Master Group (Aust) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 306
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Master Group (Aust) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 306
File number: PEG 210 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 28 April 2022 Catchwords: MIGRATION – Nomination application – decision of the Administrative Appeals Tribunal – reg 5.19(4) of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to complete its statutory task – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 476
Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 (Cth)
Migration Regulations 1994 (Cth), reg 5.19
Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
Witty Swiftly Pty Ltd v Minister for Immigration & Anor [2018] FCCA 3469
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 5 April 2022 Place: Perth Counsel for the Applicant: Ms S Frankel Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr A Chan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 210 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MASTER GROUP (AUST) PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
BACKGROUND
On 19 January 2018, Master Group (Aust) Pty Ltd (the “applicant”), applied to the then Department of Immigration and Border Protection (the “Department”) for an Employer Nomination for a Permanent Appointment (the “nomination application”) (Court Book (“CB”) 1-9). In that nomination application, the applicant nominated Ms Louise Anne Porter (the “nominee”) as the nominee (CB 6) for the position of “Marketing Specialist” (CB 4).
On 15 August 2018, a delegate of the first respondent (the “Minister”) refused the nomination application on the basis that it did not satisfy reg 5.19(4)(a)(ii) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 28-33). The delegate was not satisfied, on the evidence before it, that there was a need for a marketing specialist in the applicant’s business (CB 32).
On 5 September 2018, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 34-35).
On 17 May 2021, the Tribunal invited the applicant (through its registered migration agent) to provide additional information in support of its application (CB 40-45). The invitation requested that the information (or any request for an extension of time to provide that information) be provided by 31 March 2021 (CB 44).
On 8 April 2021, the applicant’s representative requested an extension of time of 14 days to provide the requested documentation (CB 46-47).
On 9 April 2021, the Tribunal responded as follows:
In our letter of 17 March 2021, we invited you to provide information by 31 March 2021, and advised that any request for an extension of time to provide the information must also be received by 31 March 2021. We did not receive your request for an extension of time until 08 April 2021.
…
…As you did not provide the information or request an extension of time to provide the information by 31 March 2021, you appear to have lost your right to a hearing, however, this will need to be determined by the Member who is constituted your matter.
If the Member determines that you have lost your right to a hearing, the Tribunal may make a decision on the review and will have regard to all the information that is before it at the time the decision is made. If you wish to provide the information and any other material in support of your review, you should do so by no later than 22nd April 2021. The Tribunal may proceed to decision at any time after 22nd April 2021.
On 22 April 2021, the applicant’s representative provided the Tribunal with material in support of the applicant’s review application (CB 49-211).
On 12 August 2021, the Tribunal sought clarification in relation to some of the material provided on the basis that it was “not clear” if some of the evidence referenced in the covering email had, in fact, been provided or was complete (CB 212-214).
On 18 August 2021, the applicant’s representative responded to the Tribunal (via email) and provided additional information (CB 215-241).
On 6 September 2021, the Tribunal affirmed the delegate’s decision refusing the nomination application (CB 245-251).
On 6 October 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. That application is brought pursuant to s 476 of the Migration Act 1958 (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is seven pages long and spans 34 paragraphs. The final two pages of the decision contain extracts of relevant legislative provisions contained in the Regulations.
The Tribunal began by identifying the type of nomination decision under review, noting that the applicant sought to satisfy the criteria in the “Direct Entry nomination stream”. The Tribunal explained that a delegate of the Minister had refused the nomination application on the basis that the applicant had “not identified a need for a marketing specialist” (at [1]-[5]).
The Tribunal noted that on 17 March 2021, it had invited the applicant to provide information (at [6]) pursuant to s 359 of the Act (at [7]). The Tribunal’s invitation stated that, where the position is located outside of regional Australia (as was the case here), the applicant was required to provide information about “the need to employ the nominee in the nominated position” (at [8]-[9]). The Tribunal confirmed that its letter had advised the applicant that, if a response was not provided by 31 March 2021, a decision may be made without obtain further information (at [10]) and that the applicant would lose any entitlement it had under the Act to appear at a hearing (at [11]).
The Tribunal confirmed that an extension of time request was received from the applicant’s representative on 8 April 2021 (at [12]) but that, by that time, the applicant had “lost its right to attend a hearing” (at [13]).
The Tribunal confirmed that a response was received from the applicant’s representative on 22 April 2021 (at [14]) and listed the material provided (and considered by it) as part of that response (at [15]).
The Tribunal then stated:
16.The email attaching the above documents stated that it included evidence about the “genuine need for the employee”. It was not evident to the Tribunal that any of the documents provided did relate to that question.
17.The organisational chart shows that the applicant has the nominee and 3 other people in its marketing department.
18.The documents show that marketing work is done. It does not show that there is a need for that work to be done nor that there is a genuine need to employ the nominee in the position to do the marketing work.
The Tribunal explained that, on 12 August 2021, it wrote to the applicant’s representative, noting that the email response claimed to include evidence of the “genuine need for the employee” (at [19]) and stating that “it [was] not clear that any evidence about that matter ha[d] in fact been attached” (at [20]).
The Tribunal then explained (at [21]) that a response was received from the applicant’s representative on 18 August 2021 which provided as follows (without alteration):
“As part of evidence that Ms Louise Porter is genuine, the employer prepared and submitted examples of work that Ms Porter completed part of her duties. However the evidence we have is in excess of the quota the mailbox would be able received. Hence, we selected a number of campaigns, newsletters that Ms Porter managed.”
The Tribunal explained that the response attached further information (which mostly included examples of marketing work completed by the company) (at [22]) and determined that the work appeared to have been undertaken by the marketing team (presumably under the nominee’s management) (at [23]).
The Tribunal was satisfied that the company undertook marketing work and that website traffic had increased (at [24]). However, the Tribunal determined that the evidence did not demonstrate the “extent or nature of the nominee’s involvement in [that] work” (at [25]).
The Tribunal then assessed the contents of an “explanatory memo” provided in the email dated 18 August 2021 (at [26]) and stated:
27.Under the heading “training” the explanatory memo says that the nominee had done some training, which had helped her to create better social media ads and that a blog the company uses for marketing had “got significantly better after this training.”
28.The document does not explain what that improvement was or how this supports the applicant's assertion that there is a genuine need to employ the nominee in the position.
The Tribunal continued:
29.In the last paragraph under the heading “What’s Next”, the explanatory memo says that the company is considering rebranding and expanding into the eastern states, which will require “more content/resources and advertisement to gain new customers.”
30.The document does not explain what work will be involved nor does it explain what involvement the nominee will have.
31.It does not explain what contribution this expansion will make to the company and what improvement in profit or other expansion of the business is expected.
On the basis of the information provided, the Tribunal was not satisfied that the applicant had established a “genuine need for the nominee to be employed in the position” (at [32]) and thus did not satisfy the requirements of reg 5.19(4) of the Regulations (at [33]).
The Tribunal affirmed the decision refusing the nomination application (at [34]).
PROCEEDING IN THIS COURT
The application for judicial review filed on behalf of the applicant contains one particularised ground of review as follows:
1.The Second Respondent’s decision was affected by jurisdictional error in that it misconstrued the requirements of regulation 5.19(a) of the Migration Regulations 1994 (Cth) and in doing so, asked itself the wrong question
Particulars
a.Subregulation 5.19(4)(h)(i)(AA), at the relevant time, required as follows:
“there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator's direct control”;
b.The Second Respondent’s task when considering this criterion was therefore to determine whether there was a genuine need to employ the nominee, rather than another person, to work in the position.
c.In considering whether the application met the requirements of subregulation 5.19(4)(h)(i)(AA), the Second Respondent asked itself whether there was a genuine business need to employ a person in the position of marketing specialist.
d.The correct question, as mandated by subregulation 5.19(4)(h)(i)(AA), was whether there was a genuine need to employ the nominee specifically in the position.
The evidence before the Court includes the application and supporting affidavit filed on behalf of the applicant on 6 October 2021 and a Court Book numbering 251 pages (marked as Exhibit 1). The applicant filed written submissions on 8 March 2022. The Minister filed written submissions on 22 March 2022.
Ms Frankel appeared for the applicant at the hearing. Mr Chan appeared for the Minister. The oral submissions provided were clear and helpful. The Court thanks both solicitors for their assistance in this matter.
The Court has detailed the applicant’s and Minister’s submissions below (in so far as they relate to the sole ground of review).
Applicant’s written submissions
In relation to the sole ground of review, solicitors for the Minister submitted as follows in written submissions filed on 8 March 2022:
14.The relevant principles of statutory construction were summarised by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
15.On a plain reading of the wording of subregulation 5.19(4)(h)(i)(AA), the requisite “genuine need” could potentially refer to “the person identified under subparagraph (a)(ii)”, “as a paid employee” “to work in the position” or “under the nominator’s direct control”. It is therefore necessary to consider the context under which the criterion was added in order to determine which part of the sentence it refers to.
16.Until 1 July 2017, there was no “genuine need” criterion for positions nominated under the criteria in subregulation 5.19(4)(h)(i). The criterion was inserted by the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 (Cth).
17.The main impact of the amendment was to include a requirement that Employer Nominations identify a specific person as the person who would be working in the position.
18.In determining the correct reading of a piece of legislation, regard can be had to a wide range of extrinsic materials. The explanatory statement for the amending regulation is particularly relevant and states in relation to the changes to subregulation 5.19(4)(a)(ii):
The amendment requires the nominator to identify a need for the nominator to employ an identified person in the nominated position.
Previously the subparagraph required the nominator only to identify a need to employ any paid employee in the nominated position. A nominator could have the nomination approved without knowing or stating who would be employed in the nominated position as the holder of a Subclass 186 or Subclass 187 visa. This could result in the employer nomination programme being open to the risk of migration fraud through a nominating employer soliciting payment from a visa applicant to be identified as the nominee once the nomination had been approved.
This amendment ensures that the nomination must be linked to an identified employee and another person cannot later be substituted as the visa applicant.
19.The requirement in subregulation 5.19(h)(i)(AA) that the need to employ the identified person be a “genuine” need was added in the context of including the requirement to identify a specific person at all. The mischief that it sought to remedy was an increased risk of migration fraud if the nomination was approved blindly, without any consideration of the person who would be working in the position.
20.Therefore, the correct way to read the subregulation is that the need that an employer must demonstrate is the need to employ the identified person in the position. This disallows employers from employing someone unsuited to the position, which would increase the risk of migration fraud.
21.On the other hand, the Tribunal based its reasoning on the understanding that subregulation 5.19(h)(i)(AA) of the Regulations empowered it to analyse the business case for the position. Essentially, it asked itself whether Master Group had demonstrated that employing Ms Porter in the position of marketing specialist would improve the business’s future profit. It then answered that question in the negative and proceeded to make a finding that Master Group had not demonstrated a need for Ms Porter to work in the position.
22.The incorrect reproduction of the Regulations omitting the phrase “an identified person”, which the Tribunal appears to have relied on, deprived the Tribunal of the context that may have led it to the correct interpretation of that section, and supports the fact that the Tribunal misconstrued the requirement.
23.The Tribunal accepted that the evidence before it demonstrated that the business undertook “a range of marketing work” and made no findings that the position was created fraudulently, was not what it purported to be, or could be undertaken by a person other than Ms Porter.
24.In making a decision based on a misconstruction of the relevant provision, the Tribunal went outside its jurisdiction.
Minister’s written submissions
The Minister, in turn, submitted as follows in written submissions filed on 22 March 2022:
22On 8 March 2022, the applicant filed a written outline of submissions (AS) in which it alleges that the “genuine need” requirement in r 5.19(4)(h)(i)(AA) applied to the “person identified under subparagraph (a)(ii)” only, and not to the other aspects of the sub-regulation. That is, the applicant argues that the “genuine need” requirement did not refer to “a paid employee, to work in the position under the nominator’s direct control” (AS 15, 20). The applicant contends that the Tribunal therefore erred when it based its reasoning regarding r 5.19(4)(h)(i)(AA) on the understanding that it empowered the Tribunal to analyse the business case for the position, when it should have limited its consideration to whether the applicant demonstrated the need to employ the identified person (i.e. the nominee) in the position (AS 20). The applicant relies on the explanatory statement to Migration Legislation Amendment (2017 Measures No. 3) Regulation 2017 (Cth), which amended r 5.19(4)(a)(ii) and established the “genuine need” requirement for positions nominated under the criteria in sub-regulation r 5.19(4)(h)(i) (AS 16-19). It is submitted by the applicant that the amendments were introduced to mitigate against the risk of migration fraud.
23The applicant’s contention that r 5.19(4)(h)(i)(AA) only allowed a narrow analysis of whether there was a genuine need to employ the nominee specifically in the position, and not whether there was a genuine business need to employ the person in the position, should not be accepted. Whilst there has been little judicial consideration of r 5.19(4)(h)(i)(AA) and r 5.19(4)(a)(ii); similarly worded subregulations were considered by this Court in Witty Swiftly Pty Ltd v Minister for Immigration & Anor [2018] FCCA 3469 (Witty Swiftly). The precise wording of the sub-regulations considered in that matter was as follows:
23.1identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r 5.19(4)(a)(ii).
23.2there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r 5.19(4)(h)(ii)(B).
24In that matter, the Court found that “[t]hese two provisions are worded very similarly and essentially address the same issue” (at [11]). In considering an argument that that the Tribunal conflated the business’ affordability with “genuine need” in that case, the Court recorded that the Tribunal utilised its finding in relation to the business’ ability to afford to employ the nominee and its finding in relation to the nominee’s proposed role within the business to determine that the requirements of r 5.19(4)(h)(ii) were not met (at [58]). The Court found that the Tribunal was entitled to objectively assess the business’ viability as part of its determination of whether “genuine need” existed (under r 5.19(4)(h)(ii)) (at [59]).
25Whilst the amendments to the sub-regulations enacted by Migration Legislation Amendment (2017 Measures No. 3) Regulation 2017 (Cth) can fairly be seen to include a further requirement that there was a genuine need to employ the identified person (so as to mitigate the risk of migration fraud), there was nothing in the amendments that prevented the Tribunal from also considering (as it did in Witty Swiftly) whether there was a genuine need to employ this person as “a paid employee, to work in the position under the nominator’s direct control”, i.e. the business case for the position. Applying Witty Swiftly, this could include things such as the business’ ability to afford to employ the nominee and findings in relation to the nominee’s proposed role within the business, amongst other things.
26Indeed, this was the proper task mandated by r 5.19(4)(h)(ii)(B), and this is precisely what the Tribunal did in the present matter. Here, the Tribunal assessed the evidence before it and found that “[t]he documents show that marketing work is done. It does not show that there is a need for that work to be done nor that there is a genuine need to employ the nominee in the position to do the marketing work”: CB 248, [18]. The Tribunal further found at paragraphs [25], [28] and [30]-[31] (CB 248-249) that “the evidence provided does not demonstrate the extent or nature of the nominee’s involvement in the work”, “[t]he document (the “explanatory memo”) does not explain what that improvement was or how this supports the applicant’s assertion that there is a genuine need to employ the nominee in the position… [it] does not explain what work will be involved nor does it explain what involvement the nominee will have… [and it] does not explain what contribution this expansion will make to the company and what improvement in profit or other expansion of the business is expected”. These paragraphs demonstrate that the Tribunal appreciated that it had to consider whether there was a genuine need for the specific employee, and also that there be a genuine need to employ this person as “a paid employee, to work in the position under the nominator’s direct control”, i.e. the business case for the position.
27The applicant’s contention that r 5.19(4)(h)(ii)(B) empowered the Tribunal to only consider whether there was a genuine need to employ the nominee specifically in the position is not made out.
Consideration
The issue before the Court ultimately turns on the Tribunal’s interpretation and application of reg 5.19 of the Regulations.
As detailed above, the applicant contends that the Tribunal misconstrued the requirements of reg 5.19 of the Regulations and, in doing so, asked itself the wrong question. Specifically, the applicant is of the view that the Tribunal’s consideration of reg 5.19 of the Regulations should have been restricted to a consideration of whether there was a “genuine need” to employ the identified person (being the nominee) in the nominated position.
In oral submissions, Ms Frankel explained that, in coming to its’ position, the applicant considered the Explanatory Memorandum addressing amendments to the Regulations and the amendment to provisions in the Regulations (aimed at minimising fraud). On that basis, it was stressed, the applicant considers that, in circumstances where the nominee was already employed in the position (that is, it was not a newly created position within the company), and where the Tribunal had not made any findings that the position was “non-genuine”, the Tribunal ought to have confined its assessment to whether there was a “genuine need” for the nominee to be employed in the nominated position. Further, in the applicant’s submission, by stepping outside of that assessment and considering whether the applicant might contribute to the profits of the company and other assessments relevant to the “business case” for the position, the Tribunal exceeded its “jurisdiction” and the scope of its requirements (as outlined in reg 5.19 of the Regulations).
In oral submissions to the Court, Mr Chan stressed that, in considering whether there was a “genuine need” to employ the nominee, the Tribunal was also entitled to consider whether there was a “genuine need” to employ the person as “a paid employee, to work in the position under the nominator’s direct control” (that is, whether there was a business case for the position more broadly).
Mr Chan stressed that, in conducting its assessment, the Tribunal in this matter followed a “two pronged approach” as it did in the matter of Witty Swiftly Pty Ltd v Minister for Immigration & Anor [2018] FCCA 3469 (“Witty Swiftly”). That is, there were two bases which informed the Tribunal’s decision as to whether there was a “genuine need” as follows:
(a)whether there was a business case for the position; and
(b)whether there was enough evidence to establish the details of the nominee’s role, what that role would entail and whether the nominee was needed in the role.
Legislative provisions
Before considering the applicant’s sole ground of review, it is useful to first set out the relevant legislative provisions in force at the time the applicant lodged their nomination application (that is, on 19 January 2018).
Relevant to this matter are the provisions set out in regs 5.19(4) of the Regulations. Those provisions provide:
5.19 Approval of nominated positions (employer nomination)
…
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
…
(h) either:
(i) all of the following apply:
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
…
(ii) all of the following apply:
…
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
As noted by the applicant’s legal representative (in written submissions filed on 8 March 2022), the Regulations did not include a “genuine need” criterion until 1 July 2017. The amendments to the Regulations were included by way of the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 (Cth) (the “Amending Regulations”).
Whether the Tribunal failed to complete its statutory task by asking itself the wrong question
The question this Court must consider is whether the Tribunal, in conducting its review, failed to complete its statutory task by “asking itself the wrong question”.
A Tribunal may be found to have erred if it is found to have identified the wrong issue or asked itself the wrong question, resulting in its decision exceeding its power or authority given by any relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [82] per McHugh, Gummow and Hayne JJ.
Here, the Tribunal was required to determine whether the applicant met the requirements for the approval of the nomination (through the Direct Entry Nomination stream) as outlined in reg 5.19(4) of the Regulations. The Tribunal’s focus, in this regard, was whether there was a “genuine need” to employ an identified person (the nominee) as a “paid employee, to work in the position under the nominator’s direct control”: reg 5.19(4)(a)(ii) of the Regulations.
That focus is the same as that faced by the Tribunal in Witty Swiftly. While the Amending Regulations relevant to this matter were not in effect at the time of the decision of this Court in Witty Swiftly, the relevant Regulations in both matters are similarly worded.
The Regulations relevant in Witty Swiftly read as follows:
5.19 Approval of nominated positions (employer nomination)
…
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
…
(h) either:
…
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
…
Essentially, what is missing from the Regulations considered by this Court in Witty Swiftly (when compared to the Regulations relevant to the present matter) is a genuine need to employ “an identified person, as a paid employee” (rather than simply “a paid employee”).
This Court’s consideration and findings of the Tribunal’s conduct in Witty Swiftly was as follows:
56.In relation to the alleged conflation of the business’ affordability with ‘genuine need’, the Court notes that the AAT gave detailed consideration to the business’ financial viability and was not satisfied that the business could afford to employ an employee to work as a full-time fashion/industrial designer.
57.The AAT also found that the exact parameters of the nominee’s position were not entirely certain given the statements contained in the curriculum vitae about the nature of the duties as against other evidence. The AAT accepted that the nominee was involved in the business and accepted that the nominee engaged in some design work and that some items, including clothes, are produced from his designs. However, there was difficulty in gauging the extent of that activity and the relationship of it to the sales of the business. The AAT concluded that, leaving aside the financial situation of the business and even allowing for an increase in business for the period July to December 2015:
the state of the evidence about the position and the nominee's role in it, is such that the Tribunal is not positively satisfied about the genuine need to employ a paid employee in the position of fashion designer/industrial designer.
58.The Court is not satisfied that the AAT conflated the issue for decision with the question whether the applicant’s business could afford to employ a full-time fashion/industrial designer. The AAT did not simply have regard to the question of whether the business could “afford” to employ the nominee in the position in question to determine genuine need. Instead, the AAT utilised its finding in relation to the business’ ability to afford to employ the nominee and its finding in relation to the nominee’s proposed role within the business to determine that the requirements of regulation 5.19(4)(h)(ii) of the Regulations were not met (CB 679 at 39-40).
59.The AAT was entitled to objectively assess the business’ viability as part of its determination of whether “genuine need” existed. It concluded that the business was unable to afford to employ the nominee. This finding was open to it on the material before it. Whilst the AAT clearly gave considerable weight to its affordability finding (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1), it did not conflate the question of “affordability” with “genuine need”. Instead the AAT utilised two discrete bases to determine whether genuine need existed.
60.The Court agrees with the Minister’s submissions in this regard and finds that no error of the sort suggested in ground 2 (a) is revealed.
In the Court’s view, the additional amendments introduced by way of the Amending Regulations relevant to this matter simply legislate the need to consider whether there is a “genuine need” to employ the specific nominated individual (the nominee). The Court is of the view that that was, in fact, factored into the consideration by the Tribunal in Witty Swiftly when coming to its conclusion about whether a “genuine need” existed.
In Witty Swiftly, the Tribunal objectively assessed business viability and whether the business could afford to employ the nominee in the proposed role when determining whether there was a “genuine need” to employ the nominee.
In the present matter, the Tribunal considered material provided by the applicant’s representative on 22 April 2021 (at [14]-[18]), noting that, while the covering email attaching the documents stated that the material included “evidence about the ‘genuine need for the employee’”, the Tribunal could not identify any information of that sort in the documents provided (at [16]).
The Tribunal stated:
17.The organisational chart shows that the applicant has the nominee and 3 other people in its marketing department.
18.The documents show that marketing work is done. It does not show that there is a need for that work to be done nor that there is a genuine need to employ the nominee in the position to do the marketing work.
The Tribunal consequently wrote to the applicant on 12 August 2021 explaining that, while the email dated 22 April 2021 claimed to include evidence including the “[g]enuine need for the employee”, it was not clear to the Tribunal that “evidence about that matter ha[d] in fact been attached” (at [19]-[20]).
The Tribunal detailed the applicant’s response as follows (without alteration):
21.The applicant's registered migration agent replied by email of 18 August 2021 saying:
“As part of evidence that Ms Louise Porter is genuine, the employer prepared and submitted examples of work that Ms Porter completed part of her duties. However the evidence we have is in excess of the quota the mailbox would be able received. Hence, we selected a number of campaigns, newsletters that Ms Porter managed.”
The Tribunal explained that the email received on 18 August 2021 attached further information (comprising mostly samples of the company’s marketing works) (at [22]-[23]). The Tribunal was satisfied that the company undertook a variety of marketing activities and that website traffic had increased (at [24]). However, the Tribunal found that the material provided did not demonstrate the “extent or nature of the nominee’s involvement in the work” (at [25]).
The Tribunal then discussed a document labelled “Louise Porter - Work Samples Explained” (the “explanatory memo”) and noted that:
27.Under the heading “training” the explanatory memo says that the nominee had done some training, which had helped her to create better social media ads and that a blog the company uses for marketing had "got significantly better after this training."
28.The document does not explain what that improvement was or how this supports the applicant's assertion that there is a genuine need to employ the nominee in the position.
29.In the last paragraph under the heading “What's Next”, the explanatory memo says that the company is considering rebranding and expanding into the eastern states, which will require “more content/resources and advertisement to gain new customers.”
30.The document does not explain what work will be involved nor does it explain what involvement the nominee will have.
31.It does not explain what contribution this expansion will make to the company and what improvement in profit or other expansion of the business is expected.
Ultimately, the Tribunal relied on its finding in relation to profits and future expansion of the business and its finding in relation to the nominee’s role within the business to determine that the requirements of reg 5.19(4) had not been met. That is, the Tribunal considered that the material provided by the applicant had not explained what contribution proposed expansions into the eastern states would make to the business and what improvement in terms of profit was expected (at [30]-[31]). Further, the Tribunal was also not satisfied that the applicant had provided evidence to demonstrate the extent or nature of the work done by the nominee at the company (at [25]) and was thus not satisfied that the applicant had established a “genuine need” for the nominee to be employed by the applicant in the relevant position (at [32]).
As was the case in Witty Swiftly, the Tribunal in this matter was entitled to assess the company’s proposed future expansion and possible profits as part of its two-tiered determination about whether a “genuine need” for the nominee existed. After careful consideration of all of the evidence before it, the Tribunal concluded that there was simply a lack of evidence to support “the need to employ the nominee in the position to do the marketing work” (at [18]).
The Court is satisfied that the Tribunal completed its statutory task and that, as such, no error arises in the approach undertaken.
Errors in Regulations referenced by the Tribunal
At page six of its reasons, the Tribunal references reg 5.19(4) of the Regulations, as follows:
5.19 Approval of nominated positions (employer nomination)
…
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
…
(h) either:
(i) an of the following apply:
(A)the tasks to be performed m the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
…
The Court notes that these provisions are incorrect. The Tribunal, when referencing reg 5.19(2)(a)(ii) of the Regulations, did not accurately reflect the changes in the legislation incorporated by the Amending Regulations. Specifically, the Tribunal did not include the words “an identified person” (the specific inclusions added to the provision by the Amending Regulations). The correct version of the Regulations (at the relevant time), provided as follows (emphasis added):
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
…
Here, the Tribunal, included the following version of the Regulations:
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
…
For completeness, the Court also notes that the provisions referenced by the Tribunal in its decision, as outlined in reg 5.19(4)(h) of the Regulations were also reproduced in the incorrect order. However, the contents of those provisions were accurately reproduced.
The Court considers these errors to be typographical in nature and not errors of the sort that this Court can address. It is clear, throughout the Tribunal’s decision, that it was aware of the need to consider whether there was a genuine need to employ the nominee in the position. It appears to the Court that there were errors made when reproducing parts of the Regulations in the Tribunal’s final decision.
While unfortunate, these typographical errors are not jurisdictional in nature. They did not, for example, effected the Tribunal’s approach and ultimate conclusions in relation to the core issues before it matter. A careful reading of the Tribunal’s decision as a whole makes that clear.
No error arises in this regard.
CONCLUSION
The application for judicial review filed on behalf of the applicant on 6 October 2021 has failed to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 April 2022
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