FEDERAL COURT OF AUSTRALIA

Mora v Minister for Immigration and Border Protection [2018] FCA 1819

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia in proceeding BRG1096/2016 made on 3 October 2017 be set aside.

3.    In relation to the two decisions of the Second Respondent dated 19 October 2016 and 4 November 2016 respectively:

(a)    the decisions of the Second Respondent be quashed; and

(b)    a writ of mandamus be directed to the Second Respondent requiring it to determine the appellants’ applications according to law.

4.    The First Respondent pay the Appellants’ costs of the Federal Circuit Court of Australia proceeding BRG1096/2016 fixed in the sum of $10,745.76

5.    The First Respondent pay the Appellants’ costs of this appeal to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

The appeal

1    This is an appeal from a decision of the Federal Circuit Court dated 3 October 2017, dismissing an application for judicial review of two decisions of the Administrative Appeals Tribunal (the Tribunal). The decisions of the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) to refuse to approve the nomination of the first appellant’s proposed employer, and, consequently, to refuse the grant of a temporary work skill (Subclass 457) visa on the basis that the first appellant did not satisfy the criterion that she was the subject of an approved nomination.

Background

2    The appellants are citizens of Colombia. On 21 July 2014 the first appellant applied for a temporary work skilled (Subclass 457) visa, with the intention of working for the sponsoring employer, the Osario Munoz Family Trust (the Trust). The Trust operated a cleaning business, KIC Cleaning Services. The second appellant applied for a visa as a member of the first appellant’s family.

3    The Minister rejected the visa applications on 16 April 2015 because the first appellant was not the subject of an approved nomination, as required by Item 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The appellants applied for review of the decision in the Migration Review Tribunal (now the Tribunal), however on 11 August 2015, the Tribunal determined that it did not have jurisdiction to deal with the matter.

4    Following that decision of the Tribunal, on 27 August 2015 the Trust made a business nomination application, nominating the first appellant. The nominated position was:

Job title/Position – Sales and Marketing Manager

Occupation – Business Development Manager

ANZSCO Code – Sales and Marketing Manager 131112

5    A delegate of the Minister wrote to the Trust on 25 September 2015, asking for additional information to support the nomination application. On 7 March 2016 however a delegate of the Minister refused the Trust’s business nomination application and, accordingly, the appellants’ visa application was also refused.

6    The appellants applied to the Tribunal for review of the nomination decision on 8 March 2016 and for review of the visa decision on 13 May 2016. On 1 and 8 September 2016, the Tribunal wrote to the appellants and the Trust, inviting them to attend an oral hearing pursuant to s 425 of the Migration Act 1958 (Cth) (the Act), as the Tribunal was unable to make a favourable decision on the basis of the material before it alone.

Decisions of the tribunal

The nomination decision

7    The Tribunal made its nomination decision on 19 October 2016 after a hearing on the same date.

8    The Tribunal found that the position of “Business Development Manager” with the Trust, which was associated with the nominated occupation, was not a genuine position, as required by reg 2.72(10)(f) of the Regulations.

9    The Tribunal had regard to the Australia and New Zealand Standard Classification of Occupations – also known as ANZSCO. The Australian Bureau of Statistics website describes ANZSCO as a skill-based classification used to classify all occupations and jobs in the Australian and New Zealand labour markets. ANZSCO achieves this objective by identifying a set of occupations covering all jobs in the Australian and New Zealand labour markets, defining these occupations according to their attributes, and grouping them on the basis of their similarity into successively broader categories for statistical and other types of analysis. The individual objects classified in ANZSCO are jobs.

10    The Tribunal noted that “Business Development Manager” was a specialisation under “Sales and Marketing Manager” (ANZSCO 1311-12). The ANZSCO description of the duties of Sales and Marketing Manager to which the Tribunal referred was:

UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS

ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)

Tasks include:

•    Formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers

•    Directing the development of initiatives for new products, marketing and advertising campaigns

•    Organising and controlling sales activities by settling product mix, geographic sales areas and customer service standards

•    Directing merchandising methods and distribution policy by coordinating the work of sales persons, and organising agents and distributors

•    Directing sales methods and arrangements by setting prices and credit arrangements

Occupations:

131111 Advertising and Public Relations Manager

131112    Sales and Marketing Manager

…

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

ICT Business Development Managers are excluded from this occupation. ICT     Business Development Managers are included in Unit Group 2252….

Skill Level: 1

Specialisations:

Business Development Manager

Market Research Manager

11    The Tribunal observed:

11.    The Tribunal notes that the nominated position is Business Development Manager, a specialisation of Sales and Marketing Manager. For convenience the Tribunal will refer to the occupation of Sales and Marketing Manager in the balance of these reasons.

12.    In assessing whether the position associated with the nominated occupation is genuine, that is whether the position for which the application has been nominated is actually that of Sales and Marketing Manager, the Tribunal has had regard to the skill level and tasks for that occupation as set out in the ANZSCO – 131112. While the Tribunal is not bound by the description, it considers that a position of Sales and Marketing Manager would involve the type and range of tasks at the level indicated in the ANZSCO. The Tribunal has also given ANZSCO description considerable weight given the numerous references to the ANZSCO in the criteria for approval of the nomination, including at r. 2.72 (8A), r 2.72 (10)(aa) and r. 2.72 (10)(e).

12    The Tribunal examined material before it, including the contract of employment, marketing plan, and various statements. It noted that the appellants addressed the first appellant’s duties with the employer in the context of ANZSCO as follows:

The Position as Business Development Manager for the business

•    Directing the development and implementation of sales strategies and setting sales targets in order to maximising [sic] an organization’s sales and customer loyalty.

KIC is a forward thinking business who has the vision of becoming one of the biggest cleaning companies in Australia. In order to achieve the goal, the Director Benjamin undertook the research finding out the two essential elements that are required to ensure the business to be successful, Firstly, as a services industry, human capital of cleaners is essential to operate the business. Given the availabilities of part time and causal foreign workers available in Australia labour market despite the fact that Australians and PR reluctant to fulfil these positions, the human capital is not really an issue based on his research and the operation of the business for the last few years also demonstrated that. Secondly, the marketing of the business to build up and expand the customer base is the problem that he finds it is the most difficult task that a lot of other start-up businesses also face. There are a lot of cleaning businesses that exist in the market. Gaining customers is a challenging task and Benjamin himself is not capable of taking this task. This is where the creation of the position of business development manager is necessary and the nominee is then chosen based on her Master in Business Administration that is obtained in Australia. Her degree obtained in Australia is very appealing since she have background in familiar business environment in Australia.

Marcela is responsible for identifying sales opportunities and then establishing client relationships, negotiating sales contracts and reporting to the Director for coordinating with cleaners to delivering the services the customers required.

KIC was a start-up business among other well-established and competitive companies. Her job task firstly is to identify the target customer base to ensure the business can begin to operate.

After the research Ms Mora carried out, she found that pricing and flexible work hours are the advantages of the business that she can utilise on to attract customers. She focused on getting domestic household cleanings on a very competitive rate with flexible working hours arrangements to accommodate the need of customers.

As the growth of domestic customer numbers, her next job task was to maintain and expand the existing customer base. The initial stage of getting customers was successful, however, they were all domestic customers with unpredictable one-off jobs. The business turnover was not stable and expected. She then identified that she needed to focus on corporate client to secure a long term and stable income source for the business.

Her next task is to continue expand the business to attract more corporate clients. While the turnover is increasing, she has the liberty to spend a bigger proportion of the income to promote the business. She then adopted an aggressive advertising campaign listing the business on the Yellow Page and Google advertising.

Finally, it is pointed there is no time of application, time of decision criteria for on the nomination decision. The focus is on the position as it exists today.

Today KIC is expanding and trading well and is now trading at the rate of $350,000 per annum turnover.

(Errors in original.)

13    The Tribunal asked the first appellant to describe her duties, which the Tribunal set out at [19] as follows:

    She develops a list of possible new customers. At the moment, she is focussing on new building developments. She visits the buildings, identifies the building manager and provides details of her services. She currently has a list of 20-30 new buildings, and attempts to visit around 10 per week.

    She receives quote inquiries by telephone. She is then required to visit the prospective properties to provide quotes. She spends half of every day doing this.

    She also visits existing customers to check with services issues and identify opportunities for future sales.

14    At [20] the Tribunal asked the first appellant to describe the marketing activities she undertook. They were:

    the business has a website and Facebook page;

    the business also uses flyers, brochures and letters in mailboxes;

    the business conducts surveys of existing customers; and

    the business has obtained Google and Yellow Pages listings, and is looking at being listed in various trade3 and service directories.

15    The Tribunal continued:

21.    The Tribunal put to Ms Mora that a Sales and Marketing Manager is a specialist manager position, normally to be found in a much larger organisation. Such a business might have other specialist managers, such as a human resources manager or a finance manager.

22.    Ms Mora stated that while the business is a small one, they are increasing their turnover. They plan to employ more staff and buy new machinery as the business continues to grow.

23.    The Tribunal put to Ms Mora that a substantial portion of her duties, as described at the hearing, do not appear to relate to the occupation of Sales and Marketing Manager. She spends half of her time providing quotes.

24.     Ms Mora stated that she does more than just provide quotes. She is trying to create new possible clients and new business. For example, when she gave a quote to a construction company, she started to receive more business at their other sites. She is always trying to find new business opportunities.

25.    The Tribunal noted that Sales and Marketing Manager appears in ANZSCO as a skill level 1 position, which requires a bachelor degree or higher or at least 5 years of relevant work experience. It put to Ms Mora that a substantial part of her duties, namely providing quotes, appears to have been undertaken at a lower skill level.

26.     Ms Mora stated that she has a degree, and uses it to understand the people with whom she deals.

27.    The Tribunal put to Ms Mora that the provision of quotes appears to be more closely aligned with the ANZSCO description for Sales Representative.

28.    Ms Mora stated that she uses a combination of all of her skills as Business Development Manager to reach new goals for the company. She also deals with people inside the company, to encourage them to provide quality services.

29.    The Tribunal noted that the representative’s submissions contained an extract of the ANZSCO duties, which also appears earlier in this decision. The Tribunal invited Ms Mora to address how she undertakes those duties.

30.    Ms Mora stated that she tries to maximise sales and create customer loyalty. Existing customers such as Brislander have started to give more contracts. She also tries to find new prices, or provide extra services for the same prices. She uses surveys to try to find advantages for her company, and uses marketing strategies to promote the business. The business has a better image and reputation than it did 2 years ago.

31.    The representative submitted that the position is more than a sales representative. It requires an executive level position to be effective. The Tribunal should also have regard to the progression of the business since the time of the delegate’s decision.

16    The Tribunal made the following findings:

33.    The Tribunal finds that the nominated position pertains to the management of a cleaning business. The Tribunal accepts that the nominee’s position may involve elements of management and elements of sales and marketing, but this does not necessarily make the position one of Sales and Marketing Manager. A Sales and Marketing Manager is a specialist manager position, normally to be found in a much larger organisation. Such a business might have other specialist managers, such as a human resources manager or a finance manager. Given the nature and size of the business, the Tribunal is not satisfied that the nominee’s position is one of Sales and Marketing Manager.

34.    Further, and in the alternative, the Tribunal finds that approximately half of the nominee’s duties relate to the provision of quotes. In the Tribunal’s view, this is more closely aligned with the ANZSCO guide’s description of duties for a Sales Representative than a Sales and Marketing Manager. The Tribunal has reviewed the folder of promotional material, which the nominee supplied to potential customers when providing quotes. It consists of a list of services, a list of existing clients, testimonials and a flyer. While much was made of the virtue of the nominee holding an executive level position, these are very basic materials of a kind commonly provided by sales representatives. The Tribunal is unable to relate the provision of quotes to the duties set out in the ANZSCO guide’s description for Sales and Marketing Manager. The fact that the nominee might be alert to other sales opportunities when providing a quote is not inconsistent with the nominee preforming the duties of a Sales Representative. Related to this, the Tribunal is also not satisfied that the nominee’s duties in providing quotes are carried out at skill level 1 as indicated in the ANZSCO guide.

35.    Given that a substantial proportion of the nominee’s time (approximately half) is spent on duties more closely aligned with Sales Representative, or alternatively performed a lower skill level than indicated for a Sales and Marketing Manager, the Tribunal does not accept that a full-time Sales and Marketing Manager is necessary to the operation of the business. The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuine.

The visa decision

17    The Tribunal affirmed the refusal of the application for the first appellant’s visa on 4 November 2016 by letter, on the basis that it had affirmed the refusal to approve the sponsor’s nomination on 19 October 2016. This was made clear in the decision of 4 November 2016 where the Tribunal stated:

12.    At the hearing, the Tribunal explained to the applicant that if it refused the nomination application, it would also have to refuse her visa application as she would not meet the requirements of cl. 457.223 (4)(a). The representative stated that this was a legal issue and indicated on the applicant’s behalf that she accepted that decision.

…

16.    There is no evidence before the Tribunal that the applicant Is the subject of an approved nomination by a standard business sponsor, whether by Marcela Osorio Mora and Benjamin Munoz Santamaria atf Osorio Munoz Family Trust or anyone else. In these circumstances, the Tribunal is not satisfied that the requirements of cl 457.223(4)(a) are met.

17.    For completeness, as noted in the copy of the delegate's decision provided to the Tribunal, it follows from the failure of the appellant to meet the primary criteria that the second named applicant does not meet the secondary criteria In cl.457.321.

Proceedings before the federal circuit court

18    In the Federal Circuit Court, the appellant relied on the following grounds of review:

In relation to the decision of the second respondent dated 19 October:

1.     Failed to properly interpret and apply Reg 2.72 of the Migration Regulations 1994.

2.    The second respondent’s decision was an improper exercised of power.

3.    The second respondent failed to take relevant considerations into account.

4.    The second respondent took irrelevant considerations into account.

5.    The second respondent’s decision was unreasonable.

6.    The second respondent failed to properly conduct a review for the purposes of implementing Part V and/or ss 348 and 349 of the Migration Act 1958;

7.     The second respondent’s decision involved an error law;

8.    The decision was other unlawful.

In relation to the decision of the second respondent dated 4 November 2016:

9.    The second Respondent failed to properly apply the law in relation to the nomination decision review on 19 October 2016 and hence made a jurisdictional error in affirming the refusal of the subclass 457 visa application in the related decision of 4 November 2016.

10.    The second respondent’s decision of 19 October 2016 was infected by jurisdictional error and hence could not form the basis of affirming the refusal of the subclass 457 visa application in the related decision of 4 November 2016.

19    At the first appearance in the Federal Circuit Court on 12 June 2017, counsel for the appellant requested an adjournment because he had obtained the correct ANZSCO description from the relevant website and noticed that it differed from the version that was produced in the Tribunal’s reasons for decision. Counsel requested further time to explore this aspect of the appellants’ case. The primary Judge granted the adjournment.

20    The matter returned before the primary Judge on 18 September 2017 and his Honour delivered judgment on 3 October 2017. The primary Judge accepted that the Tribunal had made an error in reproducing in its reasons a previous version of ANZSCO and that there were differences between the two versions of ANZSCO. As his Honour explained at [13]:

13.    The relevant Legislative Instrument which provided the specification of occupations, IMMI15/092 (which commenced on 1 July 2015 and was revoked on 19 November 2016), provided at schedule 2 for the specification of a ‘Sales & Marketing Manager’, ANZSCO code 131112.

“UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS

ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:

•    directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

•    directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

•    directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

•    directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

Occupations:

131112 Sales and Marketing Manager

131113 Advertising Manager

131114 Public Relations Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

Skill Level: 1

Specialisations:

Business Development Manager

Market Research Manager

21    However, the primary Judge held:

34.    There are certainly differences in the two versions, however the description of the indicative skill level is exactly the same. The tasks are different; most notably the tasks in the older version refer to “consulting with other managers”, whereas the current version makes no such reference to “other managers”.

25.    The Applicants submit that the AAT has had regard to an incorrect ANZSCO description. There can be no doubt that this submission is correct; in fact, counsel for the Minister concedes this point.

22    His Honour noted at [34] that there were differences between the two versions of ANZSCO referable to Business Development Manager but that the description of the indicative skill level was exactly the same. His Honour noted that the tasks were different, in particular the tasks in the older version referred to “consulting with other managers” whereas the relevant version did not refer to “other managers”.

23    His Honour continued:

41.    Even though the AAT has reproduced the superseded (and therefore incorrect) version of the ANZSCO description, the AAT has had regard to the correct version of that description because it was contained in the submissions of the Applicants to which the Tribunal has given consideration.

42.    In any event, the description of the indicative skill level has not changed in either version. The specific finding of the AAT at paragraphs 25-28 bear out that the AAT has looked at the appropriate skill level of the First Applicant.

43.    The other changes made to the ANZSCO description can be properly described as changes in linguistics, style or jargon. The substance of the descriptions has not changed.

44.    Whilst it may have been an error to reproduce a superseded description, I am not of the view that such amounts to a jurisdictional error. The ANZSCO description is merely a guide. The AAT has found that the position was not a genuine one. That finding was not based upon use of the ANZSCO description as some form of checklist.

45.    That conclusion was based upon an examination of all of the material which disclosed that this particular business did not genuinely have a position of “business development manager”. In those circumstances, there is no jurisdictional error.

The grounds of appeal

24    The appellants relied on the following five grounds of appeal:

1.    The learned Federal Circuit Court judge erred in not finding that the tribunal failed to properly interpret and apply Reg 2.72 of the Migration Regulations 1994.

2.    The learned Federal Circuit Court judge erred in not finding that the tribunal’s decision was unreasonable.

3.    The learned Federal Circuit Court judge erred in not finding that the tribunal failed to properly conduct a review for the purpose of implementing Part V and/or ss 348 and 349 of the Migration Act 1958.

4.    The learned Federal Circuit Court judge erred in not finding that the tribunal failed to take relevant considerations into account.

5.    The learned Federal Circuit Court judge erred in not finding that the tribunal took irrelevant considerations into account.

submissions of the parties

25    The appellants handed a comparison table of the correct and superseded versions of ANZSCO during the course of the hearing before me. The accuracy of this document was not challenged by the Minister. That table was as follows:

(Appellant’s emphasis.)

26    In the same document handed up in the hearing, the appellants submitted:

A key aspect is the use of the word ‘implementation’ in ‘directing the …implementation’ in all of the tasks, which recognise some hands on function. The new definition is broader. Mangers [sic] don’t predominately sit in their offices any more. The incorrect definition is more mechanical, the new correct definition is broader, more customer focused in a customer relationship sense, less specialised, less compartmentalised.

27    In summary, the appellant contended that the failure to take into account the correct, updated version of ANZSCO resulted in the following errors by the Tribunal:

    The Tribunal misinterpreted reg 2.72 of the Regulations.

    The decision of the Tribunal was unreasonable.

    The Tribunal failed to conduct a review in accordance with the regulations

    The Tribunal failed to take into account a mandatory relevant consideration.

    The Tribunal took into account irrelevant considerations.

28    The appellants further noted that the correct version of ANZSCO had been provided to the Tribunal, as it appeared in the appellants’ written submissions before the Tribunal, however it was ignored by the Tribunal.

29    The Minister submitted, in summary, that:

    The Tribunal affirmed the delegate’s decision because it was not satisfied that the nominated position was genuine, in light of the contract of employment which listed the duties, the description of the nominee’s work and duties provided by the first appellant, and the representative’s submissions regarding the duties in the context of the ANZSCO duties;

    The Tribunal properly used the ANZSCO as a guide to whether the position was genuine

    The Tribunal did have regard to the correct version and properly applied it as a guide and not a checklist

Consideration

30    At the hearing Counsel for the appellants submitted that the grounds of appeal before the Court “coalesced”. However, it was also apparent that the key issue on which the parties focussed their arguments concerned the consequences of the Tribunal’s reference to the previous (incorrect) version of ANZSCO in makings its nomination decision of 19 October 2016. The appellants further contended that, if the Court quashed that nomination decision because of jurisdictional error, it necessarily followed that the Tribunal fell into jurisdictional error in making the visa decision, and therefore the visa decision should also be quashed. These contentions were put to the Court in relation to all grounds of appeal.

Ground of appeal 1

31    In relation to the first ground of appeal the appellants claimed, in particular, that the Tribunal failed to properly interpret and apply Reg 2.72 of the Regulations because the Tribunal relied on an outdated version of the ANZSCO criteria.

32    Section 140GB of the Migration Act establishes a scheme whereby an approved sponsor for a subclass 457 (Temporary Work (Skilled)) visa may nominate an applicant in relation to, inter alia, a proposed occupation, and the Minister may approve that nomination:

Minister to approve nominations

(1)    An approved sponsor 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; or

(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 an approved sponsor's nomination if:

(a)    in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and

(b)    in any case--the prescribed criteria are satisfied.

(3)    The regulations may establish a process for the Minister to approve an approved sponsor's nomination.

(4)    Different criteria and different processes may be prescribed for:

(a)    different kinds of visa (however described); and

(b)    different classes in relation to which a person may be approved as a sponsor.

33    Division 2.17 of the Regulations applies to persons who are standard business sponsors or parties to work agreements or temporary work sponsors. Regulation 2.72, which falls within Division 2.17, applies to standard business sponsors or parties to work agreements who, under paragraph 140GB(1)(b) of the Act, have nominated an occupation in relation to a holder of a subclass 457 (Temporary Work (Skilled)) visa. The criteria in respect of which the Minister must be satisfied for the Minister to approve a nomination are set out in reg 2.7(3)-(12). Materially for present purposes at the relevant time reg 2.72 provided:

Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

Application of this regulation

(1)    This regulation applies in relation to a person who is:

(a)     is a standard business sponsor;
(b)    or 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).

(3)    The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)    The Minister is satisfied that the person is:

(a)     a standard business sponsor; or

(b)     a party to a work agreement (other than a Minister).

(5)    The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nomination occupation.

(6)    

…

(9)     The Minister is satisfied that either:

(a)     there is no adverse information known to Immigration about the person or a person associated with the person; or

(b)     it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

…

(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-digite code specified by the Minister in an instrument in writing for this paragraph; and

…

(e)    if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)    the tasks of the position include a significant majority of the tasks of

(A) the nominated occupation listed in the ANZSCO; or

(B) the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)     …

(iii)     …

(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A) For the occupation in the ANZSCO; or

(B) …

(f) the position associated with the nominated occupation is genuine; and

…

34    The interplay between the requirement of “genuineness” in reg 2.72 (10)(f) and the ANZSCO criteria, and relevant authorities, were recently examined by Moshinsky J in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779. In that case the visa appellant had challenged the decision of the Tribunal, alleging that the Tribunal had not taken into account the description of relevant duties under the whole of ANZSCO relevant to the particular position. His Honour commented:

43.    A substantial body of case law has considered the meaning of the phrase “the position associated with the nominated occupation is genuine”, which features as a criterion for the grant or cancellation of a visa in cl 457.223(4)(d)(ii) of Sch 2, and in regs 2.43(1)(kb)(iii) and 2.72(10)(f), of the Regulations.

44.    In Cargo First, Judge Smith explained that the expression “the position associated with the nominated occupation is genuine” cannot be understood without reference to the statutory context, including the extrinsic materials accompanying the relevant legislative amendments (at [21]-[22]). His Honour noted that the relevant provisions of the Migration Act 1958 (Cth) (the Act) and the Regulations were introduced “to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents” (at [23]).

45.    Consistently with that purpose, Judge Smith observed that: “the introduction of a ‘genuineness test’ to be conducted by departmental officers [was] to ensure that the position associated with the nominated occupation is genuinely required to address skilled shortages in Australia” (at [24]); the scheme gives the Minister “the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s 140AA of the Act” (at [27]); accordingly, consideration of whether the position associated with the nominated occupation is genuine involves “a determination 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” (at [30]); and this analysis “necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor” (at [30]).

46.    As noted above, an appeal from Judge Smith’s decision was dismissed: Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87. Consistently with the explanation of the scheme given by Judge Smith, Flick J observed on appeal that reg 2.72(10)(f) (equivalent to cl 457.223(4)(d)(ii)) entrusts to the Minister the responsibility of being satisfied that the position is genuine, and that the word ‘genuine’ “invites factual inquiry as to whether the ‘position’ is ‘real or true’” (at [23]). The decision of Judge Smith in Cargo First has been applied in Khan v Minister for Immigration and Border Protection [2016] FCA 877 and Bakri v Minister for Immigration and Border Protection [2016] FCA 396.

35    His Honour noted as “unsurprising” that the Tribunal would focus on the detailed tasks in ANZSCO distinguishing the specific occupation of Customer Service Manager from other occupations within the broad group of ANZSCO. However his Honour also noted that ANZSCO itself states that it provides “only a guide” to the tasks undertaken and the skills involved in various occupations, and accordingly it was open to the Tribunal to conduct the evaluative judgment required of it (at [53]).

36    The decision of Judge Smith in Cargo First Pty Ltd v Minister for Immigration [2015] FCCA 2091 is also of interest to the extent that the nominated occupation in that case was “Sales Manager”. In that case, his Honour noted the approach of the Tribunal that

[9]… the relevant issue was whether the position associated with the nominated occupation was genuine as required by sub-reg.2.72(10)(f). It suggested to Mr Zhao that it considered sales and marketing managers to be a specialist managerial position who, in conjunction with other specialist managers such as human resource managers or operations managers would manage a larger enterprise and report to a general manager. It said that while it accepted that Mr Zhao performed sales and marketing duties, it did not accept that he performed the duties of a specialist sales and marketing manager.

37    The Tribunal, however, was not satisfied in that case that the sales and marketing manager position associated with a nominated occupation was genuine.

38    Judge Smith observed:

21.    The word “genuine” is an ordinary English word meaning real or authentic. Thus, at first blush, the question is whether the position is real or authentic. However, the word “position” is qualified by the phrase “associated with the nominated occupation”. That qualification is not immediately comprehensible without reference to the context in which it is found. As will be seen, the focus of the statutory provisions relating to the grant of and sponsorship of applications for work visas is on classes of occupations in the first instance rather than on any specific position.

22.    The statutory provisions relating to sponsorship appear in div.3A of the Act. That division was introduced by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (Cth). The explanatory memorandum circulated by the Minister in relation to that Act noted that sponsorship was an important and integral element in providing for the entry of persons into Australia and that it has a vital role to play in protecting the Australian community from the costs and risks associated with the stay of non-citizens in Australia.

23.    Section 140AA of the Act (introduced together with s.140GB by the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)) provides that one of the purposes of div.3A is to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents.

24.    Consistently with that purpose, sub-reg.2.72(10)(f) was added (by Migration Legislation Amendment Regulation 2013 (No. 3)) in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia: Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146 issued by the Minister for Immigration and Citizenship.

39    In respect of the identification of the ANZSCO criteria required by sub-reg 2.72 (10)(aa) his Honour observed:

26.    The importance of the identification of the occupation nominated by the applicant is highlighted by sub-regs.2.72(8A) and 2.72(10)(aa). The first of these, as noted above, requires the Minister to be satisfied that there is a six digit ANZSCO code for the nominated occupation and the name of the occupation to be included as part of the nomination. The second of these requires the nominated occupation and its corresponding six digit code to correspond to an occupation and its corresponding six digit code specified by the Minister in an instrument in writing for the purposes of the paragraph.

27.    These requirements are evidently aimed at giving the Minister the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s.140AA of the Act. The Minister has made instruments for the purposes of this regulation specifying occupations and other matters and giving the relevant ANZSCO code in respect of each occupation: see IMMI 13/066 (which applied at the time of the application for nomination) and its replacement IMMI 14/048.

40    His Honour then continued:

30.    With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.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 really is 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. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.

(Emphasis added.)

41    Like the primary Judge in the appeal before me, I have found cause to pause in respect of the submission of the appellants that the Tribunal was led into jurisdictional error by taking into consideration the incorrect version of ANZSCO in respect of the occupation of “Sales and Marketing Manager”. Ultimately, however, and unlike his Honour, I am persuaded that Tribunal’s reliance on the outdated version of the ANZSCO position description did fatally infect its decision because, in so relying, the Tribunal misapplied reg 2.72 (10)(f). I have formed this view for the following reasons.

42    First, it is apparent that the Tribunal throughout its decision confused the two versions of ANZSCO referable to the relevant position description. The Minister submits that the Tribunal incorporated the appellants’ submissions in respect of the ANZSCO description, and this is so. I note, for example, paragraph [16] of the Tribunal’s decision where the Tribunal refers to “The Position as Business Development Manager for the business” and the bullet point which follows referring to “directing the development and implementation of sales strategies and setting sales targets in order to maximising [sic] an organisation’s sales and customer loyalty”. However, while at [29] the Tribunal “noted the representative’s submissions contained an extract of the ANZSCO duties, which also appears earlier in this decision”, the versions were plainly confused by the Tribunal. The Tribunal did not misunderstand the terms of the ANZSCO code – it did, however, consider the wrong version in its deliberations of the genuineness of the position. I am not satisfied that the mere incorporation of the bullet pointed paragraph at [16] by the Tribunal meant that the Tribunal had meaningfully had regard to the correct version of ANZSCO.

43    Second, as was made clear in such authorities as Pasricha and Cargo First, the evaluative judgment on the part of the decision-maker – in determining whether the position associated with the nominated occupation is genuine – requires analysis of the material before the decision-maker to assess whether the position exists, and whether it really is what it purports to be.

44    His Honour found that the “ANZSCO description is merely a guide”; further, the Minister submits that two separate and independent bases supported the Tribunal’s conclusion concerning genuineness, namely:

    The qualitative analysis of the Tribunal and

    The nominee’s duties were to be carried out at skill level 1, and therefore the nominated position was not genuine.

45    In respect of these points, I note as follows:

    While the ANZSCO criteria are a guide to be taken into account in the evaluative exercise on the part of the decision-maker, it is clear from the terms of reg 2.72 (and in particular the reference throughout that regulation to the ANZSCO criteria) that ANZSCO is a guide to which the decision-maker can, and should, ascribe considerable weight. The ANZSCO code is not, for example, comparable in this respect with material such as “Departmental Procedural Advice Manual” (PAM3), an internal departmental policy document the subject of consideration in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 1142 FCR 43 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; (2015) 236 FCR 148.

    From the perspective of proper interpretation of reg 2.72, and in the interests of fairness to visa applicants, it is appropriate that the Tribunal gives consideration to the correct version of the ANZSCO code in its deliberations.

    As the appellants submitted, the correct version of ANZSCO relating to the nominated position included such tasks as maximising an organisation’s sales and customer loyalty, promoting an organisation’s goods and services to as many people as possible, directing the development and implementation of strategies to generate increased consumption of goods and services through the creation and reinforcement of “brand image” or “brand loyalty”, and building and maintaining an organisation’s image and reputation with its customers. These tasks did not appear in the incorrect version of ANZSCO, and did not appear to be considered by the Tribunal in its assessment of whether the nominated position in this case was genuine. The Tribunal referred to the activities of the first appellant in providing quotes to potential customers, however not in light of the guidance in the correct ANZSCO code.

    I am not persuaded that the Tribunal’s evaluation of whether the nominated position was “genuine” can be disassociated from the Tribunal’s consideration of the wrong version of the ANZSCO code, as the Minister seems to submit. Rather, the ANZSCO code informed the Tribunal’s consideration, and in this respect the Tribunal was guided by incorrect considerations in reaching its decision.

    Further, to the extent that the Tribunal made findings relating to the to the skill level required of the tasks to be performed by the first appellant, those findings must have been referable to incorrect criteria in the older version of ANZSCO.

46    I note that the Tribunal was particularly influenced in its decision by the size of the sponsoring business, and that a sales and marketing manager is a specialised manager position, normally to be found in a much larger organisation which might have other specialist managers (at [33]). While this finding may referable to the merits of the Tribunal’s decision, it also appears grounded in the statement in the older version of ANZSCO concerning “consultation with other Managers”, rather than on the tasks contemplated by correct version of ANZSCO.

47    The Minister submits that, ultimately, the factual finding by the Tribunal that the relevant position was not “genuine” answers the appellants’ complaints. I accept that the Tribunal was correct in its general approach to assessing the genuineness of the relevant position by having regard to whether the position was necessary, by taking into account the description of the position in ANZSCO. However a finding of “genuineness” of a position is not one to be made in isolation – as Judge Smith explained in Cargo First it is qualified by the phrase “associated with the nominated occupation”, and the character of the “nominated occupation” in this case was informed by the ANZSCO criteria to which the Tribunal purported to have regard. In the present circumstances the Tribunal’s decision was informed by incorrect ANZSCO criteria. I am unable to come to any conclusion other than that this process resulted in an error which went to the jurisdiction of the Tribunal.

48    The High Court explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 that judicial review of administrative decisions should not be conducted with an eye attuned to the perception of error. In this case, however, I am satisfied that the Tribunal did not properly interpret and apply reg 2.72, and its determination that the requirements of reg 2.72(10)(f) were not met was tainted by jurisdictional error. To the extent that this error also caused the Tribunal to incorrectly apply reg 2.72, I am satisfied that the appellants succeed in respect of the first ground of appeal.

Remaining grounds of appeal

49    Because the appellants have been successful in respect of the first ground of appeal, it is strictly unnecessary for me to consider the remaining grounds. Again I note the submission of Counsel for the appellants in respect of the “coalescence” of grounds of appeal (transcript page 20 line 46), and the consequent absence of substantive submissions directly addressing other aspects of the appeal. I note further that, while grounds 2 and 3 were not specifically abandoned by the appellants, they were not vigorously pressed. On even a cursory examination of the material before the Court this is not surprising – it is difficult to identify how the decision of the Tribunal could be considered to be unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332, or how the Tribunal failed to properly conduct a review within the meaning of the Migration Act.

50    However to the extent that the Tribunal took account of an incorrect version of ANZSCO it does appear that the Tribunal was influenced by irrelevant considerations. As the Full Court observed in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 123 FCR 93 at [43]:

Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations, and because of that misconstruction he considers that the criteria has not been satisfied, it is as though he did not consider the criteria at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask. In such a case, absence s 474, the Minister’s decision would be a nullity. The Minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.

51    It is not necessary for me to make any conclusive findings in relation to whether the Tribunal failed to take into account mandatory relevant considerations in this case.

Consequences for the visa decision

52    At the hearing of the appeal, I made further case management orders for the parties to file further written submissions in the following terms:

1.     By 4.00 pm on 15 June 2018, the Minister file and serve supplementary submissions of no more than five pages, limited to the question of whether the decision of 4 November 2016 should also be quashed as a consequence if the Court quashes the decision of 19 October 2016.

2.     By 4.00 pm 2018, the applicant file and serve supplementary submission of no more than five pages, limited to the question in Order 1.

53    In his supplementary submissions, the Minister submitted that, even in the event that the nomination decision were infected by jurisdictional error, it would be necessary nonetheless for the appellants to demonstrate a jurisdictional error in the visa decision itself, and it would not be possible for the Court to infer jurisdictional error in that second decision. The Minister noted that the appellants raised no grounds of appeal in respect of the visa decision – the grounds of appeal were directed solely to establishing that there was error in the nomination decision.

54    The Minister further submitted that the effect of a finding that the nomination decision was affected by jurisdictional error did not have the effect that the first appellant was then subject to an approved nomination. To the contrary, in such event the first appellant would continue to fail to satisfy the requirement that she was the subject of an approved nomination.

55    However, in my view it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:

    Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. This was explained by the Tribunal itself in the visa decision at [12] and [16]. Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker – see cl 457.223(4)(a).

    As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made – being relevant in these circumstances to the employment of the first appellant by the Trust.

56    I further consider that there is no prejudice to the Minister in the failure of the appellants to include a specific ground of review pertaining to whether the visa decision was affected by jurisdictional error. The orders sought by the appellants clearly indicated that they were seeking remedies in respect of both the nomination decision and the visa decision, which is unsurprising given the inextricable link between the outcome of the nomination decision and the 457 visa criteria. In any event, the Minister has been given ample notice of, and indeed an opportunity to provide further written submissions relating to, this issue.

57    It follows that, in the present circumstances, the finding of jurisdictional error in respect of the nomination decision necessarily means that the visa decision cannot stand.

Conclusion

58    The appellants have sought orders that both decisions be quashed. In light of my findings concerning the nomination decision, it follows that the appellants are entitled to the orders they have sought, including costs.

Associate:

Dated:    23 November 2018