Cho v Minister for Home Affairs

[2018] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHO & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2048

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.368

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Eden (2016) 240 FCR 158

Minister for Immigration v Stretton (2016) 237 FCR 1

Minister for Immigration v SZMDS (2010) 240 CLR 611

First Applicant: SUJEONG CHO

Second Applicant: HYUNGKWANG LEE

Third Applicant: JINA LEE

Fourth Applicant: TAEGYUN LEE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 656 of 2018

Judgment of: Judge Driver

Hearing date: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

The First and Fourth Applicants appeared in person

Solicitors for the Respondents: Ms C Juarez of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 656 of 2018

SUJEONG CHO

First Applicant

HYUNGKWANG LEE

Second Applicant

JINA LEE

Third Applicant

TAEGYUN LEE

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 15 February 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants permanent Employer Nomination visas.  There are four applicants who are a wife, her husband and their two children.  The first and the fourth applicants attended today’s show cause hearing.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 17 July 2018.   

3. The first applicant (Ms Cho) is a female citizen of South Korea who arrived in Australia on 11 November 2006.

4. On 24 May 2015, Ms Cho applied for an Employer Nomination (Permanent) (Class EN) visa (the visa).[1]  The second, third and fourth applicants were also included in the application as members of Ms Cho’s family unit.

   [1] Court Book (CB) 1 to 24

5. On 6 January 2016, the delegate refused the visa application on the basis that Ms Cho had not provided evidence of having achieved a score in an English language test conducted in the three years immediately before the day on which the application was made, and therefore, Ms Cho did not satisfy clause 186.222 of the Migration Regulations 1994 (Cth) (Regulations).[2]  The delegate also found that Ms Cho was not exempt from this requirement.[3]

   [2] CB 150 to 154

   [3] CB 153

6. On 6 February 2017, the Tribunal (differently constituted) affirmed the decision under review.[4]

   [4] CB 235

7. Pursuant to orders made by consent by this Court on 21 June 2017, the matter was remitted to the Tribunal on the basis that the Tribunal had failed to consider that the PAYG Payment Summary was a group certificate, and had erred when it found that it was not provided with a copy of the most recent group certificate.

8. On 26 June 2017, the Tribunal sent a letter to Ms Cho’s representative and Ms Cho’s two street addresses, informing Ms Cho that it was reconsidering her application for review.[5]  On the same date, the Tribunal made three attempts to call both Ms Cho and Ms Cho’s representative by phone, but no calls were answered.[6]

   [5] CB 241 to 242, 247 to 248

   [6] CB 239

9. On 24 October 2017, the Tribunal invited Ms Cho to a hearing.[7]  While Ms Cho did not respond to that invitation, on 11 December 2017 she appeared at a hearing of the Tribunal to give evidence and present arguments, with the assistance of an interpreter in the Korean language (first hearing).[8]  Ms Cho’s representative was also present.[9]  The hearing was adjourned, part heard, to give Ms Cho an opportunity to have her tax returns for the 2016 and 2017 financial years processed in order to provide them to the Tribunal.[10] 

   [7] CB 255 to 257

   [8] CB 261 to 263

   [9] CB 261

   [10] CB 262 to 263, 325 at [13]

10. On 29 December 2017, Ms Cho’s representative informed the Tribunal by way of email that they were no longer representing Ms Cho.[11]

    [11] CB 276

11. On 11 January 2018, the Tribunal was advised that Ms Cho had appointed a new representative/authorised recipient.[12]

    [12] CB 277

12. On 25 January 2018, Ms Cho’s representative sent by way of facsimile the following documents:[13]

    a)a letter dated 19 January 2018 from Ms Cho’s new representative to the Tribunal containing submissions;[14] and

    b)the Financial Report of Park & K Pty Ltd (Ms Cho’s employer).[15]

    [13] CB 283 to 297

    [14] CB 284 to 287

    [15] CB 288 to 297

13. On 30 January 2018, Ms Cho was invited via her authorised recipient to attend a resumption of the adjourned hearing (resumed hearing).[16]

    [16] CB 299

14. Ms Cho appeared before the Tribunal at the resumed hearing on 14 February 2018 to give evidence and present arguments with the assistance of a Korean interpreter.[17]  Ms Cho’s new representative and Ms Cho’s sponsor were also present.[18]  Ms Cho also provided at the hearing a PAYG summary for the year ending 30 June 2017, and a Notice of Amended Assessment for both the year ending 30 June 2016 and 30 June 2017.[19]  Ms Cho also provided a half yearly statement of her Hostplus superannuation account. 

    [17] CB 305

    [18] CB 305

    [19] CB 308 to 314

Tribunal decision

1. On 15 February 2018, the Tribunal notified Ms Cho via her authorised recipient of its decision made on the same date affirming the decision under review.[20]

   [20] CB 321 to 323

2. The central issue considered by the Tribunal was whether Ms Cho’s annual earnings would equal or exceed $182,000, so as to avoid the requirement of vocational English in clause 186.222.[21]

   [21] CB 324 at [7] and [8]

3. The Tribunal considered documents including those provided to the Tribunal by Ms Cho.[22]

   [22] CB 324 at [10]

4. The Tribunal found that Ms Cho was not a credible witness as the 2016 and 2017 tax assessment notices that she provided showed taxable incomes of approximately $60,000, which was inconsistent with her earlier oral evidence and 2016 group certificate which stated that she was paid $182,000 for the 2016 financial year.[23]

   [23] CB 325 at [12] to [14]

5. Ms Cho’s sponsor also gave evidence during the resumed hearing, however the Tribunal was unconvinced that Ms Cho’s sponsor would increase Ms Cho’s salary by three times because Ms Cho’s sponsor “felt bad” about having paid her a low salary.[24]  The Tribunal also noted that the sponsor’s profits have decreased to approximately $2,000 in 2017 and it would make a significant loss if it then increased its wages bill by approximately $120,000 to pay Ms Cho $182,000 per year.[25]

   [24] CB 325 at [17]

   [25] CB 326 at [19]

6. The Tribunal also did not accept that Ms Cho performed three jobs as “marketing specialist”, “marketing manager” and “marketing director” on the basis that her explanation of her duties was not consistent with that claim, or with the expenditure of $4,000 or less for advertising recorded in the company’s 2016 and 2017 financial statements.[26]

   [26] CB 325 at [18]

7. Consequently the Tribunal found that Ms Cho was not exempt from the vocational English requirement and therefore did not satisfy clause 186.222.[27]  Further, the Tribunal found that the other applicants did not satisfy clause 186.311 because they were not members of the family unit of a person who holds a subclass 186 visa.[28]

   [27] CB 326 at [21]

   [28] CB 326 at [22]

The present proceedings

1. These proceedings began with a show cause application filed on 14 March 2018.  The applicants continue to rely upon that application.  The grounds in it are:

   1.The decision is so unreasonable that no reasonable person in the Second Respondent's position would have made the decision

   Particulars

   1.The Second Respondent does not have evidence to support its conclusion and decision that the applicant will not be paid $182,000. If the visa is granted.

   2.The decision of the Second Respondent is illogical and/or irrational:

   Particulars

   1.It was illogical and/or irrational for the Second Respondent to reject that the “Applicant is performing three jobs as "marketing specialist, marketing manager and marketing director", when:

   (a)    There is no marketing employee in the business

   (b)    The Second Respondent does not accept "the Applicant's tri-job performing" in favour of the Applicant (para [18])).

   2.The Second Respondent gave no reasons why it rejected the Applicant's submission that "the Applicant's tri-job performing (para [18]).

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 30 May 2018.  That material included a bundle of documents replacing those in the court book which were not paginated and which I have marked as exhibit R1.

3. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicants today.  Ms Cho, supported by her son, directed her submissions to the issue of her stated salary.  While Ms Cho was being paid $60,000 per annum, she contends, as she did at the Tribunal, that had she been granted the visa, this would have increased to $182,000.

4. The Tribunal, it seems to me, took the view that this was a somewhat artificial construct in order to avoid the need to satisfy the English language test for the visa.  The applicants themselves noted in submissions made from the bar table that the idea for the uplift in the salary had come from their migration agent and they had made a complaint about him.  It is apparent, however, that the applicants acted on the advice of their agent and that is how they presented their visa application.

5. There is no evidence available to support a contention of agent fraud.  In my view, the conclusions reached by the Tribunal were open to it on the material before it.   

6. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.

Ground 1

1. Ground 1 alleges that the finding that Ms Cho will not be paid $182,000 was unreasonable.

2. A finding of legal unreasonableness will occur where a decision is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” and “obviously disproportionate”.[29]  This does not involve a checklist exercise, but involves considering whether the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[30]

   [29] Minister for Immigration v Eden (2016) 240 FCR 158 at [65]

   [30] Eden at [65]; Minister for Immigration v Stretton (2016) 237 FCR 1 at [2]

3. The Tribunal’s finding that Ms Cho will not be paid $182,000 per year if the visa was granted was based on the evidence before it which the Tribunal set out in accordance with s.368(1)(e) of the Migration Act 1958 (Cth). This evidence includes documents in the Minister’s Department’s visa application file, documents provided to the Tribunal by Ms Cho, oral evidence given by Ms Cho and oral evidence given by the sponsor at the second day of hearing.[31]  The Tribunal also adjourned the first hearing to allow Ms Cho to provide her tax returns for the 2016 and 2017 financial years and other documents which Ms Cho then provided on the day of the resumed hearing.[32]

   [31] CB 324 at [10]

   [32] CB 325 at [13]

4. The Tribunal’s finding that Ms Cho will not be paid $182,000 if the visa was granted was based on the following considerations derived from the evidence before it:[33]

   a)the Tribunal found that Ms Cho was not a credible witness, as during the first hearing she stated that she had earned approximately $60,000 a year until May 2018, and her employer increased her salary to $182,000 a year.  However this was inconsistent with the tax assessment notices for 2016 to 2017 which showed taxable incomes of $60,000;[34]

   b)the Tribunal did not find, as submitted by Ms Cho’s representative, that Ms Cho’s experience and role make a significant wage increase likely, and her explanation of her duties was not consistent with that assertion;[35] and

   c)the Tribunal was unconvinced by the sponsor’s evidence that the reason why he increased Ms Cho’s salary was because he “felt bad” about having paid her such a low salary over the past five years.[36]  The Tribunal also noted that while gross takings for the sponsor’s business increased from 2016 to 2017, the profit reduced from approximately $31,000 in 2016 to $2,000 in 2017 and that the business would make a significant loss if “things stayed the same” and it increased its wages by $120,000 to pay Ms Cho a salary of $182,000 per year.[37]

   [33] CB 326 at [20]

   [34] CB 325 at [13] to [14]

   [35] CB 325 at [18]

   [36] CB 325 at [17]

   [37] CB 326 at [19]

5. Therefore, based on the evidence before it, the Minister submits that it was open to the Tribunal to find that Ms Cho would not be paid $182,000 per year if the visa was granted, and this was a finding that was not “arbitrary” or “unjust” as it was made based on the evidence before it.  Even if reasonable minds may differ in their findings based on the evidence, this is not enough to warrant the decision being unreasonable.[38]

   [38] Stretton at [7], [11]

Ground 2

1. Ground 2 alleges that it was illogical and/or irrational for the Tribunal to reject that Ms Cho is performing three jobs, namely, marketing specialist, marketing manager and marketing director.

2. Illogicality or irrationality means the decision to which the Tribunal came is one which no rational or logical decision maker could arrive at on the same evidence.[39]

   [39] Minister for Immigration v SZMDS (2010) 240 CLR 611, 647 to 648 at [130]

3. The Tribunal did not accept that Ms Cho was performing three jobs as “marketing specialist, marketing manager and marketing director”.[40]  The Tribunal gave a reason for this, being that the Tribunal found that Ms Cho’s explanation of her duties was not consistent with that assertion, or with the expenditure of $4,000 or less for advertising recorded in the company’s 2016 and 2017 financial statements.[41]  Therefore, this finding was open to the Tribunal to make. Even if reasonable minds might differ on the result, the decision cannot be set aside as illogical, irrational or unreasonable, simply because one conclusion might be preferred over another.[42]

   [40] CB 325 at [18]

   [41] CB 325 at [18]

   [42] SZMDS

Conclusion

1. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicants did not wish to be heard on costs. In the circumstances that all the applicants are adults, I will make a cost order against each and all of the applicants.

3. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     30 July 2018