Federal Court. Was it legally unreasonable for the Tribunal to refuse to wait for the outcome of merits review concerning the nomination of a position relating to a subclass 457 visa application before reviewing a decision to refuse to grant the subclass 457 visa?
The Federal Court (FCA) described the facts as follows:
4 As I will explain in more detail below, on 21 June 2017, the Administrative Appeals Tribunal decided to affirm the decision of the delegate of the Minister made on 5 August 2015 but only notified on 16 February 2016 that had refused to grant visas to Mr KC and his family (the visa decision). On 1 May 2019, the Tribunal (differently constituted) affirmed the delegate’s decision not to approve, under s 140GB(1)(b) of the Migration Act 1958 (Cth), the College’s nomination as Mr KC’s sponsor for his visa (the nomination decision).
9 The appellants are citizens of Nepal. On 11 March 2015, they applied for the visas. In the application, Mr KC identified his sponsoring employer as No 1 Pest Control Pty Ltd.
10 On 22 April 2015 and 23 June 2015, the Minister’s Department wrote to Mr KC informing him that No 1 Pest Control did not have an approved nomination for him and that, since a criterion for the grant of the visa was that his prospective employer have an approved nomination, his application was unlikely to be successful. Subsequently, on 16 July 2015, Mr KC’s migration agentinformed the Department that No 1 Pest Control had sought review in the Migration Review Tribunal (MRT) of a delegate’s decision to refuse its nomination of Mr KC.
11 On 24 July 2015, the Department emailed the migration agent informing him that the decision on Mr KC’s application could not be delayed to await the MRT decision.
12 Initially, on 5 August 2015, the delegate refused to grant the visa. However, because the Department had not notified the appellants or their migration agent correctly, on 16 February 2016, the delegate re-notified the appellants of the decision to refuse to grant the visas. The delegate’s decision record found that, on 23 June 2015, the Department had refused the nomination application made by No 1 Pest Control and, accordingly, Mr KC did not meet the criterion in cl 457.223(4)(a) of Sch 2 in the Regulations.
13 On 4 March 2016, the appellants applied to the Tribunal to review the delegate’s decision.
14 On 3 November 2016, Mr KC gave evidence to the Tribunal at a hearing. On 8 November 2016, Mr KC emailed the Tribunal informing it that Australian Harvard International College was his new sponsor and attached an acknowledgement, from the Department to the College dated 2 November 2016, of the receipt of its nomination application.
15 On 9 November 2016, the Tribunal wrote to Mr KC informing him that, on 8 November 2016, the Tribunal had affirmed the decision not to approve No 1 Pest Control’s nomination in relation to him. The Tribunal gave Mr KC 14 days to respond to this information and the fact that, as a result, Mr KC could not rely on that sponsor to satisfy cl 457.223(4)(a).
16 On 10 November 2016, Mr KC replied to the Tribunal attaching again the acknowledgement in relation to the College’s application and its nomination of him to work as its sales and marketing manager.
17 On 2 June 2017, a delegate refused the College’s application under s 140GB of the Act in relation to Mr KC. The delegate referred to the then provisions of reg 2.72 and in particular reg 2.72(10)(f) that prescribed a criterion for the grant of an approved nomination that, where the applicant was a standard business sponsor, “the Minister is satisfied that … the position associated with the nominated occupation is genuine”. The delegate was not satisfied that the position of a sales and marketing manager was genuine when assessed against the ANZSCO Code 131112 requirements. ANZSCO is an acronym for the “Australian and New Zealand Standard Classification of Occupations” that is produced by the Australian Bureau of Statistics, as Perram J observed in Song v Minister for Home Affairs [2019] FCA 970 at [5]. The delegate noted that the College had provided information and documents about its proposed position for Mr KC. She was not satisfied that what the College proposed as Mr KC’s position met the nature of such arole in ANZSCO Code 131112 but, rather, suggested that the College’s job description was “very generic in nature” and appeared to describe a role at a lower level than that of a manager. The delegate found:
The role of Sales and Marketing Manager is typically associated with organisations operating within a competitive and complex business environment, with a significant number of staff, resources, services/product lines and client commitments. As indicated above, I have no irrefutable evidence before me to be satisfied that the tasks of the position will be performed at the skilled level of a Sales and Marketing Manager as specified in ANZSCO.
…
I also find it worthy to note that the nominee was previously nominated by another organisation in a different line of occupation since 2015 and was unsuccessful on a number of occasions. Given this history, the legitimacy of this position is questionable as I have concerns that the position may have been created to secure the stay of the nominee.
Based on all information before me, I am not satisfied the position is consistent with the tasks of the nominated occupation as listed in the ANZSCO when taken in the context of where the position is to be performed. I do not consider the position associated with the nominated occupation to be genuine, and the primary applicant does not meet subparagraph 2.72(10)(f).
(emphasis added)
18 The delegate accepted that Mr KC was working for the College in the position with the title of sales and marketing manager and that, operationally, it needed the work (as opposed to its capacity to meet the requirements of ANZSCO Code 131112) he was performing to be done.
19 On 5 June 2017, the Tribunal wrote to Mr KC informing him of the delegate’s refusal of the College’s nomination in relation to him. The letter invited Mr KC to respond within 14 days.
20 On 16 June 2017, Mr KC emailed the Tribunal attaching the College’s application to the Tribunal lodged on 14 June 2017 to review the delegate’s decision in relation to it and requested the Tribunal to defer its decision on his application until it decided the College’s.
21 As I noted at [4] above, subsequently, on 1 May 2019, the Tribunal made the nomination decision.
The FCA answered that question as follows: