Cleansurance Australia Pty Ltd v Minister for Home Affairs
[2018] FCCA 3186
•5 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLEANSURANCE AUSTRALIA PTY LTD v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3186 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for approval of nomination under s 140GB of the Act – whether the Tribunal adopted an unduly narrow and erroneous approach to the construction of r 2.72 and 2.73 of the Regulations – whether the Tribunal’s adverse finding was legally unreasonable – whether the Tribunal failed to comply with its statutory obligations – no arguable case of jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140GB, 348, 476 Migration Regulations 1994 (Cth), rr. 2.72, 2.73 |
| Cases cited: Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 |
| Applicant: | CLEANSURANCE AUSTRALIA PTY LTD |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1292 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 5 November 2018 |
| Date of Last Submission: | 5 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms F McNeil |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
This proceeding will be heard concurrently with proceedings SYG 1585/2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
DATE OF ORDER: 5 November 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1292 of 2018
| CLEANSURANCE AUSTRALIA PTY LTD |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 April 2018 affirming a decision of the delegate not to approve a nomination.
The applicant applied for approval on 14 December 2015 in respect of a nomination of an occupation for a subclass 457 visa made under s 140GB of the Act and r 2.73 of the Migration Regulations 1994 (Cth) (“the Regulations”). On 8 March 2016, the delegate refused to approve the nomination on the basis that the applicant did not satisfy r 2.73(10) of the Regulations, because the delegate was not satisfied that the proposed nominated occupation was genuine.
On 23 March 2018, the applicant lodged an application for review. The director of the applicant company was invited to attend a hearing on 20 March 2018 to give evidence and present arguments. The Tribunal identified the issue as whether the applicant met the criteria for approval of a nomination.
The Tribunal summarised the evidence including referring to the evidence that the nominee had been working for the director of Cleansurance Australia Pty Ltd since 2013 and that he had been working in the warehouse and serving customers, but alleged he had been doing IT from 2015. The Tribunal referred to the evidence given by the director that he was not sure what a web administrator does as his advisor had prepared the nomination for him. The director asserted that the nominee had built and maintained the website since 2015 and officially he was doing it before then and if there was a problem he would help solve it.
The Tribunal referred to the director’s evidence concerning a number of subcontractors that he had and a small number of employees in respect of the cleaning supply business which is a small shop. There was a difference of evidence between the director and the nominee in relation to who paid for his education for studies in Australia. The Tribunal also referred to the nominee’s evidence that he was doing all the IT related work as well as managing the systems and that he claims that he develops programs and the website, and that he is updating the website and renewing it. The Tribunal raised with the applicant that the website had been looked at by the Tribunal and on its face was a very basic website with no links or information except a screen with an email address.
The Tribunal referred to the particular nominated occupation of Web Administrator under the Australian and New Zealander Standard Classification of Occupations (“ANZSCO”) publication identifying a particular six-digit code number. The Tribunal found that r 2.72(8A) of the Regulations required the applicant to provide information as part of a nomination, which included the name and location of the occupation and the corresponding six-digit ANZSCO code.
The Tribunal referred to the requirements at r 2.72(10)(f) of the Regulations that the position associated with the nominated occupation must be genuine. The Tribunal found that the position associated with the nominated occupation is not genuine and found the application was contrived to secure a favourable migration outcome for the nominee. The Tribunal found the requirements of r 2.72(10)(f) of the Regulations were not met and affirmed the decision under review.
The grounds
The grounds in the amended application are as follows:
1. The decision of the Tribunal was affected by jurisdictional error in that it adopted an unduly narrow and legally erroneous approach to the construction of Regulation 2.72 and 2.73 of the Migration Regulations 1994 (Cth) such that the Tribunal failed to discharge its statutory review obligation under s348 of the Migration Act 1958 (Cth).
Particulars
(a) In considering the criteria for approval under Regulation 2.72 and the process for nomination under Regulation 2.73, at paragraph [60] of its reasons, the Tribunal considered that the regulation “refers to only to the 6-digit ANZSCO code which related to the occupation Web Administrator and not the 4-digit code for the unit group of ICT Support Technicians”.
(b) The Tribunal misconstrued the ANZSCO description of the appellant’s nominated occupation of “Web Administrator”, confining its attention in determining the content of the nominated occupation to the text under ANZCO code 313113 Web Administrator without reference to the whole ANZSCO description, which included the content under the heading Minor Group 313 ICT and Telecommunications Technicians and Unit Group 3131 ICT Support Technicians.
(c) This approach was inconsistent with the principles expressed in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 and Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 and gave rise to jurisdictional error.
2. The Tribunal’s finding was affected by jurisdictional error in that it was legally unreasonable.
Particulars
(a) In determining whether a position is genuine under Regulation 2.72(10)(f), the Tribunal is required to undertake a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the sponsor.
(b) The Tribunal’s finding at paragraph [61] that the “application is contrived to secure a favourable migration outcome for the nominee”, was made further to a finding at paragraph [54] that “The Tribunal does not accept that it is economical to employ full-time a web administrator in a relatively small company”.
(c) This finding was legally unreasonable in circumstances where:
a. the Tribunal had accepted that the organization chart for the applicant company dated December 2015 showed nine employees and 100 subcontractors (paragraph 47]);
b. financial information about the applicant company indicated that the applicant company had annual sales and income of over $2 million; and
c. the evidence before the Tribunal indicated the applicant company had replaced its point of sale (POS) technology system with web-based technology to manage its sales database (CB 506).
Ground 1
In relation to ground 1, Ms McNeil of counsel on behalf of the applicant contended that the Tribunal should have taken into account the four-digit code for the unit group of IC support technicians in considering whether or not the position associated with the nominated position is genuine.
Ms McNeil took the Court to the ANZSCO publication in respect of 1220.0 and the Minor Group 313 ICT and Telecommunication Technicians. Ms McNeil drew attention to the skills and tasks referred to in that regard and the reference to the section containing the following subsection which refers to Unit Group 3131 ICT Support Technicians and Unit Group 3132 Telecommunication Technician Specialists. Ms McNeil took the Court to the Unit Group 3131 ICT Support Technicians and drew attention to the skills and tasks. That section of the ANZSCO publication expressly has a heading “occupations” under which appears the following:
Occupations:
313111 Hardware Technician
313112 ICT Customer Support Officer
313113 Web Administrator
313199 ICT Support Technicians nec
Further down the document, there is an express reference to 313113 Web Administrator and a reference to activities “designs, builds and maintains websites and provides web technology solutions and services”. The next occupation number is 313199 ICT Support Technicians nec and the following appears “this occupation group covers ICT Support Technicians not elsewhere classified”. There is a referred skill level in the occupations including applications packager, computer systems technicians and telecommunications computer systems technician.
Ms McNeil also relied upon what was said by the learned Moshinsky J in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779, particularly at [51] which is as follows:
[51] In the circumstances, including the way in which the appellant put his submissions to the Tribunal, the Tribunal did not err in having regard to the tasks set out in ANZSCO for the specific occupation. That is not to say that the general tasks set out in the higher groups are necessarily irrelevant. Depending on the circumstances, it may be proper to have regard to the higher level descriptions. However, in the present case, no error is shown in the way that the Tribunal had regard to ANZSCO."
Ms McNeil submitted that this was a case where it was relevant to take into account the higher groups in considering whether or not the applicant’s nominated occupation was genuine and contended that the Tribunal had misconstrued the regulation by failing to take into account the higher group.
The Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 has an express reference to an occupation with an item number below it and a description of the occupation and the ANZSCO code number. Relevantly, the four occupations referred to in the publication by ANZSCO in respect of the Unit Group 313 ICT Support Technicians are each included as items 180 to item 183 and beside the same is the ANZSCO code reference as identified in the Regulation matching the code identified in the ANZSCO publication. Materially, for the purposes of the present case, item 182 is the Web Administrator occupation with the six-code 313113.
The Tribunal’s reasoning, in paragraph 60, that the nominated advanced was one for the position identified as Web Administrator and not for the four-digit code for the unit group of ICT Support Technicians was correct. There was no misconstruction or misunderstanding by the Tribunal of the Regulation.
On no view was the nomination in the present case one for ICT Support Technicians. The Regulations relevantly provides:
2.72(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
2.72(10) If the person is a standard business sponsor — the Minister is satisfied that:
(b) if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(f) the position associated with the nominated occupation is genuine; and
The Tribunal was correct in its construction of the Regulation and understanding the occupation that had been nominated, being the occupation corresponding the six-digit ANZSCO code for Web Administrator. This is not a case where the nomination advanced dual positions and it is not the case that the Regulation permits the treatment of the four-digit code as if it was a position. That is inconsistent with the reference to the six-digit ANZSCO code that applies to the occupation in the present case.
Whilst there may be circumstances in which the context of the higher group is relevant in understanding whether or not the criteria under the Regulations are met in respect of a particular six-digit ANZSCO code, I do not accept that the Tribunal’s reasoning in the present case was infected by any error in the construction of the Regulation or in understanding that the task of the Tribunal was to determine whether the applicant met the requirements of the Regulations in respect of the request for approval in respect of the nominated occupation.
The Tribunal did not adopt a narrow or erroneous approach to the construction of r 2.72 and 2.73 of the Regulations. The Tribunal did not fail to discharge its statutory review and its obligations under s 348 of the Act. The Tribunal directly identified the applicable ANZSCO code to the occupation the subject of the nomination. No jurisdictional as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Ms McNeil submitted that the Tribunal had made a finding that was legally unreasonable in determining whether the position was genuine under r 2.72(10)(f) of the Regulations. Ms McNeil referred to the Tribunal’s reasons including, in particular, paragraphs 47, 54 and 61, as well as referring to the Tribunal’s reasoning in respect of the applicant being a small company and the turnover for the applicant and a number of subcontractors and number of employees.
The Tribunal in the present case gave logical and rational reasons in support of the finding that the requirements of r 2.72(10)(f) of the Regulations are not met. The Tribunal’s reasons in that regard are not to be read with a keen eye for error and should be read as a whole.
The Tribunal in its reasons had referred to the activity that the applicant had undertaken on any view prior to 2015 that could not be said to be falling within the occupation the subject of the nomination. The Tribunal also referred to the limited information on the applicant’s website and the absence of website links and information except a screen with an email address.
Ms McNeil suggested it was a matter that was a work in progress. It is apparent the job offer was made on 30 August 2015.
The Tribunal’s reasons expressly refer to the number of employees being nine and the number of subcontractors being 100. The Tribunal also took into account the ability to obtain outside Web Administrator IT support. The Tribunal found it was a small workforce and that when the evidence was presented, the website was not a functional website, the evidence changed to state that the nominee actually undertook IT support.
The Tribunal did not accept that it is economical to employ a full time, dedicated web administrator in a relatively small company. That was a finding that was open to the Tribunal and cannot be said to be illogical, irrational or unreasonable. The Tribunal also found that the nominee had not been truthful in some aspects of his evidence in respect of his experience. The adverse finding in paragraph 56 cannot be said to lack any evidence of an intelligible justification.
No legal unreasonableness as alleged in ground 2 is made out in respect of the finding by the Tribunal that the requirements of r 2.72(10)(f) of the Regulations are not met. I accept the first respondent’s submission that, in substance, ground 2 is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 2.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 7 December 2018
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