Mora v Minister for Immigration

[2017] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2303

Catchwords:
MIGRATION – Subclass 457 visa – genuine applicant – reference by Tribunal to superseded ANZSCO description – whether such reference amounts to jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.140GB

Migration Regulations 1994 (Cth), reg.2.72

First Applicant: MARCELA OSORIO MORA

Second Applicant: BENJAMIN MUNOZ SANTAMARIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1096 of 2016

Judgment of: Judge Vasta

Hearing date: 18 September 2017

Date of Last Submission: 18 September 2017

Delivered at: Brisbane

Delivered on: 3 October 2017

REPRESENTATION

Counsel for the Applicants: Mr Boccabella

Solicitors for the Applicants: NB LAWYERS

Counsel for the Respondents: Ms Wheatley

Solicitors for the Respondents: SPARKE HELMORE

ORDERS

1. The Application filed on 24 November 2016 be dismissed.

2. That the Applicants pay the First Respondent’s costs of and incidental to this application fixed in the sum of $7,206.00.

3. The Applicant’s pay the costs of the First Respondent in relation to the adjournment fixed in the sum of $2,189.76.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1096 of 2016

MARCELA OSORIO MORA

First Applicant

BENJAMIN MUNOZ SANTAMARIA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 23 November 2016, the Applicants, Marcela Osorio Mora and Benjamin Munoz Santamaria, have asked this Court to judicially review a decision of the Administrative Appeals Tribunal (“the AAT”) that itself affirmed a decision of the delegate of the Minister not to approve the nomination of the First Applicant.

2. The AAT made two decisions; the first was on 19 October 2016 and related to the refusal of the sponsor’s nomination whilst the second on 4 November 2016 related to refusal of the Visa of First Applicant.

3. The First Applicant is a citizen of Columbia whilst the Second Applicant is also a citizen of Columbia and is the de facto husband of the First Applicant. On 21 July 2014, the First Applicant applied for a temporary work skill subclass 457 Visa. The Second Applicant applied for a Visa as a member of the family unit of the First Applicant.

4. The sponsoring employer is the Osario Munoz Family Trust (the Trust) which operates a cleaning business.

5. On 16 April 2015 the delegate refused the Visa of the First Applicant on the basis that she did not satisfy the regulation in that she was not the subject of an approved nomination. Therefore she could not meet the primary criteria for the grant of the Visa. She then applied to the then Migration Review Tribunal (“the MRT”) for a review of that decision.

6. On 11 August 2015, the AAT (as the MRT became) decided that it did not have jurisdiction to deal with the matter. On 27 August 2015 the Trust made a business nomination application and the nominee was the First Applicant. The nominated position was :

   “Job title/Position -  Sales and Marketing Manager

   Occupation -  Business Development Manager

   ANZSCO Code -  Sales and Marketing Manager 131112”

7. The delegate refused the nomination and that the AAT was then able to look at both applications.

8. The hearing took place on 19 October and the AAT affirmed the decision not to approve the nomination made by the Trust. The AAT then wrote to the First Applicant, in effect, informing her that because the AAT has refused to approve the nomination, it was very difficult for the Applicant to meet the requirements of the regulation because she was not the subject of an approved nomination.

9. On 4 November 2016, the AAT affirmed the decision not to grant the First Applicant’s Visa.

10. The relevant provisions from the Act are:

    140GB Minister to approve nominations

    (1) An approved sponsor may nominate:

    (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

    (i) the applicant or proposed applicant’s proposed occupation; or

    (ii) the program to be undertaken by the applicant or proposed applicant;

    or

    (iii) the activity to be carried out by the applicant or proposed applicant; or

    (b) a proposed occupation, program or activity.

    (2) The Minister must approve an approved sponsor’s nomination if:

    (a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and

    (b) in any case—the prescribed criteria are satisfied.

    (3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

    (4) Different criteria and different processes may be prescribed for:

    (a) different kinds of visa (however described); and

    (b) different classes in relation to which a person may be approved as a sponsor.

11. The Applicants applied for a subclass 457 Visa and the OM Family Trust applied for approval of the nomination. The relevant provisions state:

    “457.22 Criteria to be satisfied at time of decision

    ….

    457.223

    (1) The applicant meets the requirements of subclause (2) or (4)

    …

    Standard business sponsorship

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

    (a) Each of the following applies:

    (i) a nomination of an occupation in relation to the Applicant has been approved under section 140G of the Act;

    (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that in effect; and

    …”

12. Regulation 2.72 relevantly provides as follows:

    2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa

    (1) This regulation applies to a person who is:

    (a) a standard business sponsor; or

    (b) a party to a work agreement (other than a Minister);who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.

    (2) For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    …

    (10) If the person is a standard business sponsor—the Minister is satisfied that:

    …

    (f) the position associated with the nominated occupation is genuine;”

13. The relevant Legislative Instrument which provided the specification of occupations, IMMI15/092 (which commenced on 1 July 2015 and was revoked on 19 November 2016), provided at schedule 2 for the specification of a ‘Sales & Marketing Manager’, ANZSCO code 131112.

    “UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS

    ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

    Indicative Skill Level:

    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    Tasks Include:

    directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

    directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

    directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

    directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

    Occupations:

    131112 Sales and Marketing Manager

    131113 Advertising Manager

    131114 Public Relations Manager

    131112 SALES AND MARKETING MANAGER

    Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

    ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

    Skill Level: 1

    Specialisations:

    Business Development Manager

    Market Research Manager”

14. What the AAT was required to do was to assess whether the position of “Business Development Manager”, that the Trust had created and the Applicant was performing, was a genuine position. Whilst the ANZSCO description was a guide for the AAT, it was not a prescriptive formula to be used as a checklist.

15. The AAT concluded that the position was not a genuine one. Its reasoning was that the business run by the Trust was a small business and, as such, could not sustain a person working full time as a business development manager. The AAT noted that most businesses that would have a full-time business development manager would have other full-time managerial positions such as a human resource manager as well.

16. This became quite evident when the AAT looked at the actual duties that the Applicant performed. The AAT found that she provided quotations for about “half” of the time that she was working.

17. Having come to these conclusions, it is unsurprising that the AAT affirmed the decision not to grant the applicant a Visa.

18. The Applicants have a number of grounds for this application and these are reproduced below:-

    “In relation to the decision of the second respondent dated 19 October 2016:

    1.Failed to properly interpret and apply Reg2.72 of the Migration Regulations 1994.

    2. The second respondent’s decision was an improper exercised of power.

    3. The second respondent failed to take relevant considerations into account.

    4. The second respondent took irrelevant considerations into account.

    5. The second respondent’s decision was unreasonable.

    6. The second respondent failed to properly conduct a review for the purpose of implementing Part V and/or ss 348 and 349 of the Migration Act 1958;

    7. The second respondent’s decision involved an error of law;

    8. The decision was otherwise unlawful.

    In relation to the decision of the second respondent dated 4 November 2016:

    9. The second Respondent failed to properly apply the law in relation to the nomination decision review on 19 October 2016 and hence made a jurisdictional error in affirming the refusal of the subclass 457 visa application in the related decision of 4 November 2016

    10. The second respondent’s decision of 19 October 2016 was infected by jurisdictional error and hence could not form the basis of affirming the refusal of the subclass 457 visa application in the related decision of 4 November 2016”

19. As can be seen by the grounds, the two decisions are linked; that is, if the decision not to approve the nomination was a decision affected by jurisdictional error, then the decision not to grant the First Applicant a Visa will also be affected by that same jurisdictional error.

20. The Applicants submit that the AAT failed to understand the terms of the ANZSCO code in relation to the specialisation of an occupation. At paragraph 11 of the reasons of the AAT, the AAT said:

    “The tribunal notes that the nominated position is business development manager, specialisation of sales and marketing manager. For convenience, the tribunal will refer to the occupation of sales and marketing manager in the balance of these reasons”.

21. Thereafter in the reasons, there is no reference to the occupation of “business development manager” but rather “sales and marketing manager”. The criticism levelled at the AAT is that it referred to the general occupational aspects and not to the specific aspects that would be germane to the specialised “business development manager”.

22. Whilst I don’t agree with this criticism, mainly because the AAT made it clear that it was looking at the duties of a “business development manager”, even if there were merit in the criticism, that does not mean that the AAT has misinterpreted the regulation.

23. The authorities describe that this regulation requires a determination of not only whether or not the position in question is genuine in that it exists, but also whether it really is what it purports to be. And that is what the AAT has assessed in this case. It has concluded that the position that the First Applicant is filling is not a genuine “business development manager” position at all.

24. For those reasons, ground one fails.

25. The next three grounds can be dealt with together. The First Applicant argues that because the AAT has looked at the duties of “sales and marketing manager” rather than “business development manager”, the AAT has looked at irrelevant matters and not looked at relevant matters.

26. For the reasons already enunciated, I do not accept that this is what the Tribunal has done. Because there is no description in the ANZSCO of a “business development manager” but is simply referred to as a subcategory of “sales and marketing manager”, it is entirely appropriate for the AAT to look at the general definition whilst focusing on the specific. This is exactly what the AAT has said that they would do in paragraph 11 of the reasons.

27. Therefore grounds two, three and four fail.

28. Ground five refers to unreasonableness. When one looks at the reasoning of the AAT, there has been a conclusion that a cleaning business with no more than seven employees and a number of contractors would not genuinely have a need for a full-time “business development manager”. Such a conclusion on these facts could never satisfy the test for unreasonableness. Ground five also fails.

29. Ground six alleges that there was a failure to properly conduct a review. On my reading of the reasons of the AAT a proper review has been conducted and I find no merit in this ground.

30. Grounds seven and eight have no substance and were not the subject of any submission by the Applicants either in the written submissions or in argument before me. Both of those grounds fail.

31. When the matter first came before me for hearing on 12 June 2017, counsel for the Applicants told me that he had, for his own purposes, looked at the website to obtain the ANZSCO description. Upon reviewing the description on the website, counsel noticed that it was different to the one reproduced by the AAT in their reasons. Because he wished to explore this aspect, he requested an adjournment. I granted the adjournment and reserved costs.

32. Earlier in these reasons, I reproduced the correct ANZSCO description but the one reproduced by the AAT was not the description that was current at the time of the Visa application or the AAT hearing.

33. Instead the description that the AAT reproduced was as follows:-

    “In the decision record dated 19 October 2016, the second respondent made reference to an ANZSCO description of the duties of Sales and Marketing Manager, which was as follows:

    UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS

    ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

    Indicative Skill Level: In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    Tasks Include:

    formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers

    directing the development of initiatives for new products, marketing and advertising campaigns

    organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards

    directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors

    directing sales methods and arrangements by setting prices and credit arrangements

    Occupations:

    131111 Advertising and Public Relations Manager 131112 Sales and Marketing Manager.”

34. There are certainly differences in the two versions, however the description of the indicative skill level is exactly the same. The tasks are different; most notably the tasks in the older version refer to “consulting with other managers”, whereas the current version makes no such reference to “other managers”.

35. The Applicants submit that the AAT has had regard to an incorrect ANZSCO description. There can be no doubt that this submission is correct; in fact, counsel for the Minister concedes this point.

36. The Applicants submit that such amounts to a jurisdictional error. Whilst the Applicants concede that the ANZSCO description was not prescriptive, nevertheless it formed the basis for the conclusion that the position was not genuine. Therefore, the Applicants submit, the AAT has taken into account an incorrect matter which has infected the decision.

37. At first glance, there is a great deal of attraction in such a submission. But consideration must be had as to how the AAT has approached this ANZSCO description. The Applicants submit that such a consideration would be like unscrambling an egg, however I am not so sure that this analogy is apt.

38. The Applicants point to reference being made by the AAT to a business that would have a “business development manager” also having managers such as a human resources manager. The Applicants contend that the AAT has made such references because of the phrase “in consultation with other managers” that appears in the superseded version of the ANZSCO description.

39. However, the AAT has not talked about “consultation” with other managers; just simply that these other managers would exist. Apart from this, there is nothing that would suggest that the AAT placed reliance upon the superseded description.

40. In fact, at paragraph 29 of the reasons of the AAT, the AAT has noted the submissions made by the Applicants. If one looks at those submissions (the relevant portions are contained at page 270 of the court book), it can be seen that the Applicants have referred to the correct ANZSCO description.

41. Even though the AAT has reproduced the superseded (and therefore incorrect) version of the ANZSCO description, the AAT has had regard to the correct version of that description because it was contained in the submissions of the Applicants to which the Tribunal has given consideration.

42. In any event, the description of the indicative skill level has not changed in either version. The specific findings of the AAT at paragraphs 25-28 bear out that the AAT has looked at the appropriate skill level of the First Applicant.

43. The other changes made to the ANZSCO description can be properly described as changes in linguistics, style or jargon. The substance of the descriptions has not changed.

44. Whilst it may have been an error to reproduce a superseded description, I am not of the view that such amounts to a jurisdictional error. The ANZSCO description is merely a guide. The AAT has found that the position was not a genuine one. That finding was not based upon use of the ANZSCO description as some form of checklist.

45. That conclusion was based upon an examination of all of the material which disclosed that this particular business did not genuinely have a position of “business development manager”. In those circumstances, there is no jurisdictional error.

46. I dismiss the application with costs fixed in the sum of $7206. In addition, the Minister should have his costs of the adjournment fixed that $2189.76.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 October 2017