Michellechen Pty Ltd v Minister for Immigration
[2019] FCCA 3355
•22 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MICHELLECHEN PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3355 |
| Catchwords: MIGRATION – Nomination of an occupation for a subclass 457 visa – whether the Applicant met criteria for a subclass 457 visa – whether the Administrative Appeals Tribunal’s decision affected by jurisdictional error – jurisdictional error established – writ issued. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.2.72(10)(f) |
| Cases cited: Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 |
| Applicant: | MICHELLECHEN PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 437 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 17 October 2019 |
| Date of Last Submission: | 17 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 22 November 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Munro Doig Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The First Respondent’s title be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Ground 1 of the Further Amended Application filed on 14 May 2019 be dismissed.
Grounds 2, 3 and 4 of the Further Amended Application filed 14 May 2019 are withdrawn and dismissed.
Ground 5 of the Further Amended Application filed 14 May 2019 is allowed.
A writ of Certiorari issue directed to the Second Respondent quashing its decision dated 2 August 2018.
A writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s Further Amended Application filed 14 May 2019, according to law.
The costs of the Applicant be reserved for determination, following the implementation of order 6, above. The parties are to file and serve any written submissions as to costs within 21 days of such determination. The Court will then determine the issue of costs on the papers, unless the parties wish to be heard orally.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 437 of 2018
| MICHELLECHEN PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By way of background, the Applicant is a company (ABN 31151811282) which lodged a Nomination Application (“Nomination Application”) with the Department of Home Affairs (“the Department”) on 24 September 2015.
In the Nomination Application, the Applicant nominated:
a)The job title/position of “Restaurant Manager”;
b)The occupation of “Café or Restaurant Manager”; and
c)The ANZSCO Code of “Café or Restaurant Manager” (see Exhibit “1”).
Further, the Nomination Application provided the following details:
a)Where the person would be employed;
b)Labour and market testing,
c)Terms and conditions of the employment;
d)Salary;
e)The nature and the position, including responsibilities, main duties, other information and the nominee.
The Visa Applicant, Ms Tsi Mee Chen (“Ms Chen”) is a female citizen of Malaysia who, at the time of the lodgement of the Nomination Application, was a holder of Temporary Work (Skilled) visa (subclass 457). See the Court Book, being made Exhibit “Court 1”, with references to its pages as CB page number, in this regard being here CB 6-7.
In addition to that Temporary Work (Skilled) visa, the following persons were included as Secondary Visa Applicants:
a)Chai Teong Ong (“Mr Ong”), a male citizen of Malaysia, born 11 September 1954;
b)Eng Hui Philip Ong, a male citizen of Malaysia, born 29 July 1992;
c)Eng Boon Andrew Ong, a male citizen of Malaysia, born 14 July 1996; and
d)Tze Lynn Keesha Ong, a female citizen of Malaysia, born 24 August 1998.
On 22 October 2015, the Department sent a letter to the Applicant requesting more information to support the Nomination Application (CB 13-19). The information requested included:
a)A signed employment contract;
b)Evidence of terms and conditions of employment that are no less favourable than those provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work at the same location; and
c)Evidence demonstrating that the position associated with the nominated occupation is genuine.
On an unknown date, the Applicant, through its migration agent, provided the following documents:
a)Signed employment contract (CB 21);
b)Business Operations/Organisation Chart Explanation (CB 22-23); and
c)Restaurant Manager recruitment advertisements and other information (CB 24-28).
On 12 November 2015, the Department sent a request for further information to the Applicant, particularly, a request for appropriate market salary information, including evidence that:
a)The position fits within the scope of the scale of the business;
b)Is necessary to the operations of the business;
c)The position has been previously occupied and a statement of reasons why it has become vacant; or
d)If the position is new, the new contracts secured by the business, any business expansion plans and market research.
(CB 30-39)
On a date unknown, the Applicant provided additional information which evidenced the salary offered under various job advertisements placed by other businesses for a café/restaurant manager.
On 24 February 2016, the Department notified the Applicant that the Nomination Application had been refused (CB 42-43). The notification was accompanied by a notice of decision setting out reasons for the refusal of the Nomination Application (CB 44-52). The Department was not satisfied that the position associated with the nominated occupation was genuine pursuant to Reg.2.72(10)(f) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 50).
On 15 March 2016, the Applicant lodged an application for review of the refusal decision with the Administrative Appeals Tribunal (“the Tribunal”), as the Second Respondent, herein.
On 15 April 2016, the Applicant, through its migration agent, provided 2 letters of support relating to the Nomination Application, namely from a “Stuart Taylor” (“Mr Taylor”) dated 23 March 2016 and a “Geoff McKenna” (“Mr McKenna”) dated 8 March 2016 (CB 59-61).
On 9 April 2018, the Tribunal invited the Applicant to provide further information in writing to demonstrate that it met all of the requirements set out in Reg.2.72 (CB67-76).
On 19 April 2018, the Applicant, through its migration agent, provided the following information:
a)A written submission;
b)Historical company extract for the Applicant;
c)Facebook page & internet searches for the restaurant “Ah Wong’s Roadhouse”;
d)Menu;
e)Minutes of ordinary meeting of Council, Wednesday 27 April 2016;
f)Australia’s Golden Outback Holiday Planner 2018 with reference to “Ah Wong’s Roadhouse”, Wongan Hills; and
g)A further reference letter from Mr McKenna of Wongan Hills Pharmacy dated 26 April 2018.
(CB 78-98)
On 30 April 2018, the Tribunal invited the Applicant to attend a hearing scheduled for 18 June 2018 (CB 100-102). On the same date, the migration agent for the Applicant wrote to the Department seeking a postponement of the hearing due to his unavailability. On 2 May 2018, the Department responded refusing to postpone the hearing.
On 3 May 2018, the migration agent for the Applicant notified the Tribunal that the Applicant’s representative, Mr Ong, had passed away in mid-2017 and provided a copy of his death certificate. The migration agent stated that he had, previously, notified the Department of this (CB 108). Mr Ong was the husband of Ms Chen.
On 22 May 2018, the Applicant’s migration agent provided, by email, 2 available witnesses for the hearing scheduled 18 June 2018, namely Mr Taylor and Mr McKenna (CB 114). Mr Taylor had provided a letter of support dated 10 May 2018. The Applicant also provided the Tribunal with the following:
a)A copy of a further employment contract dated 3 May 2018;
b)Bank statements and lodgement receipts;
c)Printouts of a salary ledger account showing the salary paid to Ms Chen; and
d)Financial statements for the Applicant for the year ended 30 June 2017.
(CB 119-150)
On 18 June 2018, the Tribunal conducted the hearing. The hearing was attended by Ms Chen (as the nominee for the position) who was accompanied by her brother-in-law, Mr Lester Seong Ong (“Mr Lester Ong”), who attended as an observer.
On 21 June 2018, the Applicant’s migration agent sent a letter to the Department requesting a copy of the audio of the hearing.
On 19 July 2018, the Applicant’s migration agent provided written submissions to the Tribunal, as was contemplated at the hearing (CB 157-159).
On 2 August 2018, the Tribunal affirmed the decision of the Department not to approve the Nomination Application on the basis that it was satisfied that the position associated with the nominated occupation was not a genuine position. Accordingly, the Tribunal found that the requirements pursuant to Reg. 2.72(10)(f) of the Regulations were not met (CB 160-174).
On 21 August 2018, the Applicant filed an Application for Judicial Review in this Court.
On 1 October 2018, the First Respondent filed a Notice of Address for Service and its Response which, simply, sought that the Applicant’s Application be dismissed with costs.
On 1 October 2018, the Tribunal, as the Second Respondent herein, filed a Notice of Address for Service submitting to any orders of the Court, save as to costs.
On 22 November 2018, the First Respondent filed an Amended Response particularising the ground of opposition being that:
The application is incompetent as it has not been certified in accordance with s 486I(1) of the Migration Act 1958 (Cth)
On 5 December 2018, the Applicant filed an Amended Application.
On 14 May 2019, the Applicant file a Further Amended Application. That Application was certified by the Legal Representative for the Applicant pursuant to s.486I of the Migration Act 1958 (Cth) (“the Act”). That Application set out the following grounds:
1. The Tribunal erred in its assessment of Reg.2.72(10)(f) of the Regulations, being the criteria that the position associated with the nominated occupation (that is, of a “Cafe or Restaurant Manager”) is genuine, by:
(1) inflexibly applying the Department’s policy that the 457 visa program should not be used by businesses to primarily create a position to facilitate entry or stay of the nominee;
(2) illogically concluding at paragraph 41 of its Decision Record that a business of the size of the Applicant's (with nine employees and a seating capacity of 40 customers) would not genuinely need a "Cafe or Restaurant Manager";
(3) failing to take into account relevant evidence in concluding that the primary objective of the nomination application was to secure the immigration outcome for the Applicant's director/shareholder, Ms Chen and her family, where the evidence was that the nominated position was already existing in the business (although differently designated), and was occupied by Ms Chen prior to the Applicant's acquiring the business;
2. The Tribunal denied the Applicant procedural fairness by asking leading questions to ascertain the tasks associated with the nominated position where this was a critical step in assessing regulation 2.72(10)(f), which in turn led to the Tribunal making a finding that Ms Chen was performing the tasks of a " Managing Director" rather than the tasks of the nominated occupation (Decision Record, paragraph 41);
3. Further or alternatively, the Tribunal's conduct in paragraph 2 above resulted in the Tribunal's failing to carry out its inquisitorial function;
4. In eliciting the tasks of Ms Chen’s day to day conduct, the Tribunal fail to consider that the tasks of the position (as set out in paragraphs 16 and 25 of the Decision Record) could, depending on emphasis, be characterised as both the tasks of a “Managing Director” or of a “Cafe or Restaurant Manager”;
5. In considering whether the position associated with the nominated occupation is genuine under reg. 2.72(10)(f), the Tribunal made a jurisdictional error by failing to evaluate the duties of the position, as put forward by the nominator. against the ANZSCO description for the occupation of Cafe or Restaurant Manager.
PARTICULARS
(a) In the Business Nomination Visa Record of Responses, the Applicant nominated the position of "Restaurant Manager'' under the ANZSCO code "Cafe or Restaurant Manager" (CB 3):
(b) The main duties of the position were listed by the Applicant in the Business Nomination Visa Record of Responses (CB 5) and described to the Tribunal by the nominee at the hearing (CB 166 at [25]);
(c) The Tribunal noted that most of the duties described by Ms Chen at the hearing " are not performed by a person employed by the business as a restaurant manager'' (CB 167 at [26));
(d) In reaching the above conclusion. the Tribunal failed to have regard to the ANZSCO description for the occupation of Cafe and Restaurant Manager, and it failed to evaluate the duties of Ms Chen’s position as Restaurant Manager against the ANZSCO criteria for that occupation.
On 14 May 2019, the Applicant filed an affidavit from Mr Lester Ong sworn that same day annexing a transcript of the hearing before the Tribunal on 18 June 2018, as referred to in paragraph 18, above.
On the hearing, the First Respondent withdrew any objection as referred to in paragraph 25 above and relied on its Response, as referred to in paragraph 23 above.
The Applicant’s written submissions filed on 23 September 2019 made it clear that grounds 2, 3 and 4 (as set out in paragraph 27 above) were no longer pressed and were withdrawn. Accordingly, those grounds can be dismissed.
The Applicant’s written submissions also stated the following:
a)In terms of ground 1, the Tribunal erred by inflexibly applying the Department’s policy that the 457 visa programme should not be used by businesses to, primarily, create a position to facilitate entry or stay of the nominee (see particular (1) as referred to in paragraph 27 above).
b)The inflexible application of a policy by a decision-maker may constitute jurisdictional error: Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 at [20], [2003] FCAFC 203; (2003) 75 ALD 643 at 647 to 648 per Lee, Carr and Moore JJ. The Court accepts that proposition of law.
c)The Tribunal referred at [35] to the Department’s Procedures Advice Manual (PAM3), which it stated, in accordance with the authorities, that these policy guidelines:
… constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, and therefore are incapable of being elevated into legally necessary or relevant considerations.
d)Despite the Tribunal’s stated awareness that the abovementioned guidelines were no more than an advisory guide incapable of being elevated into relevant considerations, the Tribunal, inflexibly, applied the said guidelines. The Tribunal quoted one example from the Departmental policy of a factor “that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application. It includes an example where the nominee is a director or owner of the sponsoring business” [37].
e)The Tribunal concluded at [42] that:
Based on the evidence before me I am satisfied that the main purpose of creating a position of a restaurant manager within the business was to secure the immigration outcome for Ms Chen and her children and not because the business has a genuine need to employ a restaurant manager on a fulltime basis. I find this to be the primary objective of the application.
f)In reaching the above conclusion, the Tribunal stated at [40] that it had taken into account:
the evidence regarding the business’s turnover and the number of customers. I have also considered the position description, the offer of employment, the organisational chart and the financial documents.
g)However, the Tribunal’s reasoning, in its consideration of the claims and evidence (at paragraphs 33 to 43), did not include any discussion of the fact that the nominating business had, previously, sponsored Ms Chen and her late husband on 2 previous 457 visas granted in December 2006 and in March 2011.
h)The Tribunal’s consideration began at [36] with the policy statement that the 457 visa programme should not be used by businesses primarily to ‘create a position’ to facilitate entry to Australia, and it ended with a conclusion based on this proposition at [42] that:
… the main purpose of creating a position of a restaurant manager within the business was to secure the immigration outcome for Ms Chen and her children and not because the business has a genuine need to employ a restaurant manager on a full-time basis.
i)The evidence before the Tribunal was that, on the previous visas, Ms Chen had worked in the nominated occupation of “customer services manager”. The Tribunal had set out this evidence at [18]-[20], but it did not include any discussion of this in its consideration of the claims and evidence as to whether the position associated with the nominated position was genuine. The Tribunal gave no consideration as to whether the tasks of the, previously, approved position were, qualitatively, similar with the tasks of the position associated with the current nomination, the subject of the Nomination Application.
j)Further, in reaching the conclusion at paragraph 41 that a business of the size of the Applicant’s would not genuinely need a “Café or Restaurant Manager”, there was no reasoning expressed by the Tribunal beyond its bare statement at [40] that it had “taken into account” the evidence mentioned there. Also, the Tribunal did not state that it had taken into account the evidence of Ms Chen (set out at [17]) that the business was able to employ 8 employees as cooks and waiters and that it had a seating capacity of approximately 40 customers and the Tribunal did not engage with this evidence in its reasoning that the business would not, genuinely, need a Café or Restaurant Manager.
k)In terms of ground 5, in considering whether the position associated with the nominated occupation was genuine under reg. 2.72(10)(f), the Tribunal made a jurisdictional error by failing to evaluate the duties of the position, as put forward by the Applicant, against the ANZSCO description for the occupation of Café or Restaurant Manager, in that:
(a) In the Business Nomination Visa Record of Responses, the Applicant nominated the position of “Restaurant Manager” under the ANZSCO code “Café or Restaurant Manager” (CB 3);
(b) The main duties of the position were listed by the Applicant in the Business Nomination Visa Record of Responses (CB 5) and described to the Tribunal by Ms Chen at the hearing (CB 166 at [25]);
(c) The Tribunal noted that most of the duties described by Ms Chen at the hearing “are not performed by a person employed by the business as a restaurant manager" (CB 167 at [26]);
(d) In reaching the above conclusion, the Tribunal failed to have regard to the ANZSCO description for the occupation of Café and Restaurant Manager and it failed to evaluate the duties of the position as Restaurant Manager against the ANZSCO criteria for that occupation.
l)The Tribunal’s reasoning focused on Ms Chen’s evidence that she was the owner and the managing director of the Applicant and that, in that capacity, she was undertaking tasks such as hiring and firing employees and necessary administrative tasks (see [39] and [40]).
m)The ANZSCO description of the nominated occupation of Café and Restaurant Manager was set out by the Delegate at page 8 of his decision (CB 51). There, the Delegate stated:
According to ANZSCO, a Café and Restaurant Manager organises and controls the operation of cafes, restaurants and related establishments to provide dining and catering services.
The tasks include planning menus in consultation with chefs, organising special functions, managing the budget to determine the purchase and pricing of options available, maintaining records of stock levels and financial transactions, ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance, selecting, training and supervising waiting and kitchen staff.
The role can also involve conferring with customers to assess their satisfaction with meals and service, and may take reservations, greet guests and assist in taking orders.
n)In Mora v Minister for Immigration and Border Protection [2018] FCA 1819, Collier J stated at [45]:
While the ANZSCO criteria are a guide to be taken into account in the evaluative exercise on the part of the decision-maker, it is clear from the terms of reg 2.72 (and in particular the reference throughout that regulation to the ANZSCO criteria) that ANZSCO is a guide to which the decision maker can, and should, ascribe considerable weight. The ANZSCO code is not, for example, comparable in this respect with material such as “Departmental Procedural Advice Manual” (PAM3), an internal departmental policy document the subject of consideration in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 1142 FCR 43 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; (2015) 236 FCR 148.
And at [47]:
… a finding of “genuineness” of a position is not one to be made in isolation – as Judge Smith explained in Cargo First it is qualified by the phrase “associated with the nominated occupation”, and the character of the “nominated occupation” in this case was informed by the ANZSCO criteria to which the Tribunal purported to have regard.
o)In the present matter, at paragraph 34 of its reasons for decision (CB 167), the Tribunal extracted a quote from Judge Smith’s judgment in Cargo First Pty Ltd v Minister for Immigration [2015] FCCA 2091 at [30] concerning the need for a decision maker to undertake a qualitative analysis of the position and a comparison of that with the occupation nominated by the proposed sponsor.
p)However, the Tribunal did not set out the ANZSCO description for the nominated position of Café and Restaurant Manager and it did not assess the genuineness of the position through having regard to the ANZSCO criteria for the position. The Court accepts that submission.
q)It can be seen that some of the tasks of a management nature that Ms Chen said she would be undertaking, such as hiring and firing staff, were expressly consistent with the tasks set out in the ANZSCO criteria which included “selecting, training and supervising waiting and kitchen staff”. In addition, the tasks of controlling the business’s financial transactions and making decisions affecting the overall operations of the business, as outlined by the Tribunal as being Ms Chen’s responsibility at [39], were, arguably, consistent with the ANZSCO criteria (listed at CB 51) of “managing the budget to determine the purchase and pricing of options available” and “maintaining records of stock levels and financial transactions.”
r)In Mora, Collier J stated that “ANZSCO is a guide to which the decision-maker can, and should, ascribe considerable weight.” The Tribunal in the present matter did not mention the ANZSCO criteria at all. The Court accepts that submission.
s)In conclusion;
i)The Tribunal’s decision was affected by jurisdictional error.
ii)The decision of the Tribunal to affirm the decision under review should be quashed and remitted to the Tribunal for reconsideration.
iii)The First Respondent should be ordered to pay the Applicant’s costs.
In its written submissions filed on 8 October 2019, the First Respondent sought leave to amend its title to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. That leave was not opposed and, accordingly, the First Respondent’s title may be so amended. The First Respondent, further, submitted in response to the Applicant’s grounds:
Ground 1
a)The Applicant’s complaints go no higher than to express emphatic disagreement with, and seek impermissible merits review of, the Tribunal's decision, which found:
i)That the position associated with the nominated occupation was not genuine;
ii)That the main purpose of creating a position of a restaurant manager within the business was to secure the immigration outcome for Ms Chen and her children and not because the business had a genuine need to employ a restaurant manager on a full-time basis.
iii)The findings of the Tribunal were open to it on the evidence before it for the reasons it gave and further, contrary to the Applicant’s submissions, there was nothing to suggest that the Department’s policy had been inflexibly applied. Rather, the Tribunal expressly stated it was not to do so (CB 168, [35]). Whilst, the Tribunal did take into account that the visa scheme should not be used to “create positions” to secure immigration outcomes, that must be viewed in context. In the first part of [36] the Tribunal also stated that the 457 visa scheme was designed to bring “genuinely skilled workers in circumstances where they could not find an appropriately skilled Australian to fill the position” (CB 168, [36]). That position is clearly reflected in r 2.72(10)(f) which requires the position to be “genuine”.
b)Further, the Tribunal did not decide to affirm the Delegate’s decision solely because the Applicant was securing an immigration outcome, rather, it was a factor given weight in circumstances where it did not accept that the position was genuine for a number of other reasons, most notably that it concluded that the Applicant did not need a café or restaurant manager (CB 168, [38]-[40]).
c)With respect to the Applicant’s submissions that the Tribunal did not consider the 2 previous 457 visas issued, there were 3 issues. First, they were referred to and it is well established that where the Tribunal’s reasons identify a piece of evidence, the Court should not readily infer that it has been overlooked. Second, it is significant that that the first visa was granted to Ms Chen’s late husband who was nominated as “general manager” and the second, of which she was the primary visa holder, was for a different position (CB 166, [18]-[20]). Third, the fact that the Applicant had been granted the same class of visa previously is not determinative or binding on the Tribunal. The Tribunal took into account the evidence before it regarding the current operations of the Applicant and reached a conclusion open to it.
d)The Tribunal’s consideration of the size and nature of the business, again, must be viewed in the context of the whole of its decision. The Tribunal’s concern was that Ms Chen as general manager was already performing the nominated position and that the creation of that position would be a “surplus level of administration” as stated by the Tribunal at the hearing (Transcript, page 23 line 20). In those circumstances, the Tribunal, clearly, considered that the size of the Applicant did not warrant a general manager and a café or restaurant manager.
Ground 5
e)What was required by r 2.72(10)(f) was a determination of not only whether or not the position in question was genuine in that it exists, but also whether it really was what it purported to be. This, necessarily, required a qualitative analysis of the position and a comparison of that with the occupation which had been nominated by the proposed sponsor. The Tribunal's task was to consider whether the nominated position really was that of a Café or Restaurant Manager as described in the ANZSCO Code.
f)Relevantly, ANZSCO Unit Group 1411 provides that a Café or Restaurant Manager “organises and controls the operations of cafes, restaurants and related establishments to provide dining and catering services.” The Tribunal found that the duties undertaken by Ms Chen were “not performed by a person employed by the business as a restaurant manager” and that Ms Chen was “performing tasks of a managing director, which was not the occupation nominated in the application” (CB 168, [41]).
g)The Tribunal’s reasoning in concluding that the position associated with the nominated occupation was not genuine was not only that the wide range of duties undertaken by Ms Chen were inconsistent with the duties of a “café or restaurant manager”, but also that Ms Chen was, in effect, sponsoring herself. The Tribunal, further, relied on the size of the business by reference to its turnover and number of customers in reaching its finding (CB 168, [38]-[41]). The Tribunal was entitled to look at the question of whether the position was genuine from a number of different perspectives. That reasoning reveals the type of qualitative analysis required by, r.2.72(10)(f). The Court accepts that position.
h)The Tribunal was aware of the ANZSCO description and referred to the relevant code (141111), and it expressly acknowledged the task required by r 2.72(10)(f) (referring to Cargo First Pty Ltd v Minister for Immigration BP [2015] FCCA 2091 “Cargo First”) (CB 164 and 167, [4] and [34]). It is implicit in its reasoning that it accepted that some of the duties performed by Ms Chen were that of a café or restaurant manager. However, most of them were not, as was conceded by the Applicant (CB 167, [26]-[27]).
i)The circumstances of this case were very similar to those in Cargo First. In that case, the nominee and his wife were the sole shareholders and directors of the applicant corporation. A Muffin Break Café at a Queensland shopping centre was being operated through the corporate entity. The nominee had applied for the subclass 457 visa on the basis of being a “sales manager”. Like the present case, the nominee was the controlling mind of the applicant corporation and had, in effect, sponsored himself. The Tribunal considered a sales manager to be a specialist managerial position that would be part of a managerial team in a large business and that the nominee performed sales duties in his role as manager of his café, rather than as a specialist sales manager. The Tribunal placed weight on the fact that the nominee performed all management duties in the applicant’s business, which included sales as a necessary part of doing business and just because he did some sales tasks did not lead to a conclusion that the café required a specialist, full time, sales manager. The Tribunal also took into account the size and nature of the business in reaching its conclusion that the position associated with the nomination was not genuine.
j)It was in that context that Judge Smith dismissed the judicial review application and explained that the task required by r 2.72(10)(f) required more than determining whether the duties relevant to the position include the majority of those referred to the ANZSCO. Judge Smith went on and found that the critical reasoning described above was precisely the qualitative analysis required by the Regulations, nor was any error found in the Tribunal’s assessment that the position associated with the nomination was something that would be found in a larger enterprise. Such a conclusion was readily within the decision making powers whether from its experience or material before it.
k)The reasoning in the present matter is consistent with that affirmed in Cargo First. In that case, the central part of the Tribunal’s reasoning was that the nominee was really performing an entirely different role in light of the additional duties he was undertaking. This was also the central concern in the present case. Additionally, like in Cargo First, the Tribunal considered that given the size and nature of the business that there was no need for a café or restaurant manager, as distinct from the general manager.
Conclusion
The Court is satisfied that the Tribunal did not inflexibly apply the Department’s policy as asserted by the Applicant. The Court accepts, further, that the Tribunal considered that the Applicant’s business was important for the local community and had considered the reference letters provided by Mr Taylor and Mr McKenna, in that respect. The Court accepts and adopts the submissions of the First Respondent, as set out above, in finding that there was no jurisdictional error established in terms of ground 1. Accordingly, the Applicant’s Further Amended Application filed on 14 May 2019 which relies on that ground is dismissed.
The Court is satisfied that the Tribunal, however, in considering whether the position as associated with the nominated occupation was genuine, failed to evaluate the duties of that position as put forward by the Applicant against the ANZSCO code description and failed to evaluate the duties of Ms Chen’s position as against the code’s criteria for that occupation in that there was no qualitative analysis carried out by the Tribunal including by way of any comparison with the occupation nominated by the proposed sponsor, in its determination that Ms Chen was performing tasks of a managing director which were not those of the occupation nominated by the Applicant in the Nomination Application. There was no assessment of the genuineness of the position having regard to the ANZSCO criteria for that position. In that regard, a simple notation in terms of paragraph 4 of the Tribunal’s decision stating: “the nominated occupation is café or restaurant manager ANZSCO code 141111” does not go anywhere near as far enough to properly consider that matter. What is clearly required is, as set out in the Full Court of the Federal Court of Australia’s decision in Singh v Minister for Home Affairs [2019] FCAFC 3 (Reeves, O’Callaghan and Thawley JJ), where their Honours stated at paragraph 30:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
At paragraphs 35 and 36 their Honours also stated:
35. However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
36. The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 v the Republic of Nauru (2018) 360 ALR 228 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
Alive to the warning set out in paragraph 36 of the decision in Singh v Minister for Home Affairs, the Court is of the view that the Tribunal has failed to engage in an active, intellectual process with respect to the application of the ANZSCO code as set out in the Applicant’s submissions, as referred to above, and, accordingly, jurisdictional error is identified. In that regard, a writ of Certiorari should issue directed to the Tribunal, as the Second Respondent, quashing its decision of 2 August 2018 together with a writ of Mandamus directed to it requiring it to determine the Applicant’s Further Amended Application filed 14 May 2019, according to law.
The costs of the Applicant will be reserved for determination following the re-determination by the Second Respondent, as referred to above. The parties will have leave to file written submissions in respect of that issue. The Court will determine the issue of costs on the papers unless the parties wish to be heard orally.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 22 November 2019
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