Kanu v Minister for Immigration

[2020] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANU v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 398

Catchwords:
MIGRATION – Administrative Appeals Tribunal – nomination application for a Temporary Work (Skilled) Subclass 457 visa – whether the Tribunal misconstrued and/or misapplied the relevant law – whether the Tribunal failed to take into account the applicant’s evidence – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 476
Migration Regulations 1994 (Cth), reg.2.72

Applicant: JULIANA KANU T/A MOMOA INTERIOR SERVICES

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1590 of 2019

Judgment of: Judge Street

Hearing date: 25 February 2020

Date of Last Submission: 25 February 2020

Delivered at: Sydney

Delivered on: 25 February 2020

REPRESENTATION

Counsel for the Applicant: Mr N Poynder
Direct Access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely upon the amended application identified as “Attachment A” to the applicant’s submissions filed 18 February 2020 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 25 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1590 of 2019

JULIANA KANU T/A MOMOA INTERIOR SERVICES

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to approve a nomination under s.140GB of the Act.

2. On 5 September 2016, the applicant lodged a nomination application for a Temporary Work (Skilled) Subclass 457 visa. In the application, the Job title/Position was described as “Customer Services Manager”, the Occupation was described as “Customer Services Manager” and the ANZSCO code was described as “149212 - Customer Service Manager”. Information was also provided in relation to Labour Market Testing, when the Labour Market Testing was undertaken, the proposed employment agreement, related pay and 40 hours of work per week.

3. The application includes the following description of the responsibilities in respect of the position to be undertaken:

   Overseas the activities of all workers. - Ensures the workers have the resources to complete their work – Hire, train and evaluate new employees - Ensures that the company is on track to meet its financial goals. - Develops and implements budgets -Prepare report for master franchise

4. The main duties are described as:

   - Performance evaluation - set goals, motivate and develop workers. - Hiring and discipline of employees. - Motivate workers through incentives and position feedback - Ensures the company complies with all the company government regulations.

5. The nominee is a national of Papua New Guinea and the husband of the applicant. Material provided in support of the application suggested that there was to be growth in the business which was the reason for the creation of the position of Customer Service Manager which was fundamental to the successful operation of the business. Also provided was an Organisational Chart, a Company Business Profile in respect of interior home services and, relevantly, at page 23 of the Court Book, a purported contract of employment between an entity described as Juliana Interior Home Services and the nominee dated 30 May 2016 and identifying a full-time position of 38 hours per week.

6. On 19 January 2017, the Delegate found that it was not satisfied that the evidence provided demonstrated that the nomination was lodged to fill a genuine skill shortage. The Delegate found that the position associated with the nominated occupation was created to facilitate a migration outcome for the nominee. The Delegate found that the position associated with the nominated occupation did not meet the requirements of reg.2.72(10)(f) Migration Regulations 1994 (Cth) (“the Regulations”) as being genuine and that the applicant did not meet the requirements of reg.2.72(10) of the Regulations. Accordingly, the Delegate refused the application for approval of nomination.

7. On 9 February 2017, the applicant lodged an application for review of the Delegate’s decision to the Tribunal.

8. By letter dated 1 May 2019, the Tribunal invited the applicant to attend a hearing on 23 May 2019. The applicant appeared on that date to give evidence and present arguments, as well as being represented by the applicant’s migration agent.

9. The Tribunal in its reasons identified that the approval nomination was one under s.140GB of the Act and had to meet the requirements of reg.2.72 of the Regulations.

10. The Tribunal identified what occurred before the Delegate. The Tribunal summarised the evidence that was given before the Tribunal. The Tribunal identified the real issue in the present case as being whether or not the position associated with the nominated position met the requirements of reg.2.72(10)(f) of the Regulations by reason of being genuine. The Tribunal correctly identified that the intention for this provision is to ensure that the positions nominated are in skilled occupations and are genuinely needed by the nominating employer.

11. The Tribunal referred to and took into account the Procedures Advice Manual 3 (“PAM3”). The Tribunal also identified the requirements in relation to the ANZSCO code and the relevant skill level. The Tribunal identified the evidence provided in support of the growth of the business of the company.

12. The Tribunal referred to the nominee only working part time and not assisting with cleaning, which was the nature of the business. It would appear that any cleaning done was by the applicant wife.

13. The Tribunal identified the unsatisfactory nature of the applicant wife’s evidence in relation to her assertion of having two other permanent and some casual people working with her and the want of proper financial records in support of the same.

14. The Tribunal correctly identified the requirements of reg.2.72(10)(f) of the Regulations. The Tribunal identified and engaged with the substance of the post-hearing material that was provided and had a real and meaningful engagement with the same.

15. The Tribunal was not satisfied that the applicant had been entirely honest in her evidence to the Tribunal regarding the running of the business and her explanation for the nominated position. The Tribunal did not accept that the applicant employs anyone. The Tribunal referred to the nominee working in the business part time and that the nominee does not claim to assist with cleaning. In these circumstances, the Tribunal found that applicant does not employ anyone to assist with the cleaning. Therefore, the Tribunal was not satisfied that the full-time position of Customer Service Manager exists and that it is what it purports to be.

16. The Tribunal found that the position associated with the nominated occupation is solely to facilitate the stay of the applicant nominee and family in Australia rather than to fill a genuine vacancy or skill shortage. The Tribunal was not satisfied that the position associated with the nominated occupation is genuinely needed by the nominating employer or that the position associated with the nominated occupation is genuine. The Tribunal found that the requirements of reg.2.72(10)(f) of the Regulations were not met.

17. Accordingly, the Tribunal affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the amended application are as follows:

   1. The second respondent (the Tribunal) misconstrued the criteria for the approval of a nomination of an occupation for a position in the applicant’s business.

   Particulars

   (a) The Tribunal, at [32], found that the position of Customer Service Manager associated with the nominated occupation in the applicant’s cleaning business was not genuine and that it did not therefore satisfy the criterion in reg 2.72(10)(f) of the Migration Regulations 1994.

   (b) In making its finding the Tribunal, at [30], took into account evidence, and made a finding, that it was unable to be satisfied that the position existed as at the time of the decision of the Tribunal.

   (c) Properly construed, the criteria for the approval of a nomination do not require the position associated with the nominated occupation to exist, as at the time of the decision.

   2. The second Tribunal failed to give weight to evidence provided by the applicant that her business was demonstrating strong business growth in a manner that misconstrued the evidence and was illogical and unreasonable.

   Particulars

   (a) The Tribunal at [26] gave “no weight” to a report prepared by the applicant and her husband which projected earnings for the applicant’s business of up to $140,000 for the year ending 30 June 2020 on the grounds that the report did “not address the lack of payment of staff to date or the lack of payment of income tax and superannuation”. The failure of the report to address the identified factors was not logically relevant to the veracity of the projected earnings of the business.

   (b) The Tribunal at [27] gave “no weight” to a cleaning agreement for The Beaches apartment complex on the grounds that it was not addressed to the applicant but to James Interior Home Care. This misconstrued the evidence since the agreement was clearly addressed to the applicant and her husband, as well as James Interior Home Care; moreover it failed to take account of the evidence that James Interior Home Care was identified by the applicant as being in partnership with her business.

   (c) The Tribunal at [27] gave “no weight” to a contractor appointment form by which Cairns Platinum Reality appointed the applicant as a contractor, on the grounds that it did not purport to guarantee any income or ongoing work for the applicant. This failed to take account that the contractor appointment form did provide evidence of an ongoing business relationship between the applicant’s business and Cairns Platinum Reality which was relevant to the claim that the business was demonstrating strong business growth.

   (d) The Tribunal failed to make any findings in relation to the veracity of a letter confirming that the applicant’s business had been contracted by Cairns Quality Cleaning to do all its cleaning projects for about three years.

   3. The Tribunal failed to carry out the task required of it by reg.2.72(10)(f), in that it failed to undertake a qualitative analysis of the position associated with the nominated occupation and to compare that with the occupation which had been nominated by the applicant.

Ground 1

1. In relation to ground 1, Mr Poynder of counsel on behalf of the applicant took the Court to the statutory provisions and, in particular, the language in s.140GB of the Act referring to the applicant’s proposed occupation. Mr Poynder submitted that the Tribunal had, in essence, misconstrued the application of reg.2.72(10)(f) of the Regulations in respect of the position associated with the nominated occupation being genuine by treating the regulation as requiring that there had been in existence the nominated position.

2. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal clearly referred to whether or not the nominated occupation is genuinely needed by the nominated employer. That is entirely consistent with the Tribunal understanding that it is not the position that there must be in fact in existence the nominated position. No such error is made out.

3. Further the Tribunal’s reasons also refer, such as in paragraph 15, to the applicant being a cleaning business intending to nominate a Customer Service Manager. The Tribunal reasons make clear that the Tribunal understood that the application was one in respect of the applicant’s proposed occupation.

4. The reasoning of the Tribunal referring to the fact that the nominee is currently not working full time and is working only part time and does not assist with the cleaning were logical and rational matters to take into account in determining whether or not the requirements of reg.2.72 of the Regulations were met. The Tribunal’s reference to those matters and it not being satisfied that the full-time position exists are not a basis upon which to find that the Tribunal was introducing a requirement that there must be in existence at the time of the determination by the Tribunal the nominee’s proposed occupation.

5. The reference to “exist” by the Tribunal should not be read with a keen eye for error and was clearly an identification by the Tribunal that the position or proposed position was not genuine. The words “…and that it is what it purports to be” reinforce that proposition.

6. The Court does not accept that there was any requirement for any further qualitative test in respect of the issue of whether the position was genuine. Further, even if there were such a requirement, the Tribunal’s reference in its reasons to “…and that it is what it purports to be” in the context of the findings by the Tribunal reflect such a qualitative assessment.

7. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Poynder took the Court to material the subject of the post-hearing submission, all of which was identified by the Tribunal and all of which was the subject of consideration and reasons by the Tribunal addressing the same. Those reasons were open to the Tribunal and do not reflect any illogicality or unreasonableness. The disagreement with the adverse findings was nothing more than an application for merits review.

2. The Tribunal was not required to give weight to documents merely by reference to the provisions of the PAM3. It is apparent that the Tribunal took into account the PAM3. The Tribunal was not required by reason thereof to place no weight on documents that it identified. There are logical and rational reasons in support of the position taken by the Tribunal. The Tribunal, in relation to the letter prepared by the applicant and the nominee about their future hopes in respect of the business, was a document that did not address the lack of payment to staff or the lack of payment of income tax and superannuation. That was a legitimate and relevant matter for the Tribunal to take into account in deciding to give the document no weight.

3. The letter dated 29 December 2017 from Beaches was not addressed just to the applicant. The adverse finding by the Tribunal in that regard was open to the Tribunal.

4. It was also open to the Tribunal to take into account the want of guaranteed income in relation to a particular appointment. That was a logical and rational matter for the Tribunal to consider.

5. The Tribunal also considered another document provided from Cairns Platinum Reality. The Tribunal referred to the applicant’s expectation that the growth of the business on their business model would improve from that and they were a franchisee. The Tribunal took into account the want of contracts and agreements that would suggest the business’ turnover was about to increase so that the business was in a position to pay the salary of a team of cleaners and a Customer Services Manager.

6. In these circumstances, the Tribunal rejected the applicant’s claims that there had been demonstrated a strong growth and an overall increase in its client base to the levels over and above that needed by a one-man operational team. That adverse finding was logical and rational and cannot be said to lack an evident and intelligible justification.

7. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, for the reasons already given, the Tribunal was not required to engage in a qualitative analysis where the Tribunal had found there was no genuine position or proposed position. Further, even if there was such a requirement, it is apparent that the Tribunal did so given its reasons and, as summarised above, the reference to the words “…and that it is what it purports to be.”

2. No jurisdictional error as alleged in ground 3 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 25 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  23 April 2020