Trustee for M H Patel Family Trust v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1338
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trustee for M H Patel Family Trust v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1338
File number(s): BRG 341 of 2023 Judgment of: JUDGE EGAN Date of judgment: 5 December 2024 Catchwords: MIGRATION – whether the Tribunal failed to carry out a proper review – whether the Tribunal misconstrued or misapplied the regulations – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), r. 5.19, r. 5.19(3)(b),
r. 5.19(9)(d)
Cases cited: WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 4 December 2024 Date of hearing: 4 December 2024 Place: Brisbane Solicitor for the Applicant: Mr W. Sarpong of Kave at Law Solicitor for the First Respondent: Ms L. Helsdon of Sparke Helmore The Second Respondent Submitting appearance, save as to costs
Table of Corrections 6 December 2024 In paragraph 11 a reference to “the Tribunal” has been corrected to show “the Court”. ORDERS
BRG 341 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE TRUSTEE FOR M H PATEL FAMILY TRUST
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
5 DECEMBER 2024
IT IS ORDERED THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The Application for Review filed on 27 July 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
On 31 July 2018, the applicant Trust (“the Trust”) applied for approval of the nomination of a position for a human resource advisor. The Trust owned and operated a labour hire business which contracted with farm owners in the Lockyer Valley west of Brisbane for pickers and packers involved in the harvest and packing of farm produce.
The visa application was a nomination for approval of a position under reg. 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”). If any of the requirements under the regulation were not met, the application must be refused under reg 5.19(3)(b).
On 26 July 2019, a delegate of the Minister refused the nomination application because it did not satisfy reg. 5.19(9)(d) of the Regulations, in that there was not a genuine need for the identified person to be employed in the nominated position.
The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (“the Tribunal”).
On 20 April 2023, one Mr Patel appeared before the Tribunal to give evidence and present arguments. The applicant was represented during the course of the hearing before the Tribunal.
On 22 June 2023, the Tribunal affirmed the decision of the delegate.
Grounds of Review
The only Ground of Review relied upon by the applicant at the hearing before the Court was Ground 1(a) which was as follows:
Grounds:
1.That the Tribunal misconstrued and misapplied sub-reg 5.19(9)(d)
Particulars
a) Error in considering whether the nominated occupation was “genuine need for the identified person to be employed in the position”, the Tribunal erred in considering and overlooking and failing to consider important documents and information provided to them during the application and at the time of hearing. These documents included work photos, evidence of increased business revenue after the identified person joined the organization, and information about the identified person's overseas work experience and qualifications.
These pieces of evidence were highly relevant in establishing the necessity of the nominated position and the capabilities of the identified person. However, the Tribunal's failure to take them into account resulted in an erroneous decision.
It was submitted on behalf the applicant that the Tribunal had erred in failing to consider “important documents and information” provided to it. There was no merit to such claim. As was submitted on behalf of the first respondent, the Tribunal considered the provision and content of the alleged work photos at 27 of its reasons, noting that the colour photographs provided were not dated, did not provide the names of the people in the photographs, and did not disclose the location or locations at which the photographs were taken. Further, at [42] - [47] inclusive of its reasons, the Tribunal appropriately considered and weighed up information about the nominee’s overseas work experience and qualifications. There ought to be no inference that the Tribunal failed to consider the arguments advanced to it in that regard. At [47] of its reasons, the Tribunal found as follows:
47. The Tribunal places some weight on the nominee undertaking the advertising of job vacancies, interviewing and testing of applicants and selection of staff. However, the tasks undertaken would be minimal as the job vacancy advertisements would not vary significantly, if at all, because they relate only to pickers and packers. The identified position is at level 1 and requires complex ideas and work at a high level.
As to the Tribunal giving little weight to the reference letter reproduced at [44] of its reasons, the Tribunal was entitled to do so because such reference letter merely replicated the position criteria as set out in ANZSCO. It resembled a “cut and paste”. At [46] of its reasons, the Tribunal found as follows:
46. While the nominee has an Indian bachelor's degree she does not have 5 years experience as a human resource adviser. The Tribunal refers to the reference letter but gives it very little weight for 2 reasons - the experience has undertaken in India, and secondly, it appears the tasks are identical with the tasks of a human resource adviser in ANZSCO. The work alleged to have been undertaken includes tasks reserved or otherwise be done by a recruitment consultant ANZSCO 223112 which is more in line with a recruitment adviser at a recruitment agency. For example, the following tasks are inconsistent with working for one employer:
a. Receiving and recording job vacancy information from employers such as details about job description, wages and conditions of employment.
b. Providing information on current job vacancies in the organisation to employers and jobseekers
c. Overseeing the formation in conduct a workplace consultative committees and employee dissipation initiatives.
The Court infers that the reason why the Tribunal gave little weight to the reference letter was in part because the alleged experience of the nominee undertaken in India was not experience as a human resources manager. In doing so, the Tribunal appropriately took into account relevant past work experience of the nominee before arriving at its decision. The decision of the Tribunal should not be examined too closely with an eye keenly attuned to error. [1]
[1] WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] –
Otherwise, the Court was being asked to undertake an impermissible merits review.
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
The Ground of Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 December 2024
[47] per French, Sackville and Healy JJ.
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