Bharaj Construction Pty Ltd v MIBP (No 3)
[2019] FCCA 31
•9 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2019] FCCA 31 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider the applicant’s certification – arguments previously advanced by the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.5.19 |
| Cases cited: Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902 |
| Applicant: | BHARAJ CONSTRUCTION PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 524 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 July 2018 |
| Date of Last Submission: | 5 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair by Direct Access |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
(1) The application made on 22 February 2017 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $7206.
| (1) FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 524 of 2017
| Bharaj Construction Pty Ltd |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
1. On 22 February 2017, Bharaj Construction Pty Ltd (“Bharaj”) filed an application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 23 January 2017, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse Bharaj’s application for approval of a nomination for the occupation of Carpenter (Australia New Zealand Standard Classification of Occupations (“ANZSCO”) Code 331212) (“the occupation”), under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”) (proceedings SYG 524 of 2017).
2. Also on 22 February 2017, Bharaj filed a separate application with this Court pursuant to s.476 of the Act seeking review of the decision of the Tribunal made on 9 February 2017, which affirmed the decision of a delegate of the Minister, refusing an Employer Nomination (Migrant) (Class AN) visa to Mr Sarbjit Singh Sagoo (proceedings SYG 525 of 2017). Mr Sagoo was nominated by Bharaj to fill the position of carpenter in its business.
3. On 24 April 2017, the Court ordered that proceedings SYG 524 of 2017 and proceedings SYG 525 of 2017 be heard together on 5 July 2018. Orders were also made for the filing of written submissions. Bharaj filed written submissions in each matter on 3 April 2018. The Minister filed written submissions in each matter on 26 June 2018.
4. At the final hearing, Bharaj and the Minister were represented by their respective counsel. Bharaj and the Minister have the same legal representation in each matter. The parties agreed that proceeding SYG 525 of 2017 is dependent on the success, or otherwise, of the current application. For the judgment in proceedings SYG 525 of 2017 see Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection & Anor (No.4) [2019] FCCA 32 (“No.4”) (SYG525 of 2017).
5. The evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
6. There was no dispute between the parties, that at the relevant time, Bharaj apparently carried on the business of residential property development and construction in regional Australia.
Background
7. Bharaj made the application for the nomination of the occupation under the Regional Sponsored Migration Scheme (“RSMS”) on 20 June 2012 (CB 1 to CB 61). Bharaj provided further documents in relation to the nomination on 20 March 2013 and 2 July 2013 (CB 67 to CB 119 and CB 121 to CB 136). The delegate refused the application on 3 October 2013 (CB 137 to CB 143). The delegate found that Bharaj did not meet reg.5.14(4)(a) of the Regulations because “there … [was] no evidence to show that the business ha[d] started building any of the residential property to require a Carpenter” and was therefore not satisfied that there was “a need for a paid employee of a Carpenter” (CB 143).
8. Bharaj applied for review to the Tribunal on 22 October 2013 (CB 144 to CB 164). Bharaj was invited to a hearing before the Tribunal on 21 July 2014 (CB 169 to CB 172 and CB 182 to CB 184). The sole director of Bharaj (Mr G.S. Bharaj) attended the Tribunal hearing on that date (see CB 20 and CB 182). Bharaj submitted a number of further documents to the Tribunal at the hearing (CB 185 to CB 276). A previously constituted Tribunal affirmed the delegate’s decision on 27 October 2014 (CB 280 to CB 285). The Federal Circuit Court then remitted the matter to the Tribunal for reconsideration (see Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902 per Judge Barnes).
9. By letter dated 22 July 2016 and sent by email to Bharaj’s representative, Bharaj was invited to provide further information to the Tribunal in relation to the review (CB 293 to CB 296). Bharaj was invited to provide information as to why it met the requirements of reg.5.19(4) of the Regulations for approval of the nomination. Bharaj’s representative provided further documents to the Tribunal on 4 August 2016 by email (CB 297 to CB 373 and CB 374 to CB 398).
10. Bharaj was invited to attend a hearing before the (reconstituted) Tribunal on 28 October 2016 (CB 400 to CB 403). Bharaj’s representative provided further documents to the Tribunal by email on 8 October 2016 (CB 410 to CB 440). The sole director of Bharaj (Mr G.S. Bharaj) attended a rescheduled hearing before the Tribunal on 28 October 2016. Mohinder Singh also gave evidence to the Tribunal (CB 442 to CB 444). Bharaj’s representative provided further documents to the Tribunal by email on 6 November 2016 (CB 446 to CB 452 and see also CB 454 to CB 460). The Tribunal again affirmed the delegate’s decision on 23 January 2017 (CB 464 to CB 491).
11. The Tribunal extensively set out the evidence and material before it ([9] at CB 465 to [123] at CB 483). This included the documentary material before the Tribunal and the oral evidence provided at the hearing on 21 July 2014 (“the first Tribunal hearing”) ([35] at CB 471 to CB 472 to [50] at CB 473) and the hearing on 28 October 2016 (“the second Tribunal hearing”) (CB 442, and see [60] at CB 475 to [123] at CB 483). The Tribunal considered that “the issue in this case is whether [Bharaj] meets the requirements for approval of the nomination under the Regional Sponsored Migration stream set out in” reg.5.19(4) of the Regulations ([125] at CB 483).
12. The Tribunal found that Bharaj did not meet reg.5.19(4)(a) of the Regulations for the approval of the nomination. The Tribunal stated the following ([127] at CB 483 to [128] at CB 483 to CB 484):
1. “[127] Regulation 5.19(4)(a) requires that the nomination is made by an employer in respect of a need for a paid employee in a business that is actively and lawfully operating in regional Australia. The business must be operated by the applicant.
2. [128] The Tribunal acknowledges that there is a Certification by Regional Certifying Body (Regional Development Australia Mid North Coast) dated 11 June “0201” (sic). It is not known on what basis the certification is given but in any case the Tribunal finds that it still has to decide whether the applicant meets r.5.19(4)(a). Even though there is a certification by a Regional Certifying Body, the Tribunal must make ‘a finding that each of the requirements in paragraphs 5.19(4)(a) to (h) was satisfied on a cumulative basis.’ (Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902).”
13. The Tribunal found that “four and a half years after the nomination application was lodged” Bharaj had not commenced any “building work” in Woolgoolga, although the business was said to have been established to engage in residential property development in regional areas ([129] at CB 484).
14. Further, the Tribunal had “significant concerns” regarding Bharaj’s “need” for a carpenter ([130] at CB 484). These included that although Bharaj told the Tribunal at the first Tribunal hearing that building work was to commence on the land in Woolgoolga “in about October 2014”, more than two years later, “not only ha[d] no building been begun”, “but the sales of the lots to Mr G.S. Bharaj [the sole director] ha[d] not been finalised and the contracts ha[d] not been completed” ([130] – [131] at CB 484). On the basis of financial documents provided to the Tribunal, it was also concerned about Bharaj’s financial position, including that it had not received recent Business Activity Statements that had been lodged with the Australian Taxation Office ([132] at CB 484 to [137] at CB 485).
15. The Tribunal was also concerned about whether Bharaj was “actively operating in regional Australia” on the basis that there were no employees who lived in regional Australia, and no construction had begun since the nomination application had been lodged on 20 June 2012 which was “over four and half years ago” ([137] at CB 485).
16. The Tribunal also noted that although contracts for the purchase of land in Safety Beach had been completed, that land was purchased three years ago and “no construction by … [Bharaj] ha[d] taken place on [that] land either” ([138] at CB 485). The Tribunal did not accept Bharaj’s explanation for the lack of construction work in that it was waiting for the nominee to come to Australia to begin. The Tribunal considered that in the meantime “other construction work” could have been commenced, such as laying “a concrete slab” ([139] at CB 486).
17. The Tribunal was also not satisfied that Bharaj could not find a suitable carpenter. It found that Bharaj had only advertised the position “in about the middle of 2012”, and found that Bharaj had not attempted to find a carpenter “since about May 2012” ([140] at CB 486).
18. The Tribunal also considered Bharaj’s claim that the nominee (Mr Sagoo) was needed so that it could produce houses with “Indian carvings on some features … to increase their appeal to members of the Indian community in Woolgoolga” ([143] at CB 486), and Bharaj’s claim that it would make greater profit with these carvings in the houses. The Tribunal was not satisfied of either of these claims as the only evidence provided was the evidence of Mr G.S. Bharaj himself ([143] at CB 486 to CB 487 to [144] at CB 487).
19. On the evidence before it, the Tribunal was not satisfied that Bharaj’s “nomination for the position of carpenter … [was] made by an employer in respect of a need for a paid employee” in its business ([145] at CB 487). The Tribunal found that Bharaj could have obtained the carpentry skills it required from local employees and found that the requirement in reg.5.19(4)(a) was not met and affirmed the delegate’s decision on this basis ([145] – [151] at CB 487).
20. Regulation 5.19(4), and reg.5.19(2) (relevant to the consideration below) were at the relevant time in the following terms:
1. (2) An employer nomination meets the requirements of this subregulation if:
1. (a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:
1. (i) actively and lawfully operating in Australia; and
2. (ii) operated by that employer; and
2. (b) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
1. (i) the employer; or
2. (ii) any officer of any of the entities that constitute the employer; or
3. (iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
3. (c) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
4. (d) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
1. (i) the Commonwealth; and
2. (ii) each State or Territory in which the employer operates the business and has employees of that business; and
5. (e) the Minister is satisfied:
1. (i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
2. (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
6. (f) the appointment will:
1. (i) provide the employee with full‑time employment; and
2. (ii) be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
7. (g) the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
8. (h) the tasks to be performed in the nominated position:
1. (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
2. (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
9. (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.
…
1. (4) An employer nomination meets the requirements of this subregulation if:
2. (a) the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
1. (i) actively and lawfully operating in regional Australia; and
2. (ii) operated by that employer; and
3. (b) either:
1. (i) the appointment:
2. (A) will provide the employee with full-time employment; and
3. (B) will be for at least 2 years; and
4. (C) will be located in regional Australia; or
5. (ii) if the employer nomination relates to a person designated under regulation 2.07AO – the appointment:
6. (A) will provide the employee with either continuing fulltime employment or seasonal employment that will continue; and
7. (B) is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and
8. (C) will be located in regional Australia; and
4. (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
5. (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
6. (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
7. (f) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
1. (i) the employer; or
2. (ii) any officer of any of the entities that constitute the employer; or
3. (iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
8. (g) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
9. (h) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
1. (i) the Commonwealth; and
2. (ii) each State or Territory in which the employer operates the business and has employees of that business.
The Application to the Court
21. The sole ground of the application to the Court is in the following terms:
1. “1. The Tribunal made a jurisdictional error. Tribunal did not consider the certification by RCB (Regional Certified Body) that the applicant had a need for paid carpenter to be employed in the applicant business.”
22. At the hearing the parties were both represented by their respective counsels. They provided a “Joint Note” (which was also before Judge Barnes in Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 902). It is in the following terms:
1. “1. This joint note is filed with leave granted by Judge Barnes on 10 July 2015. It deals with two matters.
2. Name of the Second Respondent
3. 2. By consent, the parties request that an order be made in both proceedings that the name of the Second Respondent be changed to “Administrative Appeal Tribunal”.
4. Legislative/regulatory scheme concerning reg 5.19
5. 3. This note concerns the legislative and regulatory scheme as at 30 June 2012 (which is the applicable version).
6. 4. Section 31(1) of the Migration Act 1958 provides that there are to be prescribed classes of visas. Under s 31(3), the regulations may prescribe criteria for a visa or visas of a specified class. By s 31(5), a visa is a visa of a particular class if the Act or the regulations specify that it is a visa of that class.
7. 5. Section 504(1) of the Migration Act provides, relevantly, as follows:
2. “The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: …”.
3. 6. Further, s 505 of the Migration Act is a specific power dealing with “Regulations about visa criteria”. That section provides, relevantly, as follows:
4. “To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
5. (a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
1. (i) give an opinion on a specified matter; or
2. (ii) make an assessment of a specified matter; or
3. (iii) make a finding about a specified matter; or
4. (iv) make a decision about a specified matter; and
6. (b) is:
1. (i) to have regard to that opinion, assessment, finding or decision in; or
2. (ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
7. deciding whether the applicant satisfies the criterion.
8. 7. Part 2, Div 2.1 of the Migration Regulations 1994 deal with clauses, subclasses and criteria applicable to classes of visas: see regs 2.01, 2.02 and 2.03.
9. 8. Classes of visa are prescribed in Sch 1 and subclasses are prescribed in Sch 2 to the Migration Regulations.
10. 9. By Sch 1, cl 1114, a prescribed class of visa is an Employer Nomination (Migrant) (Class AN) visa. A specified subclass of visa is subclass 119.
11. 10. By Sch 2, cl 119, the subclass 119 visa is headed Regional Sponsored Migration Scheme. This clause sets out the applicable criteria for a subclass 119 visa.
12. 11. Relevantly, Sch 2, cl 119 provides:
1. “119.2 Primary criteria
2. …
3. 119.21 Criteria to be satisfied at time of application
4. 119.211 (1) The applicant has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer.”
5. 12. Regulation 5.19 is found in Pt 5 (Miscellaneous), Div 3.1 (General) of the Migration Regulations. Regulation 5.19 deals with approval of nominated positions.”
Consideration
23. At paragraph [127] – [128] (CB 483 – 484) the Tribunal stated:
1. “Regulation 5.19(4)(a) requires that the nomination is made by an employer in respect of a need for a paid employee in a business that is actively and lawfully operating in regional Australia. The business must be operated by the applicant.
2. The Tribunal acknowledges that there is a Certification by Regional Certifying Body (Regional Development Australia Mid North Coast) dated 11 June “0201” (sic). It is not known on what basis the certification is given but in any case the Tribunal finds that it still has to decide whether the applicant meets r.5.19(4)(a). Even though there is a certification by a Regional Certifying Body, the Tribunal must make ‘a finding that each of the requirements in paragraphs 5.19(4)(a) to (h) was satisfied on a cumulative basis.’ (Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 902).”
24. The gravamen of the applicant’s complaint before the Court is that it was not open to the Tribunal, in effect, to go behind the certification provided by the Regional Certifying Body (“RCB”). That certification was to the effect that the employment nomination met, in the current case, the requirements of reg.5.19(4)(a), (b) and (c). Nonetheless the Tribunal proceeded to consider the matters set out at reg.5.19(4)(a), (b) and (c) for itself.
25. In short, the applicant’s argument is that the Tribunal fell into legal error by not accepting the certification as final, and conclusive, evidence that Bharaj met the requirements of reg.5.19(4).
26. The identical argument was raised by Bharaj before Judge Barnes (Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 902). While Bharaj was successful in another ground before Her Honour, it was unsuccessful in relation to this ground and the argument in support of it. As is clear from [128] (CB 483-484) of the Tribunal’s decision, the Tribunal proceeded in light of the direction provided by the Court in Bharaj.
27. Bharaj now invites this Court to find that Her Honour was “plainly wrong” in rejecting Bharaj’s ground and argument. It asks this Court not to follow what was said in Bharaj.
28. To make good this assertion Bharaj referred to the following as the basis for its argument as to the proper approach that should have been taken by the Tribunal contrary to what was said by the Court in Bharaj.
29. One, in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at [10] Gaudron J said:
1. “Although resort is often had to the "intention of the legislature" in formulating rules of construction and in construing statutory provisions, that intention has aptly been described as "somewhat of a fiction": Mills v. Meeking (1990) 169 CLR 214, per Dawson J. at p 234. And, with equal aptness, the expression "the intention of the legislature" has been described, at least in its popular usage, as a "very slippery phrase, which ... may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it": Salomon v. Salomon and Co. (1897) AC 22, per Lord Watson at p 38. The difficulty inherent in the notion of "the intention of the legislature" dictates that, save where there are settled rules or where there is some feature of the legislation requiring otherwise, the legislature should be taken to have said what it meant and to have meant what it said. Or, more accurately in terms of legal principle, the words of the statute should be taken to bear their natural and ordinary meaning. And that is the fundamental rule, often said to be the golden rule of statutory interpretation, namely, that "the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument": Grey v. Pearson (1857) 6 HLC 60, per Lord Wensleydale at pp 105-106. And that rule is dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.”
30. Two, an extract from “The Rule of Law” by Tom Bingham (Penguin Books, 2011) (at chapter 3 pages 37 – 41). This was for the proposition that the rule of law is “underpinned by the law being “accessible”, by the sense that the meaning of words” (as used in the regulation) “being what they are”.
31. Three, the relevant dictionary meaning of the word “certifies”:
1. “Make formal statement of, declare by certificate; officially declare (person) insane; (arch.) inform with certainty…”
(The Concise Oxford Dictionary of Current English, Clarendon Press 1990)
32. Bharaj’s submission was that the word “certifies” as it appears in reg.5.19(4)(e) should be given its ordinary meaning and when read in context, means that if a body specified by Gazette Notice “certifies” that the employment nomination meets reg.5.19(4)(a) and (b) and (c), then that means that (a) and (b) and (c) are themselves met because of that certification.
33. To support that argument Bharaj referred to Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [54] and [55], and in particular to the obligation of the Tribunal in circumstances involving certification as to some relevant fact:
1. Condition 8202(3) requires the holder to meet the requirements of both subclauses (a) and (b). If the visa holder does not meet either of the requirements of that subclause then the holder will have breached Condition 8202. A breach of a condition may lead to cancellation of the visa: s 116(1) of the Act.
2. A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).”
34. The submission was that as in Tian and, in the current case, (a), (b) and (c) of regulation 5.19(4) are to be satisfied by the “certification” referred to in (e). In short, (a) to (c) (and also (d) for that matter) can only be met if there is certification (pursuant to (e)) that they are met. If there is such certification the decision-maker cannot go behind it.
35. Bharaj also referred to Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545; (2003) 202 ALR 233; (2003) 78 ALJR 105 at [46] and [126] for the proposition that regard must be had to the history of the relevant legislation in construing its meaning (see also Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55).
36. In this regard Bharaj referred to three documents (put before the Court) which reproduced the various iterations of reg.5.19(4). The argument was that in a subsequent version to that which applies to the current case, amongst other changes, the word “certifies” has been amended to “advised”.
37. The argument appeared to be that the regulation relevant to the current case was amended and that in the relevant version the word “certifies” could not mean “advised” because of the fact of the change from the relevant version to the subsequent (but not applicable to the current case) version.
38. Finally Bharaj sought to compare reg.5.19(4) with reg.5.19(2) to argue that a different “intention” existed in the same regulation. That is, at reg.5.19(2) it was for the decision-maker to be satisfied as to the matters in reg.5.19(2). At reg.5.19(4) the requirement was for certification to establish the matters set out at (a), (b) and (c). That is the two parts of the same regulation set out different approaches. The first is that “satisfaction” is the operative concept at (2), emphasised (by the distinction with certified), the second being that the matters at (4) must be met through certification, not the satisfaction of the decision-maker.
39. Bharaj invites the Court to find that the judgment and reasoning of Judge Barnes on the issue he raised before Her Honour, and continues to press now was “plainly wrong”. For the reasons that follow I decline that invitation.
40. Her Honour’s, with respect, comprehensive judgment speaks for itself. It is not necessary for current purposes to repeat the relevant consideration as set out at [64] – [82] of that judgment. In my respectful view, other than, perhaps, one minor matter of emphasis, Her Honour’s judgment is not “plainly wrong”. It is correct.
41. Bharaj’s submissions before the Court now, and as is apparent before Judge Barnes (see Bharaj at [31] – [46]), were wide ranging, ambitious, and creative. However, the one point on which the parties agreed (and which was accepted by Her Honour) was that the task of statutory construction, which Bharaj’s ground calls for, begins with the consideration of the statutory, or regulatory, text itself (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]). Noting of course (as did Her Honour at [65]) that context and purpose are also important.
42. At issue between the parties, as set out above, is whether the certification (referred to at reg.5.19(4)(e)) is conclusive of the matters at (a), (b) and (c) of reg.5.19(4) (the applicant’s argument), or is a necessary, but not sufficient factor in the consideration of whether reg.5.19(4) is met (the Minister’s position).
43. Bharaj’s submissions focused in particular on (a), (b), (c) and (e) of reg.5.19(4). However, it is to be noted that this is not the entirety of reg.5.19(4).
44. The structure of reg.5.19(4) is as follows. One, (a) to (d) require various findings of fact by the decision-maker. There is no express reference there as to the identity of the decision-maker.
45. However, it is here that context is important. Using the example of the current case, Bharaj applied for approval of the nomination of an employment position under the Employment Nomination Scheme, and in particular the RSMS.
46. Such approval requires meeting the requirements of reg.5.19(4) (reg.5.19(1C)(a)(ii)(B)). In the current case the primary decision-maker had delegation under reg.5.19(1B) (CB 141) to decide the application made by Bharaj.
47. The Tribunal’s jurisdiction to review the delegate’s decision arose from Division 4.1 (reg.4.02(4)(e) of the Regulations. In that context therefore the relevant finder of fact, for current purposes, in relation to reg.5.19(4) (a) and (b) and (c) and (d) was the Tribunal.
48. Two, reg.5.19(4)(e) required certification by, relevantly, an RCB. (See further below).
49. Three, reg.5.19(4)(f), (g) and (h) each required the satisfaction of the Minister (or relevantly the Tribunal) as to the matters set out there.
50. In its submissions before the Court Bharaj sought to variously describe the Regulation as being “infelicitously” drafted. This was done with reference to what Judge Barnes stated at [82] of her judgment:
1. “… despite somewhat infelicitous drafting (perhaps reflecting piecemeal amendments prior to 1 July 2012)…”
51. I respectfully understood Her Honour to make that observation in light of the fact (as set out above) that some of the elements of reg.5.19(4) did not specify the relevant decision maker, and others (the last three) did specify the “satisfaction” of the Minister. A distinction which was not present in the “new”, substituted, or amended version of reg.5.19(4) which Bharaj relied on, and continues to rely on to draw the argument that, in effect, reg.5.19(4) was not clear in its terms and required consideration of extraneous factors to give it meaning.
52. If there is respectfully any point of difference between Her Honour and the current consideration it is with the reference to “infelicitous drafting”.
53. In my view there is a distinction available to be drawn between the elements in (a) to (e) with those in (f) to (h). The matters in (a) to (e) are susceptible to fact finding within a “narrow” scope. That is, as the Minister described it in submissions, “objective measures” against which the application is to be assessed.
54. For example, the employer is either operating the business, or not (a), the appointment would provide for full time employment for two years, or not (b), the position will amongst other things be located in regional Australia, or not (b)(ii)(C).
55. Whereas the elements at (f) to (h) require findings within a “broader” scope, or degree. For example, whether there is a “satisfactory” record of compliance with immigration laws and a “satisfactory” record of compliance with workplace relations laws.
56. In any event, I did not respectfully understand Her Honour’s observation at [82] to be a part of her reasoning in rejecting Bharaj’s argument. Bharaj’s attempt now to apply that observation to the entirety of reg.5.19(4) is in my view a mischaracterisation of Her Honour’s reasoning.
57. That reasoning, with which I respectfully agree, is derived from the use of the word “and” as it “appeared at the end of each of the paragraphs in reg.5.19(4)” (Bharaj at [69]). As Her Honour states 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” (at [69]).
58. There is nothing in the language, text or structure of reg.5.19(4) to support the applicant’s argument that the certification referred to in (e), once given, meant that the requirements in (a), (b) and (c) were met.
59. A further argument advanced by Bharaj was that if the certificate was not conclusive of the matters set out at (a), (b) and (c), then (e) would have no real practical effect. That is, it would have “no work to do”.
60. This argument was specifically addressed, and rejected, by Her Honour:
1. “71. 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.”
61. I respectfully agree. It is to be remembered that what Bharaj put before the Tribunal was approval for a “regional” employment nomination for a position, in which the visa applicant, Mr Sagoo would be employed.
62. It is entirely consistent with the statutory, and regulatory, scheme relating to employment nomination, and with particular reference to regional employment nominations, that the decision-maker have before it independent (of both the employer and prospective employee, and for that matter the government) an assessment drawing on local expertise about local (regional) matters.
63. The text and structure of reg.5.19(4) provides that to meet the relevant requirements an applicant for a regional employment nomination must meet each of the matters set out at (a) to (h). Use of the word “and” as between each, and every, one of these paragraphs makes that clear.
64. In the current case if Bharaj had not provided a certificate to meet (e) then, given the structure of the regulation that would have meant that (e) was not satisfied and would have provided the basis for the Tribunal to affirm the delegate’s decision simply for that reason.
65. Nor is there any assistance rendered to Bharaj’s case because the regulation employed the word “certifies”. I accept Bharaj’s submission that “certifies” should be given its ordinary English meaning. I accept that the word, amongst other meanings, includes some “formality” and the notion of to “inform with certainty”.
66. Whatever the degree of “formality” and “certainty”, a “certificate” is, in essence, a written statement setting out certain facts as found by the person, or body, issuing the certificate.
67. Bharaj’s submissions in essence sought to draw from the word “certifies” some element of compulsion, or status, such that the regulation should be read as giving the certificate (referred to in (e)) some greater power, or status, in spite of the clear structure and text of the regulation.
68. I agree with the Minister’s submission that the certification (in its ordinary English language meaning), even if a “formal” statement, does not assist in the “construction” of the Regulation. The appropriate question (in the context of construction) is to consider the legal effect of any such certification.
69. Given the structure and language of reg.5.19(4) (for example the use of “and”) the legal effect of any certification is that an application for employment nomination recognition would meet the requirement set out at (e).
70. However, there is nothing in the ordinary meaning of “certifies” to create any other relevant legal effect, and certainly not such as to say it relieves the decision-maker of the obligation to consider, independently, (a) “and” (b) “and” (c) “and” (d) “and” (f) “and” (g) “and” (h).
71. As set out above Bharaj also sought to draw on the approach taken in Tian in relation to condition 8202 in schedule 8 to the regulations. This was considered by Judge Barnes at [72] – [75].
72. I respectfully agree with her Honour’s analysis. In particular that condition 8202 was a “very different provision in a very different context”. I respectfully agree with the reasons explaining that proposition (see in particular [74] – [75]).
73. For the remainder of Bharaj’s submissions (in relation to the “history of the legislation, and the reliance on Marquet and the attempt to “reconcile” reg.5.19(4) with reg.5.19(2), in essence, this derives, albeit in different ways, from Bharaj’s attempt to give the word “certifies” a meaning, or status, “greater” than its ordinary English language meaning.
74. Again, I am unable to say that Her Honour’s analysis of these matters was plainly wrong. In my respectful view it was correct. But even if I am wrong about that there is nothing in Bharaj’s argument in relation to those matters that can affect the construction of reg.5.19(4) as set out above. A clear construction which in my view arises from the language, text and structure of the Regulation itself.
Conclusion
75. The sole ground of the application is not made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 January 2019
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