Arya Group Pty Ltd v Minister for Immigration and Border Protection
[2022] FedCFamC2G 327
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arya Group Pty Ltd v Minister for Immigration and Border Protection [2022] FedCFamC2G 327
File number(s): MLG 2743 of 2017 Judgment of: JUDGE EGAN Date of judgment: 10 May 2022 Catchwords: MIGRATION – Nomination application for a work visa – requirement for nominated position to be a genuine one – finding by Tribunal that position was not genuine – no jurisdictional error established – application dismissed. Legislation: Section 140GB of the Migration Act 1958 (Cth). Migration Regulations 1994 (Cth) r. 2.72(10)(f). Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 .Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 7 April 2022 Date of hearing: 7 April 2022 Place: Sydney Counsel for the Applicant: Ms G Costello QC Solicitor for the Applicant: Oboodi Solicitors Counsel for the First Respondent: Mr A Solomon-Bridge Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2743 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARYA GROUP PTY LTD ATF ARYA GROUP
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
10 MAY 2022
IT IS ORDERED THAT
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 28 January 2022 be dismissed.
3.The Applicant pay the First Respondents costs of and incidental to the Amended Application for Review, as agreed, or failing agreement, to be assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant company made a Subclass 457 Nomination Application on 3 February 2017 pursuant to the provisions of s. 140GB of the Migration Act 1958 (Cth) (the Act) and r. 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The job position in the nomination application was described as being “Sales & Marketing Manager (Business Development).” The occupation identified was “Business Development Manager.” The nominee in respect of the application was the brother in law of a director of the applicant, namely one Mr Jalali. The relevant ANZSCO code was said to be 131112 – Sales and Marketing Manager. [1]
[1] Exhibit 1 – Court Book (CB) p. 3.
An affidavit of one Adam Cunynghame filed on 12 October 2021 had annexed thereto an Integrated Client Services Environment (ICSE) record which demonstrated that an earlier nomination application made by the applicant was refused on 6 October 2015. The nominee in respect of that nomination application was also Mr Jalali, the same nominee in respect of the subject application.
ANZSCO 131112 relevantly provided as follows:
“131112 Sales and Marketing Manager
Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
IT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill level: 1
Specialisations:
Business Development Manager
Market Research Manager”
A delegate of the Minister refused to approve the nomination application on 6 September 2017 because the delegate was not satisfied that the nominated position associated with the nominated application was genuine.
On 29 November 2017, upon review of the decision of the delegate, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the delegate. The Tribunal noted that the evidence before it was that a copy of an activity statement lodged with the ATO showed zero for paid wages, notwithstanding that the applicant’s director claimed that the applicant employed three people. The Tribunal further noted that the applicant’s director had stated that the nominee would not be involved in any direct sales, his stating that sales staff would be employed at some future time. The Tribunal’s findings on the evidence were relevantly set out at [31] – [39] of the Tribunal’s reasons as follows:
“[31]The Tribunal has considered the evidence provided by the applicant company both the documents held on the Department and Tribunal file and the oral evidence provided at hearing.
[32]The applicant company described a position in which the nominee would have to speak Persian and deal with wholesalers, suppliers and purchases. He claimed that the company mainly deals with goods from Iran and China. He did not explain why it was necessary for the position to speak Persian but not Mandarin except that he needed people he could trust.
[33]The evidence of the applicant is that there are three employees. The financial documents from Arya Group Trust provided show a small amount allocated for wages. A copy of an activity statement lodged with the ATO shows zero for wages. A copy of the View activity statement lodged with the ATO shows zero wages paid.
[34]The applicant’s evidence is that there are sub-contractors employed in the construction business. These sub-contractors are tradesmen.
[35]The evidence before the Tribunal is that the position is to assist with the import of materials and liaise with potential suppliers and customers.
[36]The evidence varied on this aspect as at first it was food-stuffs for Persian stores selling to the local Persian community. Later evidence was that the company wants to expand to large corporations such as Woolworths.
[37]The applicant stated that the nominee would not be involved in any direct sales. In the absence of any sales employees it is difficult to see how he would not be involved in direct sales to potential customers even if those customers were large supermarkets. When queried, the applicant stated that sales staff would be employed at a future date.
[38]The applicant further stressed that the business was to expand and the nominee’s expertise was required for this expansion to take place. The applicant described how he needed someone he could trust to manage the business while he and his fellow directors were out of the country. He stressed he could trust his brother-in-law.
[39]The evidence is that it is expected the nominee could look after the business in the absence of the directors as he is family and can be trusted.
The Tribunal found that the position associated with the nominated occupation was not genuine, as was required under r. 2.72(10)(f) of the Regulations.
Grounds of Review
On 14 December 2017, the applicant filed an Originating Application for Review. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 28 January 2022, the Grounds of which were as follows:
“1. The decision of the Tribunal is affected by jurisdictional error in that the Tribunal misconstrued or misapplied regulation 2.72(10)(f) of the Migration Regulations 1994 (Cth) by:
a.equating the company’s motivation to create a position enabling the visa applicant to secure an Australian visa with the notion that the employment position of sales and Marketing Manager for the company being non-genuine; and
b.failing to consider that the applicable ANZCO code for Sales and Marketing Manager included Business Development of as a specialisation.”
2. The decision is affected by jurisdictional error because the Tribunal’s reasoning as to whether the position was a genuine position is illogical, unintelligible and unreasonable. In particular, the Tribunal reasoned at CB 292-293 that the role was that of an Importer or Business Development Manager, or an importer/ sales representative role incorporating aspects of business development rather than a sales and marketing manager role (see [40] and [46] of the Decision). This reasoning is nonsensical because the ASZCO Code that the Tribunal said it looked at as a guide (see [44] of the Decision) included Business Development as a specialisation within Sales and Marketing Manager. Furthermore, a Sales and Marketing Manager, logically, can expand the business and then assume a managerial role for sales and marketing personnel.”
Both grounds of review relate to the issue as to whether the Tribunal erred in the way in which it considered whether or not the applicant had satisfied the relevant genuineness criteria as set out in r. 2.72(10)(f) of the Regulations. Ground 2 of the Amended Application for Review focussed upon the asserted error on the part of the Tribunal in the way in which it assessed the proposed role of the nominee having regard to the relevant ANZSCO job description.
It is trite that one must look at the reasons of the Tribunal as a whole when considering whether it had erred or not in the way in which it arrived at its decision. Quite apart from the Tribunal’s consideration of the nature of the nominated position in the context of the evidence before it, the Tribunal was clearly not satisfied as to the genuineness of the proposed nomination when it made the following findings:
(a)Notwithstanding that the evidence was that the applicant traded mainly in goods sourced from both Iran and China, the applicant only required a Persian speaking employee rather than an employee who spoke both Persian and Mandarin. [2]
(b)Notwithstanding that the nominated position was for a management role, the applicant’s financial documentation evidenced no payments in respect of wages for employees who might be managed. [3]
(c)The nominee vacillated and became confused when giving evidence about his past work history, particularly when he was questioned about his past employment in a managerial position.
(d)The applicant’s director stated that he employed subcontractors in the applicant’s business where clearly a subcontractor was not an employee. [4]
(e)Notwithstanding that it was asserted that the nominated positon would assist with the importation of materials and liaison in respect of the provision of foodstuff for Persian stores selling to the local Persian community, the evidence changed to be that the company required the nominee because it wanted to expand its supply to large corporations such as Woolworths. [5]
(f)The fact that the applicant was not to be involved in any direct sales, even though the nominator’s own financial records showed that it did not employ any other employees who might be involved in sales. [6]
(g)The fact that the evidence before the Tribunal pointed to the applicant’s nominated job position being more akin to an import/sales representative rather than that of a sales and marketing manager. [7]
[2] [32] of reasons
[3] [33] of reasons
[4] [34] of reasons
[5] [36] of reasons
[6] [37] of reasons
[7] [46] of reasons
The relevant findings and reasons of the Tribunal were set out at [40] – [47] of its reasons as follows:
“[40]The Tribunal accepts that the applicant may want a family member to be part of the company however the nominated position when looked at appears to be more one that is of an Importer or Business Development Manager.
[41]The Tribunal has considered earlier submissions provided by the applicant t the Department and held on the Department file which states that the co-director provides the details of the goods to be imported and instructs the nominee to search the market, fine the best price and negotiate the contract. The Tribunal accepts that the co-director may have a supervisory role however does not accept that the duties outlined for the nominee are those of a sales and marketing manager.
[42]The applicant provided the nominee’s CV, on that CV he studied a science degree which he stopped studying in 2009. The applicant’s evidence is that the nominee was employed in Iran in the family business and was a Sales and Marketing Manager in 2009. It was not explained how he could be at University and at the same time be occupying a high level, demanding job that has an important role in a company. The applicant gave evidence and provided documents to show that the company was a successful company. The Tribunal does not consider that a successful company could employ a manger who was juggling a Bachelor of Chemistry at University as well as being a Manager. The Tribunal considers that any role the nominee had in the family business in Iran has been exaggerated.
[43]In a copy of the duties expected of the position it is listed that the nominee would conduct site visits to restaurants, grocery stores and catering businesses to consult with wholesale customers, provide product information and identify customer needs. In a later statutory declaration Mr Torihi stated that the nominee would not be conducting lower skilled tasks, such as sales, as the targeted customers in Australia will be wholesalers. In that statement it was said that the position would negotiate with suppliers and customers.
[44]The Tribunal has considered the position as outlined in the documents and evidence provided by the applicant. The Tribunal has also looked at the ANZSCO code as a guide. The position is a high level position with expertise. The Tribunal considers that the position would be associated with a company that had a sales or marketing department or at the least some sales staff. The financial documents lodged with the ATO indicate that no wages were paid to staff. The evidence at the hearing is that there are three employees and subcontractors who are tradesmen. The evidence is that there is no sales/marketing staff. When queried about the sales at hearing the applicant stated that in the future there would be sales staff employed. He stated that this was after the business had expanded.
[45]At hearing the applicant stated the position was one which would manage the importing of goods and do research to ensure that Australian standards are met. The Tribunal considers that these duties align with an import manager.
[46]The Tribunal considers that it is possible for family members to be genuinely employed in a business and accepts that the applicant wants the nominee to be in his business as he feels he can trust him however when it considers the described tasks it finds that the role is not one of Sales and Marketing Manager but more akin to an Importer/Sales representative incorporating aspects of Business Development and in the absence of the applicant overall management.
[47]In this particular circumstances the Tribunal finds that the position has been developed to secure a visa for the applicant’s family members and is not a genuine position.”
Having read the decision and findings of the Tribunal as a whole, the Court is satisfied that the Tribunal did not err in the way in which it arrived at its decision. It found that the nomination was non-genuine. The Tribunal was entitled to make such finding based upon all of the evidence before it. Ground 1 of the Amended Application for Review is without merit.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Ground 2 of the Amended Application for Review was a claim that the reasoning of the Tribunal on the question as to whether the nominated position was or was not genuine was illogical, unintelligible and unreasonable. Such claim is without merit.
The Tribunal was entitled to find that the evidence adduced on behalf of the applicant indicated that the nominated role lacked a management focus, such that it did not satisfy the ANZSCO criteria. The lack of any plan on the part of the applicant to contemporaneously employ staff at the time of the proposed employment of the nominee was telling. Inherent in the role of a sales and marketing manager within the ANZSCO definition was the requirement for there not only to be a recognisable sales plan able to be the subject of management, but also for there to be people to manage. The Court was not satisfied that the applicant’s submissions grappled with the distinction between the evidence as to what type of role the nominee was actually going to fulfil, having regard to the fact that there were no other staff documented as being in employment, as opposed to the aspirations of the applicant for the future to employ extra people. Further, it was open to the Tribunal to find that the nominated position was not focussed on management, but rather upon tasks one would normally expect to be carried out by a sales representative. In that regard, at [43] of its reasons, the Tribunal noted that the duties listed as being expected to be carried out by the person in the nominated position included site visits to restaurants, grocery stores, and catering businesses. The Tribunal was entitled to find that such roles did not fit within the job description of sales and marketing manager, in that the role was not one where the proposed nominee “Plans, organises, directs, controls and coordinates the sales and marketing activities” of others. Rather, the role was one where the nominee was to carry out the sales and marketing activities himself.
It could not be said that the reasoning of the Tribunal demonstrated extreme illogicality or irrationality. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[54] … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, His Honour disagreed (at [26]-[27]).”
In any event, the applicant has failed to establish that even if the Tribunal was in error in the way in which it approached the question as to whether the applicant’s evidence established that the nominated position description fell within the ANZSCO definition, such error was material. The Court finds that the Tribunal had not fallen into error, but that even if it had, it could not be said that if it had not done so, it could realistically have arrived at a different decision.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Tribunal affirmed the decision of the delegate on the ground that the nominated position was non-genuine. The Tribunal did not err in so finding.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 6 May 2022
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