FEDERAL COURT OF AUSTRALIA Song v Minister for Home Affairs [2019] FCA 970 Appeal from: Song v Minister for Home Affairs [2018] FCCA 3187 Cleansurance Australia Pty Ltd v Minister for Home Affairs [2018] FCCA 3186 File numbers: NSD 2169 of 2018 NSD 2171 of 2018 Judge: PERRAM J Date of judgment: 21 June 2019 Catchwords: MIGRATION – appeals from Federal Circuit Court – application for nomination of proposed occupation and related application for Temporary Business Entry (Class UC) ('457') visa – where Minister and Tribunal found nomination of occupation not genuine – where Tribunal found Migration Regulations 1994 (Cth) reg 2.72 required nomination to refer to six digit ANZSCO code and not four digit code as appellants submitted – whether Federal Circuit Court erred in not finding that Tribunal fell into jurisdictional error MIGRATION – consideration of submission by first respondent that, if appeal on nomination of proposed occupation allowed, visa appeal would still need to be dismissed PRACTICE AND PROCEDURE – where application made during hearing for leave to amend grounds of appeal to include jurisdictional error in respect of Tribunal's comments as to truthfulness of appellants – where grounds not raised in Federal Circuit Court – leave refused at appeal hearing – reasons for refusal Legislation: Migration Act 1958 (Cth) s 140GB Migration Regulations 1994 (Cth) reg 2.72 Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 (Cth) Cases cited: Commissioner of the Australian Federal Police v Oke [2017] FCAFC 94; 159 FCR 441 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Mora v Minister for Immigration and Border Protection [2018] FCA 1819 Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 Tahla v Minister for Immigration and Border Protection [2015] FCAFC 115; 235 FCR 100 Date of hearing: 20 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellants: Mr A Munro Solicitor for the Appellants: Turner Coulson Immigration Lawyers Counsel for the First Respondent: Mr D A Hughes Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 2169 of 2018 BETWEEN: JIHWANG SONG First Appellant SOJIN YOU Second Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent NSD 2171 of 2018 BETWEEN: CLEANSURANCE AUSTRALIA PTY LTD Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRAM J DATE OF ORDER: 21 JUNE 2019 THE COURT ORDERS THAT: 1. The appeals be dismissed. 2. The appellants pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 These are two appeals from decisions of the Federal Circuit Court: Song v Minister for Home Affairs [2018] FCCA 3187 and Cleansurance Australia Pty Ltd v Minister for Home Affairs [2018] FCCA 3186. Mr Song is a citizen of the Republic of Korea who, on 1 September 2015, applied for a Temporary Business Entry (Class UC) (Subclass 457) visa ('457 visa'). His wife, Ms You, was included on the application as a member of the family unit. It was a requirement for this visa that the applicant for it should be sponsored by an employer and that the sponsorship application should, at the time of the application, have been approved by the Minister. At the relevant time, this requirement was contained in cl 457.223 of Sch 2 to the Migration Regulations 1994 (Cth) ('the Regulations'). Mr Song nominated Cleansurance Australia Pty Ltd ('Cleansurance') as his sponsor on the application form. Cleansurance was proposing to employ him as its web administrator. 2 On 14 December 2015, Cleansurance applied to the Minister for approval to nominate Mr Song for the position of web administrator under s 140GB of the Migration Act 1958 (Cth) ('the Act') ('The Minister must approve a person's nomination if …'). In order for the nomination to be approved by the Minister (or, as in this case, the Minister's delegate), it was necessary for Cleansurance to satisfy the delegate at the time that the decision was made of the numerous matters set out in reg 2.72 of the Regulations. This was because s 140GB(2)(b) of the Act required the Minister to be satisfied that the 'prescribed criteria' had been met before approving the nomination and because reg 2.72(2) expressly said that reg 2.72 contains the prescribed criteria for the purposes of s 140GB(2)(b). 3 Only three of these criteria are relevant for present purposes. The first is that the Minister must be satisfied, inter alia, that 'the position associated with the nominated occupation is genuine': reg 2.72(10)(f). Regulation 2.72(10)(f) and the nominated occupation of web administrator are factually central to these appeals because neither the delegate nor the Administrative Appeals Tribunal ('the Tribunal') on review was satisfied that the proposed position as Cleansurance's web administrator was 'genuine' within the meaning of reg 2.72(10)(f). 4 The second is that the Minister must be satisfied (relevantly) that the sponsor has provided with its application the title of the nominated occupation and, if there was one, the ANZSCO code for that occupation. This requirement emerges from Reg 2.72(8A)(a): 2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa … (8A) If the nomination is made on or after 1 July 2010—the Minister is satisfied that the person has provided the following information as part of the nomination: (a) if there is a 6‑digit ANZSCO code for the nominated occupation—the name of the occupation and the corresponding 6‑digit ANZSCO code … 5 The Full Court explained the nature of ANZSCO codes in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; 235 FCR 100 ('Talha') at 105 [17] per Griffiths, Mortimer and Beach JJ. 'ANZSCO' is an acronym for the Australian and New Zealand Standard Classification of Occupations and is produced by the Australian Bureau of Statistics. The ANZSCO contains a listing of all of the occupations in the Australian and New Zealand job markets (including the self-employed). Each 'occupation' is identified by means of a six digit code. For example, a judge is 271211. 'Occupations' are then grouped together into more generalised clusters known as 'unit groups' which are given a four digit code. For example, a judge is in the 'judicial and other legal professionals' unit group with code 2712. Unit groups are in turn grouped into clusters known as 'minor groups' which are identified by a three digit code. For example, judicial and other legal professionals fall under the 'legal professionals' minor group with code 271. Minor groups are clustered together into 'sub-major groups' which are identified by a two digit code. For example, legal professionals fall within the 'legal, social and welfare professionals' sub-major group, code 27. Sub-major groups are clustered together in 'major groups' identified by one digit code. As a final example, legal, social and welfare professionals fall within the 'professionals' major group, with code 2. The occupations, it will be seen, lie at the most granular level of the hierarchy and describe actual jobs. 6 Regulation 2.72(8A)(a) is relevant in these appeals not to any factual argument, but to a legal argument about how the ANZSCO code is to be approached by a decision maker. Although the delegate did not regard it as necessary to consider this aspect of the matter, the Tribunal on review concluded that this criterion had been satisfied, that is to say, that Cleansurance had provided the occupation (web administrator) and the six digit code for that occupation (313113). 7 The third relevant criterion is that the Minister must be satisfied that the nominated occupation and six digit ANZSCO code can be found on the list of occupations in respect of which the Commonwealth is presently willing to grant 457 visas. This requirement is contained in reg 2.72(10)(aa): (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 … 8 The relevant instrument at the time of Cleansurance's application was a legislative instrument entitled Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 (Cth) ('the Instrument'). Item 182 in s 8 of the Instrument included the occupation of web administrator with the ANZSCO code 313113. Again, the relevance of reg 2.72(10)(aa) is not to any factual issue but rather to the legal argument which Cleansurance wishes to mount about ANZSCO codes. The Tribunal was satisfied that this criterion had been met (although the delegate did not consider the issue). 9 The delegate decided Cleansurance's nomination approval application on 8 March 2016. Cleansurance's application for approval of its nomination for Mr Song was refused because the delegate was not satisfied that Cleansurance was really hiring Mr Song as a web administrator or, to put it more formally, it was not satisfied that the position of web administrator was genuine. Consequently, the criterion in reg 2.72(10)(f) could not be satisfied and the delegate was bound to refuse the application. The delegate thought that the position of web administrator was typically found in two kinds of employers viz businesses operating in the IT area, or in large scale operations with significant financial turnover. The material before the delegate suggested that Cleansurance was neither of these, and was instead a modest cleaning company with a small number of employees. Consequently, the delegate did not accept that it genuinely needed a web administrator. 10 Because the delegate had refused Cleansurance's application for approval as a nominated sponsor, it followed that Mr Song did not satisfy the requirement that he be sponsored by an approved sponsor. Consequently, the delegate refused Mr Song's application for the associated visa on 7 April 2016. 11 Both Cleansurance and Mr Song were entitled to apply to have their decisions reviewed on a full merits basis by the Tribunal. Cleansurance applied for such a review on 23 March 2016. Mr Song applied for his review slightly later on 27 April 2016. Both review applications were heard on 20 March 2018 by the same Tribunal member. Both Cleansurance and Mr Song were represented. 12 The Tribunal reserved its decision in both matters. It affirmed the delegate's decision in respect of Cleansurance's nomination application on 9 April 2018. The Tribunal then invited Mr Song, in respect of his visa decision review application, to comment on that adverse decision, as well as additional potential adverse information, on 12 April 2018. The Tribunal later affirmed the delegate's refusal of Mr Song's visa application on 24 May 2018. The Tribunal affirmed the delegate's nomination decision because it concluded that the position to be sponsored by Cleansurance was not genuine. The Tribunal thought that Cleansurance's application was 'contrived to secure a favourable migration outcome for the nominee'. There were a number of reasons for this but an important part of it was at [53]-[55]: 53 The Tribunal does not accept the applicant needs a dedicated web-administrator or IT support person. It has a small workforce of up to nine and otherwise has sub-contractors. When evidence was presented that the website was not a functional website the evidence changed to state that the nominee actually undertook IT support. 54 IT support is provided to many companies via remote connections. The IT technicians do not have to be on site to provide assistance. The Tribunal does not accept that it is economical to employ full-time a dedicated web administrator in a relatively small company. 55 The Tribunal has formed the view that the nominee has not been truthful in some aspects of his evidence including his relevant experience. 13 It is apparent from that quotation that during the course of the hearing Cleansurance changed tack and contended instead that the occupation for which it wished to hire Mr Song was that of 'ICT support technician'. 'ICT' is an acronym for information and communications technology. ICT support technicians are mentioned in ANZSCO not as an 'occupation' but rather in the next level up in the hierarchy as a 'unit group'. The unit group known as 'ICT support technicians' is defined in ANZSCO in these terms: ICT SUPPORT TECHNICIANS provide support for the deployment and maintenance of computer infrastructure and web technology and the diagnosis and resolution of technical problems. … Tasks Include: • determining software and hardware requirements to provide solutions to problems • responding to inquiries about software and hardware problems • adapting existing programs to meet users' requirements • installing and downloading appropriate software • ensuring efficient use of applications and equipment • implementing computer networks • designing and maintaining web sites • repairing and replacing peripheral equipment such as terminals, printers and modems • may work in a call centre 14 This unit group has the four digit code 3131 (which it will be noted is not a six digit code). The unit group ICT Support Technicians contains a number of 'occupations' including the occupation of web administrator which has the six digit code 313113. The place of this occupation in the hierarchy was as follows: Level Description Code Major group Technicians and Trade Workers 3 Sub-major group Engineering, ICT and Science technicians 31 Minor group ICT and Telecommunications technicians 313 Unit group ICT support technicians 3131 Occupation Web administrator 313113 15 The nature of the hierarchy is that each member at a given level is a member of the level above. Thus all web administrators are ICT and Telecommunications technicians but it will also be observed that the converse is not the case. 16 The Tribunal recorded Cleansurance's attempts to switch its case at the hearing from sponsoring Mr Song in the nominated occupation of 'web administrator' to sponsoring him instead for the 'occupation' of the unit group of 'ICT support technician' at [57]-[60]: 57 The Tribunal has considered the applicant's submission at hearing that the nominee was actually doing the occupation of IT support and that the Tribunal should consider that as it falls within the unit group. This submission was only provided at hearing after concerns were voiced by the Tribunal about the webpage being basic and having no links to any information other than a page to provide a name and email response as compared to the substantial documentation and evidence provided by the applicant and nominee which claimed he had been working on the webpage for some years. 58 Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination, the name of the occupation and the corresponding 6-digit ANZSCO code. 59 r.2.73(4)/(4A) requires that the nomination includes the location/sat which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code if the applicant is a standard business sponsor, or the name of the occupation in the work agreement if applicant is a party to the work agreement. 60 The Tribunal has considered the submission and does not accept that the nominee is primarily working in IT support. The Tribunal has considered the regulation and is satisfied that it refers to the 6-digit ANZSCO code which related to the occupation Web Administrator and not the 4-digit code for the unit group of ICT Support Technicians. 17 Although densely expressed, what these paragraphs are saying is that because reg 2.72(8A)(aa) requires the Minister to be satisfied of the occupation and the six digit ANZSCO code this leaves no room to consider a position constituted by a unit group in ANZSCO with a four digit code. As the delegate before it had reasoned, so too the Tribunal concluded that since Cleansurance's nomination could not be approved, it followed that Mr Song could not be eligible for the associated visa either. Consequently, the Tribunal dismissed both review applications. 18 Cleansurance and Mr Song then commenced separate judicial review proceedings in the Federal Circuit Court. These were heard on 5 November 2018 and decided by the Court on the same day. 19 Cleansurance submitted to the Federal Circuit Court that the Tribunal had erred in its treatment of the six digit code. What was this error? It was submitted that the Tribunal had erred in confining its attention to the six digit code for an occupation without reference to the unit group's more generic description of ICT Support Technician (with the four digit code 3131). Indeed, the submission extended to the contention that the Tribunal should also have had regard the cluster to the corresponding minor group which was numbered 313 and called 'ICT and Telecommunications technicians'. 20 This submission appears contrary to the text of regs 2.72(8A)(a) and (10)(aa) neither of which appears to leave any room for concepts which are not 'occupations' and which do not have a six digit code. Cleansurance submitted nevertheless that its approach was supported by what this Court had said in Talha and in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 ('Pasricha'). Talha does not assist Cleansurance. The visa in question in Talha concerned a Skilled (Provisional) (Class VC) visa. At the risk of simplification, this is a visa available for persons who have completed an Australian course of study and who within six months of graduating secure employment for an occupation related to their training (the so-called nominated skilled occupation). One of the formal requirements for the visa is that the Australian course of study be 'closely related' to the nominated skilled occupation. There was a legislative instrument which set out various occupations and their six digit ANZSCO codes. In considering whether the course of study was 'closely related' to the nominated ANZSCO occupation the Tribunal had regard to the unit group to which the occupation belonged. The Full Court held that the words 'closely related' permitted this to be done. The Court expressed this conclusion at 117 [48]: … The significance of the Tribunal's reference to information set out in Unit Group 2339 is that the Tribunal plainly considered that, in carrying out its assessment, it was not confined to a consideration of the description of the occupation of Engineering Technologist in the lowest level of the ANZSCO Code's hierarchy. In our view, the Tribunal was correct to take that view. Indeed, for reasons which will be developed shortly, the Tribunal ought also to have considered relevant information in other higher level groupings within which the occupation and the unit group both fell. 21 That conclusion says nothing about how one should construe the expression 'there is a 6-digit ANZSCO code for the nominated occupation' in reg 2.72(8A)(a) or the very similar expressions in regs 2.72(10)(aa) and 2.72(10)(e). 22 Cleansurance also submitted that its case was assisted by what Moshinsky J said in Pasricha. The issue in that case was similar to that in this case. At [51], his Honour said this: In the circumstances, including the way in which the appellant put his submissions to the Tribunal, the Tribunal did not err in having regard to the tasks set out in ANZSCO for the specific occupation. This is not to say that the general tasks set out in the higher groups are necessarily irrelevant. Depending on the circumstances, it may be proper to have regard to the higher level descriptions. However, in the present case, no error is shown in the way that the Tribunal had regard to ANZSCO. 23 However, this is not authority for the proposition that the Tribunal must examine the higher levels of the hierarchy. It merely says that the Tribunal can do so if it wishes. Although it is not necessary to express a concluded view on this issue, the language of reg 2.72 seems to be against even that limited possibility. The regulation speaks in terms of 'occupations' and the six digit code in ANZSCO. In any event, Pasricha does not assist Cleansurance. At best it says the higher levels of the hierarchy may be taken into account. It is not authority for the proposition that they must be examined. 24 I therefore conclude that the Tribunal was entitled to reason at did at [57]-[59]. The Federal Circuit Court also reached that conclusion and was correct to do so. 25 Before the Federal Circuit Court, Cleansurance also submitted that the reasoning of the Tribunal was legally unreasonable. The Tribunal said at [54] that it did 'not accept that it is economical to employ full-time a web administrator in a relatively small company'. It was submitted that this finding was legally unreasonable because of the combined effect of three matters. The first of these was said to be the Tribunal's own conclusion at [47] that the organisation chart for Cleansurance showed that it had nine employees and 100 subcontractors. Paragraph [47] says: The applicant claims they need a web administrator. They provided an organisational chart to the Tribunal which indicated that there were six employees. An organisation chart provided to the Department dated December 2015 this is the original company organisation chart. The applicant claims that the original company is now three companies. The chart dated December 2015 shows nine employees and 100 sub-contractors. 26 I am not sure that I would read this as a finding by the Tribunal to the effect suggested by Cleansurance. However, it is convenient to assume that the Tribunal did make such a finding. The second matter was said to be the fact that financial information provided by Cleansurance indicated that it had annual sales and income of over $2 million. The third matter was that the evidence before the Tribunal showed that it had replaced its point of sale technology system with a web-based technology to manage its data base. 27 Assuming these matters at their highest, I do not accept that it was legally unreasonable for the Tribunal to conclude that it was not economical for a relatively small company such as Cleansurance to engage a web administrator. The organisation chart showed that it had nine employees and 100 subcontractors. There is no tension between that chart and the proposition that it was a relatively small business. Further, contrary to its submissions to this Court, the financial information before the Tribunal did not show that Cleansurance had annual sales and income of over $2 million. The financial report for the year ending 30 June 2016 was before the Tribunal. It showed that in that financial year Cleansurance had sales of $4,136,357.15 with cost of sales of $424,193.59. This resulted in gross profits of $3,712,163.56. After deduction of all expenses including the cost of personnel ($3,334,222.57) its income was $77,335.92 which resulted in an after tax profit of $54,135.14. This was therefore a business with nine employees making a modest after tax profit. Nor does the evidence about the replacement of its point of sale system alter this conclusion. In fact, it was this material which suggested that Mr Song was not being hired as a web administrator but as an IT support technician. The relevant part of this material was as follows: The nominee's role, in broad terms, corresponds to IT Support Technician as his position exist to provide overall technical support for computing infrastructure of the Cleansurance Australia and its affiliated businesses. The nominated occupation, Web Administrator was identified as the IT system used within our business are based on web technology. In relation to our subscription of Cleantelligent, employment of in-house technician was also necessary as the vendor for the above software is based in USA and due to time difference between Australia and USA, prompt technical support was not secured. We have recently terminated subscription of Cleantelligent and with Mr Yoo and Mr Song's collaborative works, developed our own web based management application. Please see attached the information 'Cleansurance Management Application'. The above project was undertaken for the past 6 months and the application is being distributed to clients throughout November 2017 and January 2018. Currently. new application specifically for use by cleaning supervisors and customer liaison officers is being developed. Mr Song will continue to provide technical support in maintaining the above application system. Through Cleaner's Room Artarmon Pty ltd (ABN 35 153 293 611) and Cleaner's Room Australia Pty Ltd (ABN 45 161 391 215), we operate four (4) stores in Lidcombe, Atarmon, Eastwood and Camperdown. Since September 2015, we have replaced POS system with SAP which is again web based technology to manage the sales database. The above SAP system is also administered by Cleansurance Australia Pty Ltd. In order to ensure reliable transfer of SAP data between the stores, it is Mr Song's responsibility to regularly monitor integration and replication and promptly repair in case of error such as integration failure. When Mr Song's full-time employment is secured, it is our plan to further develop our existing homepage to provide online quotation and in relation to the cleaner's room business, commence online shopping mall. 28 I do not think that I could say, in that circumstance, that the Tribunal's conclusion that it was not economical for Cleansurance to engage Mr Song as a web administrator is easy to fault, or, indeed, possible at all. I certainly do not think it can be said the Tribunal's reasoning lacked an evident or intelligible justification or was one which no reasonable Tribunal could arrive at: Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [72] per Griffiths, Gleeson and Colvin JJ. Far from it. 29 The Federal Circuit rejected this submission and was, for the reasons just given, correct to do so. 30 In this Court, Cleansurance pursued an argument that the reasons of the Federal Circuit Court were not adequate. This was submitted to be because the primary judge had merely summarised the claims made in the Tribunal and the decision-making processes without any consideration of the evidence which was before the Tribunal. It is not necessary to determine whether there is any substance in this contention. Even if it were correct, I do not think it goes anywhere. For the reasons I have given, the claim based on unreasonableness and irrationality could not succeed so that even if the reasons were not adequate in the requisite sense it would not have any impact on these appeals. 31 At the hearing Cleansurance sought leave to raise an argument that the following findings by the Tribunal at [55] and [61] involved jurisdictional error: 55 The Tribunal has formed the view that the nominee has not been truthful in some aspects of his evidence including his relevant experience. … 61 The Tribunal finds that the application is contrived to secure a favourable migration outcome for the nominee. 32 I refused leave to amend the notice of appeal to permit such arguments to be raised. No such case was mounted at trial and Cleansurance was represented at that hearing. The application for leave to amend was raised in reply at the end of the hearing. Its resolution would have depended on a close reading of the transcript of the hearing before the Tribunal. That transcript was imperfect and this would itself have necessitated obtaining a better version of the transcript which would have resulted in the adjournment of the proceeding. It was therefore not in the interests of justice to allow the amendment: Commissioner of the Australian Federal Police v Oke [2017] FCAFC 94; 159 FCR 441 at [17]. 33 It follows that Cleansurance's appeal must be dismissed. That leaves the position of Mr Song. The Minister submitted that if Cleansurance's appeal were dismissed then it ought to follow as a matter of logic that Mr Song's appeal should be dismissed as well. I accept that submission. Once Cleansurance's appeal is dismissed the Tribunal's refusal to approve it as a sponsor for Mr Song means that Mr Song was and is not presently entitled to the visa since his application is not supported by an approved sponsor. 34 An interesting question may have arisen if Cleansurance's appeal had been allowed. In that circumstance, the Minister submitted that Mr Song's appeal would still need to be dismissed. This was because even if the Court set aside the Tribunal's decision in the sponsorship application and remitted it for further determination, this would still mean that Mr Song did not presently have an approved sponsor. Such a result would appear surprising. It appears to entail that the Minister can defeat every application for a 457 visa by the simple expedient of refusing the associated sponsorship application regardless of its merits. Once that application is refused the visa applicant is not eligible and setting aside the sponsorship decision—no matter how legally untenable—does not have the effect of filling that eligibility void. One can never be sure about these things until one gets up close to them but, for myself, this would appear to be an outcome that would be difficult to imagine as actually having been intended by the author of the legislation. However, it is not necessary to determine whether that is correct for present purposes, although I would note that Collier J came to a similar view to my tentative one in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [54]-[57]. Cleansurance's appeal has failed and so, therefore, must Mr Song's. 35 Both appeals will be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 21 June 2019