Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA
[2021] FCCA 758
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 758
File number(s): BRC 350 of 2020
BRC 351 of 2020Judgment of: JUDGE VASTA Date of judgment: 10 March 2021 Catchwords: MIGRATION – employer nomination visa – whether position created by employer corresponded with ANZSCO 142111 – Tribunal applied a mathematical formula to establish whether there was substantial corresponding between the position ANZSCO 142111 – jurisdictional error found – writs issued Legislation: Migration Act 1958 (Cth) Cases cited: Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091 Number of paragraphs: 40 Date of last submission/s: 10 March 2021 Date of hearing: 10 March 2021 Place: Brisbane Counsel for the Applicants Mr Aleksov Solicitor for the First Respondent: Ms Allen ORDERS
BRC 350 of 2020 BETWEEN: VISHVAM PTY LTD AS TRUSTEE FOR THE VISHVAM UNIT TRUST
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
10 MARCH 2021
BRC 351 of 2020 BETWEEN: NEELA REDDY PAMIDMALLA
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
10 MARCH 2021
BRG350/2020
THE COURT ORDERS THAT:
1.That a writ of certiorari issue directed to the Second Respondent quashing its decision dated 20 May 2020.
2.That the First Respondent pay the Applicant’s costs, fixed in the sum of $7,467.00.
3.That a writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application dated 17 January 2018 according to law.
BRG351/2020
THE COURT ORDERS THAT:
4.That a writ of certiorari issue directed to the Second Respondent quashing its decision dated 9 June 2020.
5.That the First Respondent pay the Applicant’s costs, fixed in the sum of $2,533.00.
6.That a writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application dated 9 February 2017 according to law.
REASONS FOR JUDGMENT
JUDGE VASTA
On 20 May 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision to refuse the nomination of Vishvam Proprietary Limited as a nominated employer.
On 9 June 2020, the AAT affirmed a decision not to grant the Applicant, Neela Reddy Pamidimalla, an employer nomination. The latter decision was based upon the decision not to grant the former decision - that is, Mr Pamidimalla was the nominated employee of Vishvam Proprietary Limited, therefore, the success of Mr Pamidimalla's application rested upon the success of the application by Vishvam. Given that the AAT affirmed the decision to refuse Vishvam's nomination, it meant that the nomination of Mr Pamidimalla must also have been refused.
On 23 June 2020, both Vishvam Proprietary Limited and Mr Pamidimalla asked this Court to review the decisions. Because Mr Pamidimalla's matter rested solely on the Vishvam decision, that was the decision that this hearing has concentrated upon, rather than looking at, necessarily, the merits of Mr Pamidimalla's application.
The background to the matter is this: Vishvam Proprietary Limited owns and operates the Enhance Chinchilla service station and sells a variety of products and services there, primarily fuel, but also groceries, drinks and hot and cold food. The sole director is a Mr Vududala. He is the owner of two additional entities; one trading as the Gabriel Motor Inn in Gundagai and another trading as the Normanton Stop Shop in Normanton. The distances between Gundagai, Chinchilla and Normanton are enormous.
Mr Vududala said to the Tribunal that these three entities, combined, equate to the ownership of multiple businesses spread across several Australian States, which employs 29 staff in total. He said that this meant that his time can no longer be effectively distributed to each business at a managerial level, especially given the logistical and practical difficulties in recruiting, supervising and training staff in each location and given the large distances between them.
He told the Tribunal that he developed the duties of the petrol station manager to represent a complete managerial approach to the daily operations of the station. He said that this included supervising and training all staff members, managing the administrative and banking responsibilities to ensure constant cash flow, and proper financial recordkeeping, which would be then forwarded to the accounts department weekly. The manager would also ensure all staff properly facilitate the selling and promotion of store goods and services by ensuring that the petrol station manager handles those aspects of the management and running of the business.
Mr Vududala said that he expected efficiency, productivity and the sales to offset the increase in payroll. He said that it allows him to run the Chinchilla business passively and only become present when absolutely necessary.
He said that to find a suitable candidate, he published an advertisement in the local Chinchilla newspaper for three weeks as well as advertising online. He ended up picking Mr Pamidimalla after this process and he performed well during his trial for the business.
The visa application, that Mr Pamidimalla lodged, was for that nominated position of petrol station manager. The parties submitted all the documents that were required and the parties complied with all requests of the Tribunal.
The regulations required that, the position and the nominator's business, being located in regional Australia, be one in which there was a genuine need for the paid position under the nominator's direct control, which cannot be filled by a locally resident Australian citizen or permanent resident; the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument; the occupation is applicable to the proposed employee in accordance with the specification of the occupation; and, that a regional certifying body had advised the Minister about certain matters relating to the position.
The Tribunal had to consider whether the tasks to be performed in the position, that Mr Vududala had created, corresponded to the tasks of a retail manager in ANZSCO 142111, which was found in the instrument that was on the ABS website. This was necessary to satisfy the regulation that provided that 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 subparagraph.
At paragraph 21, the Tribunal said that it was mindful that ANZSCO is not prescriptive, however, the Tribunal was also aware of the need for qualitative analysis. The Tribunal reproduced the words of His Honour Judge Smith who had said in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091, at paragraph 30:
...what is required by subreg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it is really what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another…
The employment contract, that Mr Vududala had submitted, was examined closely by the AAT. The AAT found that there were 15 tasks that were distinct, yet sometimes overlapped with each other, in that employment contract. Those 15 tasks are reproduced at paragraph 22 of the AAT decision.
At paragraph 23 of the AAT decision, the Tribunal listed the ANZSCO list of tasks for retail manager, ANZSCO 142111. There were nine aspects to those tasks that were listed then in that paragraph.
The Tribunal also had regard to evidence given by Mr Vududala about the service station in Chinchilla. The Tribunal said that, on the face of it, the job description did not appear to correspond to the tasks of the ANZSCO position of the retail manager. At paragraph 27, the AAT said:
It was evident in the hearing that the applicant relies a good deal on the nominee to supervise the daily operations of the service station as the director lives in NSW and cannot undertake this role himself. However, the applicant, wanting to keep the nominee, still requires a determination of whether the position is that of a retail manager, as Judge Smith had stated “of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be.”
In making that determination, the Tribunal then compared the tasks of the nominated position against the tasks of the ANZSCO retail manager. The Tribunal, very helpfully, constructed a table. On the first column, the Tribunal listed the ANZSCO retail manager tasks from 1 to 9, and then listed the Tribunal's finding on tasks of the nominated position that correspond with the ANZSCO, and then in the last column gave a weighting score.
What that meant was that for each of those nine tasks, that were enumerated in paragraph 23, the Tribunal has given a score of 1. It has then looked at those 15 duties in paragraph 22 and compared those with the nine tasks. If the tasks correspond to the particular ANZSCO task, the score of 1 was given. If the task did not correspond at all, a score of 0 was given. If there was a part correspondence, then a score between 0 and 1 was given.
In the end, the score that the Tribunal came to was a score of 5.16 out of 9, or 57 per cent. The Tribunal went through its reasoning for the weighting that it gave for each of those tasks between 0 and 1.
At paragraph 50, the Tribunal said:
When the tasks of the ANZSCO retail manager are listed with those crossed through as not corresponding to the tasks of the nominated position and compared to those of a retail supervisor as shown below, there is a significant alignment.
The Tribunal then reproduced, again, those tasks of the ANZSCO manager and put a line through the tasks that were not present in the 15 aspects to the job description given by the Applicant. The Tribunal made a comparison between that of a retail manager and a retail supervisor.
However, there does not seem to be any real necessity or reason for this to occur. The Tribunal may have wanted to ensure that they were seen to have been diligently completing their task. There is no doubt that the Tribunal did diligently complete its task.
At paragraph 51, the Tribunal said that:
The ANZSCO tasks of the nominated position minus those that the Tribunal found do not correspond to the tasks of a retail manager do correspond closely with the ANZSCO tasks of a retail supervisor. The Tribunal considers that the nominated position's tasks correspond with those of a retail supervisor.
Paragraph 52, the Tribunal then spoke of the fact that there was only a score of 57 per cent on their mathematical calculations.
At paragraph 53, the Tribunal said:
The Oxford Dictionary Online provides the following definition of correspond:
Have a close similarity, match or agree almost exactly. A 57% alignment would not reasonably be said to be a “close similarity” or to “match or agree almost exactly.”
The Tribunal then said that, therefore, the tasks to be performed in the nominated position do not correspond to the tasks of the retail manager and that, therefore, the conditions specified are not met. Therefore, the requirements of the regulation were not met and for that reason the Tribunal affirmed the decision under review, which also meant that, on that later date, they affirmed the decision not to give Mr Pamidimalla the visa that he was seeking.
There were four grounds of this application but I am going to concentrate on ground number 4. That ground is:
The Tribunal's quantitative approach failed to apply the correct test, which is a qualitative evaluation, in that the Tribunal wrongly assumed that equal weighting should be applied to each item mentioned in ANZSCO when the weighting to be applied to each item was itself a question that called for evaluative judgment having regard to the circumstances of the case.
I listened very closely to the arguments of both the Applicant and the Minister. The Minister's submission that it was a matter for the Tribunal as to how it was that they came to that decision, is not a matter that speaks of jurisdictional error. It was a matter for the Tribunal to come to a finding of fact and that finding of fact was that the tasks of the position did not correspond to the tasks in ANZSCO and that, therefore, the regulation was not met.
In the written submissions, the Minister said that in respect of ground 4, it was for the Tribunal, as part of its fact-finding function, to identify such material as it found relevant to its reasoning, and to give it appropriate weight. There was nothing unreasonable, in the legal sense, about the Tribunal placing equal weight on each ANZSCO task; nor was there anything unreasonable about dividing each task into subtasks. In fact, the Tribunal's approach in this regard was favourable to the Applicant. Had the Tribunal treated each task as being holistic, the result would have been worse for the Applicant.
Whilst there is some merit to those submissions, to my mind, it actually ignores the true problem in this case. In doing what the legislation requires, and that is to ascertain whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing, such cannot be done in a mathematical way unless it is done through a clear and understandable manner which gives sufficient reason for the decision at hand.
Whilst the Minister says that there is nothing wrong with the Tribunal assigning an equal weighting for each of the nine aspects of the ANZSCO description, there does not seem to be any rhyme or reason for this. When one looks at what the ANZSCO has said about a retail manager, the nine aspects are:
(1)Organises and controls the operation of a retail-trading establishment.
(2)Determining product mix, stock levels and service standards.
(3)Formulating and implementing purchasing and marketing policies and setting prices.
(4)Promoting and advertising the establishment's goods and services.
(5)Selling goods and services to customers and advising them on product use.
(6)Maintaining records of stock levels and financial transactions.
(7)Undertaking budgeting for the establishment.
(8)Controlling selection, training and supervision of staff.
(9)Ensuring compliance with occupational health and safety regulations.
To simply give each of those aspects a score of 1 without any explanation as to why, is not conducting the necessary comparison in a way in which one can clearly see that there has been a proper comparison.
It is trite to say that a retail manager may do all of those things, but depending upon what sort of retail manager and where that retail manager is doing the managing, some of those tasks will be far more important than others. There does not seem to have been any allowance for the fact that this position was a retail manager in a service station in Chinchilla.
There was no analysis as to what the population of Chinchilla was, how many other petrol stations there were, how many other hot and cold food establishments were there, what hours the petrol station would be open and so on, so that one could have an idea as to how that petrol station would operate. It is clear that a petrol station in Chinchilla will be quite different to a petrol station operating in one of the more populous suburbs of Brisbane, such as Carindale or Chermside.
But more to the point, the manner in which a direct comparison between the two roles, that is the Applicant's role and that of the ANZSCO, and giving a mathematical formula, means that the Tribunal has equated the position as simply the sum of its parts. In looking at the matter from a qualitative point of view, the position will always need to be more than the sum of its parts, and the calculation that was made does not take that into account.
The reasoning of the Tribunal that, having created its own method by which to objectively analyse whether the two positions correspond with each other and then giving a score, itself, of 57 per cent is a matter where, it would seem to me, that the task will concentrate on form and not on substance. Therefore, the qualitative analysis that His Honour Judge Smith had spoken about will not occur.
In this case, I am of the view that it did not occur because there was nothing other than a line by line comparison of what the tasks in the employment contract were and what the task of ANZSCO was, without looking somewhat further.
I should note this; I am not criticising the AAT for doing what they did in this case. It was quite an innovative approach but there needed to be something more to it that took into account what the position actually was and where it was going to occur, before those analyses that the AAT undertook would fulfil the requirements that Judge Smith had voiced.
For those reasons, I find that there has been a jurisdictional error. I, therefore, do not need to look at the other three grounds.
Therefore, I order that the writs of mandamus will issue and I will remit the matter back to the AAT for its consideration.
As the argument focussed on the Vishvam matter, I will order that the Minister pay the costs fixed in the scale amount of $7,467. I will fix the costs in the matter of Neela Reddy Pamidimalla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor at $2,533.00. All up it is $10,000.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta Dated: 15 April 2021
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