DDD Indian Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 665
Federal Circuit and Family Court of Australia
(DIVISION 2)
DDD Indian Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 665
File number(s): BRG 267 of 2021
BRG 268 of 2021Judgment of: JUDGE VASTA Date of judgment: 5 August 2022 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth): reg 5.19, cl 457.223(4),
Cases cited: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 5 August 2022 Date of hearing: 5 August 2022 Place: Brisbane Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Harnett Lawyers Counsel for the First Respondent: Ms Hoiberg Solicitor for the First Respondent: Minter Ellison Lawyers ORDERS
BRG 267 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDD INDIAN PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The Application filed on 25 June 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,583.00.
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).
ORDERS
BRG 268 of 2021 BETWEEN: GAURAV MEHANT
First Applicant
NEHA MEHANT
Second Applicant
KAPISH MEHANT
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
5 August 2021
THE COURT ORDERS THAT:
1.The application filed on 29 June 2021 be dismissed.
2.There be no order as to costs.
[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
(Ex Tempore)JUDGE VASTA
In 2017, at the Gold Coast, DDD Indian Proprietary Limited (“DDD”) operated two restaurants that served Indian cuisine. One was at Palm Beach and the other was at Miami. The nominee, Mr Gaurav Mehant, worked for the Applicant.
Mr Mehant needed to have an approved nominator for him to comply with the requirements for his work visa. DDD needed to have that approved nomination before it was that Mr Mehant could keep working with them. The delegate for the Minister refused to grant the nomination for DDD and, therefore, the application of Mr Mehant also failed.
Both DDD and Mr Mehant took their matters to the Administrative Appeals Tribunal (“the AAT/Tribunal”).
The AAT, in separate decisions, affirmed the decision of the delegate. The success of Mr Mehant’s application rises or falls on the success of DDD’s application. So whilst it is that I have heard both applications at the same time, I have concentrated on the application made by DDD as being the application that determines the fate of both applications.
On 24 May 2021, the AAT affirmed the decision to refuse the nomination of DDD. On 25 June 2021, DDD asked this Court to review that decision.
The nominee, Mr Mehant, had been working at an establishment called the Tandoori Place on Miami Pty Ltd. It would seem that he had been working with that employer from 2013 as a cook. What occurred is that The Tandoori Place allowed the lease on the premises to expire. The Tandoori Place then ceased trading.
The Applicant, DDD, submitted to the Tribunal that what they did is that they took over the business of The Tandoori Place. In effect, they ran an Indian restaurant in place of The Tandoori Place. The Applicant, DDD, claimed that they entered into their own lease for the premises. Their argument was that they then, in effect, took over the employment of all of the employees of The Tandoori Place. That would include the nominee, Mr Mehant.
The Tribunal was not satisfied that this was what had occurred. The Tribunal asked the Applicant for the contracts that would show that this had occurred. That information was not given to the Tribunal, notwithstanding that the Applicant said that they would give that information to the Tribunal and were given a generous amount of time within which to present that information to the Tribunal.
The Applicant said that the employment of the nominee by The Tandoori Place should, for all intents and purposes, be regarded as if it were employment with the Applicant because of the taking over of the contracts. The Tribunal did not accept this.
The Tribunal noted that what it had to be satisfied of was that the nominee had been employed fulltime in Australia in the position for which he holds a subclass 457 visa for at least two of the three years preceding the nomination. Even on the best scenario for the Applicant, the nominee had only been employed for a number of months. He could not have met that criteria.
The requirement of regulation 5.19(3)(c) of the Migration Regulations 1994 (Cth) was not met according to the Tribunal.
The Tribunal may have granted the nomination if the Applicant had been able to satisfy another criterion, and that was if there were a genuine need to employ the nominee; pursuant to regulation 5.19(3)(i). The Tribunal said that, having regard to the oral evidence of, as it were, the controlling mind, of the Applicant, it had not been satisfied by the Applicant that there was a genuine need for DDD to employ Mr Mehant as a paid employee to work in the position under the DDD’s direct control. Therefore, that requirement was not met.
As those two requirements were not met, the Tribunal affirmed the decision under review to refuse the nomination.
There are two grounds of this application. They revolve around the proper construction of regulation 5.19. Regulation 5.19 (3)(a), says that:
The Minister must in writing approve a nomination if the application for approval:
(i) is made in accordance with sub regulation (2).
(ii)identifies a person who holds a subclass 457 visa granted on the basis that the person satisfied the criteria and in subclause 457.2234(2) and
(iii)identifies an occupation in relation to the position that is (A) listed in ANZSCO and (B) has the same four digit occupation unit group as the occupation carried out by the holder and
(iv) identifies a need for the nominator to employ the person as a paid employee to work in the position under the nominator’s direct control.
Regulation 5.19 (3)(c), says that:
(c) either:
(i) both of the following apply:
(A)In the period of three years immediately before the nominator has made the application the holder of the subclass 457 visa identified in subparagraph (a)(ii) has:
(i)held one or more subclass 457 visas for a total period of at least two years and
(ii)has been employed in the position in respect of which the person holds the subclass 457 visa for a total period of at least two years not including any period of unpaid leave.
The Applicant argues that the Tribunal has misinterpreted the effect of both 5.19(3)(a)(iv) and 5.19(3)(c)(i)(A)(I)(II).
In looking at whether there has been a misinterpretation, one has to understand that there are two terms that are used in these regulations. One is position and the other is occupation.
An occupation, according to 5.19(3)(a)(iii), is an occupation that is listed in ANZSCO and has a four digit occupation group code. A position is something a little different, though it can be exactly the same.
Counsel for the Applicant submitted that one could look at the occupation as being a job whereas a position is the office incorporating that job; so that the occupation is the general description and the position is the specific description. It may be that a job and an occupation are exactly the same.
In this case the Applicant argues that the “occupation” of chef and the “job” of chef are one and the same. In fact, if one looks at the application that had been submitted by the Applicant at CB 20, it shows that the description given for the position and the occupation both have the word “cook” as the reply in the question asked in the standard application.
In looking at regulation 5.19(3)(c)(i)(A), the position is the key aspect here. What the Tribunal had to be satisfied of was that Mr Mehant had been employed in the position in respect of which he holds the subclass 457 visa.
The Regulations have the clause 457.223(4), being headed Standard Business Sponsorship. The clause reads:
(4)The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act,
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; And in
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba) either:
(i)the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph or
(ii) each of the following applies.
(A) the applicant is employed to work in the nominated occupation;
(B) If the person who made the approved nomination met paragraph 259(d) or (e) or paragraph 2.68(e) or (f) in a person’s most recent approval as a standard business sponsor the applicant is employed to work in a position in a person’s business or in a business of an associated entity of a person and
(C) If the person who made the approved nomination meet paragraph 2.59(h) or paragraph 2.68 (i) in the person’s most recent approval as a standard business sponsor the applicant is employed to work in a position in the person’s business.
The nominee did hold a subclass 457 visa but the nominator (DDD) was not the employer. The employer was whatever entity was running The Tandoori Place.
The position is the position of which the application is speaking. It cannot be a different position. I gave the example during the course of the hearing that if a nominator (for a position of “cook”) were, for example, KFC and the nominee had been working under a 457 visa at McDonald’s (in a position of “cook”) for two of the past three years, that even though the nominee may have been in the occupation of “cook” the position of “cook” is different. The position that the nominator, in that example, would be looking at is the position of cook with KFC and the position that the nominee had held his 457 visa would be cook at McDonald’s.
The position must be, in my view, a position held with the same entity who is making the nomination.
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, Mortimer J, with whom the other judges, Jagot and Bromberg JJ, agreed, said this at paragraph 87:
87. In his written submissions, the Minister submits (at [37]):
Clause 187.233(1) of Schedule 2 imposes a single requirement, albeit one that is expressed in two paragraphs for ease of reference. Thus, the provision could have been expressed, and should be understood as follows:
(1)The position to which the applicant relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19[sic(4)(h)(ii)…in relation to which the declaration mentioned in paragraph 1114C(3)(d) was made in the application for the grant of the visa.
88. That submission should be accepted. In my opinion, the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision, the employer nomination from Harrico had been refused by the Minister. The words in clause 187.233: “Position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words referred to an employer nomination which was, in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
The Applicant argues that Her Honour’s observations in paragraphs 87 and 88 only relate to cl 187.233. I cannot accept that submission. It seems to me that the legislators intended for there to be a consistent application of words such as “occupation” and “position” throughout these regulations and clauses. It would create havoc if one defined “position” in clause 187 differently to how one defines “position” in reg 5.19.
The Applicant argues that there is no need for continuity of employer, simply continuity of occupation and continuity in position. This would mean that “position” would relate to the “occupation” generally and not be tied to the particular employer. The Applicant argues that this would be in keeping with the need for the regulations and would reflect the raison d’etre of the skilled migrant program.
As attractive as that argument is, I do not see that it has any basis in authority. Because of this, I do not see that there is any jurisdictional error in relation to this aspect that has been illustrated by the Tribunal’s reasoning.
The Applicant had originally argued that what had been said in Singh (Supra) could be distinguished and that I was not bound to follow it. However, I am not prepared to find that the decision is distinguishable. For those reasons ground two fails. I should say ground one had been abandoned so that was ground two.
Ground three was:
3. The Tribunal erred in its finding that it was not satisfied that the requirement of Migration Regulation 5.19(3)(i) was met
Particulars
(a) There was no rational basis put forward by the Tribunal for its finding that it was not satisfied that the applicant had demonstrated that there was a genuine need for it to employ the nominee, as a paid employee, to work in the position of cook under its direct control at Palm’s Indian Kitchen.
As I had earlier said, the application for approval was required to identify a need for the nominator to employ the person as a paid employee to work in the position under the nominator’s direct control.
During the course of the AAT hearing, the Tribunal heard that the factual situation was that the nominee had worked at the Miami Kitchen for some time but, because of other circumstances, the Miami Kitchen had to temporarily close. There were renovations and discussions about the lease still occurring. The nominee was then working at the Palm Beach restaurant under the control of DDD. The Tribunal said at paragraph 31:
The fact is that the nominee is not currently employed in the role for which he was nominated at Miami’s Indian kitchen but is employed in a similar role within the applicant’s business at Palm’s Indian Kitchen.
The Tribunal then looked at how this came about. The Tribunal said, at paragraph 32, that Mr Kant, who is the operating mind of DDD, gave divergent evidence in relation to the employment of the nominee. He had informed the Tribunal that the nominee was temporarily moved to Palm’s Indian Kitchen until Miami’s Indian Kitchen reopened but then indicated that the nominee would be kept at Palms Indian Kitchen as he needs two cooks there.
At paragraph 33, the Tribunal said:
33. On the basis of the oral evidence of Mr Kant the Tribunal does not accept that the closure of Miami’s Indian Kitchen is temporary. Mr Kant told the tribunal he does not currently have a lease on those premises and does not have any prospective lease albeit he told the Tribunal he is in verbal contact with the lessor. Mr Kant told the tribunal he anticipates that the previous location would again be ready in a few months.
34. Conversely, Mr Kant told the Tribunal in written submissions there was a need for two cooks at Palm’s Indian Kitchen due to a “high need” and the coincidental departure of another cook, Mr Singh, around the same time. At the hearing Mr Kant also asserted there was a requirement for the nominee to move to Palm’s Indian Kitchen due to his own medical issues and abdominal surgery which prevented him from undertaking the duties of chef at Palm’s Indian Kitchen. Later Mr Kant told the tribunal he never worked as a full-time chef and split his time as chef and front of house.
The Applicant contends that this is a misapprehension, or a misquoting, or a misunderstanding, of the evidence that was given. The Applicant has produced a transcript of the AAT hearing. If one goes to the Court Book, one sees, at CB 38, the employment contract. The employment contract, dated 11 May 2017 and headed Letter of Engagement, says:
I am pleased to offer you employment in the position of cook with us at DDD Indian Proprietary Limited trading as Miami’s Indian Kitchen, the employer, on the terms and conditions set out in this letter.
This was signed by the nominee on 22 May 2017. It was also signed by Mr Kant. On 17 November 2017, an almost identical letter of engagement was executed. In that opening paragraph the words:
I am pleased to offer you employment in the position of cook with us at DDD Indian Proprietary Limited (the employer) on the terms and conditions set out in this letter. [this had the position at 1.4]
You will be required to perform your duties at Miami, Queensland or elsewhere as reasonably directed by the employer.
I should add that was also in the 11 May 2017 letter.
This letter, the November letter, was signed by the nominee but not dated and it seems to be signed by Mr Kant as well. The reproduction of that page is somewhat worse than the previous pages. The Applicant argues that the nominee would be employed wherever it was that Mr Kant directed him to go.
At CB 200, there is a letter dated 12 February 2021 sent to the AAT headed “Re: Confirmation of Employment of nominee Mr Mehant”. In the body of the letter there was this paragraph:
I wish to confirm that the nominee is employed in the position of cook with DDD Indian Proprietary Limited. The nominee’s usual place of employment was at Miami’s Indian Kitchen located at 2035 Gold Coast Highway.
There is then a tribute to the nominee’s skill. The next paragraph reads:
On 31 January 2021 Miami’s Indian Kitchen temporarily closed as the building is undergoing refurbishment as directed by the body corporate. From my understanding the building is approximately 40 years old and restructures have been deemed required.
I, therefore, offered the nominee continued fulltime employment as a cook at Palm’s Indian Kitchen located at 1156 Gold Coast Highway, Palm Beach, as I consider him to be a valuable employee and sought to keep his ongoing work within our business. The offer to move to Palms Indian Restaurant is additionally required as there is a high need for a cook at this restaurant especially given one of the cooks resigned of their own accord to pursue other interests. Palm’s Indian Kitchen is a popular local restaurant and is often very busy.
When Mr Kant gave evidence at the Tribunal hearing, he said a number of things. The transcript, that has been annexed to the affidavit of Mr Hartnett, shows that, at line 524 of the transcript, Mr Kant said:
Yes, yes, because at the other place I have only one chef there before – before like 20 December ’20. I was able to work myself. Now, I have abdominal surgery in – in last year so not that much physically fit to do the hard job in the kitchen. So I have them – did them in the kitchen and I (unintelligible) the management offsite as well so I need at least two chefs there. So one is already working with me and the second one was gone so I – I took him there in Palm Beach.
He said then at line 566:
Mr Kant: Yes, Palm Beach there is – there is one cook it’s Rohat Shalmer and another Manjit Singh (unintelligible) in February this year and that’s why I need one person there in Palm Beach. Yes, yes. I am – I am qualified chef and working as a chef maybe more 26 or seven years and I were – I had some surgery in September last year in ’20 so after that I’m not that much physically fit so doctor don’t allow me to do some hard job in the kitchen. I can’t lift more than five kilogram so they don’t allow me to (unintelligible) like carry more than five or seven kilo. This was my second abdominal surgery. First, I had in 2015. It was not that much bad but the surgery I had in 2020 it’s a big surgery, abdominal surgery, so that’s why I’m not that much fit to do like – like hard job in the kitchen so that’s why I need two chefs there, two cooks there.
He was asked what the difference between the two cooks do and why is there is a need for two cooks. He said:
Mr Kant: So, yes, two cooks are needed because in an Indian restaurant there is one curry cook and one tandoori cook. The tandoori oven is totally different and curry cook wear is totally different so one person can’t do both things. One person has to stay on the tandoor oven and one person has to stay on the curry – curry dishes on – on the curry oven. So at least minimum is two. Two cooks are required in the Indian restaurants.
At line 617, the AAT said to Mr Kant:
Member: Do you have anything to say to the concern the tribunal may have in relation to the dates in relation to the nominee’s transfer to the other restaurant? You ceased trading at one location on 31 January and at the same time, perhaps coincidentally, you required the services of another chef at Palm Indian at Palm Indian Kitchen. Why is that? Well, can you explain that coincidence in timing?
Mr Kant: Yes, I – the other cook there he was – he wanted to go before but I request him if he can stay with me just a couple of week or four or five weeks so – because I know that – that we are closing (unintelligible) in Miami and then the nominee will – is there for me to take in Palm Beach.
At line 1065 the AAT said:
Member: If I can just explain the issue, please… the concern the tribunal may have is that (Mr Kant) indicated that because of his surgery or medical conditions he was unable to work as he previously did and required two cooks but he has now recently told the tribunal he didn’t work as a fulltime chef prior to that surgery.
Interpreter: I used to help with both areas in the kitchen as they required it. I never was as a fulltime chef. At that time also there were two chefs working in the kitchen.
The Tribunal said this at paragraphs 35 to 38. 35:
35.The applicant was invited to provide post-hearing submissions in relation to the genuine need to employ the nominee at Palm’s Indian Kitchen and did not do so. The applicant sought an extension to provide post-hearing submissions notwithstanding 21 days was provided to do so. The request for an extension was refused. The applicant indicated he was waiting for information from third parties and, more recently, specialist advice. The tribunal notes that Mr Kant operates Palm’s Indian Kitchen and information in relation to the genuineness of the position at Palm’s Indian Kitchen would reasonably be within the knowledge of Mr Kant and not third parties.
36.The tribunal finds the evidence of Mr Kant to be unreliable given the variances in his evidence. The tribunal finds that there is no genuine need for the nominator to employ the nominee as a paid employee at Miami’s Indian Kitchen as that restaurant is not operating and there was no reliable evidence before the tribunal as to when or if it may again do so.
37.Notwithstanding, the tribunal provided the applicant the opportunity to demonstrate a genuine need to employ the nominee as a paid employee at Palm’s Indian Kitchen. The applicant failed to do so despite having being invited to make post-hearing submissions.
38On the basis of the evidence before the tribunal, including the oral evidence of Mr Kant, the tribunal is not satisfied the applicant has demonstrated there is a genuine need for the nominator to employ the person as a paid employee to work in the position under the nominator’s direct control.
The Applicant says that it was simply just not open for the Tribunal to say, as they did, in paragraph 37, that there has not been demonstrated a genuine need to employ the nominee as a paid employee at Palm’s Indian Kitchen. The Applicant says that if one goes through what was said, the story unfolds that Mr Kant had always had two cooks at the Palm Beach restaurant. That one of them wanted to get going. Mr Kant knew that Miami Kitchen was going to close soon so he asked the second person to wait until Miami Kitchen closed and then that person would go and the nominee could come from Miami Kitchen to Palm Beach. The Applicant says that there was a need for two cooks because of the difference with the tandoor oven and the curry dishes, and because the evidence from Mr Kant was that they did need two cooks and they now had two cooks; therefore, he had demonstrated a genuine need.
The Applicant, in effect, said that the Court could ignore what was said about the abdominal surgery of Mr Kant, and what he used to do in the kitchen, because the proper context was that he would help out in the kitchen so that there was, in effect, two and a half cooks. But he can’t do that anymore, so, in effect, his own health issues and inabilities was not really part of the genuine need. And so, therefore, when one looks at all of the evidence, it simply wasn’t open to find as the Tribunal did.
I can’t agree that the conclusion was not open. It may be that if I, or another person, were in the shoes of the decision-maker, a different conclusion may have been reached, but that is not the point. If that were the point, then this ground would be nothing more than an exercise in an impermissible merits review.
When one looks at the evidence of Mr Kant, it is well and truly open to say that he was equating the fact that he needed the nominee to be at Palm Beach with his inability to do the chef job properly because of his abdominal surgery; and that he would have been able to be the second chef (and that he had been the second chef) but, because of the surgery, he could now no longer be the second chef. However, he had also said that he was never a fulltime chef and that he was someone who split his time between the kitchen and front of house.
There were, indeed, inconsistencies in the evidence. There were matters upon which the Tribunal could find that Mr Kant’s evidence was unreliable and reject it.
It is not a case where the evidence, as put by the Applicant, was the only inference that one could take from the evidence before the Tribunal. Because it was open for the Tribunal to find as it did in paragraph 37, no jurisdictional error is illustrated.
For these reasons I dismiss the application with costs.
In this matter I am satisfied that there should be one costs order that encompasses both matters, even though I will necessarily need to make separate costs orders given that there are two applications and I have dismissed both.
I am of the view that the Minister is entitled to costs in the DDD Indian matter and I award costs in the scale amount of $7,853.00. With regard to the Mehant matter, I decline to make an order for costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 3 November 2022
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