applicant’s nomination. Because the applicant made the payment of both the 2% quantum threshold for the 2017 year ($7,229) and the 2% quantum threshold for the 2018 year ($7333.35) in April 2019, the Tribunal determined that the applicant had not met the requirements necessary for the approval of the nomination of a position in Australia. The Tribunal determined that the applicant must meet the required training obligation in each twelve-month period an employee is a sponsored Visa holder.
For the reasons that follow, I am satisfied that the Tribunal erred in its determination.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review of the Tribunal’s decision on 12 April 2019.
The applicant relies on the following ground in seeking the above orders:
1.The Second Respondent fell into jurisdictional error by reason of it importing into the statutory scheme a temporal requirement with respect to satisfaction of regulation 5.19(3)(f) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
Particulars
a) At paragraph 21 of its decision record dated 4 April 2019) [sic], of the Second Respondent interprets the provisions of reg 5.19(3) (f) as requiring “fulfilment” of the relevant training commitment to occur in each year of the relevant visa approval.
b) The complaint of the second respondent as to the timing of the payments (paragraph 20) constitutes a traversal of the regulation which does not preclude the making of the relevant payments at any time for any period prior to the decision of the Second Respondent in circumstances contemplated by Section 55 of the Migration Act 1958.
(As per original)
The applicant’s application for judicial review proceeded to a hearing before me on 16 August 2019.
RELEVANT LEGISLATIVE AND REGULATORY FRAMEWORK
The requirements for the approval of a nomination of a position in Australia are set out in Regulation 5.19, which relevantly stated:
(1)A person (a 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:
(a)be made in accordance with approved form 1395 (Internet); and
(aa)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; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(2)The Minister must, in writing, approve a nomination if: …
(f)either:
(i)the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)it is reasonable to disregard subparagraph (i); and …
(5)The Minister must refuse a nomination if neither of subregulation (3) and (4) applies.
At the time of the lodgement of the nomination application, the training requirements the applicant was required to have complied with under Division 2.19 of the Regulations relevantly included the following:
Reg 2.87B Obligation to provide training
(1)This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a)the person’s approval as a standard business sponsor; or
(b)the approval of a variation to the person’s approval as a standard business sponsor
(2)If, during all or part of:
(a)the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b)a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12-month period.
(3)If, during all or part of:
(a)the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b)a period of 12 months commencing on an anniversary of that day:
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4)The obligations referred to in subregulation (2) and (3) start to apply on the day the person is approved to be a standard business sponsor.
(5)If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6)If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
(My emphasis)
As required by subregulation 2.87(2)(b) and 2.87(3)(b) of the relevant legislative instrument applicable at the time of lodgement of the nomination application, that being 15 June 2017 is IMMI 13/030. Relevantly, IMMI 13/030 provides:
The training benchmarks for an established business are:
(A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
(B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
THE TRIBUNAL’S DECISION
The Tribunal identified, correctly, that for approval of the nomination, the applicant was required to meet the criteria in Regulation 5.19 which contains the two alternative streams: a Temporary Residence Transition nomination (r 5.19(3)) stream and a Direct Entry nomination (r 5.19(4)) stream. An application made in accordance with r 5.19(2), that meets the requirements of either of the aforementioned streams, must be approved.
The Tribunal identified, for the purposes of the present application, the applicant was seeking to satisfy the criteria in the Temporary Residence transition nomination stream.
The Tribunal stated that to meet the obligations detailed in r 5.19(3)(f), IMMI 13/030 requires at least 1% of payroll of the business to be spent in the provision of training to certain (Australian) employees of the business or 2% of payroll to be paid into an industry training fund in the same or related industry.
The Tribunal noted that the applicant was first approved as a Temporary Business Entry, Standard Business Sponsor on 2 September 2013 for a period of three years. The Tribunal accepted that for the three-year period beginning 2 September 2013, the applicant had met its obligation of spending at least 1% of its payroll for the years 2014 to 2016, evidenced by way of invoices for training of Australian citizen or permanent resident employees.
The Tribunal identified that it must consider the period of the applicant’s most recent sponsorship approval. The Tribunal noted that the applicant was approved for a further Standard Business Sponsor (SBS) for the period from 9 August 2017 for a period of five years to 9 August 2022.
The Tribunal observed that there was no evidence before it to show that the applicant had continued to meet training obligations in the current period, from 9 August 2017 after the end of the first SBS approval despite continuing to employer-sponsored person. It is to be remembered that the hearing in this matter occurred on 1 April 2019.
The Tribunal stated that the applicant must meet the training obligation in each 12-month period an employee is a sponsored visa holder, even if they are employed for less than twelve months.
The Tribunal accepted that the Explanatory Statement introducing this requirement does not provide any guidance as to the nature of these commitments. The Tribunal referred to Departmental guidelines found in PAM3 whereby commitments are taken to be made at the time of the application for standard business sponsorship approval and, compliance is to be assessed on an annual rather than pro-rata basis.
Sponsorship applicable to Division 3A of Part 2 of the Act – Obligation to provide training
90 Reg 2.87B
Regulation 2.87B requires standard business sponsors to contribute to the training of Australian workers in each year they engage a sponsored person as a UC-457 visa holder.
…
91 Assessment of regulation 2.87B
To meet regulation 2.87B, sponsors must meet the training benchmarks from the day they are approved to as a standard business sponsor, provided they have at least one primary sponsored person.
Note: They must also keep documents that evidence their compliance with these benchmarks in order to comply with regulation 2.82(3)(g).
This obligation is assessable on an annual basis, in the twelve month period commencing on the day on which the sponsor is approved, provided the sponsor has engaged a sponsored at any stage during that twelve month period.
The applicant at the Tribunal hearing requested, and was subsequently granted, additional time to produce evidence of compliance with the obligations for the relevant period.
The Tribunal decision recorded that on 3 April 2019, the applicant produced documentary evidence addressing the issue. The decision states at [20]:
The applicant produced two letters from Bond University, School of Business both dated 2 April 2019. The applicant relies on these documents to now satisfy the 457 visa Training Benchmark A requirement for the 2017 year and also the 2018 year. The Tribunal accepts that for FY2018, the applicant’s payroll was $366,676 and that the $7,340 paid meets the 2% threshold ($7,333.35). the Tribunal also accepts that for FY2017, the applicant’s payroll was $361,438 and that the $7,230 paid meets the 2% quantum threshold ($7,299).
The Tribunal emphasised that the applicant must meet the required training obligation in each 12-month period an employee is a sponsored visa holder. The Tribunal accepted that the applicant had made the payments on 1 April 2019, the day following the hearing, and was therefore not satisfied that the applicant had met the required training obligation in each 12-month period an employee is a sponsored visa holder.
The Tribunal considered whether it is reasonable to disregard the requirements. The Tribunal placed weight on the circumstances that the payments for the 457 visa Training Benchmark A requirement were only made after the issue was raised at the hearing and considered it apparent that the applicant had not sought to take steps to meet its training obligations. The Tribunal also placed weight on the circumstances that the applicant was represented in the lead up to the hearing and had access to the benefit of advice on the relevant matters.
The Tribunal in considering the time of disruption caused by the death of the director’s husband in November 2018, stated that there was a period of non-compliance of significantly more than 12 months prior to that time from 9 August 2017.
The Tribunal found that it does not consider it reasonable to disregard the requirements when considering the circumstances cumulatively.
The Tribunal affirmed the decision of the delegate, as it was not satisfied the applicant had met the requirements of 5.19(3).
APPLICANTS SUBMISSIONS
The applicant submitted that in accordance with subregulation 2.87B(2), the applicant’s obligation to satisfy the relevant training requirements commences when the following occurs:
(a)The applicant obtains Standard Business Sponsorship approval; and
(b)The applicant sponsors an employee.
Upon fulfilment of the conditions, the applicant is then required to satisfy the requirements of Training Benchmark A (per IMMI 13/030) for each 12-month period that it continues to hold sponsorship approval and sponsor an employee.
The applicant contends that for each of the 12-month period, a sponsor can “satisfy the requirements of benchmark A at any time during the duration of the sponsorship”, and that the use of the term ‘for that 12-month period’ in subregulation 2.87B(2)(b) as opposed to the use of the term ‘within’ or ‘in that 12 month period’ strongly supports such an assertion.
The applicant further submits that a comparison of the relevant legislative instrument, IMMI 13/030, and its predecessor, IMMI 12/062, and more particularly the removal of any explicit temporal requirement concerning the fiscal year in IMMI 13/030, supports the applicant’s contention.
At the hearing before me, the applicant’s representative highlighted that IMMI 17/045, the successor to IMMI 13/030, contained in it a definition for the term “recent expenditure”. Further, that such a definition was absent from the operative IMMI 13/030.
RESPONDENT’S SUBMISSIONS
The respondent’s submissions can be summarised by into the following three points, that:
·recent expenditure needs to be taking at its ordinary meaning, that is, that training requirements were met in a timely manner, not “at any time” as suggested by the applicant;
·reference to the Departments Procedure Advice Manual concerning the operation of r 2.87B, makes clear that the intention is training requirements are met each year, noting they are assessable on an annual basis; and
·despite Greenwood J’s comments in Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 660 (‘Pexbury’) reflecting some ambiguity in the language of IMMI 13/030, it should not be accepted that IMMI 13/030 is less explicit or less precise than IMMI 12/062.
The respondent ultimately submits that when read together, r 2.87B and IMMI 13/030 must be construed so that the training requirements are to be met within in each 12-month period of the standard business sponsorship. Further, that it is not open to read the legislation “so broadly” to allow for the requirements to be met “at any time”.
CONSIDERATION
The task of statutory construction must begin and end with consideration of the text read in context: FederalCommissioner of TaxationvConsolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 per French CJ, Hayne, Crennan, Bell and Gageler JJ at [39] (“FCT”).
These proceedings concern the Subclass 457-Temporary Work (Skilled) Visa program. This program was abolished in March 2018 and replaced with the Subclass 482-Temporary Skill Shortage Visa (“482 visa”). The temporary work entry scheme was designed to meet the short to medium-term needs of Australia and overseas business for skilled labour. The purpose of the programme and the legislative framework underpinning it are set out in s140AA of the Act. In order to ensure that employers do not have a long-term reliance on overseas workers at the expense of the Australian labour market, the proposed employer, the nominated position and the visa applicant were to be assessed in accordance with the regulatory requirements.
Section 140E (1) and (2) of the Act provides that the Minister must approve sponsorship applications if prescribed criteria are satisfied.
The applicant obtained approval as a Standard Business Sponsor (SBS) for the period 2 September 2013 to 2 September 2016. It obtained further SBS approval for the period 9 August 2017 to 9 August 2022. Ms Dan Xu had been sponsored as an employee by the applicant in the nominated position since March 2014.
The applicant elected to seek approval of the nomination application via the Employer Sponsored (subclass 187) (Temporary Residence Stream) and was required to satisfy the requirements of r 5.19(3). Specially, the applicant was required to satisfy the requirements of r 5.19(3)(f)(i)(B), which required compliance with “applicable obligations under Division 2.19 relating to the nominators training requirements during the period of the nominator’s most recent approval as a standard business sponsor...”
During the period of the approval i.e., during 9 August 2017 to 9 August 2022, the applicant was required to comply with the training requirement obligations under Division 2.19 of the Regulations, specifically subregulation 2.87B Obligation to provide training, which provides as follows:
(2) If, during all or part of:
…
(b) a period of 12 months commencing on an anniversary of that day; the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12-month period.
The relevant legislative instrument applicable at the time of the lodgement of the nomination was IMMI 13/030 which provided as follows in respect of training benchmarks:
The training benchmarks for an established business are:
(A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
(B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The applicant sought to satisfy the requirements of Training Benchmark A of IMMI 13/030 for the 12-month periods of 9 August 2017 to 9 August 2018 and 9 August 2018 to 9 August 2019 by providing to the Tribunal receipts from Bond University both dated 2 April 2019 confirming the applicant’s contribution of an amount of money towards training benchmark A for the 9 August 2017 to 9 August 2018 and for the 9 August 2018 to 9 August 2019.
The Tribunal acknowledged that the amount of the contributions made to Bond University met the requirements for benchmark A for the relevant periods however it found that the applicant failed to satisfy the requirements of reg 5.19(3)(f) because the contributions were not made, in this case, an amount was not paid, in each 12-month period.
The purpose of the regulations is to establish a process for the approval of employer nominated positions within standard business sponsors: r. 5.19. The sub-regulations set out the obligations on businesses to provide the training: sub reg 2.87B. The prescribed obligation is to “comply with requirements relating to training, specified by the Minister..., for that 12-month period.”
The Explanatory Statement for IMMI 13/030 provides as follows:
Subregulation 2.87B(2) of the Regulations provides that for each 12 months commencing on the day the person is approved as a standard business sponsor, or on an anniversary of that day, if the person has had at least one primary sponsored person for all or part of that 12 month period, the standard business sponsor must comply with requirements relating to training specified by the Minister in an instrument in writing for that 12 months.
The Explanatory Statement identifies the purpose of the instrument was to provide training benchmarks for a person to meet when they apply for an approval of nominated positions.
The Explanatory Statement identifies the instrument as operating to describe the training requirements that standard business sponsors who lawfully operate a business in Australia are obligated to comply with.
There is nothing contained in the Explanatory Statement which imposes an obligation that the assessed benchmark or requirement is required to be made (or in this case – paid) with-in the 12-month period.
The relevant requirements specified by the Minister for that 12-month period is a payment assessed by applying a “Training Benchmark” – identified as “Recent expenditure…to the equivalent of at least 2% of the payroll of the business…” In neither the regulations nor sub-regulations nor IMMI 13/030 is there an express requirement that the training benchmark obligation once assessed, for that 12-month period, is to be paid in (or shortly after) each 12-month period. Self-evidently, if the assessment of the amount to be paid by the business is based upon the expenditure of that business for that 12-month period, it would not be able to be assessed until the expiration of that 12-month period and the assessed amount would never be able to be paid in each 12-month period.
The Tribunal observes that the Departmental Guidelines (PAM3) provide that the assessment undertaken is that of the standard business sponsor at the time the application is made and to assess compliance on an annual, rather than a pro-rate basis. That says nothing about when the assessed amounts are to be paid and the applicable PAM3 does not contain a policy that provides that the assessed obligation for a particular year is required to be paid in that year (which strictly is not possible, in any event) or shortly after that year. The relevant PAM3 are referring to the assessment of the amount to be paid – not when that amount is to be paid.
The PAM3 provides that “all standard business sponsors are required to demonstrate that over the term of their sponsorship they fulfilled either Training Benchmark”: PAM3 9.2.2.1 Overview.
The PAM3 provides that “If the nominator has previously been a standard business sponsor they are required to have fulfilled any commitments they made in relation to meeting their training requirements during the period of their most recent approval as a standard business sponsor”: PAM3 9.2.2.2 The training benchmarks.
The PAM3 provides that “payroll” refers to the amount of money an employer pays in wages to their employees: PAM3 9.2.3.4 Payroll. PAM3 provides that if a nominator seeks to meet the requirement of payment to an industry training fund, the equivalent of at least 2% of payroll expenditure should be made to a fund relating to the industry in which they operate: PAM3 9.2.4.1. Industry training funds. There is no stated policy that those funds are to be paid in each 12-month period.
The respondent contends that because IMMI 13/030 provides that training benchmarks are “recent expenditure by the business” the words “recent expenditure” import into the assessment of the obligations the requirement that training requirements are met in a timely manner and not at any time. In my view “recent expenditure” refers to payroll of the business during the period of the standard business sponsor’s most recent approval as a standard business sponsor. i.e., in the present case - during 2017 to 2022.
I note, that on 1 July 2017, the subsequent Legislative Instrument IMMI 17/045 (IMMI 17/045) commenced. In accordance with section 7 of the legislative instrument, IMMI 17/045 applied to nominations or standard business approvals lodged on or after commencement of the instrument.
IMMI 17/045 specified the following requirements:
Benchmark A:
Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to a training fund that operates in the same or a related industry of the business.
Recent expenditure for Training Benchmark A is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment or a letter from the relevant fund.
OR
Training Benchmark B
Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and Australian permanent residents.
The business is also required to show that the provision of training is related to the purpose of the business.
Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.
(Emphasis added)
Whilst this subsequent instrument does not apply in the present case, the respondent contended, in circumstances where the relevant instrument was unclear, the above subsequent instrument should provide some guidance as to the intended purpose of IMMI 13/030. I do not accept that the subsequent amendment of a legislative instrument can be used retrospectively to aid in the interpretation of the previous instrument.
Regulation 5.19(5) provides that the Minister must refuse an employer nomination if the nominator fails to meet the requirements for training. In my view, if it was the intention of the drafters that the not insignificant effect on a business for failing to acquit the 2% quantum threshold in each 12-month period, such requirement would be clearly articulated in the regulations, relevant instrument and in the Departmental guidelines. Given the nature of the power clear words are required which would have the effect of requiring compliance with the obligation on a year-to-year basis throughout the period of sponsorship.
On the face of the documents, the Bond University correspondence to the applicant dated 2 April 2019 provided that the applicant nominator had met the training requirements for 2017 and 2018. The 2017 and 2018 payroll has properly been provided. The assessed 2% quantum had been made to an industry training fund and the payment had been made to that training fund during the most recent approval as a standard business sponsor.
I agree with the submissions of the applicant, the interpretation placed on the regulations introduces a temporal approach – introduces a time frame for when assessed payments are to be made – that simply is not available on the legislation.
Lastly, both parties have referred to his Honour Greenwood J’s judgement in Pexbury. I do not think it is directly relevant to the issue that arises in these proceedings and as such, have not referred to that decision for my deliberations.
In the foregoing circumstances, I am satisfied that the matter be remitted to be re-determined by the Tribunal on the ground of jurisdictional error. The orders I make are set out at the forefront of this Judgement and I will be heard by the parties as to costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 31 October 2023
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