Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-03-29|Before: Smith J

Introduction of Note 10 23 On 19 November 2016 IMMI 16/059 was amended by IMMI 16/118, and IMMI 16/059 was republished as 'IMMI 16/059 Compilation No 1'. Nothing turns on this in the present case. 24 More importantly (on Mr Ali's submissions), on 19 April 2017 IMMI 16/059 was amended by IMMI: Specification of Occupations, a Person or Body, a Country or Countries Amendment Instrument 2017/040 (IMMI 17/040). IMMI 16/059 was republished to incorporate the amendment by IMMI 17/040 and entitled 'Compilation No 2'. An effect of IMMI 17/040 was that it repealed Schedule 2 of IMMI 16/059 and replaced it with a new Schedule 2, now titled 'Short-term Skilled Occupation List'. The schedule contained an entry for 'Customer Service Manager' accompanied by the same ANZSCO code as before, that is 149212, but it introduced a new comment, being 'See Note 10'. 25 Note 10 as inserted by IMMI 17/040 states: Note 10: In relation to specifications of occupations for a Subclass 457 - Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes any of the following: … c) positions in a business that have an annual turnover of less than AUD 1 million; …

Northland Tribunal review 26 Northland sought review of the delegate's decision refusing Northland's nomination application. In the intervening period IMMI 17/040 had come into effect. 27 According to its evidence, Northland's annual turnover did not meet the threshold prescribed by Note 10. The evidence disclosed that its annual turnover was less than AUD$1 million. 28 On 11 May 2017 the Tribunal affirmed the decision of the delegate to refuse the nomination. The Tribunal apparently referred to IMMI 17/040 as the basis for denying the nomination. 29 Therefore, although the Tribunal relied upon IMMI 17/040 rather than non-satisfaction with the criterion in reg 2.72(10)(f), the delegate's decision to refuse the application was affirmed.

Mr Ali's Tribunal hearing 30 Mr Ali's review application was heard by the Tribunal on 24 April 2017. Mr Ali, who was self-represented, gave evidence at the hearing and presented arguments. The business manager and director of Northland also gave evidence at the hearing. 31 On 11 May 2017, so on the same day that it had affirmed the decision of the delegate to refuse Northland's nomination but shortly afterwards, the Tribunal affirmed the decision of the delegate not to grant Mr Ali and his family members 457 visas.

Tribunal's reasons 32 The Tribunal identified that the issue before it was whether Mr Ali meets the requirements of cl 457.223(4)(a) of Schedule 2, stating that: 11. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. 33 At the hearing Mr Ali was informed that the outcome of his application for review turned on whether the nomination of the Customer Service Manager position by Northland satisfied the requirements of reg 2.72 of the Migration Regulations: 6. The Tribunal explained to the visa applicant that the fate of his application for review turns on the question of whether the nomination is approved. The Tribunal explained that it had before it an application to review the delegate's refusal of the nomination of the position for a Customer Service Manager (ANZSCO 149212) with Northland Commercial Services Pty Ltd. It explained that if the Tribunal found the nomination satisfied all of the criteria in r.2.72, then it would approve the nomination and that would mean the first named visa applicant would satisfy cl.457.223(4) of Schedule 2 to the Regulations, and that the secondary applicants would satisfy cl.457.321 of Schedule 2 to the Regulations. 34 The Tribunal then explained that a legislative instrument (IMMI 17/040) had recently changed the operation of reg 2.72: 7. However, the Tribunal also explained to the visa applicant that significant changes to the Subclass 457 visa regime were announced on 18 April 2017, and the nomination in his case was affected by those changes. In particular, it explained that changes in the relevant instrument (IMMI 17/040) in relation to the occupation of Customer Service Officer, means that such nominations are in effect excluded in a business having an annual turnover of less than AUD 1 million. The Tribunal explained that as his employer had given evidence that the annual turnover for Northland Commercial Services Pty Ltd is less than AUD 1 million, this would be the reason or part of the reason why it would not, and could not, approve the nomination. It explained that this in turn would be the reason why the Tribunal would have to affirm the refusal of the visa applications. 35 The Tribunal concluded: 12. The Tribunal finds that an application for approval of the occupation of Customer Service Manager was made by Northland Commercial Services Pty Ltd on 12 August 2015. The Tribunal finds that a delegate refused to approve the nomination on 18 February 2016. 13. The Tribunal finds that Northland Commercial Services Pty Ltd applied to this Tribunal for a review of the delegate's decision to refuse the nomination. However, on 11 May 2017, this Tribunal found the nomination cannot be approved as the nomination failed to meet the criteria specified in r.2.72(10)(aa), and in particular requirements prescribed by the operation of IMMI 17/040. The Tribunal's reasons for refusing to approve the nomination are set out in AAT Decision Number 1602837. 14. Based on this evidence, the Tribunal finds there is not an approved nomination in respect of the applicant. 15. For these reasons the requirements of cl.457.223(4)(a) are not met. 36 Accordingly, the Tribunal affirmed the decision of the delegate not to grant the appellant a 457 visa. Mr Ali did not meet the requirement of cl 457.223(4)(a)(i) that there be an approved nomination.

Decision of the Federal Circuit Court 37 Mr Ali applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. 38 From 1 July 2017 there were further repeals and introductions of IMMIs relating to 457 visas, but they do not impact the matters in issue. 39 Mr Ali pursued three amended grounds of review before the Federal Circuit Court: 1. The tribunal erred in concluding that the application for Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act) lodged on 9 March 2015 was current and ongoing. The application was finalised by the delegate of the Department of Immigration and Border Protection on 5 July 2016. Administrative Appeals Tribunal is independent and does not work for the Department of Immigration and Border Protection. The tribunal was only reviewing the application that had already been completed and finalised by the delegate. 2. The caveats that apply by the operation of IMMI 17/040 should only apply to all current applications being processed by the Department of Immigration and Border Protection, regardless of the date of application; and should not apply to the applications being reviewed by Administrative Appeals Tribunal if the applications were finalised by the delegate before the changes to the Subclass 457 visa regime were introduced. If the Department of Immigration and Border Protection is given power to introduce changes in any visa regime that can influence applications being reviewed by the Administrative Appeals Tribunal, it would fail the purpose of the existence of the Administrative Appeals Tribunal and render it ineffective. This is against fairness and justice. 3. The delegate refused the nomination application because it was not satisfied that the nominating employer envisaged the position to actually perform the duties and responsibilities expressed in the submitted job description. However, on the contrary, the Tribunal found that the nominating employer does envisage the position to actually perform the duties and responsibilities expressed in the submitted job description. Thus, the Tribunal had indeed decided in favour of the applicant but its decision was interfered by the changes introduced by the Department of Immigration and Border Protection Therefore, the applicant begs this court to quash the decision made by the Tribunal and direct it to review it based on the laws that existed on 5 July 2016 when the delegate finalised the application. 40 Addressing the first ground of review before the FCC, the primary judge said: [18] In relation to ground 1, it is apparent that the Tribunal conducted a review in accordance with the statutory requirements and that that was an independent review in respect of which the Tribunal made its own findings in relation to the application for the Temporary Business visa. There is no basis to find that the Tribunal failed to comply with its statutory obligations in the conduct of the review. [19] On the material before the Court, the Tribunal complied with its statutory obligations in inviting the applicant to attend a hearing and, on the face of the Tribunal's reasons, the applicant had a real and meaningful hearing and the Tribunal raised with the applicant the issue of concern in respect of the absence of an approved nomination. 41 As to the second ground of review, the primary judge said: [21] In relation to ground 2, the applicant seeks to raise an issue relevant to the application by the sponsor for approval and the requirement for the sponsor's business to have a turnover of not less than $1 million. That provision, pursuant to IMMI 17/040, is not the issue in the present case. However, on the face of the material before the Court, the Tribunal was entirely correct in understanding that the sponsor had to meet that requirement by reason of IMMI 17/040. [22] The relevant issue in the present case, as the first respondent pointed out, was whether or not the applicant had an approved nomination. It is clear that the applicant did not. 42 As to the third ground of review before the FCC, the primary judge said: [24] In relation to ground 3, this reflects a disagreement with the adverse finding in respect of the requirements for an approved nomination and does not identify any basis to find there is any jurisdictional error.

Amended grounds of appeal before this Court 43 Mr Ali sought to amend his grounds of appeal shortly before the hearing. I explained to Mr Ali that leave was needed to rely on his amended grounds of appeal. Counsel for the Minister formally opposed leave being granted, but was willing to proceed with the hearing on the basis that it was an application for leave to rely on the new grounds in circumstances where counsel was in any event able to proceed to make full submissions as to the merits of the proposed amended grounds, with the application for leave to be determined as part of these reasons. Mr Ali confirmed that he did not seek to rely on the grounds in his original application to this Court, but only on the proposed amended grounds. He also informed me that he was in a position to fully address the merits of his proposed grounds during the hearing before me. The hearing proceeded on that basis. 44 By his amended grounds, Mr Ali repeated (in effect) the three grounds pursued before the Federal Circuit Court, and relied on what were drafted as an additional four grounds. 45 I will paraphrase the grounds, acknowledging that Mr Ali was self-represented before this Court: (a) By ground 4 Mr Ali contends that the Tribunal refused the nomination application on the basis of IMMI 17/040. (b) By ground 5 Mr Ali contends that the Tribunal and Federal Circuit Court decisions were based on IMMI 17/040 and IMMI 17/060, and that those instruments apply only to nominations of occupations made on or after 1 July 2017, and do not apply where an application (such as his) was finally determined prior to that date. (c) By ground 6 (inadvertently described by Mr Ali as a second ground 5) Mr Ali contends that IMMI 17/040 does not apply to an application that is under review in the Tribunal followed by an application to the Federal Circuit Court, and that both his application and Northland's application were decided before the IMMI 17/040 changes and that his application when it was made met the requirements of cl 457.223(1) of Schedule 2. (d) By ground 7 (numbered 6 by Mr Ali) Mr Ali asserts that the Tribunal and Federal Circuit Court erred because IMMI 17/040 had no application to an 'already finalised application'. 46 Although the Minister opposed leave to amend the grounds of appeal on the basis of an asserted lack of merit, it seems to me that viewed properly, all proposed grounds were either relied upon before the primary judge or rely on the assertion that the Tribunal erred with respect to the Northland review application by relying on IMMI 17/040. Therefore, the matters now sought to be raised by Mr Ali in the four 'new' grounds are really different ways of making the same argument or in effect providing particulars or submissions. Viewed in that manner the application does not amount to an application to raise a new ground in the strict sense. There are a number of reasons that support a conclusion that leave should be granted to Mr Ali. The proposed ground does not require any evaluation of the evidence beyond the limited evidence already relevant on the application. Mr Ali has been self-represented before the Tribunal, the Federal Circuit Court and this Court. It is an important matter for Mr Ali, bearing as it does on his migration status. The proposed new appeal grounds are very confined, as is reflected by the fact that the Minister's counsel was prepared to argue the appeal grounds fully despite having relatively short notice of their content. In those circumstances, it seems to me that it is expedient in the interests of justice that there be leave granted to Mr Ali to rely on his amended grounds of appeal.

Analysis 47 It is apparent that although divided into a number of grounds, Mr Ali's real complaint is that at the time he applied for his 457 visa, there was no threshold exception as introduced by IMMI 17/040 and Note 10, and therefore Northland was not excluded from nominating him even if its business turnover did not exceed AUD$1 million. He contends that the Tribunal should not have had regard to Note 10 and that his application should have succeeded. 48 Mr Ali is correct to say that the Note 10 exception did not apply at the time that Northland filed its application, nor at the time that he filed his own application. 49 However there are significant difficulties for Mr Ali. 50 It is apparent that the delegate's decision on Northland's application, founded as it was on the non-satisfaction of reg 2.72(10)(f), left Mr Ali in a position where his own application was doomed to fail, unless the decision on Northland's application was set aside by the Tribunal. 51 That decision was not set aside by the Tribunal. Rather, the Tribunal, which in the exercise of its statutory powers considered Northland's application afresh by way of merits review, affirmed the delegate's decision to reject Northland's nomination application. Although the Tribunal's reasons in the Northland application were not before the Court, those reasons are referred to in the Tribunal's reasons in Mr Ali's application, as extracted above. 52 It is true that the Tribunal had a different reason for coming to the same decision as the delegate on Northland's application. The Tribunal did not rely on non-satisfaction with reg 2.72(10)(f), but on the effect of the Note 10 exception introduced by IMMI 17/040. Regardless, Northland's application was unsuccessful both before the delegate and before the Tribunal. 53 Northland did not seek review of the Tribunal's decision before the Federal Circuit Court. 54 I add that it was not open to Mr Ali to seek review of the delegate's decision with respect to Northland's application, nor, it follows, to seek review of a Tribunal decision relating to Northland's application. This follows from s 338(9) of the Migration Act, which specifies that types of decisions may be prescribed as Part 5 reviewable decisions. Part 5 reviewable decisions may be reviewed by the Tribunal in its Migration and Refugee Division. Regulation 4.02(4) lists various decisions that are prescribed as Part 5 reviewable decisions, including a decision under s 140GB(2) of the Migration Act to refuse to approve a nomination. Section 347 of the Migration Act prescribes how an application for review of a Part 5 reviewable decision is to be made. Regulation 4.02(5) provides that for the purpose of s 347(2)(d) of the Migration Act, an application for review of a decision, including a decision under s 140GB(2) of the Migration Act to refuse to approve a nomination, may only be made by the approved sponsor who made the nomination. For completeness, I note that the reference to 'approved sponsor' reflects the wording of the regulation at the time of the delegate's decision in the present case: those words have since been replaced by the word 'person', but the intent of the provision is the same. 55 The absence of any further review or appeal by Northland means that it remains the case that Northland did not obtain a nomination approval for Mr Ali. Absent such approval, Mr Ali is unable to meet the criteria for his application. There is no nomination of an occupation in relation to the applicant that has been approved under s 140GB of the Migration Act. 56 Whether or not the Tribunal should have had any regard to IMMI 17/040 does not affect that outcome. The Minister submitted that there is no provision that indicates that the amendments brought about by IMMI 17/040 and Note 10 do not apply to nomination applications made prior to their introduction but that come before the Tribunal on merits review. However, regardless of the Tribunal's reasons, the fundamental difficulty for Mr Ali is that Northland has not secured nomination approval. 57 Those are the circumstances in which Mr Ali's own application was considered by the Tribunal. There was no nomination approval. It was on that basis that the Tribunal, having considered the matter afresh on merits review, came to the view that Mr Ali was unable to satisfy the relevant criteria and affirmed the decision not to grant the 457 visa. 58 Returning to the specific proposed grounds of appeal, the following comments may be made, taking into account the above reasons. 59 As to ground 1, the Tribunal's task in reviewing the delegate's refusal to grant to Mr Ali a 457 visa was to review afresh Mr Ali's case on its merits. That involved a consideration of the criteria for such a visa application. It is apparent from the reasons extracted at [32]-[36] above that the Tribunal identified the criteria and recognised that Mr Ali was unable to satisfy the requirement of cl 457.223(4)(a) that Mr Ali have an approved nomination of an occupation that related to him. No error is disclosed in the Tribunal's approach. The Tribunal was not empowered on Mr Ali's review application to review Northland's application decision. 60 As to ground 2, there appears to be no legislative prohibition on the Tribunal, in approaching the review task afresh at the time of the hearing, applying IMMI 17/040 although the application might pre-date its date of commencement. However, that question is not to the point on this application. Had Northland wished to challenge the Tribunal's approach, it could have sought to do so. Mr Ali's application before the Tribunal fell to be determined by reference to the question: has Mr Ali met the criteria of cl 457.223(4)? And Mr Ali was unable to satisfy the requirement of cl 457.223(4)(a) that Mr Ali have an approved nomination of an occupation that related to him. No error in the Tribunal's approach is disclosed. 61 As to ground 3, it is not to the point that the Tribunal affirmed the delegate's decision to reject the Northland nomination application on a different ground to that relied upon by the delegate. The Tribunal relied on the Note 10 exception that had been introduced. Had it not done so, it would have needed to consider the other relevant criteria, including that relied on by the delegate, being the criterion in reg 2.72(10)(f). The relevant review conducted by the Tribunal and the subject of the application to the Federal Circuit Court was the Tribunal's decision with respect to Mr Ali's own application. No error in the Tribunal's approach is disclosed. 62 As to ground 4, the Tribunal did not refuse Mr Ali's application on the basis of IMMI 17/040. It refused it because Mr Ali was unable to satisfy the requirement of cl 457.223(4)(a) that Mr Ali have an approved nomination of an occupation that related to him. 63 Grounds 5, 6 and 7 can be addressed collectively. Again, it was not any reliance on IMMI 17/040 that led to Mr Ali's application being unsuccessful. Any challenge to the Tribunal's decision on Northland's application could have been pursued by Northland but was not. That Northland chose not to pursue the matter further led to the inevitable outcome that Mr Ali's application had to be refused, as once Northland's application was unsuccessful, Mr Ali could not satisfy the requirement of cl 457.223(4)(a) that there be an approved nomination of an occupation that related to him.

Outcome 64 It follows that no jurisdictional error on the part of the Tribunal has been disclosed. It also follows that no error on the part of the Federal Circuit Court has been established. 65 Mr Ali's appeal must be dismissed. Costs should follow the outcome in the usual way. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Migration Act 1958(Cth)ss 140GB, 338, 347

The legislative framework 5 Schedule 2 of the Migration Regulations 1994 (Cth) contains provisions with respect to the grant of subclasses of visas, including 457 visas. It was a requirement for a 457 visa that the applicant should be sponsored by an employer, that the sponsorship application should, at the time of the application, have been approved by the Minister and that it relate to a recognised nominated occupation. This requirement was relevantly contained in cl 457.223(4) of Schedule 2, which provided: (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and (aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and … 6 This clause of Schedule 2 directs attention to both s 140GB of the Migration Act 1958 (Cth) and any relevant 'instrument in writing' that is in effect. 7 Section 140GB at the relevant time provided for the process of approving nominations: Minister to approve nominations (1) A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate: (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to: (i) the applicant or proposed applicant's proposed occupation; (ii) the program to be undertaken by the applicant or proposed applicant; or (iii) the activity to be carried out by the applicant or proposed applicant; or (b) a proposed occupation, program or activity. (2) The Minister must approve a person's nomination if: … (b) in any case - the prescribed criteria are satisfied. (3) The regulations may establish a process for the Minister to approve a person's nomination. … 8 As anticipated by s 140GB, the regulations provide prescribed criteria. Regulation 2.72 of the Migration Regulations at the relevant time relevantly provided: Criteria for approval of nomination - Subclass 457 (Temporary Work (Skilled)) visa (1) This regulation applies to a person who is: (a) a standard business sponsor; or (b) a party to a work agreement (other than a Minister); who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa. (2) For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12). … (10) If the person is a standard business sponsor the Minister is satisfied that: (aa) if the nomination is made on or after 1 July 2010 - the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and … (f) the position associated with the nominated occupation is genuine; and … 9 There are many criteria listed in reg 2.72, but those at reg 2.72(10)(aa) and reg 2.72(10)(f) are relevant for present purposes. 10 As to the reference to an 'instrument in writing' in reg 2.72(10)(aa), the regulations empower the Minister to revoke and issue a legislative instrument (referred to as an IMMI). A number of instruments have been specified by the Minister over time relating to reg 2.72(10). At the date of Mr Ali's application, the relevant IMMIs were Specification of Occupations, a Person or Body, a Country or Countries 2016/059 (IMMI 16/059) and Specification of Occupations, a Person or Body, a Country or Countries Amendment Instrument 2017/040 (IMMI 17/040). Relevantly, Schedule 2 of both instruments listed 'Customer Service Manager' against the relevant 6-digit ANZSCO code 149212. 11 The Full Court explained the nature of ANZSCO codes in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; (2015) 235 FCR 100 at [17] (Griffiths, Mortimer and Beach JJ). In summary, 'ANZSCO' is an acronym for the Australian and New Zealand Standard Classification of Occupations and is produced by the Australian Bureau of Statistics. The ANZSCO contains a listing of all of the occupations in the Australian and New Zealand job markets (including the self-employed). Each 'occupation' is identified by means of a six digit code. 12 Other IMMIs relied upon by Mr Ali are referred to in the chronology of events below.

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