Fix N Shop Pty Ltd v Minister for Immigration and Anor and; Ong v Minister for Immigration and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIX N SHOP PTY LTD v MINISTER FOR IMMIGRATION & ANOR and
ONG v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 794

Catchwords:
MIGRATION – Whether Tribunal was in error because it considered the wrong contract of employment – no error in the consideration of regulations by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg. 5.19, 5.19(4)(h)(ii), 5.19(4)(h)(ii)(C)

Applicant:

FIX N SHOP PTY LTD

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 377 of 2019

Applicant:

QUOC TUAN ONG

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 378 of 2019

Judgment of:

Judge McNab

Hearing date:

27 March 2020

Date of Last Submission:

27 March 2020

Delivered at:

Melbourne

Delivered on:

9 April 2020

REPRESENTATION

Counsel for the Applicants in PEG377/2019 and PEG378/2019:

Ms L Chen

Solicitors for the Applicants in PEG377/2019 and PEG378/2019:

Lily Chen & Associates

Counsel for the Respondents in PEG377/2019 and PEG378/2019:

Mr M Sunits

Solicitors for the Respondents in PEG377/2019 and PEG378/2019:

Australian Government Solicitor

ORDERS

The application filed 25 September 2019 in PEG377/2019 be dismissed.
The application filed 25 September 2019 in PEG378/2019 be dismissed.
The Applicant pay the First Respondents costs fixed in the sum of $4000.00 in the application filed 25 September 2019 in PEG377/2019.
The Applicant pay the First Respondents costs fixed in the sum of $4000.00 in the application filed 25 September 2019 in PEG378/2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG377 of 2019

FIX N SHOP PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

PEG378 of 2019

QUOC TUAN ONG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed 25 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 September 2019. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (“the Minister”) refusing to grant a nomination for a position in Australia under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).
This matter was heard together with proceeding PEG378/2019, the matter of Quoc Tuan Ong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor. In that case, the applicant, Mr Ong, was the applicant for the visa, which was the subject of sponsorship by the applicant in this proceeding.

Background

The background to the application is as follows:
a)on 13 October 2016, the applicant applied for approval of the nomination of a position in Australia under reg.5.19 of the Regulations;
b)on 20 December 2017, the Minister refused the nomination;
c)on 2 January 2018, the applicant applied for review of the delegate’s decision;
d)on 5 September 2019, the Tribunal affirmed its decision under review; and
e)on 25 September 2019, the applicant applied for judicial review of the Tribunal’s decision.
The Tribunal at paragraphs [9]-[13] of the decision set out the matters which must be satisfied by the sponsor. The Tribunal found that the applicant was required to satisfy the criteria in reg.5.19(4)(h)(ii) of the Regulations.
Regulation 5.19 relevantly provides:
5.19Approval 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
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(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 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 subparagraphs (B) and (C).
The Tribunal, at paragraph [14], noted that the applicant’s businesses engaged in mobile phone repairs and the sale of accessories, and separately in the supply and installation of marble and granite.

The nominated position was store manager related to a mobile phone business located at Clarkson in Western Australia, which is in metropolitan Perth.
At paragraph [15], the Tribunal stated that it had carefully questioned the applicant in respect of the required criteria, and that the position cannot be filled by an Australian citizen or permanent resident who was living in the same local area (metropolitan Perth) as the position.
The Tribunal, at paragraph [16], considered the evidence of the applicant’s sole director, who appeared before the Tribunal on

4 September 2019 to give evidence. The nominee for the position also gave evidence in the related matter referred to above.
At paragraph [16] of the decision, the Tribunal noted the oral evidence as follows:
At the hearing, the evidence presented is that an employment contract had been offered to the nominee on 29 July 2015 for the position of Store Manager for at least 2 years in the business. The oral evidence is that the nominee accepted the contract, signed on 6 August 2015. The Tribunal accepts from this evidence that the applicant has a written commitment to employ the nominee under the employment contract. The contract states that employment is to commence upon the approval of the applicant’s RSMS visa. The accepted oral evidence from the applicant is that the nominee had been working in the applicant’s business since 2014 and subsequently, in the role of Store Manager (full time).
The Tribunal had evidence that an advertisement for the position was placed on 21 July 2015. The applicant received 10 to 12 applications. The applicant conducted seven to eight interviews of which three or four were Australian permanent residents, and the applicant conducted a work trial for two of those permanent residents of eight weeks in duration.
The Tribunal accepted the applicant’s oral evidence concerning the recruitment process, noting (at paragraph [18]) that:
…his answers to straightforward questions were provided spontaneously and directly, without any apparent attempt to deflect or avoid the questions asked. …
At paragraph [19], the Tribunal’s (noted that the) Seek advertisement was placed for the position on 21 July 2015, and found that the selection process for the nominated position did not conclude until well after the contract was executed on 6 August 2015, at which time the applicant had already committed the role to the nominee.
As the Tribunal stated:
Indeed, on the oral evidence provided, the contract had been offered to Mr Ong as early as 29 July 2015 just 8 days after the Seek.com advertisement was placed. The Tribunal considers that Mr Ong was already retained and committed to the nominated position before the recruitment process for an Australian citizen or permanent resident was finalised.
Therefore, the Tribunal was not satisfied that the position could not be filled by an Australian citizen or permanent resident who was living in the same area as that place to meet the criterion in reg.5.19(4)(h)(ii)(C) of the Regulations.
The applicant’s grounds of review as they are referred to in the initial application filed by the applicant are:
2.The Second Respondent acted ultra vires by taking in account irrelevant information and asking irrelevant questions that was not mentioned or considered in the First Respondent’s decision.
3.The Second Respondent failed to take into account relevant information and documents submitted to the Department by the Applicant.
The applicant filed an amended application on 10 February 2020 which gave as the grounds of review:
1.The Second Respondent failed to conduct the hearing in an appropriate manner, denying the applicant of procedural fairness, subsequently leading to a biased and pre-supposed finding against the applicant.
2.The Second Respondent came to the wrong conclusion and failed to take into account relevant information in determining whether Regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994 was met.
The submissions filed on behalf of the applicant refer to the following two grounds:
Ground 1
Relying on wrong material/Relying on material that should not have been looked at
Ground 2
Ignoring relevant materials/ignoring materials that should have been looked at
No submissions were made in support of ground 1 set out in the amended application regarding procedural fairness and bias.
The applicant submits that the Tribunal incorrectly took into account an employment contract which was offered to and signed by the nominee on 6 August 2015, two weeks after an online advertisement was placed for the nominee’s position on 21 July 2015.
The substance of the submission is that the Department of Training and Workforce Development (WA) provided a certificate on 25 July 2016, declaring that, amongst other things, the nominated position cannot be filled by an Australian citizen or Australian permanent resident who was living in the same local area as the nominated position (see Court Book [10]-[11]).
The applicant submits that an employment contract dated 14 July 2016 between the applicant and the nominee was provided by the applicant to the Tribunal, and that was the relevant contract to be considered by the Tribunal, not the earlier 2015 contract. It submitted that the Tribunal incorrectly relied upon the 2015 contract and was in error in basing any findings on that earlier contract. It said that the 2016 contract is the relevant contract, because that is the contract that was made in 2016 as relevant to the application.
Otherwise, the applicant submits that the Tribunal failed to consider a clause in the 2016 contract that provided that:
The nominee’s employment will only commence on the approval of the RSMS application.
And it was submitted that:
… it is irrelevant as to when the employment contract was signed due to the qualifying nature of this clause…
I assume that the submission also applies to the 2015 contract.
The applicant sought to rely upon two affidavits which were filed on

12 March 2020 in respect of an affidavit sworn by the nominee, and

16 March in respect of an affidavit sworn by the solicitor for the applicant’s sponsor. In respect of the affidavit of Mr Ong, the Court ruled that that affidavit was inadmissible as it was, in effect, in the nature of a submission, and also seeking to put further evidence before this Court which ought to have been or could have been put before the Tribunal.
Otherwise, the affidavit sought to annex a partial transcript of the (Tribunal) hearing, but no submission or ground of application raised issues in relation to the conduct of the hearing by the Tribunal, and further, I did not accept the partial transcript as a record of the hearing.
The first respondent made submissions that the decision of the Tribunal properly set out the criteria that had to be established by the sponsor, noting that the Tribunal was not satisfied that the position could not be filled by an Australia citizen or permanent resident who was living in the same local area as that place to meet the relevant criteria and regulations. The Tribunal heard the evidence from the applicant’s director, and the decision set out that evidence.
The first respondent submitted that it was open for the Tribunal to conclude that the applicant was committed to Mr Ong before the recruitment process for an Australia citizen or permanent resident was finalised. It was further submitted that the reference by the first respondent to the 2015 contract did not assist the applicant, as the issue before the Tribunal was, whether the Tribunal could be satisfied that the relevant position could not be filled by an Australia citizen or permanent resident.
Similarly, in relation to ground 2, the first respondent submits that whether or not the contract was said to commence upon the nomination being approved does not change the substance of the Tribunal’s decision that Mr Ong was offered the position as early as eight days after the advertisement was placed on Seek, and for that reason the Tribunal could not be satisfied that the position could not be filled by an Australian citizen on consideration.
In my view, there is no error demonstrated in the decision of the Tribunal. The Tribunal set out the evidence relied upon in order to make its decision in the body of the decision, and it is not put that in fact the director of the nominee did not give that evidence. The finding of the Tribunal was open to it upon the evidence before it, and there is no suggestion that the Tribunal looked at the wrong regulation or sought to apply the criteria or the requirements of the wrong regulation in making the decision.
As to whether the Tribunal took into account the wrong contract, in my view, the question of which contract it looked at is not material to the decision, which at its heart is based on a finding that the sponsor had committed to the nominee’s employment about eight days after placing an advertisement on Seek, and it was therefore open to the Tribunal to find that it could not be satisfied that the position could not be filled by an Australian citizen or permanent resident.
Similarly in relation to ground 2, whether or not the contract was to commence upon the formal approval process being carried through does not change the substance of the decision that the Tribunal found that the sponsor had committed to the nominee as an employer eight days after the Seek advertisement had been placed.
The parties agreed that the application made by Mr Ong in PEG378/2019 was dependent upon the Court’s finding in this proceeding and that if the Court found that there was no error in the manner in which the Tribunal approached its task in this proceeding then the application in PEG378/2019 must fail.
For these reasons, given that the Court has found that there is no error in the decision of the Tribunal in relation to the sponsor, then the application of Mr Ong must also fail. The Court will make orders dismissing both proceedings with orders for costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 9 April 2020

[2020] FCCA 794

9 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction