Pexbury Pty Ltd v Minister for Immigration
[2020] FCCA 3074
•13 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEXBURY PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3074 |
| Catchwords: MIGRATION – Application for Sponsorship Nomination – failure by applicant to meet applicable training expenditure benchmarks from time to time – failure by applicant to establish that its business was financially viable enough to employ another person for at least a two (2) year period – failure by Tribunal to exercise its discretion to disregard applicant’s failure to meet training expenditure obligations was not unreasonable – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359AA Migration Regulations 1994 (Cth), rr.2.59, 2.87B(2), 5.19(3)(d), 5.19(3)(f), IMMI 12/062, IMMI13/30, IMMI17/075 |
| Cases cited: Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicant: | PEXBURY PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 991 of 2019 |
| Judgment of: | Judge Egan |
| Hearing dates: | 1 June 2020, 10 November 2020 |
| Date of Last Submission: | 10 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 13 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A See |
| Solicitors for the Applicant: | Arshad and Chand Lawyers |
| Counsel for the Respondents: | Mr J Brynes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Further Amended Application for Review filed on 6 April 2020 be dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 991 of 2019
| PEXBURY PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 19 November 2019, the applicant filed an originating application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 17 October 2019. The Tribunal had affirmed a decision of the delegate to refuse the applicant’s sponsorship nomination application.
At the time of the hearing before the Court, the applicant relied upon the grounds for review as set out in a Further Amended Application for Review filed on 6 April 2020. Those grounds were as follows:
“Amended Grounds of Application
(i) The Second Respondent committed jurisdictional error, by taking into account irrelevant considerations and not taking into account relevant considerations, when making its finding at Paragraph [35] of the decision, that the requirements in regulation 5 .19(3 )( d) of the Migration Regulations 1994, were not met.
(ii) The Second Respondent committed an error of law, when it found that the Applicant did not satisfy the requirements of regulation 5.19 (3)(f)(i) of the Migration Regulations 1994.
(iii) The Second Respondent committed jurisdictional error when it failed to exercise its discretion under regulation 5.l 9(3)(f)(ii) of the Migration Regulations 1994 and disregard the requirements of regulation 5 .19(3 )( f)(i) of the Regulations.
Particulars
(a) The Second Respondent has concluded that the Applicant was unable to employ a person on a full time basis in the position of real estate representative for at least two years and therefore could not meet the eligibility requirements for nomination for the purposes of Regulation 5.19(3)(d) of the Migration Regulations 1994.
(b) The establishment of that jurisdictional fact is flawed as it seeks to treat the Applicant's sales and therefore income as fixed and by doing so, makes no provision for adjustment to either sales or income, based on the additional contribution that, ceteris paribus, would arise through the engagement of any additional labour.
(c) The determination of that issue, without due regard to the other relevant facts and factors constitutes a jurisdictional error.
(d) In making a determination as to the way in which the nominator has to fulfil its training requirements for the purposes of Regulation 5 .19(3 )( f)(i) of the Regulations, the Second Respondent has relied on a calculation of the 1 percent training expenditure required to satisfy the requirements of Regulation 2.87B(3) and Migration Instrument IMM/ 13/030, by evaluating that expenditure based on each and every 12 month period from the commencement date in which the Applicant was approved as a standard business sponsor.
(e) The departments records indicated that the nominator's most recent standard business sponsorship was approved on 22 March 2013 and was valid until 22 March 2016.
(f) The approval as a standard business sponsor for the Applicant, took place, whilst the former instrument IMM/ 12/062 was in place. The formula, that was provided for in the calculation of training expenditure under the former instrument, was based on a commitment for training expenditure on a fiscal year and not 12 month period from the nominator's approval date year.
(g) The method of calculation by the Second Respondent, failed to recognize that accrued right to have the assessment undertaken under the earlier formula and thereafter misapplied the way in which the evaluation of training expenditure compliance should take place, thereby constituting a jurisdictional error.
(h) The failure of the Second Respondent to exercise a discretion under Regulation 5.19(3)(f)(ii) was unreasonable, given the circumstances of this case, that included: changes to the reporting year period, the nominee having a child and taking maternity leave, being absent from work to care for her sick husband and the Director of the nominator himself taking ill.”
On 22 June 2020, an “Agreed Statement of Facts and Issues” was helpfully filed by the parties. That Statement, in its entirety, provided as follows:
“A. STATEMENT OF FACTS
Background
[1] The Applicant is the owner and operator of a real estate agency, Rivercity Real Estate (which it has owned and operated for 35 years). Mr Galbraith, the owner and director of the Applicant, had been ill for some time.
[2] Ms Kaur had worked in the business from 2013 or 2014 on a full-time basis until going on maternity leave. On her return from maternity leave, she worked part time from January to April 2017. Since April 2017, Ms Kaur had been on extended leave due to her husband’s chronic health condition and since the end of FY2017, there had been no expenditure for Ms Kaur’s salary.
[3] On 5 July 2017, the Applicant applied for approval of the nomination. The Applicant was the nominator and Ms Kaur was the nominee, for the position of “Real Estate Representative”.
[4] On 2 December 2017, a delegate of the Minister refused the application. In short, the delegate was not satisfied that regulations 5.19(3)(f)(i) and (ii) had been met because there was a failure to demonstrate a commitment to training benchmarks for the period from 22 March 2013 to 21 March 2016.
[5] On 22 December 2017, the Applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal held a hearing on 24 September 2019.
[6] On 17 October 2019, the Tribunal decided to affirm the delegate’s decision to refuse the nomination.
[7] The Tribunal was not satisfied that the Applicant met the requirements of regulation 5.19(3) of the Regulations, specifically for the purposes of:-
·Regulation 5.19(3)(d)(i); and
·Regulation 5.19(3)(f)(i).
THE LAW
[8] At the time when the Applicant had been approved as a standard business sponsor on 22 March 2013, the 2013 Regulations were in force.
[9] The 2013 Regulations relevantly provided:
a. at regulation 5.19(3)(f) – that the nominator has met the training requirements that the nominator was required to meet under paragraph 2.59(d) or (e) for the purpose of approval as a standard business sponsor;
b. at regulation 2.59(d) (which would have been the applicable regulation) –
i. “(d) if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph …” (emphasis added).
c. there was no regulation 2.87B.
[10] A copy of the above is attached and marked Annexure “A”.
[11] The applicable benchmark at the time of the 2013 Regulations was IMMI 12/062, which commenced on 1 July 2012. This relevantly provided a training benchmark as follows:
i. “Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.”
[12] As below, this instrument was revoked by IMMI 13/30 (which was dated 28 June 2013 and commenced on 1 July 2013).
[13] Regulation 2.87B was introduced with effect on 1 July 2013 by the Migration Legislation Amendment Regulation 2013 (No 3) (Cth) (F2013L01229). At that time, regulation 5.19(3)(f) was repealed and replaced. The terms of regulations 2.87B and 5.19(3) in effect from 1 July 2013 are attached at Annexure “B”.
[14] Also on 1 July 2013, IMMI 13/030 commenced. This relevantly contained a training benchmark for an established business as follows (at B):
ii. “Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.”
[15] On 1 July 2017, IMMI 13/030 was repealed (by clause 5 and Schedule 1 to IMMI 17/075).
[16] On 1 July 2017, IMMI 17/045 commenced and provided that it was made under paragraphs 2.59(d) and 2.68(e), subregulations 2.87B(2) and (3) of the Regulations (at section 3). It provided that it applied to nominations or standard business approvals lodged on or after its commencement (at section 7). This provided the following in relation to Training Benchmark B (at Schedule 1):
iii. “Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and Australian permanent residents.
iv. The business is also required to show that the provision of training is related to the purpose of the business.
v. Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.”
[17] At the time of the Applicant’s application to be a business nominator (i.e. 5 July 2017), regulation 5.19(3) and regulation 2.87B were in the terms as attached at Annexure “C”. As can be seen by a comparison between Annexures “B” and “C”:
a. the terms of regulation 5.19(3) did not change between 1 July 2013 and 5 July 2017 (apart from the addition of regulation 5.19(3)(i) (which is irrelevant to this proceeding)); and
b. the terms of regulation 2.87B did not change between the time of its commencement (1 July 2013) and 5 July 2017.
[18] Regulation 5.19(3) was annexed to the Decision Record and this was the same as the regulation contained in Annexure “C” (being the regulation as at 5 July 2017). Parts of regulation 2.87B were quoted in the Decision Record
[19] On 18 March 2018, regulation 2.59(d) was repealed.16 Further, at that time, regulation 5.19 was repealed and replaced with substantially different text.
[20] On 12 August 2018, regulation 2.87B of the Regulations was repealed.
ISSUES TO BE RESOLVED
[21] The following issues need to be resolved by this Honourable Court:
(1) Did the Tribunal commit jurisdictional error when it determined that the “requirement in r5.19(3)(d) is not met” [see paragraph 35 of the decision].
(2) Did the Tribunal commit jurisdictional error when it determined that the Applicant had not satisfied the requirements of Regulation 5.19(3)(f) [see paragraph 47 of the decision]; and
(3) Should the Tribunal have disregarded subparagraph (i) of Regulation 5.19(3)(f), for the purposes of Regulation 5.19(3)(f)(ii) [see paragraph 46 of the decision].
[22] The following contains a high-level overview of the competing contentions of the parties in respect of each issue identified (which will be developed in consolidated submissions by each party).
Issue #1 - Regulation 5.19(3)(d)(i)
[23] The Applicant contends that:
(i) The Tribunal has misconstrued the legislation when it reached its conclusion, as it stepped outside of jurisdiction, to undertake its task.
(ii) What the Regulation asks the Tribunal to do is to identify that there was a need for the nominator to employ a person as a paid employee to work in the position under the nominator’s direct control on a full time basis in the position for at least two years. [Refer Regulation 5.19(3)].
(iii) Instead, the Tribunal determined that the Applicant “must be able to financially employ and pay the person” (refer Paragraph 26 of the Decision) and then developed its own methodology for assessing how and when such capacity to pay should be evaluated [Refer Paragraph 30 of the Decision].
(iv) The Tribunal has exceeded its jurisdiction, by reading into the language of Regulation 5.19(3)(d)(i) a requirement that the Applicant should establish its capacity to meet those wages costs, at the time of hearing.
(v) Alternatively, in reaching its decision within jurisdiction, the Tribunal committed jurisdictional error by failing to take into account the revenue that arises where the Applicant was to employ a visa holder in its business.
[20] The Respondent contends that:
(i) the Tribunal did not misconstrue its task;
(ii) the Tribunal was mindful of the appropriate test under regulation 5.19(3)(d)(i) (as per [8], [26] and [34] and the attachment to the Decision Record);
(iii) there was nothing preventing the Tribunal from considering the Applicant’s financial ability to employ Ms Kaur. The Tribunal was seeking to determine what would happen in the next two years and it was open to the Tribunal to have regard to the financial position of the Applicant in determining this. Indeed, the financial position of the Applicant clearly bore on this issue;
(iv) the Tribunal’s reasons should not be read with an eye keenly attuned to the perception of error in this respect and it should not readily be inferred that the Tribunal misconstrued its task; and
(v) as to the alternative argument:
a. the Tribunal was not obliged to take into account the apparent increased revenue from Ms Kaur’s employment;
b. it should not readily be inferred that the Tribunal did not take Ms Kaur’s contribution into account. The Tribunal was mindful that Ms Kaur was said to be an “asset to the business” and that she made a “valuable contribution” (see [16] and [17] of the Decision Record). It would be unsurprising if the Tribunal placed no weight on Ms Kaur’s apparent contribution because it was speculative, not quantified (and appears unquantifiable) and the preference for solid evidence (as contained in the Applicant’s financial records) (as per [29] of the Decision Record); and
c. the Applicant has not shown how any such error would be material, in that: Ms Kaur’s apparent contribution is speculative and not quantified; and the Applicant failed to meet regulation 5.13(3)(f)(i) (as below).
Issue #2 - Regulation 5.19(3)(f)(i)
[21] The Applicant contends that the Tribunal committed jurisdictional error in reaching a determination that the Applicant had failed to maintain their (sic) commitment to the ongoing training in all three of the sponsorship years (refer Paragraph 45 of the Decision), for the following reasons:
(i) For failing to draw the distinction between commitments the nominator made relating to meeting the training requirements during the period of the nominator’s most recent approval as a standard business sponsor [see IMMI 12/062 and Regulation 5.19(3)(f)(i)(A)] and the applicable obligations under Division 2.19 [see Regulation 5.19(3)(f)(i)(B)].
(ii) By relying on Regulation 2.87B for the purposes of evaluating compliance under Regulation 5.19(3)(f)(i), when in fact that Regulation could not have applied in these circumstances.
(iii) By failing to correctly identify the commitments made by the nominator, when it:
a. Did not recognise that the Applicant’s commitment given at the time of approval as a standard business sponsor were made under Regulation 2.59 of the Migration Regulations 1994 as in force at 22 March 2013 and not Regulation 2.87B of the Migration Regulations 1994, that were not in force until 1 July 2013.
b Did not recognise that the Applicant’s commitment within the Migration Instrument at the time of the standard business sponsorship approval was IMMI 12/062 and not IMMI 13/030.
c. Did not recognise that the assessment of compliance for the purposes of Regulation 5.19(3)(f)(i) required an examination of the training expenditure in accordance with subsubsubsub Paragraph(A) and not subsubsubsub Paragraph(B) of that Regulation.
d. Did not differentiate nor recognise that the Applicant’s commitments to training expenditure were based on a fiscal year reporting period and not that of business sponsorship approval date.
e. Disallowed one training expenditure amount of $660.00 (see Paragraph 39 of the Decision), on the basis that it did not apply the correct legislation and thereby failed to draw the distinction within Paragraph B of the Training Benchmarks set out in Schedule A to IMMI 12/062 between evidence of recent expenditure of at least 1% of the payroll of the business at the time of the business approval, as opposed to evidence of training expenditure provided for as part of the training commitment.
[22] The Respondent contends that:
(i) the Tribunal did not err in the application of regulation 5.19(3)(f)(i);
(ii) the Tribunal correctly had regard to regulation 2.87B and applied the relevant timeframes because:
a. regulation 5.19(3)(f)(i)(B) concerned historic compliance with ongoing obligations under Division 2.19;
b. regulation 2.87B came into effect from 1 July 2013 and, therefore, was applicable in respect of the ongoing obligations under Division 2.19 from 1 July 2013. The applicable instrument from 1 July 2013 to 1 July 2017 was IMMI 13/030 (IMMI 12/062 had been revoked); and
c. it does not matter that the Applicant’s sponsorship commenced on 22 March 2013 (prior to regulation 2.87B being in force) because regulation 5.19(3)(f)(i)(B) and Division 2.19 were concerned with compliance with ongoing training requirements (which could change during the time of the sponsorship) rather than the initial claimed commitment to training;
(iii) the Tribunal was mindful of the test under regulation 5.19(3)(f)(i) (including (A) and (B)). It ought not readily be inferred that it failed to consider regulation 5.19(3)(f)(i)(A). The Tribunal was not obliged to set out in its reasons its consideration of regulation 5.19(3)(f)(i)(A), particularly where it correctly made adverse findings on regulation 5.19(3)(f)(i)(B) that answered the question posed by regulation 5.19(3)(f)(i); and
(iv) any error (if found, which is denied) was not material. That is because the Applicant failed to meet regulation 5.19(3)(d) (as above). Further, if an error is established in respect of regulation 5.19(3)(f)(i)(A), the Applicant failed to meet regulation 5.19(3)(f)(i)(B) and those requirements both had to be met to satisfy regulation 5.19(3)(f)(i).
Issue #3 - Regulation 5.19(3)(f)(ii)
[23] The Applicant contends:
(i) That the Tribunal committed jurisdictional error by failing to have regard to the relevant various facts and factors, by not exercising its discretion and disregarding Regulation 5.19(3)(f)(i).
(ii) That the decision was manifestly unreasonable having regard to all of the relevant issues before the Second Respondent.
[24] The Respondent contends that:
(i) the Tribunal’s exercise of discretion was not legally unreasonable and the Tribunal did not disregard regulation 5.19(3)(f)(i); and
(ii) any error (if found, which is denied) was not material because the Applicant failed to meet regulation 5.19(3)(d).”
(See Annexures to Statement of Agreed Facts at the end of this judgment).
The Court accepts and adopts the submissions and contentions made on behalf of the first respondent for the reasons as set out in the Agreed Statement of Facts and Issues.
The Court makes the following further findings:
Future Employment of Visa Holder – (r. 5.19(3)(d))
a)At [14] of its reasons, the Tribunal recorded that it had carefully considered all of the documents submitted to it for its consideration.
b)At [15] – [35] of its reasons, the Tribunal firstly analysed the applicant’s financial history for each of the 2016 – 2019 financial years. It held that the applicant’s business had been “marginally profitable” since 2017, but noted that since in or about April 2017, the business had not been required to meet payment of the nominated (presumably annual) salary of one Ms Kaur in the amount of $54,704.00. The Tribunal noted that it was submitted that Ms Kaur was of particular value to the business when she was dealing with Indian clients. Ms Kaur had been on an extended period of unpaid leave so that she could care for her husband who was chronically ill. The Tribunal noted at [20] that had the business employed the applicant during the 2018 and 2019 financial years, it would have made respective losses of $50,419.00 and $43,380.00 for those years. At [24] of its reasons, the Tribunal raised its concern that under s. 359AA of the Migration Act 1958 (Cth) (“the Act”), the applicant did not have the financial capacity to pay the full-time wages of Ms Kaur. The applicant’s representative, who appeared before the Tribunal, conceded that the applicant’s financial figures were “not impressive”.
c)Contrary to the applicant’s submissions, the Tribunal was entitled to consider the financial viability of the applicant’s business when considering whether the company was able to meet the requirement that it employ Ms Kaur on a full-time basis, for a period of at least two years, as provided for in r. 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period when he said:
“[22] Quite what to make of all of that material was for the Tribunal. If it transpired that there was a particular gap which hindsight demonstrated to be critical, then that was a gap which it was not for the Tribunal to fill. It is certainly possible, having regard to the trading figures that were placed before the Tribunal for completed financial years, to form a view not just that Jayshree Enterprises’ business was expanding, but that it was so doing in a way that left a profit. Equally though, there was, having regard to the statements made to the Tribunal member by Mr Parmar, quite reasonably an interrogative note left as to whether the business would support the particular wages bill that was specified to the Tribunal member in response to the questions asked. In turn, it is not illogical, even having regard to the growth evident from the trading accounts, to be left with an interrogative note as to whether over the two-year period in question the business would support the continuous full-time employment of a person in the nominated position.
…
[28] The difficulty in relation to the conclusion reached by the Federal Circuit Court judge is that there was material before the Tribunal which reasonably admitted of not being satisfied in respect of the critical criterion; “A person will be employed on a full-time basis in the position for at least two years”. That criterion required an element of value judgment as to a prospective position. It is certainly possible, having regard to the trading performance over the course of three years, and also the statement of a man whom the Tribunal did not regard as dishonest, Mr Parmar, about “hope” to reach a view that there was an upward trend in this business and that it was likely to support a particular position for two years. But that was not the only view to which one might come.
[29] There was an interest on the part of Jayshree Enterprises to be served here by adducing such evidence as it could to support that particular prospective position. I suspect strongly that much lay behind the statement given to the Tribunal by Mr Parmar as to “hope”, but it was for Jayshree Enterprises to give further colour and substance, if so disposed, to that “hope”. It was not for the Tribunal to ask further questions. The result before the Tribunal, was a case where reasonable people might reasonably differ as to whether the Tribunal should have been satisfied as to the condition in reg 5.19(4)(d)(i) being met. That being so, it was not a no-evidence case for the purposes of jurisdictional error.
[30] Further, the Tribunal’s reasoning as to an absence of satisfaction, leading to its conclusion as to noncompliance with that provision, was not illogical. The particular wages bill in prospect was evidence for the purposes of the Tribunal’s administrative review. It was not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years. Of course, it may have been possible, by virtue of further evidence from Mr Parmar, perhaps corroborated by a forensic accounting report and a related business plan, to see how the position could be supported for that length of time. But it was not for the Tribunal to make out Jayshree Enterprises’ case.”
d)It was submitted by Mr See on behalf of the applicant that the Tribunal had failed to consider, in its deliberations, the positive impact that the employment of another person would have upon the applicant’s profitability. Such submission was made based on what was submitted to be a well-established principle of economics. The Court rejects such submission. There was no expert evidence put before the Tribunal which would have enabled it to consider any such submission. The Court is in no position to rule on matters which were not relevantly before the Tribunal and which, in the Court’s view, were speculative in nature.
Training Commitments and Obligations – (r. 5.19(3)(f))
e)The training obligation as set out in r. 2.87B(2) of the Regulations was an obligation which was required to be met for so long as it was in operation. Regulation 2.87B(2) of the Regulations provided as follows:
“2.87B Obligation to provide training
(1) This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6) If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.”
f)IMMI 13/030 was an instrument by which applicable training benchmarks required to be met were set out. It operated in tandem with r. 2.87B of the Regulations. Both had to be met for r. 5.19(3)(f)(i) of the Regulations to be satisfied.
g)The Tribunal, at [38] – [42] of its reasons, carefully considered whether the applicant had met its annual training expenditure benchmarks. It properly based its consideration of that issue upon the then applicable regulation and ministerial instrument. In doing so, it properly set out in its reasons how the applicant had not satisfied the relevant benchmarks which had to be met.
h)The applicant’s submission that it had fulfilled the obligation which it had originally made under IMMI 12/062 was misconceived. The applicant was required to satisfy relevant benchmark requirements as they applied from time to time. It was open to the Tribunal to make the findings which it did. There is no merit to the applicant’s claim.
Failure to Exercise Discretion to Disregard Under Regulation 5.19(3)(f)(ii)
i)There is no merit to the claim that the Tribunal acted unreasonably. First, at [41] – [46] of its reasons, the Tribunal carefully analysed whether it was an appropriate case for it to disregard the failure of the applicant to comply with the relevant training expenditure obligations. At [45], the Tribunal noted that in all three (3) of the sponsorship years the applicant had failed to meet its ongoing training commitments. It carried out a calculation of actual expenditure and found that it was below the expenditure required. The Tribunal had had regard to the important criteria for consideration applicable to the exercise of the discretion to disregard a breach as set out in the Policy Advice Manual (PAM) on point. One such consideration was whether the applicant had failed to maintain their commitment to maintain their commitment to ongoing training. The Tribunal found that there had been such failure to meet the benchmark expenditure requirements. It did not err in doing so.
j)Second, to the extent that the applicant is dissatisfied with the decision of the Tribunal, it seeks an impermissible merits review.
k)Third, it has been held that it is a very high bar for legal unreasonableness to be established. [1] That bar was not reached in this matter. As to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at [41] and [42] said as follows:
[1] Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 at [108] per
McKerracher J.
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Tribunal came to its decision, and exercised its discretion, after weighing up all of the relevant facts before it. It cannot be said that the Tribunal, when analysing the matters before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] inclusive where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 12 November 2020
ANNEXURE “A”
Division 2.13 Criteria for approval of sponsor
Note A party to a work agreement is not required to apply for approval as a sponsor, and is not required to be approved as a sponsor in relation to a class of sponsor.
2.59 Criteria for approval as a standard business sponsor
For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and
(b)the applicant:
(i)is not a standard business sponsor; or
(ii)is a standard business sponsor because of the application of subitem 45 (2) of Part 2 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008; and
(c)the applicant is lawfully operating a business (whether in or outside Australia); and
(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and
(e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument made for paragraph (d); and
(f)if the applicant is lawfully operating a business in Australia — the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to:
(i)employing local labour; and
(ii)non-discriminatory employment practices; and
(g)either:
(i)there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(h)if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia — the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or a proposed applicant (the visa applicant) for, a Subclass 457 (Temporary Work (Skilled)) visa, and the applicant intends for the visa holder or visa applicant to:
(i)establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii)fulfil, or assist in fulfilling, a contractual obligation of the applicant.
Note for subparagraph (b) (ii) A person approved as a standard business sponsor before 14 September 2009 can make a new application to become a standard business sponsor on or after 14 September 2009. A person approved as a standard business sponsor on or after 14 September 2009, and who has not ceased to be a standard business sponsor, can apply under section 140GA of the Act for a variation of the terms of approval as a sponsor to extend the duration of the sponsorship approval — see regulation 2.68.
Note for paragraph (g) The meanings of associated with and adverse information are explained in subregulations 2.57 (2) and (3).
2.60 Criterion for approval as a professional development sponsor
(1)For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a professional development sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a professional development sponsor in accordance with the process set out in regulation 2.61; and
5.18 Prescribed laws relating to control of fishing (Act, s 262 (b))
For the purposes of paragraph 262 (b) of the Act (specifying laws that, if broken by a non‑citizen in certain circumstances, will render the non‑citizen liable to repay costs to the Commonwealth), the following laws are prescribed:
(a)the following laws of the Commonwealth:
(i)the Continental Shelf (Living Natural Resources) Act 1968;
(ii)the Fisheries Act 1952;
(iii)the Fisheries Management Act 1991;
(iv)the Torres Strait Fisheries Act 1984;
(b)the following laws of Queensland:
(i)the Fisheries Act 1976;
(ii)the Fishing Industry Organisation and Marketing Act 1982;
(c)the Fisheries Act 1905 of Western Australia.
5.19 Approval of nominated positions (employer nomination)
(1)A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395; and
(b)be accompanied by the fee mentioned in regulation 5.37.
12. Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and
(b)the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)is actively and lawfully operating a business in Australia; and
(c)either:
(i)both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a) (ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full‑time, and undertaken in Australia; or
(ii)all of the following apply:
(A)the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72 (10) (d) (iii) (B) or sub-subparagraph 2.72 (10) (e) (iii) (B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c) (i) applies:
(i)the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)the nominator has met the training requirements that the nominator was required to meet under:
(i)paragraph 2.59 (d) or (e); or
(ii)paragraph 1.20D (2) (c);
for the purpose of approval as a standard business sponsor; and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)is actively and lawfully operating a business in Australia; and
(ii)directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
ANNEXURE “B”
Sponsorship applicable to Division 3A of Part 2 of the Act Part 2A
Sponsorship obligations Division 2.19
Regulation 2.87B
(a) starts to apply on the day on which the Minister approved the nomination made by the person in relation to the exchange; and
(b) ends 30 days after completion of the exchange.
2.87BObligation to provide training
(1) This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
(3) the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
(4) the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6) If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
Miscellaneous Part 5
General Division 5.3
Regulation 5.18
5.18Prescribed laws relating to control of fishing (Act, s 262(b))
For the purposes of paragraph 262(b) of the Act (specifying laws that, if broken by a non‑citizen in certain circumstances, will render the non‑citizen liable to repay costs to the Commonwealth), the following laws are prescribed:
(a) the following laws of the Commonwealth:
(i)the Continental Shelf (Living Natural Resources) Act 1968;
(ii)the Fisheries Act 1952;
(iii)the Fisheries Management Act 1991;
(iv)the Torres Strait Fisheries Act 1984;
(b) the following laws of Queensland:
(i)the Fisheries Act 1976;
(ii)the Fishing Industry Organisation and Marketing Act 1982;
(c) the Fisheries Act 1905 of Western Australia.
5.19Approval of nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(b) be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
(b) the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)is actively and lawfully operating a business in Australia; and
(iii)did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c) either:
(i)both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full‑time, and undertaken in Australia; or
(ii)all of the following apply:
(A)the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i)the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)it is reasonable to disregard subparagraph (i); and
Note:Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g) either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b) the nominator:
(i)is actively and lawfully operating a business in Australia; and
(ii)directly operates the business; and
(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d) both of the following apply:
ANNEXURE “C”
Sponsorship applicable to Division 3A of Part 2 of the Act Part 2A
Sponsorship obligations Division 2.19
Regulation 2.87B
basis that the primary sponsored person satisfied the criteria in clause 408.223 (religious worker) or 408.224 (domestic worker) of Schedule 2;
the person must not recover or seek to recover from the sponsored person any expenditure by the person in relation to financial support of the sponsored person in Australia.
(3) If the person is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligations mentioned in subregulations (1A), (1B) and (2A):
(a) start to apply on the day on which the person is approved as a sponsor; and
(b) end on the day on which each of the following has occurred:
(i)the person ceases to be an approved sponsor;
(ii)there is no primary sponsored person or secondary sponsored person in relation to the person.
(4) If the person is or was a party to a work agreement, the obligations mentioned in subregulations (1A), (1B) and (2A):
(a) start to apply on the day on which the work agreement commences; and
(b) end on the day on which each of the following has occurred:
(i)the person ceases to be a party to a work agreement;
(ii)there is no primary sponsored person or secondary sponsored person in relation to the person.
2.87BObligation to provide training
(1) This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to
training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6) If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
2.87CObligation not to engage in discriminatory recruitment practices
(1) This regulation applies to a person who:
(a) is or was a standard business sponsor; and
(b) is lawfully operating a business in Australia.
(2) The person must not engage in, or have engaged in, discriminatory recruitment practices during the period of the person’s approval as a sponsor.
(3) The obligation referred to in subregulation (2):
(a) starts to apply on the day the person is, or was, approved as a standard business sponsor; and
(b) ends when the person ceases, or ceased, to be a standard business sponsor.
Part 5 Miscellaneous
Division 5.3 General
Regulation 5.18
(iii)it is not reasonably practicable for the person to attend at a place where, or time when, he or she could be subjected to a test mentioned in paragraph (f);
evidence that the person has been determined by the Minister, on the basis of an interview with the person, to have functional English.
5.18Prescribed laws relating to control of fishing
For the purposes of paragraph 262(1)(b) of the Act (specifying laws that, if broken by a non‑citizen in certain circumstances, will render the non‑citizen liable to repay costs to the Commonwealth), the following laws are prescribed:
(a) the following laws of the Commonwealth:
(i)the Continental Shelf (Living Natural Resources) Act 1968;
(ii)the Fisheries Act 1952;
(iii)the Fisheries Management Act 1991;
(iv)the Torres Strait Fisheries Act 1984;
(b) the following laws of Queensland:
(i)the Fisheries Act 1976;
(ii)the Fishing Industry Organisation and Marketing Act 1982;
(c) the Fisheries Act 1905 of Western Australia.
5.19Approval of nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b) be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
(iv)identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b) the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)is actively and lawfully operating a business in Australia; and
(iii)did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c) either:
(i)both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full‑time, and undertaken in Australia; or
(ii)all of the following apply:
(A)the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i)the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)it is reasonable to disregard subparagraph (i); and
Note:Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g) either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(i) there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
Direct Entry nomination
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b) the nominator:
(i)is actively and lawfully operating a business in Australia; and
(ii)directly operates the business; and
(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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