Thuy Tien Hair Designs v Minister for Immigration & Border Protection

[2014] FCCA 2582

FEDERAL CIRCUIT COURT OF AUSTRALIA

THUY TIEN HAIR DESIGNS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2582

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal erred in finding that it did not have jurisdiction to review a decision of a delegate of the first respondent – whether the Migration Review Tribunal erred in failing to find that an application for approval of a nominated position as an approved appointment pursuant to r.5.19 of the Migration Regulations 1994 (Cth) was in respect of an occupation and not a person – whether an application for approval under the Employee Nomination Scheme in respect of three nominees was in fact only one application – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.45, 46, 347, 348, 474
Migration Regulations 1994 (Cth) rr.1.03, 4.12, 4.13, 5.19.

Cases Cited:

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364

Applicant: THUY TIEN HAIR DESIGNS (ABN 56 060 617 652)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1462 of 2013

Judgment of: Judge Emmett

Hearing date: 27 August 2014

Date of Last Submission: 27 August 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1462 of 2013

THUY TIEN HAIR DESIGNS
(ABN 56 060 617 652)

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 23 May 2013 and handed down on the same date (“the MRT”).

2. The issue in this case is whether the MRT erred in finding that it did not have jurisdiction to review a decision of a delegate of the first respondent (“the Delegate”) to refuse approval for an employer nomination made pursuant to r.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”) in respect of Mr Van Hung Nguyen.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, and a summary of the MRT’s review and decision.

Background

1. On 26 May 2010, three separate employer nominations under the Employer Nomination Scheme (“ENS”) were lodged with the Department of Immigration and Citizenship (“the Department”) by Thuy Tien Hair Designs in respect of Messrs Van Hung Nguyen, Quang Vinh Tieu and Van Met Dang (“the Nominees”).

2. On 7 March 2011, the Delegate refused the three applications. Three separate decisions were issued, one in respect of each of the Nominees. The decisions were sent together in the same envelope under cover a single letter and all three decisions were given the same file number, although each had an individual identification number.

3. On 25 March 2011, Thuy Tien Hair Design’s migration agent wrote to the Department stating that Thuy Tien Hair Designs and each of the Nominees wished to appeal the decisions of the Delegate refusing the application and requested that the applications be dealt with jointly. The letter stated that it enclosed the following documents:  

   “A. Review application from for Thuy Tien Hair Designs signed by Ms Thi Thuy Hoanh Nguyen, a partner of the business, with credit card payment of $1,400.00 being for the review application fee and the relevant DIAC decision record.

   B. Review application form for Mr Van Hung Nguyen signed by him, with credit card payment of $1,400.00 being for the review application fee and the relevant DIAC decision record.

   C. Review application form for Mr Van Met Dang signed by him, with credit card payment of $1,400.00 being for the review application fee and the relevant DIAC decision record.

   D. Review application form for Mr Quang Vinh Tieu signed by him, with credit card payment of $1,400.00 being for the review application fee and the relevant DIAC decision record.

   E. Four (4) requests for access to documents held by Tribunal.”

4. On 8 March 2013, the MRT wrote to the applicant’s new migration agents informing them that only one payment of $1,400 was made, and the only attached copy of a decision of a delegate of the Department was to an application for review in respect of Mr Dang. The letter also informed the applicant, Mr Nguyen, that the MRT only had before it a valid review application for Mr Dang and not for either of the Nominees and that the time of for the lodging of an application for each of the other Nominees had passed. The letter invited the applicant to comment by 2 April 2013.

5. On 2 April 2013, the applicant’s migration agent responded to the MRT’s letter and asserted that on behalf of each of the Nominees, Messrs Nguyen and Tieu, notification of the Delegate’s decision had been defective because:

   i)The three written notices of refusal were sent and delivered in one registered mail envelope;

   ii)There was only one covering letter addressed to the authorised recipient for three applications;

   iii)There was only one MRT leaflet enclosed for all three applications;

   iv)The combination of the above had misled the review applicant into believing that only one review application was required.

6. The letter further stated as follows:

   “The fact that there was only one DIAC file number and the delegate having emailed [sic] all three decisions in one registered post with only one covering letter and giving only one copy of the MRT M10 leaflet are all factors suggesting to Thuy Tien Hair Deigns [sic] that the three nominations had been combined.”

7. On 23 May 2013, the MRT found that it did not have jurisdiction to review the Delegate’s decision in respect of Mr Nguyen. The MRT notified the applicant on the same date.

8. On 27 June 2013, the applicant filed its application in this Court to review the decision of the MRT.

Legislative framework

1. Thuy Tien Hair Designs’ three employer nominations under the ENS were made pursuant to r.5.19 of the Regulations, which provides as follows:

   “5.19 Approval of nominated positions (employer nomination)

   (1)   An employer may apply to the Minister for approval of a nominated position as an approved appointment.

   (1A)   Application must be:

   (a)    made in accordance with approved form 785 or 1054; and

   (b)    accompanied by the fee prescribed in regulation 5.37.

   (1B)   The Minister may, in writing, approve or reject an application.

   …

   (1D)   As soon as practicable after deciding an application, the Minister must give the employer:

   (a)    a copy of the written approval or rejection of the application; and

   (b)    if the application is rejected:

   (i)    a written statement of the reasons why the application was rejected; and

   (ii)    a written statement that the decision is an MRT‑reviewable decision.

   Note   Division 4.1 deals with review of decisions. Paragraph 4.02 (4) (e) provides that a decision under subregulation 5.19 (1B) to reject an application is an MRT‑reviewable decision. MRT‑reviewable decision is defined in Division 2 of Part 5 of the Act.

   (2)   An employer nomination meets the requirements of this subregulation if:

   (a)    the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:

   (i)    actively and lawfully operating in Australia; and

   (ii)    operated by that employer; and

   (b)    the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

   (i)    the employer; or

   (ii)    any officer of any of the entities that constitute the employer; or

   (iii)    any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

   (c)    the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and

   (d)    the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

   (i)    the Commonwealth; and

   (ii)    each State or Territory in which the employer operates the business and has employees of that business; and

   (e)    the Minister is satisfied:

   (i)    that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

   (ii)    if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

   (f)    the appointment will:

   (i)    provide the employee with full‑time employment; and

   (ii)    be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and

   (g)    the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and

   (h)    the tasks to be performed in the nominated position:

   (i)    correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

   (ii)    will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

   (i)    the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.”

2. Section 347(1) of the Act prescribes the requirements for an application to the MRT in the following terms:

   “347Application for review by Migration Review Tribunal

   (1)  An application for review of an MRT‑reviewable decision must:

   (a)  be made in the approved form; and

   (b)  be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i)  if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

   (ii)  if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

   (iii)  if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

   (c)  be accompanied by the prescribed fee (if any).” (emphasis added)

3. Regulation 4.13 of the Regulations prescribes the fee payable for review of a decision of the Delegate by the MRT:

   “(1)   Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,400.

   (2)   No fee is payable on the following:

   (a) an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338 (4) of the Act;

   (b)    an application, made by a non‑citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02 (4) (f) applies. 

   (3)   If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.

   (4)   The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.”

The Delegate’s decision

1. On 7 March 2011, the Delegate separately refused the applicant’s nominations in respect of the Nominees. The three separate decisions were in identical terms, save for the names of the Nominees.

2. The Delegate was not satisfied that the applicant, as nominator of the Nominees, met numerous requirements of the Regulations, in particular:

   a)Regulation 5.19(2)(a) – the need for a paid employee. The Delegate found no evidence to support the applicant’s assertion that there was a general shortage of skilled hairdressers in Australia and no further evidence was provided by the applicant.

   b)Regulation 5.19(2)(c) – a satisfactory record of compliance with the immigration laws of Australia. The Delegate found that the business owners of the applicant ought to have been aware of their obligations not to employ workers who did not have the appropriate work rights to work in Australia, but did so anyway.

   c)Regulation 5.19(2)(e) – the requirement to deliver training. The Delegate found that there was no evidence to show that the applicant had provided any training whatsoever to the Nominees as required by the Regulations.

   d)Regulation 5.19(2)(f) – the requirement to provide full time employment for three years. The Delegate found that the applicant’s profit and loss statement for the previous six months indicated that the applicant would not be able to accommodate paying salaries to the Nominees in the amount advertised, and in the absence of further documentation to show the contrary, found that the applicant would be unable to meet the requirement.

   e)Regulations 5.19(2)(g) and (i) – employment conditions and salary. On the strength of the finding in relation to reg.5.19(2)(f) and the applicant’s admission that it had underpaid the Nominees, the Delegate found that the applicant had not provided sufficient evidence of financial viability for the following three years.

The MRT’s review and decision

1. As stated above, on 25 March 2011, the applicant, Thuy Tien Hair Designs, together with the Nominees, lodged an application for review of the Delegate’s decision by the MRT.

2. On 8 March 2013, the MRT wrote to Mr Nguyen inviting him to comment upon the validity of his application for review. That letter was in the following terms:

   “The Tribunal has before it an application for review in relation to the Department’s decision dated 7 March 2011 to refuse an application made by Thuy Tien Hair Designs for approval of a nominated position under the Employer Nomination Scheme (ENS).

   The Department’s records show that Thuy Tien Hair Designs lodged 3 separate applications for approval of a nominated position under the ENS on 26 May 2010. They were lodged using form 785; the prescribed fee of $445 was paid and the Department issued 3 separate decisions on 7 March 2011 to refuse the 3 ENS applications.

   The Tribunal notes that your representative’s covering letter dated 25 March 2011, which is attached to the review application, refers to the Department’s decision relating to the ENS nomination application made by Thuy Tien Hair Designs, as well as decision about related subclass 856 visa applications by Mr Van Hung Nguyen, Mr Van Met Dang and Mr Quang Vinh Tieu (and family unit applicants where applicable). In respect of the review application lodged by Thuy Tien Hair Designs, one payment of the review fee of $1400 was made, and the application attaching a copy of the Department’s decision on the ENS application ID 960539947, relating to the nominee Mr Van Met Dang.

   It appears from the covering letter that Thuy Tien Hair Designs may be under the impression that it has combined review applications in respect of the Department’s 3 decisions to refuse the 3 ENS nomination applications. The Tribunal has formed the preliminary view, however, that Thuy Tien Hair Designs is not able to combine applications for review of the 3 separate decisions. The circumstances under which applications for review to the Migration Review Tribunal may be combined are set out in r.4.12 of the Migration Regulations. There is no provision in r.4.12 to combine review applications in respect of decisions to refuse applications for approval of a nominated position under r.5.19(1B).

   On the basis of the copy of the Department’s decision provided with the review application, the Tribunal has formed the preliminary view that it has before it a valid review application in respect of the Department’s decision to refuse the ENS application with application request ID 960539947, and relating to the nominee Mr Van Met Dang.

   The Tribunal has formed the preliminary view that it does not have any valid review applications from Thuy Tien Hair Design in respect of the Department’s decision to refuse the ENS applications with ID numbers 160539336 (relating to the nominee Mr Van Hung Nguyen) and 505539120 respectively (relating to the nominee Mr Quang Vinh Tieu). The Tribunal has also formed the view that the timeframe for lodging a valid review application in respect of the latter 2 decisions has now passed; the last day for lodging such review applications would have been 6 April 2011, being 21 calendar days after Thuy Tien hair Designs was properly notified to the decisions, which is taken to be 7 working days after the date of the decision notification letters. The Tribunal may find, therefore, that it does not have jurisdiction in respect of the matters of the Department’s decisions to refuse the ENS applications made by Thuy Tien Hair Designs with application IDs 160539336 (nominee Mr Van Hung Nguyen) and 505539120 (nominee Mr Quang Vinh Tieu).

   If Thuy Tien Hair Designs wishes to make any comments on whether valid review applications have been made in respect of the decisions to refuse the ENS applications with application IDs 160539336 and 505539120; and/or whether the one application the Tribunal considers in valid is in relation to a decision other than that for ENS application IDs 960539947, Thuy Tien Hair Designs is invited to do so, in writing, within 14 days of receiving this invitation. As this letter has been posted, Thuy Tien Hair Designs will be considered to have received this letter 7 working days after the date of the letter; therefore your response should be received by the Tribunal no later than 2 April 2013. The application made by Thuy Tien Hair Designs, with any comments it makes, will then be referred to a Tribunal Member to make a decision on the application. If the Tribunal Member decides that Thuy Tien Hair Designs has not made a valid application in respect of 2 of the 3 ENS application refusals, you will be given a written statement of decision and reasons.”

3. On 2 April 2013, the migration agent sent to the MRT a facsimile in reply to the MRT’s invitation to comment. That facsimile was in the following terms:

   “We refer to your letter dated 8 March 2013.

   We agree with your assertion that the Tribunal does not have any valid review applications from Thuy Tien Hair Designs in respect of the Department’s decision to refuse the Employer Nomination Scheme (ENS) nomination with ID numbers 160539336 (relating to the nominee Mr Van Hung Nguyen) and 505539120  respectively (relating to the nominee Mr Quang Vinh Tieu). However, we submit that Thuy Tien Hair Designs had not been properly notified according to law in relation [to] each of the three ENS nomination applications made on 26 May 2010.

   Sub-regulation 5.19(1D) provides:

   As soon as practicable after deciding an application, the Minister must give the employer:

   (a) a copy of the written approval or rejection of the application; and

   (b) if the application is rejected:

   (i) a written statement of the reasons why the application as rejected; and

   (ii) a written statement that the decision is an MRT-reviewable decision.

   Subsection 494D(1) provides:

   If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.

   In our opinion, the notification was defective as a result of the following:

   • All of the three written refusal and statement of reasons were given to the authorised receipt [sic] in one registered mail.

   • There was only one covering letter addressed to the authorised recipient for all three applications (DIAC folio 158).

   • There was only one MRT M10 leaflet for all three applications (DIAC folio 134-136).

   The combination of the above together with one DIAC file number (CLF2010/170674) had misled Thuy Tien Hair Designs to believe that only one review application was required for all three ENS nomination applications.

   The fact there is only one DIAC file number and the delegate having mailed all three decisions in one registered post with only one covering letter and giving only one copy of the MRT M10 leaflet are all factors suggesting to Thuy Tien Hair Designs that the three nominations had been combined

   We submit that for these nomination refusals to be correctly notified, the notification should be in separate envelop [sic] with a covering letter addressed to the authorised recipient and a MRT M10 leaflet for each of the decisions.

   We would appreciate if you can indicate to us of the Tribunal’s position relating to this matter and if the Tribunal agrees, we will advise Thuy Tien Hair Designs to lodge a separate review application for the ENS nomination application relating to nomination application with ID numbers 160539336 (relating to the nominee Mr Van Hung Nguyen).”

1. In its decision of 23 May 2013, the MRT found that it did not have jurisdiction to review the decision of the Delegate, as there was no application before it that had been made in accordance with the relevant legislation. The Nguyen application was neither filed within the mandatory statutory period, nor accompanied by the mandatory fee.

2. The MRT referred to Department records that showed that the applicant had lodged three separate applications for approval under the ENS on 26 May 2010 identifying the Nominees. The MRT noted that the applications were lodged using Form 785; that the applicants paid separately the prescribed fee for each application; that the Department issued a separate receipt for each application; and, that the Department made three separate decisions on 7 March 2011 to reject each of the Nominees, including Nguyen.

3. The MRT further noted that it received a review application from the applicant on 28 March 2011 accompanied by one prescribed application fee of $1400. The application attached a copy of the Delegate’s decision in respect of Mr Van Met Dang, application identification number 960539947, one of the Nominees. The MRT referred to the covering letter attached to the application, which referred to the Delegate’s decision to refuse Thuy Tien Hair Designs’ nomination application under the ENS and the Delegate’s decision to refuse the grant of visas in respect of the Nominees’ related subclass 856 visa applications. The MRT then referred to its invitation to comment on the validity of the application and the applicant’s response.

4. The MRT found that, on the basis of the copy of the Delegate’s decision in respect of Mr Van Met Dang and the review application before it, that there was a valid application in respect of Mr Dang which would be reviewed separately pursuant to s.348 of the Act. That application was subsequently reviewed by a differently constituted Migration Review Tribunal.

5. The MRT then considered whether there was a valid application before it in respect of the Delegate’s refusal of the applicant’s ENS application in respect of Mr Nguyen, or whether a valid application could still be made.

6. The MRT noted that the applicant’s representative agreed with the MRT’s view that r.4.12 of the Regulations contained no provision to combine review applicants in respect of decisions to refuse applications for approval of a nominated position under r.5.19(1B) of the Regulations. The MRT found that the applicant could not combine the review application in respect of Mr Nguyen with that of Mr Dang.

7. The MRT then referred to the submission by the applicant’s representative that the applicant had not been validly notified in respect of the three nomination applications and that the applicant therefore sought to lodge a separate review application in respect of the decision to refuse the ENS application for Mr Nguyen. The MRT noted that implicit in the submission by the applicant’s representative was that if notification of the Delegate’s decision had not been valid, then time for lodging a review of that decision had not yet begun to run in respect of Mr Nguyen’s review. The MRT then noted that the other nominee, Mr Tieu, had withdrawn his application.

8. The MRT was satisfied that the applicant had been properly notified of the Delegate’s decision in accordance with the provisions of r.5.19(1D) of the Regulations. The MRT noted that the Department had sent three separate decision letters covering three separate decisions by the Delegate. While the MRT noted that the Department held a single file reference for the applications collectively, each application was identified by a separate application identification number. The MRT noted that the Department had sent three separate decision letters covering three separate decisions by the Delegate. While the MRT noted that the Delegate’s decision records were sent in a single envelope did not establish that the applicant was not validly notified of the decisions. The MRT was not satisfied that that the inclusion of a single MRT leaflet in that envelope established that the applicant was not validly notified of the decisions.

9. The MRT noted that pursuant to s.347(1) of the Act and r.4.13 of the Regulations, an application for review must be lodged within the prescribed period following the Delegate’s decision, being a period of 21 days. Further, the application must be accompanied by the prescribed fee unless a determination is made that the fee should be waived due to hardship, pursuant to r.4.13(4) of the Regulations.

10. Having found that the applicant had been validly notified of the Delegate’s decision, the MRT found that the prescribed period to lodge an application for review of the Delegate’s decision ended on 6 April 2011.

11. The MRT found that it had not received from the applicant a valid review application in the prescribed period; that the prescribed fee had not been paid within the prescribed period; and, that no determination had been made (or requested) that the fee should be reduced.

12. In those circumstances, the MRT determined that there had not been, nor could there be made, a valid application in relation to the applicant’s ENS application in respect of Mr Nguyen, and therefore found that it had no jurisdiction to review the decision of the Delegate.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Leonard Karp, of counsel.

2. At the commencement of the hearing, the applicant was given leave to rely on the grounds of an Amended Application filed in Court, as follows:

   “1. The Second Respondent erred in law in determining the question of jurisdiction.

   Particulars

   (a) The determination of the second respondent to the effect of the validity of the “notification” of 7 March 2011 infected the subsequent determination that the tribunal did not have jurisdiction by reason of the combined effect of sections 348 and section 347(1) of the Migration Act 1958.

   (b) The Tribunal erred in failing to find that properly construed an application for approval of a nominated position as an approved appointment pursuant to Migration Regulation 5.19 was in respect of an occupation and not a person.

   (c) the Tribunal erred in finding that there were separate applications for approval of a nominated position as an approved appointment for each of three visa applicants, Messrs Dang, Nguyen and Tieu.

   (d) The Tribunal should have found, that as the three forms submitted by the applicant for approval of a nominated position as an approved appointment pursuant to Reg 5.19 related to the same occupation and the same employer, there was in law:

   (i) Only one application; and

   (ii) Only one application for review, and that that was a valid application.”

3. The applicant’s counsel, Mr Karp, conceded that the MRT was correct in finding that r.4.12 of the Regulations does not permit combined applications for review of decisions to refuse approval of nominated positions in the current circumstances.

4. At the heart of the applicant’s application for judicial review of the MRT’s decision, is a contention that, properly construed, the reference in r.5.19D(1) to a “nominated position”, read with the definition of “approved appointment” in r.1.03, has the effect that the nomination is for a “position” rather than for a person.

5. Mr Karp contended that a “position” is an occupation and that the visa application made pursuant to ss.45 and 46 of the Act are for the nomination of an “occupation”, albeit dependent upon the acceptance of an employer nomination. Mr Karp submitted that the fact that the Department gave each employer nomination the same file number supported his contention.

6. Further, Mr Karp submitted that r.5.19(2)(a) of the Regulations requires that the employer nomination be made in respect of a paid employee, but does not require a particular employee to be named. Mr Karp also submitted that the other provisions in r.5.19(2) of the Regulations do not refer to an individual.

7. Building on that analysis, Mr Karp submitted that if an employer nomination is for a “position” or “occupation”, the number of application forms with different visa applicants is irrelevant because in reality there is only one application for one “approved appointment”. Therefore, there would be only one decision to refuse Thuy Tien Hair Designs approval of a nominated “position” as an “approved appointment”.

8. Mr Karp submitted that if there was only one decision, the MRT was in error in finding that there were three decisions and that it had no jurisdiction to review two of them.

9. The first respondent does not accept those submissions and nor do I. The applicant sought to have approved by the first respondent three positions of hairdresser which would then enable its three Nominees to apply for and be granted subclass 856 permanent visas. Prior to the time of application, all three Nominees held subclass 457 temporary visas, but were sponsored by a different employer from Thuy Tien Hair Designs. Thuy Tien Hair Designs, as the proposed employer, required the approval of the first respondent of the positions sought to be filled by those nominated by Thuy Tien Hair Designs. Regulation 5.19 sets out the criteria for approval.

10. The applicant’s interpretation that “positions” in r.5.19 is a reference to, in effect, an “occupation”, is at odds with other parts of r.5.19 which lend more to “position” or “nominated position” as being a subset of an “occupation”. For example, r.5.19(2)(h) refers to “tasks to be performed in the nominated position” which are to correspond to the tasks of “an occupation” specified in a Gazette Notice in force and to be carried out in a location specified for the relevant occupation.

11. I accept the first respondent’s submission that the reference to “position” in r.5.19 of the Regulations cannot be divorced from the individual who is to fill that “position”. The following references in r.5.19(2) support such a proposition:

    a)Regulation 5.19(2)(a)m states that “the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business”;

    b)Regulation 5.19(2)(f) states that “appointment will (i) provide the employee with full time employment; and (ii) be for at least 3 years…”

    c)Regulation 5.19(2)(g) states “the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards”;

    d)Regulation 5.19(2)(i) states “the employee will be paid a salary in the nominated position that is at least the salary specified… in a Gazette notice…”

12. Further, I accept the first respondent’s submission that if the ENS related to approval of a position generally into which employees would then be placed, there would be no need for r.5.19 to specify criteria related to “the employee”. The reference to a “position” in r.5.19 is not a reference to a position generally, but is a reference to a specific role that one individual will perform. True it is that there is no requirement in r.5.19 to identify the individual that is to fill that position at the time of application. However, I accept the first respondent’s submission that each application for an approved position is an application seeking approval of a single position to be performed by one person.

13. In the case before this Court, Thuy Tien Hair Designs lodged three applications to the Department for approval of three positions, into which it intended to place the three Nominees.

14. The MRT was satisfied that notification of each of the three decisions relating to each of the three Nominees was effected in accordance with the provisions of r.5.19(1D). The MRT accepted that the application for review lodged on 28 March 2011 was a valid application in respect of the Delegate’s decision to refuse the applicant’s ENS application in relation to Mr Dang. Those findings were open to the MRT on the evidence and materials before it and for the reasons it gave.

15. However, pursuant to s.347(1) of the Act and r.4.13 of the Regulations, the application for review of the Delegate’s decision in respect of Mr Nguyen needed to be lodged with the MRT within the prescribed period as specified in s.347(1)(b) of the Act and r.4.10 of the Regulations. The MRT correctly found the prescribed period of 21 days after notification to be the period during which the applicant could lodge a review application in respect of Mr Nguyen. Moreover, as found by the MRT, any application was required to be accompanied by the prescribed fee, unless a determination was made under r.4.13(4) of the Regulations that the fee should be reduced on the basis of financial hardship.

16. In the circumstances, the prescribed period for lodging an application for review of the Delegate’s decision of the MRT ended on 6 April 2011. The prescribed fee must be paid within the prescribed period, or, if a determination has been made under r.4.13(4), within a reasonable period after that determination. The MRT correctly referred to Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 and Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 in support of those propositions.

17. It was clearly open to the MRT to find that it had not received a review application within the prescribed period and that the prescribed fee had not been paid in respect of the nomination relating to Mr Nguyen. In the circumstances, the MRT’s finding that no valid application for review had been made in respect of the decision relating to the applicant’s ENS application relating to Mr Nguyen was open to it on the evidence and material before it and for the reasons it gave.

18. The prescribed period for making a valid application in respect of Mr Nguyen ended on 6 April 2011.

19. On the basis of its findings, the inevitable conclusion drawn by the MRT was that the applicant cannot now make a valid application for review relating to the Delegate’s decision in relation to Mr Nguyen.

20. Accordingly, the MRT’s finding that it did not have jurisdiction to review the applicant’s ENS application relating to Mr Nguyen, was correct and without error.

21. The MRT’s findings were based on the evidence and material before it and were open to the MRT for the reasons it gave. The MRT’s decision record makes clear that the MRT reached conclusions based on the findings it had made and to which it applied the correct law.

22. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

23. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

24. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:           11 November 2014