Nguyen and Nguyen Trading as Saigon Butchery v Minister for Immigration

[2017] FCCA 2155

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN AND NGUYEN TRADING AS SAIGON BUTCHERY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2155

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employer nomination – position associated with the nominated occupation found not to be genuine as not required full time – whether the Tribunal decision was arbitrary, or whether the Tribunal misinterpreted the law considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.140GB

Migration Regulations 1994 (Cth)

Cases cited:

Bakri v Minister for Immigration [2016] FCA 396
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091; (2015) 298 FLR 138

Cargo First Pty Ltd v Minister for Immigration [2016] FCA 30; (2016) 242 FCR 87

Gill v Minister for Immigration [2017] FCAFC 51
Khan v Minister for Immigration [2016] FCA 877
Pasricha v Minister for Immigration [2017] FCA 779

Applicant: DUY LONG NGUYEN AND HOA HONG NGUYEN TRADING AS SAIGON BUTCHERY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2314 of 2016

Judgment of: Judge Driver

Hearing date: 6 September 2017

Delivered at: Sydney

Delivered on: 18 October 2017

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application as amended on 14 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2314 of 2016

DUY LONG NGUYEN AND HOA HONG NGUYEN TRADING AS SAIGON BUTCHERY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction and background

1. The applicant (Saigon Butchery) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to approve the nomination of Saigon Butchery as a prospective employer. 

2. The following statement of background facts is derived from the written submissions of the parties. 

3. Saigon Butchery is a partnership that trades as a wholesaler and retailer of meat, under the same trading name.[1]

   [1] Court Book (CB) 197

4. On 1 May 2015 Saigon Butchery applied to the Minister’s Department for approval of the nominated occupation of “Sales and Marketing Manager” (nomination application).[2]  The nominated occupation of Sales and Marketing Manager corresponded with the occupation Sales and Marketing Manager 131112 as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) published by the Australian Bureau of Statistics. The ANZSCO Code was specified by the Minister in a legislative instrument (IMMI 14/048). The applicant nominated Ms Thi Nhu Nguyet Nguyen to perform the role.[3] 

   [2] CB 4

   [3] CB 8

5. Both in the nomination application form itself[4] and in a document provided in support of the nomination application entitled “Employment Contract” dated 1 May 2015 between Saigon Butchery and Ms Nguyen,[5] the responsibilities for the position of Sales and Marketing Manager were listed as including:

   [4] CB 6

   [5] CB 21

   Negotiating and signing contracts with new commercial retailers for the wholesale supply of meat …

6. On 6 October 2015 the delegate refused the nomination application on the basis that the nomination application did not meet the prescribed criteria for approval under regulation 2.72 of the Migration Regulations 1994 (Cth) (Regulations).[6]  In particular, the delegate was not satisfied that the position associated with the nominated occupation was genuine, as required under regulation 2.72(10)(f). The delegate, upon consideration of the documents supplied by Saigon Butchery in support of the nomination application, found that he was “not satisfied that the size of the business is one that requires a full time Sales and Marketing Manager ANZSCO 131112”.[7]

   [6] CB 63-76

   [7] CB 75

7. Saigon Butchery applied to the Tribunal for review of the delegate’s decision.  Saigon Butchery’s migration agent provided to the Tribunal a number of documents in support of the review,[8] including:

   a)Saigon Butchery promotional materials and recipes;

   b)a statement from Ms Nguyen;

   c)a document entitled “Business Expansion Plan”; and

   d)financial records for Saigon Butchery.

   [8] CB 132-214

8. On 11 July 2016, the Tribunal invited Saigon Butchery to appear before it, pursuant to s360 of the Migration Act.[9] 

   [9] CB121

9. Mr Duy Long Nguyen attended the Tribunal hearing on behalf of, and in his capacity as one of the proprietors of, Saigon Butchery.

10. On 2 August 2016 the Tribunal decided to affirm the decision under review.[10]  The Tribunal noted that during the hearing conducted on 2 August 2016 it questioned Mr Nguyen about the duties he envisaged the nominee, Ms Nguyen, performing for Saigon Butchery.  Mr Nguyen responded that, among other things, Ms Nguyen would be responsible for dealing with suppliers, and for negotiating purchase prices for meats.[11]  The Tribunal put to Mr Nguyen that dealing with suppliers did not appear to fall within the scope of duties of a Sales and Marketing Manager, as it was concerned with purchases rather than sales.[12]  Mr Nguyen gave further evidence that he expected that Ms Nguyen would spend in the order of 30 per cent of her time negotiating purchases with suppliers.[13]

    [10] CB 245-253

    [11] CB 247-248 at [14]

    [12] CB 248 at [16], [22]

    [13] CB 248 at [23]

11. The Tribunal found that Ms Nguyen performed some sales and marketing duties, but that she did not perform the duties of a specialist Sales and Marketing Manager. It found that given a substantial proportion of Ms Nguyen’s time was to be spent on duties unrelated to the nominated occupation, the Tribunal did not accept that a full time Sales and Marketing Manager was necessary to the operation of the business.  For those reasons, the Tribunal was not satisfied that the position associated with the nominated occupation was genuine.[14]

    [14] CB 249 at [24]

The current proceedings

1. These proceedings began with a show cause application filed on 25 August 2016.  The applicant now relies upon an amended application filed on 14 March 2017.  The grounds in that application as amended are:

   1. The Second Respondent failed to take into account a relevant consideration

   Particulars:

   (i) The Tribunal failed to take into account a relevant consideration in affirming the decision under review.

   (a) The Tribunal made a decision on 2 August 2016 refusing an application for a nomination approval under s140GB of the Migration Act 1958 (‘the Act’).  In particular, the Tribunal found that the Applicant had not satisfied subclause 2.72(10)(f) of the Migration Regulations 1994 (‘the regulations’).

   (b) Subclause 2.72(10)(f) relevantly provided:

   2.72(10) If the person is a standard business sponsor - the Minister is satisfied that:

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

   (c)     The Tribunal stated at [24]-[25] of its reasons:

   24.    The Tribunal finds that the nominee performs some sales and marketing duties, but does not perform the duties of a specialist Sales and Marketing Manager.  The applicant's own evidence was that the nominee would be expected to spend a substantial proportion of her time (in the order of 30%) negotiating the purchase of meats with suppliers.  While there is a link between purchase price and selling price, the Tribunal does not accept that negotiating purchase prices with suppliers on even the most generous view falls within the scope of a Sales and Marketing Manager.  Given that a substantial proportion of the nominee's time is to be spent on duties unrelated to the nominated occupation, the Tribunal does not accept that a full-time Sales and Marketing Manager is necessary to the operation of the business. The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuine.

   25.    For these reasons the requirements of r.2.72(10)(f) are not met.

   (d) The Tribunal failed to take into account the ANZSCO when determining whether the nominated position was genuine.  The sub-major group for managers under the ANZSCO refers to the following:

   SUB-MAJOR GROUP 13 SPECIALIST MANAGERS

   SPECIALIST MANAGERS plan, organise, direct, control and coordinate special functions within organisations such as advertising and sales, financial, human resources, production and distribution, education, health and welfare, and ICT.

   Indicative Skill Level:

   In Australia and New Zealand:

   Most occupations in this sub-major 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:

   •       developing, implementing and monitoring strategies, policies and plans for their area of control

   •       establishing and directing operational and administrative procedures

   •       directing and coordinating the allocation of resources

   •       monitoring work progress and performance, and adjusting processes and resources to keep goals on track

   •       controlling budget planning and report preparation, and monitoring and controlling expenditure for their area of control

   •       controlling selection, training and performance of staff

   •       representing the organisation in negotiations, and at conventions, seminars, public hearings and forums

   This section contains the following subsection :

   MINOR GROUP 131 Advertising, Public Relations and Sales Managers

   MINOR GROUP 132 Business Administration Managers

   MINOR GROUP 133 Construction, Distribution and Production Managers

   MINOR GROUP 134 Education, Health and Welfare Services Managers

   MINOR GROUP 135 ICT Managers

   MINOR GROUP 139 Miscellaneous Specialist Managers

   (emphasis added).

   (e) This sub-major group includes Minor Unit Group 1311, of which the nominated occupation is part: see 131112. Negotiating is therefore included as a task of a Sales and Marketing Manager. In Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015), although dealing with the “closely related” criterion for a subclass 485 visa, the Full Court of the Federal Court considered whether a business diploma was closely related to the occupation of engineering technologist. In so doing, the Court held the following, after reviewing the ANZSCO structure, finding that the tasks in the higher groups under ANZSCO were also to be considered as part of the evaluative exercise: per Griffiths, Mortimer and Beach JJ, at [23], [52] and [55]-[61]:

   23.    It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes:

   This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes. Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (e.g. business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie ).

   …

   52.    In our view, the Tribunal fell into jurisdictional error by confining its approach to the weighing up of Mr Talha's Australian studies against the tasks for an Engineering Technologist as set out in Unit Group 2339 and in the occupation of Engineering Technologist. Notably, it made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Engineering Professionals, which included Engineering Technologists.  Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation of Engineering Technologist and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation.  In particular, the Tribunal ought to have included in the evaluative exercise the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. As is evident from the extract at [26] above, those tasks included many matters which, on their face, had a relationship with many of the courses completed by Mr Talha in his Australian studies. That was the essential point which Mr Talha made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings (which supported Mr Talha's individual claims). The Tribunal erred in not taking into account the relevant information in those higher groupings. It adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth).

   …

   55.    Although we accept the Minister's submission that some of the information contained in the higher groupings are not relevant to individual occupations within the grouping, the fact remains that, in the case of Mr Talha's nominated occupation, there was relevant information in the higher groupings. Mr Talha's statement, which the Tribunal took into account, highlighted the relevance to his nominated occupation of Engineering Technologist of information contained in the higher groupings relating to management tasks. The Tribunal ought not to have confined its consideration to the relevant information which was contained in the unit group, but should have also referred to the higher groupings.

   56.    Nor do we accept the Minister's submission that, because the Minister chose by legislative instrument to identify skilled occupation by reference to occupational categories in the ANZSCO Code and not by higher level categories, the information in those higher categories is irrelevant. The ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of Mr Talha's nominated occupation. As explained above, this not only included information in the introductory sections of the ANZSCO Code which explained its structure and purpose, but also relevant information in the higher groupings into which the nominated occupation expressly fell.

   57.    It might also be noted that the Minister's submission is inconsistent with the Tribunal's own approach because it did take into account information not only in the individual occupational category but also information in the higher unit group.  Acceptance of the Minister's submission would mean that the Tribunal should have ignored the information in the unit group notwithstanding that that information included an express reference to the very same terminology which appears in the Ministerial Instrument, namely “233914 Engineering Technologist”.   Because that particular unit group itself fell into higher groupings, reference also had to be made to any relevant information in those higher groupings.

   58.    As to the Minister's submission concerning the limited purpose of the ANZSCO Code (see [38(a)and (f)] above), the Minister has selectively quoted from the stated purpose of the ANZSCO Code. The relevant statement is set out in full in [23] above.

   59.    We do not consider those statements to preclude regard being had to information in higher groupings which is relevant to particular occupations.  The statement as to the ANZSCO Code's purpose is not directed to that exercise at all.  Rather, the statement is directed to the need for caution in using ANZSCO information about particular jobs because the same job titles may be used in different industries to describe different occupations.  Moreover, the occupation titles used in the ANZSCO Code are not an exhaustive list of all titles which are commonly used to describe an occupation, hence the example is given of “brickie” (see [23] above).  Those are different matters to the manner in which ANZSCO Code information needed to be considered  in the particular circumstances here.

   60. As to the Minister's submission which is summarised in [38(f)] above, which is to the effect that the ANZSCO Code has only a limited purpose, and is not suited at all to the task of determining whether a person's Australian study qualifications are “closely related” to a nominated occupation, acceptance of that proposition would have the remarkable effect of rendering the Ministerial Instrument unworkable, as well as leave a huge vacuum in the operation of reg 1.15I and cl 485.213(b) of Sch 2 of the Regulations. Furthermore, the submission is predicated on a misinterpretation of the statement in the ANZSCO Code as to its purpose (see immediately above). The contention should be rejected.

   61.    Finally, the fact that the ANZSCO Code also contains a separate unit group and occupational classification for “Engineering Managers” is not inconsistent with the correct approach to the use of relevant information in higher groupings in the ANZSCO Code.  The groupings relating to “Engineering Managers” are entirely separate.  What is relevant here is the fact that the groupings into which the nominated occupation of Engineering Technologist falls contain information which confirms Mr Talha's claims that management skills and tasks were elements which the Tribunal had to take into account in assessing whether his Australian study qualifications were “closely related” to his nominated occupation.

   (f) The Tribunal failed to take into account the tasks set out in Sub-Major Group 13, when determining whether the position was genuine.  That was a relevant consideration, given the structure of the ANZSCO.  That failure constitutes jurisdictional error.

   2. The decision of the Second Respondent was arbitrary or it was made in the absence of probative evidence

   Particulars:

   (i) The Tribunal found that negotiation was not part of the role of a Sales and Marketing Manager.  That was an arbitrary finding or made in the absence of probative evidence.  Either way, the Tribunal committed jurisdictional error.

   3. The Second Respondent misinterpreted the law or misapplied the law to the facts

   Particulars:

   (i) The Tribunal found that as negotiation formed 30% of the duties of the nominated position of a Sales and Marketing Manager the position was not genuine for the purposes of subclause 2.72(10)(f) of the regulations.

   (a) The fact that negotiation formed 30% of the duties of the nominated position did not mean that the nominated position was not genuine.  The Tribunal therefore misinterpreted the applicable law in determining whether the nominated position was genuine or misapplied the law to the facts, thereby committing jurisdictional error.

   (ii) The Tribunal conflated the requirements of r2.72(10)(e), which dealt with whether the tasks of the position corresponded to a significant majority of the tasks of the nominated occupation listed in the ANZSCO, with the requirements of r2.72(10)(f), which dealt with whether the position associated with the nominated occupation is genuine.

   4. The Second Respondent did not conduct the review required by s348 of the Migration Act 1958

   Particulars:

   (i) Subsection 352(4) of the Migration Act 1958 relevantly provided:

   352(4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.

   (ii) The Secretary had in his possession a submission dated 11 June 2015, made by the Applicant's previous representatives, T Lawyers Pty Ltd, addressing the Applicant's need for a Sales and Marketing Manager (‘the submission’).  Despite the provisions of s352(4), the submission was not given to the Tribunal by the Secretary.

   (iii) In the context of the review, compliance with s352(4), is mandatory to ensure the review prescribed by law. The failure of the Secretary to so comply means that the Tribunal did not conduct the review required by s348. It therefore constructively failed to exercise its jurisdiction.

   (applicant’s emphasis retained)

1. Grounds 1 and 4 were not pressed. 

2. In addition to the court book filed on 25 October 2016, I have before me as evidence the affidavit of Chloe Ryu made on 27 July 2017, to which are annexed a number of documents, being job advertisements submitted to the Tribunal by Saigon Butchery.

3. Saigon Butchery and the Minister both filed written submissions and made oral submissions at the trial of the matter on 6 September 2017.  I have been assisted by those submissions.

Consideration

Ground 2 – was the Tribunal decision arbitrary or made in the absence of probative evidence?

1. Saigon Butchery contends that the Tribunal’s statement, that the task of negotiating purchase prices with suppliers “on even the most generous view” does not fall within the scope of a sales and marketing manager, is nothing more than a bald assertion, such that it is arbitrary or made in the absence of probative evidence.  Saigon Butchery refers to the affidavit of Ms Ryu and the job advertisements for a sales manager and for a marketing manager respectively annexed to it.  Saigon Butchery contends that those job advertisements show that the skill of negotiation is a task of the nominated position.

2. Saigon Butchery seeks to draw support for its contention from the recent decision of the Full Federal Court in Gill v Minister for Immigration.[15] 

   [15] [2017] FCAFC 51 at [74], [98]-[99]

3. I reject Saigon Butchery’s contention.  The Tribunal’s reasoning at [24] is reproduced in Ground 1 of the application.  In short, the Tribunal should not be taken to have found that the task of “negotiation” was not part of the role of a sales and marketing manager.  Rather, the Tribunal should be taken to have found that the role of a sales and marketing manager was concerned essentially with business outputs rather than business inputs.  Therefore, while negotiating with consumers of Saigon Butchery’s products might properly be part of a sales and marketing manager’s role, negotiating with the suppliers of meat or other business inputs would not.

4. Further, I accept the Minister’s submission that the annexures to the affidavit of Ms Ryu, to which Saigon Butchery refers in its written submissions, are irrelevant in the present proceedings, for two reasons. First, they were not considered by the Tribunal.  Whilst Saigon Butchery did attempt to submit the documents, they were received by the Tribunal after it had made its decision.[16]  Secondly, the Tribunal’s task was to determine whether, in the circumstances and by reference to the information which Saigon Butchery had provided, the position of sales and marketing manager (which position was specific to Saigon Butchery’s business) was a genuine position. Even if the Tribunal had before it the job advertisements which appear in the annexure to Ms Ryu’s affidavit, they may not have assisted the Tribunal in determining whether the position at Saigon Butchery’s business was genuine.  In any event, in none of the job advertisements:

   a)was the position specifically advertised as a “sales and marketing manager” position; and

   b)was one of the responsibilities for the roles clearly advertised as “negotiating purchase prices with suppliers”.

   [16] CB 254-265

5. It was open to the Tribunal to make its finding concerning the scope of the sales and marketing manager position. Its decision in this respect was not arbitrary or made in the absence of evidence.  Rather, the Tribunal was guided by the tasks set out in 131112 of the ANZSCO Code which states that a sales and marketing manager “plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation”.

6. The ANZSCO Code was explained by Judge Smith in Cargo First Pty Ltd v Minister for Immigration & Anor[17] in the following terms:

   ANZSCO … is a classification system that provides for the standardised collection, analysis, and dissemination of occupation data and replaced the former Australian Standard Classification of Occupations which had previously been used in respect of business visas and sponsors. The classification in ANZSCO is by reference to major group, sub-major group, minor group, unit group and occupation. Each level has a code with a specific number of digits. For example the major group has one digit whereas the occupation has six digits. Relevant to these proceedings, the major group is “Managers” with a code of “1”, the sub-major group is “specialist managers” with a code of “13”, the minor group is “advertising, public relations and sales managers” with a code of “131”, the unit group is “advertising, public relations and sales managers” with a code of “1311” and the occupation is “sales and marketing manager” with a code of “131112”.

   [17] [2015] FCCA 2091; (2015) 298 FLR 138 at [5]

7. Finally, the Tribunal was entitled to reason, as it did, that because such a significant part of Ms Nguyen’s time would be taken up with duties that were not associated with the role of a sales and marketing manager, the position was not in reality a full time position.  The visa criteria did not permit the nomination of a part time position.  This conclusion was open to the Tribunal on the material before it.

8. I reject Ground 2.

Ground 3 – did the Tribunal misinterpret the law or misapply the law to the facts?

1. I accept the Minister’s submissions in relation to this ground. 

2. Saigon Butchery makes two related assertions in this ground.  First, it contends that the Tribunal failed to engage in the task of asking whether the position was “real and true” by finding that the fact that negotiation formed 30 per cent of the duties of the nominated position meant that the nominated position was not genuine.  Secondly, it contends that the Tribunal “conflated” regulation 2.72(10)(e) with regulation 2.72(10)(f).

3. In respect of the first aspect, Saigon Butchery is in essence seeking merits review.  It was a matter for the Tribunal to engage in a qualitative analysis of the nominated occupation in order to determine whether it was genuine.[18]  Saigon Butchery simply takes issue with the Tribunal’s analysis and fact-finding.

   [18] Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091; (2015) 298 FLR 138

4. In respect of the second aspect, there is nothing impermissible in the Tribunal having regard to the nature of the tasks that are intended by the employer to be performed by the nominee for the nominated occupation, and the proportion of time that the nominee is going to spend on particular tasks. Such an analysis was endorsed by this Court in Cargo First, and is plainly relevant to a consideration of whether a position is real and true. The Tribunal did not conflate regulation 2.72(10)(e) with regulation 2.72(10)(f) as contended by Saigon Butchery.

5. It is instructive in considering Saigon Butchery’s challenge to the Tribunal decision to have regard to the statutory scheme applied by the Tribunal.

6. As described by Flick J in Cargo First Pty Ltd v Minister for Immigration,[19] there are three stages involved in the processing of a subclass 457 visa:

   a)an application made by an employer to be an approved “standard business sponsor”;

   b)the nomination by the employer of an eligible occupation; and

   c)a visa application by the person nominated to work in the nominated occupation.

   [19] [2016] FCA 30; (2016) 242 FCR 87 at [3]

7. Section 140GB of the Migration Act arises for consideration in relation to the second stage.

8. Section 140GB(1)(a)(i) provides that an approved sponsor may nominate an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to the applicant or proposed applicant’s proposed occupation.

9. Sub-sections 140GB(2) and (3) provide that:

   (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.

10. The Regulations prescribed the requirements to be satisfied for the approval of a nomination under s.140GB.[20]  In particular, regulation 2.72(10)(f) required that the “position associated with the nominated occupation is genuine”.

    [20] Regulation 2.72

11. In interpreting the statutory and regulatory regime applying to the approval of a nominated occupation, Judge Smith in Cargo First opined that the requirement that a “position associated with the nominated occupation is genuine” could not be understood without reference to the statutory context.  At [23], his Honour stated:

    Section 140AA of the Act (introduced together with s.140GB by the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)) provides that one of the purposes of div.3A is to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents.

12. His Honour explained at [24] that:

    Consistently with that purpose, sub-reg.2.72(10)(f) was added (by Migration Legislation Amendment Regulation 2013 (No. 3)) in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia: Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146 issued by the Minister for Immigration and Citizenship.

13. Judge Smith concluded that consideration of whether the position associated with the nominated occupation is genuine involves not only the question of whether the position existed, but also the question of whether the position was really what it purported to be.[21]  His Honour concluded that this analysis “necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor”.[22]

    [21] [30]

    [22] [30]

14. Judge Smith’s findings in Cargo First referred to above were left undisturbed on appeal,[23] and have recently been endorsed by Moshinsky J in Pasricha v Minister for Immigration.[24]  As noted by Moshinsky J at [46], Judge Smith’s judgment in Cargo First has been applied by the Federal Court in Khan v Minister for Immigration[25] and Bakri v Minister for Immigration.[26]

    [23] see Cargo First Pty Ltd v Minister for Immigration [2016] FCA 30; (2016) 242 FCR 87

    [24] [2017] FCA 779 at [44]-[45]

    [25] [2016] FCA 877

    [26] [2016] FCA 396

15. There is no issue in the present case that Saigon Butchery was an “approved sponsor” for the purposes of s.140GB. The issue before the Tribunal was whether it was satisfied that the requirements under regulation 2.72 had been met.

16. It was open to the Tribunal to find that it was not so satisfied.  I see no error in the Tribunal’s approach.

17. I reject Ground 3.

Conclusion

1. Saigon Butchery has failed to demonstrate that the Tribunal decision is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  19 October 2017

CORRECTION

1. Paragraph 23, line 1 – delete “1” and insert “2”.