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)
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
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.
Mr Zhao seeks a Subclass 457 (Temporary Work (Skilled)) visa.
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.
Cargo First, having been previously approved as a standard business operator, applied in November 2013 to nominate the occupation of “Sales and Marketing Manager”.
In…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
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.