Cargo First Pty Ltd v MIBP

Case [2016] FCA 30


FEDERAL COURT OF AUSTRALIA

Cargo First Pty Ltd v Minister for Immigration and Border Protection

[2016] FCA 30

Appeal from: Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091; (2015) 298 FLR 138
File number: NSD 1008 of 2015
Judge: FLICK J
Date of judgment: 3 February 2016
Catchwords:

MIGRATION – occupations nominated by Minister – application for a 457 visa – certification by sponsor that tasks of the position include significant majority of tasks of nominated position – certification of sponsor not conclusive – power of Minister to consider whether position is genuine

PRACTICE AND PROCEDURE – leave to amend to raise a new argument – leave refused – proposed ground without apparent merit   

Legislation:

Migration Act1958 (Cth), ss 140GB, 140GB(1), 140GB(2)

Migration Regulations 1994 (Cth), regs 2.72, 2.72(10), 2.72(10)(e), 2.72(10)(f)

Cases cited:

Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091, (2015) 298 FLR 138

Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550

SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164

Date of hearing: 19 November 2015
Date of last submissions: 26 November 2015
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 38
Counsel for the Appellant: Mr D Gration
Counsel for the First Respondent: Mr J Knackstredt
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1008 of 2015
BETWEEN:

CARGO FIRST PTY LTD

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY MIGRATION REVIEW TRIBUNAL)

Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

3 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The name of the Second Respondent is changed to Administrative Appeals Tribunal.

2.Leave to amend the Notice of Appeal is refused.

3.The appeal is dismissed.

4.The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J

  1. The Appellant corporation, Cargo First Pty Ltd (“Cargo First”), operates a Muffin Break franchise at the Garden City Shopping Centre in Mt Gravatt, Queensland.  A director of Cargo First (Mr Zhao) and his wife are the owners of the company.

  2. Mr Zhao seeks a Subclass 457 (Temporary Work (Skilled)) visa. 

  3. There are three stages involved in the processing of a 457 visa, namely:

    ·an application made by an employer to be an approved “standard business sponsor”;

    ·the nomination by the employer of an eligible occupation; and

    ·a visa application by the person nominated to work in the nominated occupation.

    It is the second of these three stages which is presently in issue.

  4. Cargo First, having been previously approved as a standard business operator, applied in November 2013 to nominate the occupation of “Sales and Marketing Manager”.

  5. In…

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Details
AGLC
Cargo First Pty Ltd v MIBP [2016] FCA 30
Case
[2016] FCA 30
Decision Date

CaseChat Overview and Summary

Cargo First Pty Ltd sought to appeal against a decision made by the Federal Circuit Court, which dismissed their application for a 457 visa for one of their employees. The dispute centred around whether the employee's role was genuinely that of a sales and marketing manager, as required by the visa regulations. The court was tasked with determining whether the Federal Circuit Court correctly interpreted the regulations regarding the genuineness of the position and whether the appellant was entitled to amend their grounds of appeal to include a new argument.

The court examined whether there was any self-evident error in the Federal Circuit Court's reasoning and whether the proposed new argument had sufficient merit to warrant leave to amend the appeal. The court found that the Federal Circuit Court's interpretation of the regulations was correct and that the proposed new argument lacked merit. Therefore, the court ruled that there was no basis to grant leave to amend the appeal.

In conclusion, the court dismissed the appeal and refused leave to amend the grounds of appeal. The court also ordered that the name of the second respondent be changed to the Administrative Appeals Tribunal to reflect the amalgamation of tribunals that occurred on 1 July 2015. The appellant was ordered to pay the costs of the first respondent. The court's decision was based on the finding that no appellable error had been exposed in the reasons for decision of the Federal Circuit Court Judge.

Orders

Orders of the court

1. The name of the Second Respondent is changed to Administrative Appeals Tribunal.

2. Leave to amend the Notice of Appeal is refused.

3. The appeal is dismissed.

4. The Appellant is to pay the costs of the First Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if leave to amend were to be granted, there is no self-evident error in the Tribunal’s reasoning leading to its conclusion that the position was not genuinely that of a sales and marketing manager. The proposed new argument sought to be raised by amendment lacks sufficient merit to warrant the grant of leave to amend. CONCLUSIONS No appellable error has been exposed in the reasons for decision of the Federal Circuit Court Judge. Indeed, it is respectfully concluded that the construction of reg 2.72(10)(f) embraced by that Court is correct. The name of the Second Respondent, presently named as the Migration Review Tribunal, should be amended to the Administrative Appeals Tribunal following the amalgamation of tribunals effected on 1 July 2015. The appeal should be dismissed with costs.THE ORDERS OF THE COURT ARE:1.The name of the Second Respondent is changed to Administrative Appeals Tribunal.2.Leave to amend the Notice of Appeal is refused. 3.The appeal is dismissed.4.The Appellant is to pay the costs of the First Respondent.

Ratio Decidendi

Legal Principle Established

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