Ink Group Pty Ltd v Immigration Review Tribunal [1995] FCA 260

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG155 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION )

BETWEEN: INK GROUP PTY LIMITED and ANOTHER Applicant

AND: IMMIGRATION REVIEW TRIBUNAL

Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 24 FEBRUARY 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application under the Administrative Decisions Judicial Review Act 1977 for review of a decision of the Immigration Review Tribunal constituted by Mr Steve Karas, Senior Member. The review concerned an application made by the first applicant, the Ink Group Pty Limited, as employer of the second applicant, James Alan Pugsley. It appears that Mr Pugsley is a British citizen. He arrived in Australia in November 1989 and was granted a temporary entry permit allowing him to stay in Australia until 14 October 1990. In about February 1990, he saw and answered an advertisement published by the Ink Group in the Sydney Morning Herald seeking applications for the position of a credit clerk. He was accepted for this position and has worked for the company ever since that date, having been promoted on a number of occasions. On 10 October 1990, shortly prior to the expiration of his temporary entry permit, the Ink Group made an employer nomination scheme application for Mr Pugsley to be granted permanent residence in Australia. That application was refused both at first instance and on internal review. The matter then went to the Immigration Review Tribunal and Mr Karas heard the matter late in 1993. During the hearing before Mr Karas, evidence was given by Mr Pugsley, and apparently also by one of the more senior officers in the company, as to the nature of the work which he undertook. It is unnecessary to go to the transcript in any detail but it is apparent from the transcript that Mr Karas was clearly informed that Mr Pugsley was doing more than clerical duties. Reference was made to the necessity for him to be in contact with clients regarding credit arrangements and to negotiate with clients as to payments of accounts, whilst at the same time retaining or attempting to retain their good will and future business. Reference was also made to his position as a staff supervisor. The position nominated in the employer nomination application as being the position occupied by Mr Pugsley and for which he was desired to be retained was "senior credit controller". A salary of $24,000 per annum was mentioned. The matter fell to be determined by Mr Karas pursuant to the Migration (1989) Regulations. Those regulations are no longer in force but they applied to this case because of the date upon which the application was made. It is unnecessary to go through the jungle of regulations in order to summarise all of the criteria which had to be satisfied before the grant of an employer nomination visa. It is sufficient to say that there were two additional criteria which are relevant to the present case: "51(1) The additional criteria in relation to an employer nomination visa are the following criteria: (a) the applicant is nominated, in accordance with the approved form, by an employer operating in Australia, for a specified position, or a position in a group of specified positions, sought to be filled by that employer, being: (i) a position that is to be filled on a permanent, full-time basis; and (ii)a position in respect of a highly skilled occupation; (b) ... (c) ... (d) the employer satisfies the Minister that it has not been possible to find a suitable applicant for the position in Australia;"