Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 528
•18 March 2021
Federal Circuit Court of Australia
Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 528
File number(s): ADG 264 of 2019 Judgment of: JUDGE EGAN Date of judgment: 18 March 2021 Catchwords: MIGRATION – Application for Direct Entry Employer Nomination – nomination of position at one location – certification by Regional Certifying Body that criteria for grant of visa to employee nominee had been satisfied in respect of such position at such location – subsequent attempt by nominator to change location of position – refusal of nomination application on the ground that the position under the nomination had ceased to exist – no jurisdictional error on the part of the Tribunal – application dismissed. Legislation: Migration Regulations 1994 (Cth), r 5.19 Cases cited: Singh v Minister for Immigration & Border Protection & Anor [2017] FCAFC 105.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs: 21 Date of last submission/s: 16 March 2021 Date of hearing: 16 March 2021 Place: Brisbane Counsel for the Applicant: Mr Mellor Solicitor for the Applicant: Work Visa Lawyers Solicitor for the First Respondent: Mr Chan of Sparke Helmore Second Respondent Submitting appearance save as to costs ORDERS
ADG 264 of 2019 BETWEEN: HARINSCO PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
18 March 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 24 July 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $5,000.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
On 15 August 2016, the applicant company applied for approval of an Employer Nomination for the permanent employment of one Harpreet Singh. [1] The application was for a Sub-Class 187 (Direct Entry) Visa made under the Regional Sponsored Migration Scheme. The position applied for was that of a chef. At the time that the nomination application was made, the applicant operated three (3) restaurants at different locations within the State of South Australia.
[1] Exhibit 1 – Court Book (CB) p. 1 – 8 inclusive.
In the nomination application, under the heading “Address where nominated person will be employed”, the following was inserted by the applicant:
“Address where nominated person will be employed
Country: Australia
Address: 19 Cadell Street
Suburb/Town: Goolwa
State/Territory: South Australia
Postcode: 5214”
As part of the nomination application process, the applicant was required to obtain certification from a Regional Certifying Body of a number of matters, [2] including that:
(a)There was a need for a paid employee in the nominated position within the business activities of the nominating employer; and
(b)The nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
(c)The terms and conditions of employment that were applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
(Underlining added)
[2] r. 5.19(4)(h)(ii)(F) of the Regulations.
The South Australian Department of State Development was the relevant Regional Certifying Body for the purposes of the subject nomination application. On 12 January 2017, an authorised representative of the Department of State Development made the relevant declaration of compliance in respect of the nomination application actually submitted to it for its consideration. The relevant certification was as follows: [3]
[3] CB pp. 84 and 85.
It is clear that the certification was in respect of the proposed ongoing employment of Mr Singh at the applicant’s restaurant situated at 19 Cadell Street, Goolwa, and not at any other location.
It is not in dispute that the applicant’s Goolwa restaurant closed down, and ceased operations, in late January or early February 2017.
On 28 February 2017, well prior to the determination by the Minister as to whether the nomination application would be granted or not, the applicant forwarded to the Department a letter directed to Mr Singh dated 1 February 2017. [4] That letter advised Mr Singh, in his capacity as the employee nominee, that his employment was to be transferred from the applicant’s restaurant situated at Goolwa to another of the applicant’s restaurants situated at McLaren Vale, with effect from 2 February 2017. At the hearing before the Court, it was common ground that McLaren Vale was approximately 45km away from Goolwa.
[4] CB p 81 and 93.
On 19 March 2018, a delegate of the Minister refused to grant the nomination application on the basis that the delegate was not satisfied that the applicant had the financial capacity to support a full time Chef (ANZSCO Code 351311) with an annual salary of $52,000.00 for a period of not less than 2 years. The nomination application was refused on the basis that the applicant had not met r. 5.19(4)(d)(i) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
On 19 June 2019, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision of the delegate on the ground that because the nominated position at Goolwa no longer existed, the applicant could not satisfy the provisions of r. 5.19(4)(h)(ii) of the Regulations.
Regulation 5.19 relevantly provided as follows:
“5.19 Approval for nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) …
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 an identified person, as 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) all of the following apply
(AA) 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;
(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 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).
The Tribunal, at [15] – [22] inclusive of its reasons, said as follows:
“[15] Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
•(i) - the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant IMMI legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
•(ii) - the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a Regional Certifying Body (RCB) has advised the Minister about certain matters relating to the position.
[16] The Tribunal accepts that the relevant criteria to be met are the five sub-criteria set out in r.5.19(4)(h)(ii)(A - F).
Changing positions
[17] For both the Temporary Residence Transition and Direct Entry streams, an issue is whether the position is fixed , as this phrase appears in a number of requirements in r.5.19(3) and (4), i.e. fixed to the position specified in the application made under r.5.19(2), or whether it can change without being fatal to the criteria under consideration. Position is not defined but the Courts have commented that it refers to a particular role, incorporating the duties and tasks involved in performing that role.
[18] At a broad level, r.5.19(1) provides that a nominator may apply for approval of the nomination of 'a' position. Each other relevant subregulation in r.5.19(2) and (3) refers to 'the' position . This suggests that the position is that specified in the application. The purpose of the Temporary Residence Transition stream to provide a visa pathway for Subclass 457 visa holders who have worked an employer who then wants to offer them a permanent position also suggests continuity. In addition, for regional Direct Entry stream applicants, it is difficult to reconcile the presence of a criterion requiring a Regional Certifying Body to advise the Minister of a number of matters relevant to the position (such as relevantly, r.5.19(4)(h)(ii)(F)) if this position could be changed. The Subclass 187 visa application requirements (to be satisfied by the nominee, Mr Jasbir Singh) and criteria also suggest there is intended to be continuity in respect of the position. To validly apply for these types of visas, applicants need to make a declaration that the position to which their visa application relates is a position nominated under r.5.19 (items 11148(3)( d) and 1114C(3)(d) of Schedule 1 ). Various visa criteria link back to the declaration in that the position to which the visa application relates must be that which was declared - (relevantly here, under r.187.233).
[19] Further, for regional applications in particular as here, r.5.19(4)(h)(ii)(F) contemplates advice being given to the Minister by an RCB about certain aspects of the nomination criteria, specifically r.5 .19(e), and r.5.19(4)(h)(ii)(B) and (C). The Tribunal interprets the 'position ' and 'nomination' as the same fixed thing in this context, given that it problematic to see how an RCB could advise of these matters (and the Tribunal then make its own determination as to them) if the applicant nominates a position advertised where an Australian citizen or permanent resident applying for the position is living in a different town or local area (i.e. McLaren Vale) to that of the nominated position (Goolwa). The RBC in this case dated 12 January 2017 specifically refers to the location of the Chef position in Goolwa, which has ceased to exist.
[20] Therefore, considering the scheme as a whole, the Tribunal considers that the position is fixed to that nominated at the time of the nomination application, being the full-time Chef position located at Goolwa. As this position no longer exists, the Tribunal finds the following criteria are not met for the purposes of r.5.19(4)(h)(ii):
•there is a genuine need to employ a paid employee to work in the position under the nominator's direct control;
•the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;
•a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5 .19(4)(h)(ii)(B) & (C).
[21] Accordingly, the requirements of r.5.19(4)(h) are not met.
[22] For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.”
(Footnotes omitted)
Grounds of Review
The applicant’s grounds for review in the Amended Application for Review filed on 24 July 2019 were as follows:
“Grounds of Application
5. In assessing the requirements of the legislative scheme established by regulation 5.19( 4)(h)(ii) of the Migration Regulations 1994, the Second Respondent relies on an interpretation of the term 'the position' which is not available at law.
Particulars
5.1 The Second Respondent fell into error by narrowly interpreting a criterion of geographic consistency in the definition of 'the position' under the scheme. This error was compounded by the Second Respondent's failure to consider other elements of the definition of 'the position'; namely whether the nature of the duties and tasks of the position were ongoing. These errors of law caused the Second Respondent to reach the mistaken conclusion that the transfer of the position from Goolwa to McLaren Vale constituted a change in the nominated position which is fatal to the Applicant’s application under regulations 5.19(4)(h)(ii).
5.2The Second Respondent falls into error by imposing an interpretation of the term 'the position' onto the scheme which does not consider the practical reality of businesses seeking to access the scheme under regulation 5 .19( 4 )(h)(ii).
6. The Second Respondent erred in law by misinterpreting regulation 5.19( 4)(a) of the Migration Regulations 1994.
Particulars
6.1 The Second Respondent applies an impermissibly narrow interpretation of the term 'the position' leading to the mistaken conclusion, at [12], that the nominated position 'ceased to exist' as a result of the transfer from Goolwa to McLaren Vale.
Each of the grounds call in question the way in which the Tribunal construed the meaning of the word ‘position’ as used in r. 5.19(4) of the Regulations. There is no merit to either ground of review.
The Court agrees with the Tribunal’s analysis of r. 5.19(4) of the Regulations for the reasons given by it. The nomination application for the relevant position could not be approved because the mandatory requirement for certification by the Department of State Development was only in respect of the Goolwa restaurant location, not the McLaren Vale restaurant location. The position the subject of the nomination application was geographically specific. Counsel for the applicant conceded that the nomination application had a geographic requirement attached to it. When read as a whole, so much was made clear in the authorised representative’s Declaration at paragraph 15 of the ‘Regional Certifying Body Advice’ referred to above.
In Singh v Minister for Immigration & Border Protection & Anor [2017] FCAFC 105, Mortimer J (with whom Jagot and Bromberg JJ agreed) considered what was meant by the word ‘position’ in r. 5.19, and at [88] – [90] inclusive said as follows:
“[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 cl 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 refer 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.
[89] The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
[90] The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).”
The Court finds that the Tribunal did not err in the way in which it performed its statutory task. It correctly identified that the relevant statutory scheme was a one-off process. The position the subject of the nomination application was, factually, one geographically located at Goolwa, not McLaren Vale. It may well have been that the certification by the Department of State Development may not have been forthcoming, for any number of reasons, in respect of a nomination application made for the same position at the applicant’s restaurant at McLaren Vale.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 March 2021
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