Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1915
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Austwide Laser Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1915
File number(s): MLG 1651 of 2017 Judgment of: JUDGE EGAN Date of judgment: 18 August 2021 Catchwords: MIGRATION – Application for Skilled 457 visa – finding by Tribunal that nominated position was not genuine – no jurisdictional error established on the part of the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth), s 140GB, 359(2)
Migration Regulations 1994 (Cth), r 2.72(10)(f)
Cases cited: Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091.
Cargo First Pty Ltd v Minister for Immigration and Border Protection & Anor (2016) 242 FCR 87.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 28 Date of last submission/s: 17 August 2021 Date of hearing: 17 August 2021 Place: Brisbane Solicitor for the Applicant: PLS Lawyers Counsel for the Applicant: Mr A. Trichardt Solicitor for the First Respondent: Ms S. Roeger of AGS Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1651 of 2017 BETWEEN: AUSTWIDE LASER PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
18 AUGUST 2021
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 July 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,000.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
On 22 December 2015, the applicant lodged a nomination application for approval of a Sub-Class 457 (Temporary Work) (Skilled) visa for one Stella Seralathan. Ms Seralathan was the preferred nominee for the job title of “Principal Tutor”, which position involved carrying out work for the applicant as a private tutor/teacher. [1] The applicant claimed that it had carried on the business of a learning institute (“The Megamind Learning Institute (MMLI)”), as well as a business which involved the telesale of printer consumables, printers, data networking, and cabling and sales training. MMLI used the same premises for the carrying on of business as the applicant’s telesales business. [2] The nominee for the relevant position, Ms Seralathan, was the sister of the sole director and sole shareholder of the applicant company.
[1] Court Book (CB) p 15.
[2] CB 10 – [10] – [12] inclusive of the reasons of the Tribunal.
On 20 July 2016, a delegate of the Minister refused the nomination application. The applicant sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’).
A hearing took place before the Tribunal on 30 May 2017. Migration agents engaged on behalf of the applicant provided further information and submissions by letter dated 6 June 2017. [3]
[3] CB 271 – 346.
On 3 July 2017, the Tribunal affirmed the decision of the delegate, but on a different ground. The Tribunal found that the applicant did not meet the criteria under r. 2.72(10)(f) of the Migration Regulations 1994 (Cth) (‘the Regulations’), finding that the position associated with the nominated occupation was not genuine. In its reasons, the Tribunal appropriately referred to a decision of this Court in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091, such decision having been approved in a number of judgments of the Federal Court and the Full Court of the Federal Court. At [30] of Cargo First Pty Ltd it was said:
“[30]With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.”
At [32] – [42] inclusive of its reasons, the Tribunal said as follows:
“[32]The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
[33]Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
[34]The tribunal notes that in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Court considered the meaning of r. 2.72(10)(f). The Court held;
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
[35]In considering whether the position associated with the nominated occupation is genuine, the tribunal has had regard to the Department’s Procedures Advice Manual PAM3. As regards the application of these policy guidelines, the tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
[36]According to the departmental policy, the 457 program is designed to enable employers to address labor shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.
[37]Mr Betts stated in his evidence the nominee’s sister is the owner and the Director of the sponsoring business. He conceded that, prior to nominee’s arrival in Australia; the business was not involved in provision of tutorial services. The main business activities were telesales of printer consumables, printers, data networking and caballing and sales training. The evidence before me revealed that the business registered Megamind Learning Institute (MMLI) on 31 August 2015 which coincides with the nominee’s return from UK. The Institute commenced its operations in January 2016 which coincides with the time the nominee commenced her ‘training’ at the business. The nominee’s elder son remained in Australia and was enrolled into private school even before the nominee returned to Australia on 23 July 2015.
[38]Despite not being required to undertake Labour Market Testing (LMT), the business advertised for the position August 2015. The evidence before me revealed that, despite receiving an application from Australian resident with adequate qualifications and work experience, the decision was made to offer the employment to the sister of the business owner. I do not accept the explanation provided by Mr Betts that the reason for not offering the employment to an Australian permanent resident was his/her request for higher salary or inability to run the Institute. After all, the position was for a principal tutor and not for the person who will ‘run the institute’. There were no further attempts to recruit the principal tutor from Australian labour market since August 2015. Based on the evidence before me I do not accept that the owner of the sponsoring business would entertain employing a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder in preference to her sister.
[39]I do not accept the representative submissions that it is coincidence that the nominee is the sister of the business owner. On the contrary, I am satisfied that the business name MMLI was registered and the position created for the predominant purpose of securing the immigration outcome for the nominee because she is the sister of the business owner.
[40]I have taken into account submissions provided by the applicant as well as documentary evidence submitted in support of the arguments that a position associated with the nominated occupation of a Tutor is a genuine position. I considered the evidence regarding the business’s turnover; the position description, the proposed employment agreement, the organisational chart and the financial documents submitted to the tribunal.
[41]Based on the evidence before me I am satisfied that the main purpose of creating a position of a Principal Tutor within the business was to secure the migration outcome for the business owner’s sister. I am not satisfied on the evidence before me that the business ever intended to employ alternative person (other than Nominee).
[42]Based on the evidence before me, I am not satisfied that the applicant has need for a person undertaking the occupation of a Principal Tutor and I find that the position associated with the nominated occupation is not genuine. For these reasons the requirements of r.2.72(10)(f) are not met. Accordingly, the decision under review must be affirmed.”
In Cargo First Pty Ltd v Minister for Immigration and Border Protection & Anor (2016) 242 FCR 87 at [23] – [24], Flick J, when discussing whether the Minister had the ability to “go behind” assertions made by a sponsor in a nomination application, said as follows:
“[23]Those factors which dictate the reservation to the Minister of the ability to “go behind” the assertions made by a sponsor and the reservation of an ability to reach a factual conclusion as to whether “a position associated with the nominated occupation is genuine” include:
•the fact that reg 2.72(10) entrusts to the Minister the responsibility of being “satisfied” of the matters thereafter set forth, a responsibility which would be significantly circumscribed if the need for the Minister to reach a state of satisfaction as to whether a position is “genuine” is itself determined by mere reference to a “certification” provided in accordance with reg 2.72(10)(e);
•the fact that reg 2.72(10) requires the Minister to be separately satisfied that both reg 2.72(10)(e) and (f) have been satisfied, each of the matters separately set forth in reg 2.72(10) being expressed as conjunctive (and not disjunctive) matters each requiring the satisfaction of the Minister;
•the very use of the term “genuine” in reg 2.72(10)(f), namely a word which of itself invites factual inquiry as to whether the “position” is “real or true” (The New Shorter Oxford English Dictionary (1993 ed.));
•the object and purpose sought to be achieved by the legislative regime and the potential for that object and purpose to be frustrated if a sponsor could unilaterally seek to circumvent the constraints imposed by nominating only some occupations and not others by misrepresenting the duties to be performed by the visa applicant; and
•a presumed legislative intention not to compel the Minister to approve a nomination, namely the requirement that the Minister “must approve” a nomination (s 140GB(2)), by reference to factual assertions beyond his power to scrutinise. It would be an odd construction of s 140GB(2) to force upon the Minister a duty that he “must approve” a nomination by reference to a state of “satisfaction” dictated by uncontestable factual assertions made by a sponsor.
Counsel for the Respondent Minister was correct in his submission that any contrary construction would impermissibly “conflate” reg 2.72(10)(e) and (f).
[24]This conclusion, it may be noted, is consistent with other instances where there has been a factual inquiry as to whether a person in fact discharges the functions of a nominated occupation: e.g., Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550.”
Grounds of Review
At the hearing before the Court, the applicant relied upon Grounds 1 and 2 of an Amended Application for Review filed on 28 July 2021. Counsel for the applicant abandoned reliance by the applicant upon Ground 3 of the Amended Application during the course of the hearing. Grounds 1 and 2 provided as follows:
“Amended Grounds of application
1.The applicant’s grounds for review are that the Administrative Appeals Tribunal (AAT) fell into jurisdictional error
a.when it incorrectly applied and/or failed to correctly apply and/or misinterpreted and/or failed to correctly interpret the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) (Regulations), in particular r. 2.72(10)(f), in the context of the 457 visa program;
b.in applying the clear law relating to the meaning of genuineness in r. 2.72(10(f) of the Regulations in an unreasonable, illogical, and irrational manner and note based on findings or inferences of fact supported by logical ground;
c.in the course of elaborating on the applicable law on the question of genuineness;
d.in applying the law to the facts by reaching a conclusion which was not reasonably open to it, in that
e.it erroneously asked the wrong question, and considered and found that an applicant for the nominated position of Principal Tutor/Teacher (Nominated Position) only had to have ‘adequate qualifications and work experience’ (emphasis added), which it found the case to be with the other applicant for the Nominated Position, in circumstances where the 457 visa program refers to a ‘genuine skilled worker’ who is appropriately skilled;
f.it erroneously failed to focus on and perform a qualitative analysis about the issues that must be considered, determined objectively, and having regard to when dealing with the genuineness requirement under r. 2.72(10)(f) as laid down in the case law, namely, whether the Nominated Position is associated with the nominated occupation of ‘Private Tutor/Teacher’ (Nominated Occupation) corresponding to the six-digit ANZSCO code 249299, unit group 2492: ‘Private Tutors and Teachers, Skill Level 1’ (ANZSCO Code);
g.it erroneously focused on irrelevant matter in making findings, drawing inferences, and reaching conclusions when it dealt with the genuineness requirement under r. 2.72(1)(f) by focussing on the relationship between the nominee and the sole shareholder of Auswide and the timing of the expansion of Auswide’s business into the provision of tutorial services, and ignoring the relevant material that the nominee was the only applicant for the Nominated Position who satisfied the criteria and qualification requirements for the Nominated Position associated with the Nominated Occupation corresponding to the ANZSCO Code, and who was a genuine appropriately skilled worked and that Auswide had a proper business plan
h.it erroneously relied on irrelevant material in making findings, drawing inferences, and reaching conclusions when it erroneously rejected the undisputed evidence and relevant material and that the reason for not offering the Nominated Position to the other applicant was only his request for a higher salary than what Auswide could afford, when the evidence was that he also had no experience, as was required, in running an educational institute;
i.it erroneously made findings, drew inferences, and reached conclusions in the absence of evidence when it erroneously rejected the undisputed evidence and relevant material that the nominee was the only applicant for the Nominated Position who satisfied the criteria and qualification requirements for the Nominated Position associated with the Nominated Occupation corresponding to the ANZSCO Code, and who was a genuine appropriately skilled worker;
j.it erroneously failed to have regard and ignored relevant material evident from the undisputed evidence, namely that the nominee was the only applicant for the Nominated Position associated with the Nominated occupation corresponding to the ANZSCO Code who satisfied the criteria and qualification requirements set for the Nominated Position and that she was a genuine skilled person with the appropriate skills;
k.it erroneously made findings, drew inferences, and reached conclusions in the absence of evidence and contrary to the relevant material evident from the undisputed evidence, in stating the Nominated Position was created for the predominant purpose of securing the immigration outcome for the nominee because she is related to the sole shareholder of Auswide a separate legal entity, when the evidence show that the Nominated Position is genuine (tutorial service had been rendered, tutors being paid), and the nominee was to only appropriately skilled applicant as set out above regardless of her connection with the sole shareholder of Auswide.
2.Further or alternatively to the grounds and referring to the particulars set out in paragraph 1 above –
a.the AAT erroneously failed to genuinely and truly to consider the matters essential to the exercise of its power;
b.the AAT erroneous failed to engage in an active intellectual process focused on the matters and material relevant to the consideration of the genuineness requirement under r. 2.72(10(f); and
c.the AAT erroneously failed to consider or properly deal with Auswide’s application and the evidence.”
The applicant’s nomination was made pursuant to the provisions of s. 140GB of the Migration Act 1958 (Cth) (‘the Act’) which relevantly provided as follows:
“140GB Minister to approve nominations
(1) A person who is, or who has applied to be, an approved sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve a person’s nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and
(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and
(ab) in any case—the person is an approved sponsor; and
(b) in any case—the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
(3) The regulations may establish a process for the Minister to approve a person’s nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.”
Regulation 2.72(10)(f) of the Regulations provided as follows:
“2.72 Criteria for approval of nomination – Subclass 457 (Temporary Work (Skilled)) visa
(10) If the person is a standard business sponsor – the Minister is satisfied that:
…
(f) the position associated with the nominated occupation is genuine”
Prior to the hearing before the Tribunal, the Tribunal sent a letter to the applicant on 10 February 2017 asking the applicant to provide proof that it met all of the criteria under r. 2.72 of the Regulations. Such request was made pursuant to the provisions of s. 359(2) of the Act. The applicant’s agents provided further information by letter dated 14 March 2017. On 20 March 2017, the Tribunal invited the applicant to appear before it at a hearing scheduled for 30 May 2017.
At the time of the hearing before the Tribunal, the applicant was represented by a migration agent. One Donald Betts, the manager of three (3) businesses operated by Austwide Laser Pty Ltd, also appeared at the Tribunal hearing and made submissions on behalf of the company.
Ground 1 of the Amended Application for Review was expansive in its claims. At the heart of the ground was the applicant’s claim that:
“[32] The genuineness of the Nominated Position is not to be determined in isolation but should be done by reference to the Nominated Occupation and the character of the Nominated Occupation, which in this matter was informed by the ANZSCO Code. The genuineness is not determined by the identity of the nominee or the relationship between the nominee and the sponsor of the Nominated Position, as long as the nominee satisfy the criteria for the Nominated Position associated with the Nominated Occupation, and is a skilled worker under the 457 visa program. The AAT fell into jurisdictional error by erroneously applying the law relating to the genuineness requirement in r2.72(10)(f) of the Regulations as set out in Cargo First incorrectly in law and to the facts supported by the evidence. This also shows a Wrong Question Jurisdictional Error and Erroneous Conclusion Jurisdictional Error.” [4]
[4] Applicant’s submissions filed on 28 July 2021
It was submitted on behalf of the applicant that the applicant had satisfied the criteria, in that, crucially, the nominated position was relevantly associated with the nominated occupation because the six digit ANZSCO Code referable to the nominated position corresponded with the six digit code specified in the Ministerial Instrument. It was then submitted that because of that association, the genuineness of the position had been satisfied. There is no merit to such claim.
The Tribunal did undertake a qualitative analysis of the position when compared with the nominated occupation. In doing so, the Tribunal was not constrained by any established “association” as submitted. A temporal association between a nominated position and a qualifying occupation under the ANZSCO Code, constructed or engineered for the purpose of achieving a migration outcome, does not validate a position as being genuine. The Tribunal was entitled, on the basis of the evidence before it, to have regard to the fact that:
(a)The nominee was the sister of the sole director and shareholder of the applicant.
(b)The nominee’s eldest son was studying in Australia, his having been enrolled at a private school in Australia by the nominee before the time of the nominee’s return to the UK with her husband and youngest child in July 2015. [5]
(c)The applicant had not carried on the business of a learning institute before the nominee’s arrival in Australia;
(d)The applicant’s registration of the business name Megamind Learning Institute on 31 August 2015 was a short time before the nominee’s return to Australia in September 2015;
(e)The nominee’s period of “training” which commenced in January 2016 coincided with the commencement date of the MMLI business;
[5] [14], [15] and [37] of the reasons of the Tribunal.
The Tribunal at [22] of its reasons noted that three (3) people had responded to an advertisement placed by the applicant for the position of Principal Tutor, one of whom was the nominee. At [23] of its reasons, the Tribunal noted that Mr Betts had said in his evidence that an Australian permanent resident with adequate qualifications and work experience had responded to the advertisement, but that he wasn’t selected because he was asking for too high a wage. At [24] of its reasons, the Tribunal noted that no further advertisement had been placed by the applicant for the position between August 2015 and the date of commencement of the business in January 2016. At [28] of its reasons, the Tribunal noted that the familial relationship between the sole director and shareholder of the applicant and the nominee had not been disclosed to the Department during the application process.
The applicant’s complaint that the use by the Tribunal in its reasons of the words “an Australia permanent resident with adequate qualifications and work experience” showed that the Tribunal had misconceived the test required to be satisfied on the question of genuineness was without merit. The Tribunal was entitled to note that the applicant was offered the position rather than a qualified Australia citizen after the placement of only one advertisement. A consideration as to whether or not an Australian citizen was able to be appointed to the nominated position was central to the Tribunal’s deliberations as to whether or not to grant a visa to the applicant under the 457 visa programme. In cavilling with the Tribunal’s use of the word “appropriately”, [6] the applicant was scrutinising the reasons of the Tribunal with an eye too keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[6] Ground 1(e) of the Amended Application for Review.
Further, the Tribunal did not act in an unreasonable, illogical or irrational manner when undertaking its consideration of all of the evidence before it. The relevant principles were as found by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] and [54] – [56] as follows:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality 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 and Citizenship (2012) 202 FCR 1 (at [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 Minister’s submission in that regard is rejected. 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.”
There was no extreme illogicality in the disclosed reasoning of the Tribunal. Neither could the decision making process of the Tribunal be considered as arbitrary, capricious or unreasonable. The decision of the Tribunal was one where a different, logical and rational person could have arrived at the same decision as the Tribunal. 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.”
The Tribunal had regard to PAM 3 which was a Departmental guide which highlighted, at 4.6.10.4, how the 457 visa program was designed to enable employers to address labour shortages in Australia by bringing in genuinely skilled workers where appropriately skilled Australian workers could not be sourced to fill a position. It also highlighted how such program was not to be used to “create a position”.
The Tribunal noted the change in evidence of Mr Betts concerning the “training” of the nominee in circumstances where such training, if established, could have violated a condition of the nominees then visa. The Tribunal also noted that the applicant’s relevant business turnover was limited to $70,000.00 in the 2016/2017 financial year in circumstances where the nominee’s wage alone was approximately $60,000.00, and where enrolments were otherwise conceded by Mr Betts as being low.
In all of the circumstances, it was open for the Tribunal to find that the position the subject of the nomination was not genuine. It arrived at such conclusion having considered all of the evidence cumulatively. Ground 1 is without merit.
Ground 2 of the Amended Application for Review was an extension of the claims made in respect of Ground 1.
The Tribunal did intellectually engage on the question of what constituted a genuine position for the reasons as found in respect of Ground 1. The Court adopts what was said by Banks-Smith J in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [72] – [73] as follows:
“[72] It must be recalled that the statement of reasons of the Tribunal has to be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].
[73] The determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line' will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49]; and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)].”
The Court finds that the applicant seeks an impermissible merits review of the decision of the Tribunal.
The decision of the Tribunal could not 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 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-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 August 2021
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