Barot and Sons Pty Ltd v Minister for Home Affairs and Anor (No.2)

[2019] FCCA 1624

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAROT & SONS PTY LTD v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 1624

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Nomination application for a Subclass 457 visa under s 140GB of the Migration Act 1958 (Cth) – whether the Tribunal’s decision to proceed to determine the matter was legally unreasonable – whether the Tribunal made an unreasonable conclusion in relation to the eligibility criteria under IMMI 17/060 – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03B, 44.12

Migration Act 1958 (Cth), ss.140GB, 140GBA, 476

Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 (Cth), cl 8

Migration Regulations 1994 (Cth), r 2.72

Applicant: BAROT AND SONS PTY LTD

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2899 of 2018

Judgment of: Judge Street

Hearing date: 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Sydney

Delivered on: 12 June 2019

REPRESENTATION

Mr S Shukla appeared for the applicant.

Solicitors for the Respondents: Mr J Lambe
HWL Ebsworth

ORDERS

1. Grant leave to Mr Satyaprakash Shukla, a director of the applicant, to appear on behalf of the applicant.

2. The oral application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDERS: 12 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2899 of 2018

BAROT AND SONS PTY LTD

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) confirming the decision of the delegate not to approve the nomination made by the applicant under s 140GB of the Act and r 2.72 of the Migration Regulations 1994 (Cth) (“the Regulations”).

2. Mr Satyaprakash Shukla, the sole director of the applicant (“the director”), was granted leave to appear on behalf of the corporate entity by the Court. For reasons that have been delivered separately, the Court refused the application for an adjournment made by the director on behalf of the applicant.

3. At the commencement of the hearing, the Court explained to the director the nature of the hearing and the director confirmed that he understood the explanation given by the Court.

4. On 25 May 2017, the delegate refused the applicant’s nomination application. The delegate provided detailed reasons, referring to the requirements of r 2.72 of the Regulations. The delegate was not satisfied that the applicant’s nomination was lodged to fill a genuine short-term skill shortage. The delegate considered the position associated with the nominated occupation of Recruitment Consultant ANZSCO 223112 not to be genuine and that the applicant did not meet the requirements of r 2.72(10)(f) of the Regulations.

5. On 10 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 16 February 2018, the Tribunal wrote to the applicant identifying information which should be provided to the Tribunal, including the financial position of the company for the last two years. By letter dated 9 August 2018, the director on behalf of the applicant was sent an invitation to appear at a hearing on 10 September 2018. The hearing was one at which the primary review applicant, visa applicants and a representative appeared to give evidence and present arguments on behalf of the applicant.

6. The Tribunal, in its reasons, identified what occurred at the hearing. The Tribunal also identified the background to the application for review. The Tribunal identified that the issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal identified that the applicable requirements to be met are r 2.72 of the Regulations and s 140GBA of the Act.

7. The Tribunal also referred to its letter dated 16 February 2018. That letter provided a link to the legislative instrument, Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 (Cth) (“the Instrument”). The Instrument states that, in relation to the occupations which can be nominated and approved for the purposes of a Subclass 457 visa, certain occupations are not applicable to persons who work in certain positions. The inapplicability criteria include whether the position’s nominated base salary is less than $65,000, the position is in a business that has less than five employees, and the position is in a business which has an annual turnover of less than $1,000,000.

8. The Tribunal identified that the director agreed to provide it with the PAYG summaries for the year ended 30 June 2018 in respect of all of the applicant’s employees within two days of the hearing. That information was not provided to the Tribunal as at the date of its decision. It is not apparent from the Tribunal record that any request was made for further time to put on other evidence. Nevertheless, on the evidence before the Tribunal including documents which were provided to it after the hearing, the Tribunal was satisfied that the nominated position has a nominated salary of $65,000 and that the applicant has at least five employees.

9. The Tribunal turned to the requirement that the applicant’s annual turnover be not less than $1,000,000. The Tribunal summarised the information from the Business Activity Statements (“BAS”) evidence provided by the applicant for financial year 2017/2018. Only three of the four BAS for financial year 2017/18 were initially provided in response to the Tribunal’s letter dated 16 February 2018. The final quarter’s BAS was provided to the Tribunal after the hearing. The Tribunal found that, on the BAS evidence provided to it, the applicant’s annual turnover in financial year 2017/2018 was less than $1,000,000 and did not meet the criteria identified in cl 8, items 19 to 20 of the Instrument.

10. In these circumstances, the Tribunal found that the nominated occupation of Recruitment Consultant ANZSCO 223112 does not correspond to an occupation in accordance with the Instrument. Accordingly, the Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 15 October 2018. The originating application fails to identify any ground of alleged error by the Tribunal. The affidavit in support by Satyaprakash Ramadhar Shukla affirmed 15 October 2018 referred to the applicant not complying with a timeframe given by the Tribunal to provide further documentation, and asserted that there was material that could be provided to the Tribunal in respect of the applicant being a growing business.

2. The decision of the Tribunal to proceed to determine the matter, in circumstances where the applicant had been notified of the opportunity and need to provide information by the letter dated 16 February 2018 and the Tribunal had not provided any further adjournment beyond two days after the hearing, cannot be said to lack an evident and intelligible justification. The decision of the Tribunal to provide only two days for further information in respect of the number of employees cannot be said to be legally unreasonable. In any event, some documentation was provided to the Tribunal after the hearing and was the basis for the Tribunal finding that the applicant has at least five employees. On the face of the material before the Court, there was no other request by the applicant for an adjournment and no request for an adjournment in respect of the financial position of the applicant. Nothing in the affidavit filed by the applicant in support of the application identifies any arguable error by the Tribunal in the conduct of the review which could amount to jurisdictional error.

3. Where the application on its face fails to identify any ground in support of alleged error, it is one which ordinarily should be the subject of an application for dismissal under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). On the face of the material before the Court, these proceedings were doomed to failure and had no prospect of success.

4. The Court and Registrars made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and directing the filing of submissions. Those orders were not complied with. The failure by the applicant to comply with the Court’s orders is ordinarily grounds of itself by reason of which the proceedings can be dismissed under r 13.03B of the Rules.

5. The director submitted that there was error which effected the Tribunal’s decision because, taking into account the financial records that were provided to the Tribunal, it was contended that the business had a turnover that exceeded $1,000,000. The director suggested that the assets of the business could be included in relation to the calculation of that turnover. That was clearly a misapprehension in respect of the requirements of the criteria.

6. The Tribunal was correct to identify that it was the agreed sales which were relevant to the calculation of the applicant’s turnover and in respect of which the applicant had to meet the $1,000,000 criteria. On the face of the evidence to which the Court was taken, being the BAS statements for each quarter, it is apparent that the sales turnover did not meet that criteria. In these circumstances, there was no error as alleged by the director in respect of the adverse findings by the Tribunal.

7. The director candidly acknowledged that his business has since improved and that his company is now in a better financial position. Unfortunately, this Court is not in a position to receive fresh evidence in relation to the issues that were before the Tribunal. The Court has no power to revisit the merits. The issue of whether the company’s financial position has improved, or that there is other financial information that might have been provided to the Tribunal, does not assist the Court in identifying any relevant legal error. Nothing said by the director identified any jurisdictional error.

8. As was identified in the application for an adjournment, these proceedings were doomed to failure and had no realistic prospect of success. The application fails to identify any jurisdictional error. No jurisdictional error has been made out.

9. Accordingly, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019