MAHESAN v Minister for Immigration

[2016] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHESAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1289

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Temporary Business Entry (Class UC) visa – whether the applicant was working as a full-time naturopath – whether the applicant’s intention to perform the nominated role was genuine – whether the position associated with the nomination was genuine – whether the Tribunal imported a requirement not in the statutory scheme – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 2, cl.457.223(4)(d)

Applicant: VIGNESWARAN MAHESAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3083 of 2015

Judgment of: Judge Street

Hearing date: 30 May 2016

Date of Last Submission: 30 May 2016

Delivered at: Sydney

Delivered on: 30 May 2016

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Christopher Levingstone & Associates

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3083 of 2015

VIGNESWARAN MAHESAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 26 October 2015 affirming the decision of a delegate not to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The applicant is a national of Malaysia.  On 22 August 2013 the applicant applied for a subclass 457 visa on the basis of his proposed employment with Australian Health Marketing Pty Limited, the sponsor, in the occupation of naturopath. On 5 December 2013 the delegate refused to grant the relevant visa, and relevantly found on the evidence that the staff hired by the sponsor are sales consultants who are provided with in-house training and does not establish a need for a naturopath as part of their team.

3. The delegate said, taking into account all this information, it appears the nominee will be acting more in a sales management position than in the role of a naturopath.  The delegate found consequently that the tasks of the position are inconsistent with the nominated occupation:

   I do not consider the position associated with the nominated occupation to be genuine and the primary applicant does not meet subparagraph 457.223(4)(d)(ii).

4. It was in those circumstances that the delegate found that the requirements of cl.457.223(4)(d) were not met. Clause

5. 457.223(4) provides relevantly as follows:

   …

   (4) The applicant meets the requirements of this subclause if:

   (d)  the Minister is satisfied that:

   (i)  the applicant's intention to perform the occupation is genuine; and

   (ii)  the position associated with the nominated occupation is genuine;

   …

6. On 13 December 2013 the applicant applied for a review.  On 17 November 2014 the Tribunal wrote to the applicant inviting the applicant to provide information to demonstrate:

   ...that the position that is associated with the nominated occupation of naturopath is genuine and that your intention to perform the occupation is genuine. 

7. On 24 November 2014 material was provided, in response to that invitation to the applicant, seeking to respond to the invitation.   Part of that information included a statement from a former franchisee of the relevant shop asserting the need for “an in-store naturopath who plays a very important role in fulfilling the many needs of our customers”.  That statement identifies the proposition that it is essential that the health food store needs a naturopath.

8. An organisational chart was also provided in relation to the relevant store that identified the applicant being in the position of franchisee and store naturopath.  Underneath that was the position of store manager.  Underneath that was the position of shop sales team reporting back to the manager, and natural juice sales team reporting back to the manager.  The information included a summary of the duties and responsibilities of the position of naturopath in specific roles. 

9. The information alleged that the specific roles included performing an initial consultation with clients to examine their current state of health and lifestyle, identifying the root cause of the individual’s presenting complaint.  The summary continues that:

   In many cases, this leads to a diagnostic consultation being booked in to carry out diagnostic tests such as zinc taste tests, nail analysis, tongue analysis, urine analysis, iridology.

10. The naturopath’s specific roles then asserts there are created individualised treatment plans including nutritional programs.  Part of the functions alleged are conducting follow up appointments, to monitor patient progress and make changes to individual programs as necessary.

11. On 13 March 2015 the Tribunal invited the applicant to appear at a hearing on 15 April 2015.  The applicant appeared on that date to give evidence and present arguments, and was assisted by his registered migration agent.  Further material was provided to the Tribunal after the hearing under cover of a letter, dated 21 April 2015. 

12. The Tribunal identified the applicant’s claims and evidence and, in particular, the assertion:

    The sponsor genuinely requires a full time naturopath to assist the business with current operations and with proposed future endeavours that they hope to pursue.

13. The Tribunal went on to identify the evidence of the applicant in relation to the duties and responsibilities that the applicant was said to perform.  The applicant is, in fact, the franchisee of the business from the time it was purchased.  The franchisee is someone who must be resident in Australia.  The business owner does not reside in Australia.  The franchisor requires a qualified person to be the franchisee.  The two directors of the sponsor do not live in Australia.

14. In response to the question whether the applicant was answerable to the store manager, the applicant responded “no” to the Tribunal in regard to sales, but said that they both work together. The Tribunal, in its reasons, expressly records informing the applicant that it has to be satisfied that the position associated with the nominated occupation is genuine.  The Tribunal expressed its concern in relation to the duties in which the applicant was involved having changed since the duties were first provided.

15. It was in those circumstances the Tribunal asked the applicant why it should accept the duties were correct. The Tribunal informed the applicant in the hearing that it had concerns as to whether there is a need for a full time naturopath. The applicant sought to respond in that regard.  The Tribunal raised with the applicant its concern in that respect because of the want of any detailed record-keeping as to the function performed by the applicant as a naturopath in that occupation.

16. The applicant informed the Tribunal that the duties were correct, but the percentages are not right any more.  The applicant informed the Tribunal that everyone in the store, other than the applicant, is involved in sales. The Tribunal raised with the applicant how it was that he monitored patient progress if he does not keep records. 

17. The Tribunal informed the applicant that it had concerns that records are not kept, and the Tribunal wonders how many people the applicant, who is the franchisee and also the person employed, actually sees. The Tribunal informed the applicant that it has to be satisfied that the nominated occupation is genuine and also that the position has not been created only for the purpose of gaining entry to Australia for the applicant.

18. The Tribunal brought to the applicant’s attention that the contract that the applicant had provided has the duties and responsibilities in the schedule attached to the offer of employment and basically is just copied from what were the tasks in ANZSCO.  The Tribunal raised with the applicant that whilst he may perform each of the tasks, the Tribunal may not be satisfied there is a need for a full time employee to perform all the tasks. 

19. The Tribunal asked the applicant how he can monitor patient progress if he does not keep a record of what he has actually recommended.  The Tribunal provided the applicant with the opportunity to provide further information after the hearing.  It was in those circumstances that the Tribunal turned to assess the requirements of cl.457.223(4)(d), identifying that this required the applicant’s intention to perform the occupation is genuine and the position associated with the nominated position occupation is genuine.

20. The Tribunal found that there are some significant concerns as to whether the applicant meets cl.457.223(4)(d). In that regard, the Tribunal referred to the want of record keeping by the applicant.  The Tribunal identified that it accepted, on the documentary evidence produced, that the applicant is a naturopath and that some of the work he undertakes at the health food store is as a naturopath. 

21. The Tribunal said it was not satisfied there is a need for a full-time naturopath at the health food store.  The Tribunal said it was not satisfied that the applicant worked full-time as a naturopath.  The Tribunal records:

    The applicant stated that there is a need for a full-time naturopath because the business is reliant on naturopathic advice to boost sales.

22. The Tribunal referred to the applicant’s evidence at the hearing that he had not been involved in sales and yet also gave evidence that there is a need for a full-time employee in the position of naturopath, because the business is reliant on naturopath advice to boost sales.  It was in those circumstances that the Tribunal made the following findings:

    101. The Tribunal has considered the evidence but does not accept that the applicant works fulltime as a Naturopath because he has provided little documentary evidence that he is employed full-time as a Naturopath. The Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal has considered all the evidence and is satisfied that the applicant works as the franchisee running the business and also works, when needed, as a Naturopath. The Tribunal is not satisfied that the position of Naturopath is a full-time position. The Tribunal does not accept that it does not look professional if the applicant has to record the advice or recommendations he gives to customers. The Tribunal is not satisfied that the applicant has been working full-time in the position of Naturopath for the sponsor. The Tribunal is not satisfied that the applicant intends to work full-time in the position of Naturopath. The Tribunal is not satisfied that the applicant’s intention to perform the nominated occupation of Naturopath is genuine. The Tribunal finds that the applicant does not satisfy cl.457.223(4)(d)(i) and (ii).

23. Mr Mostafa, the counsel for the applicant, relied upon the following ground in the application:

    The Administrative Appeals Tribunal erred in finding that the applicant did not meet the requirements of cl. 457.223 (4) (d) of the Migration Regulations (1994) ('the Regulations') because the applicant's intention to perform the occupation was not genuine and the position associated with the nominated occupation was not genuine.

    a. In making the relevant finding, the Tribunal imported a requirement that there be a need for a full time naturopath (the nominated occupation) in the business of the sponsor (paragraph 87 of the decision record). The requirement for the nominated occupation to be a position in the business of the sponsor is a requirement under Regulation 2.72 (10) (f) of the Regulations and is a criteria for the approval of a subclass 457 nomination application; and

    b. The Tribunal imported a requirement that the applicant be performing the nominated occupation in the business of the sponsor on a full time basis in order for the position to be genuine (paragraph 101 of the decision record).

24. Mr Mostafa of counsel contended that the Tribunal had, in substance, introduced an erroneous requirement of full-time occupation that was not part of the criteria under cl.457.223(4)(d).  Moreover, Mr Mostafa said that it was apparent that the Tribunal had accepted that the applicant did perform work as a naturopath and, in those circumstances where the Tribunal has not found the position of a naturopath not to be undertaken at all, that the Tribunal had erred in determining whether the applicant met the requirements under cl.457.223(4)(d).

25. The Tribunal did not find that the applicant performed the position of a naturopath, rather the Tribunal found, in the paragraph quoted above, that the applicant works as the franchisee running the business and also when needed as a naturopath.  The Tribunal did not find that there was a position of naturopath that the applicant performed but, rather, that there was work, when needed, undertaken by the applicant as a naturopath.  It was in those circumstances the Tribunal came to the finding that it was not satisfied the position of naturopath is a full-time position.

26. The relevance of that consideration by the Tribunal was because that is what the applicant claimed there was a need for on the basis the business was reliant on naturopathic advice to boost sales.  It was in those circumstances, given the description of the position advanced by the applicant, that the Tribunal went on to make adverse findings that it was not satisfied that the applicant worked full-time in the position of naturopath for the sponsor.

27. It was on that basis that the Tribunal came to the view that it was not satisfied that the applicant’s intention to perform the nominated occupation was genuine.  That adverse finding cannot be said to lack any evident and intelligible justification.  I do not accept that the Tribunal has introduced an extraneous requirement for the position to be full-time but, rather, that the Tribunal has responded to the position claimed by the applicant, in respect of the occupation in making its findings as required, under cl.457.223(4)(d). 

28. I do not accept that merely because the applicant performed some work as a naturopath, it was not open to the Tribunal to make an adverse finding in relation to the criteria under cl.457.223(4)(d). I do not accept that the Tribunal imported the requirement for there to be a need for a full-time naturopath but, rather, made findings in response to the assertions advanced by the applicant in considering the criteria under cl.457.223(4)(d).  The Tribunal made no jurisdictional error in its adverse findings. 

29. For the reasons identified, the adverse findings were open on the material before the Tribunal and the ground of the application is, in substance, an impermissible challenge to the adverse finding made by the Tribunal.

30. The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 7 June 2016