Auservices Pty Ltd v Minister for Immigration

[2020] FCCA 1250

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSERVICES PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1250

Catchwords:
MIGRATION – Application to be a business sponsor – Jurisdiction of Administrative Appeals Tribunal – where AAT ruled that they had no jurisdiction to hear a merits review – statutory interpretation of regulations – literal rule – mischief rule – absurdity rule – golden rule – proper interpretation of migration regulations – application allowed – writs issued.

Legislation:

Migration Act 1958 (Cth), s.140E(1),

Migration Regulations 1994 (Cth), regs.2.59, 4.02(4A), 4.02(4)(A)

Cases cited:

Tickner v Chapman (1995) 57 FCR 45

Applicant: AUSERVICES PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Applicant: ADMINISTRATIVE APPEALS TRIBUNAL

Amicus Curiae: ESTRIN SAUL LAWYERS

File Number: PEG 519 of 2018

Judgment of: Judge Vasta

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Brisbane

Delivered on: 14 May 2020

REPRESENTATION

Counsel for the Applicant: Mr N. Wong

Solicitors for the Applicant: HRL Legal

Counsel for the First Respondent: Mr P. Macliver

Solicitors for the First Respondent: Australian Government Solicitor

Solicitors for the Amicus Curiae Estrin Saul Lawyers

ORDERS

1. That a writ of Certiorari issue directed to the Second Respondent quashing its decision dated 20 September 2018.

2. That a writ of Mandamus issue directed to the Second Respondent requiring it to determine the applicant’s application dated 12 June 2017 according to law.

3. That the First Respondent pay the Applicant’s costs, fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 519 of 2018

AUSERVICES PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ESTRIN SAUL LAWYERS

Interested Person

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 20 September 2018, the Administrative Appeals Tribunal (“the AAT”) ruled that it did not have jurisdiction to hear a merits review lodged by the Applicant, Auservices Pty Ltd.  On 8 October 2018 the Applicant asked this Court to review that decision.  In effect, this review comes down to an application of the rules of statutory interpretation.

2. I do not wish to proceed through a thorough examination of the principles of statutory interpretation and the many nuances applicable.  But it seems to me that a brief summary would be of assistance to understand the remainder of this judgment.  The following summaries are extremely simplistic and do not do justice to what the rules are truly stating.  But for current purposes, the following summaries are sufficiently accurate so as to assist in understanding these Reasons. 

3. In short compass, the following rules of statutory interpretation are apposite in this matter:

   ·    The literal rule - this rule uses the plain ordinary meaning of words.  This rule can be summarised this way - a statute means exactly what it says.

   ·    The mischief rule - this rule looks at the reason for the statute being enacted in the first place.  This rule can be summarised this way - what mischief is the statute attempting to cure?

   ·    The absurdity rule - this rule is used when looking at the consequences of interpreting a statute by reference solely to the literal rule.  This rule can be summarised this way - are there any absurdities that result from a particular interpretation?

   ·    The golden rule - this rule is used to ensure that a common sense interpretation, in line with the intention of Parliament, results from the use of the other three rules.

4. By way of background, the Applicant sought approval as a standard business sponsor.  Reg. 2.59 of the Migration Regulations 1994 (“the Regulations”) sets out a number of criteria for approval as a standard business sponsor.

5. Section 140E(1) of the Migration Act 1958 (“the Act”) states:

   Minister to approve work and family sponsors

   1) The Minister must approve a person as a work sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.

6. Regulation 2.59 of the Migration Regulations provides:

   For subsection 140E(1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:

   (a)  the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and

   (b)  the applicant is not a standard business sponsor; and

   (c)  the applicant is lawfully operating a business (whether in or outside Australia); and

   (d)  if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more—the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and

   (e)  if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months—the applicant has an auditable plan to meet the benchmarks specified in the instrument made for paragraph (d); and

   (f)  if the applicant is lawfully operating a business in Australia:

   (i) the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and

   (ii)  the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and

   (g)  either:

   (i)  there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and

   (h)  if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia—the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or a proposed applicant (the visa applicant) for, a Subclass 457 (Temporary Work (Skilled)) visa, and the applicant intends for the visa holder or visa applicant to:

   (i)  establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or

   (ii)  fulfil, or assist in fulfilling, a contractual obligation of the applicant; and

   (i)  the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:

   (i)  the proposed number is reasonable, having regard to the information provided to the Minister; or

   (ii)  if the Minister proposes another number of persons as part of considering the application—the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and

   (j)  if the applicant has previously been a standard business sponsor:

   (i)  the applicant:

   (A)  fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and

   (B)  complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or

   (ii)  it is reasonable to disregard subparagraph (i).

7. Each of the ten criteria set out in s.2.59 of the Regulations are conjunctive but, obviously, a business is not going to be able to comply with all ten because of the way in which the criteria are framed. The first two criteria are fairly basic and would be germane to any application. The third criteria requires the applicant company to be lawfully operating a business (whether in or outside of Australia).

8. The fourth and fifth criteria, however, are framed in the alternative; that is, if a business fits the fourth criteria then there is no need to look at the fifth criteria.  And only a business that meets the third criteria (by being based in Australia) will be able to meet either the fourth or fifth criteria.

9. The sixth criteria is also predicated upon the applicant “lawfully operating their business in Australia” and it requires the applicant to attest that they have a strong record of employing local labour and will not engage in discriminatory recruitment practices. 

10. The seventh criteria is that there be no adverse information known to the department about the applicant or a person associated with the applicant or, if there is that adverse information, it was reasonable to disregard it.  This criteria is applicable to any business that meets the third criteria.

11. The eighth criteria deals with an applicant who is lawfully operating a business outside Australia and does not lawfully operate a business in Australia.  There are aspects of the criterion that are particular to such an applicant.  

12. The ninth criteria is that the applicant has advised the Minister of the number of persons who they propose to nominate.  This criteria is applicable to any business that meets the third criteria. 

13. Finally, the tenth criteria operates if the applicant had previously been a standard business sponsor.  In those circumstances, there are other matters that need to be looked at.

14. On my analysis, an applicant could meet up to 8 of the criteria but no less than six of the criteria.  Hence, whilst the 10 criteria are conjunctive, an applicant does not need to (and could not) meet all of the criteria.  The applicant does need to meet the criteria that actually apply to that applicant, and I will say more about that later in these Reasons.

15. When the Delegate looked at the merits of this matter, it looked at how this business had been operating.  It looked at the business plan and at its projections and had concerns about the actual business itself. 

16. At page 36 of the Court Book, the Delegate said this:

    It is my assessment that while the newly formed entity may legally exist, the evidence provided does not demonstrate that the business is lawfully operating inside Australia.

17. The Delegate then said:

    Consequently, as the applicant is not lawfully operating a business inside Australia, I am not satisfied the applicant meets paragraph 2.59(c) of the Regulations.

18. The Delegate said that because the Applicant did not satisfy paragraph 2.59(c) of the Regulations they were not satisfied that “the Applicant meets the prescribed criteria for approval as a sponsor”. 

19. The Delegate then said this:

    … I have not assessed the applicant against the other criteria of Regulation 2.59.

    Therefore, I refuse AUSERVICES PTY LTD’s application for approval as a standard business sponsor.

20. The Delegate wrote to the Applicant on 25 May 2017.  In that letter (found at page 30 of the Court Book), the delegate said:

    I wish to advise the application for approval as a sponsor has been refused.  The attached Sponsorship Refusal Decision Record outlines details about this decision.

    After careful consideration of all the information you have provided, I was not satisfied the relevant criteria for the grant of this sponsorship, as set out in Australian migration law have been met.

21. The next paragraph in that letter is headed “Review Rights”.  It provides: 

    No further assessment of this application for approval as a sponsor can be taken at this office. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision within 21 days after the day on which you were taken to have received this letter.

22. The Applicant did apply to the AAT for the merits review. 

23. The AAT looked at Reg. 4.02(4A). That Regulation was contained in the Regulations that limit the areas in which the AAT can conduct merit reviews.

24. Relevantly, the AAT noted:

    The application for approval was refused by the delegate because they were not satisfied that the applicant met r.2.59(c) of the Regulations.

25. Regulation 4.02(4A) provides:

    For paragraph (4)(a), the decision is not an MRT‑reviewable decision if the decision relates to a person:

    (a) whose application for approval as an approved sponsor in relation to the standard business sponsor class has been refused; and

    (b) in making the decision, the Minister did not consider the criteria at paragraphs 2.59(d) and (e).

    Note: The Minister is required to consider the criteria at paragraphs 2.59 (d) and (e) only if the applicant is lawfully operating a business in Australia

26. The Tribunal looked at this regulation and believed that, unless criteria (d) and criteria (e) were considered, the Tribunal had no jurisdiction to hear a merits review.

27. The Tribunal looked at the meaning of the word “consider”.  The Tribunal, following the Full Court of the Federal Court in Tickner v Chapman (1995) 57 FCR 451, noted that the Chief Justice, Black CJ, referred to the meaning of “consider” using the Oxford English Dictionary “as to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. The Chief Justice talked about “consideration” of a document involving an “active intellectual process” directed at that particular document. 

28. The Tribunal then said, at paragraph 5 of its decision, that:

    …to ‘consider’ something requires more than merely being aware of it and requires the subject to actively turn their mind to it and contemplate it in a meaningful way.

29. At paragraph 6, the Tribunal continued:

    … The delegate’s decision record in the case was clear. Based on the evidence available to them at the time, they were not satisfied that r.2.59(c) was met. No other criteria were considered in the decision record, and that the delegate said that they had not assessed the applicant against the other criteria of Regulation 2.59.

30. The Tribunal looked at whether Reg.4.02(4A) was ambiguous and concluded that they did not consider it to be ambiguous.  The Tribunal had regard to the “Note” which states that the Minister is only required to consider certain criteria if the Applicant was lawfully operating a business in Australia but determined that the “Note” did not have the operation of law and did not create an obligation to consider those criteria.

31. Ultimately, the Tribunal determined that, when one looks at the reasons given by the Delegate, it was clear that the Delegate did not consider Reg.2.59(d) and 2.59(e). This meant that, because the Delegate did not consider those two criteria, Reg.4.02(4A) applied.  Hence, the decision to refuse the Applicant’s application was not a Part 5 reviewable decision.

32. Having looked carefully at what the Tribunal concluded, it seems to me that the Tribunal has used the literal rule of statutory interpretation in interpreting of Reg.4.02(4A).  If one uses the literal rule, this would mean that, unless it can be established that the Delegate did give consideration to Reg.2.59(1)(d) and (e), then the application is not reviewable.

33. The question is: should the literal rule be the means by which this Court interprets that legislation. 

34. It seems to me that, when one looks at the provisions of Acts such as Legislation Act 2003 and the Acts Interpretation Act 1901, it is preferable for the Court to look at the mischief rule of statutory interpretation before one looks at the literal rule and then apply the absurdity rule before making the final interpretation using the golden rule. 

35. The First Respondent Minister has submitted to me that a statement of Lord Diplock is apposite to the present matter: “If… Courts can identify the target of… legislation, their proper function is to see that it is hit: not merely to record that it has been missed”.

36. It seems to me that the Parliament of Australia intends that Australian citizens (and permanent Australian residents) should be the persons who are first in line for any opportunity for paid employment in Australia.  There is an acknowledgement, however, that there will be instances, where it is in the best interests of the nation as a whole, that persons who are not Australian citizens (or permanent Australian residents) are actually employed in Australia. 

37. In my view, the purpose of Reg. 2.59 is mainly to ensure that any applicant has the sort of attributes that Australian society regards as not just favourable, but essential.  It also seems to me that the regulation draws a distinction between businesses that are located in Australia and those that are not.  On my reading of Reg. 2.59, the bar is set much higher for the latter applicants than the former.

38. A business in the former category would be asking that people, who were not Australian citizens or permanent residents of Australia, be given the right to come to Australia to work for them.  For that reason, the business needs to meet a certain standard.  This is especially so when one looks at criteria (d) and (e) of Reg. 2.59 that the business be able to train Australian citizens, or permanent residents, so that there is a growing expertise within the Australian population and that such a business will not need to forever rely upon a foreign workforce.

39. As I have already said, when looking at Reg. 2.59, it is only criteria (d), (e) and (f) that are contingent upon the Applicant lawfully operating a business in Australia.  The notation at Reg.4.02(4A) makes quite clear the legislative intent, noting that (d) and (e) are only applied if the business is lawfully operating in Australia.  It is this type of business that the legislature intends to give access to the merits review powers of the AAT. 

40. It does seem to me that the purpose of limiting the review is to limit a merits review to a business that is operating in Australia -- rather than one that is operating outside of Australia.  It is there to ensure that a business, which is not operating in Australia, does not have access to the merits review system of the AAT.  That seems to me to be the very strong intention of the Parliament and that is why the note to Reg.4.02(4A) is included.

41. In my view, if the mischief rule of statutory interpretation is utilised, then the purpose of Reg 4.02(4A) is to ensure that Australian-based businesses are entitled to merits review before the AAT. 

42. However, the literal rule would have that criteria (d) and criteria (e) must be considered before there can be merits review. 

43. I now turn to the absurdity rule of statutory interpretation. 

44. There are a number of absurdities that come out of a literal interpretation of the relevant Regulation.  The first is, as I have pointed out earlier, criteria (d) and (e) are alternatives; they operate respectively to whether a business has been operating for 12 months or less than 12 months.  As pointed out earlier, if a business is operating for 12 months or more, then one looks at criteria (d).  If one has been operating for less than 12 months, then one turns to criteria (e). 

45. They cannot both be literally “considered” in the way that the AAT has interpreted the term “consider”.  And yet, Reg.4.02(4A) says exactly that – i.e., that in making the decision “the Minister did not consider the criteria at Reg.2.59(d) and (e)”.  Literally, the Minister cannot consider both of those paragraphs because they are alternatives.  If a delegate considers (d), then that delegate could not be considering (e); and, if a delegate considered (e), then that delegate would not be able to consider (d).  This would mean that no person, whose application for approval as an approved sponsor was refused, would be able to launch a merits review.

46. Even more importantly, if this regulation were interpreted according to the literal rule, then it means that the legislature has given unprecedented power to the Delegate.  This is because the Delegate, depending upon the way the Delegate decided to frame their reasons, could either invite merits review or not invite merits review.

1. In this case, the delegate has said that they did not find that the Applicant met Reg.2.59(c) and the Delegate did not then assess the Applicant on any other criteria.  If the Delegate had said words to the effect, “Because I have found that that criteria 2.59(c) has not been met, then there is now no need to look at any of the other criteria further”, then necessarily that would mean that the Delegate had “considered” those criteria and found that there was no need to consider them further.

2. Another example is seen where an applicant may be able to satisfy the provisions of criterion (c) and criterion (d) but not criterion (g).  If a delegate went through the criteria alphabetically and assessed criteria (c) and (d) first and then assessed criterion (g) and refused the application because of the non-satisfaction of criterion (g), then such an application would be entitled to a merits review.  However, if the delegate went straight to criterion (g) and made a decision on that basis and then decided not to assess any other criteria, such an application would not be entitled to a merits review.  This is an obvious absurdity.

3. The clear intent of Parliament is that there be some certainty as to what applications are able to access a merits review.  An applicant must know, at the time that they are making their application, whether or not the application is capable of being reviewed if it is unsuccessful.  Any interpretation of the regulations that denies this basic premise cannot be said to reflect the intention of Parliament.  Nor could it be described as anything other than “absurd”.

4. Hence, an interpretation according to the literal rule would mean that such phrasing by the delegate is what invites a merits review.  In effect, it is the same decision but the manner in which the Delegate has decided to express that view determines whether or not there is a merits review. Such a results is unacceptable and absurd. It seems to me then that the literal rule cannot be accepted as a proper guide to interpreting Reg.4.02(4A).

5. I do note the submission that there is a difference between “considering” a matter, and “assessing” a matter.  “Considering” a matter does mean that there is an intellectual engagement with the matter.  Such consideration may be as simple as saying, “I have looked at all ten criteria, and “assessed” the ones that are relevant.”  This would be sufficient and would show a difference between consideration and assessment.  There is merit in that submission.

6. However, it does seem to me that a problem with that submission may be that a foreign business, who was denied the sponsor application, may also say, “Well, there did have to be some consideration by the Delegate, even if that consideration is that criteria (d) and (e) did not apply”.  And if such an interpretation were correct, this would mean that a sponsor, who did not lawfully conduct a business in Australia, would still have the right to a review.

7. In my view, the manner of interpretation starts with the consideration of Reg. 2.59.  As I have earlier noted, there are 10 criteria in that regulation which are all expressed in conjunctive terms.  However, the maximum number of criteria that could be assessed is eight.  That is because it is only the criteria that apply to an applicant that are capable of being assessed.

8. Therefore, the first step for any adjudicator, asked to determine whether an applicant has met the criteria in Reg 2.59, is to decide which of the criteria apply to that applicant. If the business is based in Australia, criteria (a), (b), (c), (d), (e), (f), (g), (i) and (j) will apply. If the business is not based in Australia, criteria (a), (b), (c), (g), (h), (i) and (j) will apply.

9. The next step is to consider those criteria that apply to the applicant. At this stage, for a business based in Australia, either criterion (d) or criterion (e) will drop out and criterion (j) may also drop out.

10. The final step is to assess whether the applicant has actually met those criteria.  At this stage, if any one of the remaining criteria are assessed as having “not been met”, there will be no need to assess the other criteria because these criteria are conjunctive.

11. To my mind, this is the proper way to interpret what the Legislature has asked the Executive to do when exercising the power under these regulations.

12. If this is the process, then it means that the criteria in Reg. 2.59 cannot be “considered” until it has been found that they “apply”.  It also means that the criteria cannot be “assessed” until they have been “considered”.

13. This is the framework under which Reg. 4.02(4A) must be interpreted.  The golden rule of statutory interpretation is therefore applied.  The regulations must be interpreted in a way that embodies the intent of the Parliament and will not lead to absurdities.  The interpretation must be such that it does not vary and can be applied consistently.

14. It seems to me then that if a business is based in Australia it will have the right to have a merits review conducted by the AAT. 

15. If a business is based in Australia, the Delegate must turn their mind specifically to these issues: whether the business is lawfully operating; whether the business has been established for 12 months or less than 12 months; whether the business does have a benchmark for the training of Australian citizens; whether the business has an auditable plan to meet the benchmarks specified for the training of Australian citizens; whether the business has attested, in writing, to having a strong record, or has demonstrated a commitment to employing local labour; and, whether the business has declared, in writing, that they will not engage in discriminatory recruitment practices.  In other words, the delegate must “consider” these issues.

16. It seems to me that this present Delegate has “considered” these issues notwithstanding that they have not directly said that they have considered those matters. Because of the assessment that the business was not operating, there has been no assessment of that Australian business on any of those other criteria that I have just enumerated.

17. But that does not mean that there has not been a consideration. The manner in which Reg.4.02(4A) should be construed means that there has been a “consideration” of criteria (d) and (e).

18. For that reason, I am of the view that this Applicant was entitled to a merits review. 

19. I therefore find that the AAT was in error. That error is a jurisdictional error.

20. In coming to that conclusion I do not wish to, in any way, be seen to be criticising the AAT or the Member who came to that decision.  Theirs was not an easy task and it does seem to me that there were many attractions in interpreting the Regulation using the literal rule.  However, for the reasons that I have already outlined, I do not accept that the literal rule was the proper rule to use here and have instead preferred the golden rule.

21. In light of the above, I will allow the application and will issue the appropriate writs that quash the decision of the Tribunal.  I will also order the Tribunal to consider the matter on the merits.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     29 May 2020

ADDENDUM TO EX TEMPORE JUDGMENT

A.Paragraphs 2 and 3 of the above Reasons were not part of the original Ex Tempore Judgement delivered on 14 May 2020 and have been added for further clarification and explanation.