LI Tian v Minister for Immigration
[2009] FMCA 930
•21 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI TIAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 930 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the employer nominating for an approved position must be the same employer at the time of the Migration Review Tribunal’s decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 Migration Regulations 1994, reg.5.19; 5.19(1); 5.19(2); 5.19(2)(f) |
| First Applicant: | LI TIAN |
| Second Applicant: | JIA JUN YE |
| Third Applicant: | JIA XIN YE |
| Fourth Applicant: | SONG TAO YE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1194 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 September 2009 |
| Date of Last Submission: | 9 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1194 of 2009
| LI TIAN |
First Applicant
| JIA JUN YE |
Second Applicant
| JIA XIN YE |
Third Applicant
| SONG TAO YE |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated
7 May 2009 and handed down on 8 May 2009.
The applicants are citizens of the People’s Republic of China (“China”) and the first named applicant (“the Applicant”) is the mother of the second and third named applicants and the wife of the fourth named applicant. All three of the second, third and fourth applicants’ visa applications are dependent upon the Applicant’s visa application.
The Applicant arrived in Australia on 2 April 2003, having been granted permission to work in Australia from 14 March 2003 to 14 March 2007, by the then Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
On 17 February 2005, Revetec Limited lodged an application for approval of a nominated position under reg.5.19 Migration Regulations 1994 (“the Regulations”).
On 10 March 2005, the Applicant lodged an application for an Employer Nomination (Residence) visa with the Department under the Act.
On 6 July 2005, the application of Revetec Limited for approval for a nominated position became an “approved appointment”. The Applicant was nominated by Revetec Limited to fill the position of Sales and Marketing Manager.
On 25 November 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for an Employer Nomination visa.
On 12 December 2005, the applicants lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 21 June 2007, the Migration Review Tribunal (“the First Tribunal”) affirmed decision of the Delegate not to grant the Applicant an Employer Nomination visa.
On 21 April 2008, Federal Magistrate Orchiston dismissed the proceeding before her for judicial review of the decision of the Migration Review Tribunal dated 21 June 2007.
On 29 August 2008, the Federal Court of Australia upheld an appeal from the decision of Federal Magistrate Orchiston and remitted the matter to the Migration Review Tribunal for determination according to law.
On 18 December 2008, the Migration Review Tribunal, differently constituted, (“the Tribunal”) wrote to the Applicant’s authorised recipient inviting comment on the information that may be a reason for affirming the decision under review. The information was a search conducted on 18 December 2008 of ASIC’s company name search website which indicated that Revetec Limited had been deregistered on 8 April 2008 and therefore was not the nominated employer at the relevant time of the Tribunal’s decision.
On 26 February 2009, the Applicant and her authorised recipient attended a hearing before the Tribunal. On 7 May 2009, the Tribunal affirmed the decision of the Delegate to refuse the Applicant a subclass 856 permanent visa. The decision of the Tribunal is accurately summarised in the written submissions of counsel for the First Respondent, Mr Potts, as follows:
“The Tribunal found that Revetec Limited was the employer which had nominated the applicant in respect of an appointment in the business of Revetec Limited, however at the time of the decision, the applicant could not be employed in the business of Revetec Limited, as Revetec Limited no longer existed, as it was deregistered by ASIC on 8 April 2008. Therefore the applicant could not be employed by Revetec Limited in relation to an approved appointment. For those reasons the Tribunal found the applicant did not satisfy the criteria in cl.856.221.”
On 18 May 2009, the Applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision.
At the hearing before this Court, the applicants were represented by their solicitor, Mr Jones. Mr Jones confirmed that the applicants relied on the ground identified in the application for review filed on 18 May 2009. That ground is as follows:
“The Tribunal misinterpreted the law by finding that the First Applicant did not satisfy the criteria in cll 856.221 and 856.222.
Particulars
The First Applicant was the subject of an approved appointment which had been submitted by a company which had subsequently been taken over by another company that had acquired 100% of its business, including the approved appointment. The Tribunal concluded that the approved appointment was therefore no longer available to the First Applicant and could not provide her with the employment referred to in the relevant employer nomination. The Tribunal did not take into account that the second company was a successor to the first, and interpreted the legislation in a manner that was so narrow and literal as to defeat the clear legislative intent.”
The relevant criteria for a subclass 856 visa for the matter before this Court are the following:
“856.213 Each of the following is satisfied:
(a) the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
…
856.22 Criteria to be satisfied at time of decision
…
856.222 The Minister is satisfied that the appointment mentioned in paragraph 856.213 (a) will provide the employment referred to in the relevant employer nomination.” (Emphasis added)
Subclass 856 is titled “Employer Nomination Scheme” and 856.1 provides that an “approved appointment” is defined in reg.5.19.
Regulation 5.19 sets out the criteria that a nominating employer must satisfy for the approval of a nominated position as an approved appointment.
The relevant regulations of the scheme are as follows:
Reg.5.19(1)
“(1) An employer may apply to the Minister for approval of a nominated position as an approved appointment”
Reg.5.19(2)
(2) An employer nomination meets the requirements of this subregulation if:
(a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee ) in a business:
(i) actively and lawfully operating in Australia; and
(ii) operated by that employer; and
(b) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(c) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(d) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business; and
(e) the Minister is satisfied:
(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and
(f) the appointment will:
(i) provide the employee with full‑time employment; and
(ii) be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
(g) the employee's working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h) the tasks to be performed in the nominated position:
(i) correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(ii) will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made ; and
(i) the employee will be paid a salary in the nominated position that is at least the salary specified , for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.” (Emphasis added)
The purpose of the scheme is to enable an employer with a business located in Australia and operated by that employer to employ a “highly skilled person” in order to necessarily fill a gap in that employer’s business in accordance, relevantly, with reg.5.19(2).
In the matter before this Court, the nominating employer seeking approval for the approved appointment was Revetec Limited. However, as referred to above, prior to the decision of the Tribunal Revetec Limited had been deregistered on 8 April 2008.
On 30 January 2009, Revetec Holdings Limited wrote to the Tribunal in the following terms:
“Revetec Holdings was incorporated to meet the public listing requirements of the Newcastle Stock Exchange and Australian Security & Investments Commissions Requirements in 2005.
The reason was that in April 1996, Bradley Howell-Smith incorporated Revolution Engine Technologies Pty Ltd for the purposes of building the initial CCE prototype. Revetec Limited was established in August 1997 for the purpose of acquiring 100 per cent of the issued shares in Revolution. Revetec Holdings Limited was incorporated on 4 August 2005 to acquire the business assets of Revetec Limited.
Revetec is essentially the successor of Revetec Limited. As a result it has a new ABN and ACN number. Revetec Holdings Limited therefore continues the support of Ms Tian Li’s sub-class 856 visa application. Sponsorship undertakings remain the same.”
The letter makes clear that the business of Revetec Limited was transferred to Revetec Holdings Limited. The letter states that Revetec Holdings Limited continues to support the Applicant’s subclass 856 visa application and states that “sponsorship undertakings remain the same.”
At the heart of Mr Jones’ submission on behalf of the applicants is that the purpose of 856.221 is served where there has been no substantive change to the facts and circumstances that justified the approval of the nomination between the date of that nomination and the time of the decision to grant the Applicant a subclass 856 visa. Mr Jones submitted that the evidence before the Tribunal made clear that the business of Revetec Holdings limited is identical with the business of Revetec Limited in that it acquired the “goodwill, assets and liabilities and the employees” of Revetec Limited, including, specifically, the “sponsorship” of the Applicant.
Relevantly, the Tribunal stated as follows:
“Revetec was the employer who nominated the applicant in respect of an appointment in the business of Revetec. However, at the time of the decision, the applicant cannot be employed in the business of Revetec as Revetec no longer exists as it was deregistered by ASIC on 8 April 2008. Therefore, the applicant cannot be employed by Revetec in relation to an approved appointment and the Tribunal finds accordingly.”
Mr Jones submitted that the Tribunal should have had regard to the nature of the business and whether the business and employment were continuing, rather than having regard to the specific identity of the employer. Mr Jones submitted that the relevant criteria of 856 are met because the Applicant’s job did not change upon the deregistration of Revetec Limited, the nominating employer, and the business of Revetec Limited continued to be conducted by Revetec Holdings Limited.
Counsel for the First Respondent, Mr Potts, submitted that reg.5.19 makes plain that an “approved appointment” is entirely employer specific. Mr Potts submitted that reg.5.19(2) in referring to an “Employer Nomination” is referring to the specific employer nomination by the employer with a need for a highly skilled employee in a business that is located in Australia and operated by that specific employer. I agree.
Regulation 5.19(2) makes clear that the criteria that the specific employer must satisfy includes that the specific employer has made and continues to make adequate provision for training existing employees (or for future training of employees if the business is newly established); and, that the Minister is satisfied that a suitable Australian citizen or permanent resident cannot be found, in which case, the specific employer should not be required to seek a suitable employee in Australia. Regulation 5.19(2)(f) provides that an employee employed in such circumstances must be engaged in accordance with the standards for wages and working conditions provided under relevant Australian legislation and awards.
In accordance with 856.22, the criteria in 856.221 to be satisfied at the time of decision makes clear, that it is the appointment referred to in cl.856.213(a) that is the “approved appointment”. Clause 856.222 refers to “the employer referred to in the relevant employer nomination”. To my mind, those words make clear that the reference is specific to the employer in respect of whom approval to nominate was granted, namely Revetec Limited and not Revetec Holdings Limited.
In the circumstances, Revetec Limited’s approval for its nominated position in respect of the Applicant, as an approved appointment obtained under reg.5.19, is not capable of being transferred to another employer. Plainly Revetec Holdings Limited is a different entity to Revetec Limited. Revtec Holdings Limited would, therefore, in any legal sense be a different employer to the specific employer, Revetec Limited, in respect of whom approval was granted on 6 July 2005 for the nominated position. Clause 856.213(a) makes clear that the appointment in the business is of “that employer”, being the specific employer nominated in accordance with reg.5.19(2), namely Revtec Limited.
In the circumstances, the Tribunal’s finding that, at the time of its decision, the Applicant was not employed in the business of Revetec Limited was correct as Revetec Limited no longer existed, having been deregistered by ASIC on 8 April 2008. The Tribunal’s findings that the Applicant was therefore not employed by Revetec Limited in relation to an approved appointment at the time of its decision was open to it on the evidence and material before it and for the reasons it gave. The Tribunal applied the correct law to its findings in considering whether or not the Applicant satisfied the statutory criteria for a subclass 856 visa. The Tribunal’s finding that the Applicant, therefore, does not satisfy the criterion in cl.856.221 is without error.
Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 18 September 2009
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