B&G Green Trading Pty Ltd (Migration) - [2018] AATA 3190

B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190 (31 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B&G Green Trading Pty Ltd
CASE NUMBER:  1620400
DIBP REFERENCE:  BCC2016/2413392
MEMBERS:Deputy President Jan Redfern (Presiding)

Member Alison Mercer
DATE:31 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to refuse the applicant’s business nomination application.

Statement made on 31 August 2018 at 5:23 pm.

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
B&G Green Trading Pty Ltd (Migration) [2018] AATA 2801
Downey v Pryor [1960] HCA 49
SECONDARY RESOURCES
Dutton P, (Minister for Immigration and Border Protection; Minister for Home Affairs), Putting Australian Workers First (Joint Media Release, Parliament House, Canberra, 18 April 2017).
Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018
STATEMENT OF DECISION AND REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to approve the nomination of an occupation in relation to a proposed applicant for a visa permitting that person to travel to and remain in Australia under the temporary skilled work visa scheme. This scheme was established under the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations) and its purpose is, broadly, to enable Australian employers to fill labour market shortages by employing skilled overseas workers.
There are three critical aspects to the temporary skilled work visa scheme. First, a sponsor must be approved under s.140E of the Act. Secondly, the approved sponsor must nominate an occupation, program or activity which must be approved under s.140GB of the Act. The nomination must be approved if the prescribed criteria are satisfied and those criteria are set out in r.2.72 of the Regulations. Thirdly, the visa applicant must satisfy the relevant criteria set out in Schedule 2 of the Regulations that applies to the class of visa in respect of which the sponsor has approval. Until 18 March 2018 one of the visas that could be approved as part of the scheme was a Temporary Work (Skilled) visa (subclass 457 visa).
The applicant, B & G Green Trading Pty Ltd (trading as Aussie Greenmarks), applied for approval of a nomination for a subclass 457 visa on 20 July 2016. The delegate decided not to approve the nomination on the basis that the delegate was not satisfied the nomination satisfied certain criteria in r.2.72, namely the delegate was not satisfied the position associated with the nominated occupation of ‘Contract Administrator’ was genuine. The nominee, Mr Irfanullah Baig, was the brother of a director of the nominating company and the delegate concluded that the reason for the existence of the nominated position was primarily to facilitate the entrance of the nominee into Australia, rather than to fill a genuine vacancy within the business and/or skills shortage in Australia.
The applicant lodged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3190
Decision Date: 31 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by B&G Green Trading Pty Ltd against a decision to refuse its business nomination application for a Subclass 457 (Temporary Work (Skilled)) visa. The refusal was based on section 140GB of the *Migration Act 1958* and regulation 2.72 of the *Migration Regulations 1994*. The core of the dispute revolved around the application of regulation 2.72, particularly in light of amendments made on 18 March 2018, given that the nomination application was lodged before this date but an associated visa application was not.

The legal issues before the Tribunal were whether the applicant met the prescribed criteria for the approval of the nomination, considering the repeal and replacement of regulation 2.72. Specifically, the Tribunal had to determine the impact of the transitional provisions on the assessment of the nomination, and whether the scope and content of the nomination should be assessed at the time of application for the purposes of determining the application of the relevant regulation. The Tribunal also considered whether an "accrued right" to have the nomination assessed under the old regulation existed, and if the amending regulations evinced a contrary intention.

The Tribunal reasoned that neither the old nor the amended regulation 2.72 applied to the applicant's nomination. It found that clause 6704(6) of the regulations did not preserve the operation of the old regulation 2.72 in this specific circumstance, as no visa application was on foot as at 18 March 2018. Furthermore, the Tribunal rejected the argument that the amended regulation 2.72 applied, finding that arguments based on "accrued rights" and a broad interpretation of transitional provisions were not persuasive. The Tribunal concluded that section 7(2) of the *Acts Interpretation Act 1901* could not be used to read words into the amended provision to preserve an alleged accrued right.

Ultimately, the Tribunal found that as neither the old nor the amended regulation 2.72 applied, there were no prescribed criteria against which to assess the nomination for the purposes of section 140GB(2)(b) of the *Migration Act*. Consequently, the nomination could not be approved. The Tribunal affirmed the decision under review, upholding the refusal of the business nomination application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the matters set out in our reasons, we find that neither the old nor the amended r.2.72 apply to the applicant’s nomination. This being the case there are no criteria against which to assess the nomination. As s.140GB(2) is conditional on such an assessment based on the prescribed criteria, the nomination cannot be approved. The Tribunal therefore affirms the decision under review.DECISION The Tribunal affirms the decision to refuse the applicant’s business nomination application.Jan RedfernDeputy PresidentAlison MercerMember

Ratio Decidendi

Legal Principle Established

It was submitted that there was no need to read any words into cl.6704(6) to give them operative effect, because the amended r.2.72 properly applies to the present nomination on the basis of either a broad construction of the transitional provisions or a beneficial interpretation of s.7 of the Acts Interpretation Act1901.[51][51] Ibid [17].CONSIDERATION The Tribunal does not accept all of the contentions of either the Department or the applicant but has concluded that neither the old nor the amended r 2.72 apply to the applicant’s nomination. Our reasons follow. There is no dispute that even though a proposed applicant for a subclass 457 visa was identified by the applicant in respect of the proposed nomination, no application for such a visa was made before 18 March 2018. It is common ground between the Department and the applicant that cl.6704(6) does not apply to such a nomination. We accept this as cl.6704(6) is clear in its terms. As such, on the face of it, cl.6704(6) does not preserve the application of the old r.2.72 to nominations made but not finally determined before 18 March 2018 which do not have an associated 457 visa or application on foot as at that date. Given this, there are three possibilities. The old r.2.72 still applies to these nominations, the amended r.2.72 applies or no regulation applies against which such nominations can be assessed.Does the amended r.2.72 apply to this nomination? The applicant contends that the old r.2.72 does not apply. Subclause 6704(6) could have expressly saved its operation in this circumstance but did not do so. The applicant contends that the amended r.2.72 applies because these nominations are preserved by reason of cl.6704(7) and the old r.2.73. Subsection 140GB(2) contemplates that a prescribed criteria must apply. There is no temporal element to the amended r.2.72 or s 140GB and as nominations are not fixed in time, they fall for consideration at the time of the decision. It is submitted that the amended r.2.72 applies to nominations made where the sponsor nominates a proposed occupation in relation to a proposed applicant for a subclass 482 visa. The intention of the nominee and the sponsor is critical and this intention can change over time to ‘reflect the state of the relevant legislation at the time the decision maker commences assessment of the nomination’.[52] This means that the nomination may change from a nomination for a proposed occupation in relation to a proposed applicant for a subclass 457 visa to a nomination for a proposed occupation in relation to a proposed applicant for a subclass 482 visa. The proposed occupation remains the same but the intention of the nominee and the terms of the nomination may change. [52] Ibid [11]. This is the crux of the applicant’s submission. We do not accept that the question of whether there is a temporal element to the amended r.2.72 is relevant to the issue in dispute. Regulation 2.72 sets out the provisions dealing with its application. It applies to nominations that fall within r.2.72(1) and establishes the criteria against which nominations are to be assessed for the purposes of s.140GB(2)(b). This assessment will be at the time of the decision. Submissions about the ‘narrow’ or ‘broad’ interpretation of the amended r.2.72 do not advance the determination of the preliminary question. We do not consider an argument that the amended r.2.72 should be interpreted broadly based on ‘accrued rights’ to be persuasive. This contention is predicated on the notion that the old r.2.72 does not apply and, as this would be anomalous, the amended r.2.72 must apply. We reject this contention. Subsection 7(2) of the Acts Interpretation Act 1901 cannot be used to read in words to an amended provision to preserve what is said to be an ‘accrued right’. The operation of this provision and the concept of accrued rights are complicated and, for the reasons later outlined in this decision dealing with the Department’s submission, there must first be a careful analysis of the amending provisions and the relevant legislative framework to determine its possible application.