Bharaj Construction Pty Ltd v MIBP
[2016] FCCA 902
•28 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 902 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now Administrative Appeals Tribunal) – refusal of approval of nominated position – reg. 5.19 Migration Regulations – whether the Tribunal misconstrued and misapplied the law or asked the wrong question or took into account irrelevant considerations |
| Legislation: Migration Act 1958 (Cth), ss.31, 504, 505 Migration Regulations 1994 (Cth), reg.5.19 |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 42; [2004] FCA 1038 Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93; [2003] FCAFC 168 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; [2009] FCAFC 150 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432; [2009] FCAFC 53 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister of Resources; Glenn Edward Martin and David Cox v Dover Fisheries Pty Ltd (1993) 116 ALR 54; [1993] FCA 366 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 |
| Applicant: | BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3154 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 10 July 2015 |
| Date of Last Submission: | 29 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 27 October 2014.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 3 October 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3154 of 2014
| BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) made on 27 October 2014. The Tribunal affirmed the decision of a delegate of the First Respondent to reject an application lodged by the Applicant, Bharaj Construction Pty Ltd (“Bharaj”), for approval of a nominated position under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 20 June 2012 Bharaj lodged a Form 1054 application for the approval of the nominated position of carpenter. The application included details of the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) code for the position of carpenter, a job description, including responsibilities and main duties, the level of formal qualifications and other skills required to satisfactorily perform the duties of the position and details of the nominee, a Mr Sagoo, who is resident in India and who lodged a separate visa application (see BharajConstruction Pty Ltd ABN 881 585 325 51 v Minister for Immigration and Border Protection (No 2) [2016] FCCA 903).
The Form 1054 contains a printed section described as “Certification by Regional Certifying Body” as follows:
As a body approved by the Minister for Immigration and Citizenship (by Gazette Notice) for the purposes of the Regional Sponsored Migration Scheme, it is certified that:
(a)there is a need for a paid employee in the business that is actively and lawfully operated by the nominating employer in regional Australia; and
(b)…the position nominated in this form requires the appointment of a person who has qualifications equivalent to at least Australian diploma level; and
(c)the position nominated in this form is available full-time for at least 2 years consecutively.
This part of the form (the certification) was dated 11 June 0201 (sic) and signed by a representative and sealed by a body described as “Regional Development Australia - Mid North Coast”. It included details of the nominating business (Bharaj), the salary level, the job title of “carpenter” and the nominee (Mr Sagoo).
Also included in the Courtbook is a document from the departmental file headed “NSW Regional Property Development and Construction Business”, bearing the name Bharaj Construction Pty Ltd. It is said to be a “nomination overview” prepared on the basis of information provided by the nominating business to assist the DIAC case officer in the assessment of the employer nomination. It appears that this document and other supporting information was provided to the Department by Bharaj’s adviser. Insofar as there was any suggestion in submissions that this document was the “certification” which was sent to the Applicant’s migration agent by Regional Development Australia by letter of 11 June 2012, the “certification” is the part of the completed Form 1054 described as “certification by Regional Certifying body”.
On 3 October 2013 a delegate of the Minister notified Bharaj that the nomination of the position of carpenter had been refused because it did not satisfy the requirement in reg.5.19(4)(a) of the Migration Regulations that there was a need for a paid employee in a business actively and lawfully operating in Australia. The delegate had regard to the fact that there was no evidence to show that the Applicant had started building any of the residential properties it proposed to construct such as to require a carpenter.
Mr Sagoo’s application for a Class AN visa was also refused because the employer nomination had not been approved.
Bharaj sought review by the Tribunal (as did Mr Sagoo). The Tribunal conducted a joint hearing in both matters. Mr Gurdeep Singh Bharaj attended on behalf of Bharaj Construction Pty Ltd. Mr Sagoo also participated in the hearing by way of telephone link.
Bharaj provided the Tribunal with further documentary evidence in relation to its business and the asserted need to employ a carpenter with skills in Indian style wood carving to assist in the production of Indian style housing in the Woolgoolga area.
As at 30 June 2012, reg.5.19 of the Regulations was relevantly as follows:
5.19 Approval of nominated positions (employer nomination)
(1) An employer may apply to the Minister for approval of a nominated position as an approved appointment.
(1A) Application must be:
(a) made in accordance with approved form 785 or 1054; and
(b) accompanied by the fee prescribed in regulation 5.37.
(1B) The Minister may, in writing, approve or reject an application.
(1C) However:
(a) the Minister must approve an application if:
(i) the application is made in accordance with subregulation (1A); and
(ii) the nominated position is the subject of an employer nomination that:
(A) if the application was made using form 785 — meets the requirements of subregulation (2); or
(B) if the application was made using form 1054 — meets the requirements of subregulation (4); and
(iii) the employer is not the subject of an action that is described in section 140L of the Act (as in force immediately before 14 September 2009) or section 140M of the Act; and
(b) the Minister must reject an application if any of the requirements in paragraph (a) is not met.
(1D) As soon as practicable after deciding an application, the Minister must give the employer:
(a) a copy of the written approval or rejection of the application; and
(b) if the application is rejected:
(i) a written statement of the reasons why the application was rejected; and
(ii) a written statement that the decision is an MRT‑reviewable decision.
Note Division 4.1 deals with review of decisions. Paragraph 4.02 (4) (e) provides that a decision under subregulation 5.19 (1B) to reject an application is an MRT‑reviewable decision. MRT‑reviewable decision is defined in Division 2 of Part 5 of the Act.
(2) An employer nomination meets the requirements of this subregulation if:
(a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:
(i) actively and lawfully operating in Australia; and
(ii) operated by that employer; and
(b) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(c) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(d) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business; and
(e) the Minister is satisfied:
(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and
(f) the appointment will:
(i) provide the employee with full‑time employment; and
(ii) be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
(g) the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h) the tasks to be performed in the nominated position:
(i) correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(ii) will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(i) the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.
(4) An employer nomination meets the requirements of this subregulation if:
(a) the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
(i) actively and lawfully operating in regional Australia; and
(ii) operated by that employer; and
(b) either:
(i) the appointment:
(A) will provide the employee with full‑time employment; and
(B) will be for at least 2 years; and
(C) will be located in regional Australia; or
(ii) if the employer nomination relates to a person designated under regulation 2.07AO — the appointment:
(A) will provide the employee with either continuing full‑time employment or seasonal employment that will continue; and
(B) is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and
(C) will be located in regional Australia; and
(c) unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification; and
(d) the employee is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and
(e) a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and
(f) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(g) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(h) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business.
(5) In this regulation:
regional Australia means a part of Australia specified by Gazette Notice for this definition.
Tribunal Decision
On 27 October 2014 the Tribunal affirmed the decision to refuse the application for approval of the nominated position.
In its reasons for decision the Tribunal explained that reg.5.19 contained two alternative “streams” (in regs.5.19(2) and 5.19(4)) and that in this case the Applicant had sought to satisfy the criteria for the regional sponsored migration nomination stream set out in reg.5.19(4) of the Regulations. It acknowledged that if the nomination was made in accordance with reg.5.19(1A) and met the requirements of either stream (and the employer was not the subject of certain sanctions) then the application must be approved (see reg.5.19(1C)(a) of the Regulations).
The Tribunal found however that the nomination did not meet the requirement in reg.5.19(4)(a)(i) that it be made by an employer in respect of a need for a paid employee in a business that was actively and lawfully operating in regional Australia or the requirement in reg.5.19(4)(b)(i) that the appointment would provide the employee with full-time employment and would be for at least 2 years.
In relation to reg.5.19(4)(a) the Tribunal recorded that at the hearing it had discussed with Mr Bharaj the Applicant’s claimed need for a paid employee to work as a carpenter for its property development and construction business in Woolgoolga. It outlined Mr Bharaj’s evidence about when construction would commence and the fact that when construction started the Applicant would need a carpenter to assist with slab formwork and building framework and then for rough fitout, joinery and carpentry. Mr Bharaj, a carpenter by trade, explained that Mr Sagoo’s expertise was as an Indian style carver of wood and furniture making, but that he could also do other carpentry work.
The Tribunal recorded that it asked Mr Bharaj why the Applicant would only need to sponsor a carpenter, given that home construction also required a number of other trades. Mr Bharaj explained that the Applicant would engage contractors for the other trades, but that it required a carpenter to do specialist carving and finishing to the wooden furniture, stairs and doors in an “Indian style”. He claimed that such skills were not available in Australia, that there was no way for him to train someone to do the work and that it was not cost-effective to import ready-made pieces from India. Mr Bharaj explained that the Applicant intended to add these Indian styling details to its constructions in Woolgoolga to make the homes more attractive to buyers of Indian heritage and to earn a premium profit. It planned to build some 10 to 15 such homes each year.
The Tribunal recorded that Mr Bharaj’s evidence was that Mr Sagoo would assist with other carpentry work, but also acknowledged that the Applicant could hire contractor carpenters to do that other work. The Tribunal observed that carving work was not listed in the “duties” of the nominated position of carpenter put to the Regional Certifying Body (RCB) when it certified the nominated position of carpenter. It would appear that this was a reference to the general job description in the Form 1054. In any event, the Job Description annexed to the “nomination overview” also listed general “responsibilities and duties” for the position of “Carpenter – ANZSCO 331212” (although it also referred to the desirability of the person having “the ability to produce hand carved fixed furniture objects, interior and exterior fixtures and ornaments in Indian wood caring style” in the “description” of the particular position with Bharaj).
The Tribunal spoke with Mr Sagoo by telephone. He confirmed he was a carver and furniture maker and that (as Mr Bharaj had previously stated) he would train others in his skills and would also help with other carpentry work.
The Tribunal found:
On the basis of the above information, the Tribunal accepts the construction business of the applicant was delayed by unforeseen circumstances and will soon commence construction upon obtaining the relevant planning permissions. The Tribunal, however, is not satisfied the applicant has a need for a paid employee in the nominated position of carpenter. The Tribunal has had regard to the duties of the nominated position of carpenter certified by the RCB. The Tribunal considers the applicant is able to obtain the carpentry skills that it requires for its property development and housing construction business from local contractors, as it intends to do for all of the other construction trades it requires to carry out its business. The Tribunal addresses the need for Indian-style carving and furniture-making carpentry skills below.
The Tribunal concluded that reg.5.19(4)(a) of the Regulations was not met.
The Tribunal then considered reg.5.19(4)(b) of the Regulations. It accepted that the Applicant wished to incorporate Indian-style carving and furniture elements in some of the houses it constructed and that such skills were not readily available in the locality of its business. However it had regard to its finding that “the duties of the position of carpenter as certified by the RCB” were able to be obtained by the Applicant from local contractors and found that performing Indian-style carving and furniture-making duties for 10 to 15 houses per year and training others in these skills would not provide Mr Sagoo with full-time employment for at least two years. On this basis it concluded that the requirements of reg.5.19(4)(b) were not met.
The Tribunal concluded that it was not satisfied that the Applicant met the requirements of reg.5.19(4) of the Regulations and that as it had not sought to satisfy and did not satisfy the criteria for the other “stream” (in reg. 5.19(2)) the nomination of the position could not be approved. It affirmed the decision to refuse the nomination.
These Proceedings
The Applicant sought review by application filed in this court on 13 November 2014. It now relies on an Amended Application filed on 10 July 2015. There are two grounds in the Amended Application.
Ground 1 in the Amended Application is as follows:
The Tribunal misconstrued and misapplied the law and exceeded the Tribunal’s jurisdiction.
Particulars
i) The Tribunal affirmed the decision of the delegate on the basis that relevant provisions (r.5.19(4)(a) and r.5.19(4)(b)) in Migration Regulation 5.19 had not been met by the applicant who was the nominator.
ii) The Tribunal set out the relevant portions of the Migration Regulation 5.19 in an attachment to its Decision Record.
iii) Migration Regulation 5.19(4)(e) provides, relevantly, as follows:
“a body specified by Gazette Notice for his paragraph (sic) certifies that the employer nomination meets the requirements of paragraphs (a), (b) …”
iv) Relevantly, the “body specified by Gazette Notice for this paragraph” was the Regional Certifying Body (“RCB”) known as Regional Development Australia Mid North Coast. This body certified that the employer nomination met the requirements of paragraph (a) and paragraph (b) of Migration Regulation 5.19(4).
v) Notwithstanding this certification, the Tribunal purportedly found that the employer nomination did not meet the requirements of Migration Regulation 5.19(4)(a) and Migration Regulation 5.19(4)(b). The Tribunal usurped the function of the Regional Certifying Body. The Tribunal exceeded its jurisdiction.
Ground 2 in the Amended Application is as follows:
The Tribunal's purported decision is vitiated by jurisdictional error in that the Tribunal asked the wrong questions and took into account irrelevant considerations.
Particulars:
i) The Tribunal asked the wrong questions and took into account irrelevant considerations in regard to both r.5.19(4)(a) and r.5.19(4)(b).
Reg.5.19(4)(a)
ii) Whether or not the Tribunal considers that the applicant (employer) could meet his labour needs through contractors rather than employees is an irrelevant consideration.
Reg.5.19(4)(b)
iii) The identity of a particular potential employee and any additional skills this potential employee may have is not a relevant consideration for the Tribunal in determining whether or not to approve the employer nomination.
Before considering these grounds, it is relevant to refer to the applicable law.
The Law
After the hearing a Joint Note was filed for the parties in relation to the applicable legislative and regulatory scheme having regard to the fact that the nomination application was lodged on 20 June 2012 and reg.5.19 was amended with effect from 1 July 2012. As explained in the Joint Note, s.31 of the Migration Act 1958 (Cth) (“the Act”) provides for prescribed classes of visas and the prescription of visa criteria in Regulations. Section 504(1) contains the regulation-making power. Reference was also made to s.505 of the Act which provides, relevantly, that:
Regulations about visa criteria
To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
It was clarified that the class of visa for which Mr Sagoo had applied was an Employer Nomination (Migration) Class AN visa of which a specified subclass was Subclass 119 (which, in Schedule 2 to the Regulations is described as the Regional Sponsored Migration Scheme).
At the relevant time, included in the criteria for a Subclass 119 visa was the time of application criterion in subclause 119.211(1) that:
(1) The applicant has been nominated by an employer, in accordance with sub-regulation 5.19(4), for an appointment in the business of that employer …
Regulation 5.19 is in Part 5 of Division 3.1 of the Migration Regulations. A new version of reg.5.19 was introduced to commence from 1 July 2012 by the Migration Amendment Regulation 2012 (No. 2) (Select Legislative Instrument No. 82 of 2012). However under cl.124 of the Amendment Regulation transitional provisions were introduced as Schedule 13 to the Migration Regulations which included a provision that had the effect that the Regulations as in force immediately before 1 July 2012 applied to an application for approval of a nominated position made before that date (see Item 101(3) in Schedule 13 to the Regulations).
It is not in dispute that because the application for approval of a nominated position was made on 20 June 2012 it had to be considered in accordance with reg.5.19 as it stood on 30 June 2012 and that this was the form of reg.5.19 annexed to the Tribunal decision and considered by the Tribunal. It is set out at [10] above.
Ground One
Ground 1 is that the Tribunal misconstrued and misapplied the law and exceeded its jurisdiction. In essence, the Applicant submitted that the Tribunal erred in finding that the requirements of reg.5.19(4)(a) and (b) were not met in circumstances where a Regional Certifying Body (RCB) had certified that the employer nomination met the requirements of reg.5.19(4)(a), (b) and (c) as required by reg.5.19(4)(e) of the Regulations.
The Applicant submitted that whether the requirements of paragraphs (a), (b) and (c) of reg.5.19(4) were met was a matter that, under paragraph 5.19(4)(e), was to be certified by a body specified by a Gazette Notice for that paragraph and that in substituting its own opinion in place of the certification by the RCB the Tribunal had misconstrued reg.5.19(4) and exceeded its jurisdiction.
Bharaj submitted that this was so notwithstanding that, as drafted, the requirements of paragraphs (a) to (h) of reg.5.19(4) were cumulative. It was contended that a plain and simple reading of this part of the regulation was that if a body specified for the purposes of paragraph 5.19(4)(e) had certified that a nomination met the requirements of paragraphs 5.19(4)(a), (b) and (c), then those requirements had been met by the certification and the Minister (and the Tribunal) could not go behind the certification.
Reliance was placed on the remarks of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] in support of the proposition that the task of statutory construction must begin with consideration of the text itself and that “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”, albeit it was acknowledged that the meaning of the text may require consideration of context, including the general purpose and policy of a provision.
The Applicant submitted that to construe the regulation otherwise (in particular to require both certification and Ministerial satisfaction as to the matters in paragraphs (a), (b) and (c)) would be convoluted and strained. It was suggested that such a construction would also be contrary to the approach taken in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 in which the Full Court of the Federal Court had held (at [55]) that there was either certification or not and that if there was a certificate in terms of the applicable provision then the Minister (and the Tribunal) was not obliged, or entitled, to go behind such certification.
Counsel for the Applicant contended that this construction of reg.5.19(4) was also supported by canons of statutory construction which reflected the fact that every part of legislation must have some practical effect or utility.
It was submitted first that it was improbable that reg.5.19(4)(e) was intended to have virtually no practical effect (see Minister of Resources; Glenn Edward Martin and David Cox v Dover Fisheries Pty Ltd (1993) 116 ALR 54; [1993] FCA 366 at [33] per Gummow J) and that to construe reg.5.19(4) on the basis that the Minister had to be satisfied of the matters specified in paragraphs (a), (b) and (c) of reg.5.19(4) and that certification under paragraph 5.19(4)(e) was an additional requirement, would make the certifying body redundant and that the legislature could not be taken to have intended such a result.
Secondly it was submitted that, consistent with the remarks of French CJ and Hayne J in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] and Kiefel J at [88] in relation to the relevance of the context and purpose of a provision, construing subregulation 5.19(4)(e) within the context of the whole of reg.5.19 (in particular, by comparison with subregulation 5.19(2)) clearly indicated that the requirements of paragraphs (a), (b) and (c) in reg.5.19(4) were intended to be met through certification.
Such a comparison was said to reveal that while it was clear from the content of reg.5.19(2) that it was for the Minister (or Tribunal) to be satisfied of all the reg.5.19(2) requirements, a clearly different intention appeared in the same regulation in relation to the requirements in reg.5.19(4)(a) insofar as there was (unlike in subregulation 5.19(2)) a specific reference in reg.5.19(4)(e) to certification. It was submitted that this could only be construed as a clear statement that the approach to the two regimes differed and that the requirements in paragraphs (a) to (c) of subregulation 5.19(4) were to be established through certification by an RCB, not the satisfaction of the Minister.
Finally, the Applicant submitted that regard should be had to the legislative history of reg.5.19 on the basis that while statutory construction began with a consideration of the statutory text, the text must be considered in context, which included legislative history and extrinsic material (see Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 per French CJ, Hayne, Crennan, Bell and Gageler JJ at [39]).
Counsel for the Applicant pointed out that reg.5.19(4) was inserted into the Migration Regulations by Migration Regulations (Amendment) Regulation 1995 (Select Legislative Instrument No. 268 of 1995). The Explanatory Statement to the 1995 regulations merely referred to the insertion of a new subregulation prescribing requirements in relation to an employer nomination which must be satisfied in order to meet that subregulation. There was said to be no suggestion in the 1995 Explanatory Statement that once the requirements of reg.5.19(4)(a) to (c) were certified by the RCB it was open to the Minister or the Tribunal to reassess them.
Regulation 5.19 (including subregulation 5.19(4)) was then said to have been “amended” by the Migration Amendment Regulation 2012 (No. 2) (see Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [46]) insofar as Item [41] of Schedule 1 to the 2012 Amendment Regulation provided that the existing reg.5.19 be “substitute[d]” by a new reg.5.19 to take effect from 1 July 2012.
Relevantly, the post-July 2012 version of reg.5.19(4) addressed “direct entry nomination” and provided that the Minister must, in writing, approve a nomination if eight specified requirements were satisfied. Included in these requirements was a new requirement that a specified body had “advised” the Minister about the matters mentioned in new reg.5.19(4)(e) and subparagraphs B and C of reg.5.19(4)(h)(ii) which were said to be the equivalent of former reg.5.19(4)(a)-(c).
The Applicant submitted that the amendment of the regulation as at 1 July 2012 was to change its legal meaning, in that each requirement of reg.5.19(4) was to be met through satisfaction of the Minister. This was said to confirm the plain construction that prior to the amendment the requirements in reg.5.19(4)(a) to (c) were to be met differently, that is through certification under reg.5.19(4)(e).
The suggested construction of the post 30 June 2012 subregulation 5.19(4) was said to be consistent with and confirmed by the Departmental Procedures Advice Manual (PAM3) in relation to the amended regulation. PAM3 indicated (at paragraph 18.1) that while the Regulations did not stipulate that the advice provided by the RCB must be considered by the delegate, such a requirement was implied and stated (at paragraph 18.2) that a delegate must independently assess the nomination against all the criteria that had been assessed by the “body (Regional Certifying Body)” in providing advice.
The Applicant acknowledged however that it was well-established that policy was only a guide to the application of legislation and did not have legally binding status (see El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 42; [2004] FCA 1038 at [45] per Gray J) and submitted that insofar as the earlier version of PAM3 (as at 30 June 2012) had suggested that the applicable version of reg.5.19(4)(e) required the nomination to be certified by a certifying officer, but that departmental officers were still responsible for assessing the nomination to ensure that the requirements of paragraphs (a), (b) and (c) were met, this was based on a misconstruction of the legislation (see Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93; [2003] FCAFC 168 per French, Sackville and Healy JJ at [42] to [62]).
The First Respondent submitted that, properly construed, the requirement of certification in paragraph (e) of reg.5.19(4) was one of a number of cumulative factors, including the requirements in paragraphs (a), (b) and (c), and that while the certificate was necessary, it was not, of itself, sufficient to meet the requirements of paragraphs (a), (b) and (c). It was submitted that such construction was supported by the text, context and purpose of the provision.
The First Respondent acknowledged that the application of rules of construction concerning context and statutory purpose was mediated through the text of the statute and that context, such as legislative history or extrinsic materials, was a guide to the meaning of the statute, but also submitted that such context could not displace the meaning of the statutory text as it was the meaning of the statutory text which was where the task of statutory construction began and ended (see Commissioner of Taxation v Consolidated Media Holdings Limited (2013) 250 CLR 503 at 519 [39] per French CJ, Hayne, Crennan, and Bell, and Gageler JJ).
It was contended, first, that the Applicant's argument gave no work to the word “and” which appeared at the end of each paragraph within the applicable version of reg.5.19(4). This was said to be a cogent and powerful textual indication that the paragraphs of reg.5.19(4) dealt with cumulative requirements which must each be satisfied.
The First Respondent also pointed out that reg.5.19(4) was structured to identify certain requirements in paragraphs (a), (b) and (c) expressed in general terms, then to interpose a further generally expressed requirement in paragraph (d) before the requirement in paragraph (e) of the provision of a certificate in relation to the matters in paragraphs (a), (b) and (c).
It was submitted that the subregulation was not structured in a way that would support the view that mere presentation of a certificate was to be conclusive as to the matters with which it dealt. Further, it was pointed out that reg.5.19(4) did not state that said that certification was conclusive (cf. s.505 of the Act). This was said to be in contrast to the approach taken elsewhere in the Regulations in relation to materials such as opinions of medical and independent experts (see for example regs.1.15AA, 1.23 and 2.25A of the Migration Regulations) where an intention that material such as a certification or an opinion was to be accepted by the decision-maker as correct was made plain.
The First Respondent submitted that in contrast to condition 8202(3)(b) as considered in Tian (which required the visa holder to achieve “an academic result that is certified by the education provider to be at best satisfactory”), the text of reg.5.19(4) provided that provision of the certification referred to in paragraph 5.19(4)(e) was necessary in order for the Minister to be satisfied that reg.5.19(4)(e) was met, but that it was apparent that certification under reg.5.19(4)(e) was not sufficient to establish that the requirements of reg.5.19(4)(a) to (c) were met.
It was submitted that the court would treat with some care the suggested analogy of cases (such as Tian) in relation to condition 8202 which dealt with the very different concept of certification by an education provider as to a student’s achievement of a satisfactory academic result and having regard to the different language in question and the history of condition 8202 (as to which see Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432; [2009] FCAFC 53 and Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; [2009] FCAFC 150). It was submitted that having regard to ss.19 and 20 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act), the obligations on educations providers under that Act and the education scheme generally, it could be seen that education providers had a central and dispositive position in relation to students' enrolment and progress (see Tian at [8]-[10]). It was pointed out that there was no such additional external legislative or regulatory scheme in relation to RCBs relevant to the context of an employer nomination.
The First Respondent also submitted that contrary to the Applicant’s contention, the suggested construction did not render reg.5.19(4)(e) a provision with “virtually no practical effect” as it ensured that an applicant for nomination provided information to an RCB about the nominated position which the RCB would then consider and, if appropriate, give a certificate. It was pointed out that the Applicant (not the RCB) then provided evidence to the decision-maker including, but not limited to, the certificate, and that the application for nomination was then considered by the decision-maker. The First Respondent submitted that read in the suggested way the provision had the effect intended by the text, being that the certification from the RCB would be a piece of evidence that the decision-maker would take into account in determining whether to approve or reject the application for nomination.
It was also submitted that the distinction the Applicant sought to draw between certification by an RCB constituting satisfaction as to the matters in paragraph (a), (b) and (c) and the need for Ministerial satisfaction as to other matters in reg.5.19(4) was not supported by the text of reg.5.19 more broadly as it stood at the relevant time, including reg.5.19(2).
It was acknowledged that these provisions applied to different schemes and that reg.5.19(4) was directed to regional Australia. Regulation 5.19(2) was not so limited and did not contain a requirement of a certificate from a body such as a Regional Certifying Body. However the First Respondent pointed out that the matters dealt with in paragraphs (a)-(c) of reg.5.19(4) corresponded broadly with provisions in reg.5.19(2) (except for the absence of any reference to regional Australia in 5.19(2)). It was submitted that there was nothing in the text of reg.5.19 to suggest that the matters in paragraph (a), (b) and (c) of subregulation 5.19(4) (which, it was noted, were not limited to “regional” factors) should be determined by a different decision-maker. It was submitted that the inclusion in subregulation (4) of the reg.5.19(4)(e) requirement in relation to certification was because of the apparent difference in purpose of the provisions. However it was suggested that it would be an anomalous result if that difference was to have the legal effect that the Minister (or Tribunal) was required to consider certain requirements under subregulation (2) but prevented from doing so in relation to the equivalent provision in subregulation (4).
The First Respondent submitted that it was apparent (see for example reg.5.19(4)(b)(1)(c)) that the purpose of subregulation (4) was to provide for employer-nominated positions in regional Australia and suggested that in this sense subregulation (4) could be seen as directed towards the promotion of employment opportunities and economic activity and growth in regional Australia. On this basis it was submitted that certification by an RCB was an additional requirement in that context as a piece of evidence before the decision-maker that a third party with appropriate regional expertise had given consideration to these matters. This was said to mean that the Minister or Tribunal as the decision-maker would have some measure of independent assistance from an entity with appropriate expertise in deciding the application for nomination.
In addition, the First Respondent made the point that neither the Regulations nor departmental policy prescribed any particular certification method and that it was up to individual bodies specified by the Minister by a Gazette Notice for the purposes of reg.5.19(4)(e) to use their knowledge of local labour market conditions in their area to determine whether a certification should be provided in support of the nomination application.
The First Respondent conceded that it was necessary to ensure that the views of an RCB were obtained, but contended that on the proper construction of reg.5.19(4) the Minister or Tribunal as the decision-maker had to make a decision about whether the nomination met all the requirements of reg.5.19(4) based on all of the evidence, including any which was not before the RCB. Such a construction was said to accord with both the purpose of the provision and consistency in administrative decision-making.
The First Respondent also submitted that neither the legislative history nor extrinsic materials assisted the Applicant. It was pointed out that the Migration Regulations (Amendment) 1995 (SR 1995 No.268) which first introduced the certification requirement said nothing about a certificate being conclusive and that the explanatory statement was expressed in general terms. Further when the relevant version was introduced by amendments in 2005, the Explanatory Statement said only that the new paragraph 5.19(4)(e) “retain[ed] the requirement ... that a body ... must certify” as to the matters in paragraphs (a), (b) and (c) but said nothing about the certificate being conclusive. It was submitted that the legislative history preceding and up to the introduction of the applicable provisions was of little assistance and did not shed particular light on the legal effect of a certificate.
Counsel for the First Respondent also submitted that the subsequent change to reg.5.19 was not simply an amendment to reg.5.19(4) but rather a complete repeal and substitution of reg.5.19 and that the nature of this change detracted from the Applicant’s arguments that as an “amendment” the 2012 change was a change in the legal effect or the legal meaning of the provision as it had previously stood (cf. Marquet).
The First Respondent acknowledged that in the new reg.5.19 the concept of “certified” was replaced with the notion of “advised”, but contended that given the nature of a repeal and substitution rather than a mere amendment this change did not provide assistance in relation to the issue of construction presently before the Court. In any event, it was contended that despite the change in wording there was nothing to suggest that the new version of reg.5.19 was working a radical change or overhaul in relation to the legal effect of the certificate from an RCB. It was submitted that, if anything, the change was to the contrary and indicated that the decision-maker must still be satisfied as to each of the requirements. It was noted that the Explanatory Statement referred generally to the fact that the advice of the body was a relevant consideration in deciding the outcome of the application.
It was also pointed out that the suggested construction of reg.5.19(4) as it stood at 30 June 2012 was consistent with the then applicable departmental policy. It was submitted that in this case the court should not accept that the Tribunal had applied departmental policy based on a misconstruction of the relevant provision. Rather it was contended that the Tribunal had properly directed itself as to the requirements of reg.5.19(4) but had found that the Applicant did not meet the requirements in paragraphs (a) and (b) of reg.5.19(4) having regard (inter alia) to the duties of the nominated position of carpenter as certified by the RCB notwithstanding that an RCB had provided a certificate under reg.5.19(4)(e).
Consideration
The substantive issue of construction raised by ground 1 is the legal effect of the certificate issued by the RCB and whether it was conclusive evidence of the matters in paragraphs (a), (b) and (c) of reg.5.19(4) such that the Tribunal had no jurisdiction separately to consider or make a finding about such matters.
The parties agree that the applicable reg.5.19(4) was as it stood at 20 June 2012. They were also in broad agreement as to the principles in relation to the construction of a statutory provision and the application of such principles to a provision in regulations. In particular, it was acknowledged that the task of statutory construction should begin with consideration of the text itself (see Alcan at [47]), albeit that context and purpose are important. As French CJ and Hayne J remarked in Certain Lloyd’s Underwriters at [24]:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”
The Applicant referred to well-established canons of construction, while the Minister submitted that in this instance the legislative history and extrinsic materials were of little, if any, assistance in resolution of the issue of statutory construction whereas the text, context and purpose of the provision supported the construction for which the Minister contended.
It has to be said that the drafting of reg.5.19(4) as it stood at the relevant time was somewhat lacking in clarity, perhaps reflecting previous piecemeal amendments. While the ordinary meaning of the word “certified” may be seen as involving a notion of some reliable endorsement or assurance, that in itself is not dispositive as to whether a certificate was conclusive. Regulation 5.19(4)(e) refers to “a body” specified by Gazette Notice for paragraph 5.19(4)(e). The language of reg.5.19(4) does not in itself require any particular expertise or responsibility on the part of the certifier (cf. condition 8202 and the ESOS Act as considered in Tian) such as to support an interpretation that would prevent the Minister or Tribunal as decision-maker from considering the requirements of reg.5.19(4)(a)-(c) (cf. regs.1.15AA, 1.23 and 2.25A, and s.505(b)(ii) of the Act), albeit that it is not in dispute that the Minister had approved Regional Development Australia – Mid North Coast as what was described in the certification in the completed Form 1054 as a “regional certifying body”.
Moreover, reg.5.19(4) was not structured in a way that supports the Applicant’s contention that mere presentation of a certificate would be conclusive as to the matters with which it dealt. There was no internal consistency in reg.5.19(4) in relation to whether the relevant decision-maker was specified. The regulation referred initially (in paragraphs (a), (b), (c) and also paragraph (d)) to requirements expressed in general terms that did not expressly identify the decision-maker. It then incorporated paragraph (e) which required the provision of a certification in relation to the requirements of paragraphs (a), (b) and (c) (but not paragraph (d)). The regulation then included three requirements expressed in terms of Ministerial satisfaction.
Such drafting is somewhat lacking in clarity, but what is clear is that the word “and” appeared at the end of each of the paragraphs in reg.5.19(4). This indicates a legislative intention that the requirements were cumulative and supports the construction that there must be a finding by the Minister or the Tribunal, as the relevant decision-maker, that each of the requirements in paragraphs 5.19(4)(a) to (h) was satisfied on a cumulative basis.
The text and structure of reg.5.19(4) are not supportive of the view that a “plain and simple reading” of reg.5.19(4) was that if a body specified for the purposes of reg.5.19(4)(e) had certified that a nomination met the requirements of reg.5.19(4)(a), (b) and (c) then those requirements were met by the certification and the Minister/Tribunal could not (and was not obliged to) consider and reach a state of satisfaction in relation to those requirements.
Rather, the text and context of reg.5.19(4) support the construction that a certification was necessary to meet reg.5.19(4)(e) but was not sufficient or determinative in relation to whether the requirements of paragraphs 5.19(4)(a) to (c) were met. On a plain reading of the words of reg.5.19(4) this would reflect the apparent intention of the legislature (consistent with the general purpose and policy of a scheme for visas based on employer nomination of positions, including positions in regional Australia) to ensure that the Minister (or Tribunal) took into account the view of an independent entity with appropriate expertise in relation to regional issues, as part of all the evidence in relation to whether the requirements of reg.5.19(4)(a) to (c) were met. Hence it could not be said that reg.5.19(4)(e) would have virtually no practical effect if the certificate was not conclusive.
I have borne in mind the approach taken to the concept of certification in the then applicable version of condition 8202 in Schedule 8 to the Migration Regulations by the Full Court of the Federal Court in Tian. That was, however, a very different provision in a very different context. Condition 8202 arose for consideration in Tian in circumstances where the Act and Regulations provided that a student visa must be cancelled if the visa holder had not complied with condition 8202 (see s.116 and reg.2.43(2) as they stood at the relevant time as set out in Tian at [5]-[6]).
At that time condition 8202 relevantly required the holder of a student visa to meet enrolment requirements in 8202(2) and the requirements of 8202(3) which provided:
(3) A holder meets the requirements of subclause if:
(a) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attend for at least 80% of the contact hours scheduled [for specified periods-; and
(b) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory [for… the course… or for each term or semester…].
Relevantly, (and in contrast to the position in relation to “bodies” specified by the Minister by Gazette Notice for the purposes of reg.5.19(4)(e)), the ESOS Act provided a system of registration and regulated the conduct of providers of education services to overseas students. Under that legislative scheme an education provider had a central role in relation to student enrolment and progress in courses conducted by that provider, including in relation to giving a student notice (under s.20 of the ESOS Act) of breach of a student visa condition relating to attendance or satisfactory academic performance (such as condition 8202) which, if not complied with, would (unless the student took certain steps) result in automatic cancellation (by operation of s.137J of the Migration Act) of the student’s visa (see Tian at [12]-[15]). Such education providers were subject to obligations and sanctions under the ESOS Act. Moreover the certification in condition 8202(3)(b) was a separate requirement, not dependent on a positive finding under any other part of condition 8202.
In contrast, there is no suggestion of any statutory (or other) obligation on bodies specified by the Minister by Gazette Notice in relation to matters the subject of an RCB certification such as to support the view that satisfaction as to whether the requirements of reg.5.19(4)(a)-(c) was solely the province of the “body” specified by the Minister for the purposes of the certification required by reg.5.19(4)(e).
It was for the Minister (or Tribunal) to approve an application for approval of a nominated position as an approved appointment (reg.5.19(1B)). The Minister “must” (subject to an exception not relevant for present purposes) approve an application made on the approved form and accompanied by the prescribed fee if (relevantly) it “meets the requirements of subregulation(4)” (reg.5.19(1C)(a)), but must reject the application if any of those requirements was not met. An approved nomination was, in turn, a criterion for the grant of certain visas, in particular a Class AN Subclass 119 (Regional Sponsored Migration Scheme) visa (see cl.119.22 in Schedule 2 to the Migration Regulations).
The very different context of reg.5.19(4) and role of the “body” specified does not support the conclusion that in relation to the requirements of paragraphs 5.19(4)(a)-(c) “there is either certification or not” or that the Minister or Tribunal was not also entitled (and indeed obliged) to consider for him or herself whether the requirements of paragraphs (a)-(c) (which I note are not limited to matters of “regional” concern) were met.
Undoubtedly reg.5.19(4)(e) required a specified body to provide certification in relation to the matters in reg.5.19(4)(a)-(c) and the Minister (or Tribunal) must be satisfied that such a certification had been provided for reg.5.19(4)(e) to be met. However this was one of eight cumulative requirements.
Moreover while a comparison with reg.5.19(2) demonstrates that the main difference between the 5.19(4) “regional” scheme and the more general 5.19(2) employer nomination regime was that there was an additional requirement of certification from a “regional” body as one of the requirements under reg.5.19(4), this does not support a construction of reg.5.19(4) under which there would be a different decision-maker in relation to common elements in both reg.5.19(2) and reg.5.19(4) (for example in relation to whether there was a nomination in respect of a need for paid employee in a business actually operating in Australia operated by the nominator (see reg.5.19(2)(a) and reg.5.19(4)(a)); whether the appointment would provide the employee with full-time employment (for 2 years if reg.5.19(4)(b) applied or 3 years under reg.5.19(2)(f)); or whether, unless the appointment was exceptional, the work performed required the appointment of a person who had a diploma (under reg.5.19(4)(c)) or that the tasks to be performed corresponded to the tasks of an occupation specified in a Gazette Notice in force for subparagraph 5.19(2)(h)(i)). Given the common elements in these requirements, the construction contended for by the First Respondent would accord with the purpose of reg.5.19 and consistency in administrative decision-making.
Further, insofar as relevant, nothing in the past legislative history of reg.5.19 supports the construction for which the Applicant contended. Regulation 5.19(4) was not “amended” from 1 July 2012. Rather reg.5.19 was repealed in its entirety and replaced by a new provision (albeit that the Migration Regulations were amended). Marquet is not of direct relevance as no issue arises as to the construction of a provision containing the word “amend” (cf s.13 of the Electoral Distribution Act 1947 (WA) which was under consideration in Marquet).
The new “substituted” reg.5.19(4) did specify eight separate requirements in a consistent manner (none of which refer to Ministerial satisfaction) and was stated expressly that what was to be provided by a specified body is “advice”. While this undoubtedly puts beyond doubt the construction of reg.5.19(4), it does not follow that previously the regulation had the effect contended for by the Applicant having regard, in particular, to the need to begin the task of statutory construction with consideration of the text itself in the sense considered in Alcan. Further, consistent with PAM3 in relation to both versions of reg.5.19(4), there is nothing in the new version to suggest that it was intended to introduce a significant change in relation to the legal effect of the certification (or advice) to be obtained from a body such as a RCB. Nor was there any suggestion of such indication in any Explanatory Statement.
On balance I am satisfied that, despite somewhat infelicitous drafting (perhaps reflecting piecemeal amendments prior to 1 July 2012), it was open to the Tribunal to consider whether the requirements of regs.5.19(4)(a) and (b) were met and in so doing it did not misconstrue and misapply the law or exceed its jurisdiction in the manner contended for in ground 1 of the application. Ground 1 is not made out.
Ground Two
The Applicant submitted that in making findings in relation to whether he met the requirements of reg.5.19(4)(a) and reg.5.19(4)(b) the Tribunal misconstrued the regulation and asked the wrong questions and took into account irrelevant considerations. There are two aspects to this ground.
First, the Applicant addressed reg.5.19(4)(a) which at the relevant time was a requirement that:
The employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
(1) actively and lawfully operating in regional Australia; and
(2) operated by that employer ...
The Applicant referred to the fact that the Tribunal had considered that Bharaj was able to obtain the carpentry skills that it required for its property development and housing construction business from local contractors, as it intended to do for all the other construction skills it required to carry out its business. It was submitted, however, that this approach was in error as the term “in respect of a need for a paid employee” in reg.5.19(4)(a) required that the appointment with regard to which approval was sought was for a position as a paid “employee”. It was submitted that there was an established distinction in law between an employee and a contractor (see Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19) and that the two terms could not be used interchangeably. It was contended that whether the nominating employer could meet his labour needs through contractors, rather than employees, was not to the point. Hence it was submitted that as reg.5.19(4)(a) required determination of whether the Applicant had a need for a paid employee, whether or not the Applicant could meet his labour needs through contractors was an irrelevant consideration.
Such an approach was said to be consistent with PAM3 as at 30 June 2012 which relevantly stated (in an overview of Subclass 119) that this subclass of visa allowed Australian employees to recruit workers to fill full-time skilled vacancies within their business. It was submitted that in proceeding in this manner the Tribunal had asked the wrong question in relation to the requirements of this subparagraph.
The First Respondent submitted that no jurisdictional error was established on this basis and that, in effect, the Applicant sought impermissibly to convert factual findings into legal questions.
The other basis on which it was submitted that the Tribunal asked the wrong question and took into account irrelevant considerations related to the Tribunal's approach to the requirement in paragraph 5.19(4)(b) that “the appointment will provide the employee with full-time employment” and “will be for at least 2 years” and “will be located in regional Australia”.
The Applicant submitted that it was clear that the Tribunal had accepted the evidence of Mr Bharaj that the Applicant genuinely needed a carpenter and that the Tribunal could not be said to have found that there was insufficient work to keep a carpenter employed (whether as a paid employee or as a contractor). However it was contended that such a finding was necessary for the Tribunal to find that the requirement in reg.5.19(4)(b)(i) was not satisfied. In particular, it was submitted that the Tribunal's finding that performing Indian style carving and furniture-making duties for 10 to 15 houses per year and training others would not provide the nominated employee with full-time employment for at least two years was not to the point.
It was also contended that there was nothing in reg.5.19(4) requiring the employer to identify a particular employee as the nominee before the employer nomination could be approved. It was pointed out that PAM3 at the relevant time provided that the nomination did not have to specify the nominee, as regulation 5.19(4) did not require the nominee to be known throughout the nomination stage but only before the associated visa application was made.
The Applicant submitted that the fact that the particular visa applicant had specialist carving skills, in addition to being a carpenter, was an irrelevant consideration in determining whether there was enough work to keep a paid employee working as a carpenter for the required period and that whether a potential employee had an additional skill that made that particular employee more attractive to the potential employer than other potential employees was not a question for the Tribunal in deciding whether or not to approve the employer nomination.
On this basis the Applicant contended that the Tribunal's identification of what it considered to be material questions of fact demonstrated that it took into account irrelevant considerations in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] and that it had asked the wrong questions. The considerations that the Tribunal took into account were said not to be either explicitly or implicitly required by the legislation. It was submitted that the Tribunal's taking into account of these irrelevant considerations materially affected the purported decision, thus amounting to jurisdictional error in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 per Mason J at 40.
The First Respondent submitted that the Tribunal properly directed itself to the question posed by reg.5.19(4)(b) and that its findings in this respect were open to it on the evidence and were not irrelevant considerations that the Tribunal was not permitted to take into account but rather factual findings in relation to the question posed by reg.5.19(4)(b) of the Regulations.
Consideration
In its reasons for decision the Tribunal understood and properly directed itself to the requirement in subparagraph 5.19(4)(a) that the nomination relate to a need for a paid employee in a business that was actively and lawfully operating in Australia. In considering whether subparagraph (a) was met it was open to the Tribunal to have regard to the evidence before it, including Mr Bharaj’s evidence at the hearing that he intended to engage contractors for the other trades and that the company could hire contractor carpenters to do work outside the carving work that was in Mr Sagoo's particular area of expertise. Such a consideration was not an “irrelevant” consideration in the sense considered in Yusuf at [69] and Peko-Wallsend at 40. As Mason J stated in Peko-Wallsend at 40:
… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505).
Nor did the Tribunal ask the wrong question or misconstrue reg.5.19(4)(a) in proceeding in this manner. The Tribunal considered such evidence in the context of having regard to the duties of the nominated position of carpenter as certified by the RCB. The Annexure to the “Overview” provided to the Department in support of Bharaj’s application included a job description which listed “responsibilities and duties” expressed in general terms to reflect the ANZSCO classification of “carpenter” and do not relate to the specific carving duties although it also contained an explanation that the carpenter at Bharaj would be responsible for specified carpentry tasks and ideally would have the ability to produce hand-carved fixed furniture objects, interior and exterior fixtures and ornaments in Indian wooden carving style. Only the general duties were reproduced (with some exceptions) in the job description for the nominated position in the Form 1054 completed in connection with the employer nomination. It set out general responsibilities and main duties and did not refer to Indian carving skills and in response to the question in the Form 1054 about other skills required to satisfactorily perform the duties of the position, referred to an experienced carpenter who could both work in teams as well as individually, who could read and work from basic drawings and who was diligent in handling projects but again made no reference to any additional skills in relation to Indian style carving.
Thus, under paragraph (a) of reg.5.19(4), it was open to the Tribunal to consider whether the company had a “need” for a paid employee to perform general carpentry duties consistent with the duties of the nominated position of carpenter and, having regard to the evidence before it, to be of the view that the Applicant was able to obtain the carpentry skills it required for its property development and housing construction business from local contractors, as it intended to do for all of the other construction trades it required to carry out its business. The Tribunal’s conclusion in this respect is also to be seen in light of its consideration of the extent of the intended and likely construction business, as well as the Applicant's evidence about hiring contractors for other trades. It has not been established that the Tribunal asked the wrong question or otherwise erred in the manner contended for in relation to its consideration of the requirements in reg.5.19(4)(a) of the Regulations. No jurisdictional error is established on this basis.
However the Tribunal erred in relation to reg.5.19(4)(b) in having regard to the particular nominee and making its decision on the basis that the specialist skills he had were not in themselves such as to give him full-time work for two years. This involved asking the wrong question because the question was not whether the Applicant was able to provide sufficient work for two years having regard only to the exercise of the specialist skills he saw as desirable attributes for a prospective employee in addition to general carpentry skills, but rather whether the appointment of a carpenter would provide the person appointed to be a carpenter with full-time employment for at least two years in regional Australia. Whether the particular nominated employee had additional skills was not to the point in this context.
It is clear from the Tribunal's account of the evidence at the hearing that it had elicited from Mr Bharaj a claim that he needed a carpenter with particular skills (such as the person identified at the time of the nomination approval application) to do Indian carving work. This is apparent from the fact that when asked why the Applicant was not seeking to nominate any other trade positions, Mr Bharaj explained that the Applicant would engage contractors for the other trades, but required the carpenter. When asked for further details he stated that the carpenter would do specialist carving and finishing to the wooden furniture, stairs and doors in an Indian style and that these were skills that were not available in Australia. Mr Sagoo was said to have these skills, albeit that he could do other general carpentry work as well.
However the Tribunal's finding in relation to whether or not the requirement of reg.5.19(4)(b) was met was based only on the claimed need for someone to do Indian style carving and training. It found that there would not be enough work of that nature to provide the nominated employee with full-time employment for at least two years, having regard to the evidence about the extent of the proposed residential development. While it was open to the Tribunal to consider this evidence as part of all the evidence (and it was not an irrelevant consideration that the Tribunal was not permitted to take into account), the question under reg.5.19(4)(b) was not whether there was sufficient specialised work to provide an employed Indian style carpenter with full-time work for at least 2 years and/or whether any of the work of a carpenter could be performed by local contractors, but rather whether there was sufficient carpentry work to keep a carpenter employed full-time for at least 2 years in regional Australia. As the Applicant submitted, the Tribunal did not address this issue (or make findings that there was not sufficient carpentry work required in the Applicant’s business). In that sense it misconstrued reg.5.19(4)(b) and asked the wrong question and hence constructively failed to exercise its jurisdiction.
The matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 28 April 2016
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