A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 2977

FEDERAL CIRCUIT COURT OF AUSTRALIA

A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2977

File number(s):

SYG 2879 of 2019

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

5 November 2020

Catchwords:

MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Employment Nomination – whether the Tribunal considered the applicant’s case – whether the Tribunal failed to afford procedural fairness – whether the Tribunal correctly applied the law – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), regs.5.19(4)(a)(ii), 5.19(4)(d)(i)

Number of paragraphs:

37

Date of hearing:

28 October 2020

Place:

Sydney

The Applicant:

Mr M Azad for the applicant, by telephone

Solicitor for the First Respondent:

Ms S Lloyd of HWL Ebsworth Lawyers, by telephone

ORDERS

SYG 2879 of 2019

BETWEEN:

A TO Z RPL PTY LTD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	5 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $6,400.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) refusing an application by the applicant under reg.5.19 of the Migration Regulations 1994 (Cth) (Regulations) for an employer nomination for a permanent position (Employer Nomination).

   BACKGROUND

2. To have been entitled to an Employer Nomination the applicant had to satisfy the requirements prescribed by reg.5.19 of the Regulations. These include that the application for approval “identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control” (reg.5.19(4)(a)(ii)); and that “the employee will be employed on a full-time basis in the position for at least two years” (reg.5.19(4)(d)(i)).

3. In its application for an Employment Nomination,[1] the applicant stated the position to be filled as “Education Sales Representative”; Mr Mian was the person the applicant nominated to fill the nominated position; Mr Mian would be employed at a base rate of $60,000 per annum; and Mr Mian will be employed at Mawson Lakes, South Australia. The Tribunal described the applicant’s business as one that assists clients to obtain a qualification through recognition of prior learning.[2]

   [1] CB1

   [2] CB468, [1]

4. In a letter that formed part of the application for an Employment Nomination,[3] the applicant’s director, Mr Azad, said the applicant was a newly formed business based in South Australia targeting the education sector Australia wide; the applicant needed to break into the “regional SA market with regard to the sale of its education products”; the applicant’s business “requires a suitably skilled sales representative for its regional network to establish our brand with the regional consumer market in NSW”; Mr Mian has a strong education background with a degree in commerce; and, “when interviewed the applicant [sic] showed outstanding potential through his sales knowledge and proposals for our company”.

   [3] CB25

5. On 6 February 2018 the delegate refused to grant the applicant an Employment Nomination. The delegate found the applicant did not demonstrate it had the financial capacity to pay the nominated full-time salary for the nominated position for two years; and, for that reason, the applicant did not satisfy reg.5.19(4)(d)(i) of the Regulations.[4]

   [4] CB41

   BEFORE THE TRIBUNAL

6. Mr Azad and Mr Mian appeared before the Tribunal on 23 August 2019 to give evidence. According to the Tribunal’s reasons, Mr Azad gave the following evidence:

   (a)Mr Mian had been employed by the applicant full-time since October 2017. While the business initially struggled, the number of clients had increased, and the applicant achieved sales of $738,000, and a net profit of $11,272.[5]

   (b)Mr Mian is a sales representative, and visits people in the community in Adelaide. When Mr Mian identifies a genuine client, Mr Azad provides to Mr Mian a checklist of the documents the client is to provide to obtain the qualification. The applicant employs a part-time office assistant who checks the client has provided the documents on the checklist, and the person then scans and sends the documents to the Registered Training Organisation (RTO) that accredits the skills and experience. If the RTO want to visit the site, the office assistant contacts the client and organises the site visit.[6]

   (c)Mr Mian’s role is to create sales and meet prospective clients to convince them to use the applicant’s services. Mr Mian goes to hospitals and to community festivals, and visits local businesses, such as automotive shops.[7] Mr Azad had set Mr Mian a target of one client per day. Mr Azad is informed of what is happening through an excel spreadsheet of clients which he can access online.[8]

   (d)Mr Mian was not required to repay any part of his salary.[9]

   (e)In response to the Tribunal’s question about how Mr Mian would be identified in the spreadsheet as the person who had obtained the client or made the sale, Mr Azad said that the absence of a name in the column titled “Agent” that would indicate a direct client of Mr Mian.[10]

   [5] CB468, [7]

   [6] CB468, [8]

   [7] CB469, [14]

   [8] CB469, [15]

   [9] CB472, [43]

   [10] CB471, [33]

7. According to the Tribunal’s reasons, Mr Mian gave the following evidence:

   (a)Mr Mian works in the office of the applicant on Monday from 7:00 am to 6:00 pm, then Tuesday, Wednesday, and Thursday from 1:00 pm to 6:00 pm. On Saturdays he attends community activities for 8 hours.[11]

   (b)Mr Mian also works full-time as an orderly at the hospital from 10:00 pm until 6:00 am Monday to Friday. Mr Mian said he would provide to the Tribunal bank account statements to identify the account into which the hospital salary was paid.[12]

   (c)Mr Mian spends Monday planning where he will sell, the number of clients, and then he visits them. If the clients commit to having the period learning recognised, Mr Mian discusses this with the RTO. At the end of the week he makes sure the clients receive their certificates.[13]

   (d)Mr Mian finds clients by approaching people who are Rohingya at work in the hospital, going to shopping centres, mechanics, and approaching people who are Muslims at the mosque. Mr Mian has clients from sub-agents in different states in Australia, but he could not name any subcontractors the applicant uses in South Australia, and he did not know if any were used.[14]

   [11] CB469, [18]

   [12] CB469, [19]

   [13] CB469, [20]

   [14] CB469, [21]

8. At the hearing the Tribunal put to Mr Azad information contained in the evidence Mr Mian had given which the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. That information was Mr Mian’s evidence that he is working full-time elsewhere; Mr Mian gave internally inconsistent evidence about whether he contacts the RTO, namely, that he contacts the RTO to ask for their requirements, whereas Mr Azad said he creates a checklist of documents to be provided by the client, and he negotiates with the RTOs; Mr Mian and Mr Azad provided inconsistent names for the RTOs that accredit disability services; and Mr Mian could not identify the proportion of the applicant’s clients in South Australia, or the market in South Australia.[15] Mr Azad elected to respond at the hearing. He said, among other things, that he allowed Mr Mian to work elsewhere, and that was because of his financial circumstances.[16]

   [15] CB470, [24]

   [16] CB470, [27]

9. Also at the hearing before the Tribunal, the applicant’s agent accessed and showed the signs the applicant’s business used. A sign outside what was said to be the applicant’s office stated “Do you have experience but have time to study” which, the agent submitted, was incorrect because the sign ought to have stated “Do you have experience and NO time to study”; and a sign inside the office had typographical and grammatical errors.[17]

   [17] CB473, [48]

10. By letter dated 16 September 2019 the Tribunal requested the applicant to provide information showing all transactions on all of Mr Mian’s bank accounts from 30 June 2018, and all transactions from a Mr Kalamzad’s accounts after 30 June 2018. The Tribunal also invited the applicant to provide “any other information or submissions you may wish to make about the deposits to Mr Azad’s account” from Mr Mian dated 22 May 2019, 30 May 2019, 3 June 2019, and 6 June 2019.[18] As the Tribunal noted in its reasons,[19] the request related to four transfers to Mr Azad’s account, one on 22 May 2019 for $1,836, which was described in Mr Azad’s bank account as “Transfer from MIAN A aslam [sic]”; one on 30 May 2019 for $1,500, which was described in Mr Azad’s bank account as “Transfer from Mian A Aslam”’; one on 3 June 2019 for $1,000, which was described in Mr Azad’s bank account as “Transfer from Mian A me”; and one on 6 June 2019 for $700, which was described in Mr Azad’s bank account as “Transfer from Mian A me”. The applicant’s migration agent responded to the Tribunal’s request for information by email sent on 30 September 2019 in which he said “the client has instructed me that he has already furnished all the relevant information to the tribunal”.[20]

    [18] CB460-461

    [19] CB472-473, [40]

    [20] CB462

    TRIBUNAL’S REASONS

11. The Tribunal was not satisfied Mr Mian is currently working full-time for the applicant, or that he will be employed in the nominated position full-time for two years in the future.[21] The Tribunal relied on the following matters: [22]

    (a)Mr Mian was working full-time for another employer.

    (b)Despite having been employed full-time by the applicant since October 2017, Mr Mian is recorded as having made only one sale.

    (c)There were other indicators that caused the Tribunal to doubt there is a full-time position of sales consultant based in Adelaide. These indicators included the incorrect signs for the business,[23] and the address of the applicant as recorded in the ASIC register having changed on 8 August 2019, one week before the hearing, in circumstances where before that date the address of the applicant was Mr Mian’s residential address.[24]

    (d)The transfers into Mr Azad’s account remained unexplained. The Tribunal noted that one of the transactions was a deposit into Mr Azad’s bank accounts annotated with Mr Mian’s name for an amount equal to what the applicant stated was Mr Mian’s net salary; and, because the period covered by the bank account statements did not match, it was not possible to see if this amount was withdrawn from Mr Mian’s account. The Tribunal said:[25]

    The failure to provide any explanation, or any other information on transactions for the same period, results in the Tribunal drawing an inference that the bank accounts [sic] statements or a further explanation would not have assisted [the applicant’s] case. It weighs against the transfers being for a benign purpose. This in turn is an indicator of whether the position is genuine, or will continue full time for two years.

    As there is insufficient information to form a firm conclusion, the Tribunal does not place a great deal of weight on this information, but does consider it a piece of information that is relevant to the decision before it.

    [21] CB475, [61]

    [22] CB475, [61]

    [23] CB473, [48]

    [24] CB474, [51]

    [25] CB473, [44], [45]

    GROUNDS OF APPLICATION

12. The applicant is not legally represented. It has acted in this proceeding through the agency of its sole director, Mr Azad. At the hearing I granted Ms Azad leave to represent the applicant. Mr Azad did not address the grounds stated in the application. He made oral submissions after Ms Lloyd, who appeared for the Minister, completed her submissions. I will refer to Mr Azad’s submissions later. The applicant also relies on an affidavit made by Mr Azad, and I will also refer to the affidavit later in these reasons. I will begin with the grounds of application.

    Grounds 1, 2, and 3

13. Paragraphs 1, 2, and 3 of the grounds are background, and do not constitute grounds as such.

    Ground 4

14. Ground 4 claims the Tribunal (and Department of Home Affairs (Department)) failed to consider the applicant’s case in accordance with natural justice and procedural fairness. (A number of the paragraphs in the application include the Department in the claims that are made against the Tribunal. I will ignore these parts of the application because this Court does not have jurisdiction in relation to the decision of the delegate.) 

15. The ground is not particularised and, for that reason alone, fails. It is evident from the Tribunal’s reasons, however, that the Tribunal did put to Mr Azad matters about which it had concerns. These include Mr Mian’s evidence that he was employed full-time by another employer, and evidence that the applicant’s business used incorrect signs. Further, the Tribunal requested the applicant to provide information in relation to the transfers into Mr Azad’s account. There is nothing in the material before me that could arguably suggest the Tribunal failed to accord procedural fairness to the applicant.

    Ground 5

16. The applicant claims the Tribunal failed to take into consideration reg.5.19 of the Regulations which applied to the applicant, in that the applicant’s nominated position was a genuine position, the applicant meets the requirement of the nominated position within the limits of the provided legislation, and “[a]ny other relevant matter”, including the applicant’s having a demand for the position, it genuinely hired Mr Mian, and the applicant will suffer hardship if not nominated.

17. This ground appeals to the merits of the applicant’s application for Employer Nomination and, for that reason, discloses no jurisdictional error. The Tribunal did consider reg.5.19 of the Regulations.

    Ground 6

18. This ground claims the Tribunal failed to consider reg.5.19 of the Regulations having regard to the applicant’s business circumstances in the nominated position, potential growth in the industry, and value for business; the applicant’s commitment to employ Mr Mian for two years; the applicant’s reliance on Mr Mian for that position and future growth; and “[o]ther relevant material”.

19. This ground also appeals to the merits of the applicant’s application for Employer Nomination and, for that reason, discloses no jurisdictional error.

    Ground 7

20. The applicant claims the Tribunal denied the applicant procedural fairness and natural justice because it did not give the applicant an opportunity to properly consider its legal position, given the “applicant’s limitation in the legal system”.

21. The ground does not identify what opportunity the Tribunal ought to have given, but failed to give, to the applicant; and the ground is otherwise not particularised. For these reasons alone the ground fails. In any event, a migration agent represented the applicant; and, as I have already noted, the Tribunal put to Mr Azad concerns it had, and also invited the applicant to provide information and submissions about the four transfers into Mr Azad’s personal bank account.

    Grounds 8 and 9

22. These grounds claim the Tribunal failed to determine the applicant’s application for review according to law, in taking a view of the Act and the Regulations that was unnecessarily limited and constricted, and which fitted the Tribunal member’s personal subjective view, rather than the Tribunal taking a comprehensive view of the relevant law.

23. These grounds do not identify the view of the Act or Regulations on the basis of which it is claimed the Tribunal member determined the applicant’s application for review, or how such view was unduly narrow or constricted. There is nothing to support the contention that the Tribunal member applied her own personal view of the matter. The Tribunal member correctly identified the question that was before the Tribunal, namely, whether the Tribunal ought to be satisfied that the applicant met reg.5.19(4)(d)(i) of the Regulations, which required that Mr Mian “will be employed by the applicant on a full-time basis for at least 2 years”; and the Tribunal made no error in determining that question for the reasons it did.

24. Grounds 8 and 9 of the grounds of application, therefore, also fail.

    Ground 10

25. This ground claims the Tribunal failed to give proper consideration to the facts; the Tribunal instead merely noted, and refused the applicant’s case without proper consideration. The ground further claims the Tribunal would have come to a different view had it properly considered the applicant’s case.

26. The ground does not identify the facts the Tribunal did not properly consider. For that reason alone, the ground fails. In any event, the Tribunal correctly identified the applicant’s claims, considered them, and for reasons that were reasonably open to it, concluded reg.5.19(4)(d)(i) of the Regulations was not satisfied.

    Grounds 11 and 13

27. These grounds claim the Tribunal did not afford the applicant procedural fairness, and did not give thorough consideration to the applicant’s case.

28. Being unparticularised, these grounds fail for that reason alone. In any event, as I have already found, here is nothing in the material before me that could arguably suggest the Tribunal failed to accord procedural fairness to the applicant.

    Ground 12

29. This paragraph states a belief that the applicant would be eligible for an Employer Nomination. That discloses no jurisdictional error because it is an appeal to the merits of the applicant’s application for an Employer Nomination.

    Submissions at hearing

30. At the hearing before me Mr Azad made a submission in relation to the spreadsheet the applicant provided to the Tribunal, and to which the Tribunal refers in its reasons. Mr Azad said the blank spaces represented clients Mr Mian introduced, whereas those that were not blank represented agents whom the applicant used. Whether that is correct or not, the only relevant issue that it is open to the Court to consider on an application for remedies under s.476 of the Act is whether the Tribunal dealt or failed to deal with the spreadsheet in some way as to give rise to a jurisdictional error. Mr Azad’s submission does not disclose any such jurisdictional error.

    Mr Azad’s affidavit of 4 November 2019

31. In his affidavit Mr Azad deposes to facts relevant to the applicant’s application for an Employment Nomination; and, in paragraphs 9 and 10, he asserts the substance of that which is claimed in grounds 5 and 6 of the grounds of application. This is an appeal to the merits of the applicant’s application for an Employer Nomination and, for that reason, discloses no jurisdictional error by the Tribunal.

32. In paragraph 13 of his affidavit Mr Azad claims the Tribunal erred because it did not consider the nomination application as a genuinely appointed position; the Tribunal did not permit the applicant to provide further evidence about the applicant’s financial and other relevant documentary evidence that proved the nominee’s services; the Tribunal did not consider the applicant’s situation and future growth; and if the nomination is not approved, that the applicant’s business will shut down.

33. There is nothing in the material before me that suggests the Tribunal did not permit the applicant to provide further evidence. Mr Azad does not identify the evidence and material he says he was denied an opportunity to present to the Tribunal; and, in any event, the Tribunal requested further information before,[26] and after the hearing.[27] I do not accept the Tribunal did not consider the applicant’s situation and future growth if, by that, Mr Azad intends to submit the Tribunal did not consider the evidence that was before it that was relevant to whether the applicant would employ Mr Mian for two years. The Tribunal did consider the evidence before it that was relevant to that question. Finally, Mr Azad does not identify evidence or submissions the applicant submitted or made to the Tribunal to the effect that the applicant’s business would shut down if the applicant were not granted an Employment Nomination; but even if such evidence or submission were provided or made, that would not have been relevant to the question the Tribunal considered was before it, and that is whether the Mr Mian will be employed by the applicant on a full-time basis in the position for at least two years.

    [26] CB73

    [27] CB460

1. There is nothing in Mr Azad’s affidavit, therefore, that discloses any jurisdictional error by the Tribunal.

   CONCLUSION AND DISPOSITION

2. The applicant has not succeeded on any of the grounds on which it relies. I propose, therefore, to order that the application be dismissed.

3. At the hearing I informed Mr Azad that the usual rule is that a party who succeeds is entitled to an order that the losing party pay the winning party’s legal costs. Ms Lloyd for the Minister submitted that costs should follow the event; and she submitted that the costs should be set in the amount of $6,400, which is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). Mr Azad submitted that “at this moment” he was suffering financial hardship.

4. That is not a sufficient reason for not ordering the applicant pay the Minister’s costs. I propose, therefore, to also order that the applicant pay the Minister’s costs set in the amount of $6,400.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       5 November 2020