CELEBER DRIVE MEDICAL (Migration)

[2018] AATA 3837

CELEBER DRIVE MEDICAL (Migration) [2018] AATA 3837 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CELEBER DRIVE MEDICAL

CASE NUMBER:  1811375

DIBP REFERENCE(S):  BCC2018/1274669

MEMBER:Susan Trotter

DATE:20 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 20 September 2018 at 4:31pm

CATCHWORDS

MIGRATION – approval as a standard business sponsor – lawfully operating a business in Australia – considering certain criteria – no jurisdiction       

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140E, 338, 347, 411, 412
Migration Regulations 1994, rr 2.59, 4.02

CASES

Tickner v Chapman (1995) 57 FCR 451   

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 21 April 2018 for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) to refuse an application for approval as a standard business sponsor under s.140E(1) of the Migration Act 1958 (the Act). For the following reasons, the Tribunal finds that it does not have jurisdiction.

2. The applicant applied for approval as a standard business sponsor on 16 March 2018.

3. On 16 April 2018, the application for approval was refused by the delegate because the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant was lawfully operating a business in Australia and was therefore not satisfied that the applicant met r.2.59(c) of the Migration Regulations 1994 (the Regulations) as required.

4. The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s.347 or s.412 of the Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975.

5. Sections 338 and 411 of the Act and r.4.02(4) of the Regulations set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions.

6. For applications made to the Tribunal on or after 18 March 2018, the decision to refuse an application for approval as a standard business sponsor is a reviewable decision only if, for review applications made before 18 March 2018, the delegate considered the criteria at r.2.59(f): s.338(9), r.4.02(4)(a) and r.4.02(4A).

7. On 12 June 2018, the applicant was invited to comment on the Tribunal’s preliminary view that it did not have jurisdiction because the criterion at r.2.59(f) was not considered. As at the date of this decision, no response had been received to the Tribunal’s 12 June 2018 invitation.

   FINDINGS AND REASONS

8. Regulation 2.59 of the Regulations, as at the date of the applicant’s application for approval as a standard business sponsor on 16 March 2018, provided as follows:

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

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

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

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

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

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

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

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

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

   …

9. Regulation 4.02(4) and r.4.02(4A) relevantly provide as follows:

   (4)  For subsection 338(9) of the Act, each of the following decisions is a Part 5-reviewable decision:

   (a)  a decision under subsection 140E(1) of the Act to refuse a person's application for approval as a sponsor in relation to one or more classes of sponsor;

   …

   (4A) For the purposes of paragraph (4)(a), the decision is not a Part 5-reviewable decision if:

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

   (b)  in making the decision, the Minister did not consider the criterion at paragraph 2.59(f).

   Note: The Minister is required to consider the criterion at paragraph 2.59(f) only if the applicant is lawfully operating a business in Australia.

10. The delegate’s reasons for decision include as follows:

    …I am not satisfied there is sufficient evidence to demonstrate that the applicant is lawfully operating a business inside or outside Australia.

    I am therefore not satisfied that the applicant meets paragraph 2.59(c) of the Migration Regulations.

    …

    An applicant must meet all the criteria of regulation 2.59 for a sponsorship application to be approved. As the applicant does not satisfy paragraph 2.59(c) of the Migration Regulations, I am not satisfied that the applicant meets the prescribed criteria for approval as a standard business sponsor. I have not assessed the applicant against the other criteria of regulation 2.59.

11. The criterion at r.2.59(f) is only applicable if the applicant is lawfully operating a business in Australia. As the delegate was not satisfied that the applicant was lawfully operating a business in Australia (r.2.59(c)), the delegate has understandably not considered r.2.59(f).

12. The Tribunal considers r.4.02(4)(a) and r.4.02(4A) are clear in their terms. They prescribe that a decision is not a Part 5-reviewable decision if the decision relates to a person whose application for approval as an approved sponsor in relation to the standard business sponsor class has been refused, and, in making that decision, the Minister did not consider certain criteria. In assessing its jurisdiction, the Tribunal must therefore look to the matters considered by the delegate in making their decision, and not engage in an assessment of those matters for itself.

13. The meaning of ‘consider’ in the administrative decision-making context was addressed by the Full Court in Tickner v Chapman (1995) 57 FCR 451. Here, Black CJ (at 462) referred to the meaning of ‘consider’ in the sense of the consideration of some thing in the Oxford English Dictionary (2nd ed) as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’ and stated that consideration of a document such as a representation or a submission ‘involves an active intellectual process directed at that representation or submission’.

14. Following this, it is clear that to ‘consider’ something requires more than merely being aware of it and requires the subject to actively turn their mind to it and contemplate it in a meaningful way. The delegate’s decision record shows that the delegate was not satisfied that r.2.59(c) was met. No other criteria were considered in the decision record, and the delegate stated in the body of the decision record that they had ‘not assessed the applicant against the other criteria of Regulation 2.59’.

15. The Tribunal has considered whether r.4.02 is ambiguous and could operate to unfairly or unintentionally limit or remove review rights. However, the overall objective of statutory construction is to give effect to the legislative intention as expressed in the text of the statutory provisions. The Tribunal does not consider that r.4.02(4A) is ambiguous. It clearly indicates that a decision is not reviewable if the delegate did not consider r.2.59(f) in the making of their decision.

16. The Tribunal has also had regard to the note to r.4.02(4A) which states that the Minister is only required to consider those criteria if the applicant is lawfully operating a business in Australia. As the note suggests, r.2.59(f), as is clear on its terms, applies only where the applicant lawfully operates a business in Australia. The delegate in this case found that the applicant was not lawfully operating a business, meaning that the pre-condition to r.2.59(f) was not met. The effect of r.4.02(4A), which the Tribunal is satisfied is the intended intent, is therefore that the delegate’s decision is not reviewable in those circumstances. The note to r.4.02(4A) is nothing more than a recognition of the wording in r.2.59(f) which requires that criterion to be considered only if the applicant is lawfully operating a business in Australia.

17. The Tribunal has also considered whether the delegate is required to consider certain criteria in all cases where information about the lawful operation of the business is provided. While s.140E of the Act provides that the Minister must approve a person as a sponsor if all the prescribed criteria are satisfied, this does not mean that r.2.59 must be considered in its entirety in all cases.

18. The Tribunal has considered whether the reference to r.2.59 on the first page of the delegate’s decision record demonstrates that the delegate has considered all of r.2.59 in making their decision. When considered as a whole, the Tribunal finds that the reference on the first page of the decision record to r.2.59 is a general reference to the prescribed criteria only. There is nothing to suggest that r.2.59 as a whole was considered, and the decision record itself points to the contrary. The decision record indicates that the delegate considered the criterion at paragraph (c) of r.2.59 and then refused the application on the basis that that criterion was not met. It is clear that no other criteria were considered in reaching that finding. This is made explicit in the delegate’s decision record where the delegate says ‘I have not assessed the applicant against the other criteria of regulation 2.59’. Having regard to this, while the Tribunal accepts that the delegate may have been aware of other criteria in r.2.59, the Tribunal does not accept that the delegate considered them, in the sense of actively turning their mind to them and contemplating them in a meaningful way. Notably, and understandably, given the delegate’s conclusion that they were not satisfied that there was sufficient evidence to demonstrate that the applicant was lawfully operating a business inside or outside Australia, r.2.59(f) did not fall to be considered. It follows that the decision is not a Part-5 reviewable decision.

19. The Tribunal notes that the letter notifying the applicant of the delegate’s decision indicates that the decision is reviewable by the Tribunal. The Tribunal accepts that the applicant may have relied upon this. However, for the reasons given, and having regard to the meaning of ‘consider’ as discussed above, the Tribunal finds that the criterion at r.2.59(f) was not considered. It therefore follows that r.4.02(4A) applies, meaning that the delegate’s decision to refuse the applicant’s application for approval as a standard business sponsor is not a Part 5-reviewable decision.

20. As there is no reviewable decision, the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

21. The Tribunal does not have jurisdiction in this matter.

    Susan Trotter
    Member