Cargo First Pty Ltd v MIBP
[2015] FCCA 2091
•7 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARGO FIRST PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2091 |
| Catchwords: MIGRATION – Subclass 457 visa – nomination of an occupation – whether the Tribunal misconstrued and misapplied sub-reg.2.72(10)(f) of the Migration Regulations 1994 (Cth) – meaning of “genuine” position – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140AA, 140GB Migration Regulations 1994 (Cth), reg.2.72, cl.457.223(4) of sch.2 |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 |
| Applicant: | CARGO FIRST PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 348 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 June 2015 |
| Date of Last Submission: | 3 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Solicitors for the Respondents: | Mr K. Eskerie, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 348 of 2015
| CARGO FIRST PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant (“Cargo”) owns and operates a franchise business called Muffin Break in the Garden City Shopping Centre in Brisbane, Queensland. Mr Jinggang Zhao and his wife, Ms Liu, are the directors and sole owners of the shares in Cargo. Mr Zhao applied for a subclass 457 visa which required that a nomination of an occupation in relation to him had been approved under s.140GB of the Migration Act (Cth) and that he be nominated by a “standard business sponsor”: cl.457.223(4) of sch.2 to the Migration Regulations 1994 (Cth). For that purpose, he was nominated by Cargo which was a standard business sponsor. Ms Liu was included in the application as a secondary applicant.
In order for Mr Zhao to qualify for the grant of the subclass 457 visa, Cargo applied to the Minister for approval of its nomination of the occupation of “Sales Manager” in respect of Mr Zhao. The application was refused and Cargo applied to the Tribunal for review of that decision. The Tribunal affirmed the decision not to approve Cargo’s nomination. The issue before the Court is whether the Tribunal properly understood and applied the criteria relevant to its determination.
Section 140GB of the Act provides:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b)in any case--the prescribed criteria are satisfied.
…
(3)The regulations may establish a process for the Minister to approve an approved sponsor's nomination.
(4)Different criteria and different processes may be prescribed for:
(a)different kinds of visa (however described); and
(b)different classes in relation to which a person may be approved as a sponsor.
The criteria prescribed for the purposes of s.140GB(2) are contained in reg.2.72 of the Regulations. There are a large number of criteria in that regulation and it is only necessary to set out the following:
…
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
…
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6 – digit ANZSCO code for the nominated occupation – the name of the occupation and the corresponding 6 – digit ANZSCO code
…
(10)If the person is a standard business sponsor – the Minister is satisfied that:
…
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6 – digit code correspond to an occupation and its corresponding 6 – digit code specified by the Minister in an instrument in writing for this paragraph; and
…
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
…
(f)the position associated with the nominated occupation is genuine;
…
ANZSCO is the Australian and New Zealand Standard Classification of Occupations which is a classification system that provides for the standardised collection, analysis, and dissemination of occupation data and replaced the former Australian Standard Classification of Occupations which had previously been used in respect of business visas and sponsors. The classification in ANZSCO is by reference to major group, sub-major group, minor group, unit group and occupation. Each level has a code with a specific number of digits. For example the major group has one digit whereas the occupation has six digits. Relevant to these proceedings, the major group is “Managers” with a code of “1”, the sub-major group is “specialist managers” with a code of “13”, the minor group is “advertising, public relations and sales managers” with a code of “131”, the unit group is “advertising, public relations and sales managers” with a code of “1311” and the occupation is “sales and marketing manager” with a code of “131112”.
In the application for approval, the nominated occupation was described as “Sales Manager” and the ANZSCO code was given as “Sales and Marketing Manager”. The responsibilities of the position were said to be to “Take Control of a Muffin Cafe” and the main duties described as “Manage a Muffin Càfe”. In the contract of employment between Cargo and Mr Zhao, Mr Zhao’s responsibilities and duties were set out in cl.11 as follows:
·Responsible for managing Muffin Break Càfe at Garden City Shopping Centre, Queensland.
·Making daily operational business decisions as required by the Muffin Break Franchisor.
·Making all business decisions daily to ensure the business is run effectively.
Completing projects and work as directed by the Employer from time to time. The Employee’s Duties further include, but are not limited to:
·implementing the business plan as determined by the Employer.
·reporting to and being accountable to persons nominated from time to time by the Employer.
·carrying out such lawful directions is given by the Employer. These include directions from other employees appointed by the Employer to give directions and policies and procedures announced by the Employer.
·carrying out Duties set out in the Duty Statement (if any).
·carrying out any Duties which are within the Employees skill and competence.
·complying with the procedures set out in the Quality Assurance Handbook (if any).
·ensuring the target budgets are achieved (if any).
·expanding and developing the business.
On 19 February 2014, Cargo also submitted a statement attesting to the genuineness of Mr Zhao’s position stating that Mr Zhao made all the business decisions on a daily basis and he is “the only person that is authorised by the Muffin Break Café to operate the store”.
A delegate of the Minister made a decision on 21 February 2014 to refuse to approve the nomination by Cargo because, in his view, the tasks of the position were not consistent with the tasks of the nominated occupation as listed in the ANZSCO. The applicant applied to the Tribunal for review of that decision.
The Tribunal held a hearing at which it indicated to Mr Zhao, who appeared for Cargo, that the relevant issue was whether the position associated with the nominated occupation was genuine as required by sub-reg.2.72(10)(f). It suggested to Mr Zhao that it considered sales and marketing managers to be a specialist managerial position who, in conjunction with other specialist managers such as human resource managers or operations managers would manage a larger enterprise and report to a general manager. It said that while it accepted that Mr Zhao performed sales and marketing duties, it did not accept that he performed the duties of a specialist sales and marketing manager.
Mr Zhao described to the Tribunal the duties of a sales and marketing nature which he had performed in the past and confirmed that he performed the duties of payroll, rostering, training, and dispute management for Cargo’s business.
After the hearing, the representatives for Cargo made two sets of submissions to the Tribunal. In the first set, dated 22 October 2014, it argued that Mr Zhao’s duties embraced elements of sales and marketing and that the ANZSCO was not conclusive of the necessary qualifications needed nor the duties performed by a sales and marketing manager. It also submitted that the size of the business was indicative but not conclusive of the nature of the position.
The second submission was dated 28 November 2014 and included a Genuine Position Report and Market Salary Survey. That survey stated that the position of sales and marketing manager was a new one for Cargo and contained a new organisation chart showing Mr Zhao as the sales and marketing manager below a new position of “general manager” stated to be filled by Mr Zhao’s wife.
The Tribunal was not satisfied that the sales and marketing manager position associated with a nominated occupation was genuine. It placed weight on the position description in the employment contract and the evidence of Mr Zhao that he performed all of the management duties of the applicant’s business. It considered that those duties were those of the manager of a Muffin Break café and not the duties of a sales and marketing manager. It accepted that those duties included aspects of sales and marketing and that sales and marketing were an important part of the success of Cargo’s business. It also considered the evidence that, as Muffin Break was a franchise, Mr Zhao’s duties in making adjustments to the franchise sales and marketing activities to meet the individual circumstances of Cargo’s business did not amount to duties that required a specialist, full-time sales and marketing manager.
The Tribunal’s critical findings were set out in following paragraph:
[32]For the reasons set out above, the Tribunal finds the duties of the nominated position has been and will be the manager of a Muffin Break franchise, as set out in the employment contract. It finds those duties include some elements of sales and marketing. Given the nature and size of the applicant’s business as a franchisee of a Muffin Break and given to the wide range of duties of the nominated position which are not consistent (with) the duties of a sales and marketing manager, the Tribunal is not satisfied the position associated with the nominated occupation is genuine.
For those reasons that Tribunal found that the requirements of sub-reg.2.72(10)(f) were not met and so affirmed the decision of the delegate.
Consideration
Cargo raises one ground in a further amended application, namely, that the Tribunal misconstrued and misapplied sub-reg.2.72(10)(f). There are three particulars of this ground:
(a)In considering whether the nominated occupation was “genuine”, the Tribunal erred in considering the title of the position for which approval was sought in isolation from the duties and responsibilities required of the person occupying the position.
(b)Error in failing to consider as relevant to Migration Regulation 2.72(10)(f) that the nominator intended that the person occupying the position stated in the visa application form should work in that position and perform the duties and responsibilities stated in that form.
(c)Error in imposing a condition on the issue of the ‘genuineness’ of the position associated with the nominated occupation that it be a specialised, full time occupation.
Mr Karp, who appeared for the applicant, argued that genuineness for the purposes of sub-reg.2.72(10)(f) may be seen as a conclusion reached after enquiries into whether other relevant provisions of reg.2.72 are met, those being in this case sub-regs.2.72(5), 2.72(8A) and 2.72(10)(c)(i)(A). He noted that in respect of the last sub-regulation the requirement was not that the tasks of the nominated occupation consist of a majority of those listed in ANZSCO, but that it is certified that they include the majority of such tasks. Thus, the position may have any number of tasks outside the ANZSCO definition but, so long as there are a majority of tasks within that definition and that fact is certified, the regulation is met.
In addition, he argued that a “genuine” position is one that exists and meets the job description. This meaning, he said, was consistent with the context and purpose of the regulation. In light of that, by asking whether Mr Zhao’s sales and marketing activities would constitute duties required of a “specialist full-time sales and marketing manager” and assuming that a sales and marketing manager was a specialised position in a larger organisation, the Tribunal addressed the wrong question. What was required was that the person occupying the position was intended to perform the majority of the tasks set out in the ANZSCO definition.
In order to understand whether the Tribunal properly understood and applied the Regulations, it is first necessary to consider the meaning of the regulation in question. In doing so, it is important to bear in mind the basic principles concerning statutory construction. Those principles have been summarised many times by the Courts and are encapsulated in the following passage from the judgement of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
The specific text in question is “the position associated with the nominated occupation is genuine”. It may be noted that this is also a criterion for the grant of the subclass 457 visa for which Mr Zhao applied (sub-cl.457.223(4)(d)(ii)).
The word “genuine” is an ordinary English word meaning real or authentic. Thus, at first blush, the question is whether the position is real or authentic. However, the word “position” is qualified by the phrase “associated with the nominated occupation”. That qualification is not immediately comprehensible without reference to the context in which it is found. As will be seen, the focus of the statutory provisions relating to the grant of and sponsorship of applications for work visas is on classes of occupations in the first instance rather than on any specific position.
The statutory provisions relating to sponsorship appear in div.3A of the Act. That division was introduced by the Migration Legislation Amendment (Sponsorship Measures) Act2003 (Cth). The explanatory memorandum circulated by the Minister in relation to that Act noted that sponsorship was an important and integral element in providing for the entry of persons into Australia and that it has a vital role to play in protecting the Australian community from the costs and risks associated with the stay of non-citizens in Australia.
Section 140AA of the Act (introduced together with s.140GB by the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)) provides that one of the purposes of div.3A is to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents.
Consistently with that purpose, sub-reg.2.72(10)(f) was added (by Migration Legislation Amendment Regulation 2013 (No. 3)) in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia: Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146 issued by the Minister for Immigration and Citizenship.
Section 140GB is also within div.3A of the Act and is set out above. It can be seen that that provision allows an approved sponsor to nominate an applicant in relation to, amongst other things, a “proposed occupation”. Thus, at the outset, as I have already mentioned, the focus of the sponsorship provisions is upon an occupation. This is reinforced by the criteria for the approval of the nomination which are contained in reg.2.72. For example, sub-reg.2.72(5) requires the Minister to be satisfied that the relevant visa applicant “who will work in the nominated occupation” is identified in the nomination. Similarly, sub-reg.2.72(6) requires the Minister to be satisfied in certain circumstances that the worker demonstrates that he or she has the skills necessary to perform the occupation.
The importance of the identification of the occupation nominated by the applicant is highlighted by sub-regs.2.72(8A) and 2.72(10)(aa). The first of these, as noted above, requires the Minister to be satisfied that there is a six digit ANZSCO code for the nominated occupation and the name of the occupation to be included as part of the nomination. The second of these requires the nominated occupation and its corresponding six digit code to correspond to an occupation and its corresponding six digit code specified by the Minister in an instrument in writing for the purposes of the paragraph.
These requirements are evidently aimed at giving the Minister the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s.140AA of the Act. The Minister has made instruments for the purposes of this regulation specifying occupations and other matters and giving the relevant ANZSCO code in respect of each occupation: see IMMI 13/066 (which applied at the time of the application for nomination) and its replacement IMMI 14/048.
The effect of these last two sub-regulations is critical to the understanding of the issues in these proceedings. They reveal that the nomination of an occupation will not be successful unless that occupation is specified by the Minister in an instrument in writing. To explain this by way of example, in IMMI 14/048, the occupation of sales and marketing manager (code 131112) is specified whereas a càfe or restaurant manager in a fast food or takeaway food service is specifically excluded. Thus, if the occupation nominated by the sponsor was in the latter classification the nomination could not be approved.
Another matter to note is that a number of the criteria in reg.2.72 are that the Minister be satisfied that certain information and certifications have been included in an application for approval. For example, sub-reg.2.72(10)(e)(i) requires the Minister to be satisfied that the applicant has certified as part of the nomination in writing that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO. By contrast, sub-reg.2.72(10)(f) requires the Minister to be satisfied that the relevant position is genuine. On its face, that criterion requires some analysis of the material before the decision-maker rather than simply the neutral observation of whether or not something is included a form.
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.
The critical reasoning of the Tribunal was that given “the nature and size of the applicant’s business as a franchisee of a Muffin Break and given to the wide range of duties of the nominated position which are not consistent with the duties of a sales and marketing manager” the position associated with the nominated occupation was not genuine: [32] of the Tribunal’s reasons. This reasoning reveals the type of qualitative analysis required by, sub-reg.2.72(10)(f).
As I have noted, Mr Karp argued that the Tribunal erred by asking whether Mr Zhao’s sales and marketing activities would constitute duties required of a “specialist full-time sales and marketing manager” and assuming that a sales and marketing manager was a specialised position in a larger organisation the Tribunal addressed the wrong question. I accept that the Tribunal considered that the occupation of sales and marketing manager was specialist and full-time (see [14] and [29] of the Tribunal’s reasons) and that would ordinarily be found in a larger enterprise than that of a Muffin Break càfe (see [14]). However, I do not see any error, let alone any jurisdictional error in the Tribunal’s view about that matter. As the criterion required a qualitative analysis, and that, in turn required the application of judgment based either on experience or the material before the Tribunal, it can be readily seen to be one which falls solely within the scope of the decision-maker’s powers and not one to be determined by the Court. That is certainly the case where there is no indication, in my view, in the legislation that prevented the Tribunal from forming the judgment that it did. Further, with one qualification, there was no case put by Cargo to the Tribunal that these views were wrong. Rather, in response to being informed of these views by the Tribunal at the hearing, Cargo sought to establish that the position in question was a specialised position by reference to an organisation chart which showed that Mr Zhao would be reporting to a general manager. The Tribunal considered those submissions in the evidence put in support of them but preferred the job description contained in the employment contract.
The qualification to Cargo’s case mentioned in the previous paragraph is that the submission of 22 October 2014 stated that the size of the applicant’s business was indicative and not conclusive of the question of whether or not the position was genuinely a sales and marketing manager position. The import of this submission is that Cargo accepted that the size of the enterprise was at least relevant to the determination of the issue for the Tribunal. That being the case, any complaint that the Tribunal made reference to the size of Cargo’s enterprise does not rise above an attack on the merits of its decision. There is nothing in the Tribunal’s decision to say that it rejected the submission. The Tribunal did not say, for example, that the position of a sales and marketing manager could only be found in enterprises larger than that of a Muffin Break càfe.
Conclusion
For those reasons, the Tribunal neither misapplied nor misunderstood the criterion in sub-reg.2.72(10)(f). There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 7 August 2015
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