Australian Immigration Daily News

Have you ever had a case where the Department has refused to approve an employer nomination for a Subclass 186 visa under the Employer Nomination Scheme?

In particular, have you had a matter where the nomination was refused because the Department was not satisfied that the sponsoring employer would be able to provide employment to the prospective employee on a full time basis for a period of at least 2 years? 

This requirement applies to nominations under both the Temporary Residence Transition stream and the Direct Entry stream.

What if the Tribunal makes the determination that the nominee won’t be employed for at least 2 years on the basis of a finding that the employer cannot afford to pay the employee?

What do you do? Is there any way to solve this issue?

These issues played out in a case that came before Judge Vasta of the Federal Circuit Court in Brisbane late last month: Jayshree Enterprises Pty Ltd v Minister for Immigration & Anor and Gohill v Minister for Immigration & Anor  (2016) FCCA 2825 (21 October 2016).

This is what happened in the case:                                                           

The sponsoring employee operated a collection of 3 stores, a “mini mart” and 2 grocery stores.

At the Tribunal hearing, the Tribunal member engaged in a discussion with the principal of the prospective sponsoring employer about what the employer’s costs for employing its employees would be if the sponsorship were to be approved. 

The actual evidence was that in the financial years prior to the year the application was before the Tribunal, the wages owing by the employer had been about $134,000 for the year 2013/2014 and $143,000 for the year 2014/2015.

As a result of the discussion at the hearing with the employer’s principal, the Tribunal worked out a rough “guestimate” that the employer would owe wages of $350,000 if the nominated employee were to be employed.  Leaving aside the approximately $70,000 the nominee would have been paid, this meant that, on the Tribunal’s estimate, the wages that would have to be paid by the employer would be more than 2x the wages that had been paid in the 2 earlier financial years.

On the basis of this “guestimate”, the Tribunal made a finding that the business did not appear to have the financial resources to employ the nominated employee for a period of 2 years, and that the criteria for approval of the sponsorship nomination were therefore not met.

Can you see where this is going?

The Federal Circuit Court found that the Tribunal’s “guestimate” of the employer’s wage liability of $350,000 was “not a proper summary of the evidence” and that the Tribunal had given this “guestimate” what the Court described as “an aura of fact”. 

When in fact the guestimate was not in fact a fact at all!

And in fact, at the time of the hearing before the Tribunal, 2/3 of the next financial year, 2015/2016, had elapsed, and the evidence before the Tribunal was that the employer had been meeting its wages bill, had paid all of its employees, and was not suffering any financial stress or hardship.

So did the Federal Circuit Court conclude that there had been jurisdictional error by the Tribunal?

Well, even though Sarah Palin has not yet been nominated to “Trump’s” cabinet in the United States, I will quote her famous phrase once again: “You betcha”!!!

The Court concluded that the Tribunal’s finding that the employer did not have the financial resources to provide employment to the nominated employee was one that was simply “not open” on the evidence before the Tribunal.

So the moral of the story: if you get an adverse decision from the Tribunal and there are suggestions in the Decision record that the Tribunal premised its fact finding on “guesses” then, you can be pretty darned certain that jurisdictional error has occurred and you have got an excellent chance of getting the Tribunal’s decision overturned in the Federal courts. 

You betcha!!!!!!!!!

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