Bas and East Street Upholstery v Minister for Immigration - [2004] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAS & EAST STREET UPHOLSTERY v MINISTER FOR IMMIGRATION

[2004] FMCA 323

MIGRATION – Application for judicial review of decision of the Migration Review Tribunal – nomination of business activity – Regulation 1.20G – prescribed form – tasks – varied occupation description – task of the MRT – consideration of material evidence – jurisdictional error – decision of MRT set aside.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Migration Regulations 1994 (Cth)

SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Applicant:

FETHI BAS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 526 of 2003

Delivered on:

21 May 2004

Delivered at:

Melbourne

Hearing Date:

14 May 2004

Judgment of:

Hartnett FM

Applicant:

EAST STREET UPHOLSTERY PTY LTD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 527 of 2003

Delivered on:

21 May 2004

Delivered at:

Melbourne

Hearing Date:

14 May 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicants:

Mr Hurley

Solicitors for the Applicants:

Maria Scoutis

Counsel for the Respondent:

Ms MacDonnell

Solicitors for the Respondent:

Clayton Utz

THE COURT DECLARES THAT:

The decision of the Migration Review Tribunal made on 23 April 2003 is invalid and of no effect.

THE COURT ORDERS THAT:

The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.
The costs of the applicants be paid by the respondent as agreed or failing agreement as determined by this Court upon application made to it.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 526 of 2003

FETHI BAS

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 527 of 2003

EAST STREET UPHOLSTERY PTY LTD

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

East Street Upholstery Pty Ltd made application to review under s.39B of the Judiciary Act 1903 (Cth) as provided in Part 8 of the Migration Act 1958 (Cth) by application filed 20 May 2003. Orders of certiorari, prohibition and mandamus were sought on the grounds as set out in paragraph 3 of that application. An amended application was filed on 26 August 2003 wherein a declaration was sought. In that application writs of prohibition and certiorari were also sought in relation to a decision of the Migration Review Tribunal (MRT) made on the

23 April 2003. The applicant claimed that the decision was made without jurisdiction or was affected by error of jurisdiction as particularised in paragraph 3.
Fethi Bas made application to review under s.39B of the Judiciary Act 1903 as provided in Part 8 of the Migration Act 1958 (Cth) by application filed 20 May 2003. Orders of certiorari, prohibition and mandamus were sought on the grounds as set out in paragraph 3 of that application. That application was amended by the filing of an amended application on 26 August 2003 and again by second amended application filed 29 April 2004.
The parties agreed that the respondent file a single court book for both proceedings and likewise contentions of fact and law. Both applications proceeded at the same time. It was conceded by both Counsel that if the applicant East Street Upholstery Pty Ltd were successful on the application then so too would be the other applicant Fethi Bas. If East Street Upholstery Pty Ltd were unsuccessful on the application then likewise that would dictate the same outcome for Fethi Bas as it was necessary for his application to be supported by an approved business nomination. Thus the issue before the Court was that of the application by East Street Upholstery Pty Ltd in matter number MZ 527 of 2003.
Before the MRT was conducted a combined hearing of both applications. The presiding member heard oral evidence from Mr Fethi Bas, Mr Mehmet Azmi Bas, a Director of East Street Upholstery Pty Ltd, Mr Yildiz, an Accountant of Yildiz and Associates and Mr Arici a Sales Manager of `East Street Upholstery Pty Ltd’ (the applicant). Such hearing proceeded on 28 March 2003 and a transcript of proceedings was provided to the Court. The applicants, on the hearing before the MRT, were assisted by their migration agent.
On 26 April 2002 the applicant applied for approval as a business sponsor and nominated Mr Fethi Bas for the position of Office Manager. On 14 June 2002 the delegate of the Minister approved the applicant as a business sponsor but refused the nomination application on the basis that the nominated position was not an occupation specified under the Gazette Notice for sub-regulation 1.20G(2) of the Migration Regulations 1994 (Cth) (the Regulations).
On 11 July 2002 the applicant applied for review of the delegate’s decision to the Tribunal. By a decision dated 23 April 2003 the MRT affirmed the decision under review. The applicant then made the application, as previously described, to this Court.
It is necessary for the applicant to demonstrate that the MRT fell into jurisdictional error. The applicant’s submission is that the MRT erred in construing, and therefore applying, the provisions of the Regulations concerning nomination of the business activity sought by the applicant.

Nomination by a business sponsor

East Street Upholstery Pty Ltd applied for approval, and was approved, as a standard business sponsor. As a standard business sponsor, it was able to nominate to the respondent “an activity in which an individual [was] proposed to be employed by [it] in Australia”: Regulation 1.20G(1).
The nomination had to be made in accordance with approved form 1068: Regulation 1.20G(3). Regulation 1.18(1)(b) allowed the respondent to approve the form.
Regulation 1.20G(2) required that “the tasks of the nominated activity must correspond to the tasks of an occupation specified in a Gazette Notice for the purposes of [that] subregulation”.
The scheme of regulation 1.20G is clear. A business sponsor must nominate an activity on the prescribed form. However, that activity will not be approved merely on the basis of the title given to it. Approval of the nominated activity is dependent on the congruity between the tasks of the nominated activity and the tasks of an occupation, which has been specified in the Gazette Notice.
For the tasks of the nominated activity to “correspond to” the tasks of an occupation specified in the Gazette Notice, they must be similar or equivalent to, and not contradict, the tasks of a specified occupation (the Australian Oxford Dictionary 5^th edition).
Questions 11 and 12 of Form 1068 require the job title, occupation and the “ASCO Code (if known)” of the position to be provided. The occupations specified in the Gazette Notice are coded in accordance with the Australian Standard Classification of Occupations [ASCO]. Of the 477 specified occupations, 48 involve managerial occupations and another 38 involve supervisory occupations.
On the form 1068 lodged by it on 29 April 2002, the applicant gave the title of the position as “office manager”, the occupation as “office manager” and did not provide an ASCO Code.
The form 1068 also required the applicant to “describe the position to be undertaken, including responsibilities and main duties”. In response, the applicant attached a list of duties in letter dated 19 April 2002 These responsibilities and duties were canvassed as follows:
1)establish new procedures and processes in manufacturing; creating efficiencies that allow the company to be competitive in the marketplace;
2)oversee and control office functions including office administration and establish data retention and filing procedures;
3)liaise with other departments in the organisation including the manufacturing and sales departments;
4)provide relevant staff with details of stock and consumable requirements for purchase ordering;
5)train and supervise staff in the manufacturing and administration departments;
6)manage salaries, termination and other employment matters including determining manufacturing scheduling;
7)manage and control the flow of production in the manufacturing department;
8)undertake involvement in delivery of products and also in debt collection if necessary;
9)liaise with foreign suppliers and potential customers for the export market; and
10)deal with customer complaints and ensure that the manufacturing department arranges for repairs to be performed in an orderly manner.
The delegate refused approval for the nominated activity of “office manager” it being not an occupation specified in the Gazette Notice.
Following the delegate’s decision, and in a submission on 21 June 2002, the applicant submitted to the respondent’s Department that the tasks of the nominated activity closely matched those of Customer Service Manager ASCO Code 3392-11 and would reflect the tasks of a Production Manager (Manufacturing) ASCO Code 1222-11. These positions were Gazetted positions for the purposes of subregulation 1.20G(2). The Department rejected these submissions.
In a submission by the applicant to the MRT dated 30 October 2002 the occupation of “customer service manager” was detailed. An amended list, dated 30 July 2002, of the duties performed by Mr Fethi Bas was provided. Those duties were as follows:
1)Establishing of new processes and procedures increasing output.
2)Development of new stock control procedures so that the orders and fulfilment time for those orders were cut down and customers are not required to wait as long to collect their orders.
3)Supervises office administration: invoicing, distribution, dispatch and receiving. Maintains client record files, stock levels and co-ordination of orders.
4)Provides liaison between manufacturing and sales departments ensuring that both departments are aware of available stock and forecasted orders. This includes maintaining required levels of materials to meet the demand while maintaining budget levels.
5)Manages and coordinates production requirements in manufacturing departments and material purchases for production.
6)In charge of all human resource matters, including payroll, OH&S, hiring termination and staff levels required for varying production schedules.
7)Liases directly with foreign suppliers of materials, explores potential for new export markets.
8)Coordinates customer returns/complaints and ensures that quality of repairs is at an acceptable standard.
9)Maintains data on sales, purchases and budgets.
10)Provides ongoing training to both sales and manufacturing staff.
11)Due to high level of experience fills-in in various departments where there are staff shortages or when demand levels are particularly high.
In an answer by the applicant to a request under s.359A of the Act, the occupation of “office manager” was propounded.
At the MRT hearing the occupations of “customer service manager” and “production manager” each were propounded. The reason for those varied identifications of nominated activity was because the applicant required the performance of tasks which it said to some extent overlapped amongst the various occupations. This was conceded in part by the Tribunal member upon hearing of the tasks performed by the visa applicant that “it seems to me that it’s a bit of everything”.

Consideration

The nomination by a business sponsor, namely the applicant, was completed on the correct form, being Form 1068. The job title inserted, without ASCO Code was “Office Manager” as was the occupation description.
The applicant is engaged in the manufacturing of lounge suites and providing upholstery services to businesses and the general public. Mr Mehmet Bas commenced the business during the 1994 calendar year, operating as a sole trader. A corporate structure was put in place in July 1999 to continue the operations of the business. Turnover of the business was expected to exceed $2,100,000.00 in the financial year ended June 30 2002. Twenty-two (22) staff were employed.
The applicant, as an approved standard business sponsor, nominated an activity of Office Manager which has an ASCO Code number 3291-11 (which was never referred to by the applicant). However, in setting out the tasks of that occupation for the MRT the applicant concluded that the nominated activity was in fact not that of Office Manager but that those tasks more closely aligned with the activity of Production Manager ASCO 1222-11 as provided for in the Gazette Notice for subregulation 1.20G(2).
The standard business sponsor was required to nominate an activity but it was the function of the MRT to consider the evidence of the tasks performed by the visa applicant and then consider whether those tasks corresponded with the tasks of the nominated activity. However, it was to the nominated activity – without code – that the MRT looked first, rather than a consideration of the tasks which had to correlate with that nominated activity. In so doing, the MRT wrongly considered the first-made nomination (prior to the applicant’s amendment to same having engaged in the task of considering the tasks required to be performed) before a factual identification of the tasks.
The question is that, in the event there was no such correlation after the MRT had identified the tasks as I find it was required to do as a prerequisite to the consideration of the nominated activity, what obligation, if any, was the MRT then under in terms of identifying a corresponding nominated activity, which the applicant had placed before it.
The applicant had referred the Department, in letter of 21 June 2002, to a correspondence between tasks performed and the nominated activity of Customer Service Manager ASCO 3392-11, and between tasks performed and the nominated activity of Production Manager (Manufacturing) ASCO 1222-11. The Procedures Advice Manual (PAM 3) Part 1, division 1.4A directs a departmental officer to a consideration primarily of the duties and activities of the position to be filled rather than the skills or abilities of a prospective employee. This material was before the MRT.
It is necessary there be a consideration of each of the nominated activities of Office Manager, Production Manager (Manufacturing) and Customer Service Manager. They were as follows:
3291-11 Office Manager
Organises and controls the activities of an office including administrative systems and office personnel.
Skill Level:
The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Tasks Include:
·    develops and maintains recording and information systems
·    oversees and controls office functions
·    arranges office accommodation
·    liaises with other departments in the organisation
·    ensures compliance with occupational health and safety regulations
·    trains and supervises staff
·    may deal with inquiries from outside the organisation, particularly complaints
·    may deal with salary, termination and other employment matters.
1222-11 Production Manager (Manufacturing)
Plans, administers and reviews the manufacturing activities of an organisation to optimise resource use, minimise costs and maintain quality standards.
Skill Level:
The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Tasks Include:
·    plans production policy in consultation with other managers
·    plans details of production activity in terms of output quality and quantity, cost, time available, and labour requirements
·    prepares work programs to achieve planned production and directs production control activities
·    controls use of production plant facilities through planning of maintenance, designation of operating hours and supply of parts and tools
·    coordinates and directs quality control procedures, and the implementation of safety requirements, and ensures statutory requirements are met
·    directs research into new and improved production methods and products
·    controls the preparation of production records and reports
·    gives advice and information on production to other managers and clients
·    recommends and implements initiatives such as new techniques and products, purchases of new machinery and changes in staff levels
·    controls, directs and monitors production staff, organises staff selection, training, development and utilisation.
Specialisations:
Plant Manager (Manufacturing)
Works Manager (Manufacturing)
3392-11 Customer Service Manager
Client Services Manager
Service Manager
Plans, administers and reviews customer services and after-sales services and maintains sound customer relations.
Skill Level:
The entry requirement for this occupation is a AQF Diploma or higher qualification or a least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Tasks Include:
·    manages, motivates and develops staff providing customer services
·    develops and reviews policies, programs and procedures concerning customer relations and goods and services provided
·    plans and implements after-sales services, to maintain operating performance of goods purchased and to modify and improve services rendered
·    liaises with other organisational units, service agents and customers to identify and respond to customer expectations
·    reviews compliance with established product and service quality standards, and reports on faulty products and deficient services
·    distributes product and service literature to service agents and customers.
The applicant wrote to the MRT on 30 July 2002 setting out in further detail the tasks performed by the visa applicant Mr Bas as set out in paragraph 18 herein.
The MRT accepted all of the evidence placed before it both oral and in writing. It accepted the visa applicant’s evidence including that his work involved:
[C]alculating the weekly orders for stock so as to plan manufacture, cutting of fabric in the most economic manner, making sure that all necessary material was on hand for production, preparing at least a week ahead to meet manufacturing targets, making sure that the goods to be delivered are ready to leave the factory…that he supervises the workers making sure that they start on time and have their correct breaks during the day…for safety issues and for checking all inwards goods for quality and that they match the invoice.
The MRT accepted the evidence of Mr Yildiz, that the visa applicant “brought new ideas into the Company, new machinery has been purchased and the financial records are now up-to-date”. It accepted that by implication the Company no longer lacked management direction. It accepted Mr Arici’s evidence that the participation of the visa applicant had resulted in much greater quality control and a more competitive company.
Having made the above findings and having been directed by the applicant to the nominated activity of `Production Manager (Manufacturing)’ the MRT failed to consider the tasks for this Gazetted occupation as is clear from its reasons. The MRT then went on to say, erroneously I find:
There is no evidence that the tasks described in the written material or given orally by the visa applicant and the other witnesses would be more accurately described by a different ASCO classification [that is, different from ‘Office Manager’].

The respondent argues that the visa applicant could not show in any event, that he had the “employment background that [was] relevant to, and consistent with,” the occupation of Production Manager (Manufacturing). I reject this submission. This was never canvassed by the Tribunal as is apparent from the reasons.
As it had done in written submissions prior thereto, the applicant relied upon evidence at the hearing before the MRT, which was not rejected nor disputed, that the tasks of the nominated activity corresponded to the tasks of the occupation specified as, `Production Manager (Manufacturing)’. The MRT failed to address in its reasons the evidence and material concerning this specified occupation and in so doing failed to consider the elements or integers of each of the claims made by the applicant (SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132). In this failure, the MRT fell in to jurisdictional error.
The MRT wrongly considered there was no evidence before it of tasks corresponding to the nominated activity of `Production Manager (Manufacturing)’ and in consequence ignored that evidence. It can be inferred that the MRT did not consider this evidence to be material to its decision (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 69).
The applicants succeed on the applications and the respondent shall pay their costs.

I, Sophie Killen, certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 21 May 2004