Chang v Minister for Immigration

[2014] FCCA 572

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 572

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – Employer Nomination (Residence) (Class BW) visa – Applicant not employed by the same employer in respect of which the nomination was approved – no jurisdictional error – Application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.65, 359AA

Migration Regulations 1994 (Cth), cl.114A, Sch 1, cls.857.213(a), 857.213(b)(ii)(A), 857.213(A), 857.213(B)(ii), 857.222, Sch 2, Reg.5.19(4)

Li Tian & Ors v Minister for Immigration & Anor [2009] FMCA 930
Li Tian v Minister for Immigration and Citizenship [2009] FCA 1406

Applicant: NYUK TAI CHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 979 of 2013

Judgment of: Judge Hartnett

Hearing date: 12 March 2014

Delivered at: Melbourne

Delivered on: 12 March 2014

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Wendy

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The Application filed 2 July 2013 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 979 of 2013

NYUK TAI CHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application filed 2 July 2013 in which the Applicant seeks an order in the nature of certiorari and a declaration that the decision of the Migration Review Tribunal (‘the Tribunal’) dated 17 June 2013, which affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant an Employer Nomination (Residence) (Class BW) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’), is invalid.

2. At the time of filing his Application, the Applicant also filed an Affidavit in support sworn by him on 2 July 2013.  The basis on which the Applicant brings his application before the Court is as set out in that Affidavit at paragraph 3, and in the Application itself and is as follows:-

   “3.    … that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that [the Applicant states] that the tribunal has fallen into error by concluding that the effect of cl.857.222 is that the employer in relation to the job nomination put forward as at the time of the application for the visa must also be the approved nominating employer relating to that job at the time of making the decision in relation to the visa.”

3. The First Respondent filed a Response on 9 July 2013 seeking dismissal of the application.  The First Respondent argues that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal dated 17 June 2013 (‘the Decision Record’). 

4. The matter came before Registrar Caporale on 4 September 2013 and various procedural orders were made by consent, which included that the Applicant file and serve written submissions and a list of authorities 14 days before the final hearing.  The Applicant filed no submissions in the proceedings, but was given an opportunity this day to make oral submissions to the Court in support of his application, and in response to the First Respondent’s Submissions filed 4 March 2014, which the Applicant had read and had a copy of in the courtroom. 

5. These proceedings raise only one issue for the Court to consider, and that is whether the Tribunal fell into jurisdictional error in concluding that the effect of cl.857.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) requires that the employer that nominated an applicant for an appointment in the business of that employer at the time of the visa application, be the same employer as at the time of making a decision in relation to the visa. The First Respondent contends that the Tribunal made no error in its conclusion about the effect of cl.857.222 of Schedule 2 the Regulations, and on that basis the Applicant’s claim should be dismissed. The Court agrees with the contention of the First Respondent and shall this day dismiss the Applicant’s Application filed 2 July 2013. Costs will follow the event.

Background

1. On 18 December 2009, the Applicant applied for the visa.  An Employer Nomination (Residence) (Class BW) visa is an onshore permanent visa for persons who meet the requirements for a position nominated by an employer, who requires skills possessed by the visa claimant in the employer’s business.  The Applicant’s visa application sets out the name of the nominating business as ‘Tokyo Grill House’ in Ballarat in the State of Victoria.  On his visa application form, the Applicant indicated his age was 48 years.  He asked that his application be considered as exceptional.  Annexed to the visa application form was an employer nomination form.  Also annexed was a copy of the Applicant’s employment agreement between the Applicant and J&B Cheung Pty Ltd, trading as ‘Tokyo Grill House’ restaurant.  An extract from the Australian Securities and Investment Commission Register for that company was provided with the Application and indicated that the ACN for that company was 074648178. 

2. When the matter proceeded before the delegate, the delegate refused the visa application on the basis that the Applicant did not satisfy cl.857.213(B)(ii) of Schedule 2 of the Regulations on the basis that the Applicant was over 45 years, did not have functional English and the delegate found that exceptional circumstances did not apply. The Tribunal, however, made its finding on another ground, and being one more difficult for the Applicant to overcome because of the statutory regime applicable to him in the circumstances of his case.

Tribunal Proceedings

1. On 12 October 2010, the Applicant applied for review of the delegate’s decision.  On 18 March 2013, the Applicant was invited to attend a hearing, which he did, on 30 April 2013. He was assisted by an interpreter in the Mandarin and English languages. During that hearing, the Tribunal asked the Applicant the name of the employer that had nominated him.  The Applicant stated that the name of the business was ‘Tokyo Grill House’.  The Tribunal also asked whether the company that was then operating the business ‘Tokyo Grill House’, and being YMMI Tokyo Making Pty Ltd, was the same company that had originally nominated him.  The Applicant answered that the two companies were different.  The Applicant then gave evidence that at the time of his visa application the business was owned by the corporation J&B Cheung Pty Ltd.

2. The Tribunal noted that the trading name of the business had not changed, but raised with the Applicant’s migration agent, who attended the Tribunal hearing with him, the fact that it had, on the hearing, become clear that cl.857.213(A) of Schedule 2 of the Regulations was in issue. The Tribunal put to the Applicant that at the time of decision he must satisfy the Tribunal that he had been nominated by an employer, in accordance with Reg.5.19(4) of the Regulations for an appointment in the business of that employer (see s.359AA of the Act).

3. The Tribunal, having put to the Applicant that it needed to be satisfied that he was employed by the same employer in respect of which the nomination was approved, granted the Applicant further time to provide the Tribunal with information demonstrating that he had been nominated by an employer in accordance with Reg.5.19(4) of the Regulations for an appointment in the business of that employer. The Tribunal explained the nature of the evidence required.

4. The Tribunal then went on to canvass the issue of whether “exceptional circumstances” as described in cl.857.213(b)(ii)(A) of Schedule 2 of the Regulations applied to the Applicant by asking him why it was he thought his appointment was exceptional or what made it unique, special or atypical. In response, the Applicant gave various examples of why it was he felt his appointment fell into such category.

5. The Applicant also put evidence before the Tribunal from Mr Hong Anliang who stated that he had been the director of the nominating company and a 40 per cent shareholder since July 2012.  Mr Lu Dunxiang also gave evidence and he likewise confirmed that he was a shareholder in the business.  Both gave evidence as to the satisfaction of exceptional circumstances in the case of the Applicant.

6. Following the hearing, the Applicant provided to the Tribunal share transfer forms and a change to company details form for the company YMMI Tokyo Making Pty Ltd (ACN 134476261), which company employed him and owned the business of ‘Tokyo Grill House’ restaurant.  Those documents indicated that the ACN of the employing company was 134476261. 

7. In affirming the decision not to grant the Applicant a visa, the Tribunal found that the Applicant was no longer employed by the same company that appointed him pursuant to a nomination made in accordance with Reg.5.19(4) of the Regulations and therefore did not meet the requirements of cl.857.222 of Schedule 2 of the Regulations. Clause 857.222 of Schedule 2 of the Regulations is as follows:-

   “857.222 The Minister is satisfied that the appointment mentioned in paragraph 857.213 (a) will provide the employment referred to in the relevant employer nomination.”

   Clause 857.213(a) of the Regulations is as follows:- 

   “857.213 Each of the following is satisfied:

   (a) the applicant has been nominated by an employer, in accordance with subregulation 5.19 (4), for an appointment in the business of that employer;”

8. Regulation 5.19 of the Regulations sets out the criteria that a nominating employer must satisfy for the approval of a nominated position as an approved appointment. The Regulation is as follows:-

   “5.19    Approval of nominated positions (employer nomination)

   (1)     A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2)     The application must:

   (a)     be made in accordance with approved form 1395; and

   (b)     be accompanied by the fee mentioned in regulation 5.37.

   Temporary Residence Transition nomination

   (3)     The Minister must, in writing, approve a nomination if:

   (a)     the application for approval:

   (i) is made in accordance with subregulation (2); and

   (ii)     identifies a person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)   identifies an occupation, in relation to the position, that:

   (A)     is listed in ANZSCO; and

   (B)     has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and

   (b)     the nominator:

   (i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

   (ii)     is actively and lawfully operating a business in Australia; and

   (c) either:

   (i)

   (A)     the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a) (ii) has been employed in the position in respect of which the person holds a Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application; and

   (B)     the employment in the position has been full‑time, and undertaken in Australia; or

   (ii)     all of the following apply:

   (A)     the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72 (10) (d) (iii) (B) or sub-subparagraph 2.72 (10) (e) (iii) (B);

   (B)     the nominator nominated the occupation;

   (C)    the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)     for a person to whom subparagraph (c) (i) applies:

   (i) the person will be employed on a full-time basis in the position for at least 2 years; and

   (ii)     the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i) are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f) the nominator has met the training requirements that the nominator was required to meet under:

   (i) paragraph 2.59 (d) or (e); or

   (ii)     paragraph 1.20D (2) (c);

   for the purpose of approval as a standard business sponsor; and

   Note   Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

   (g)     either:

   (i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (h)     the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

   Direct Entry nomination

   (4)     The Minister must, in writing, approve a nomination if:

   (a)     the application for approval:

   (i) is made in accordance with subregulation (2); and

   (ii)     identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)     the nominator:

   (i) is actively and lawfully operating a business in Australia; and

   (ii)     directly operates the business; and

   (c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)     both of the following apply:

   (i) the employee will be employed on a full-time basis in the position for at least 2 years;

   (ii)     the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)     the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i) are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f) either:

   (i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (g)     the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)     either:

   (i) both of the following apply:

   (A)     the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (B)     either:

   (I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)     the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)     all of the following apply:

   (A)     the position is located in regional Australia;

   (B)     there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)    the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)    the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

   (E)     the business operated by the nominator is located at that place;

   (F)     a body that is:

   (I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)     located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

   (5)     The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

   (6)     As soon as practicable after deciding a nomination, the Minister must give the nominator:

   (a)     a copy of the written approval or refusal; and

   (b)     if the Minister refuses the nomination:

   (i) a written statement of the reasons why the nomination was refused; and

   (ii)     a written statement that the decision is an MRT‑reviewable decision.”

9. The Employer Nomination (Residence) (Class BW) contains two subclasses:-

   a)subclass 856 (Employer Nomination Scheme); and

   b)subclass 857 (Regional Sponsored Migration Scheme) – see item 114A of Schedule 1 to the Regulations.

10. As the Applicant was the subject of an employer nomination that was made using form 1054 to meet the requirements of Reg.5.19(4) of the Regulations, the Applicant was seeking a subclass 857 visa and was assessed accordingly. The issue for the Tribunal to decide was whether it was satisfied that the appointment “in the business of that employer” as referred to in cl.857.213(a) of Schedule 2 of the Regulations in respect of the Applicant would provide the employment referred to in the relevant employer nomination (cl.857.222 of Schedule 2 of the Regulations).

11. The company in respect of which the nomination was approved was a company operated by Mr Jackson Cheung and known as J&B Cheung Pty Ltd.  At the hearing, the Applicant gave evidence that the company in respect of which the nomination was approved was not the same company as the company that then employed him. They were two very different legal entities. The name of the business remained the same.  In paragraphs 38 to 41 of its Decision Record, the Tribunal said as follows:-

    “38. The Tribunal observes that the effect of cl.857.222 is that the employer in relation to the job nomination put forward as at the time of the application for the visa must also be the approved nominating employer relating to that job at the time of making the decision in relation to the visa. On that point, the Tribunal has relied on Li Tian v MIAC [2009] FMCA 930 (Emmett FM, 21 September 2009) at [29] in which the Court held cl.856.222 ‘makes clear that the reference is specific to the employer in respect of whom approval to nominate was granted’. That decision was upheld on appeal, see Li Tian v MIAC [2009] FCA 1406 (Lander J, 2 December 2009) at [24] – [26].”

    39. The Tribunal is therefore bound to find that an approval for a nominated position in respect of an applicant, as an approved appointment obtained under r.5.19, is not capable of being transferred to another employer for the purposes of meeting cl.856.222, even where the nature of the job does not change.  In Li Tian v MIAC [2009] FMCA 930 (Emmett FM, 21 September 2009) at [30], upheld on appeal in Li Tian v MIAC [2009] FCA 1406 (Lander J, 2 December 2009) at [24]-[26], the Court rejected the submission that the requirements of cl.856.222 could be met in circumstances where the business of the employer who had a nomination approved under r.5.19 was taken over by another entity that acquired the goodwill, assets and liabilities and employees of the original employer (i.e. the substantive nature of the business did not change) and the applicant’s job did not change. The Court upheld the Tribunal decision that, at the time of decision, the applicant was not employed in the business of the employer referred to in the relevant employer nomination, as that entity had been deregistered by ASIC and was no longer in existence.

    40. In a decision dealing with slightly different facts (Kim v MIMIA [2005] FMCA 1699 (Nicholls FM, 25 November 2005)), in which the applicant sought to change employers during the course of the review application, the Court (at [20] – [21]) found no error in the Tribunal’s reasoning that the effect of cl.856.222 (read in conjunction with cl.856.213) was that an approved nomination at the time of making of the decision must be the same nomination made by an employer in respect of an appointment in the business of that employer at the time of making the application for the visa. Put another way, as soon as the approved nominating employer ceases to carry on its business such as in this case where the business was sold to a different entity and employer, it is not capable of providing or transferring any appointment to a visa applicant for the purposes of cl.856.222.

    41. Accordingly, following the reasoning in Li Tian v MIAC [2009] FMCA 930 (Emmett FM, 21 September 2009), and based on the finding that the review applicant is no longer employed by the same company that appointed him pursuant to the nomination it made in accordance with subregulation 5.19(4), the Tribunal finds that the review applicant does not meet the requirements of cl.857.222 because the Tribunal is not satisfied that the appointment will provide the employment referred to in the relevant employer nomination.”

1. The Regulations had not relevantly altered so as to afford any advantage to the Applicant between the time of the handing down of the decision of Lander J in Li Tian v Minister for Immigration and Citizenship [2009] FCA 1406 and the Tribunal decision in this matter. No jurisdictional error is apparent in the Tribunal decision. The Court relies upon what was said by Lander J in Li Tian v Minister for Immigration and Citizenship [2009] FCA 1406 at paragraph [26]:-

   “[26] In my opinion, reg 5.19 contemplates a process whereby the Minister in exercising the power in reg 5.19 approves a nominated position for the employer who makes the application. The approved appointment is not at large. It is for a nominated position with the employer who made the application under the regulation.”

2. It was open to the Tribunal on the basis of the Applicant’s own evidence to find that he was no longer employed by J&B Chung Pty Ltd at the time of decision, but was in fact employed by a different company with different shareholders who ran the same business.  The application will be dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  26 March 2014