Osaka Foods Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 604
•8 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Osaka Foods Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 604
File number(s): BRG 333 of 2023 Judgment of: JUDGE EGAN Date of judgment: 8 July 2024 Catchwords: MIGRATION LAW – Where the applicant had failed to respond within the prescribed period to a letter sent to it requesting further information pursuant to s. 359 of the Act – where the only evidence before the Tribunal as to whether the applicant held any sponsorship approval showed that such approval had expired prior to the hearing of the matter before the Tribunal – where sponsorship approval was a necessary precondition to the grant of any nomination application – where no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss. 140GB, 359, 360.
Migration Regulations 1994 (Cth), r. 2.63, r. 2.72.
Cases cited: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 25 June 2024 Date of hearing: 25 June 2024 Place: Brisbane Counsel for the Applicant: Mr N. Poynder Solicitor for the Applicant: Ramsden Law Counsel for the First Respondent: Ms E. Hoiberg Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Administrative Appeals Tribunal ORDERS
BRG 333 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OSAKA FOODS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
8 JULY 2024
IT IS ORDERD THAT:
1.The Amended Application for Review filed on 30 May 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
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 EGAN
INTRODUCTION
On 16 September 2019, the applicant sought approval of a nomination application for a Sub-Class 482 Visa made pursuant to the provisions of s. 140GB of the Migration Act 1958 (Cth) (“the Act”). That nomination application had been validly made.
Section 140GB of the Act relevantly provided as follows:
MIGRATION ACT 1958 - SECT 140GB
Minister to approve nominations
(1) A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, 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 a person's nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination--the person has paid the charge; and
(ab) in any case--the person is an approved work sponsor; and
(b) in any case--the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
(3) The regulations may establish a process for the Minister to approve a person'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 work sponsor.
Regulation 2.63 of the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provided as follows:
MIGRATION REGULATIONS 1994 - REG 2.63
Temporary activities sponsor or temporary work sponsor
(1) For subsection 140G(2) of the Act, a kind of term of an approval as a temporary activities sponsor or temporary work sponsor is the duration of the approval.
(2) The duration of the approval may be specified:
(a) as a period of time; or
(b) as ending on a particular date; or
(c) as ending on the occurrence of a particular event.
As is clear from the above, the Minister must approve a person’s nomination if various criteria have been met, and if it is demonstrated that the nominator is “ … an approved work sponsor.”
A delegate of the Minister refused the nomination on the ground that the evidence did not establish that the nomination was lodged to fill a genuine skill shortage, rather than to facilitate the grant of a visa for the nominee. [1]
[1] Court Book (CB) – p. 182
The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (“the Tribunal”).
On 18 June 2023, the Tribunal affirmed the decision of the delegate, finding that it was not satisfied that the position associated with the nominated occupation was genuine under r. 2.72(10)(a) of the Regulations.
On 21 July 2023, the applicant filed an Originating Application for Review of the decision of the Tribunal.
On 28 May 2024, the applicant filed an Amended Application for Review, the sole ground of which was as follows:
The second respondent (the Tribunal) failed to comply with its obligation under s. 348 of the Act to "review" the decision of the first respondent.
Particulars:
a)On 16 September 2019 the applicant lodged with the first respondent an application for approval of a nomination for the position of Café or Restaurant Manager.
b)The application included detailed evidence and submissions as to why the first respondent ought to grant the approval of the nomination sought by the applicant.
c)On 9 October 2019 a delegate of the first respondent refused to approve the nomination sought by the applicant.
d)On 30 October 2019 the applicant lodged an application for review of the decision of the first respondent with the Tribunal.
e)The Tribunal was required under s 348 of the Act to “review” the decision of the first respondent.
f)On 18 June 2023 the Tribunal made a decision to affirm the refusal of the first respondent to approve the nomination.
g)In making the decision to affirm the refusal of the first respondent, the Tribunal failed to consider all of the claims of the applicant and the case raised by the material or evidence before it, including the material which was provided to the first respondent. As such, the Tribunal failed to review the decision of the first respondent.
It was not in dispute as between the parties that on 26 May 2023 the Tribunal wrote to the applicant, pursuant to the provisions of s. 359 of the Act, seeking further information as follows: [2]
[2] CB 192-195 inclusive
Case number: 1930861
26 May 2023
Dear Mr Chung
INVITATION TO PROVIDE INFORMATION - OSAKA FOODS PTY LTDI am writing on instruction from the Member conducting your review, about the
application for review made by Osaka Foods Pty Ltd ('the applicant' or 'the nominator') in respect of a decision to refuse a business nomination application under s 140GB of the Migration Act 1958 (the Act).
In order for the Tribunal to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in reg 2.72 of the Migration
Regulations 1994 (the Regulations) and s 140GB of the Act are met at the time of its
decision, including but not limited to the particular criterion that the delegate found was not met.The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information in writing:
1. Information about company and business registration:•for example, a current and historical extract from the Australian
Securities and Investment Commission (ASIC) that includes past and present office holders and shareholders (asic.gov.au); and•an extract from the Australian Business Register
(abr.business.gov.au)2. Information about current approval as a Standard Business Sponsor or being party to an approved work agreement;
•for example, a record of approval as a Standard Business Sponsor that has not lapsed or ceased
3.Information about directly operating an active and lawful business in Australia, and the business’ financial position for at least the last two financial years;
•for example, tax returns and business activity statements (BAS) that have been lodged with the Australian Taxation Office
•financial statements prepared by an accountant/financial advisor for the two most recently completed financial years that include a detailed profit and loss statement and balance sheet
4. Information about the business’s organisational structure and where the position associated with the nominated occupation sits in relation to that structure;
•for example an organisational structure chart that includes all of the current and proposed employees, their position title/duties and lines of reporting, whether they are full-time or part-time and whether they are an Australian citizen, permanent resident or visa holder
5.Information about the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO;
•for example, a description of duties and responsibilities for nominated occupation and how they fit within the structure and needs of the business
•a comparison of how the roles and duties of the nominated occupation match or are different from the occupation description in ANZSCO (see and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function)
6. If the nominated occupation is the subject to an inapplicability condition, information about why the condition does not apply in the circumstances of your case;
•The instrument specifying the occupations, in force at the time the nomination application is made, provides the relevant inapplicability conditions that the nominated occupation may be subject to
7.Information about the annual market salary rate for the nominated occupation, the nominee’s annual earnings and the terms and conditions of employment, including whether or not they are more favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location;
•The annual market salary rate for the nominated occupation must be determined in accordance with the method specified in the relevant instrument. Relevant information to give may include, for example, an employment contract or letter of offer that complies with relevant awards for the nominated occupation (if any) and also any salary surveys, advertisements, payroll reports and PAYG statements that relate to equivalent work in the same location
8. Information about the current and previous visa status of the nominee, and, if applicable, their English language ability;
•for example, the type of visas they held in Australia and when, and copies of any English language test results that the nominee has undertaken
9. Information about whether you satisfied the labour market testing condition or information that you are an exempt applicant.
•For example, information that was provided with the nomination about any redundancies or retrenchments of an Australian citizen or permanent resident worker in the four months before lodgement of the nomination application, information that was provided with the nomination about the advertising conducted (and any fees paid) within the period immediately before lodgement of the nomination application, or information about why the labour market testing condition does not apply in your case, for example, if it would be inconsistent with an international trade obligation of Australia as set out in a legislative instrument
Information that you give the Tribunal should be up to date and address all the relevant criteria.
This information, in writing should be received by 9 June 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by 9 June 2023, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 9 June 2023 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no longer wishes to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.
Click here to access the online Withdrawal form
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and interpreting Service (TIS) on 131 450.
Yours sincerely
Raghu S
For the RegistrarTelephone: 07 3052 3000
It was further not in dispute between the parties that the applicant had not responded to the s. 359 letter within the nominated time frame, and that by reason of such failure, the Tribunal had proceeded to determine the review in the absence of the applicant personally appearing before it. The applicant does not take issue with the fact that the Tribunal so proceeded.
In its reasons, the Tribunal recorded that, despite the fact that the s. 359 letter had been sent to the applicant’s nominated address, the applicant had failed to provide the requested information within the prescribed period. Although a request for an extension was received, such request was made after the expiration of the prescribed period. The Tribunal also recorded that in such circumstances, the applicant was not entitled to appear before the Tribunal pursuant to the provisions of s. 360(3) of the Act.
Not having received the requested information, the Tribunal, at [12] – [14] of its reasons, found as follows:
Position must be genuine and full-time
[12]Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
[13]The applicant has not provided updated and current information about the nominated position, the structure of the business and the financial circumstances of the applicant, and in these circumstances, the Tribunal is unable to be satisfied at the time of its decision, that the position associated with the nominated occupation is genuine. Accordingly, the requirements in r. 2.72(10)(a) are not met.
[14]For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be reviewed.
Applicant’s Argument
The argument advanced on behalf of the applicant was that the reasons of the Tribunal, when read as a whole, did not allow the applicant to understand why the Tribunal had found against it. It was submitted that there had been an insufficient consideration by the Tribunal of the existing material which was before it, [3] quite irrespective of the fact that the information requested in the s. 359 letter had not been provided. It was also submitted that it had not been demonstrated by the Tribunal in its reasons that the matters the subject of the requests in the s. 359 letter were necessary or reasonable. There was no merit to such submissions.
[3] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [31] – [34] per
The Court notes that in addition to its findings at [13] of its reasons relating to the lack of provision to the Tribunal of updated financial information concerning the operation of the applicant’s business, item no. 2 of the s. 359 letter sought information as to whether the applicant had a then current approval as a standard business provider. The rationale for such request having been made was obvious – namely that it was a precondition to the approval of any nomination that the nominator was an approved work sponsor. [4] That approval was something that either was or wasn’t in existence. It was the responsibility of the applicant to place evidence before the Tribunal that it held such an approval. It failed to do so.
[4] s. 140GB(2)(ab) of the Act
The Tribunal had no doubt appreciated that the only evidence before it of the applicant having any sponsorship approval was as set out in the “NOTICE OF DECISION – SPONSORSHIP APPROVAL NOTICE” dated 29 January 2016. [5] That notice indicated on its face that the applicant only had approval to nominate for the subject position for the five (5) year period between 29 January 2016 – 29 January 2021. The approval had expired prior to the matter proceeding before the Tribunal.
[5] CB p. 105 - 106
The Tribunal was rightly concerned to establish whether, as at the date of any decision made by it, the applicant either did, or did not, have the relevant approval. That was a fundamental precondition which had to be satisfied by the applicant for any application for review of the decision of the delegate to be successful.
Quite apart from the applicant having failed to provide all other relevant information sought by the Tribunal, in the absence of the applicant establishing, by the provision of an updated sponsorship approval notice, that it had the relevant approval, the Tribunal was unable to be satisfied that the nomination application was genuine. In so finding, the Tribunal did not err.
As was submitted by Counsel for the applicant, [12] – [13] of the reasons of the Tribunal do not disclose a consideration by the Tribunal of the material which was already before it. In the light of the above findings, however, the Tribunal was not required to undertake such consideration. The applicant had failed to satisfy the Tribunal that it was entitled to succeed in its nomination application on the basis of its being an approved sponsor. Such failure was fatal to its chances of success.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The amended application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 8 July 2024
Gaudron J and at [69] per McHugh, Gummow and Hayne JJ
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