What is the proper test for assessing an application for approval of a nominated position under the Regional Sponsored Migration scheme?
This question came before the Federal Circuit Court in a case that was decided on 29 April 2016, Bharaj Construction Pty Ltd v Minister for Immigration & Anor (2016) 902.
Although this case addressed a version of Regulation 5.19 that is no longer in force, it may still have relevance to ongoing cases – namely, matters where the nomination was made under the same regulation and is the subject of a review before the Tribunal or the courts that has not yet been finalised, or nominations under the version of Regulation 5.19 that is now in force, and which require that the nominee will be employed on a full-time basis for a period of two years – namely the Temporary Residence Transition and Direct Entry Streams for Employer Nomination Scheme visas (subclass 186).
The background of this case was that the prospective employer, a company operating in the property development and construction industry, sought approval of a nomination to employ an Indian national as a carpenter in its business in a regional area of Australia (the mid-North Coast of NSW). The company wished to employ a carpenter who had specialist skills in carving and finishing wooden furniture, stairs and doors in an “Indian style” in order to make homes that it was planning to construct more attractive to buyers of Indian heritage, and to be able to earn a premium profit through the sale of such homes.
At the time that the nomination was made, the version of Regulation 5.19 that was then in effect required (at 5.19(4)) that the nomination be made in respect of a need for a paid employee and that the appointment would provide the employee with employment for a period of two years.
In the first instance, a delegate of the Minister refused the application for approval of the nomination on the basis that there was not a present need for a paid carpenter in the business as the company had not at that time started building work on any of the homes that it planned to develop.
On review before the Tribunal, the nominating company’s principal gave evidence that he intended to have the carpenter engage in other tasks associated with the home-building projects, such as assisting with slab formwork, building framework and rough fit out, joinery and carpentry. The principal acknowledged at the hearing that he would be engaging contractors for other trades associated with the development project, and that he would also be able contract work out to other carpenters.
The Tribunal relied on this evidence to affirm the refusal of the nomination. It was not satisfied that the nominating sponsor had a need for a paid employee in the position of a carpenter, as it would be able to obtain needed carpentry skills from local contractors. The Tribunal also concluded that the work proposed by the sponsor for the position, involving doing Indian-style carving and furniture making at 10 – 15 houses a year, and training others in these carving skills, would not provide the nominated employee with full-time work for at least two years.
The Federal Circuit Court determined that the Tribunal had committed jurisdictional error in affirming the refusal of the nomination by “asking itself the wrong question”.
In the Court’s view, the pivotal question in the case was not whether the employer would provide sufficient work to employ the nominee for 2 years in the use of his specialist skills in Indian-style wood carving. Rather, the key question as far as the Court was concerned was whether the appointment of a carpenter would provide the carpenter with at least 2 years of full-time employment.
The Court also concluded that not only was it irrelevant whether there was sufficient work to keep the person employed in his specialist skill of Indian-style wood carving; it was equally irrelevant whether any of the work required by the employer could be done by local contractors.
Since the Tribunal had not addressed the issue of whether there was sufficient carpentry work in the business to keep a carpenter employed for 2 years, and had not made any findings as to whether sufficient work was or was not available, the Court concluded that the Tribunal had asked “the wrong questions” (whether there was sufficient specialist work in Indian-style wood carving, and whether local carpenters were available.
By so doing, the Tribunal had, in the opinion of the Court, “constructively failed to exercise its jurisdiction” (had not properly carried out its review function) and had thus committed jurisdictional error.
The lesson to be drawn from this case is that in circumstances when the Tribunal is called upon to determine whether a nominated employee will be provided with a period of full time work, the critical questions to be determined are whether there is a sufficient amount of work needed to engage the employee on a full-time basis in the nominated occupation, and not whether there is sufficient work needed in some “sub-set” of that occupation that may require unique or specialist skills.
Souce: Migration Alliance