Cui v Minister for Immigration

[2013] FCCA 564

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUI & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 564

Catchwords:
MIGRATION – Application for judicial review of a Migration Review Tribunal decision concerning approval of a nominated position – allegations of lack of procedural fairness, failure to properly consider the relevant criterion and illogical and capricious decision making – application dismissed – application for review of a decision concerning an associated application for the grant of an employer nominated visa also dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.357A, 360, 361, 474

Migration Regulations 1994, r.5.19

Lobo v Minister for Immigration and Multicultural &
Indigenous Affairs [2003] FCAFC168
Minister for Immigration and Citizenship v SZNPG [2010]FCAFC51
Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC61
Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197CLR611
Plaintiff S157/2002 v Commonwealth [2003]HCA 2
R v Hickman; Ex parte Fox & Clinton (1945) 154 CLR 25

Applicants: X CUI & F ZHENG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 699 of 2012

Applicant: KEITA MIYOSHI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 781 of 2012

Judgment of: Judge Terry

Hearing date: 14 February 2013

Date of Last Submission: 14 February 2013

Delivered at: Newcastle

Delivered on: 21 June 2013

REPRESENTATION

Counsel for the Applicants: Ms Wilson

Solicitors for the Applicants: Frank Lanza Migration Services

Counsel for the First Respondent: Mr Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

X Cui & F Zheng v Minister for Immigration & Citizenship & Anor

1. The application is dismissed.

2. The Respondents application for the Applicant to pay costs in a fixed amount is adjourned to a date to be advised for further consideration.

Keita Miyoshi v Minister for Immigration & Citizenship & Anor

1. The application is dismissed.

2. The Respondents application for the Applicant to pay costs in a fixed amount is adjourned to a date to be advised for further consideration.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CAIRNS

BRG 699 of 2012

X CUI & F ZHENG

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

BRG 781 of 2012

KEITA MIYOSHI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. X Cui & F Zheng (“the sponsors”) conduct a business in Cairns which provides Chinese massage services. Mr Myoshi (“the nominee”) is an employee of the business.

2. On 11 November 2009 the sponsors applied for approval of a nominated position of Project Administrator in the business, with the intention that the nominee would occupy this position. On the same day the nominee applied for a Employer Nomination (Residence) (Class BW) Visa, also referred to in the material as a sub class 857 permanent visa.

3. The sponsors’ application was filed on a Form 1054 and there was no dispute that as this form had been used the sponsors were required to meet the requirements of r.5.19 (4) of the Migration Regulations 1994 which refers to the Regional Sponsored Migration Scheme.

4. On 1 February 2010 a delegate of the Minister for Immigration & Citizenship rejected the sponsors’ application. The reason given was that the sponsors had not satisfied r.5.19(4)(a) in that they had failed to justify the need for a Project Administrator in their business.

5. The success of the nominee’s application has always hinged on the success of the sponsors’ application and as a result on 2 March 2010 a delegate of the Minister refused the nominee’s application for a visa.

6. Both the sponsors and the nominee applied to the Migration Review Tribunal for a review of the delegates’ decisions.

7. The Tribunal conducted a hearing of the sponsor’s application on 9 May 2012 and on 26 June 2012 affirmed the decision of the delegate, albeit for a different reason. As a result the nominee’s application for a review was also unsuccessful.  

8. The sponsors and the nominee then both applied to this court for a judicial review of the decisions of the Tribunal.[1] As the two applications are inextricably linked I intend to deal with them in the one judgment.

   [1] The Respondents took issue with the form of orders sought by the sponsors and the nominee but for the purposes of this decision nothing turns on that

The Tribunal’s decision

1. I was provided with a transcript of the proceedings before the Tribunal on 9 May 2012,  a copy of the supporting submissions made to the Tribunal by the sponsors representative both prior to and after 9 May 2012 and the Tribunal’s reasons for decision, and the following summary of events is taken from those documents.

2. The hearing was attended by the one of the sponsor’s and by their representative. The Tribunal member advised them that he had read the submissions prepared by the representative and was satisfied that a number of the criteria in r.5.19(4) had been met but was not yet satisfied that r.5.19(4)(d) was met. The requirement in r.5.19(4)(d) is that:

   The person to be appointed is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards.

3. The Tribunal member  said as follows:

   I know that you’ve got an offer, a job offer which says you’re going to pay $40,000.00, okay and certain other conditions but that is not sufficient information for me to be satisfied that you will meet all your requirements. I would just like to see…..information about wages, you know, for all your existing employees…..because I need to be satisfied you are sufficiently profitable to pay the wages, that you’ve been clearly paying appropriate wages to all your existing staff, okay?[2]

   [2] Transcript of proceedings 9 May 2012

4. The sponsor’s representative advised the Tribunal that in the most recent financial year the sponsor had employed 10 to 15 staff, 2 of whom were full time and had been employed for 3 years while the remainder were casual/part-time.

5. The Tribunal member requested that the sponsors provide a detailed profit and loss statement for the business for the last full financial year and a list of employees since 1 June 2010, identifying which staff were full time and which were part-time, and if possible provide information about staff incomes.

6. On 25 May 2012 the Tribunal received a submission from the sponsors’ representative enclosing a set of financial statements for the year ending 30 June 2011 which included a profit and loss statement. In the submission it was advised that the sponsors had 3 full time employees (a Project Administrator (being the nominee), a Shop Manager and a Massage Therapist) and approximately 10 contract massagers.

7. The sponsors representative did not provide any individual information about staff wages or the amount paid to contract massagers.

8. The Tribunal handed down its decision on 26 June 2012. It made reference to the written offer of employment dated 29 October 2009 which had been made to the nominee and which indicated that he was to be paid a base salary of $40,000.00 (exclusive of superannuation) and annual leave and superannuation in accordance with the industry award and Australian industrial laws.

9. The Tribunal said however that it was not satisfied that the wages and other listed expenses for 2010/2011 shown in the profit and loss statement were consistent with the sponsors obligations to meet the standards for wages and working conditions provided for under relevant Australian legislation and awards given that it had 3 full-time and 10 part time staff (contracted or otherwise).

10. The Tribunal said that it was therefore not satisfied that the terms and conditions of the employee’s employment would in fact be in accordance with the standards for wages and working conditions provided for under the relevant legislation and awards and was not satisfied that the sponsors met r.5.19(4)(d).

11. As the Tribunal was unable to be satisfied that the sponsors met all the requirements for approval of a nominated position the Tribunal affirmed the decision of the delegate.

12. On 6 August 2012 the Tribunal held that the delegates decision to refuse the nominee’s application for an Employer Nomination (Residents)(Class BW) visa must be upheld as he did not satisfy cl.857.221 of Schedule 2 of the Migration Regulations because his sponsor did not have an approved appointment.

The Sponsors’ submissions

1. It was submitted on the sponsor’s behalf that the Tribunal’s decision should be quashed and the matter remitted for redetermination on the basis that:

   i)The Tribunal failed to accord the sponsors procedural fairness and natural justice in that it required them to provide further documents and information and then failed to give them the opportunity to comment on the adverse conclusion it proposed to draw from that material before making a decision.

   ii)The Tribunal misunderstood the terms of r.5.19(4)(d) and did not apply the correct criterion when assessing whether the sponsors satisfied r.5.19(4)(d).

   iii)The Tribunal failed to have regard to relevant material and placed insufficient weight on other material and made a decision which was capricious, illogical, irrational and unreasonable.

The Respondent’s submissions

1. The Respondent submitted that the Tribunal had no obligation to afford the applicant common law procedural fairness or natural justice as this was a case to which s.357A of the Migration Act applied.

2. S.357A provides as follows:

   357A Exhaustive statement of natural justice hearing rule

   (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3)  In applying this Division, the Tribunal must act in a way that is fair and just.

3. The Respondents submitted that the Tribunal had complied with the requirements of s.357A. It conducted a hearing as required and put the sponsor’s on notice during the hearing of the issue which troubling it and gave the sponsors the opportunity to provide further information. The Tribunal was not obliged to keep up a running dialogue with the sponsors after this and ask them to comment on any conclusions it proposed to draw.

4. The Respondents submitted that the Tribunal had correctly understood r.5.19 (4) (d) and had not confused it with any other of the r.5.19(4) sub-regulations.

5. The Respondents submitted that there was simply no foundation for a claim that the Tribunal had ignored relevant material, and complaints about weight and illogical and capricious decision making in this case were simply another way of the sponsors saying that they disagreed with the decision. The court should not be drawn into engaging in an impermissible merits review.   

Discussion

1. The decision of the Tribunal was a privative clause decision and s.474 of the Migration Act provides that:

   (1)  A privative clause decision:

   (a)  is final and conclusive; and

   (b)  must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c)  is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

2. The effect of this section is that the decision of the Tribunal cannot be impugned if it was a bona fide attempt to exercise the power in question, the decision relates to the subject matter of the legislation and the decision is reasonably capable of reference to the power given to the Tribunal.[3] However s.474 does not prevent a review of the decision if jurisdictional error is alleged.[4]

   [3] R v Hickman; Ex parte Fox & Clinton (1945) 154 CLR 25

   [4] Plaintiff S157/2002 v Commonwealth [2003]HCA 2

3. The sponsors submitted that the decision could be impugned on three grounds, the first of which was that the Tribunal did not afford it procedural fairness and natural justice.

4. This submission is without merit. 

5. As the Respondents correctly pointed out s.357A of the Migration Act applies and the Tribunal did not breach any of the requirements of Division 5 of the Migration Act.

6. It conducted a hearing as it was required to do by s.361 and it acted in a way which was fair and just. It put the sponsors squarely on notice of the issue which was troubling it and gave them the opportunity to put further material before it in regard to that issue. Only after receiving that material and receiving further submissions did the Tribunal make its decision.

7. The Tribunal was not obliged to go back to the sponsors again after receiving the additional material and tell them that it was still not satisfied and ask them if there was anything else they wanted to say nor was it required to expose its reasoning and seek comments.

8. In Minister for Immigration & Multicultural and Indigenous Affairs v Lat the Full Court of the Federal Court said as follows:

   It is a fundamental principle of public law that a person affected by an administrative decision is entitled to have brought to his or her attention the critical issue or factor on which the decision is likely to turn so as to have an opportunity to deal with it; Kioa at 587.

   This entitlement extends to the right to comment upon adverse material from third parties which is put before the decision-maker; see Alphaone at 591-592 (per Northrop, Miles and French JJ). Their Honours continued by stating that this right:-

   "also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."[5]

   [5] Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC61

9. The sponsor’s next submission was that the Tribunal failed to properly consider one of the criteria about which it had to be satisfied.    

10. There was no dispute that the Tribunal correctly identified that for the sponsors to succeed the Tribunal needed to be satisfied that they met all the requirements of r.5.19(4) and that it correctly identified that one of the requirements the sponsors had to meet was r.5.19(4)(d).

11. Of course it is possible for an administrative body to correctly identify the question which needs to be answered and then fail to consider the question at all, and that is what happened in Lobo v Minister for Immigration and Multicultural & Indigenous Affairs the case to which the sponsors referred me. In that case the Tribunal identified the right part of the legislation but then proceeded to consider whether a similar but not identical rendering of the legislative requirement which appeared in the Departmental Procedures Advice Manual had been satisfied.[6]

    [6] Lobo v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC168

12. Nothing of that sort occurred here, but the sponsors submitted that the Tribunal had misunderstood the requirements of r.5.19 (4) (d) and that it should have been satisfied as to r.5.19 (4) (d) because the terms of the 2009 offer of employment to the nominee provided for him to be employed or engaged in accordance with the standards for wages and wage conditions provided for under Australian legislation.

13. The sponsors submitted that the Tribunal fell into error when it asked itself when considering r.5.19(4)(d) whether it was satisfied about the sponsors past payment of wages to its employees and that in doing so it confused the requirements of r.5.19 (4) (d) with the requirements of r.5.19(4)(h).

14. R.5.19(4)(h) provides that the requirements of this sub-regulation are satisfied if:

    The Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

    (i)     the Commonwealth; and

    (ii)each State and Territory in which the employer operates   the business or has employees of that business.

15. I do not accept this submission.

16. The Tribunal was not obliged to take it as read that the nominee would be paid in accordance with the 2009 offer of employment. It was entitled to ask questions about the sponsors’ history of payments both to the nominee and to other employees and about its financial situation generally when considering whether it was satisfied that the nominee would actually be employed or engaged accordance with Australian legislation and awards.

17. The sponsors’ next argument was that the Tribunal ignored relevant material and placed undue weight on other material. The material they claimed was ignored was the 2009 offer of employment and the material on which they said undue weight was placed was the sponsors 2011 financial statements.

18. They finally argued that the Tribunal’s decision was illogical, irrational and unreasonable amounting to jurisdictional error in that no reasonable mind would adopt the reasoning, finding or decision. 

19. Partially underpinning this argument was an assertion that because the Tribunal had found that the sponsors had satisfied r.5.19 (4) (h) they could not logically find that they had not satisfied r.5.19 (4) (d). The flaw in this argument is that nowhere did the Tribunal state that they were satisfied about r.5.19 (4) (h). They stated that they were satisfied that a number of the considerations in r.5.19(4) were met (without specifying which) but were concerned about r.5.19(4)(d).

20. Otherwise this submission relied on a general assertion that the decision was so unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to the same conclusion.[7]

    [7] Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197CLR611

21. These submissions must also fail.

22. It is clear from the reasons for decision that the Tribunal had regard to all of the material placed before it. It had regard to the offer of employment. It read the 2011 financial statements and had regard to the list of expenses which included wages of $111,805.00 and it concluded that it:

    Was not satisfied that the applicant’s wages and other listed expenses for 2010/11 for its 3 full time employees and 10 part time staff (contracted or otherwise) are consistent with the applicant’s obligations to meet the standards for wages and working conditions provided for under relevant Australian legislation and awards.

23. In the sponsor’s submissions this passage was misquoted and the words “and other listed expenses” were omitted.

24. It is simply not the case that the Tribunal overlooked relevant material or placed undue weight on the 2011 financial statements or that no reasonable Tribunal could have come to the same decision as the Tribunal in this case.  

25. There is nothing in the documents to support a finding that the Tribunal’s decision was clearly wrong, and this court is not permitted to review the merits of the Tribunal’s decision. This has been expressed many times and in many places but an example was in Minister for Immigration and Citizenship v SZNPG [2010]FCAFC 51 where the Full Court of the Federal Court said as follows:

    It was not for the Federal Magistrates Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185CLR 259 at 272; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex Parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

1. I am not satisfied that the sponsors have made out any ground which would call for the decision made by the Tribunal to be quashed and I intend to dismiss their application.

2. It follows that the nominee’s application must also be dismissed.

3. The Respondents sought orders that the sponsors and the nominee pay the Second Respondent’s costs in a fixed amount. No submissions concerning costs were made on 11 February 2013 however and I will adjourn these applications to a date to be advised to the parties for further consideration.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  21 June 2013