Elegant Beauty & Brows Pty Ltd v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1330
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Elegant Beauty & Brows Pty Ltd v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1330
File number(s): BRG 587 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 6 December 2024 Catchwords: MIGRATION – Employer Nomination Regional Sponsored Migration Scheme Visa Subclass 187 Direct Entry – judicial review of a decision of the Administrative Appeals Tribunal – error of law – procedural fairness – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth) ss 140GB, 360
Migration Regulations 1994 (Cth) sch 2, cl 187.233, reg 5.19, 5.19(4), 5.19(4)(h)(ii)(C)
Cases cited: BKS15 v Minister for Immigration [2019] FCCA 359
Mohamud v Minister for Immigration [2019] FCCA 1538
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 25 November 2024 Date of hearing: 25 November 2024 Place: Brisbane Solicitor for the Applicant: Mr Sarpong - Kave Law. Counsel for the First Respondent: Mr Byrnes Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs. ORDERS
BRG 587 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELEGANT BEAUTY & BROWS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $8371.30.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”) to refuse the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).
These proceedings were heard concurrently with the related proceedings in BRG559 of 2023.
BACKGROUND
Application for Employer Nomination
On 30 January 2018, Elegant Beauty and Brows Pty Ltd (“the applicant”/ “Elegant Beauty”) applied for an Employer Nomination for a Permanent Appointment in the Regional Sponsored Migration Scheme Visa Subclass 187 Direct Entry for the nominated position of Beauty Salon Manager, Occupation: Hair or Beauty Salon Manager (ANZSCO 1421-14) (Court Book (“CB”) 1-105). Elegant Beauty nominated Rupa Dahal for the nominated position. On the same date, Ms Dahal applied for a Regional Employer Nomination (class RN) (subclass 187) Direct Entry visa (“the employee visa application”).
On 13 August 2019, the delegate refused the nomination application on the basis that the nomination did not meet the requirements in reg 5.19(4)(h)(ii)(D) of the Regulations because the tasks to performed in the position did not correspond to the tasks of the nominated position (CB 107-124). Consequently, the delegate refused the employee visa application because the delegate was not satisfied that cl 187.233 of Schedule 2 of the Regulations was satisfied given that the delegate had refused the nomination application. It is that decision of the delegate which is the subject of the related proceedings in BRG559 of 2023.
Application for review in the Administrative Appeals Tribunal
On 2 September 2019, Elegant Beauty applied to the Tribunal for review of the delegate’s decision (CB 128-129). Elegant Beauty appointed a registered migration agent to represent it and act as its authorised recipient (CB 129; 164-169).
On 8 October 2019, the Tribunal acknowledged receipt of the application for review and advised the applicant that should it wish to provide material or written arguments for the Tribunal to consider, it should do so as soon as possible (CB 143-144).
On 20 September 2022, the Tribunal wrote to the applicant advising that for the nomination of the position to be approved, the Tribunal must be satisfied that all the relevant criteria in reg 5.19 of the Regulations are met at the time of its decision. The Tribunal invited the applicant to give information in writing addressing the criteria in reg 5.19(2) and (4). Relevantly to these proceedings, the Tribunal requested information with respect to the requirement in
reg 5.19(4)(h)(ii)(C) of the Regulations.
On 18 October 2022, the applicant provided to the Tribunal a written submission (CB 185-197) and supporting documents (CB 198-574). With respect to the requirement in
reg 5.19(4)(h)(ii)(C) of the Regulations, the applicant provided the following documents:
(a)A letter from the Regional Certifying Body dated 10 January 2018 and attached Form 1404 (CB 550-552);
(b)An advertisement for the position on JobSearch on 14 September 2017 to 5 October 2017 (CB 553-554);
(c)Advertisements for the position in the Tweed Daily News newspaper on 23 September 2017 and on 27 September 2017 (CB 559-560);
(d)An email from TURSA recruitment services dated 5 October 2017 (CB 561-563); and
(e)A summary by the applicant of domestic recruitment efforts for advertising placed between September-October 2017 (CB 564-565).
On 20 March 2023, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the information before it alone (CB 575-586).
On 13 April 2023, Mr Eric Powvalla, a director of Elegant Beauty, attended the hearing on behalf of the applicant. The applicant was assisted by its migration agent (CB 621-623).
After the hearing, on 23 June 2023, the Tribunal wrote to the applicant advising that for the Tribunal to approve the nomination it must be satisfied that all the requirements of reg 5.19(4) of the Regulations and s 140GB of the Actare met at the time of its decision. The Tribunal invited the applicant to provide the information in writing by 7 July 2023 (CB 633-641).
On 7 July 2023, the applicant provided a written submission to the Tribunal in response to the Tribunal’s request for information (CB 643-647).
On 13 July 2023, the Tribunal wrote to the applicant advising that it was considering the requirement for approval in reg 5.19(4)(h)(ii)(C) of the Regulations and invited the applicant to provide any further information it considered would satisfy that requirement (CB 650-654).
On 25 July 2023, the applicant’s migration agent provided to the Tribunal a written submission and copies of advertisements for the position placed on Workforce Australia on 21 July 2023; on Seek on 21 July 2023; and on Indeed.com on 21 July 2023 (“the July 2023 advertisements”) (CB 655-670).
On 25 August 2023, the applicant provided to the Tribunal a written submission regarding applications received in response to the July 2023 advertisements (CB 672-723).
On 18 September 2023, the Tribunal affirmed the delegate’s decision. The Tribunal gave written reasons for its decision (“Decision”) (CB 734-745).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal identified that the issue was whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4) of the Regulations and stated that for the nomination to be approved all requirements must be met ([8]). The Tribunal then went on to state that it had identified the issue of whether the applicant had complied with reg 5.19(4)(h)(ii)(C) of the Regulations: 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 ([9]).
The Tribunal made the following findings on the evidence:
(a)Elegant Beauty was established on 27 July 2017: ([10]; [34]);
(b)The business operates nine beauty salons in New South Wales and Queensland some of which are under the control of a beauty manager: ([10]);
(c)The applicant employed Ms Dahal in its Tweed Heads salon from July 2017 in the position of beautician: ([18]; [34]);
(d)On 16 September 2017 and 23 September 2017, the applicant placed advertisements in the newspaper, Tweed Daily News, for the position of beauty salon manager at its Tweed Heads salon (“the position”). The terms of the advertisement described the position as “busy and fast paced”; that required qualifications were “must have a relevant diploma qualification or at least three years relevant work experience” and that “we specialise in threading, eyelash extensions and perming, henna, tinting, Indian head massage”. The advertisements did not provide details of the salary or salary range: ([11]; CB 559-560);
(e)The applicant also advertised the position on the internet described by the applicant as Jobsearch for a period from 14 September 2017 to 5 October 2017. The advertisement included the job title, that it was a full-time permanent position, a description of the salon’s specialities, the responsibilities of the role, duties, experience and the skills required. The advertisement did not include the salary or salary range: ([12]; CB 553-554);
(f)A spreadsheet summary provided by the applicant stated that 10 candidates had applied for the position with all but one candidate responding to the internet advertisement. The summary identified the candidates by reference to the date on which they responded to the advertisement and their postcode. The summary identified that candidates who were found unsuitable were unsuitable because they “do not possess the required skills through qualification or experience”. The applicant had not retained the candidates’ resumes for privacy reasons: ([13]-[15]; [17]; CB 564-565);
(g)Other evidence of advertising for the position was an email from an employment and training agency called TURSA which, in an email to the applicant’s then migration agent on 5 October 2017, stated that “this position has been on our Job List for over 3 weeks however, there have been no referrals for the role. I will remove it from our list”. There was no report of the actions of TURSA provided to the Minister or the Tribunal: ([19]; CB 561-563);
(h)No candidates were interviewed. Ms Dahl was the successful applicant and was appointed to the position: ([35]);
(i)By letter dated 10 January 2018, Regional Development Australia – Northern Rivers New South Wales provided a Regional Certifying Body advice Form 1404. The letter stated that – “we are satisfied that your client’s application meets the requirements of reg 5.19(4), in that there is a need for the paid employee; the nomination position cannot be filled by an Australian citizen and the terms and conditions of employment are adequate”: ([23]; CB 550-552);
(j)The Tribunal was not given the information on which the Form 1404 was based: ([23]);
(k)After the hearing, on 7 July 2023, the applicant, in a written submission to the Tribunal (in response to the Tribunal’s request for information dated 23 June 2023) provided the following response which the Tribunal set out in full its reasons ([31]; CB 644-647):
1. The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area
I confirm that since hiring the nominee, Rupa Dahal, I have not advertised for a manager for the Tweed Heads South salon, for the reason that Rupa is in the position. I confirm my advice in my submission dated 10 October 2022, that I have never had a suitably qualified and experienced Australian citizen or permanent resident apply as a result of any advertisement for a Salon Manager in any of my salons throughout Australia. I would hire locally if I could but we don’t attract suitable applicants.
I confirm that the problem is not restricted to Salon Managers – I cannot find experienced Beauty Therapists to work in our salons. For this reason we do the best we can with the staff we have. We find that Indian student visas holders are generally the only people who wish to work in our Salons. We don’t discriminate – we would hire anyone and would prefer Australian citizens and permanent residents, but it is very rare to find any who wish to work in the positions we have available.
I have attached evidence of recent advertisements placed by Rupa for Beauty Therapists, from which we have received no responses.
I confirm that I continued to have the genuine need to engage Rupa on a full-time ongoing basis as the salon manager in Elegant Beauty & Brows, Tweed Heads South.
2. For each and every candidate applying for the position of Hair or Beauty Salon Manager ANZSCO occupation code 142114, the following information in writing:
(a) the full content of all candidates CV or resume provided to the applicant, including a candidate who submitted a CV or resume either before or after the advertisement and whose name is not on the list provided by the applicant. Residents, current occupation, qualifications and experience;
I confirm that I do not retain copies of CVs or resumes for applicants who applied for the position, as the advertising took place in 2017. The table that I provided to the Tribunal with my submission of 18 October 2022 contains an accurate reflection of the qualifications and experience of each applicant received, and lists reasons why each applicant was not suitable. Note that Rupa was applicant 4, and was our only applicant with skills and experience even remotely relevant to the role. I note that the table confirms postcode residence, qualifications, experience and why they were not considered suitable.
There were no further applications received either before or after the advertisement, and if there were any suitable applicants I would have at least spoken to them, with a view to employing them.
(b) the reason for the candidates unsuitability including the applicants Notes concerning the reasons for the unsuitability.
The only records that I retain is evidence of the advertising relied upon is the information contained in the table referred to above, which lists my notes confirming reasons for the unsuitability.
(c) whether each and every candidate was interviewed, emailed or telephoned concerning further information sought by the applicant.
I confirm that I did not interview, email or telephoned each and every candidate, as they were clearly not suitable for the position. I refer the Tribunal to the table confirming details of each applicant, and submit that it is reasonable to not contact applicants who have no relevant qualifications or experience.
(d) whether a Specified Regional Certifying Body located in the same State or Territory as nominated position has provided advice that:
(i) the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and
(ii) there is a genuine need to employ the nominated person is paid employee to work in the nominated position under the applicant’s direct control; and
(iii) the position cannot be filled by an Australian citizen or permanent resident living in the same area.
(iv) local job advertisements for the nominated position.
(v) information provided to or received by the RCB.
I attach evidence as submitted with my letter of 18 October 2022 confirming that the Regional Development Australia, Northern Rivers, the specifying Regional Certifying Body for Tweed Heads South, provided positive advice in relation to the above points on 10 January 2018.
3. The question and response is irrelevant to the issue under review.
4. The question and response is irrelevant to the issue under review.
5. Information about the advertisement not including the proposed salary of the successful applicant.
The advertising was genuinely conducted and was conducted in line with the requirements of Regional Development Australia, Northern Rivers who did not at the time impose a requirement to include a proposed salary. From my experience advertising unsuccessfully for Salon Managers on numerous occasions, I don’t think I would have found a suitable applicant even with a salary specified.
I confirm that over the 10 years that we have operated the business, that I have always struggled to fill skilled Salon Manager positions. I currently have 2 vacancies for Gold Coast based stores which I am unable to fill.
6. Information from the advertiser as to the total number of candidates. Internet recruitment sites include reports on a number of reviews and candidates who have applied.
I confirm that given the advertising took place in 2017, we have been unable to obtain information from Jobsearch in relation to the number of reviews all candidates who applied. I again confirm that the summary table provided is an accurate reflection of the qualifications and experience of the applicants who applied.
I confirm my previous submission is that our application meets the requirements for approval and would appreciate the assistance of the Tribunal in finding our favour. I do not believe we could replace Rupa from the local labour market, on which basis if we were unable to retain Rupa in the position we may be forced to close the Tweed Heads South Salon.
…
Yours faithfully
Eric Powvalla
Owner/Director
(l)After the hearing, on 25 July 2023, the applicant’s migration agent (in response to the Tribunal’s request for information dated 13 July 2023) provided copies of advertisements for the position placed by the applicant in Workforce Australia and Indeed.com on 21 July 2023. The advertisements provided a salary range of $60,000 - $70,000.00 per annum. The cost of the advertising was $357.50: ([25]; [28]; [29]; [32] CB 657-671);
(m)The migration agent told the Tribunal that ([32]; CB 657):
Noting that the regulation 5.19(4)(h)(ii)(C) requirement that 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 is a time of decision requirement, and because from your invitation for information the inference is that you cannot make a decision favourable to the business, Eric has decided to readvertise in the format required by the Department of Home Affairs (DHA) in relation to new applications for subclass 482 and 494 visas.
In determining whether reg 5.19(4)(h)(ii)(C) of the Regulations applied, the Tribunal observed that the regulation provides no guidance as to the steps an applicant must or should undertake to satisfy that “no Australians are located in on near the applicant’s business”([36]) and that there is no “narrative” in the legislation as to the means of carrying out the exercise of “finding an Australian” ([38]).
The Tribunal stated ([37]) that the words “cannot be filled by an Australian citizen or an Australian permanent resident”:
“ … places on the applicant the obligation to undertake a course of action to investigate whether an Australian could fill the position. The applicant must be genuine in satisfying this criterion. Even more so if the applicant has employed a current employee, as is the case here. The Tribunal considers that an extra element is required when employing an existing or ‘earmarked’ candidate by ensuring the process is transparent.”
As to the means of recruiting, the Tribunal said that internet advertising is not specified but is the most used mode of recruiting and that other modes include newspaper advertising, engaging a recruitment agency, attending employment symposiums, attaching recruitment signage in strategic places including within the shopping centre, on Facebook and other communication media: ([38]).
The Tribunal said that a genuine attempt may mean making several internet advertisements, a selection of newspaper advertisements or in some instances engaging a recruitment employment service, employing Facebook or Indeed communications media and running a campaign for more than 21 days: ([45]).
As to transparency, the Tribunal said that transparency enables the Tribunal to better gauge the genuineness of an applicant’s attempts to recruit an Australian and in that regard observed that to simply state that the applicant is protecting the privacy of candidates is not a valid argument. The Tribunal said further that paying for internet advertisements would provide greater transparency as it would enable the production of a report of candidates who applied and corroborate the details provided (by the applicant) in the spreadsheet: ([39]).
In concluding that the requirements of reg 5.19(4)(h)(ii)(C) were not met, the Tribunal referred to the following matters ([40]-[49]):
(a)The applicant did not show a genuine attempt to fill the position with an Australian because:
(i)the advertisements ran for a relatively short period, about one month at most, using no-cost to low-cost advertising;
(ii)no information was given about the attempts made by TURSA to recruit;
(iii)the advertisement in the local newspaper was under the banner ‘Beauty Salon Manager’ in the job section of the newspaper and was brief providing no description of the duties to be undertaken or the type of qualification that may be needed;
(iv)describing the specialisation of the salon (threading, eyelash extensions and perming, henna, tinting and Indian head massage treatments) might be seen by prospective candidates as a limiting factor if they have no experience in those treatments;
(v)the advertisements had limited appeal because the salary was not given.
(b)The nomination application was made (in January 2018), identifying Ms Dahal for the nominated position, after advertising in a newspaper and placing an internet advertisement running for 21 days;
(c)Ms Dahal was selected for the position after being employed by the applicant for only a few months since mid-2017 as a beautician.
As to the readvertisement of the position (in July 2023), which the Tribunal noted was made after Ms Dahal has been in the position for at least four years, the Tribunal said it was not satisfied that the applicant will select the better candidate if it finds one. In that regard, the Tribunal referred to the fact that the applicant told the Tribunal (in its submission dated 7 July 2023) that since hiring Ms Dahal it had not advertised for a manager because Ms Dahal was in the position. The Tribunal concluded that it was not satisfied that the readvertising was genuine: ([49]).
The Tribunal concluded that it was not satisfied that the applicant genuinely cannot fill the position of beauty salon manager through the means used by it as presented in the evidence ([50]) and that accordingly the requirement in reg 5.19(4)(h)(ii)(C) was not met: ([51]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 13 November 2023. In support of the application, the applicant filed an affidavit affirmed by Eric Powvalla on 13 November 2023. The affidavit provides background information about Elegant Beauty and its efforts to make an appointment to the nominated position, annexed a copy of the Tribunal’s decision and the documents the applicant had submitted to the Tribunal. The applicant’s solicitor informed the Court that all those documents were contained in the Court Book.
On 22 December 2023, the applicant filed an amended application.
On 20 August 2024, procedural orders were made permitting the applicant to file and serve a further amended application with proper particulars and any additional evidence on which it seeks to rely and requiring the applicant to file and serve written submissions on or before 30 September 2024. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely on or before 14 October 2024. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the amended application, the applicant’s affidavit, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submissions and the Court Book.
CONSIDERATION
For the applicant to be successful it must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
Despite the procedural order permitting it to do so, the applicant did not file a further amended application. The grounds of review in the amended application are (without alteration but excluding the paragraphs in the application that were struck through):
1.The AAT committed judicial errors by failing to consider or address a crucial issue that directly pertains to the genuineness of the nominated position. The AAT omitted and overlooked the issue in relation to Regulation 5.19(4)(h)(ii)(D) of the Migration Regulation 1994 (Cth), specifically the omission of considering the tasks aligned with the nature of the work required by the regional area for that particular position and the occupation. The Applicant submits that this constitutes a denial of procedural fairness as the AAT failed to address a central issue or argument presented by the applicant
Particular
The applicant is in a remote area where finding skilled candidates is challenging, and the employer has had to expand the job role. As a result, the tasks required for the job could be more detailed. The AAT did not take this into consideration. Furthermore, the AAT did not assess the functionality of the specific business and did not give sufficient weight to the fact that the majority of the tasks aligned with the occupation code, instead focusing on the tasks that may have seemed uncovered but, in reality, were related to the occupation. The Applicant should be given an opportunity to address this issues.
The Applicant like to submit some similarities and differences between the Task and duties and of the nominated position as compared to the ANZSCO occupation code 142114.
Similarities:
1. Management of Operations: Both task lists involve managing day-to-day operations, which includes responsibilities related to maintaining stock levels, setting prices, and budgeting for the establishment.
2. Promotion and Advertising: Both lists include tasks related to promoting and advertising the establishment's goods and services.
3. Staff Management: They both involve aspects of staff management, including training, supervision, and selection of employees.
4. Financial Records: Both lists mention maintaining records of financial transactions or budgets for the establishment.
5. Compliance: Ensuring compliance with occupational health and safety regulations is a shared responsibility in both lists.
Differences:
1. Client Interaction: Task of nominated position places a significant emphasis on client interaction, including managing appointments, customer service, and promoting products and services to clients. ANZSCO occupation code 142114 doesn't explicitly mention these client-facing responsibilities.
2. Document and Administration Tasks: Task of nominated position specifies responsibilities related to nominated administration tasks, documentation, and liaising between salon owners, team members, and clients, which are not mentioned in ANZSCO occupation code 142114.
3. The ANZSCO occupation code 142114 explicitly mentions the tasks of determining product mix and service standards, which are not clearly outlined in the nominated position. However, if the first respondent had taken a broader approach to analyzing the tasks, they might have concluded that these tasks were indeed covered by the nominated position.
2.The Applicant submits and holds concerns that the AAT exhibited an apprehension of bias by disregarding and making speculative judgments about the genuine efforts to employ an Australian Resident and by not recognising them as bona fide. The AAT failed to approach the matter in an impartial manner, which raises further potential bias that may have influenced the ultimate decision.
Particular
The Applicant submits that the AAT took a subjective approach when assessing the methodology of the job advertisement. The AAT’s delegate relied on the fact that the job advertisements were run for a relatively short period using no-cost to low-cost advertising despite there are not legislative requirements on how the job advertisements should be listed.
The job advertisement was a sincere attempt to hire locally or employ Australian residents in the first place. The applicant (employer) recently posted on 18 August 2023 a new job advertisement in accordance with the new regulations to demonstrate the absolute need for sponsorship, as no suitable local candidates applied for the role. The AAT disregarded the applicant's (employer) efforts as genuine and expressed dissatisfaction. They also speculated that the applicant (employer) would not hire the new candidates.
3.The AAT’s decision directly and materially breached the above legitimate expectation. This breach of legitimate expectation had a notable influence on the final outcome of the appeal. This failure to uphold the Applicant's (employer) legitimate expectation constitutes a breach of procedural fairness and natural justice.
Particular
The Applicant submits that they held a legitimate expectation based on a letter they received from Regional Development Australia (RDA) Northern Rivers NSW concerning their regional sponsored migration scheme application. The contents of this letter are clear and unambiguous, and it conveyed a sense of assurance and belief to the Applicant (employer). In essence, the letter gave the Applicant (employer) to believe that confirmation was being made. Consequently, the Applicant (employer) relied on this legitimate expectation, trusting that the letter was consistent with or aligned with the Subclass 187 visa application.
The legitimate expectation was further reinforced by the receipt of a positive skill assessment issued by VETASSESS. This assessment led the Applicant to believe that the nominated position would indeed meet the necessary requirements for the role. The Applicant relied on this legitimate expectation when taking into account the requirement to the fulfillment of the nominated position and their assessment on the job advertisement that was posted for 21 days on Jobsearch and in the local newspaper twice (which appeared to be the preferred choice at the time) but deemed it not genuine. The AAT failed to recognise that this was a genuine effort by the employer to recruit locally or hire Australian residents, as required by the legislation. Additionally, there was no legislative requirement at the time to specify the salary in the job advertisement. The AAT overlooked the requirement that makes it mandatory to have a genuine job advertisement.
At the hearing, the applicant’s solicitor told the Court that the applicant did not press ground one, ground two so far as it alleges apprehended bias or, ground three in the amended application. Accordingly, the only ground of review in the amended application that the applicant pressed at the hearing was that part of ground two which provides, without alteration, as follows (under the heading Particulars):
The Applicant submits that the AAT took a subjective approach when assessing the methodology of the job advertisement. The AAT’s delegate relied on the fact that the job advertisements were run for a relatively short period using no-cost to low-cost advertising despite there are not legislative requirements on how the job advertisements should be listed.
The job advertisement was a sincere attempt to hire locally or employ Australian residents in the first place. The applicant (employer) recently posted on 18 August 2023 a new job advertisement in accordance with the new regulations to demonstrate the absolute need for sponsorship, as no suitable local candidates applied for the role. The AAT disregarded the applicant's (employer) efforts as genuine and expressed dissatisfaction. They also speculated that the applicant (employer) would not hire the new candidates.
The Court asked the applicant’s solicitor if the reference in ground 2 of the amended application to advertisements posted on 18 August 2023 was a reference to the advertisements placed by the applicant in July 2023 and which are in the Court Book at 659-670 given that those advertisements were said, by the applicant’s migration agent, to run until 18 August 2023 (CB 657). The applicant’s solicitor said that he was not referring to those advertisements but to other advertisements posted on 18 August 2023. Those advertisements were not in evidence before the Tribunal. Generally, evidence not before the Tribunal is inadmissible. It is well-established that the Court should exercise “resistance to the admission of fresh evidence” (MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J; Mohamud v Minister for Immigration [2019] FCCA 1538 at [29]-[32] per Lucev J; BKS15 v Minister for Immigration [2019] FCCA 359 at [18] per Lucev J). In any event, no application for leave to tender the advertisements was made. Accordingly, the Court has not had regard to what is said in the amended application about advertisements for the position said to have been posted on 18 August 2023.
The applicant’s written submissions (filed on 9 September 2024) and oral submissions at the hearing took a somewhat different tack by focussing on matters which were not contended for, or at least not clearly contended for, in the amended application.
Having regard to the amended application and the applicant’s written and oral submissions, the Court understands the applicant to contend that the Tribunal fell into jurisdictional error because:
(a)in determining whether reg 5.19(4)(h)(ii)(C) applied, the Tribunal made an error of law in relying upon a legislative instrument with respect to the advertisement of the nominated position which was not in force at the time the application for the employer nomination was made;
(b)the Tribunal failed to afford the applicant procedural fairness in not giving the applicant notice that it would be relying upon that legislative instrument and in not giving the applicant an opportunity to present an argument about that;
(c)the Tribunal failed to afford the applicant procedural fairness in not giving the applicant notice that it would not be relying upon the advice of the Regional Certifying Body in determining whether reg 5.19(4)(h)(ii)(C) applied and in not giving the applicant an opportunity to present an argument about that.
It was common ground that all the requirements in reg 5.19(4)(h)(ii) applied to the nomination application. At the time of the application and the hearing before the Tribunal, reg 5.19(4)(h)(ii) provided as follows:
(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 the person identified under subparagraph (a)(ii), as 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).
Error of law as to the requirement of reg 5.19(4)(h)(ii)(C): reliance by the Tribunal on Legislative Instrument 18/036
The Tribunal correctly identified that the legislation does not provide guidance as to the steps an applicant should undertake to satisfy the requirement in reg 5.19(4)(h)(ii)(C) and that there is no “narrative” in the legislation as to the means of “carrying out the exercise of finding an Australian”: Decision at [36] and [38].
The applicant does not appear to cavil with that. At [10] of its written submissions, the applicant states that “reg 5.19(4)(h)(ii)(C) have no legislation backing because there was no legislative Instrument to guide employers as to how job advertisements were to be run at the time this nomination application was lodged” and then (at [13]) “…there was no legislative guidance on how jobs are to be advertised in terms of mode and manner”.
The Tribunal then said, referring to the principles of statutory interpretation as to context and purpose (Decision at [36]), that the applicant must be genuine and transparent in its efforts to investigate whether an Australian could fill the position: Decision at [37]. The applicant did not submit that the Tribunal was wrong to consider whether the recruitment process was genuine and transparent in determining whether reg 5.19(4)(h)(ii)(C) was satisfied.
As set out above in these reasons, the Tribunal then went on to consider the recruitment process engaged in by the applicant and whether it was satisfied that the process was genuine and transparent. At the hearing, the applicant’s solicitor accepted the proposition that the matters to which the Tribunal had regard – as to the advertising and recruitment process – were matters that would be relevant for the Tribunal to consider in concluding as to whether the requirement in reg 5.19(4)(h)(ii)(C) was satisfied.
Nevertheless, the applicant’s submission was that the Tribunal had applied “the wrong law”. The applicant’s written submission (at [12]) was that the Tribunal ‘appears confused the current legislative backing in the form of an Instrument that commenced on 1 October 2020 to the non-existence of such legislation on 30 January 2018, when the application of this nomination was lodged.” The Court asked the applicant’s solicitor at the hearing where it was that the Tribunal had referred to an instrument in reference to the requirement in reg 5.19(4)(h)(ii)(C). The applicant’s solicitor referred the Court to [43] - [45] of the Tribunal’s decision. There, the Tribunal said:
43. The applicant does not show a genuine attempt to fill the position with an Australian, when its advertisements run for a relatively short period using no-cost to low-cost advertising. The length of time of the advertising campaign is about one month at most. The internet advertisement suggests the salon manager should, by implication, have experience with Indian beauty treatments. But, the salon manager role is managerial and not technical and should not require any technical experience.
44. The advertisement is limited in appeal if the salary is not given. For example, an existing experienced salon manager or beautician working in the location, may consider the position as an increase in salary or an advancement in the candidate’s career. But, the applicant does not disclose the salary of the position. The director’s evidence is all managers are paid $55,000, with an increase in October 2022 for all managers to $65,000.
45. Whatever the means or mode used by the applicant, the legislation requires the process is genuine and transparent. It is for the applicant to show that it has made a genuine attempt to employ an Australian citizen or an Australian permanent resident. That may mean making several internet advertisements, a selection of newspaper advertisements or in some instances engaging a recruitment employment service, employing Facebook or Indeed communication media and running a campaign for more than 21 days.
The applicant’s submission at the hearing was that in referring to ‘legislation’ in [45], the Tribunal was referring to a legislative instrument. The Court asked the applicant’s solicitor at the hearing to identify what legislative instrument he was referring to as this had not been identified in the applicant’s written submissions other than by referring (at [12]) to an instrument that commenced on 1 October 2020. The applicant’s solicitor told the Court he was referring to Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018 (“LIN 18/036”).
LIN 18/036 commenced on 10 August 2018 and has undergone several iterations since then. The Court agrees with the applicant’s submission that LIN 18/036 was not in force at the time the nomination application was made. An iteration was in force at the time the Tribunal made its decision.
The Court understands the submission made by the applicant’s solicitor at the hearing to be that whilst the Tribunal did not expressly refer to LIN 18/036 it was implicit that the Tribunal applied the terms of the instrument when determining whether the applicant had engaged in a genuine and transparent requirement process for the purposes of reg 5.19(4)(h)(ii)(C). The applicant submitted that this follows from the Tribunal’s reference to the fact that the advertising was no to low cost; the advertisements did not include the salary; and that the advertisements were not run for more than 21 days. The applicant’s submission was that as these are all requirements of the labour market testing provided for in LIN 18/036 it is implicit that the Tribunal was referring to and applying LIN 18/036 in determining whether the requirement in reg 5.19(4)(h)(ii)(C) was met.
The Court does not agree. When read in the context of the preceding paragraphs of its Decision ([36] and [37]) the Tribunal is referring to reg 5.19(4)(h)(ii)(C) and how, having regard to its context and purpose, the requirement should be interpreted as requiring an employer to engage in a recruitment process that is genuine and transparent. There is nothing in that paragraph, or elsewhere in the Decision, from which it can be inferred that the Tribunal was referring to a legislative instrument or, specifically to LIN 18/036. Indeed, the Tribunal’s statement that there is no guidance or narrative in the legislation (at [36] and [37]) makes clear that it is not referring to any legislative instrument. In any event, it is not the case that LIN 18/036 sets out the requirement that the advertising cannot be no cost or low cost. Further, the Court notes that there are other requirements in LIN 18/036 with respect to the period, manner and evidence of labour market testing that are not reflected in the Tribunal’s consideration of whether the advertisements and recruitment process undertaken by the applicant were genuine and transparent. The Tribunal did not apply the requirements of LIN 18/036 in making its decision.
No jurisdictional error is established on this ground.
Procedural Fairness: failing to identify to the applicant the Tribunal’s reliance on LIN 18/036
In oral submissions, the applicant’s solicitor referred the court to SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 (“SZBEL”). Relying upon SZBEL, the applicant’s solicitor submitted that the Tribunal had not afforded the applicant procedural fairness because it had not given the applicant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant’s solicitor confirmed to the Court that this was a submission about the Tribunal’s obligation under s 360 of the Act.
The applicant’s solicitor accepted that the Tribunal had given notice to the applicant that an issue arising in relation to the decision under review was whether the requirement in reg 5.19(4)(h)(ii)(C) applied and that the applicant had been given an opportunity to give evidence and present arguments on that issue. This is evident from the Tribunal’s requests for information on 20 September 2020 (CB 172-175); on 23 June 2023 (CB 633-641); and on 13 July 2023 (CB 653-654).
For example, in the request for information on 23 June 2023, the Tribunal requested the following information:
1. The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and
2. for each and every candidate applying for the position of Hair or Beauty Salon Manager ANZSCO occupation code 142114, the following information in writing:
a.the full content of all candidates CV or resume provided to the applicant, including a candidate who submitted a CV a resume either before or after the advertisement and whose name is not on the list provided by the applicant. Residence, current occupation, qualifications and experience;
b.the reason for the candidates unsuitability including the applicants Notes concerning the reasons for the unsuitability;
c.whether each and every candidate was interviewed, emailed or telephoned concerning further information sought by the applicant.
d.whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:
i.the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and
ii.there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and
iii.the position cannot be filled by an Australian citizen or permanent resident living in the same area.
iv.local job advertisements for the nominated position.
v.information provided to or received from the RCB.
3. Information about whether the applicant has been subject to monitoring by the Department and, if relevant, the outcome of the monitoring audit;
4. Information about whether the applicant has been the subject of any investigation about a possible contravention of the law.
5. Information about the advertisement not including the proposed salary of the successful candidate.
6. Information from the advertiser as to the total number of candidates. Internet recruitment sites include reports on the number of reviews and candidates who have applied.
The Court understands the applicant’s solicitor contended at the hearing that the issue – for the purposes of s 360 of the Act – was the requirements as to advertising that the Tribunal considered in determining whether the requirement in reg 5.19(4)(h)(ii)(C) was met. At the hearing, the applicant’s solicitor identified those requirements as the cost of the advertising, the period for which the advertisements were run and whether the advertisements specified the salary or salary range.
The applicant’s solicitor submitted that the applicant could not have known that those requirements were being considered by the Tribunal because LIN 18/036 did not apply at the time the application was made. This submission must fail so far as it is a submission that the Tribunal was required to notify the applicant that an issue was that it would be having regard to LIN 18/036 in determining whether the requirement in reg 5.19(4)(h)(ii)(C) was met. The Court has found that the Tribunal did not have regard to the requirements of LIN 18/036.
The Court has considered whether the applicant’s solicitor might have been making a broader submission that the Tribunal was required to notify the applicant that it was considering the cost of the advertising, how long the advertisements ran for and whether the advertisements specified the salary or salary range in deciding whether the requirement in reg 5.19(4)(h)(ii)(C) was met. In that regard, the Court agrees with the first respondent’s submission that s 360 of the Actdid not require the Tribunal to notify the applicant of that degree of particularity. This is not a case like SZBEL. In any event, it was clear from the Tribunal’s requests for information, particularly the request of 23 June 2023, that the Tribunal would be taking into consideration the mode and manner of the applicant’s advertising and recruitment process including whether the advertisement included a salary range.
No jurisdictional error is established on this ground.
Procedural Fairness: failure to notify the applicant that the Tribunal would not be relying on the advice of the Regional Certifying Body with respect to reg 5.19(4)(h)(ii)(C)
Regulation 5.19(4)(h)(ii)(F) provided:
(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).
It was common ground that the applicant had met the requirement in reg 5.19(4)(h)(ii)(F). It had provided to the Minister (and the Tribunal) a letter and accompanying Form 1404 from Regional Development Australia which was the Regional Certifying Body (“RCB”) (CB 550-552). The letter and Form 1404, in advising the Minister about the matter in subparagraph (C) of reg 5.19(4)(h)(ii), stated that it was satisfied that the applicant’s application met the requirement that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position.
In its written submissions (at [11]), the applicant submitted that the “oversight of advertisements to determine 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 was in the domain of the Regional Certifying Body who issued our client certificate to confirm that they were satisfied with their recruitment efforts”.
At the hearing, the applicant’s solicitor told the Court that the RCB had made “rules” as to how an employer was to test the local labour market through advertising and that the applicant had complied with those rules. These rules were not referred to in the applicant’s written submissions. The applicant’s solicitor could not identify the rules to which he was referring or provide a copy to the Court. Nevertheless, the applicant’s solicitor submitted that the RCB’s letter and Form 1404 established that the RCB was satisfied with the applicant’s “recruitment efforts”.
The applicant’s solicitor told the Court that the Form 1404 does not bind the Tribunal in respect of the requirement in reg 5.19(4)(h)(ii)(C). The Court agrees. The Tribunal was required to make its own assessment on the evidence before it as to whether the requirement in reg 5.19(4)(h)(ii)(C) was met. This meant that the Tribunal was required to consider the evidence before it and conclude as to whether the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area. That is what the Tribunal did. In doing so, the Tribunal noted that it was not given the information on which the Form 1404 was based (Decision [23]). The Tribunal had requested that information in its requests for information to the applicant on 12 July 2023 and 23 July 2023.
At the hearing, the applicant’s solicitor made a further submission about the RCB’s letter and Form 1404 which was not referred to in either the amended application or in the written submissions. The applicant’s solicitor submitted that at the time the Tribunal made its decision there was a departmental policy that if the decision maker disagreed with the advice of the RCB it would contact the RCB for more information. The Court understood the applicant to be submitting that – because of this policy – if the Tribunal were not going to accept the advice of the RCB in its consideration of whether requirement in reg 5.19(4)(h)(ii)(C) was met then it would put the applicant on notice of that and give the applicant an opportunity to present an argument to the Tribunal as to why it should accept the advice of the RCB that the position could not be filled by an Australian citizen or Australian permanent resident living in the same local area.
The policy was not referred to in the applicant’s written submissions. The Court asked the applicant to provide it with a copy of the policy. The applicant was unable to locate the policy during the hearing but told the Court that it was a procedural instruction numbered 4.6.4.7 and that he had earlier located it on LEGEND.
The Court is aware that LEGENDcom is the Department of Home Affairs electronic database of migration and citizenship legislation and policy documents. The procedural instruction the applicant referred the Court to provided guidance to departmental decision makers on the nomination application process associated with the Regional Sponsored visa (subclass 187) program.
From its own search of LEGENDcom, the Court has ascertained that procedural instruction numbered 4.6.4.7 did not apply at the time the application for the nomination approval was made. A similar but differently worded iteration of the procedural instruction (numbered 10.7.2.1) applied at the time the application for the nomination approval was made. Version 4.6.4.7 applied from 18 March 2018 to 29 October 2022. From 30 October 2022, no version of the procedural instruction applied. Accordingly, there was no version of the procedural instruction that applied at the time the Tribunal made its decision. In any event, it was clear from the Tribunal’s requests for information that it was considering whether the requirements of reg 5.19(4)(h)(ii)(C) were met and, in particular, requested the applicant to provide it with the information with which the RCB had been provided. The applicant did not provide the Tribunal with that information but made a submission to the Tribunal about the RCB’s advice and (CB [646]; [657]). Therefore, the applicant was afforded an opportunity to make a submission as to its compliance with the ‘rules’ of the RCB.
No jurisdictional error is established on this ground.
CONCLUSION
As no jurisdictional error has been established, the application is dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 6 December 2024
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