Federal Court of Australia

J & K Bown Pty Ltd as trustee for the Bown Family Trust v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 854

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application for extension of time to file a notice of appeal is dismissed.

3.    The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application for extension of time to file a notice of appeal which is brought pursuant to r 36.05 of the Federal Court Rules 2011 (Cth).

2    By its proposed appeal, the applicant seeks to set aside orders of the Federal Circuit and Family Court of Australia (Division 2) in J & K Bown Pty Ltd (Trustee) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 262.

3    In that case, the primary judge dismissed the applicant’s application for judicial review of a decision of the second respondent (Tribunal) which affirmed a decision of a delegate of the first respondent to refuse the grant of an employer nomination for permanent appointment.

4    At the hearing of the application, the applicant abandoned two of its proposed grounds for appeal. This left only one proposed ground of appeal which the applicant wished to rely upon if an extension of time was granted, namely:

The Court erred in law in failing to order that the Second Respondent committed an error of law, when it found that the Applicant did not satisfy the requirements of regulation 5.19(3)(e) of the Migration Regulations 1994.

5    For the reasons below, the proposed ground of appeal is devoid of merit and has no prospects of success. For this reason, the application for extension of time accepted for filing on 5 April 2022 is dismissed.

The application for extension of time

6    By application lodged on 31 March 2022, the applicant seeks an extension of time to file a notice of appeal pursuant to r 36.05 Federal Court Rules. It was common ground that, pursuant to r 36.03 Federal Court Rules, any notice of appeal was due to be filed on or before 21 March 2022.

7    The supporting affidavit of the applicant’s solicitor relevantly stated that:

(1)    the applicant was only able to provide instructions to the solicitors to file a notice of appeal on 18 March 2022 because the applicant’s business suffered from the floods;

(2)    on 21 March 2022, the applicant’s solicitors prepared and filed a notice of appeal under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by email;

(3)    on 22 March 2022, a Senior Legal Case Manager at the Federal Court of Australia’s Queensland Registry advised that the solicitors had filed an incorrect notice of appeal form;

(4)    the delay is merely procedural in nature and does not cause any prejudice to the first respondent and the Tribunal.

8    There was no evidence to explain the delay between 22 March 2022 and 31 March 2022, when the application was lodged. However, this fact was overtaken by what appeared to be accepted by counsel for the applicant as being the most significant obstacle to the applicant’s success – namely the merits of the proposed ground of appeal.

9    In BQQ15 v Minister For Home Affairs [2019] FCAFC 218, the Full Court stated at [33]:

The merits of the substantial application are to be taken into account in considering whether an extension [of time] is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

Tribunal’s decision

10    The issue before the Tribunal was whether the applicant met the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3) of the Migration Regulations 1994 (Cth). The applicant had nominated Mr Gurdeep Singh in the position of motor mechanic.

11    On 30 March 2020 and prior to delivery of its decision, the Tribunal sent a letter to the applicant via its migration agent. It stated that the Tribunal must be satisfied that all of the relevant criteria in reg 5.19 of the Regulations are met. It also stated that the relevant criteria are in regs 5.19(2) and (3) of the Regulations. The letter invited the applicant to provide updated and current information addressing these criteria, including:

Information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

12    The Tribunal’s letter referred to a “current employment contract in respect of the nominee or letter of engagement that complies with relevant awards for the nomination position (if any)” as an example of the type of information which could be provided.

13    In response to this letter, the applicant produced a copy its employment contract with Mr Singh but did not provide any evidence of the terms and conditions which would be provided to an Australian citizen doing the same work. For example, it did not provide any evidence which demonstrated that the employment contract complied with relevant awards for the nomination position.

14    As recorded in the Tribunal’s reasons, which events are not disputed, the Tribunal advised the applicant’s director during the hearing that there was very little market salary evidence before it. It advised the applicant’s director that the applicant needed to show that it was not underpaying the nominee compared to what the applicant would pay to an Australian citizen to do the same work. The applicant was given a further opportunity to file further material.

15    Following the hearing, the applicant’s representative emailed the Tribunal:

Our client informs us that the salary of Gurdeep Singh was decided on the base [sic] of his research from https://www.seek.com.au and also as advised by his previous migration agent.

16    On 21 September 2020, the Tribunal affirmed the delegate’s decision. Its decision included an analysis of the extent to which the applicant had failed to establish the criteria in reg 5.19(3)(e) of the Regulations.

17    This analysis appears in the following extract of the Tribunal’s reasons:

23.    Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

24.    At the hearing, Mr Bown stated that the applicant does not have an Australian citizen or permanent resident working in the position of Motor Mechanic at the present time. The Employment Contract dated 15 January 2020 provides that the applicant will pay the nominee a salary of $56,000 per year (equivalent to $1,076.92 per week), plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. The nominee is entitled to leave in accordance with the National Employment Standards.

25.    As the applicant has no Australian citizen or Australian permanent resident performing equivalent work to that to be performed by the nominee in the position, to enable the applicant to satisfy this requirement, it must establish the terms and conditions which would be provided to an Australian citizen or permanent resident to perform such work.

26.    There is no information before the Tribunal regarding the terms and conditions which would be provided to an Australian citizen or permanent resident to fill the position, particularly in relation to the salary which would be paid to such an employee. Mr Bown did make some references in his evidence to the issue of salary for a motor mechanic. When referring to the circumstances of his first employing the nominee in 2014, he said that it was difficult to find someone who was prepared to work for less than $2,000.00 per week.

27.    The Tribunal noted to Mr Bown that there was very little market salary evidence before the Tribunal and asked him what such evidence had been produced. He did not reply to the question directly but said that he did not think that the applicant could afford to pay a salary of $100,000.00 per year.

28.    The Tribunal advised Mr Bown that the applicant needed to show that it was not underpaying the nominee compared to what the applicant would have to pay to an Australian citizen to do the same work. The Tribunal advised him that this requirement was usually satisfied by producing evidence from websites such as PayScale or Seek as to the going rate for motor mechanics on the Gold Coast. The Tribunal advised him that time would be allowed after the hearing so that further material could be provided. At the conclusion of the hearing, the Tribunal advised Mr Bown that a period of 14 days would be allowed for the filing of further material. The Tribunal renewed its advice to Mr Bown that the applicant needed to provide evidence of the salary which would be payable to an Australian to fill the position.

29.    The only evidence produced to the Tribunal since the hearing in relation to this requirement is a submission from the representative which states as follows:

Our client informs us that the salary of Gurdeep Singh was decided on the basis of his research from https://www.seek.com.au and also as advised by his previous migration agent.

30.    The Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further submissions to support the application. The Tribunal has taken into account the following matters:

a.    That the Tribunal wrote to the applicant on 30 March 2020 in the following terms:

In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(2) and (3) of the Regulations.

The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide:

Information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location;

•    A current employment contract in respect of the nominee or letter of engagement that complies with relevant awards for the nominated position (if any).

b.    That, as set out in paragraph 28 above, the Tribunal clearly advised Mr Bown at the hearing of the information which was to be provided for this requirement to be satisfied.

31.    The Tribunal notes that, in response to the Tribunal's letter of 30 March 2020, the applicant produced a copy of the 2020 Employment Contract, but has provided no evidence of terms and conditions which would be provided to an Australian citizen or permanent resident doing the same work. On the evidence available, the Tribunal cannot be satisfied that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided, or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

(emphasis original)

The primary judge’s decision

18    On 20 October 2020, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

19    The applicant raised two grounds of appeal before the primary judge. Those grounds differ from the one now sought to be advanced if an extension of time is granted.

20    On 21 February 2022, the primary judge dismissed the application.

The merits of the proposed appeal

21    The applicant’s written submissions included the following:

24.    The focus for this hearing revolves around the information obtained for the employment conditions: salary offered and accepted, the fact that there was no one available to work in the position for the offered salary and the fact that the applicant was ready, willing, and able to accept the position nominated.

25.    Paragraph 42 of the Primary Judge’s reasons for judgement outlines that what ‘he [Mr Bown – Nominator] needed to give the Tribunal was evidence from websites such as PayScale, Seek as to what the going rate for a motor mechanic was on the Gold Coast.’

26.    The applicant today proposes that the jurisdiction proposed for such a PayScale and Seek salary analysis is too broad and does not reflect true market value. For example, a motor mechanic in Robina in 2017 could very well have returned a higher rate than the nominator’s location in Nerang in 2017. It is submitted that there are socioeconomic variables at play in each jurisdiction both in 2017 and pre, during and post COVID-19 times at present.

27.    Further to that, the comparative analysis on the jurisdictional scope of the Gold Coast is not conducive to market value. A business has the right to offer a position at a salary with benefits and leave entitlements that it can afford if the market allows for it and if there are individuals who are willing to accept the entitlements. That does not mean the entitlements would not be revisited as the contract for employment progresses.

28.    The applicant nominator was working in a market where the value he could offer was accepted by a willing, able and qualified participant namely the nominee.

29.    It is the position of the applicant that the information outlined by the nominator outlining the offered and accepted employment conditions should have been accepted by the department and 5.19(3)(e) of the Migration Regulations 1994 deemed met during the subjective analysis of the regulation.

22    It was therefore the applicant’s submission that reg 5.19(3)(e) of the Regulations was satisfied by the tender of the employment contract and that it was a jurisdictional error for the Tribunal to not be so satisfied and to require further evidence.

23    However, the fact that the applicant was willing to employ Mr Singh on certain terms and conditions as contained in the employment contract (and that Mr Singh was willing to be employed on that basis and to accept those terms and conditions) does not and cannot, on its own, demonstrate that such terms and conditions are no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location. That is because such evidence does not establish any comparator with what is or would be offered to an Australian citizen in the manner required. To contend otherwise is to advance an argument which is doomed to fail on any appeal.

24    In oral submissions, the applicant’s counsel submitted that the highest that the position could be advanced was that “reliance on seek.com, on PayScale, and the geographical location of the Gold Coast was the [legal] error. Because seek.com.au and payscale.com.au are an advertisement alone … Anyone can put an advertisement on for a position. There’s zero constraints in terms of the advertisements alone as to how much can be offered in terms of salary”.

25    However, this submission is misconceived and any ground of appeal premised on this submission has no prospects of success. The applicant seeks to assert a jurisdictional error by the Tribunal because the latter sought to assist the applicant by making suggestions as to how the applicant might be able to satisfy the criteria in reg 5.19(3)(e). This is done in circumstances where the applicant, who had a migration agent, bore the onus of satisfying the relevant criteria (which its counsel accepted) and the applicant did not take up the Tribunal’s suggestions as to how it might demonstrate that reg 5.19(3)(e) was satisfied.

26    During the hearing, the applicant’s counsel referred to an award that was published by the Fair Work Ombudsman in 2017, but which was not sought to be tendered and which the applicant’s counsel accepted might not be the correct award. In any event, this award was not in evidence before the Tribunal and was not provided to the Tribunal following its letter dated 30 March 2020. Assuming it is the correct award, the applicant cannot rely on it in this Court to show that it met the criteria under reg 5.19(3)(e) as this would be asking this Court to undertake an impermissible merits review.

Conclusion

27    For these reasons, the application by the applicant for an extension of time is dismissed.

28    No submissions were made by the applicant against the orders sought by the first respondent relating to the change of its name and the proposed costs order. In this regard, the amount referred to in paragraph 40 of the first respondent’s submissions is adopted as being the appropriate amount to be fixed by way of costs – namely $5,000.00.

Associate:

Dated:    22 July 2022