B&G Green Trading Pty Ltd (Migration) - [2018] AATA 2801

B&G Green Trading Pty Ltd (Migration) [2018] AATA 2801 (10 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 J Redfern (Presiding)

Member A Mercer
DATE:10 August 2018
PLACE OF DECISION:  Melbourne
DECISION ON
PRELIMINARY ISSUE:  The Tribunal decides that there is no prescribed criteria against which to assess the applicant’s nomination for the purposes of section 140GB(2) of the Migration Act 1958 (Cth).
The Tribunal directs that the application for review be adjourned for 14 days to allow the applicant to make written submissions in relation to the further conduct of the review.

Statement made on 10 August 2018 at 11:52AM

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
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
APPLICATION FOR REVIEW

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 applicant’s nomination of a non-citizen for a visa permitting that person to travel to and remain in Australia under the employer sponsored temporary and permanent 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…

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 2801
Decision Date: 10 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by B&G Green Trading Pty Ltd against a refusal to approve a nomination for a Subclass 457 (Temporary Work (Skilled)) visa. The refusal was made under 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, which had been repealed and replaced, to a nomination application made before 18 March 2018, where an associated visa application had not been lodged by that date.

The legal issues before the court were whether the applicant met the prescribed criteria for the approval of the nomination, considering the repeal and replacement of regulation 2.72 and the impact of transitional provisions. Specifically, the court had to determine the scope and content of the nomination at the time of application for the purposes of assessing the applicability of the old regulation 2.72, and whether any accrued right existed to have the nomination assessed under the previous legislative framework. The court also considered whether the amended regulation 2.72 applied, or if no regulation applied against which the nomination could be assessed.

The Tribunal found that neither the old nor the amended regulation 2.72 applied to the applicant's nomination. It reasoned that clause 6704(6) of the transitional provisions did not preserve the operation of the old regulation 2.72 in circumstances where no visa application was on foot as at 18 March 2018. Furthermore, the Tribunal rejected the applicant's contention that the amended regulation 2.72 applied, finding that arguments based on accrued rights and broad interpretation of transitional provisions were not persuasive. The Tribunal concluded that as no prescribed criteria existed under either the old or amended regulation 2.72 against which to assess the nomination, and section 140GB(2) was conditional on such an assessment, the nomination could not be approved.

Consequently, the Tribunal affirmed the decision under review, noting that any assessment would be futile. The applicant was given the option to withdraw its application, seek a refund, and lodge a fresh nomination under the current provisions, or make written submissions regarding the further conduct of the review within 14 days.

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

We find that neither the old nor the amended r.2.72 apply to the applicant’s nomination and, as such, there are no prescribed criteria against which the nomination can be assessed. The Tribunal can conduct a review of the application but will not be able to approve the nomination. This is not a perverse outcome given any assessment would ultimately be futile.CONCLUSION 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. If the applicant wishes to proceed with the application for review, the Tribunal would have no choice but to affirm the decision under review. Alternatively, the applicant can withdraw its application, apply for a refund given the terms of cl.6704(10) and make a fresh nomination application under the new provisions for the same proposed occupation. To allow the applicant to make written submissions in relation to the further conduct of the review the Tribunal adjourns the review for 14 days.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.