FEDERAL COURT OF AUSTRALIA Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30 Appeal from: Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091; (2015) 298 FLR 138 File number: NSD 1008 of 2015 Judge: FLICK J Date of judgment: 3 February 2016 Catchwords: MIGRATION – occupations nominated by Minister – application for a 457 visa – certification by sponsor that tasks of the position include significant majority of tasks of nominated position – certification of sponsor not conclusive – power of Minister to consider whether position is genuine PRACTICE AND PROCEDURE – leave to amend to raise a new argument – leave refused – proposed ground without apparent merit Legislation: Migration Act 1958 (Cth), ss 140GB, 140GB(1), 140GB(2) Migration Regulations 1994 (Cth), regs 2.72, 2.72(10), 2.72(10)(e), 2.72(10)(f) Cases cited: Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091, (2015) 298 FLR 138 Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550 SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 Date of hearing: 19 November 2015 Date of last submissions: 26 November 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 38 Counsel for the Appellant: Mr D Gration Counsel for the First Respondent: Mr J Knackstredt Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 1008 of 2015 BETWEEN: CARGO FIRST PTY LTD Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY MIGRATION REVIEW TRIBUNAL) Second Respondent JUDGE: FLICK J DATE OF ORDER: 3 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The name of the Second Respondent is changed to Administrative Appeals Tribunal. 2. Leave to amend the Notice of Appeal is refused. 3. The appeal is dismissed. 4. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK j 1 The Appellant corporation, Cargo First Pty Ltd ("Cargo First"), operates a Muffin Break franchise at the Garden City Shopping Centre in Mt Gravatt, Queensland. A director of Cargo First (Mr Zhao) and his wife are the owners of the company. 2 Mr Zhao seeks a Subclass 457 (Temporary Work (Skilled)) visa. 3 There are three stages involved in the processing of a 457 visa, namely: an application made by an employer to be an approved "standard business sponsor"; the nomination by the employer of an eligible occupation; and a visa application by the person nominated to work in the nominated occupation. It is the second of these three stages which is presently in issue. 4 Cargo First, having been previously approved as a standard business operator, applied in November 2013 to nominate the occupation of "Sales and Marketing Manager". 5 In February 2014 a delegate of the Minister refused that application for approval of a nomination. The delegate formed the view that Cargo First did not satisfy one of the prescribed criteria, namely reg 2.72(10)(f) of the Migration Regulations 1994 (Cth) (the "Migration Regulations"), which states that "the position associated with the nominated occupation is genuine". An application for review of that decision was filed with the former Migration Review Tribunal (the "Tribunal"). In January 2015 the Tribunal affirmed the delegate's decision not to approve the nomination. Like the delegate, the Tribunal also relied upon reg 2.72(10)(f). 6 An application for judicial review of the Tribunal's decision was then filed with the Federal Circuit Court of Australia. That Court dismissed the application in August 2015: Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091, (2015) 298 FLR 138. 7 A Notice of Appeal was filed in this Court later in August 2015. A Notice of objection to competency was filed in September 2015. 8 Although the case sought to be advanced on behalf of Cargo First significantly changed from the case advanced in its written submissions to the case it ultimately advanced orally, its argument (however expressed) is to be rejected. 9 The appeal is to be dismissed with costs. The need for approval – the legislative regime 10 The legislative provisions of relevance to the present dispute are within a limited compass. 11 Section 140GB of the Migration Act 1958 (Cth) (the "Migration Act") relevantly provides for the nomination by an "approved sponsor" of a "proposed occupation, programme or activity". That section also provides for the circumstances in which the Minister "must approve" a nomination. 12 Section 140GB provides as follows: 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. It is s 140GB(1)(b) and (2) which assume relevance. 13 The prescribed criteria of present relevance are set forth in reg 2.72(10) of the Migration Regulations. That regulation provides in part as follows: (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 (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 …; and (f) the position associated with the nominated occupation is genuine; … "ANZSCO" is a reference to the Australian and New Zealand Standard Classification of Occupations. 14 The position of "Sales and Marketing Manager" was an occupation listed in ANZSCO. Shifting sands 15 Written submissions were filed on behalf of Cargo First and the Respondent Minister in advance of the hearing of the appeal on 19 November 2015. 16 A fundamental question dividing the parties in those submissions was the correct construction of reg 2.72(10)(e) and (f) of the Migration Regulations. The gist of the written submissions filed on behalf of Cargo First was: to confine the ambit of operation of reg 2.72(10)(f), and the matters to be taken into account by those making a decision as to whether a position associated with a nominated occupation was "genuine", and to give greater prominence (if not conclusiveness) to the certification provided by the approved sponsor pursuant to reg 2.72(10)(e). The gist of the written submissions filed on behalf of the Respondent Minister was: to contend that it was the Minister who was required to be "satisfied" of those matters set forth in reg 2.72(10) and that the approach of Cargo First "conflated" the separate requirements set forth in reg 2.72(10)(e) and (f). This was, at the very least, the understanding of Counsel for the Respondent Minister of the issue to be resolved on the hearing of the appeal. 17 As the case was developed orally on behalf of Cargo First, however, it emerged that whatever may have been the "certification" provided by an "approved sponsor" for the purposes of reg 2.72(10)(e), Cargo First accepted that the Respondent Minister could "go behind" that "certification" and himself reach a state of satisfaction as to whether or not: there was in fact a "position" of the kind identified in the nomination; the person occupying that position was in fact required to undertake "tasks" of the kind set forth in ANZSCO; and the "tasks" required to be undertaken included a "significant majority" of the tasks set forth in ANZSCO. So much, it was accepted on behalf of Cargo First, was embraced by the need to be "satisfied" that the position associated with the nominated occupation was "genuine". Counsel for Cargo First shunned any suggestion that the "certification" provided by Cargo First necessarily dictated a conclusion by the Respondent Minister that the "position" was "genuine". 18 It is unnecessary to resolve whether or not reg 2.72(10)(f) has a wider ambit of operation and preserves an ability to "go behind" other aspects of a nomination that determine whether the position associated with a nominated occupation is "genuine". 19 That Cargo First accepted the Respondent Minister's ability to himself reach a state of "satisfaction" as to such matters was a fundamental departure from the argument advanced in the written submissions. Even an identification of those matters which Cargo First accepted as being within the purview of the Respondent Minister to himself independently consider in reaching his own state of "satisfaction" seemed to change throughout oral submissions. The case for Cargo First had all the hallmarks of shifting sands. 20 But that matters not. What matters is the acceptance on the part of Cargo First as to the ability of the Minister to himself reach his own "satisfaction" in respect to the matters set forth in reg 2.72(10)(e). 21 That shift in position substantially addressed the "point of principle" which the Respondent Minister sought to have vindicated in the present appeal. 22 The position ultimately adopted on behalf of Cargo First is, with respect, unquestionably correct. 23 Those factors which dictate the reservation to the Minister of the ability to "go behind" the assertions made by a sponsor and the reservation of an ability to reach a factual conclusion as to whether "a position associated with the nominated occupation is genuine" include: the fact that reg 2.72(10) entrusts to the Minister the responsibility of being "satisfied" of the matters thereafter set forth, a responsibility which would be significantly circumscribed if the need for the Minister to reach a state of satisfaction as to whether a position is "genuine" is itself determined by mere reference to a "certification" provided in accordance with reg 2.72(10)(e); the fact that reg 2.72(10) requires the Minister to be separately satisfied that both reg 2.72(10)(e) and (f) have been satisfied, each of the matters separately set forth in reg 2.72(10) being expressed as conjunctive (and not disjunctive) matters each requiring the satisfaction of the Minister; the very use of the term "genuine" in reg 2.72(10)(f), namely a word which of itself invites factual inquiry as to whether the "position" is "real or true" (The New Shorter Oxford English Dictionary (1993 ed.)); the object and purpose sought to be achieved by the legislative regime and the potential for that object and purpose to be frustrated if a sponsor could unilaterally seek to circumvent the constraints imposed by nominating only some occupations and not others by misrepresenting the duties to be performed by the visa applicant; and a presumed legislative intention not to compel the Minister to approve a nomination, namely the requirement that the Minister "must approve" a nomination (s 140GB(2)), by reference to factual assertions beyond his power to scrutinise. It would be an odd construction of s 140GB(2) to force upon the Minister a duty that he "must approve" a nomination by reference to a state of "satisfaction" dictated by uncontestable factual assertions made by a sponsor. Counsel for the Respondent Minister was correct in his submission that any contrary construction would impermissibly "conflate" reg 2.72(10)(e) and (f). 24 This conclusion, it may be noted, is consistent with other instances where there has been a factual inquiry as to whether a person in fact discharges the functions of a nominated occupation: e.g., Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550. 25 The like conclusion of the Federal Circuit Court Judge the subject of the present appeal was expressed as follows: [30] … 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. The appeal as recast 26 Having accepted a construction of reg 2.72(10)(e) and (f) which permitted the Respondent Minister (or the relevant decision-maker) to make his own assessment of whether the requirements of reg 2.72(10)(e) and (f) had been met, Counsel for Cargo First: further accepted that no challenge was made to the findings of fact as made by the Tribunal but nevertheless contended that: the reasons provided by the Tribunal exposed the fact that it had "asked itself the wrong question". At its most fundamental, the issue to be resolved on appeal as recast during oral submissions was whether the Tribunal had asked itself whether the tasks of the position included "a significant majority of the tasks" of the nominated occupation as set forth in ANZSCO. Rather than asking itself that question, Counsel for Cargo First contended that the Tribunal had been distracted into an inquiry (for example) as to whether or not Cargo First "had a genuine need for a general manager as well as [a] sales and marketing manager". The imperative to ask itself the right question was only reinforced, so it was contended, by reason of the Tribunal's acceptance that "sales and marketing are an important part of the success of the applicant's business". 27 To advance that argument as recast the Appellant required leave to amend the existing Notice of Appeal. Directions were thus made at the conclusion of the hearing on 19 November 2015 for the filing of any proposed Amended Notice of Appeal and for the filing of further submissions by both Cargo First and the Respondent Minister. Given the extent to which the sands of the appeal had already shifted, Counsel for the Respondent Minister prudently sought to confine Cargo First to a properly drafted ground of appeal and the opportunity to address that proposed re-drafted ground. 28 There is unquestionably power to grant an appellant leave to amend a Notice of Appeal to raise an argument not previously raised. But, even in the absence of prejudice to a respondent and even where a proposed new argument would not possibly have been met by further evidence had it been raised at an earlier point of time, the discretion may be exercised to refuse leave. The principles have recently been canvassed and outlined in SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [32] to [38] per Rares, Flick and Griffiths JJ. 29 Leave to amend is refused in the present case because the proposed new argument has no self-evident merit and does not otherwise warrant a favourable exercise of the discretion. 30 The inquiry which Cargo First contends the Minister or the Tribunal should have undertaken starts with the terms of ANZSCO. 31 Within the Classification of Occupations there set forth is relevantly what is described as "Sub-Major Group 13 Specialist Managers". Within that "Sub-Major Group" is included "Unit Group 1311 Advertising, Public Relations and Sales Managers". Within the rubric of "Unit Group 1311", a rubric within the category of "Specialist Managers", ANZSCO provides in part as follows: 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 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 32 Without challenging the findings of fact that were made by the Tribunal, Counsel for Cargo First contended that such findings as were made by the Tribunal expose its failure to make findings as to whether or not: the "tasks of the position" as set forth in Cargo First's application included (for example) the task of implementing strategies to generate increased consumption of its goods and services and the reinforcement of its "brand image" or "brand loyalty"; and such tasks were a "significant majority of the tasks" required to be undertaken. Rather than directing its fact-finding analysis to such matters, Counsel for Cargo First submitted that the Tribunal erroneously directed its attention to irrelevant lines of inquiry. 33 To expose these errors, Counsel for Cargo First placed particular emphasis upon paras [27] to [31] of the reasons for decision of the Tribunal. Those paragraphs provide in part as follows (without alteration): 27. … The Tribunal has had regard to the ANZSCO description of the duties of a sales and marketing manager. That description is referred to in the delegate's decision and the second migration agent's submissions as well as in the Survey. Consistent with the submissions of the second migration agent, the Tribunal has made reference to ANZSCO as a guide only … 28. Having regard to the balance of the evidence before it, the Tribunal is not satisfied that the sales and marketing manager position associated with the nominated occupation is genuine. The Tribunal places weight on the position description in the employment contract. The Tribunal places weight too on the evidence of Mr Zhao at the hearing that he performs all of the management duties of the applicant's business, including hiring and firing, payroll, rostering, training, dispute management, ordering as well as deciding how much and what to bake as well as his confirmation he performs the duties set out in the employment contract. The Tribunal considers these to be duties of the manager of a Muffin Break, not the duties of a sales and marketing manager. On the basis of the evidence before it, the Tribunal considers the duties of the nominated position are the duties of a manager of a Muffin Break. It accepts those duties include aspects of sale and marketing and that sales and marketing are an important part of the success of the applicant's business. The Tribunal accepts too Mr Zhao has in the past performed those sales and marketing duties well, as reflected in the evidence of Mr Zhao relative to the increased ranking of the applicant's business in Queensland amongst Muffin Break franchises and of achieving an award. … 30. … The Tribunal accepts Mr Zhao has in the past and intends in the future to perform duties relevant to sales and marketing as part of his position as the manger of a Muffin Break, but that does not satisfy the Tribunal the position associated with the nominated occupation is genuinely a sales and marketing manager. 31. The Tribunal too is not persuaded by the 22 October 2014 submission and the material in the Survey that Mr Zhao will in future perform the position of sale and marketing manager and that Ms Liu will perform the operational management of the applicant's business. The Tribunal noted above the new organisation chart in the Survey identifying Ms Liu in a new positon of general manager and Mr Zhang in a 'new' position as the sales and marketing manager. For the same reasons mentioned above in paragraph 28, the applicant can rely on the sales and marketing strategies of the franchise adjusted to the individual circumstances of the applicant's business. The Tribunal is not satisfied that there exists a genuine need for a general manager as well as sales and marketing manager. Supporting that finding is the evidence of Mr Zhang of the duties he has performed (including of a sales and marketing nature) in the past and that his performance of those duties was so successful, it resulted in the increased ranking of the applicant's business amongst Muffin Break franchises and achieving an award. 32. For the reasons set out above, the Tribunal finds the duties of the nominated position has been and will be the manager of a Muffin Break franchise, as set out in the employment contract. It finds those duties include some element of sales and marketing. Given the nature and size of the applicant's business as a franchisee of a Muffin Break and given too the wide range of duties of the nominated position which are not consistent the duties of a sales and marketing manager, the Tribunal is not satisfied the position associated with the nominated occupation is genuine. 33. For the above reasons, the Tribunal is not satisfied the position associated with the nominated occupation of sales and marketing manager is genuine. It follows that the requirements of r.2.72(10)(f) are not met. 34. As the Tribunal is not satisfied that the applicant meets all the applicable criteria for the nomination to be approved, the decision under review must be affirmed. … 34 Properly construed, it is not considered that the Tribunal asked itself the wrong question. The findings of fact made by the Tribunal were all means by which the Tribunal addressed the question of whether the position associated with the nominated occupation was "genuine". In testing whether or not that position was "genuine", the Tribunal looked at the question from a number of different perspectives, including (for example) the job description in the employment contract and the tasks in fact being undertaken. In assessing (inter alia) what was in fact required to be done and what was in fact done, the Tribunal concluded that the position was that of a manager and not that of a sales and marketing manager. In making that finding it was addressing the question, as it expressly acknowledged at the outset of para [28] of its reasons, as to whether the nominated position was "genuine". 35 Even if leave to amend were to be granted, there is no self-evident error in the Tribunal's reasoning leading to its conclusion that the position was not genuinely that of a sales and marketing manager. The proposed new argument sought to be raised by amendment lacks sufficient merit to warrant the grant of leave to amend. CONCLUSIONS 36 No appellable error has been exposed in the reasons for decision of the Federal Circuit Court Judge. Indeed, it is respectfully concluded that the construction of reg 2.72(10)(f) embraced by that Court is correct. 37 The name of the Second Respondent, presently named as the Migration Review Tribunal, should be amended to the Administrative Appeals Tribunal following the amalgamation of tribunals effected on 1 July 2015. 38 The appeal should be dismissed with costs. THE ORDERS OF THE COURT ARE: 1. The name of the Second Respondent is changed to Administrative Appeals Tribunal. 2. Leave to amend the Notice of Appeal is refused. 3. The appeal is dismissed. 4. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 3 February 2016