Australian International Islamic College v Minister for Immigration
[2020] FCCA 2701
•30 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN INTERNATIONAL ISLAMIC COLLEGE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2701 |
| Catchwords: MIGRATION – Nomination application in respect of 457 visa holder nominee – expenditure on training required to meet regulatory benchmark – benchmark expenditure not achieved – whether failure to achieve benchmark ought reasonably to be disregarded – discretionary considerations – no basis for finding that exercise of discretion was unreasonable – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.140E Migration Regulations 1994 (Cth), rr.2.59(d), 2.87B, 2.87B(5), 5.19. Ministerial Instrument IMMI 13/030, IMMI17/045. |
| Cases cited: Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 Minister for Immigration and Border Protection v Pandey [2014] FCA 640. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. |
| Applicant: | AUSTRALIAN INTERNATIONAL ISLAMIC COLLEGE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1052 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 5 June 2020, 28 September 2020 |
| Date of Last Submission: | 28 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 30 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A See |
| Solicitors for the Applicant: | Chand Lawyers |
| Solicitors for the First Respondent: | Mr S Cummings, Solicitor of Sparke Helmore |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The Further Amended Application for Review filed on 4 August 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $10,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1052 of 2019
| AUSTRALIAN INTERNATIONAL ISLAMIC COLLEGE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
It is not in dispute that:
a)the applicant was approved as a Standard Business Sponsor on 5 July 2016; and that
b)by reason of such approval, the applicant was required to comply with a statutory obligation to provide training pursuant to the provisions of r. 2.87B of the Migration Regulations 1994 (Cth) (“the Regulations”).
Regulation 2.87B of the Regulations provided as follows:
“2.87B Obligation to provide training
(1) This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6) If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.”
On 30 June 2017, the applicant made application for an Employer Nomination for a Permanent Appointment in respect of a person nominated to be a “Canteen Manager”.
By r. 2.87B(5), the applicant was required to demonstrate that it had complied with its training obligations for a period of 3 years after the date on which the applicant was approved as a Standard Business Sponsor.
It is not in dispute that prior to 30 June 2017, the applicant had lawfully operated a business in Australia and had traded in Australia for a period exceeding 12 months.
Section 140E of the Migration Act 1958 (Cth) (“the Act”) provided that it was the Minister who must approve a person as a sponsor under one of the classes prescribed by regulation. Section 140E of the Act provided as follows:
“Section 140E 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.”
By r. 2.59(d) of the Regulations, it was provided as follows:
“2.59 Criteria for approval as a standard business sponsor
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:
…
(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”
As the nomination application was made on 30 June 2017, the relevant instrument in writing which set out the training benchmarks which had to be met was IMMI 13/030. That instrument relevantly provided as follows:
“SPECIFICATION OF TRAINING BENCHMARKS AND TRAINING REQUIREMENTS
(Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I))
I, BRENDAN O’CONNOR, Minister for Immigration and Citizenship, acting under regulations 2.59, 2.68, 2.87 and 5.19 of the Migration Regulations 1994 (‘the Regulations’):
1. REVOKE instrument IMMI 12/062 signed on 12 June 2012 specifying the benchmarks for the training of Australian citizens and Australian permanent residents, for the purposes of paragraphs 2.59(d) and 2.68(e) and sub-sub-subparagraphs 5.19(4)(h)(i)(B)(I) and 5.19(4)(h)(i)(B)(II) of the Regulations: AND
2. SPECIFY for the purposes of paragraphs 2.59(d) and 2.68(e) and sub-subsubparagraph 5.19(4)(h)(i)(B)(I) of the Regulations that the benchmarks for the training of Australian citizens and Australian permanent residents are those listed at Schedule A to this Instrument.
3. SPECIFY for the purposes of subregulations 2.87B(2) and 2.87B(3) of the Regulations that the requirements relating to training that the person must comply with, are the benchmarks for the training of Australian citizens and Australian permanent residents listed at Schedule A to this Instrument.
This Instrument number IMMI 13/030 commences on 1 July 2013, immediately after commencement of the Migration Legislation Amendment Regulation 2013 (No. 3).
Dated June 28 2013
Brendan O’Connor
Minister for Immigration and Citizenship
SCHEDULE A
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Expenditure that can count towards this benchmark includes:
·paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
·funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
·employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
·employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
·evidence of payment of external providers to deliver training for Australian employees
·on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
othe learning outcomes of the employee at each stage;
ohow the progress of the employee will be monitored and assessed;
ohow the program will provide additional and enhanced skills;
othe use of qualified trainers to develop the program and set assessments; and
othe number of people participating and their skill/occupation
Expenditure that cannot count towards this benchmark includes training that is:
·delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
·confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
·only undertaken by persons who are not Australian citizens or permanent residents
·only undertaken by persons who are principals in the business or their family members
·only relating to a very low skill level having regard to the characteristic and size of the business.”
IMMI 17/045, though made on 23 June 2017, was expressed to not commence until 1 July 2017, namely one day after the making by the applicant of its nomination application. It further provided, by cl. 7 of that instrument:
“7.This instrument applies to nominations or standard business approvals lodged on or after commencement of this instrument.”
The Explanatory Statement to IMMI 17/045, by cl. 4 thereof, also provided:
“4. This instrument is prospective so it will only apply to nominations or standard business approvals lodged on or after commencement.”
Rejection of Application for Sponsorship Nomination
Regulation 5.19 (1), (2), and (3) (d) and (f) of the Regulations provided as follows:
“5.19 Approval of nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b) be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
…
(d) for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
…
(f) either:
(i) the nominator:
(A) fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note: Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day”
No supporting documents were lodged in support of the nomination application, nor were any subsequently provided to the delegate or the Department. The delegate therefore found that they were not satisfied that the applicant had the financial capacity to employ the nominee on the nominated salary for a period of at least 2 years, as was required by r. 5.19(3)(d)(i) of the Regulations. On 3 August 2017, the delegate refused the nomination application.
On 24 August 2017, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision. The applicant provided supporting evidence to the Tribunal relating to its expenditure on training both before and after a Tribunal hearing which was conducted on 1 October 2019.
On 6 November 2019, the Tribunal affirmed the decision of the delegate. It found that the applicant had not met the requirements as set out in r. 5.19(3)(f) of the Regulations.
On 9 December 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 4 August 2020, the grounds of which were as follows:
“Further Amended Grounds of application
1. The Second Respondent committed jurisdictional error when it determined that the Applicant had not satisfied the requirements set out within Regulation 5.19(3)(f) of the Migration Regulations 1994 (See paragraph 31 of the Court Book, p1156)..
(a) The Second Respondent embarked upon the wrong task when making its decision that the Applicant had not satisfied the requirements at Regulation 5.19(3)(f)
(i) The Second Respondent failed to make a specific finding that the requirements of Regulation 5.19(3)(f)(i) were not met;
(ii) Nowhere within the decision does the Second Respondent determine that the Applicant has not fulfilled its training commitments made relating to meeting the Applicant’s training requirements in accordance with Regulation 5.19(3)(f)(i)(A)
(b) In undertaking its task and assessing whether the Applicant has fulfilled its training commitments for the purposes of Regulation 2.87B (3) of the Migration Regulations 1994, the Second Respondent has failed to draw the distinction between the training commitments the Applicant gave in accordance with IMMI 13/030 and any subsequent changes to the training expenditure “policy” as issued by the First Respondent.
(i) In paragraph 22 of the decision (Court Book p1154), the Second Respondent has failed to identify the training commitments made by the Applicant in accordance with Regulation 2.59(d), 2.87B(3) aad having regard to IMMI 13/030.
(ii) Within its decision, the Second Respondent purportedly relies on IMMI 13/030 and its related policy when it states that “training software was listed in the policy as an e-learning platform expense….but (that ) the policy does not list hardware”
(c) In undertaking its task, the Second Respondent misapplied the way in which the training commitments of the Applicant were to be assessed, when it:
(i) Failed to recognise that the examples of applicable expenditure set out within Schedule 1 to IMMI 13/030 provided a non-exhaustive list only;
(ii) Erroneously discharged its task by enabling the First Respondent’s policy to override or usurp the language of the Regulation;
(iii) Thereafter disallowed the training expenditure identified by the Applicant in the amounts of $22,230 (Sponsorship year 5 July 2016-4 July 2017) and $17,358 (Sponsorship Year 5 July 2018 – 5 July 2019) on the basis that it was expenditure purportedly not entitled to be recognised for the purposes of Regulation 5.19(3)(f)(i)(A).
2. In the alternative, in reaching its decision, that the Applicant did not meet the (temporary residence transition nomination) requirements of regulation 5.19 (3) of the Migration Regulations 1994, the Second Respondent failed to take into account relevant considerations when considering whether or not it should exercise its discretion under regulation 5.19(f)(ii) and disregard sub-paragraph (i) of that regulation.
Particulars
(i) On 30 June 2017, the Applicant applied to the First Respondent for approval of a nominated position under the temporary residence transition requirements set out within regulation 5.19(3) of the Migration Regulations 1994.
(ii) At the time of making that application, the Applicant had complied with the requirements of Regulation 2.59(d).
(iii) The Applicant thereafter had an obligation to maintain training expenditure in accordance with Regulation 2.87B(3).
(iv) The First Respondent erroneously decided to reject the application for approval of nomination on 3 August 2017.
(v) On 24 August 2017, the Applicant applied to the Second Respondent for a review of the First Respondent’s decision.
(vi) At the time of making that application, the Applicant had complied with the requirements of regulation
5.19(3)Regulation 2.87B and Regulation 5.19(3)(f)(i)(A) .(vii) The Second Respondent reached its ‘review decision’ on 6 November 2019 and:-
(a) failed to take into account that the Applicant had complied with the requirements of regulation 5.19(3)(f)(i)(A) up and until the making of its application for review.
(b) failed to take into account that the Applicant relied on an
erroneousunderstanding of the training requirementsbrought about as a result of the introduction of new Training Benchmarks as contained in Schedule 1 to Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017, when prosecuting its case before the Second Respondentas contained within IMMI 13/030 that computer hardware purchased for training, was applicable expenditure for the purposes of that instrument.(c) failed to take into account that the Applicant would have otherwise complied with the requirements of regulation 5.19(3) of the Regulations had the First Respondent made known that computer hardware purchased for training, was not applicable expenditure for the purposes of IMMI 13/030.
3. That the Failure of the Second Respondent to exercise the discretion under Regulation 5.19(3)(f)(ii) of the Regulations and disregard Regulation 5.19(3)(f)(i), amounted to jurisdictional error, in that the reaching of its decision to refuse the nomination of the Applicant in such circumstances, was manifestly unreasonable.”
Analysis
At [8] of its reasons, the Tribunal recorded that the issue before it was whether the applicant met the requirements for approval as set out in r. 5.19(3) of the Regulations. It was noted by the Tribunal that all requirements of such regulation had to be met for approval to be granted.
At [9] – [14] inclusive of its reasons, the Tribunal set out in detail the documentation which had been provided to it in support of the application, together with an overview of the commercial operations of the applicant.
At [15] – [16] inclusive of its reasons, the Tribunal summarised the statutory requirements for the grant to the applicant of a nomination approval.
At [17] of its reasons, it was recorded by the Tribunal that the parties had agreed, in line with statutory requirements, that the relevant sponsorship periods for consideration were from 5 July 2016 – 4 July 2017, 5 July 2017 – 4 July 2018 and 5 July 2018 – 5 July 2019.
At [18] – [21] inclusive of its reasons, the Tribunal assessed the relevance of documentation provided to it by reference to the relevant sponsorship periods, excluding, at [19] of its reasons, a claim for relief teacher expenditure which had been provided before 5 July 2016. The Tribunal considered and compared the information contained on produced receipts against training invoices also produced.
At [22] of its reasons, consideration was given by the Tribunal to the departmental policy governing how expenditure on training was to be assessed. Relevant parts of the Procedures Advice Manual (PAM 3) dealing with applicable criteria were as follows: [1]
[1] Pages 8 and 20 of Tab 3 to Supplementary Joint Bundle provided to the Court.
“Assessment of Training
Overview
Regulation 5.19(3)(f)(i) provides that the nominator must have met the training requirements for the purpose of approval as a standard business sponsor under the 457 program. They must demonstrate that they have continued to meet the training requirement throughout the validity of their sponsorship.
If the nominator’s standard business sponsorship approval has ceased, they will need to provide evidence they met the training requirements for each year in which they were approved to sponsor an UC-457 visa holder.
From 1 July 2013 all standard business sponsors are required to demonstrate that over the term of their sponsorship they fulfilled either Training Benchmark A or Training Benchmark B in each year of the sponsorship approval that a UC-457 visa holder was approved to be sponsored by them. Each year of the sponsorship term will begin in the anniversary of the sponsorship approval.
…
Online training courses, e-learning packages and software
Costs to participate in or access an online training course can be counted towards training benchmark B. However the wages covering the employee/s’ time completing the course cannot (unless otherwise provided for earlier). Expenditure associated with purchasing an e-Learning platform and/or customising the course content may be counted.
The cost of purchasing software for use by staff members to perform their normal duties cannot be counted towards training benchmark B irrespective of whether the package includes “help” sections. Expenditure on the purchase of standalone training software may be counted.
…
Conferences, trade shows or expos
Conference fees may be counted towards training benchmark B only if there is clear evidence that the conference provided a professional development opportunity to the attendee. Networking opportunities are not considered to be professional development, nor are the costs associated with hiring a booth at a trade show, conference, or expo.
Associated Costs
Costs associated with training such as travel and logistics can be counted as expenditure towards training benchmark B if the costs are reasonably and necessary. To be considered reasonable, these costs should represent a minor proportion of the expenditure counted towards the training benchmark.
Necessary associated costs can relate to:
·Facility or equipment hire or
·Printing or training material or
·Travelling to the venue where the training is delivered or
·Domestic flights if the training course is not available in the location where the employees are usually resident or
·International flights if a high profile training course is conducted overseas and is attended by senior staff of the nominator
The evidence should be carefully assessed if the nominator is counting costs associated with training towards the benchmark to ensure that these costs are associated with a formal, structured and relevant training program.”
The clear policy intention gleaned from a reading of PAM 3 was that expenditure closely related to the provision of training, including the purchase of software to be used for the provision of such training, would be an expense able to be to be used for the purpose of an applicant meeting the 1% of payroll benchmark as set out in Table B of IMMI 13/030. Expenditure on computer hardware could not be said to be exclusively, or even substantially, related to a contemplated element of training expenditure under the policy.
At [23] of its reasons, the Tribunal rejected the claim that costs associated with employing a nominated workplace health and safety training officer was an allowable expenditure, because such person did not have as their key role the task of training.
At [24] of its reasons, the Tribunal accepted expenditure by the applicant on a Queensland Independent Schools specialist learning program as falling within allowable expenditure.
At [25] – [26] inclusive of its reasons, the Tribunal considered the applicant’s claimed assessment of payroll figures, as well as claimed training expenditure, as follows:
“[25] The College provided payroll figures for each year of the sponsorship as $5,348,276, $6,054,498 and $7,070,920 respectively and a calculation of 1% of payroll to meet each sponsorship year as $53,483, $60,545 and $70,709 respectively.
[26] The College in document3 ‘Summary – 5 July 2016 – 4 July 2019’ has assessed the training expenditure in the three sponsorship periods as $94,701, $70,886 and $71,615 and it appears in the table below. The Tribunal will consider whether the College meets the training requirements. The Tribunal for the reasons discussed above, has deducted the Hewlett Packard computer expense of $23,230 and $17,358 in sponsorship years one and three respectively and the amount allocated for the Welfare officers wages of $6,396, $6,739 and $6,818 for the three years. This left a total of training expenditure for each year of $65,075, $64,147 and $47,439. The College failed to meet their training benchmark in sponsorship year three and has not complied with r.2.87(B)(3)(b) that states ‘the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this sub regulation, for that 12 month period’. (Emphasis added.)”
The Tribunal rejected the respective claims of $23,230.00 [2] and $17,358.00 [3] made by the applicant for the purchase of computer hardware. The applicant had claimed that such expenditure was allowable training expenditure because it was spent “in the provision of training to employees of the business”. [4] It was submitted on behalf of the applicant that the applicant had given a training commitment and that there was nothing within the training instrument (presumably IMMI 13/030) which restricted expenditure on computer hardware.
[2] Exhibit 1 – Court Book (CB) pp. 731 and 958.
[3] CB pp. 1072 and 1114.
[4] Paragraph [23] of applicant’s consolidated submissions filed on 18 July 2020.
Grounds for Review
The applicant raises three claims in Ground 1 of the Further Amended Application for Review as follows:
(a)Claim 1(a)(i) was an assertion that the Tribunal failed to make a specific finding that the requirements of r. 5.19(3)(f) had not been met. There is no merit to such claim. At [22] of its reasons, the Tribunal found that the applicant was not entitled to claim the cost of computer hardware as part of its training expenditure. It referred to departmental policy which did not list computer hardware as being able to be the subject of an allowable claim. At [27] of its reasons, the Tribunal was clearly assessing whether there was any basis, under r. 5.19(3)(f)(ii), for it disregarding the applicant’s non-compliance with r. 5.19(3)(f)(i). It was unnecessary for the Tribunal to specifically hold that it had rejected the applicant’s claim concerning the extent of its training expenditure when it was plain and obvious that it had done so. In [26] of its reasons, the Tribunal had specifically found that Hewlett Packard hardware computer expenditure and welfare officer wages were not allowed to be taken into account. The same conclusion is reached after a reading of [28] of the reasons of the Tribunal which, when read in conjunction with [26] of its reasons, makes it clear that the Tribunal had found that the 1% payroll threshold had not been met after identified disallowed expenditure had been taken into account.
Claim 1(a)(ii) was a similar claim to that advanced in respect of claim 1(a)(i). For the same reasons as referred to in (a) above, there is no merit to such claim.
(b)Claim 1(b)(i) is based upon the proposition that the applicant had relevantly made a “commitment” in relation to training expenditure. However, there was relevantly no commitment ever made by the applicant. There was no need for the applicant to prepare an auditable plan setting out any commitment, as countenanced by r. 2.59(e) of the Regulations, because the applicant had traded for a period in excess of 12 months. The applicant was therefore not required to give any commitment in relation to training expenditure, the consequence being that the Tribunal was not required to assess whether the applicant had fulfilled any commitment as provided for under r. 5.19(3)(f)(i)(A) of the Regulations. The Tribunal was not required to make reference to the lack of the making of any commitment in its reasons. There is no merit to such claim.
Claim 1(b)(ii) suggested that the Tribunal failed to properly consider and construe PAM 3 relevant to compliance by the applicant with its training expenditure obligations under Schedule B of IMMI 13/030. There is no merit to such claim. The Court infers that the Tribunal had had regard to PAM 3 when, at [22] of its reasons, it referred to discussion on what was permitted in IMMI 13/030 in the context of “the corresponding policy to meet training benchmark B”. At [26] of its reasons, the Tribunal excluded computer hardware costs, because at [22] of its reasons the Tribunal had already found that the policy relating to what was allowable training expenditure did not include the purchase cost for computer hardware. So much is clear when the reasons of the Tribunal are read in context with the applicable legislation and regulations which governed what constituted allowable training expenditure. The Tribunal was entitled to find that training expenditure was limited to reasonable costs associated with the provision of such training, rather than expenditure on assets of the business able to be used for purposes not limited to training. There is no merit to this ground.
(c)Claim 1(c)(i) – (iii) inclusive seek an impermissible merits review of factual findings made by the Tribunal. The Tribunal did not err in its consideration of what the purpose of the relevant regulations was when arriving at its decision. It was entitled to disallow expenditure on computer hardware as being expenditure outside that properly to be considered as expenditure relating to training. Such a construction was clearly open on a reading of the regulations, and was supported by a consideration of the content of PAM 3. Further, the Tribunal, when arriving at its decision, did not overlook the language of the regulation. Regulation 2.87B(2)(b) required the applicant to comply with requirements specified by the Minister in an instrument in writing. That instrument was clearly IMMI 13/030, which was specifically referred to by the Tribunal at [16] of its reasons. There is no merit to such claims.
As to Ground 2 of the Further Amended Application for Review, such ground claimed that the Tribunal failed to take relevant considerations into account for the purpose of exercising its discretion as to whether it should, or should not, disregard any contravention of r. 5.19(3)(f)(i) of the Regulations. Three claimed bases for jurisdictional error were raised as follows:
(a)It was claimed in Ground 2(vii)(a) that the Tribunal failed to take into account that the applicant had complied with the requirements of r. 5.19(3)(f)(i)(A) of the Regulations “up until the making of its application for review”. There is no merit to such claim. The Tribunal was required to assess compliance or non-compliance over 3 specified periods. The Tribunal found that the applicant had not complied with its training expenditure obligations. It was open for the Tribunal to so find. It was not required to consider periods of compliance or non-compliance outside of the 3 identified periods of time between 5 July 2016 and 5 July 2019. There are sound policy reasons why an assessment by the Tribunal would be so confined. The Tribunal properly addressed its considerations to relevant matters as it was required to do.
(b)It was claimed in Ground 2(vii)(b) that the Tribunal failed to take into account that the applicant relied upon its assessment of what was allowed for training expenditure purposes under IMMI 13/030. There is no merit to such claim. The claim is misconceived, in that it proceeded upon the proposition that an applicant’s erroneous appreciation of its obligations was excusatory in the context of its non-compliance. An applicant’s misapprehension as to its regulatory obligations is in no respect a consideration which the Tribunal ought to have mandatorily considered for the purpose of its arriving at a decision as to whether there had, or had not relevantly been, compliance with training expenditure obligations. There was, in any event, no evidence before the Tribunal as to any claimed misapprehension by the applicant as to its regulatory obligations.
(c)It was claimed in Ground 2(vii)(c) that the applicant “would have otherwise complied with the requirements of regulation 5.19(3)” had the Minister told it that computer hardware purchase costs did not constitute allowable expenditure for the purposes of IMMI 13/030. Such claim is misconceived. A decision maker such as the Tribunal is not required to assist the applicant in the presentation of the applicant’s case. Nor was the Tribunal required to second guess what the applicant might or might not have done if possessed of further facts or information. This ground is without merit.
Ground 3 of the Further Amended Application for Review is a claim that the Tribunal’s failure to exercise its discretion in favour of the applicant, for the purposes of r. 5.19(3)(f)(ii) of the Regulations, was legally unreasonable, and thereby constituted jurisdictional error. There is no merit to such claim.
First, it has been held that it is a very high bar for legal unreasonableness to be established. [5] Second, to the extent that the applicant cavilled with the decision of the Tribunal, the applicant had sought an impermissible merits review of such decision. Third, it is clear that the Tribunal, at [27] – [30] inclusive of its reasons, specifically dealt with r. 5.19(3)(f)(ii) considerations. Having done so, the Tribunal appropriately carried out its decision making function in an orthodox way. It assessed the evidence before it, and found against the applicant after having considered whether the applicant’s expenditure fell below the applicable benchmark.
[5] Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965 at [108] per
McKerracher J.
On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
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.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The manner in which the Tribunal exercised its discretion was unimpeachable. It made its decision after weighing up all of the relevant facts before it. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Conclusion
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 30 September 2020
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