ABC World Pty Ltd v Minister for Immigration - [2005] FMCA 934

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABC WORLD PTY LTD v MINISTER FOR IMMIGRATION

[2005] FMCA 934

MIGRATION – Application to review decision of Migration Review Tribunal – approval as a business sponsor – whether Tribunal complied with procedures under the Migration Act 1958 – whether Tribunal gave prescribed period of time for response to request for information.

Migration Act 1958, ss.357A, 359, 359B, 359C, 360, 379A, 379C, 424B
Migration Regulations, 1.20D, 4.17

Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252
Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 434
Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 128
NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1520
NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 25
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662
Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989 ALR 283
Gribbles Pathology (Vic) Pty Ltd v His Honour Judge Allan (1992) 57 SASR 218
South Staffordshire Tramways Co v Sickness Accident Assurance Association [1891] 1 QB 402

Applicant:

ABC WORLD PTY LIMITED

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3507 of 2004

Judgment of:

Barnes FM

Hearing date:

10 May 2005

Last Date for Submissions:

30 May 2005

Delivered at:

Sydney

Delivered on:

11 July 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3507 of 2004

ABC WORLD PTY LIMITED

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Migration Review Tribunal (the Tribunal) made on 17 November 2004 affirming a decision of a delegate of the respondent refusing to grant the applicant approval as a business sponsor.
The applicant is a company incorporated in New South Wales which, on or about 2 January 2004, applied for approval as a standard business sponsor on the basis that it wished to sponsor an applicant for a Business (Long Stay) visa.
Following the delegate’s refusal to approve the application for approval as a standard business sponsor, the applicant sought review by the Migration Review Tribunal. In the application for review received by the Tribunal on 2 February 2004 the applicant provided a mail address, a facsimile number and an email address for correspondence and indicated “yes” in response to the question: “Do you agree to the Tribunal communicating with you by email or facsimile?” The applicant did not nominate a representative to assist it with the application.
Accompanying the application was a brief letter from the managing director of the applicant giving reasons why it was believed that the delegate’s decision was wrong. It was suggested that the delegate had failed to understand the nature of the business, that the company’s annual balance sheet had been audited and independently assessed by the Travel Compensation Fund as “very healthy” and that information technology was the “future go of the business” and that the proposed employee was a qualified IT personnel who should contribute greatly to the business.
On 3 February 2004 the Tribunal wrote to the applicant at the mail address provided, acknowledging receipt of the application and asking it to provide any documents or written arguments it wished the Tribunal to consider which had not already been provided to the Tribunal or Department. No such documents were provided to the Tribunal.
On 27 September 2004 the Tribunal wrote to the applicant pursuant to s.359 of the Migration Act 1958 (C’th) inviting it to provide additional information as indicated on an enclosed checklist. The checklist stated that certified copies of documents indicated should be submitted to the Tribunal if available and applicable to the business and that other documents could be provided. The letter of 27 September 2004 stated:
Your written comments should be provided within 28 calendar days of the date of notification of this invitation. As this letter has been sent by facsimile, you will be considered to have been notified of this invitation on the date of this letter. The effect of this is that you have a total of 28 days from the date of this letter to respond.
The letter went on to point out that the applicant could request further time to respond and that if the Tribunal did not receive the requested information within the period allowed it may, under s.359C of the Act, make a decision on the review without taking any further action to obtain the information and that in addition the applicant would not be entitled to appear before the Tribunal.
The letter of 27 September 2004 was addressed to the mail address for the applicant but was also marked “by fax” to the facsimile number provided on the review application. The copy of this letter in the material before the court has handwritten notations of “File Copy” and “Faxed on 27/09”. A Tribunal facsimile transmission report dated

27 September 2004 indicates that on 27 September 2004 at 10.45am a facsimile copy of this letter was sent to the facsimile number provided to the Tribunal by the applicant in the review application.
On 17 November 2004 the Tribunal affirmed the delegate’s decision. In its reasons for decision the Tribunal noted that the applicant had been invited to submit additional information but had not done so and proceeded on the evidence before it. It observed that the review applicant had failed to respond to an invitation pursuant to s.359(2) of the Act and thus it decided the case pursuant to s.359C of the Act. (Section 359C(1) relevantly provides that if a person is invited under s.359 to give additional information and does not give the information before the time for giving it has passed the Tribunal may make a decision on the review without taking any further action to obtain the additional information).
The Tribunal stated that to be approved as a business sponsor the applicant needed to meet the criteria set out in Regulation 1.20D of the Migration Regulations. Regulation 1.20D(2) relevantly provided:
The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if:
………
(c) the Minister is satisfied that the Applicant for approval:
(i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or
(ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and
………
(f)the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) of Schedule 2 in relation to a visa application; and
(ii)the visa holder satisfies the requirements of that subclause;
the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067, 1196 or 1196 (internet).
The Tribunal found that the applicant did not meet the criteria in either paragraph (i) or (ii) of Regulation 1.20D(2)(c). It found that the review applicant did not claim to introduce, utilise or create new or improved technology or business skills (paragraph (i)). Paragraph (ii) requires satisfaction that the applicant has a satisfactory record of or a demonstrated commitment towards training Australian citizens and permanent residents in the business operations of the applicant in Australia. The Tribunal concluded that the applicant’s training strategy and future training plans as described in the application for approval as a business sponsor were “too general and vague and were not quantifiable”. It observed that there were no specific training courses mentioned and the length of training was not specified. There was no indication of any qualifications which would be awarded on completion of the training, nor as to who would conduct the training, or when or where this training would take place. The Tribunal observed that the applicant had not submitted additional information on this point after being invited to do so and found that it did not meet this criterion.
The Tribunal also found that the applicant did not meet the criterion in Regulation 1.20D(f) (that the applicant is able in relation to each visa holder to comply with the undertakings given by the applicant in accordance with form 1196). It referred to audited financial reports which had been provided to the Department for the year ended 30 June 2003 and concluded that the figures indicated that the applicant had high liabilities over net assets and that retained profits were small. It concluded that from such figures it appeared that the applicant may not be in a position to pay a total remuneration package of $39,240 per annum to the proposed visa applicant and associated costs for his dependants as proposed. The Tribunal noted that the delegate had considered the amount of the net assets and closing retained profit in those reports and had not been satisfied that this by itself was sufficient to meet the applicant’s sponsorship undertakings. The Tribunal again referred to its invitation to the applicant to submit further information and to the absence of other information to demonstrate the applicant’s ability to comply with its relevant financial sponsorship undertakings. The Tribunal found that the applicant did not meet the criterion in Regulation 1.20D(2)(f).
The Tribunal concluded that the review applicant did not meet the criteria for approval as a business sponsor.
The applicant sought review of the Tribunal decision by application filed in this court on 30 November 2004. The application raises a number of issues. The first ground is an expression of disagreement with the decision and a claim that the Tribunal member failed to understand the nature of the business. Disagreement with the decision is not of itself a ground of review. The assertion that the Tribunal failed to understand the nature of the applicant’s business appears to be a reference to matters raised in subsequent paragraphs in the application. The first of these is a statement that the company has two subsidiaries, one involved in travel and one to do with migration and education business, that information technology is the “future go” of the business, that the nominee is “a qualified IT personnel” and that the sponsorship would benefit the company’s business.
It is apparent from the material before the court that the applicant for approval as a business sponsor was ABC World Pty Limited which was said to be “trading as ABC World Travel”. This was the description of the company in the letter accompanying the sponsorship application dated 31 December 2003 from the managing director of the company to the Department and is reflected in the sponsorship application form which was completed in the name of “ABC World Pty Ltd/ABC World Travel”. There is no reference in the material provided in connection with the application to any “subsidiaries” or to other businesses and it has not been established that the Tribunal erred by failing to understand the nature of the applicant’s business as contended. In the submissions accompanying both the sponsorship and the review applications the applicant was described as being a travel business. The Tribunal referred to the business as a travel consultancy. It addressed the applicant’s claims. In particular the Tribunal correctly observed that the applicant did not claim to introduce, utilise or create new or improved technology or business skills (this section of the application form having been marked N/A). The contentions about information technology, the visa applicant’s qualifications and the potential benefit to the business were also put to the Tribunal on review and set out in the Tribunal decision. It understood the nature of the position proposed for the visa applicant. However the applicant failed because it did not meet the criteria in Regulation 1.20D(2)(c) and (6). This claim does not establish jurisdictional error.
The next two paragraphs in the application form are as follows:
1. ABC Travel is a service industry. The most important part is the company cash flow, not the net assets. The travel business has made income by providing a proper service. It is different from other business such as manufacturing.
2. The company’s annual balance sheet has been audited and assessed by travel compensation fund as very healthy.
These grounds take issue with the Tribunal findings of fact and seek merits review. Again it appears to be contended that the Tribunal failed to understand the nature of the business. The first ground appears to take issue with the Tribunal’s reference to the fact that the audited financial reports for the year ended 30 June 2003 showed that the applicant had high liabilities over net assets and that retained profits were low. The assertion that the “most important part” was the company cash flow not the net assets was also made in the letter accompanying the application for review. Nonetheless the Tribunal reached conclusions in relation to the applicant’s ability to comply with the financial aspects of its undertakings (in particular to meet the proposed remuneration of the visa applicant and costs for his dependants) on the basis of the evidence before it. The applicant was made aware by the delegate’s decision of concerns about what the financial statements for the year ending 30 June 2003 revealed. While the applicant took issue with the conclusions of the delegate about the significance of the net assets, it provided no further financial information to the Tribunal other than the uncorroborated claim about the health of the company’s balance sheet. In those circumstances the conclusions of the Tribunal were open to it on the material before it. The matters raised by the applicant about the nature of the travel business do not demonstrate any jurisdictional error by the Tribunal. Similarly the asserted fact that the company’s annual balance sheet had not only been audited but assessed by the Travel Compensation Fund as very healthy (which was also made in the application for review by the Tribunal) does not establish that the Tribunal erred in making its findings in relation to the issue of the applicant’s ability to comply with undertakings in respect of visa holders. If the applicant wished to contend that its cash flow was such as to demonstrate the necessary ability to meet financial undertakings it was open to it to put a detailed submission in this respect to the Tribunal. It did not do so.
The final ground of review in the application asserts that the proposed visa applicant has been paid since July 2003 and that his salary has increased about three times and that he is currently paid $A50,000 per year. This is said to show that the Tribunal decision is “not right in regards to the ability of the company’s sponsorship”.
However the Tribunal did not have information before it to substantiate the factual matters that the applicant now asserts. All that the Tribunal was informed of on the material before it was that Mr Li (the person who the applicant sought to sponsor) was to be employed as an IT specialist manager for a total remuneration of $39,240 and a base salary of $36,000. The only financial reports before the Tribunal were those for the year ended 30 June 2003. These reports did not identify the recipients of the salaries recorded as having been paid. (Salaries were shown as a total of $72,020). In the business sponsorship application of December 2003 it was stated that the visa applicant had worked for the company for six months. A letter of employment dated 28 June 2003 was provided stating that his salary would be $36,000 per annum as from 1 July 2003. It would appear from this information that the only financial reports provided in support of the application related to a period prior to the employment of the proposed visa holder. It was open to the Tribunal to find that the financial reports which were provided did not provide support for the applicant’s claim of being able to meet its undertakings with respect to the proposed visa holder. The Tribunal asked the applicant for updated financial reports (balance sheets and profit and loss statements) in the letter of 27 September 2004 but no such material was provided.
It has not been established that the Tribunal failed to consider any relevant material before it. Its conclusions were open to it on the material before it for the reasons that it gave and the grounds raised in the application do not demonstrate any jurisdictional error on the part of the Tribunal. Merits review is not available in the court.
Further, it is notable that no issue is taken in the application with the Tribunal consideration of Regulation 1.20D(2)(c). There is nothing in the Tribunal reasons for decision to suggest that it misapplied this part of the applicable Regulation. (See Nice Shoes Aust Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252 at [13]-[16]). Its findings in this respect constitute a separate independent basis for its decision in relation to which no jurisdictional error has been established.
In the hearing Mr Yuan, the managing director of the applicant raised a number of issues. First he contended that he had more recent financial information in relation to the situation of the applicant. However this is not a rehearing and more recent information is not of assistance in determining whether the Tribunal made a jurisdictional error on the material before it.
He also described some of the business activities engaged in by the company and the need to outsource certain work to China in the absence of an appropriately qualified IT specialist such as was proposed to be employed. Again this does not establish that the Tribunal fell into jurisdictional error.
It was suggested that because the Tribunal decision was not made until 17 September 2004 the Tribunal should have considered more up-to-date financial reports. The difficulty with this contention is that the Tribunal had invited the applicant (in the letter of 27 September 2004 and attached checklist) to provide updated balance sheets and profit and loss statements, but none had been provided. Nor has it been established that the Tribunal was aware of the possibility that the facsimile of 27 September 2004 had not been brought to the attention of the applicant. The facsimile transmission report indicates a correct and normal transmission.
Mr Yuan claimed that the applicant failed to receive the faxed letter of 27 September 2003 inviting it to provide further documentation. He acknowledged that the letter was addressed to the correct facsimile number which was provided by the applicant to the Tribunal in connection with the review application and that the applicant had agreed to the Tribunal communicating with it by email or facsimile. Mr Yuan suggested however that sometimes the Tribunal sent correspondence by facsimile and sometimes by mail and that sometimes they did not receive material sent to a particular facsimile machine. It was contended that the Tribunal should have contacted the applicant to ascertain whether it was going to respond to the letter of 27 September 2004. There are a number of points to make about these contentions. First, the applicant was invited to provide more up-to-date financial reports. It did not do so. I am not persuaded that the Tribunal was obliged, either under the provisions of the Migration Act or by principles of natural “justice” (putting aside any question of the effect of s.357A) to make further inquiries either of the applicant or otherwise in such circumstances. Nor was it obliged to contact the applicant to inquire as to whether it was going to respond to the letter of 27 September 2004. In this respect I note that the Tribunal did write to the applicant on 28 October 2004 advising that a decision had been made and would be handed down on 17 November 2004. There is nothing to suggest that the applicant contacted the Tribunal in response to this letter. It was open to the Tribunal to communicate with the applicant by mail or by email or facsimile. The fact that the applicant’s managing director now suggests that the company did not receive all facsimiles is not something that demonstrates error on the part of the Tribunal. There is no suggestion that the applicant sought to vary or withdraw its agreement that it could be communicated with by email or facsimile. No jurisdictional error is established by these contentions.

In oral submissions and in supplementary written submissions counsel for the respondent addressed the issue of whether the Tribunal had complied with relevant procedures under the Migration Act 1958 (C’th) in relation to the letter of 27 September 2004. The applicant was given the opportunity to provide post-hearing written submissions but did not do so. Section 359(1) of the Migration Act 1958 provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Section 359(2) provides that the Tribunal may invite a person to give additional information. The letter of 27 September 2004 was such an invitation. Pursuant to s.359(3)(a) the invitation must be given by one of the methods specified in s.379A. Section 379A(5) provides for the giving of a document by fax to the last fax number provided to the Tribunal by the recipient in connection with the review.
On the information before me I am satisfied that the Tribunal gave the invitation in the letter of 27 September 2004 to the applicant by fax sent to the last fax number provided by the applicant (that being the fax number in the application for review) and that this was by one of the methods specified in s.379A. Hence the Tribunal complied with s.359(3).
Critically s.359B then becomes relevant. It provides, relevantly, that if a person is invited under s.359 to give additional information, if the invitation is to give additional information or comment otherwise than at an interview (as here) then, pursuant to s.359B(2), the information or comments are to be given “within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period”. A period is prescribed by Regulation 4.17(4) which applies in relation to invitations other than invitations to detainees or those relating to a review of a cancellation decision. It provides:
If the invitation relates to any other application for review, the prescribed period for giving the information or comment starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.
As the invitation to comment in this instance was given by fax in accordance with s.379A it is taken, by s.379C(5), to have been received by the applicant at the end of the day on which the document was transmitted. That means that the document was taken to have been received by the applicant (whether or not it actually received the document) at the end of the day on which it was transmitted, being 27 September 2004. Hence the prescribed period for providing information ended at the end of 28 days after 27 September 2004 (that is at the end of 25 October 2004). Provided that the Tribunal gave the applicant the requisite period within which to respond to the invitation, the fact that the applicant did not give any information in response to the s.359 invitation within the prescribed period meant that s.359C would operate. It relevantly provides that if a person is invited under s.359 to give additional information and does not give the information before the time for giving it has passed the Tribunal may make a decision on the review “without taking any further action to obtain the additional information”. It is clear that, contrary to what was suggested by the applicant, the Tribunal is not under any obligation to verify with the applicant by phone call or otherwise whether or not it intends to respond to a section 359 invitation. Moreover, if s.359C(1) applies to the applicant it is not entitled to appear before the Tribunal in a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (s.360(3)).
The applicant contended in oral submissions that the Tribunal failed to comply with s.359B(2) because the invitation in the letter of 27 September 2004 did not give the prescribed period for information to be given. It is necessary to determine whether the statement “the effect of this is that you have a total of 28 days from the date of this letter to respond” in that letter should be construed as giving the applicant 28 days including the date on which the letter was dated rather than a period calculated from the day after the invitation was received as required by s.359B(2) and Regulation 4.17(4).
In NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1520 (upheld on appeal in NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 25) Sackville J pointed out, at [33], that the effect of s.424B(4) (the similarly worded provision applicable to a review by the Refugee Review Tribunal) is to require the invitation to specify the prescribed period as the period within which information is to be provided and “no other period can be specified” (although the Tribunal can extend the period). In Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 434 I held that an invitation under s.359(2) of the Act which was posted to an applicant and which specified that it was to be responded to within 28 calendar days from the date of notification complied with s.359B and that the time provided for in that letter met the requirements of Regulation 4.17(4). That decision was upheld on appeal in Nadezhkin v MIMIA [2005] FCA 128.
It is appropriate to consider the construction of the phrase in question in context. The relevant paragraph in the letter of 27 September 2004 is as follows:
Your written comments should be provided within 28 calendar days of the date of notification of this invitation. As this letter has been sent by facsimile, you will be considered to have been notified of this invitation on the date of this letter. The effect of this is that you have a total of 28 days from the date of this letter to respond. (Bold appears in original letter).
Construction of this paragraph as giving the applicant 28 days after (and not including) the date of the letter to provide the requested information would be consistent with the general principle that in computing a period of time from a date: “the period will commence at the end of the day of that date” (see Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662 at 668 per Barwick CJ and at 671 per Owen J). In other words where a period is fixed from a particular day for the doing of some act that day is excluded. (Also see Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989 ALR 283 at 286 – 297 per Burchett J). I have borne in mind that as Barwick CJ pointed out in Associated Beauty Aids at 668:
While the word “from” may have an inclusive or, more usually, an “exclusive or separate quality”, … “it derives its relevant quality from the context in which it is found, which includes the purpose which the document in which it is found is evidently designed to effect”.
In this instance the expressions “within 28 calendar days of the date of notification of this invitation” and “a total of 28 days from the date of this letter” appear in a document, the purpose of which is to give the applicant the statutorily mandated opportunity to provide requested information. I consider that in the context of such a letter where the notification by facsimile was said to have occurred on the date of the letter, these words show that what was meant was that the date of the letter should be excluded in the computation of the time for response (also see Re Serafino at 287 and Gribbles Pathology (Vic) Pty Ltd v His Honour Judge Allan (1992) 57 SASR 218 at 221 per Olsson J). Consistent with what Day J stated in 1891 (in South Staffordshire Tramways Co v Sickness Accident Assurance Association [1891] 1 QB 402 at 404 – 405):
I cannot but think that, as regards time, “from” is akin to “after”, and excludes the date fixed for the commencement of the computation.
In the letter of 27 September 2004 the critical issue is when the period of notice expires. I am satisfied that the letter gives the applicant a period of notice that expired at the end of 28 days after the day on which the invitation was notified. As such it complies with Regulation 4.17.
As the letter of invitation gave the prescribed period of notice s.359B(2) was complied with by the Tribunal. As the applicant did not give the information requested before the time for giving it had passed the Tribunal was empowered under s.359C(1) to make a decision without taking any further action to obtain the additional information. In the reasons for decision the Tribunal referred to the absence of a response. It exercised its discretion to make a decision on the review without taking any further action to obtain the additional information. Section 360(3) also came into effect (see s.360(2)(c)) so that the applicant was not entitled to appear before the Tribunal.
The Tribunal gave the applicant the requisite period within which to respond to the invitation to give further information before sending the letter of 28 October 2004 which advised that a decision had been made which would be handed down on 17 November 2004. The Tribunal met its obligations even if the applicant did not in fact receive the invitation of 27 September 2004 because it was taken to have received such invitation under s.397C(5). Hence it is not necessary to address the claim of the applicant’s managing director that the invitation of

27 September 2004 was not actually received. Even if the applicant had established that the faxed letter was not in fact received (a matter about which the director made submissions but provided no evidence) I am satisfied that in properly sending this letter to the facsimile number provided in the course of a Tribunal review conducted as set out above the Tribunal met any obligation to accord the applicant procedural fairness. It would be unfortunate if such letter had not come to the attention of the relevant employee of the applicant for response. However this does not mean that the Tribunal made an error reviewable by this court.
No failure to comply with the Migration Act 1958 or denial of natural justice has been established. Accordingly it is not necessary to consider whether a breach of the Migration Act 1958 necessarily amounts to a jurisdictional error. (See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24) or the effect of s.357A of the Act.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 July 2005