Bulmash v Minister for Immigration
[2009] FMCA 1136
•19 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BULMASH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1136 |
| MIGRATION – Review of MRT decision not to grant temporary business entry visas – Where Tribunal initially expressed doubt as to whether the applicant’s business employed Australian citizens but ultimately found that it did not satisfy the training requirement – whether applicant on notice that each criteria was a dispositive issue. |
| Migration Act 1958 (Cth), ss.359, 359A, 360 |
| SZBEL v Minister for Immigration (2006) 228 CLR 152 F Hoffman – La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 Abebe v Commonwealth (1999) 197 CLR 510 |
| First Applicant: | JACOB BULMASH |
| Second Applicant: | LEONE KAROLINA STANCZYK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1559 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 November 2009 |
| Date of Last Submission: | 12 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2009 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Poynder |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1559 of 2009
| JACOB BULMASH |
First Applicant
| LEONE KAROLINA STANCZYK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 28 September 2007 Mr Bulmash and his partner Ms Stanczyk applied to the Department of Immigration & Citizenship for temporary business entry (Class UC) visas. On 3 January 2008 a delegate of the Minister refused to grant the visas on the ground that the first named applicant did not satisfy clause 457.223 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). On 11 January 2008 the applicants applied to the Migration Review Tribunal for review of the delegate’s decision. The applicants were at all times (but not at the Tribunal hearing) represented by a migration agent. On 12 February 2009 the Tribunal wrote to the applicants inviting them to comment on or respond to certain information. The letter also requested the applicants to provide additional information. It is accepted that this letter was written pursuant to the provisions of ss.359 and 359A of the Migration Act 1958 (Cth) (the “Act”). The applicants responded to the letter and provided additional information to the Tribunal. The Tribunal held a hearing which was attended by the applicants. Following the Tribunal hearing some further information was provided by the applicants to the Tribunal. On 27 May 2009 the Tribunal determined to affirm the decision not to grant the applicants temporary business entry (Class UC) visas.
It is accepted that the regulations which applied to these applicants’ application are found in Part 457 of Schedule 2 to the Regulations. The particular regulation is reg.457.223(7A)(c):
“the Minister is satisfied that:
(i) the business is of benefit to Australia; and
(ii) the applicant has a genuine and realistic commitment:
(A) to maintain an ownership interest in the business; and
(B) to maintain a direct and continuous involvement in the management of the business; and
(C) to make decisions that affect the overall direction and performance of the business from day to day; and”
…
(v) the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct the business.”
The requirement in reg.7A(c)(i), that the business is of benefit to Australia is defined in reg.457.111(2):
“In this Part, a business is of benefit to Australia if:
(a) the conduct of the business contributes to:
(i) the creation or maintenance of employment for Australian citizens or Australian permanent residents; or
(ii) expansion of Australian trade in goods or services; or
(iii) the improvement of Australian business links with international markets; or
(iv) competitiveness within sectors of the Australian economy; and
(b) the operator of the business:
(i) introduces to, or utilises or creates in, Australia new or improved technology or business skills; or
(ii) has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia.”
When considering an application, the Tribunal is bound by s.360 of the Act:
“(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
Ms Stanczyk does not have her own claims for the 457 visa and so in these reasons I shall refer to Mr Bulmash as “the applicant”.
When the applicant submitted his application he was in partnership with a Mr Nachshon in a jewellery import business. By the time the matter came to be heard by the Tribunal, the relationship between Mr Bulmash and Mr Nachshon had become very strained. Mr Nachshon had in fact left Australia for Japan. After the original visa application the Department made a surprise visit to the premises at which the business was carried out. The delegate interviewed Mr Nachshon and prepared a report [CB 132]. The report notes that after the visit the applicant telephoned the delegate and gave him information about the business. This included information about a Mr Aronovich, who was employed as a photographer by the business. The delegate expressed the view in the report that he could not be satisfied that the applicant had a genuine and realistic commitment to maintain direct and continuous involvement in the management of the business or to make decisions that effect the overall direction and performance of the business from day to day. The delegate was not satisfied that the applicant had demonstrated that there was a need for the applicant to be temporarily resident in Australia and conduct the business. In the delegate’s statement of reasons for decision, which was provided to the applicant, it took a stronger view with regard to the employee including that, whilst the delegate was satisfied that Mr Aronovich was an Australian citizen, he did not have sufficient evidence that he is currently or was formerly employed by the company. The delegate’s reasons go on to say at [CB 139]:
“Therefore I am not satisfied that his company has employed any Australian citizens or permanent residents. Furthermore, as I am not satisfied that the applicant has employed any Australian citizens or permanent residents, I am also not satisfied that he has a satisfactory record of or a demonstrated commitment towards training Australian citizens or permanent residents in the business. As a result I find that the applicant does not meet either (2)(a)(i) or (2)(b)(ii) of the benefit to Australia definition as outlined above.”
After the application to the MRT was lodged, the applicant’s migration agent wrote to the Tribunal on 10 January 2008 [CB 146-148]. In that letter clause 457.111(2) was set out in full, including clause 457.111(2)(b)(ii) in relation to training. The letter states:
“In response to this the client will provide evidence to substantiate the fact that during the lifetime of the business Pierce and Price Pty Ltd has employed Australian citizens an[d] permanent residents from time to time as the business requires but due to the nature of this niche market there is a seasonal turnover of staff.”
The letter from the Tribunal to the applicant dated 12 February 2009 provides details of the subclauses of the Regulations of which he was required to satisfy the Tribunal. In particular reg.457.223(7A) was set out in full, as was reg.457.111(2) (the definition of benefit to Australia). Under a heading “Issues”, the letter makes reference to the site visit before stating:
“The information obtained by the Department raises concerns about
·The size and nature of the business
·Whether the applicant is in fact conducting the business in Australia as a principal
·Whether the business activity is of benefit to Australia (as defined)
·Whether the applicant has a genuine and realistic commitment to maintain a direct and continuous involvement in the management of the business and to make decisions that affect the overall direction and performance of the business from day to day.
This information is relevant to the review because it concerns whether all the requirements are satisfied.”
The applicant is then invited to provide certain additional information in writing and this includes the information indicated on a checklist which was attached [CB 164-165]. Only certain of the items on that checklist were indicated as being required. One of a group of such documents was:
“[d]ocuments concerning how the business is currently training Australians.”
·A copy of the current “Training Plan” for the business
·Evidence of training programs implemented by the business
·Evidence of money spent on external training of staff
·A detailed summary of exactly which employees have been trained by the business in the past 2 years, supported by documentary evidence.”
The applicant was also provided with a copy of the note for file which the delegate made and to which I have made earlier reference.
On 14 April 2009 the applicant’s migration agent responded to the s.359A letter and under the heading “Business Operation and Structure” stated:
“The business employs at least one to two Australian citizens at all times and providing training to the staff. The staffs include, besides the Managers, a secretary, photographer and sale representatives.”
The applicant has provided the Court with a copy of the transcript of the hearing before the Tribunal. When the Tribunal hearing commenced, the Member said to the applicant:
“T: All of the requirements of the legislation and so on were sent to you in the Tribunal’s letter of the 12th of February. Did you read that letter?
A: Yes
T: Yes, alright. So it should be apparent the requirements and what you have to meet and indeed the submission by your representative discuss some of those issues. The Department was not satisfied that you have been directly involved with the business. They base that largely on a site visit where they were speaking to another person in the business and his information suggested that he was the Manager and you were just peripherally involved in the business. Nonetheless, things have changed since then. He’s now departed Australia, I think in 22 December 2008 and he has no permission to return.
A: Yes
T: The two requirements that most interest me at this point are whether the business is in fact operating and it does appear that, well there’s no information before me to show that the business actually employs any Australians. You’ve made a claim that someone is employed but there’s no evidence that that is the case.”
At [T2] the Tribunal and the applicant then proceed to discuss the nature of the business and the Tribunal’s concern that none of the documents provided to date properly indicated that Mr Aronovich was an employee. At [T9] the Tribunal says to the applicant:
“T: All right, sir. Look, what I might do now is just outline some of my concerns. I’ll then summarise the evidence, and then I’ll give you an opportunity to comment. That might be a better way of putting my thoughts to you. All right. One of the issues was that on the date of the application you had been conducting the business in Australia as a principal for at least 15 months. Well, the business has been going for that long, so that’s not an issue for me.
I then have to be satisfied that the business is of benefit to Australia. Now, that’s defined. It talks about four things initially, and it’s normally difficult for a business not to meet one of those things, such as the creation or maintenance of employment of Australians, or it can be the expansion of Australian trade in goods or services, the improvement of Australian business links with international markets, or competitiveness within the Australian economy.
All right. In theory, the business, if it was operating, may meet one of those. But then, also, the business has to introduce to or utilise in or create new or improved technology or business skills. There’s no claim that your business does that. There are no particular business skills that aren’t in Australia. It’s new or improved business skills. So that means new to Australia or improved. Something that’s…
A: In my field, yes.
T: Well, that’s an issue for me. I don’t – on the information before me, I don’t consider that that is the case, subject to your comments, and this is the one that most businesses seek to satisfy – has a satisfactory record of or a demonstrated commitment towards training Australians in the business. That’s all to show that the business is of benefit to Australia. In regards to that, I’ve asked for evidence that you have – that you currently have employees. There is no evidence.”
At [T11] the Tribunal indicates that, on the information before it, it was unlikely that it would accept that the business would employ an Australian or had in the last year or two. And then at [T35] the Tribunal stated that:
“T:One of the big issues is whether your business is of benefit to Australia. Linked to that was is the business in fact still operating…”
At the end of the Tribunal hearing, the applicant tried to obtain from the Tribunal an indication of what the Tribunal was thinking so that he could provide information that might assist it to come to a favourable conclusion [T36].
“A:I just want to know on what should I – in order to help my case what would be the things that you – like, if I had a limited time and I have to choose the right ammo which would benefit me the most?
“T:I couldn’t comment on that. Maybe reread the Tribunal’s letter to you which did ask for a lot of information only part of which was given.”
After the hearing concluded the applicant wrote to the Tribunal and provided it with further information. In that letter [CB 395] the applicant stated:
“I would also like to add that since the Australian worker that I employ work at least 50% of the time as a photographer and grafic (sic) designer in my company (designing out wep (sic) page, catalogues and other promotional letters) it can also be considered as a practical training because he is a student in this field at college so his work in out company give him the oppertunity (sic) to practice in the feild (sic) of his study and give him a real life experience in it.
By doing so I also think it is another point that demonstrates that out business is benefit Australia as well.”
The Tribunal decision accepted, albeit reluctantly, that Mr Aronovich was probably an employee of the company.
“[43] After the hearing the applicant produced additional information to show that Mr Aronovich was an Australian and that he had been employed. The Tribunal accepts that he is an Australian citizen. However, the bank account statements merely show wages paid on 28 April 2008 and from February to May 2009. His signature on business documents in 11/2008 suggest he has worked in the business on other occasions but do not show whether he was actually employed. In sum, the information now before the Tribunal suggests Mr Aronovich has at times worked for the business on a casual basis; and he has been employed full-time in 2009.
[44] Regardless of the duration of Mr Aronovich’s employment, on the material before it the Tribunal is not satisfied that Mr Aronovich or anyone else has been given training in the business. In a letter dated 12 February 2009 the Tribunal invited the applicant to provide information concerning how the business had trained Australians over the past 2 years. However, whilst the submission of 14 April 2009 made various claims about training, no compelling information was provided that showed any training had been undertaken over the past 2 years. At the hearing the applicant produced a financial statement for 2007 and this showed no training expense. At the hearing he stated Mr Aronovich was a Graphic Design student but he did claim that the business was paying for Mr Aronovich to study.
[45] In a submission dated 25 May 2009 the applicant argued that Mr Aronovich was employed in the business 50% of the time as a photographer and graphic designer; this could be considered practical training as the business was providing him with an opportunity to practice in the field of his study. However, Mr Aronovich’s study is not organised or paid for by the business and appears unconnected to the business. The Tribunal is not satisfied that his everyday work experience in the business (in the fields of photography and graphic design) constitutes ‘training’ in the business.
[46] In sum, even if it is accepted that employees were employed up to early 2007 – the past employment of employees is now distant in time. Nor is there any compelling evidence that shows past employees received any structured training. It may be that such employees would have received initial on-the-job training in their daily duties and tasks. But the Tribunal is not satisfied that such undocumented and casual on-the-job training over 2 years ago show that the business has a satisfactory record of training Australians in the business. Mr Aronovich has been involved with the business for a number of years, but the Tribunal has concerns he has not been a full-time employee for the whole period claimed. Regardless, on the material before it, the Tribunal is not satisfied that the operator of the business has a satisfactory record of training Australians in the business.
[47] Nor has the business shown any particular future training plans. On the material before it, the Tribunal is not satisfied that the operator of the business has a demonstrated future commitment to training Mr Aronovich or any other future employees in the business.
[48] In conclusion, the Tribunal does not accept that the operator of the business has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business in Australia. The Tribunal finds the requirements of clause 457.223(7A)(c)(i) are not met.” [CB 433 – 434]
The Tribunal concluded that because clause 457.111(2)(b) was not satisfied, the business activity was not of benefit to Australia for the purposes of clause 457.111(2) and therefore found that the requirements of clause 457.223(7A)(i) were not met.
The applicant sought review of the Tribunal’s decision from this Court and at hearing, filed an amended application. That application contained one ground:
“The second respondent (“the Tribunal”) failed to comply with the requirement under s.360 of the Migration Act 1958 that it invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
The applicant relies upon what fell from the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152. At [35] the Court noted that the point at which to begin the identification of issues arising in relation to the decision under review would usually be the reasons given for that decision:
“and unless some other additional issues are identified by the Tribunal (as they may be) it would ordinarily follow that on review by the Tribunal the issues arising in relation to the decision under review will be those which the original decision maker identified as determinative against the applicant.”
Whilst it is correct to say, as the applicant does, that the principal ground for the delegate refusing the application was his lack of satisfaction that Mr Bulmash needed to be temporarily resident in Australia to manage the business, it could not be said that the question of training was not considered or mentioned. It clearly was, as the extract shows. To my mind there is a world of difference between the jurisdictional facts which allow a Refugee Review Tribunal to conclude that an applicant should be granted a visa and those which are generally considered by the Migration Review Tribunal. In the former case the jurisdictional fact is that the applicant is a person to whom Australia owes protection obligations. In the latter it is generally (and in this case it is) that the applicant meets a series of criteria which are set out in considerable detail in the Regulations. That those criteria were known to the applicant must be accepted given that he was represented at all times by a competent migration agent and that the criteria were addressed as a whole in the application.
The applicant’s argument proceeds by saying that the issue of training was only discussed peripherally by the Tribunal because the Tribunal’s focus was on whether or not the business had any employees. If the business had no employees it could not possibly be training any and therefore strict consideration of that criteria was not necessary. When the Tribunal finally concluded that the business did indeed employ Mr Aronovich the applicant should have been advised that the peripheral issue of training had now assumed considerable importance. The applicant argues from SZBEL that this is a new dispositive issue about which the applicant should have been informed.
In my view the applicant’s argument runs into difficulties when one considers the whole of the conduct of the Tribunal. In particular, the provision by the Tribunal of the letter under ss.359 and 359A and the requests that the applicant provide documents in relation to training as set out in the checklist. This indicates that the applicant did not satisfy the Tribunal in relation to the criteria concerning training. It could not be said that the Tribunal misrepresented to the applicant that, provided he could establish that the business did employ Mr Aronovich, the training requirements would be satisfied. It would appear that the applicant was not under that impression for, otherwise, there would be no necessity for him to have written as he did in his post hearing letter concerning the training allegedly provided.
The applicant submits that the Tribunal did not properly identify the question of training as an issue. I cannot accept this. I do accept that the training issue was bound up with the issue about employees but, as I have said, it was never abandoned. It was always still there and the applicant appears to have appreciated this fact in his post hearing submission.
The respondent submits that what the applicant is asking for from the Tribunal was a running commentary upon what it thought about the evidence that was being given. This of course is not required; SZBEL at [48]. Nor is the Tribunal required to disclose what it is minded to decide; F Hoffman – La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 at [369].
An applicant who wishes to obtain a 457 visa of the type applied for is provided with a detailed set of criteria that he or she must meet. A properly advised applicant (as was the applicant here) would utilise the matters set out in the extracted sections of the clause as a checklist and be aware that he must satisfy the Tribunal; Abebe v Commonwealth (1999) 197 CLR 510 at [187]. He would provide information or, if called to a hearing, give evidence of each. If no evidence was provided he could not assume that the criteria did not remain an issue. If it was provided and the delegate and later the Tribunal indicated that it needed further information (as happened here) then the applicant should have understood that the issue remained live. I am satisfied that the issue upon which the Tribunal concluded it was unable to be satisfied and thus not grant the visa was an issue which had been identified to the applicant and was not one which fell to be compared with those considered by the High Court in SZBEL. For these reasons the application must be dismissed. The applicants should pay the respondent’s costs which I asses in the sum of $5,850.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 19 November 2009
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