The Trustee for MRP Foods Family Trust v Minister for Immigration and Anor and Kaur and Anor v Minister for Immigration and Anor
[2020] FCCA 2709
•30 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE TRUSTEE FOR MRP FOODS FAMILY TRUST v MINISTER FOR IMMIGRATION & ANOR and KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2709 |
| Catchwords: MIGRATION – Application for judicial review – refusal decision of Minister upheld by Administrative Appeals Tribunal – related applications – nomination of a retail position – work visa – no matters of principle – applications dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.5.19 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ETA067 v The Republic of Nauru [2018] HCA 46 |
| Applicant: | THE TRUSTEE FOR MRP FOODS FAMILY TRUST |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1545 of 2018 |
| First Applicant: | SUKHPREET KAUR |
| Second Applicant: | SHUBHAM VERMA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1182 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 May 2020 |
| Date of Last Submission: | 15 June 2020 |
| Delivered at: | Townsville |
| Delivered on: | 30 September 2020 |
REPRESENTATION
| Solicitors for the Applicant in proceedings MLG1545/2018 and MLG1182/2019: | Wickham Lawyers |
| Solicitors for the First Respondent in proceedings MLG1545/2018 and MLG1182/2019: | Australian Government Solicitor |
ORDERS
IN PROCEEDINGS MLG 1545 of 2018
The application be dismissed.
IN PROCEEDINGS MLG 1182 of 2019
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1545 of 2018
| THE TRUSTEE FOR MRP FOODS FAMILY TRUST |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
MLG 1182 of 2019
| SUKHPREET KAUR |
First Applicant
SHUBHAM VERMA
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Overview
The applicant in proceedings MLG1545/2018, The Trustee for MRP Foods Family Trust (‘the applicant’), is the owner of several Subway fast food store franchises. The first applicant in proceedings MLG1182/2019, Ms Sukhpreet Kaur (‘Ms Kaur’) works for the applicant in one of its stores in Western Australia as a manager. The second applicant in proceedings MLG1182/2019, Mr Shubham Verma, is Ms Kaur’s husband. Ms Kaur started working for the applicant part-time whilst holding a student visa.
The applicant applied for approval of the nomination of a position of a Retail Manager in its Subway store where Ms Kaur works. The approval of the nomination is a necessary element of Ms Kaur’s application for a work visa (Regional Employer Nomination (Permanent) (Class RN) visa).
On 22 November 2017 a delegate of the Minister refused to approve the nomination on the basis the applicant had not identified a need to employ a paid employee to work in the position under the applicant’s direct control. Consequently, Ms Kaur’s visa application was also refused. The applicant and Ms Kaur each sought review of their respective delegate decisions in the Administrative Appeals Tribunal (‘the Tribunal’). In April 2019, the Tribunal affirmed the decisions of the delegate.
It was accepted by the parties that Ms Kaur’s application rests entirely on the outcome of the applicant’s nomination application, as she can only obtain her visa if the nomination is approved.
The requirements for the approval of the nomination are set out in the Migration Regulations 1994 (Cth) (‘the Regulations’). The relevant stream in this matter is the Direct Entry nomination: see reg 5.19(4). If any requirements are not met, the application must be refused: see reg 5.19(5).
Background
In September 2015 Ms Kaur, the Nominee, was employed on a casual basis by the applicant, who employs 12 employees in the store. Ms Kaur was studying at the time and subject to standard student visa limitations on work rights, being a limit of 20 hours of work per week.
In June 2016 Ms Kaur was appointed ‘Store Manager’ on a part time basis. Ms Kaur was still subject to the Student Visa work conditions at that time, restrictions which continued until 15 March 2018.
Ms Kaur was granted a Bridging Visa A (Class WA) with no limitation on her work rights on 1 November 2016 (as part of the process of considering her work visa application). However, the Bridging Visa only came into effect once Ms Kaur’s student visa ceased, which was on 15 March 2018.
The applicant trained Ms Kaur to be the ‘Store Manager to succeed himself as he had acquired another three Subway franchises from February 2017 to January 2018’: see paragraph [10(e)] of the Tribunal decision dated 30 April 2018 (‘the decision’). The store is covered by the Fast Food Industry Award 2010, which provides for the minimum terms and conditions for the applicant’s position as ‘Store Manager’.
The contentious issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under the Direct Entry nomination stream, which relevantly provides in reg 5.19(4)(h)(ii) that:
5.19(4)The Minister must, in writing, approve a nomination if:
(h) …
(ii) all of the following apply:
[…]
(B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
[…]
(D) the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;
[…]
The Tribunal found that:
a)Ms Kaur had been engaged on a part time basis continuously in a position which, on the applicant’s claims, ‘requires the incumbent to be engaged on a full time basis’: see paragraph [47] of the decision;
b)the functions performed by Ms Kaur were more akin to that of a Retail Supervisor, which was not an occupation specified by the Minister in the relevant legislative instrument for reg 5.19(4)(h)(ii)(D): see paragraphs [48]-[51] of the decision; and
c)it was not satisfied that there was a need to engage a full time Retail Manager, as neither Ms Kaur or another person had been engaged in that position since February 2017: see paragraph [52] of the decision.
Application for Judicial Review
The applicant, in the Amended Application filed on 5 May 2020, sets out four overlapping grounds of review.
The grounds for review are framed as follows:
1. The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(b) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
a. The Tribunal ignored the fact that the nominee has completed a Diploma of Business that substituted the requirements of 3 years' experience at Skill Level 2 as per Australian and New Zealand Standard Classification of Occupations (ANZSCO) and instead concluded at Para 48 of the AAT Decision Record (of 30 April 2018) that the nominee has experience of less than of 1.5 years, in total and so the nominee does not meet the standard set by the applicant. This conclusion, that partly became the reason for the Tribunal to affirm the decision, is incorrect as the nominator communicated throughout their submissions that ‘The Position of Retail Manager requires a person with a Diploma level qualification or 3 years of experience at Skill Level 2’ and not both.
b. The Tribunal affirmed the decision partly because the nominee or some other comparable person was not engaged on a full-time basis for the whole period (at para 52) despite the evidence provided that:
i. the nominee could not work for the nominator on a full-time basis until 16 March2018, the date when she acquired her full-time work rights with her Bridging Visa A; and
ii. there was no other comparable person to perform the duties of the Retail Manager, hence the genuine and realistic need for sponsoring a foreign worker.
c. Tribunal failed to consider that the nominee is already integral part of the business since 2015 and it would cause significant financial distress and cost on the business.
2. The Tribunal’s reasoning is unfairly based on unsound reasoning. The Tribunal member failed to appropriately follow the law by finding that the limited hours of engagement suggest that the nominee is not in a managerial role. The member failed to consider that while the nominee was on the student visa until 15 March 2018, she could work only 40 hours a fortnight and she acquired Bridging Visa A (BVA) with full work-rights only on 16 March 2018 although the BVA was granted on 1 November 2016.
3. The Tribunal should have asked itself if the tasks align with the nominated job position and considered the nominee’s actual job tasks and decision making power. Instead, the Tribunal drew the inference that, as it is a franchise, management control is diluted. This inference was drawn based on the nature of general franchise business model with no regard to the nominator’s franchise agreement.
a. The Tribunal drew the conclusion that the franchisor provides significant business support to the franchisee, thereby removing significant part of the business decision making from the franchisee (at para 51) without reviewing the actual franchise agreement of the nominator.
4. The Tribunal misapprehended/misdirected its inquiries and/or findings lacks rational/logical connections in finding that the requirements of r.5.19(4)(h) of Migration Regulations (Cth) are not met:
a. The Tribunal made its decision to affirm the decision by making several assumptions rather than focusing on actual facts of the case:-
i. The Tribunal assumed that the nominee had full work-rights since 1 November2016 that adversely affected the nominator;
ii. The Tribunal incorrectly concluded that the nominee does not meet the standard set by the nominator that adversely affected the nominator;
iii. The Tribunal applied incorrect nominated job description – ‘Web Administrator/Director’ at para 21 of its decision record.
As the grounds contain considerable overlap it is more convenient to deal with them as they relate to the three core issues in dispute:
a)whether the position fell within the definition of a ‘Retail Manager (General)’ at Item 68 of the Specification of Occupations (IMMI 18/043) for the relevant visa;
b)whether the applicant met the minimum qualifications in the definition for that type of position; and
c)whether there was a need to engage someone in a ‘Retail Manager’ position.
(a) The nature of the position
Grounds 3 and 4(a)(iii) address the Tribunal’s finding that the position does not meet the description of a ‘Retail Manager’ as described in ANZSCO 142111, Skill Level 2 (there being no dispute as to the finding that this is the appropriate description for the position described in the occupations specified by the Minister under the Regulations). The applicant says that the Tribunal made two errors in considering whether the duties that the position entailed came within the relevant definition:
a)That the Tribunal referred to the position as ‘Web Administrator/Director’ which was irrelevant to the matters before the Tribunal (Ground 4(a)(iii)); and
b)That the Tribunal erred by making assumptions as to the extent of the support from the Subway franchisor (Ground 3).
The reference to the position of Web Administrator/Director appears in paragraph [21] of the decision where the Tribunal says:
21. From the material on the Department file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. It is further satisfied that the applicant identified the need to employ a paid employee in the nominated position of Web Administrator/Director (Australian and New Zealand Standard Classification of Occupation) (ANZSCO) code 142111, a position specified as being under the nominator's direct control.
The correct position description of Retail Manager (General) appears on the application form: see Court Book (‘CB’) page 4. It is clearly an error by the Tribunal member in the reasons, as nothing related to this application has any connection to a Web Administrator/Director. However, nothing else in the decision provides any reason to infer that the member considered anything other than the relevant occupation descriptions for a Retail Manager. The reasons demonstrate that the member carefully analysed the appropriate position description against the facts of the case in numerous paragraphs of the decision: for example, see paragraphs [12], [42] and [48] to [52] of the decision.
It is well established that the Court should give decision makers’ reasons a beneficial construction and not approach its task with an eye keenly attuned to error, as was said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at paragraph [14] per Allsop J, and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 where the High Court said, at paragraph [147]:
147. While an obligation for an administrator to provide reasons does aid the process of curial review, the reasons must be read fairly and as a whole. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang this Court warned against the over-zealous judicial review of decisions of the Tribunal. In recognition of the fact that there is a range of legitimate approaches to decision-making and fact-finding, it was said that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error …
Having regard to the totality of the reasons in this case, I am not persuaded that this was anything more than a slip by the Tribunal member. In the context of the decision as a whole it cannot be reasonably inferred that the member considered the wrong position description or took irrelevant matters into account. I am not persuaded that this ground is made out.
The second argument on this issue is that the Tribunal erred in making findings that the franchisor provided support to the applicant. The Tribunal said:
51. The Tribunal is cognisant of the nature of the franchise, whereby the franchisor provides significant business support to the franchisee in relation to the operation of the business against standards set by the franchisor. This factor, unlike other self-managed small businesses [not bound by a franchise agreement], removes a significant part of the business decision making from the franchisee when applying the set model, including product advertising, product sourcing, staff training and service manuals, product hygiene and health standards, product presentation and packaging, store signage, staffing standards and processes and overall management advisory support. As such, the franchisee under the franchise agreement has fixed obligations and controls that would not otherwise apply to other forms of self-managed small businesses. In this framework, the position of the applicant, as the business franchise operator, has diluted management control, because of the franchise agreement. This, in turn, dictates limitations upon the Retail or Store Manager's position, which renders the responsibilities more akin to that of a Retail Supervisor. As such, the Tribunal finds that the position described by the applicant as Retail Manager is in fact a Retail Supervisor, as provided in the Fast Food Industry Award 2017.
A copy of the franchise agreement had been provided (and appears at CB pages 134 to 158). In the agreement, the applicant is to be provided with various forms of assistance, including, for example:
a)The applicant is permitted access to ‘the System, including the loan of a copy of the Operations Manual, and/or access to the electronic version of the Operations Manual on our website’ and ‘Continued access to information pertaining to new developments, improvements, techniques and processes in the System’: see Clause 3.
b)Clause 4(b) and (c) provide for a ‘representative or development agent of [the franchisor] to call on during his/her normal business hours for consultation concerning the operation of the Restaurant’ and a ‘programme of assistance, including periodic consultations with [a] representative or development agent’ of the franchisor.
c)Clause 5 requires the franchisee to ‘operate the [franchise store] in accordance with [the franchisor’s] Operations Manual’ and specifically, clause 5(b)(ii) provides, inter alia, that:
[The franchisee] will operate the Restaurant in accordance with our Operations Manual, which contains mandatory and suggested specifications, standards and operating procedures, and may be updated as a result of experience or changes in the law or marketplace (the 'Operations Manual"). At your sole expense, you will make any changes to the Restaurant necessary to conform to the Operations Manual within reasonable time periods we establish, including but not limited to any necessary repairs, upgrades and remodels. You will adhere to quality control standards in the Operations Manual or elsewhere with respect to the character or quality of the products you sell or the services you perform in association with the Marks. You will not conduct any business or sell any products at the Restaurant that we have not approved. You may be required to purchase all required food, equipment and other products or services typically used in SUBWAY restaurant exclusively from an approved distribution center or another approved source, including us or an affiliate, as we may designate, if permitted by the laws of Australia.
As the High Court pointed out in ETA067 v The Republic of Nauru [2018] HCA 46:
13. The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
14. Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
I do not accept that the Tribunal member failed to have regard to the agreement, simply because he did not refer to specific clauses in the reasons. The relevance of the agreement was discussed by him in paragraph [51] of the decision. The fact that the Tribunal member did not refer to specific clauses of the agreement does not show that the member did not review the agreement as a whole for the purpose of drawing the inferences that he did.
Turning to the challenge of the member’s finding with respect to the categorisation of the position, it is necessary to consider the context of the decision. The member set out the tasks that are included in the description of a Retail Manager (at paragraph [12] of the decision) as follows:
Tasks Include:
· determining product mix, stock levels and service standards
· formulating and implementing purchasing and marketing policies, and setting prices
· promoting and advertising the establishment's goods and services
· selling goods and services to customers and advising them on product use
· maintaining records of stock levels and financial transactions
· undertaking budgeting for the establishment
· controlling selection, training and supervision of staff
· ensuring compliance with occupational health and safety regulations
It is important to compare this task list with that of a Retail Supervisor, which the member set out (at paragraph [42] of the decision):
· ensuring that customers receive prompt service and quality goods and services
· responding to customers' inquiries and complaints about goods and services
· planning and preparing work schedules and assigning staff to specific duties
· interviewing, hiring, training, evaluating, dismissing and promoting staff, and resolving staff grievances
· instructing staff on how to handle difficult and complicated sales procedures
· examining returned goods and deciding on appropriate action
· taking inventory of goods for sale and ordering new stock
· ensuring that goods and services are correctly priced and displayed
· ensuring safety and security procedures are enforced
The Tribunal also had regard to an extensive task list provided by the applicant: see paragraph [44] of the decision. Additionally, the Tribunal noted (at paragraph [50] of the decision) that:
50. The applicant has given evidence that the applicant now has three franchises, which in the applicant's view justifies the position of Retail Manager. It is noted, however, that the applicant remains actively involved in the Kelmscott Subway franchise and has overall control over the business. As such, the Tribunal accepts that whilst the nominee supervises some functions in relation to staff and operations, the limited hours of engagement does not suggest that the full scope of a "managerial" role is performed, including the business's accounts; banking; and franchise management. The functions performed by the nominee are more akin to that of a Retail Supervisor, which is not included in IMMI18/043.
The inferences drawn from the agreement were clearly open to the Tribunal: the first three dot points of the Retail Manager task list were effectively governed by the franchisor’s instructions and the remaining duties fall largely within the ambit of a Retail Supervisor position. The findings with respect to the role of the applicant in the running of the store are also a relevant consideration.
It cannot be said that the reasons of the Tribunal were without any basis of fact in the franchise agreement. The conclusions were neither illogical, nor legally unreasonable: they were within the reasonable ambit of decision making discretion.
As a result, the grounds of review in this respect cannot succeed. As the applicant has failed on grounds 3 and 4(a)(iii) it cannot succeed on this application, as the other grounds do not go to the finding that the position is not within the scope of a Retail Manager (General) at Item 68 of the Specification of Occupations (IMMI 18/043), as required by the Regulations and legislative instruments.
(b) Whether the nominated employee had the necessary qualifications
The applicant challenges the findings of the Tribunal with respect to the qualifications of Ms Kaur for a position of a Retail Manager. The relevant qualifications are set out in the position description (at paragraph [12]) of the decision:
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
[…]
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
On a plain reading of the requirement, the minimum formal qualification is that of a Diploma or higher, or alternatively, at least three years of relevant experience. In this case, Ms Kaur held a relevant Diploma, which the Tribunal clearly noted: see paragraph [49] of the decision.
The applicant argues in ground 1(a) that the Tribunal erred in its reasons (at paragraph [48] of the decision) when it noted that Ms Kaur had not had three years’ experience, as she had been working part-time for three years, the equivalent of 1.5 years of full time work. The applicant argues that this demonstrates that the Tribunal ignored the Diploma qualifications of Ms Kaur. The relevant paragraphs of the decision provides:
48. The applicant provided evidence that the Kelmscott Subway is open from 7.30am to 9.00pm for the seven days of the week, which would indicate a total trading period of 94.5 hours per week. On this basis, the nominee would be available for 18.1 per cent of the available trading hours. This, in the Tribunal's view, would not provide sufficient time for the nominee to exercise the full scope of duties that have been suggested for the position of Retail or Store Manager. In this regard, the applicant asserted in their submission [Folio 220] that the position of Retail Manager would require 3 years' experience at skill Level 2. The Tribunal notes, that on the basis of the engagement of the nominee on a part-time basis, since September 2015, insufficient time has elapsed for the nominee to meet the standard set by the applicant, whereby the aggregate hours of work over the period would indicate that the nominee has experience of less than of 1.5 years, in total.
49. The Tribunal is satisfied that the position of Retail Manager was advertised on one occasion and that three candidates were assessed, however, in the absence of details relating to each candidate, it is not possible to compare the nominee with these candidates. The Tribunal does note that the nominee had appropriate academic qualifications relative to the appointment in the position, which on the stated evidence, other candidates did not have.
[Emphasis added]
It is clear that the Tribunal acknowledged Ms Kaur’s academic qualification: see at paragraph [49] of the decision. Read in context, it is clear that the discussion (at paragraph [48]) concerns the actual experience of Ms Kaur (which was found to be less than three years) and the nature of the position that the applicant was offering. That is, the Tribunal concluded that the submissions at Folio 220 (CB page 349) were to the effect that the position offered by the applicant would require a person with three years’ experience, which the nominee did not have. The requirements for the position, as set out by the applicant at Folio 220 were, however, for ‘a person with a Diploma level qualification or 3 years of experience at Skill Level 2’. The applicant’s requirements mirrored those of the definition relevant for the Regulations. It appears that the tribunal member misread Folio 220 and therefore took into account an irrelevant consideration, being, a requirement that the person filling the position have at least three years’ experience and a diploma, not either.
I therefore find that the applicant has made out a ground for judicial review, as identified in Grounds 1(a) and 4(a)(ii).
(c) Whether there was a need for the position
The Tribunal concluded that there was no need for the position, saying in the decision that:
52. The Tribunal has carefully considered the written submissions and the evidence provided by the applicant and his representative and is not satisfied that there is a need to engage a Retail Manager. Further, the engagement of the nominee since September 2015 has been on a part-time basis. If there was a genuine full-time position, then the nominee or some other comparable person, would have been engaged for the whole period and especially post the acquisition of further franchises by the owner in the period since February 2017, when additional franchises were acquired. This clearly has not happened.
Grounds 1(b) and (c), 2 and 4(a)(i) all go to this issue. The first argument concerns the rejection by the Tribunal of the claim that the nominee had only been working part-time due to her visa restrictions, leading to the finding (at paragraph [47] of the decision) that, ‘the nominee has been engaged on a part-time basis continuously in a position that allegedly requires the incumbent to be engaged on a full-time basis.’
The finding of the Tribunal was clearly open on the face of the information in the bridging visa, which had been requested by and supplied to, the Tribunal. However, the applicant did not supply a copy of Ms Kaur’s student visa. On the hearing in this court those documents were annexed to an Affidavit.
The difficulty that faces the applicant is that this is a judicial review application, and not an appeal by way of rehearing. The matter must be determined upon the material that was before the Tribunal. On the material before the Tribunal, the bridging visa alone, the findings of the Tribunal member were open. Had copies of the student visa been provided to the Tribunal it is likely that different findings would have been made, as the bridging visa did not take effect until the expiration of the student visa. This issue had been the subject of enquiry by the member at the hearing as appears in the transcript of the Tribunal hearing.
Mr Patel had said to the Tribunal member, in response to a query about the working hours of Ms Kaur, that:
‘… I think that one is once her, like, study is finished, afterwards, she can work as, like, 38 hours. So at the moment, like, she is doing it that many hours, like, 38 hours per week, because her study is finished.’(T12.1)
Later in the hearing, the applicant’s agent explained to the Tribunal member that:
… Firstly, I believe that they do need the nominee to be working with them full time, but the only reason that she hasn’t been is because of 45 her student visa conditions. She did complete her studies, and her student visa has basically expired, and she has gone onto the bridging visa based on her RSMS application. (T13.44)
The student visa was not supplied, and the circumstances were not such as to make it clear that the Tribunal member should make further enquiries. This finding was open on the evidence before the Tribunal member, thus, this is not a basis for judicial review and the new evidence is not admissible. Therefore, grounds 1(b)(i), 2, and 4(a)(i) cannot succeed.
The applicant also sets out in the particulars a claim (at Ground 1(b)(ii)) that the Tribunal failed to take into account, as a relevant consideration, that the applicant was unable to find anyone to fill the position. This is relevant as it explains why a position for which there was a real need, was not filled for a lengthy period. This ground was not pursued in the written submissions. The evidence appears to be limited, for example the submission (at CB page 39) sets outs that after advertising the position, none of the three applicants were considered to have the skills required. The Tribunal did note that there had been an advertisement and was thus cognizant of the evidence generally: see paragraph [15] of the decision. The evidence in the affidavit material before this court goes further, but that was not before the Tribunal.
In the context of the decision as a whole and the evidence before the Tribunal, one advertisement with only 3 interviews is hardly compelling evidence that the position simply could not be filled, despite the need for a person to perform the role. The evidence is light, at best, and the fact that there is no evidence of further steps to locate a person to fill the role may also be seen as corroborating the Tribunal’s decision. I am not persuaded that this was a piece of evidence of such significance in the context of the case that an omissions of a clear reference to it in the reasons shows that it has not been considered. I therefore find that this matter does not found a ground for judicial review.
Ground 1(c) was not pursued in argument and it is difficult to see how it forms the basis for a ground for judicial review.
Conclusions
In this matter the applicant has shown that the Tribunal erred with respect to its findings concerning the qualifications demanded for the position that was nominated, and consequently the nominee’s capacity to fulfil the role. However, the applicant has not succeeded in the challenge to the finding of the Tribunal that the position is not of the nature of a position as required by the Regulations. As a result, the applicant could not have succeeded in any event.
In these circumstances the error is not material to the ultimate outcome. I therefore dismiss the application.
The application by Ms Kaur was listed at the same time. It was accepted that it would rise or fall with this application as Ms Kaur could only succeed if the nomination was approved. As there is no approved nomination, nor orders setting aside the Tribunal’s decision with respect to the nomination (in favour of a re-hearing) Ms Kaur cannot succeed in her application. I therefore also dismiss Ms Kaur’s application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 September 2020
Corrections
On page 3 under the ‘Representation’ section an amendment is made to the record of the solicitors representing the First Respondents, as well as a typographical error in the file matter number.
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