Lacina Wood Art Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 736
•15 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lacina Wood Art Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 736
File number: PEG 239 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 15 August 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse the applicant’s nomination application – whether the Tribunal failed to carry out its statutory task in determining whether the position was genuine – whether the Tribunal failed to have regard to a relevant consideration or evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 140GB, 476, 477
Migration Regulations 1994 (Cth) reg 2.72
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915
Cargo First Pty Ltd v Minister for Immigration (2015) 298 FLR 138; [2015] FCCA 2091
Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87; [2016] FCA 30
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111
Nutritional Choice Australia Pty Ltd v Minister for Home Affairs [2019] FCCA 1754
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 14 June 2024 Place: Perth Counsel for the Applicant: Ms S Frankel Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 239 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LACINA WOOD ART PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a company which lodged an application to nominate Mr Vojtech Lacina (nominee) for the position of cabinet maker under s 140GB of the Migration Act 1958 (Cth) (Migration Act). A delegate of the Minister refused the nomination application and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 20 September 2023. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act.
The applicant relies on two grounds of application, which allege that the Tribunal decision is affected by jurisdictional error because:
(a)the Tribunal failed to carry out the task required by reg 2.72(10)(a) of the Migration Regulations 1994 (Cth) (Regulations), which required it to consider whether the position associated with the nominated occupation was genuine; and
(b)the Tribunal failed to take into account a relevant consideration, being documents provided by the applicant relevant to the size and scope of the applicant’s business.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
NOMINATION APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant is a company that was registered in September 2018. The nominee is the sole director and shareholder of the applicant.
On 11 September 2019 the applicant lodged an application to nominate the nominee to the position of cabinet maker for a Temporary Skills Shortage (Subclass 482) visa in the medium-term stream (nomination application).
On 16 September 2019 the applicant was approved as a standard business sponsor.
On 17 October 2019 a delegate of the Minister refused the nomination application. The delegate was not satisfied that the nominated position was genuine and therefore found that reg 2.72(10)(a) of the Regulations was not satisfied.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 6 November 2019.
By an invitation sent on 26 May 2023 pursuant to s 359 of the Migration Act, the Tribunal invited the applicant to provide information addressing whether it met the criteria in reg 2.72 of the Regulations and s 140GB of the Migration Act.
The applicant provided a number of documents to the Tribunal on 9 June 2023 in response to the invitation.
The Tribunal convened a hearing on 10 August 2023 at which the nominee, as a representative of the applicant, gave evidence and presented arguments.
The applicant was given an opportunity to provide further documents after the hearing and on 16 August 2023 the Tribunal wrote to the applicant confirming the opportunity to provide documents that were identified in the letter.
The applicant provided the Tribunal with the further documents requested on 31 August 2023. Relevantly to the application before the Court, the applicant also provided a contract dated 21 August 2023 for the applicant to sell goods to Bohemia Gallery for the purchase price of $150,000 (and related documents), and a notice of demand to a third party for the payment of the outstanding amount of $23,205.16.
The Tribunal affirmed the delegate’s decision not to approve the nomination application on 20 September 2023.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its determination was whether the applicant met the criteria for approval of the nomination, including that it was an approved work sponsor and met the requirements in reg 2.72 of the Regulations.
The Tribunal referred to reg 2.72(10)(a), which requires that the Tribunal be satisfied that position associated with the nominated occupation is genuine. The Tribunal noted that while the relationship between the nominator and the nominee is a relevant consideration, it would be an error to find that the requirement cannot be satisfied because of that circumstance alone. The Tribunal referred to Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87; [2016] FCA 30 (Cargo First Appeal), in which the Court held that an earlier provision equivalent to reg 2.72(10)(a) required the Tribunal to undertake a qualitative analysis of the position that was the subject of the nomination to determine whether it was ‘genuine’.
The Tribunal identified that departmental policy suggested that a scenario like in this case could indicate that the position has been created to secure a migration outcome for the nominee or any of their family members, noting that it was open to the Tribunal to have regard to departmental policy, although it was not binding and would not be applied as law. The Tribunal recorded that it had taken into account some aspects of the departmental policy as a relevant consideration but accepted that this was not the only determinative factor of whether the position associated with the nominated occupation was genuine.
The Tribunal recorded that the applicant was registered as a business in Australia on 25 September 2018 and was a home furniture manufacturer. The Tribunal recorded that the applicant applied to be a sponsor and this was approved by the Minister’s Department on 16 September 2019 and was valid until 16 September 2024.
After considering the applicant’s company tax returns provided to the Tribunal, the Tribunal recorded that the applicant had not made a profit in some years and/or a reasonable profit from its inception. This was a concern for the Tribunal as it indicated that the turnover was not sufficient to employ the nominee at the rate advertised.
The Tribunal noted that the director of the applicant was the nominee who had made an application for Temporary Skills Shortage (Class GK) (Subclass 482) visa.
The Tribunal recorded that the applicant placed an advertisement on websites seeking to employ a cabinet marker and advertised that their wages would be $54,600 per annum. The Tribunal recorded that the applicant only received two applications from persons with the required experience for the role, and that the nominee gave evidence that none of the applicants had the necessary skills. The Tribunal expressed concern that the applicant had identified a genuine need to employ the nominee as it did not have the ability to pay the salary as advertised on the websites. The Tribunal recorded that this fact added weight to the proposition that the primary reason for the nomination being lodged was not to address the need of the business for a skilled worker, but to facilitate the grant of the visa to the nominee.
Based on the evidence given at the hearing and the documents provided, the Tribunal found that the primary reason for the applicant lodging the nomination of the position of cabinet maker was to facilitate the grant of the visa to the nominee. The Tribunal took into account in finding that the applicant had been set up to achieve a migration outcome and may not be genuine that:
(a)the nominee was the director of the applicant;
(b)the applicant had a low turnover and had for the last four years failed to make a reasonable profit at times and would be unable to sustain wages for the nominee as advertised;
(c)the nominee was in Australia at the time that the applicant was registered and was already working for the applicant;
(d)the proposed salary had never been paid to the nominee due to the low turnover of the applicant for the financial years ending 2019, 2020, 2021 and 2022; and
(e)the applicant made the nomination application after the nominee and his partner became aware that the nominee’s partner would not be successful in her application for a skilled visa.
The Tribunal placed a lot of weight on the nominee’s immigration history, including evidence given at the hearing that the nominee applied for the visa after his partner’s application for a short‑term skilled visa was refused. The Tribunal considered that the facts relating to the nominee’s immigration history added to the totality of the evidence going to the finding that the related visa application was not genuine.
The Tribunal referred to evidence of the nominee at the hearing that he was sure that the profit for the applicant would be more than $100,000 for the financial year ending 2023, but claimed that he had some difficulties in that regard and, in the submissions provided after the hearing, indicated that the actual total income for the applicant was $84,392, which resulted in a clear profit of $18,931. The Tribunal also referred to evidence in relation to the nominee’s submission in relation to work performed as a subcontractor, for which he had not yet been paid, and to work that he performed in Broome which included ‘flooring, partitioning and to put together prefabricated products’. The Tribunal considered that the nominee, in his own words, set out that some of the tasks he performed did not meet the tasks of a cabinet maker.
On the evidence before it, the Tribunal found that the applicant was not able to employ the nominee with such a low turnover. The Tribunal found that the requirement of reg 2.72(10)(a) of the Regulations were not met.
JUDICIAL REVIEW APPLICATION
The applicant filed the application for judicial review of the Tribunal decision on 21 October 2023. The application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The grounds relied on by the applicant are as follows (reproduced without alteration):
1.The Second Respondent’s decision was affected by jurisdictional error in that it failed to carry out the task required by regulation 2.72(10)(a) of the Migration Regulations 1994 (Cth) (Regulations).
Particulars
a.Regulation 2.71(10)(a) required the Second Respondent to assess the position as described in the position description against what was in fact required to be done and what was in fact done (Cargo First Pty Ltd v MIBP [2016] FCA 30; 242 FCR 87 at [34]).
b.The Second Respondent made no findings in relation to the nature of the business, what positions were required for the business to function, whether the nominee’s position existed or whether it was what it purported to be.
c.The Second Respondent failed to make any findings that could lead to an eventual finding that the position was not genuine.
2.The Second Respondent’s decision was affected by jurisdictional error as it failed to take into account a relevant consideration in reaching its decision that the requirements of regulation 2.72(10)(a) of the Regulations were not met in relation to the Applicant’s nomination application.
a.After the Applicant’s hearing on 10 August 2023, the Applicant provided further documents including:
i.a contract with Bohemia Gallery for sale of $150,000 worth of wooden basins, to be paid in instalments over a five-month period; and
ii.a letter of demand sent on behalf of the Applicant to a customer for the amount of $23,205.16 owed to the Applicant for work previously performed.
b.These documents were directly relevant to the size and scope of the Applicant’s business, and therefore the genuineness of the nominated position.
c.The Second Respondent failed to give any consideration to the two documents in deciding whether the Applicant met the requirements of regulation 2.72(10)(a) of the Regulations.
The evidence before the Court comprises the court book filed on behalf of the Minister on 29 November 2023 and an affidavit of Tareena Martin filed on behalf of the Minister on 31 May 2024, which annexes copies of a submission dated 8 June 2023 from the applicant to the Tribunal and an offer of employment from the applicant to the nominee dated 6 June 2023.
GROUND 1
The applicant’s submissions
In advancing this ground, the applicant relied on the observations of Judge Smith in Cargo First Pty Ltd v Minister for Immigration (2015) 298 FLR 138; [2015] FCCA 2091 (Cargo First) to submit that the Tribunal was required, in assessing whether the applicant met the requirements of reg 2.72(10)(a) of the Regulations, to make findings about the nature of the business and the nature of the duties of the nominated person, in order to make findings about whether the nominated person would genuinely be undertaking the relevant duties in the role. In her oral submissions, Counsel for the applicant submitted that the heart of the genuineness test determined in Cargo First and Cargo First Appeal is that a decision-maker must determine whether the position is what it purports to be.
The applicant submitted while the Tribunal referred to Cargo First Appeal for the proposition that it was entitled to go behind the certification made by the applicant in its application that the tasks of the position would constitute a majority of the tasks of the nominated occupation, the Tribunal did not then identify the method set out in Cargo First Appeal by which it was to decide whether the position was genuine or not.
The applicant submitted that the factors referred to by the Tribunal as explicitly influencing its decision do not have relevance to the central question of whether the position was what it purported to be, that is, whether the nominee would genuinely be undertaking the tasks of a cabinet maker if the nomination were to be approved. The Tribunal in its reasons made no findings about the nature of the work undertaken by the applicant, the scope of the business or the stated plans of the business when determining whether the position was genuine. Instead, the Tribunal relied entirely on findings about the applicant’s profitability, the position of the nominee as the applicant’s director and the nominee’s visa history. These factors do not displace the requirement to consider the actual position against the needs of the business. The applicant submitted that, in this case, the applicant provided clear, uncontested evidence of the provision of cabinet making services and that it had no other employees. In those circumstances it is difficult to see how, if it had considered the nature of the business, the Tribunal could have resisted a strong inference that the tasks of the position would in fact be performed by the nominee in the position. By failing to consider the genuineness of the position, the Tribunal failed to undertake its statutory task under reg 2.72(10)(a) of the Regulations.
In response to the Minister’s submission based on Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915 (Austwide Laser) (see below), Counsel for the applicant submitted that that case did not assist the Minister because that case still involved consideration of the nature of the business, the services it provided in the past and the fact that the position did not align with the main service offering of the business, which is exactly what a decision-maker needs to do when deciding if a position is genuine. While in that case, the Tribunal also concluded that the position had been created for the purpose of achieving a migration outcome, the Tribunal in the present case did not make any findings of that nature.
The Minister’s submissions
The Minister referred to a broader part of Cargo First to that referred to by the applicant. The Minister submitted that, having regard to the facts of that case, it was unsurprising that the courts in Cargo First and Cargo First Appeal focused on whether the actual duties aligned with their Australian and New Zealand Standard Classification of Occupations (ANZSCO) description in assessing the genuineness of the position in that case. The Minister submitted that importantly, the courts expressly stated that in assessing whether the duties relevant to the position included the majority of those referred to in the ANZSCO in respect of the nominated occupation alone was not the Tribunal’s task in determining whether the position was genuine.
In her oral submissions, Counsel for the Minister submitted that the fundamental difficulty the applicant faces with this ground is that, in considering whether it was satisfied that the position was genuine, the Tribunal was not simply required to determine that the duties relevant to the position included the majority of those in the ANZSCO. While Cargo First and Cargo First Appeal stand for the proposition that that can be something that assumes importance in a decision, it is not, by legislation or by case law, the only or even the primary consideration. The language used in the Cargo First cases is inclusive, suggesting that the matters can be looked at.
The Minister submitted that the present case was more analogous to Austwide Laser, in which the nominee was the sister of the sole director and shareholder of the applicant company and the nominated position was as a private tutor or teacher, despite the applicant company previously only being involved with the telesale of printer consumables, printers, data networking and cabling and sales training. The Court in that case found that a ‘temporal association between a nominated position and a qualifying occupation under the ANZSCO Code, constructed or engineered for the purpose of achieving a migration outcome, does not validate a position as being genuine’: at [14].
The Minister submitted that in considering whether it was satisfied that the position associated with the nominated occupation was genuine, the Tribunal was not simply required to determine whether the duties relevant to the position included the majority of those referred to in the ANZSCO in respect of the nominated occupation and, instead, in testing whether or not the position was genuine, the Tribunal was entitled to look at the question from a number of different perspectives. This is what the Tribunal did in the present case. The Minister submitted that other issues identified by the Tribunal assumed greater importance in the Tribunal’s analysis of whether the position was genuine than the position duties, the nature of the business, what positions were required for the business to function, whether the nominee’s position existed or whether the position was what it purported to be. The Minister submitted that a temporal association between the nominated position and a qualifying occupation under the ANZSCO Code, constructed or engineered for the purpose of achieving a migration outcome, does not validate a position as being genuine. The Minister submitted that this was particularly the case in circumstances where, as here, there were several concerning features regarding the applicant’s finances and ability to pay an employee in the nominated position, the leadership between the nominee and the applicant and the nominee’s migration history. Counsel for the Minister submitted that there was no requirement that the Tribunal consider the duties proposed and undertaken by the nominee in the nominated position as the primary consideration in determining whether the position was genuine.
Resolution
For the nomination to be approved, the applicant was required to satisfy the criteria in reg 2.72 of the Regulations. This included reg 2.72(10), which provides:
The Minister is satisfied that the position associated with the occupation is:
(a) genuine; and
(b) a full-time position.
As explained above, the Tribunal in this matter was not satisfied that the criterion in reg 2.72(10)(a) was met.
The main dispute between the parties in this ground is whether the Tribunal was required, in assessing whether the requirements of reg 2.72(10)(a) were met, to make findings about the nature of the business and the nature of the duties of the nominated person to determine whether the nominated person would genuinely be undertaking the relevant duties in the role.
The term ‘genuine’ is not defined and there are no mandatory considerations set out in the Migration Act or the Regulations to which a decision-maker must have regard in determining whether a position is genuine. Instead, as can be seen from the summary of the submissions above, the applicant relies on the judgments in Cargo First and Cargo First Appeal to support its arguments.
In the Cargo First cases, the applicant sought approval for a nomination relating to a position described as ‘Sales Manager’ and for the ANZSCO Code associated with ‘Sales and Marketing Manager’. The Tribunal considered the description of duties in the relevant employment contract to work at a Muffin Break café and considered that these duties were those of a manager of a Muffin Break café. The Tribunal considered that those duties included some elements of sales and marketing. However, given the nature and size of the applicant’s business as a franchise and the wide range of duties of the nominated position that were not consistent with the duties of a sales and marketing manager, the Tribunal was not satisfied that the position associated with the nomination was genuine.
At first instance, Judge Smith considered the construction of the requirement that ‘the position associated with the nominated occupation is genuine’, which at that time was reflected in reg 2.72(10)(f) of the Regulations. His Honour carefully considered those words within the relevant statutory regime. His Honour said, in explaining his approach to construction:
21.The word “genuine” is an ordinary English word meaning real or authentic. Thus, at first blush, the question is whether the position is real or authentic. However, the word “position” is qualified by the phrase “associated with the nominated occupation”. That qualification is not immediately comprehensible without reference to the context in which it is found. As will be seen, the focus of the statutory provisions relating to the grant of and sponsorship of applications for work visas is on classes of occupations in the first instance rather than on any specific position.
…
23.Section 140AA of the Act (introduced together with s.140GB by the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)) provides that one of the purposes of div.3A is to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents.
24.Consistently with that purpose, sub-reg.2.72(10)(f) was added (by Migration Legislation Amendment Regulation 2013 (No. 3)) in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia: Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146 issued by the Minister for Immigration and Citizenship.
His Honour then proceeded to refer to provisions that highlighted the importance of the identification of the nominated occupation and showed that the nomination of an occupation could not be successful unless the occupation is specified by the Minister in an instrument in writing: see [25]-[28].
His Honour then contrasted reg 2.72(10)(f) with other criteria in other parts of reg 2.72 that simply required the Minister to be satisfied that certain information and certifications had been included in an application for approval. His Honour said at [29]:
… By contrast, sub-reg 2.72(10)(f) requires the Minister to be satisfied that the relevant position is genuine. On its face, that criterion requires some analysis of the material before the decision-maker rather than simply the neutral observation of whether or not something is included in a form.
The conclusion his Honour reached in relation to the construction of reg 2.72(10)(f), and which both parties rely on in the present case, is set out at [30] of his Honour’s reasons (emphasis added):
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg 2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.
On appeal, the submissions of the parties were presented in a different manner. The focus of the construction argument was on the interrelationship between reg 2.72(10)(e) and (f) and Counsel for the appellant, in the course of his submissions, made a concession that, whatever may have been the certification provided by the approved sponsor for the purposes of reg 2.72(10)(e), the Minister could ‘go behind’ that certification and himself reach a state of satisfaction in relation to whether there was in fact a position of the kind identified in the nomination, whether the person occupying that position was in fact required to undertake tasks of the kind set forth in ANZSCO, and whether the tasks required to be undertaken included a significant majority of the tasks set forth in ANZSCO: Cargo First Appeal at [17]. As a result of this concession, Flick J said at [18]:
It is unnecessary to resolve whether or not reg 2.72(10)(f) has a wider ambit of operation and preserves an ability to “go behind” other aspects of a nomination that determine whether the position associated with a nominated occupation is “genuine”.
Justice Flick expressed the view at [36] of his reasons that the construction of reg 2.72(10)(f) embraced by Judge Smith was correct. His Honour also made some observations relevant to the matter currently before the Court at [34] of his reasons, where he said, in considering whether to grant leave to the appellant to raise a new ground to the effect that the Tribunal asked itself the wrong question:
… The findings of fact made by the Tribunal were all means by which the Tribunal addressed the question of whether the position associated with the nominated occupation was “genuine”. In testing whether or not that position was “genuine”, the Tribunal looked at the question from a number of different perspectives, including (for example) the job description in the employment contract and the tasks in fact being undertaken. In assessing (inter alia) what was in fact required to be done and what was in fact done, the Tribunal concluded that the position was that of a manager and not that of a sales or marketing manager. In making that finding it was addressing the question, as it expressly acknowledged at the outset of para [28] of its reasons, as to whether the nominated position was “genuine”.
The other case referred to in the parties’ submissions is Austwide Laser. In that case, the nomination application was made by a company whose business involved the telesale of printer consumables, printers, data networking and cabling and sales training. The company carried on another business as a learning institute and made a nomination application in respect of the position of principal tutor. The nominee for the position was the sister of the sole director and sole shareholder of the company. The Tribunal found that the position in respect of which the nomination application was made was not genuine. Upon judicial review, Judge Egan considered an argument that the genuineness of the nominated position should be assessed by reference to the nominated occupation and the character of the nominated occupation, informed by the ANZSCO Code, rather than by the identity of the nominee or the relationship between the nominee and the sponsor, as long as the nominee satisfies the criteria for the nominated position and is a skilled worker under the 457 program. At [14], his Honour said (emphasis added, footnote omitted):
The Tribunal did undertake a qualitative analysis of the position when compared with the nominated occupation. In doing so, the Tribunal was not constrained by any established “association” as submitted. A temporal association between a nominated position and a qualifying occupation under the ANZSCO Code, constructed or engineered for the purpose of achieving a migration outcome, does not validate a position as being genuine. The Tribunal was entitled, on the basis of the evidence before it, to have regard to the fact that:
(a)The nominee was the sister of the sole director and shareholder of the applicant.
(b)The nominee’s eldest son was studying in Australia, his having been enrolled at a private school in Australia by the nominee before the time of the nominee’s return to the UK with her husband and youngest child in July 2015.
(c)The applicant had not carried on the business of a learning institute before the nominee’s arrival in Australia;
(d)The applicant’s registration of the business name Megamind Learning Institute on 31 August 2015 was a short time before the nominee’s return to Australia in September 2015;
(e)The nominee’s period of “training” which commenced in January 2016 coincided with the commencement date of the MMLI business;
Having regard to the Tribunal reasons in the present matter, and the Cargo First cases and Austwide Laser, I am not satisfied that the applicant has established that the approach of the Tribunal is affected by jurisdictional error.
In the present case, in assessing whether the position was genuine, the Tribunal referred to the approach approved in Cargo First Appeal, noted that the relationship between the nominator and the nominee was a relevant consideration but that the Tribunal could not find that the requirement could not be satisfied based on that circumstance alone (citing Nutritional Choice Australia Pty Ltd v Minister for Home Affairs [2019] FCCA 1754 at [94]) and referred to Department policy, acknowledging that it could have regard to the policy but that it was not binding and should not be applied as law.
A primary reason for the Tribunal finding that the position was not genuine was because it had been set up to achieve a migration outcome. The Tribunal relevantly said at [35] and [36]:
35.The Tribunal finds that the evidence suggests that that the primary reason for the nomination of the position of cabinet maker by the company, has been lodged to facilitate the grant of the visa for the nominee based on the evidence of the applicant at the hearing and the documents lodged with the Review Application.
36.The evidence that the Tribunal has taken into consideration when arriving at the finding that the sponsoring company has been set up to achieve a migration outcome and may not be genuine is as follows:
The nominee is the Director of the Company.
The company has a low turnover and has for the last 4 years failed to make a reasonable profit at times and would be unable to sustain wages for the nominee as advertised. In accordance with his personal tax return. He earned the sum of $17,856 income from the sponsoring business for the year ending 2021. He received nil income for the year ending 2022.
The nominee was in Australia at the time that the company was registered and already working for the sponsor.
The proposed salary has never been paid to the nominee due to the low turnover of the business for the years ending 2019,2020,2021, and 2022.
The company made the application after the nominee and his partner became aware that she would not be successful in her application for a Skilled Visa.
The Tribunal also had regard to factors such as that the applicant was registered in September 2018 and is a home furniture manufacturer (at [21] of the Tribunal’s reasons), that the applicant placed an advertisement on a website seeking to employ ‘a cabinet maker (ANZSCO 39411)’ at advertised wages of $54,600 per annum (at [28] of the Tribunal’s reasons), the applicant’s evidence that the profit of the company would increase for the year ending 2023 (at [41] of the Tribunal’s reasons), and some of the work or projects that the applicant was engaged to perform, including that some of the work carried out by the nominee ‘did not fit the description for the role of cabinet maker’ (at [42] of the Tribunal’s reasons, see also [43]).
It can be seen from this that although the Tribunal’s reasons briefly touch upon some of the matters considered by the Tribunal in reasoning that was approved in the Cargo First cases, and the Tribunal approached the case from a number of perspectives, more focus was placed on the Tribunal’s finding that the position was created to achieve a migration outcome.
Such an approach is not inconsistent with the Cargo First cases and is consistent with Austwide Laser. The Cargo First cases show that a decision-maker is entitled to look behind the characterisation of the certification of the nominator in respect of a nominated position and to conduct a qualitative analysis of whether the position is what it purports to be. In a case such as Cargo First, where an issue for the Tribunal was whether the position being performed by the applicant was in fact the nominated position, that would, as Judge Smith found, necessarily require ‘a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor’: at [30]. However, the Cargo First cases do not preclude a decision-maker finding that a position is not genuine for a different reason. As Judge Egan’s judgment in Austwide Laser shows, a position may be found not to be genuine even where there is the necessary association with the position and the nominated occupation (having regard to ANZSCO where appropriate), if the position has been created to manufacture a migration outcome.
That is essentially what the Tribunal found in the present case. It was open to the Tribunal to find that the position was not genuine having regard to its finding that the primary reason for the nomination for the position of cabinet maker by the applicant was to achieve a migration outcome, namely, to facilitate the grant of a visa to the nominee and his partner, without also engaging in a detailed comparison of the position to be performed by the nominee and the nominated occupation. Even if the Tribunal had found that there was the requisite association between the position and the nominated occupation, it would still have been open to the Tribunal to find that the position was not genuine taking into account its finding that the primary reason for the nomination for the position was to achieve a migration outcome.
Ground 1 is not established.
GROUND 2
The applicant’s submissions
The applicant submitted that the Tribunal’s decision was based in part on its finding that the applicant was not in a position to pay the nominated salary of $54,600 due to the fact that in previous years, its turnover and profit had been significantly lower than this figure. The applicant had provided to the Tribunal a signed contract for the sale of goods with Bohemia Gallery worth $150,000 to be paid in instalments over the subsequent six-month period, a bank statement showing that the first instalment had been paid, a letter from Bohemia Gallery confirming the arrangement and a letter of demand to a third party for the sum of $23,205.16 which was owed to the applicant. These documents were accompanied by a submission addressing the relevance of the documents to the applicant’s financial position.
The applicant submitted that the combined value of the Bohemia Gallery contract and the letter of demand were by themselves enough to cover the nominee’s salary for three years and this was extremely strong evidence of the applicant’s ability to pay the nominee’s salary should the nomination be approved. Counsel for the applicant submitted in her oral submissions that given the contract with Bohemia Gallery was for a very significant amount of money given the previous turnover of the applicant, and that there was evidence that the contract had at least commenced being fulfilled with the first instalment paid, that was vital evidence for showing that the applicant had the funds to support the position.
The applicant submitted that the Tribunal did not consider these documents and only referred to them in a list of documents provided to the Tribunal after the hearing. The applicant submitted that this does not evidence the type of consideration required by cases such as Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17. The applicant submitted that the issue of whether it could pay the nominee the nominated salary was determinative of the Tribunal’s eventual decision. In those circumstances a failure of the Tribunal to deal with the financial evidence in its reasons raises a strong inference that the information was overlooked.
The Minister’s submissions
The Minister submitted that the Tribunal expressly referred to the documents that it is said to have overlooked at [9] of its reasons and provided a detailed summary of the applicant’s evidence concerning the expected business profit for 2023 as well as the significant cash flow issues that arose from a third party owing the applicant $23,205.16 at [41] of its reasons.
The Minister submitted that it is well-established that it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons, and there is a distinction between the Tribunal failing to avert to evidence which, if accepted, might have led it to make a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant met a criterion for the grant of the visa.
The Minister noted the applicant’s complaint that these documents were directly relevant to the size and scope of the applicant’s business and therefore the genuineness of the nominated position, but submitted that they did not address the Tribunal’s primary concerns about the applicant’s lack of profit historically and it being unable to pay the salary for four years, the relationship between the nominee and the applicant, the nominee’s concerning migration history and the nominee already being in Australia at the time that the company was registered and working for the sponsor. The Minister submitted it was entirely open to the Tribunal to focus on the applicant’s historical lack of profit and inability to ever pay the nominee’s salary given these were facts established on the material, including company and personal tax returns, whereas the projected earnings from the applicant’s contract with Bohemia Gallery and the letter of demand were still speculative.
The Minister also submitted that the applicant’s submission that the combined value of the Bohemia Gallery contract and the letter of demand were by themselves more than enough to cover the nominee’s salary for three years is misleading because it ignores the applicant’s operating costs and assumes that the amounts the applicant could receive from these two parties would be entirely available to pay the nominee’s salary. Therefore, the claimed importance of these materials should not be accepted by the Court.
Resolution
The parties have relied on different authorities in advancing their submissions on this ground.
The applicant relies on Plaintiff M1, in which the High Court said at [24]-[27] (footnotes omitted):
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The applicant’s position is that the documents were provided as evidence to support its representation that its future turnover would be much higher than previous years. The applicant relied on KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111 at [53] to support the proposition that it is not necessary to distinguish between claims and evidence and that the fundamental question is the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.
On the other hand, the Minister relies on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, where the Full Court said at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The Tribunal in this matter was aware of the evidence relating to Bohemia Gallery and to the demand letter sent to a third party for the repayment of outstanding moneys owed, having expressly referred to having received it at [9] of its reasons. The evidence was not completely overlooked, but rather, the applicant’s ground turns on whether the Tribunal sufficiently engaged with the evidence.
The applicant provided the relevant documents to the Tribunal together with a submission or cover letter dated 30 August 2023. The cover letter referred, amongst other things, to letters of reference and to current projects of the applicant, as well as the circumstances in which the third party came to owe money to the applicant. In respect of the Bohemia Gallery documents, the applicant said in the cover letter:
Furthermore, I would like to present an international contract that I established with my client located in the Czech Republic who is retailing my wooden basins locally over Europe. I am pleased to announce that we have started shipping our bespoke wooden basins to Europe again after a break due to Covid-19. My client [MK] who is managing his company Bohemia Gallery in the Czech Republic, provided me with his reference letter about our relationship and the contract. This reference letter is attached and you can find the translation from Czech to English by certified NAATI translator …. [MK] is our most valuable client and his decision to purchase 15 wooden basins is absolutely crucial and astonishing for our company. These fifteen basins need to be delivered by 31st January 2024 to the Czech Republic. [MK] and I agreed that the purchased price will be split into the repayments. I have received the first payment already on 25th August 2023…
The Tribunal was also clearly aware of, and had regard to, the cover letter, having referred to it in its reasons at [41] and [42], albeit not the passage in relation to Bohemia Gallery. The Tribunal said at [41]:
In the evidence provided at the hearing Mr. Lacina stated that he was sure that the profit for the business would be more than $100,000 for the year ending 2023. However, he claimed that he had some difficulties in respect of that and stated in the submissions filed after the hearing as follows:” I would like to provide additional information regarding the expected earnings of LACINA WOOD ART Pty Ltd for the 2023 financial year, as discussed during my recent AAT hearing. During that discussion, I estimated a total income of around $100,000. However, after carefully reviewing all financial documents with my accountant, it has been determined that the actual total income for LACINA WOOD ART Pty Ltd is $84,392. This has resulted in a clear profit of $18,931. I want to highlight that despite facing challenges, the 2023 financial year has been the best for our company so far. Unfortunately, we encountered a major issue that significantly affected our cash flow. I worked as a subcontractor, providing cabinetmaking and carpentry services to [PE] … in Perth, WA, from February to March 2023. At the beginning things seemed positive, and we agreed that I would invoice my work to [PE] every 2 weeks. However, even after completing the 1st two weeks of work and sending my initial invoice to him and his accountant, I have not received payment for that invoice. Believing that the situation would improve, I continued to work for another week. [PE] then apologised and promised to pay the invoice at the start of the next week. Unfortunately, this promise was not fulfilled. This pattern continued after my second fortnight of work and the submission of my second invoice. As a result, [PE] currently owes my company and me a total of $23,205.16.”
I am satisfied from the reference to the representations set out at [41] of the Tribunal’s reasons that the Tribunal appreciated that the applicant was advancing a submission that its financial position was improving. I am also satisfied that this paragraph shows that the Tribunal understood the representations being made with respect to the outstanding debt owed by a third party. It is implicit from the Tribunal’s reasons that this did not overcome its concerns in respect of the applicant’s historical lack of profit and inability to pay the nominee’s salary, the relationship between the nominee and the applicant, the nominee’s migration history and the nominee already being in Australia at the time the company was registered and already working for the sponsor and I accept the Minister’s submission that the financial documents the subject of this ground did not address these concerns.
While I acknowledge that the Tribunal did not expressly refer to the documents relating to the contract with Bohemia Gallery, other than to indicate that they had been provided, I do not draw any inference that the Tribunal overlooked these documents or did not consider them in making its decision. In addition to those documents not addressing the primary concerns of the Tribunal in this matter, I also accept the Minister’s submission that it was open to the Tribunal to focus on the applicant’s historical lack of profit and inability to ever pay the nominee’s salary in reaching its decision. I draw the inference that the Tribunal considered the Bohemia Gallery documents but did not consider the evidence significant enough to the decision it made and the matters that it considered to be determinative to expressly refer to those documents in its reasons. There is nothing in the submission relating to the Bohemia Gallery documents that otherwise made it necessary for the Tribunal to expressly refer to the documents in its reasons.
To that end, I acknowledge the applicant’s submissions to the Court about the size of the contract being significant to the company in the context of its previous income. However, I do not accept the applicant’s submission that the combined value of the Bohemia Gallery contract and the letter of demand by themselves were enough to cover the nominee’s salary for three years that this was ‘extremely strong evidence’ of the applicant’s ability to pay the nominee’s salary. The bulk of the projected income was based on the Bohemia Gallery contract but does not account for anticipated expenses and does not show the anticipated profit of the company or whether it would be able to pay the nominee’s wages. It was open to the Tribunal to place greater weight on the historical inability to pay the nominee in finding that it was not satisfied that the applicant was able to employee the nominee with such a low turnover.
Ground 2 is not established.
CONCLUSION
The applicant has not established that the Tribunal made a jurisdictional error in making its decision. The application to this Court is therefore dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 August 2024
1
13
2