Coolah Supermarkets Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 327
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Coolah Supermarkets Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 327
File number(s): SYG 805 of 2020
SYG 807 of 2020Judgment of: JUDGE D HUMPHREYS Date of judgment: 12 April 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa - where the Tribunal undertook a qualitative assessment of the “need” for an employee to be nominated –where the Tribunal identified the need to consider the financial capacity of the nominator to employ the nominee into the future - statutory construction – whether the regulation provisions constitute jurisdictional facts – materiality –application dismissed Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) r 5.19
Cases cited: Ali v Minister for Home Affairs [2020] FCAFC 109
Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135
Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8
Wilkie v The Commonwealth [2017] HCA 40
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 8 April 2024 Date of hearing: 21 March 2024 Place: Parramatta In SYG 805 of 2020 Counsel for the Applicant: Mr Godwin Solicitor for the Applicant: Parish Patience Legal & Migration Services Counsel for the Respondents: Mr Knowles SC Solicitor for the Respondents: Mills Oakley In SYG 807 of 2020 Counsel for the Applicants Mr Godwin Solicitor for the Applicants Parish Patience Legal & Migration Services Counsel for the Respondents Mr Knowles SC Solicitor for the Respondents Mills Oakley ORDERS
SYG 805 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COOLAH SUPERMARKETS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondents costs fixed in the sum of $6100.00.
3.The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs.’
ORDERS
SYG 807 of 2020 BETWEEN: HARPREET SINGH
First Applicant
SUPINDER KAUR
Second ApplicantGURLEEN KAUR BAJWA (and others named in the Schedule)
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First Applicant is to pay the First Respondents costs fixed in the sum of $6100.00.
3.The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs.’
[Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
]
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
These matters are being heard contemporaneously. They concern the nomination application (file SYG805/2020) of Coolah Supermarkets Pty Ltd ACN 603 963 462 (“the Nominator”) to nominate Mr Harpreet Singh (“the Nominee”) to the position of facilities manager. The Nominator is the owner and operator of an IGA store in Coolah, New South Wales.
The second matter (file SYG807/2020) concerns a decision not to grant Mr Singh and members of his family unit Regional Employer Nomination (Permanent) (Class RN) visas on the basis of the failure of the Nominator to gain approval for the nomination of Mr Singh.
The applicants and first respondent concede that if the nomination application decision is set aside, then the decision that determines Mr Singh’s application should also be quashed and both matters remitted to the Tribunal for reconsideration. If the application by Coolah Supermarkets fails, then Mr Singh’s application for judicial review must also fail.
BACKGROUND
On 2 May 2017, the Nominator applied for approval under the Direct Entry Nomination Scheme, nominating Mr Harpreet Singh in the role of Facilities Manager at the IGA store in Coolah. This role had been newly created and was advertised in 2017 by the store.
On 21 August 2017, a delegate of the Minister refused the nomination application on the basis that the applicant did not satisfy regulation 5.19(4) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant had not demonstrated that there was a need for the applicant to employ a paid employee to work in the position.
The Nominator sought merits review of this decision in the Administrative Appeals Tribunal (“the Tribunal”) on 28 August 2017. The Tribunal affirmed the decision of the first respondent to refuse the nomination on 26 February 2020.
On 2 May 2017, the Nominee applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“the visa”). The Nominee’s application also named as applicants a second, third and fourth applicant – all members of the first applicant’s family unit.
On 21 August 2017, the delegate refused to grant the visa as the Nominee was not the subject of an approved nomination pursuant to cl 187.233 of the Regulations. The second, third and fourth named applicants were refused subclass 187 visas, as they did not meet the secondary visa criteria.
The Nominator applied for a review of the delegate’s decision to the Tribunal on 13 October 2017. The Nominee sought judicial review of the Tribunal’s decision in this Court on 1 April 2020, filing an amended application on 11 September 2020.
Both applications are before this Court for judicial review. For the reasons set out below, the Nomination application must be dismissed. It follows then that the Nominee application for Mr Harpreet Singh must also be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION – NOMINATOR APPLICATION
The Tribunal’s decision considered whether the applicant met the criteria for approval of the nomination of a position in Australia under regulation 5.19 of the Regulations.
Paragraphs [1] – [6] of the Tribunal’s decision addressed the background of the matter. Paragraphs [7] – [23] of the decision addressed documents that had been provided to the Tribunal, when they were invited to be produced, and subsequently, when the documents were produced.
In Paragraphs [26] – [33], the decision addressed information regarding the applicant, that could be considered adverse. The decision highlighted, at paragraph [27], that Mr Singh had previously held a s 457 visa that was cancelled by the Department, and Department records show that Mr Singh had a history of falsely declaring his employment to the Department. At paragraph [28], the applicant’s representative at the hearing, who also represented Mr Singh, told the Tribunal that when Mr Singh was working as a transport manager, he was pulled over by police while driving a truck. The police then advised the Department that Mr Singh was not working in his nominated position, resulting in the Department cancelling his visa. The representative claimed at the hearing that Mr Singh’s former employer had requested Mr Singh, as part of the transport manager’s role to train new driver, hence why he was driving the truck. Mr Singh’s former employer lodged an application with the Tribunal reviewing the decision to cancel his 457 visa, however, Mr Singh’s sponsor passed away prior to the hearing and the review application was subsequently withdrawn.
At paragraph 30 of the decision, it is highlighted that the Tribunal told the Applicant that the above information is relevant, because it suggests that there is adverse information known to the First Respondent about the Nominee (Mr Singh), a person associated with the Nominator (the Applicant), and there was no information before the Tribunal to suggest that it was reasonable to disregard that information.
On 24 February 2020, the Tribunal received submissions from the Applicant which inter alia stated:
“At the time when we offered Mr. Singh the nominated position, his work visa had not been cancelled. He told us about the cancellation and the circumstances of the cancellation soon after it was cancelled. We accepted his explanation that the cancellation was the result of his previous employer breaching sponsorship obligations rather than Mr Singh's own fault.”
The Tribunal, at paragraph [33], acknowledged the above response from the applicant and did not rely on the information regarding the former cancellation of the 457 visa adversely.
At paragraph [36], the Tribunal questioned the Nominator about why he needed the position, particularly because the business had been operating without the position since 2016. The Nominator told the Tribunal that they needed someone who was willing to travel between various stores, as the directors were no longer able to travel between the stores. The Nominator also highlighted that the Coolah Supermarket was going to be renovated and expanded, requiring a facilities manager to be employed. The Tribunal raised that in the Nominator’s submissions, it was discussed how they had attempted to fill the position previously, however, were unable to due to people being unwilling to travel between the stores. The decision emphasised at paragraphs [38], [39] and [41] that the Nominator relied heavily on the fact that the role required the employee to travel and how other staff member or potential employees were not prepared to do so.
At the Tribunal hearing, it was apparent from paragraph [41] that Mr Singh was questioned on his understanding of what the requirements of a facilities manager were. Mr Singh stated he had no previous work experience as a facilities manager and appeared not to understand the role or the applicant’s facilities and asset management requirements.
A large part of the decision discussed what the correct statutory construction of reg 5.19(40(a)(ii) was, questioning whether it involved a qualitative assessment being undertaken, or whether a statement and/or declaration would be sufficient to satisfy the criteria in reg 5.19(4)(a)(ii). It was acknowledged at paragraph [43] of the decision that the law is unsettled about the effect of the regulation.
Paragraph [44] highlighted the Department’s approach to the question of whether there should be a qualitative approach to the regulation. Thus, the Tribunal decided that when looking at the regulation there needed to be a “reason” for why the nominator believed there was a need for a paid employee in its business. Finally, at paragraph [48], the Tribunal concluded that the applicant did not provide sufficient information addressing their need to employ a paid employee to work in the position.
At paragraph [48], the Tribunal outlined the reasons for the conclusion:
•The applicant has provided limited information that addressed their need to employ a paid employee to work in the position under the applicant's direct control, other than they needed someone who will travel. There is no verifiable supporting evidence including business plan or evidence of financial forecasting or budget analysis covering expenditure and anticipated revenue to support the applicant's claims for the need to employ a paid employee to work in the position.
•The applicant told the Tribunal that the position is required, as the applicant will be renovating the Coolah and Byron Bay stores. Apart from an email from Allworx providing a budget for the specific work to be carried out at the Coolah IGA, there is no project plan, work schedule, supply/building contracts or scope of works to indicate the timeline, budget and scope of the renovations or confirmation that the work is to actually to be undertaken.
•The financial information provided by the applicant does not indicate or reveal to the Tribunal how the nominated position will contribute to the overall financial position of the business and how the position will reduce costs and add to the business's operational efficiencies.
•The applicant's application, supporting information and evidence provided to the Tribunal does not reveal what research the applicant undertook when deciding to create the position and subsequently employ a paid employee to work in the position; and
•The applicant's application and supporting information does not reveal any financial or other performance targets for the position.
At paragraph [49], the Tribunal ultimately concluded that there was a lack of persuasive and collaborative evidence to support that the applicant has identified a need to employ an employee under their direct control. This resulted in the Tribunal finding that the requirement in reg 5.19(4)(a)(ii) was not met and, subsequently, the applicant did not satisfy reg 5.19(4)(a).
At paragraphs [50] to [57], the Tribunal explored the requirement under reg 5.19(4)(d) that the nominee was to be employed in the nominated position for at least two years full time. At paragraph [51], the Tribunal required the applicant to provide further financial disclosure to support the applicant’s capacity to employ Mr Singh for two years, full-time. The Tribunal required BAS returns for the 2018 and 2019 financial years, and a copy of the applicant’s most recent Workers Compensation policy. On 14 February 2020, the applicant provided PAYG Summaries of employees for the 2018 and 2019 financial years and an email from Icare payment services.
The Tribunal, in assessing the information provided by the Applicant at paragraph [53], found that the financial statements, profit and loss statements and balance sheets were unsigned and were not supported by verifiable information and corroborating evidence. The Tribunal therefore placed little weight on the Applicant’s financial evidence and subsequently found that the Applicant had not provided any verifiable evidence that they could provide Mr Singh with two years of full-time employment. Additionally, the Letter of Engagement dated and signed by the Managing Director and the nominee on 27 January 2020 did not specify the duration of the employment.
At paragraph [57], the Tribunal found that the Applicant did not meet the requirement of reg 5.19(4)(d) and affirmed the decision under review.
THE ADMINISTATIVE APPEAKS TRIBUNAL’S DECISION – NOMINEE APPLICATION
This is a summary of the Tribunal’s decision regarding the Nominee, Mr Singh’s application.
At paragraph [3], the Tribunal set out that the primary criteria for the grant of a Subclass 187 visa must be satisfied by at least one applicant. Other applicants that are named as members of the family unit need only satisfy the secondary criteria.
The Tribunal noted that Mr Singh appeared before the Tribunal on 30 January 2020 on behalf of the applicants. The Nominator, Mr Raminder Parmar, also gave oral evidence in the related matter for the nomination application,
At paragraph [12] to [24] the Tribunal considered whether the nominee met the requirements of cl 187.233.
Clause 187.233 relevantly provides:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
The clause requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry Stream, located in regional Australia. At paragraph [14] of the Nominee’s decision, the Tribunal set out additional criterion that they are required to consider.
On 28 February 2020, the Nominee, and the further applicants were invited to comment on, or respond to information which the Tribunal considered would be reason or part of the reason for affirming the decision under review. The information was related to the Tribunal’s decision not to approve the nomination by Coolah Supermarkets.
In a 28 February 2020 communication from the Tribunal, the Tribunal advised that if the comments were not received by 13 March 2020, the Tribunal may make a decision without obtaining comments. The applicant would lose any entitlement they might otherwise have had under the MigrationAct 1958 (Cth) (“the Act”).
The Tribunal noted that the review applicant did not provide comments within the prescribed period, and they were not granted an extension. Pursuant to s 359C and s3 60(3) of the Act, the Tribunal held that the review applicant was not entitled to appear before the Tribunal. The Tribunal decided to proceed to a decision with taking further steps to obtain comments.
As the nomination application was not approved, the Tribunal found that the review applicant, Mr Singh, did not meet the requirements of cl 187.233(3) of the Regulations.
In relation to the second, third and fourth named applicants, the Tribunal held that, pursuant to cl 187.311 a secondary visa applicant should be a member of the family unit of a person, (the primary applicant) who holds a Subclass 187 visa.
The Tribunal found that the secondary applicants were unable to satisfy the criteria for the visa class as the primary applicant did not meet the requirements.
GROUNDS OF JUDICIAL REVIEW
The Nominators grounds of judicial review are contained within an Amended Originating Application filed with the Court on 11 September 2020, as follows:
1.The Tribunal erred in its interpretation of the applicable law in Respect to Regulation 5.19(4)(a)(ii).
2.In the alternative to paragraph 1 the Tribunal erred in its application of Regulation 5.19(4)(a)(ii) to the applicant's application as it applied a far more onerous requirement than setting out why the applicant believes it has a need for a paid employee in its business.
3.The Tribunal took into account irrelevant matters in its assessment of Regulation 5.19(4)(a)(ii)
4.The Tribunal erred in its interpretation of Regulation 5.19(4)(d)(i).
5.The Tribunal took into account irrelevant matters in its assessment of Regulation 5.19(4)(d)(i).
6.Not Pressed
7.The Tribunal misunderstood its statutory task as it addressed the question of whether there was a business case for the employment of the visa applicant supported by verifiable financial accounts which was not the question posed by the applicable regulations.
8.The question of whether the applicant had identified the need for the position within the meaning of r 5.19(a)(ii) is a jurisdictional fact and the existence of that fact will be proved in these proceedings such that the Tribunal's conclusion otherwise was a jurisdictional error by it.
9.The question of whether the visa applicant will be employed on a full-time basis in the position for at least 2 years within the meaning of r 5.19(d)(i) is a jurisdictional fact and the existence of that fact will be proved in these proceedings such that the Tribunal's conclusion otherwise was a jurisdictional error by it.
The originating application filed on 1 April 2020 included a Ground 6, however, in the amended originating application filed on 11 September 2020, Ground 6 had been removed and the subsequent numbering had not been updated to reflect the removal of Ground 6.
The Nominee applicant, Mr Singh lodged his Originating Application on 31 March 2020. The singular ground of judicial review relied upon is as follows:
1.The Tribunal found that the applicants did not satisfy cl.187.233(3) as the nomination of the position had not been approved. However, the refusal to approve the nomination itself was unlawful and reliance upon the refusal infects the Tribunal’s decision with jurisdictional error
THE NOMINATOR’S SUBMISSIONS
In submissions filed on 10 September 2020, the Nominee applicant asserted that the Tribunal had erred in its reasoning as follows.
Grounds 1, 2, 3 and 8
The Nominator submitted that there was a question of statutory construction arising in relation to reg 5.19(4)(a)(ii) of the Regulations.
That is, it turned to the question of whether reg 5.19(4)(a)(ii) required the Nominator to assert within the application that there was need for the Nominator to employ a paid employee to work in a position under the Nominator’s direct control, or if the Tribunal was permitted to assess whether there was a proper basis for such an assertion. The Nominator submitted that the latter was correct: a qualitative assessment was not required, but rather, the application submitting a need would be sufficient.
In an exercise of statutory construction, the applicant asserted that reg 5.19(4)(a) holistically was directed towards taking a form which was more “administrative” in nature.
Grounds 4, 5, 7 and 9
In relation to these grounds, the Nominator submitted that the Tribunal erred by considering the Nominator’s financial capacity when it determined that the employee would be employed on a full-time basis for at least two years. This is based on the assertion by the Nominator that there was no fixed term for the engagement; that it was an ongoing engagement – one which was supported by departmental policy confirming no live requirement regarding contractual duration or time imposition.
Ancillary to this, the Nominator raised that even if the Tribunal did not err, it would be open to the Court to make its own assessment with respect to whether the material supported the “ability of the business to sustain employing the visa applicant for at least 2 years as whether this requirement is met is a jurisdictional fact.”
The Nominator submitted that the operating profit of the business exhibited to the Tribunal was $360,453 for 2017-2018 and $490,742 for 2028-2019, and that this was “sufficient to comfortably enable the employment of the visa applicant.” In addition, the Tribunal stated that the financial statements were not signed nor supported by verifiable information, however, the applicant claimed that this did not “point to anything about the statements which would suggest that they did not reflect the genuine picture.”
Furthermore, the Nominator asserted that the company provided to the Tribunal a 2018 tax return as an annexure to Mrs Kaur’s Affidavit of 10 September 2020, which confirmed the accuracy of the 2018 financial statement. According to Mrs Kaur, the 2019 tax return was yet to be finalised, but that the 2019 operating profit was approximately $490,742. For these reasons, the Nominator claimed that the company demonstrated its financial capacity to employ the applicant for at least 2 years.
THE FIRST RESPONDENT’S SUBMISSIONS
On grounds 1-3, in relation to the findings under reg 5.19(4)(a)(ii), the first respondent clarified that the regulation requires the application to identify a “need for the nominator to employ a paid employee to work in the position.” Moreover, the term “identifies a need” points towards more than just a requirement to assert that there is a need, rather, there must be some basis for that need. The applicant’s contextual factors did not support this approach.
The first respondent submitted that there was no inconsistency in the Tribunal’s approach towards reg 5.19(4)(a)(ii) as it allowed for a qualitative assessment of the application content.
In response to ground 2, the first respondent submitted that “to the extent that the Tribunal was correct to find that reg 5.19(4)(a)(ii) permitted a qualitative assessment of the application, this ground seeks impermissible merits review of the Tribunal’s assessment.” Besides this, the letter relied on by the Nominator did not indicate any error on the Tribunal’s behalf as it does not assert nor identify a need to employ a facilities manager, stating only that one was being hired.
In relation to ground 3, the first respondent asserted that “it is unclear how ground three advances the Applicant’s case”, claiming that if the Nominator succeeds on the question of construction in ground 1, it would be accepted that the factors identified were irrelevant to the satisfaction of reg 5.19(4)(a)(ii).
Grounds 4, 5 and 7 essentially go to the face of the same question: “whether the Tribunal erred by considering the Applicant’s financial capacity when determining that the employee will be employed on a full-time basis in the position for at least 2 years.”
The Nominator asserted that the Tribunal’s assessment of the Nominator’s financial capacity involved an error because there was no requirement in r 5.19(4)(a)(ii) to show financial capacity. The respondent submitted that this contention should be rejected by virtue of the principle in Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], [28]– [30]: a Tribunal can consider the financial capacity of the nominator to employ the nominee for the 2-year period.
The language which the Tribunal was bound by is to consider whether “the employee will be employed on a full-time basis for at least 2 years.” The respondent submitted this language should be construed in a manner whereby the Tribunal would be required to make an “evaluative assessment as to future events”, thereby not limiting the Tribunal’s consideration as to the existing situation. Because the Tribunal needed to consider a future position, it was open to it to consider the applicant’s financial capacity as to remaining fiscally capable of employing the nominee for two years.
In accordance with grounds 8 and 9, the Nominator sought novel relief in the form of declarations to say it met 5.19(4)(a)(ii) and 5.19(4)(d)(i) of the Regulations. The novel relief was being sought on the presumption that some aspects of reg 5.19 are “jurisdictional facts”.
It was submitted that a jurisdictional fact is a criterion which should be satisfied enable the exercise of statutory power: (see; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [28]). Thus, “the existence of a jurisdictional fact is a condition precedent to the valid exercise of power”: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at [43]).
The first respondent submitted that it was an error by the Nominator to assert that the requirements of the Regulations under 5.19(4) are jurisdictional facts. This is because in instances where vernacular such as “opinion” or “satisfaction” are drawn on, Parliament intends for it not to be a jurisdictional fact: (see; Wilkie v The Commonwealth [2017] HCA 40; (2017) 263 CLR 487 (“Wilkie”) at [98]; Ali v Minister for Home Affairs [2020] FCAFC 109 (“Ali”) at [42]).
There was nothing in the language of reg 5.19 – leading to reg 5.19(4)(a)(ii) and reg 5.19(4)(d)(i) – which suggested that the “absence or presence of the fact will invalidate action under the statute”: (see; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [37]).
Furthermore, reg 5.19(4)(a)(ii) and reg 5.19(4)(d)(i) are one element within the broader tapestry of a lengthy sub-criteria. The Regulations did not suggest that the Tribunal should first be convinced that reg 5.19(4)(a)(ii) and reg 5.19(4)(d)(i) were fulfilled before it could make any other inquiries.
MATERIALITY
The first respondent contended that materiality arose in two chief areas: firstly, the Tribunal made a decision based on two separate findings with regard to the Regulations, and following that, the Nominator must succeed in both those arguments; (see: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [41]).
Secondly, materiality arose with respect to the statutory construction exercise in ground one. On this latter point, the first respondent claimed that the Nominator was required to demonstrate that the error in relation to r 5.19(4)(a)(ii) was material because there was no evidence that the applicant was capable of satisfying r 5.19(4)(h)(i).
Based on these reasons, the first respondent submitted that the declaratory relief sought by the applicant should be rejected.
CONSIDERATION
Counsel for the Nominator conceded that as a result of the Tribunal reaching its conclusions based on separate findings in respect of reg 5.19(4)(a)(ii) and reg 5.19(4)(d)(i), in order to succeed, the Nominator must succeed in challenges to both findings; (see: Hossain v Minister for Immigration and Border Protection [2018] HCA 42 at [41]).
The first issue for consideration is the correct statutory construction of reg 5.19(4). Regulation 5.19(4), as it was then relevantly provides, (with emphasis added):
5.19 Approval of nominated positions (employer nomination)
…
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
…
(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
…
(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;
(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).
Grounds 1-3, 8 and 9 challenge the Tribunal’s findings under reg 5.19(4)(a)(ii). The issue is whether the Regulation merely requires a Nominator employer to assert in the application that “there is a need for the nominator to employ a paid employee in the position under the nominator’s direct control” or is the Tribunal entitled to assess whether there is a proper basis for the assertion. Put another way, must there be a qualitive assessment of the requirement or is it sufficient to merely assert a need? This is a question that the Tribunal acknowledged there is some uncertainty about at [45] and [46] of its decision.
The Tribunal found at [46] that the other sub-regulations in reg 5.19(4) were expressed as requiring a qualitive assessment rather than a mere procedural assessment. Having done that the Tribunal found that reg 5.19(4)(a)(ii) was satisfied “if the nomination application lodged by the applicant (the nominator) sets out why it believes it has a need for a paid employee in its business”. The Court interprets this to be that the Tribunal found it did not need to conduct an evaluative exercise in relation to reg 5.19(4)(a)(ii). All that was required was a procedural assessment.
Notwithstanding this finding at [48] the Tribunal proceeded to assess the financial and other information before it and concluded at [49] that:
In the absence of persuasive and collaborative evidence to support the applicant has identified a need to employee a paid employee to work in a position under the direct control, the Tribunal finds the requirement in r5.19(4)(a)(ii) is not met and therefore the applicant does not satisfy r5.19(4)(a).
In the Court’s view the Tribunal’s finding at [49] is inconsistent with the finding at [46]. No evaluative exercise was required at that point. A careful reading of reg 5.19(4) makes it clear that the regulation sets up a series of tests that need to be cumulatively satisfied. The first test (r5.19(a)) is that ‘the nomination is made in accordance with sub regulation (2)’ and second ‘identifies a need for the nominator to employ a paid employee…’
In the Court’s view the identification requirement at this point of the consideration, is an objective test and does not require at this point any evaluative exercise to be undertaken in relation to the ‘need for an employee’. A clear statement as to the need will suffice to meet reg5.19(4)(a)(ii). Accordingly, the Tribunal undertook an incorrect analysis at the first stage of its consideration.
In coming to this conclusion, the Court is comforted by the clear requirement later on in the regulation at 5.19(4)(h)(ii)(B) that the Minister needs to be satisfied that “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control.” It is under this sub regulation that a qualitative evaluation needs to be undertaken but not before. It would be superfluous for an evaluative exercise as to need to be required to be undertaken at 2 points in the process.
Having reached this conclusion, the Courts needs to go further and consider whether the second evaluation as to the ‘need’ for the employee was undertaken correctly. The applicant submits that reg 5.19(4)(a)(ii) and reg 5.19(4)(d)(i) create jurisdictional facts such that the Court is empowered to undertake a review as to the existence of those facts. The Court does not accept this assertion.
Where the statute uses subjective language such as ‘opinion’ or ‘satisfaction’ the particular matter cannot be the subject of a ‘jurisdictional fact (in the sense of an ‘objective jurisdictional fact); (see: Wilkie at [98]; Ali at [42]) .
Regulation 5.19(4) does not use subjective language and is in positive terms stating that “The Minister must, in writing, approve a nomination if’ certain things are satisfied. However, the regulation is itself subject to s 65(1)(a) of the Act which provides that only if the Minister is ‘satisfied’ that all other criteria set out in s 65(1)((a)(i) – (iv) will the visa be granted.. If not so satisfied, the Minister is to refuse the grant of the visa: s 65(1)(b).
The Court is satisfied that reg 5.19 must be read in conjunction with s 65, such that reg 5.19 does not create jurisdictional facts that the Court is required to be satisfied of the existence of those facts. The question of whether the visa applicant satisfies the visa criteria is not an objective jurisdictional fact as it requires the subjective question of the Ministers ‘satisfaction’.
Grounds 4, 5, and 7 raise the issue as to whether the Tribunal erred by considering the Nominator’s financial capacity to determine if the Nominee would be ‘employed on a full-time basis for at least 2 years’. This contention appears to be that there is no requirement under reg 5.19(4)(d)(i) to demonstrate financial capacity.
The Court is satisfied that the Tribunal correctly identified the need to consider the capacity of the nominator to employ the nominee into the future. It was not limited to a consideration only on the basis of the current financial state of the nominator.
The applicant contends that the assessment by the Tribunal that the nominator had not provided any verifiable information about its financial capacity involved error as there is requirement for a qualitative assessment at the first stage under reg 5.19(4)(d)(i).
Even if the Court accepts that there was no need for a qualitative assessment at this point of the proceedings, the Tribunal was required to consider the genuine need for the nominator to employ a paid employee in the position pursuant to reg 5.19(4)(h)(ii)(B).
Given the Tribunal’s findings in relation to reg 5.19(4)(a)(ii), the Court is satisfied it was inevitable that the Tribunal would have found that reg 5.19(4)(h)(ii)(B) was not met; (see: Pokharel v Minister for Immigration and Border Control [2016] FCAFC 34 at [50] – [51]). As a result, any error in relation to reg 5.19(4)(d)(i) is not material in that it would not have affected the overall outcome of the review.
Accordingly, these grounds have no merit.
CONSIDERATION – THE NOMINEE MR SINGH’S APPLICATION
As the Court has found against the Nominee, Coolah Supermarket Pty Ltd, the application for judicial review by Mr Singh must also be dismissed. This is common ground between the parties.
DISPOSITION
Both applications should be dismissed. The Court will hear from the parties as to the issue of costs.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 12 April 2024
SCHEDULE OF PARTIES
SYG 807 of 2020 Applicants
GURFATEH SINGH BAJWA
Fourth Applicant
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