Cyber Computer Recycling & Disposal Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1286
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cyber Computer Recycling & Disposal Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1286
File number: PEG 300 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 27 November 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to inform the applicant of the material covered by a certificate issued under s 375A of the Migration Act 1958 (Cth) – whether the Tribunal failed to give the applicant a document to which it was entitled under s 362A of the Migration Act – whether the Tribunal misunderstood Australian law – whether the Tribunal misconstrued the legal requirements under reg 2.86(2A) of the Migration Regulations 1994 (Cth) – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) Sch 16 items 10, 25
Fair Work Act 2009 (Cth) s 62
Migration Act 1958 (Cth) ss 140GB, 140M, 359A, 360, 362A, 375A, 438, 476
Migration Regulations 1994 (Cth) reg 2.79, 2.84, 2.86, 2.89, 2.90, 2.91
Cases cited: CHZ19 v Minister for Home Affairs [2019] FCA 914
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157
Singh v Minister for Immigration and Border Protection [2020] FCA 783
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 19 April 2024 Place: Perth (by Microsoft Teams) Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 300 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYBER COMPUTER RECYCLING & DISPOSAL PTY LTD ATF THE CYBER SYSTEM FAMILY TRUST
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 10 November 2023 (case number 2207164).
2.A writ of mandamus issue, directed to the Administrative Review Tribunal, requiring it to reconsider the application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant was an approved standard business sponsor under the Migration Act 1958 (Cth)[1] (Migration Act). A delegate of the Minister cancelled the applicant’s approval as a standard business sponsorship under s 140M of the Migration Act and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act.
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant alleges that the Tribunal made a jurisdictional error on the bases that:
(a)a certificate issued under s 375A of the Migration Act was invalid and, in failing to inform the applicant of the material covered by the certificate, the Tribunal failed to comply with its obligations under ss 359A, 362A and 360(1) of the Migration Act;
(b)the Tribunal misunderstood Australian law in relation to the need to pay overtime hours to employees; and
(c)the Tribunal misconstrued the requirements of reg 2.86(2A) of the Migration Regulations 1994 (Cth) (Regulations).
For the reasons explained below, I have found that the applicant has established jurisdictional error on the basis that the Tribunal failed to provide it with information that was not the subject of the certificate issued under s 375A of the Migration Act and to which he was entitled under s 362A of the Migration Act, and that error was material. I therefore issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to require the Administrative Review Tribunal to reconsider the matter according to law.
BACKGROUND
The applicant applied to be a standard business sponsor on 26 July 2018 and was approved as a standard business sponsor on 3 September 2018. The sponsorship was effective until 3 September 2023.
On 11 February 2022 the Australian Border Force sent the applicant a Notice of Intention to Take Action (NOITTA), which advised that a delegate of the Minister was considering taking action under s 140M of the Migration Act. The NOITTA advised the applicant that Australian Border Force commenced monitoring the applicant’s compliance with its sponsorship obligations on 23 November 2020 and identified the following circumstances prescribed under the Regulations as potentially applicable:
(a)reg 2.89 – failure to satisfy sponsorship obligations, including:
(i)reg 2.79 – obligation to ensure equivalent terms and conditions of employment;
(ii)reg 2.84 – obligation to provide information to Immigration when certain events occur;
(iii)reg 2.86 – obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity;
(b)reg 2.90 – provision of false or misleading information; and
(c)reg 2.91 – application or variation criteria no longer met.
The applicant was provided details about the potential breaches and was invited to provide a response in writing by 25 February 2022. The applicant provided material in response to the NOITTA on 18, 23 and 28 March 2022, and on 7 April 2022.
On 16 May 2022 a delegate of the Minister cancelled the applicant’s approval as a sponsor under s 140M on the basis that the applicant failed to satisfy its sponsorship obligations, provided false or misleading information, and no longer met the sponsorship criteria.
On 17 May 2022 the applicant applied to the Tribunal for review of the delegate’s decision.
On 7 June 2022 the Minister’s Department issued a certificate under s 375A of the Migration Act covering redacted information in a document on the basis that the disclosure of that information would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods (s 375A certificate).
The applicant provided various evidence and submissions to the Tribunal in writing on 4 July 2022, 3 February 2023, 28 July 2023 and 18 October 2023.
The applicant, via its director, Mr Lawrence John, attended a hearing before the Tribunal on 10 February 2023 to give evidence and present arguments. The applicant was represented by a lawyer at the hearing and several witnesses also gave evidence.
The Tribunal affirmed the decision under review on 10 November 2023. The relevant parts of the Tribunal decision are referred to in the consideration of the applicant’s grounds below.
JUDICIAL REVIEW APPLICATION
Pursuant to an amended application filed on 21 March 2024, the applicant relies on the following grounds (reproduced without alteration):
1.The decision of the Seconded Respondent is affected by legal error, in that the certificate under s375A of the Migration Act 1958 (Cth) was invalid, and in failing to inform the Applicant of the material covered by the certificate on which the Second Respondent relied, the Second Respondent failed to comply with any one of ss 359A, 362A and 360(1).
4.The reasoning at Reasons [63] is affected by legal error, in that the Second Respondent misunderstood Australian law.
a.The regulation of working hours in addition to the regular (38) hours of work per week is set out in s 62 of the Fair Work Act 2009 (Cth).
b.Section 62 of the Fair Work Act 2009 (Cth) sets out that a full time employee may be required to work (unpaid) addition hours that are reasonable, and sets out considerations in determining whether any additional hour of work is “reasonable”.
c.The Second Respondent failed to undertake the analysis required by law in reaching the conclusion at Reasons [63]-[64].
d.Further, the Second Respondent failed to identify the source of any obligation to pay “overtime” hours, nor at what rate those overtime hours were to be work.
6.The reasoning leading to the conclusion at Reasons [87]-[98] is affected by legal error in that the Tribunal misconstrued the legal requirements under reg 2.86(2A). Specifically, the Tribunal construed this obligation as requiring that the applicant ensure that any person it sponsored did not perform remunerative work for any person other than the applicant. Instead, reg 2.86(2A) imports a requirement that the relevant legal relationship between the applicant and persons whom it sponsors is only of employment between the applicant and the sponsor or an associated entity.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 23 February 2024; and
(b)an affidavit of Georgina Roberta Ellis filed on behalf of the Minister on 5 April 2024, which annexes a redacted copy of the document containing information the subject of the s 375A certificate.
GROUND 1
By ground 1, the applicant alleges that the Tribunal decision is affected by jurisdictional error because the s 375A certificate issued by the Minister’s Department was invalid, and because the Tribunal failed to inform the applicant of the material covered by the s 375A certificate and therefore breached its obligations under ss 359A, 362A and 360(1) of the Migration Act.
The Minister adduced evidence in response to the ground and the applicant’s submissions, which was not available to the applicant at the time the ground was drafted and the applicant’s original submissions were prepared. The issues raised by this ground have therefore been refined through the Minister’s affidavit and submissions, and the applicant’s written submissions in reply as well as the oral submissions at the hearing.
At the hearing, Counsel for the applicant pressed the ground on two bases:
(a)that the Tribunal breached s 362A of the Migration Act by failing to give the applicant a copy of the document the subject of the s 375A certificate with the redactions in place; and
(b)that the s 375A certificate was invalid.
The documents covered by the s 375A certificate
The s 375A certificate in question contained the following certification from the Department (emphasis added):
I certify that in accordance with s375A of the Migration Act 1958, the disclosure, other than to the Administrative Appeals Tribunal of the redacted information in TRIM reference number OPD2022/231709 of file number OPF2020/14053, would be contrary to the public interest because:
(a)disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods – OPD2022/231709
The applicant submitted, and the Minister agreed, that only the redacted information contained in the document described as ‘TRIM reference number OPD2022/231709 of file number OPF2020/14053’ (the document) is subject to the certificate. That is, the certificate only covers the redacted information in the document. I agree that this is the proper interpretation of the certificate.
While the Tribunal has not expressly stated that it has interpreted the certificate in this way, there is nothing in the Tribunal’s reasons that would suggest that it has misunderstood the scope of the s 375A certificate.
Validity of the s 375A certificate
Both parties addressed the validity of the s 375A certificate, with the applicant submitting that the s 375A certificate was invalid and the Minister submitting that it was valid.
Both parties have referred in their submissions to the judgment of Wigney J in Singh v Minister for Immigration and Border Protection [2020] FCA 783 (Singh), where his Honour said at [54]-[59]:
54.The Minister submitted that the primary judge was correct in finding that the “validity of the certificate turns on its face”. No authority for that proposition was cited by either the primary judge or the Minister on appeal. Nor was any, or any cogent, argument advanced in support of it by the Minister. The Minister’s contention appeared to be simply based on the premise that a certificate purportedly issued under s 375A must be taken to be valid if it states that disclosure of the documents or information covered by it would be against the public interest. The suggestion appeared to be that there was no occasion or basis for going behind such a statement. If the Minister or his delegate says disclosure would be contrary to the public interest, that must simply be accepted to be the case.
55.The proposition that the validity of a certificate under s 375A of the Act “turns on its face” ignores the principle that the power to issue such a certificate, like any other statutory power or discretion, must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23]-[29], [63]-[65], [88]-[92]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [19]. It must follow that the Minister or his delegate cannot issue a certificate under s 375A of the Act unless there is at least some probative, rational or logical basis for finding that disclosure would in fact be contrary to the public interest. A certificate issued on grounds that are demonstrably arbitrary, irrational or illogical could be said to be invalid on the grounds of legal unreasonable even if, on its face, it stated that disclosure was contrary to the public interest.
56.The certificate in question in this case stated that it was contrary to the public interest to disclose copies of the Facebook posts of Mr Singh and Ms Weatherall to anyone but Tribunal members because they had not been provided by Mr Singh or Ms Weatherall “as part of” Mr Singh’s visa application. That is not a rational or logical basis upon which to conclude that disclosure would be contrary to the public interest. The only people to whom the Tribunal was likely to disclose, or had any reason to disclose, the Facebook posts were the authors of those posts. They knew the contents of the posts. The Facebook posts were also obviously public in nature. There was no suggestion, nor could there be, that Mr Singh or Ms Weatherall intended them to be confidential.
57.There may be cases where it might reasonably be considered to be contrary to the public interest to disclose information or a document to a visa applicant on the basis that the information or document was provided to the Minister by a third party. That would clearly be the case, for example, where the information was provided by an informant on a confidential basis and disclosure would reveal the identity of the informant. It does not follow, however, that the disclosure will be contrary to the public interest in every case where information or documents are provided by a third party. There was, in any event, no evidence or available inference that the documents in question in Mr Singh’s case were provided by a third party. The certificate does not state that to be the case and it might equally have been the case that the documents were obtained from the internet by the delegate or some other officer in the Minister’s department. Indeed, the notations on the documents would suggest that that was most likely to be the case.
58.The Minister did not adduce any evidence to support the proposition that there was a logical or rational reason for concluding that disclosure to Mr Singh and Ms Weatherall of their own Facebook posts would be contrary to the public interest simply because they were not submitted by them in support of Mr Singh’s visa application. Needless to say, there was no evidence from the delegate who signed the certificate. Nor did the Minister put forward any rational or logical basis for finding that disclosure of the documents to Mr Singh would be contrary to the public interest. He simply submitted that it was “open to the delegate to regard disclosure of the parties’ social media records not submitted by them as contrary to the public interest”. If “open to” in that context was intended to mean rational or logical, the submission is rejected. Otherwise it goes nowhere.
59.It follows that the primary judge erred in concluding that the validity of the notice “turn[ed] on its face” and erred in concluding that the certificate was valid. No rational or logical basis for certifying that disclosure of the documents would be contrary to the public interest was shown. The decision to certify that disclosure would be contrary to the public interest was legally unreasonable.
Both parties relied on Singh in relation to the evidence that the Minister might have led to establish the validity of the certificate.
The Court has before it the document referred to in the s 375A certificate with the redactions applied, but not a clean copy of the document. In other words, the Court does not have available to it the specific information that was the subject of the s 375A certificate.
The Minister submitted that it was not necessary for the Court to receive evidence to be satisfied that the protected information gave rise to a claim for public interest immunity, noting that the wording of s 375A(1) differs from ss 376 and 438 of the Migration Act. Section 375A(1) provides:
This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
The Minister accepted s 375A certificates are not beyond scrutiny, referring to Singh at [55], but submitted that the certificate here describes the basis upon which it was issued, namely, that the redacted information would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Minister submitted that that was a probative, rational and logical basis for the issue of the certificate.
In his oral submissions, Counsel for the Minister referred to the judgment of Colvin J in CHZ19 v Minister for Home Affairs [2019] FCA 914 (CHZ19), where his Honour noted the differences between ss 375A and 438 of the Migration Act and considered the validity of a s 375A certificate in which the reason specified was that the documents ‘contain departmental investigative methods, disclosure of which would be prejudicial to future investigations’: CHZ19 at [47]-[48]. His Honour considered that this reason was sufficiently specific as to why disclosure was contrary to the public interest: [49]. Counsel for the Minister submitted that the present case is analogous and that, if the reason in the certificate as to why disclosure of the information is not in the public interest is sufficiently clear on its face, and the reason comes within s 375A, that is sufficient to show the validity of the certificate.
On the other hand, the applicant submitted that Singh rejects the proposition that the validity of a s 375A certificate can be determined on its face. While in some cases it may not be necessary for evidence to be adduced in support of the validity of the certificate, it is not the case that evidence should not be expected. The applicant submitted that the proper approach should be accepted as requiring the Minister to justify that the reason stated on the certificate is one of sufficient gravity to support the issue of a s 375A certificate based on facts or information adequate to reach that conclusion.
Counsel for the applicant submitted that in the present case, it is not possible to observe or infer that the certificate is valid on its face, even though that may be possible in other scenarios. Counsel for the applicant referred to parts of the document that had been redacted and submitted that the reasons that specified in the certificate must properly connect with the information that is made the subject of the certificate and there is no way that can be done on the face of this document. Counsel for the applicant submitted that for the validity of the certificate to be accepted, someone had to give evidence to explain how the information and the need for those redactions connects with the reason specified in the certificate.
I am not satisfied that the s 375A certificate is invalid.
The reason given on the s 375A certificate is sufficiently specific to explain why disclosure of the information is contrary to the public interest, just as was the case with the reason on the certificate considered in CHZ19. There is a probative, rational and logical basis for certifying that disclosure of the information is contrary to the public interest. The information is set out in the document, which was headed ‘Sponsor Monitoring Recommendation Report’, and the document is 56 pages in length. Some of the redactions to the document are substantial and it is not possible in the case of each and every redaction for the Court to form a specific view of the precise nature of the information that may have been redacted. However, having regard to the overall content of the document and the reason given for why disclosure would be contrary to the public interest, I am sufficiently satisfied from the information before the Court that the reason given in the certificate is appropriate and there is no reason to believe that the redactions applied to the document are not consistent with the reason on the face of the certificate. This case is readily distinguished from Singh, where the illogicality of the s 375A certificate stemmed from the fact that the only people to whom the documents would be disclosed were it not for the certificate were the people who authored the relevant documents (Facebook posts), which were not confidential.
Did the Tribunal breach its obligations under ss 359A, 362A or 360(1) of the Migration Act?
While the applicant’s pleaded ground and original submissions referred to potential breaches of ss 359A, 362A and 360(1) of the Migration Act, after the Minister filed the affidavit of Ms Ellis containing a copy of the document with redactions, the applicant refined its submissions to focus on an alleged breach of s 362A of the Migration Act.
Section 362A provides:
(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2)This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require authorise the disclosure of information.
(3)This section does not apply if the Tribunal has given to the applicant a copy of the statement required by subsection 368(1).
The applicant submitted there is no reason why it should not have been provided with a copy of the document with the redactions in place, which would have complied with the s 375A certificate since the applicant would not have received the redacted information covered by the certificate.
Counsel for the applicant accepted that much of the information in the document was in fact already given to the applicant through the delegate’s decision, but aspects of it were not. The applicant identified some of these in his reply submissions:
(a)At page 8 of Ms Ellis’ affidavit, there is a reference in the unredacted part of the document subject to the s 375A certificate of fraud being detected, which appears to relate to a company going into liquidation. While the applicant was aware of the liquidation issue, it was not aware of the opinion of the author of the document that there had been fraud detected and the applicant ought to have been given an opportunity to take steps to inoculate any force of this opinion.
(b)On page 12 of Ms Ellis’ affidavit, there is mention of serious concerns with employment contracts relating to signatures, which was not a point identified in the delegate’s decision but indicates some impropriety or a ‘flavour of dodginess’ attaching to the people involved in this matter.
(c)On page 55 of Ms Ellis’ affidavit, there is reference to Mr Varghese providing false information to the Department and, although this was not relied on in the Tribunal decision, it is capable of adding weight or intensity to the ‘flavour of dodginess’ that emerges from the certificate information.
(d)There were additional allegations of non-compliance of which the applicant was unaware and, while these were not relied on directly, they again contribute to the ‘flavour of dodginess’ that arises from the certificate information.
(e)On page 58 of Ms Ellis’ affidavit, there is an overall recommendation that the standard business sponsorship agreement be cancelled and the mere fact of the recommendation is significant because, whilst the Tribunal must form its own view of the evidence, it is entitled to place weight on the opinions of other, non-expert persons.
The applicant identified various types of evidence or information, or steps that it might have taken to address the issues in the document, had the document, with the redactions over the information covered by the s 375A certificate, been disclosed to the applicant.
The Minister submitted that any breach of s 362A of the Migration Act could only have resulted in jurisdictional error if disclosure could have reasonably affected the decision of the Tribunal: Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 at [15]. In that case, the Full Court said at [15]:
… What is clear is that Mr Dhillon had maintained an entitlement to have been given access to the redacted material which he had been denied by the Tribunal’s formal decision on the request he had made regularly under s 362A. The information in the redacted material was material and relevant to the Tribunal’s decision against Mr Dhillon on the Public Interest Criterion. The qualification to Mr Amarante’s statement in the agreed summary of facts bore relevantly and probatively upon the vital findings that the document relied upon by Mr Dhillon was bogus and that he ought not to be believed. It was also relevant and probative to forensic decisions that might have been made about the conduct of the proceeding before the Tribunal, including whether to persuade the Tribunal to subpoena either Ms Galanos or Mr Amarante. The conclusion that the decision of the Tribunal on the Public Interest Criterion was erroneous because of the failure to provide the redacted material under s 362A is also of practical significant to Mr Dhillon and the outcome of any future visa application he may make. The finding of Mr Dhillon having given, or caused to be given, a bogus document or false information precludes him under Public Interest Criterion 4020 from being granted a visa for a period of three years unless justified by “compelling circumstances”: see Vyas v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 281 FLR 247; Kandel v Minister for Immigration [2014] FCCA 1479. The Tribunal’s decision to the extent that it is based on acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground.
The Minister submitted that, by reference to the Tribunal’s own reasons in the present matter, the Tribunal did not have regard to any adverse information in the document that was not otherwise disclosed in the delegate’s reasons. The Minister submitted that the Tribunal’s express indication that it would not be relying on any information in the document referred to in the certificate that was not already disclosed in the delegate’s reasons is sufficient to defeat the applicant’s contention.
I accept the applicant’s submission that, in circumstances where the s 375A certificate only applied to information that was covered by redactions, the applicant was entitled to have access to a redacted copy of the document. The Tribunal’s failure to give him this document upon his request amounts to a breach of section 362A of the Migration Act.
The question then is whether that amounts to jurisdictional error.
The Tribunal said at [13] of its reasons:
The Tribunal is satisfied the adverse information in the documents protected by the nondisclosure certificate is disclosed in the delegate’s decision record which the applicant gave the Tribunal with its application for review. The Tribunal has taken into account information contained in the protected document only where that information is disclosed in the delegate’s decision.
I have found above, consistent with the submissions of the Minister, that there is nothing in the Tribunal decision to suggest that the Tribunal misinterpreted the scope of the s 375A certificate. When one then reads the Tribunal’s reasons at [13], the ‘information … protected by the nondisclosure certificate’ that is disclosed in the delegate’s decision has to be understood as referring to information in the redacted part of the document that is before the Court. The Tribunal’s reasons are silent on the extent to which the Tribunal had regard to information in the unredacted parts of the document that were not also referred to in the delegate’s decision. I therefore cannot accept the submission of the Minister summarised at [38] above that it is a complete answer to the ground that the Tribunal expressly stated that it only had regard to those parts of the information protected by the certificate as were disclosed in the delegate’s decision. The breach of s 362A of the Migration Act does not relate to that information covered by the s 375A certificate, but rather to the information in the document that was not the subject of the s 375A certificate.
Counsel for the Minister has appropriately noted in his oral submissions that the ground is not pleaded as an apprehended bias ground, and so the types of issues that arose in cases such as CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 in relation to prejudicial and irrelevant information do not arise here. However, it remains relevant for the purpose of assessing the materiality of the breach of s 362A to consider whether there is a realistic possibility that the Tribunal’s decision could have been different if the applicant had been provided with the information that he ought to have been, but was not, provided in accordance with s 362A of the Migration Act: see, for example, LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7]. That can include consideration of whether the adverse information in the document might have directly or indirectly impacted on the Tribunal decision, even if it was not expressly referred to in the Tribunal’s reasons.
Having regard to:
(a)the low threshold for establishing materiality;
(b)the nature of some of the information in the unredacted parts of the document, including that referred to by the applicant’s Counsel, and the potential for it to impact on the Tribunal’s assessment of the propriety of the applicant; and
(c)the fact that the Tribunal rejected parts of the evidence and explanations given on behalf of the applicant,
I accept that there is a realistic possibility that, had the applicant been provided with the information in the unredacted parts of the document pursuant to s 362A of the Migration Act, he may have addressed some of that information in evidence or submissions and the Tribunal decision could have been different. I therefore accept that the Tribunal’s error is material.
The applicant has therefore established jurisdictional error by ground 1.
GROUND 4
By ground 4, the applicant asserts that the Tribunal’s reasons at [63] show that it misunderstood Australian law. The Tribunal found at [63]-[64] that the applicant failed to meet the requirement for standard business sponsorship under reg 2.79(3)(b)(iii) of the Regulations, because the employment conditions of one of its employees, Mr Varghese, were less favourable than those that would apply to an Australian citizen.
Regulation 2.79(3)(b)(iii) of the Regulations provides:
(3) The person must ensure that:
…
(b)if the person is mentioned in paragraph (1)(a) and the nomination by the person of an occupation in which the primary sponsored person is identified was made on or after 18 March 2018:
…
(iii)the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australia citizen or an Australian permanent resident performing equivalent work at the same location; …
A copy of Mr Varghese’s employment contract was in evidence before the Tribunal. In relation to his hours of work, the contract provided:
7.1 Your ordinary hours of work are 38 hours per week, Monday to Friday.
7.2The Company expects you to work the hours required to perform your duties properly, including reasonable hours in addition to the minimum hours of work if necessary. No Overtime payment will be applicable for a Management salaried position.
The Tribunal found that there were eight separate fortnightly periods in which Mr Varghese worked for the applicant or an associated entity of the applicant, in excess of his contracted 38 hours per week, without payment of overtime. At [63]-[64] of its reasons, the Tribunal said:
63.The Tribunal finds the hours worked by Mr Varghese above his contracted hours of 38 hours per week are excessive and beyond what are reasonable hours required to perform his role as described in his employment contract. Mr Varghese was paid an hourly rate of $27.83 for the hours that he worked despite the purported ‘averaging agreement’ suggesting that he would be paid overtime if he worked more than 44 hours in a week. Mr Varghese worked in excess of his contracted 38 hours per week and did not receive overtime payments for the excess hours he worked.
64.The Tribunal is not satisfied the employment conditions that apply to Mr Varghese are not less favourable that those that apply, or would apply to an Australian citizen or Australian permanent resident performing equivalent work at the same location as required by reg 2.79(3)(b)(ii).
The applicant submitted that the Tribunal was required to, but did not, undertake an analysis under s 62 of the Fair Work Act 2009 (Cth). That section relevantly provides:
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full‑time employee—38 hours; or
…
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a)any risk to employee health and safety from working the additional hours;
(b)the employee’s personal circumstances, including family responsibilities;
(c)the needs of the workplace or enterprise in which the employee is employed;
(d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of his or her intention to refuse to work the additional hours;
(g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h)the nature of the employee’s role, and the employee’s level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
…
The applicant submitted that s 62 of the Fair Work Act regulates the consideration of what hours beyond 38 hours of work are to be regarded as ‘reasonable’. The applicant submitted that, in undertaking the comparison called for by reg 2.79(3)(b)(iii), the Tribunal should have accepted that an Australian citizen would be subject to s 62 of the Fair Work Act and could be required to perform additional hours beyond 38 hours per week, with no numerical maximum, insofar as those hours are reasonable. The Tribunal failed to undertake the analysis required by s 62(3) in determining what hours were ‘reasonable’ in the circumstances, and therefore was not able to reach a conclusion that the additional hours were not reasonable in the circumstances.
The applicant further submitted that it is unclear on what basis the Tribunal found that 44 hours (or more) per week of work by Mr Varghese constituted unreasonable hours. In the absence of any statement of lawful factors justifying this conclusion, the proper inference is that the Tribunal did not have any lawful basis for the conclusion.
In his oral submissions, Counsel for the applicant submitted that this is not an issue of mandatory relevant considerations, but rather that an administrative decision-maker is required to understand the law correctly as it applies to their decision. Counsel for the applicant submitted that the error was material because, had the Tribunal gone through the exercise under s 62 of the Fair Work Act, its decision may have been different.
The Minister submitted that the express terms of the Fair Work Act were not a mandatory relevant consideration mandated by the terms of the Migration Act. The Minister submitted that the applicant’s submission otherwise rises no higher than disagreement with the Tribunal’s factual conclusion about whether Mr Varghese’s hours were excessive or unreasonable and invites the Court to engage in an assessment of the merits. The Minister submitted that the applicant’s submission that the Court should infer that the Tribunal’s conclusions lacked a lawful basis because of an ‘absence of any statement of lawful factors’ cannot be accepted and the Tribunal’s reasons for its conclusion appear at [55]-[62] of its reasons within the context of the consideration of the terms and conditions of the contract of employment.
In his oral submissions, Counsel for the Minister submitted that the Tribunal’s conclusion at [63] of its reasons shows that the Tribunal directed itself correctly in relation to the regulation, and understood that it was comparing Mr Varghese to a hypothetical Australian citizen or permanent resident performing similar work in considering, for example, whether the hours worked by Mr Varghese were within his contracted hours and, if not, whether they were beyond what is reasonable, because there was a reasonableness provision within his contract of employment and the Tribunal was aware of that. The Tribunal found, on the basis of the hours worked outlined in the paragraphs preceding the conclusion at [63], that the hours worked were not reasonable. Counsel for the Minister submitted that, to the extent it is put that the Tribunal needed to, in order to make that conclusion, go through a checklist by reference to s 62(3) of the Fair Work Act, it should be borne in mind that the applicant was on notice of the concern about this regulation and whether it was met in relation to Mr Varghese’s employment. There was no information before the Tribunal that the applicant had adduced either to say that the hours worked in excess of 38 hours a week were compliant with or within the bounds of s 62 of the Fair Work Act, or that any of the factors in s 62(3) were relevant to the reasonableness assessment that the Tribunal should undertake. Counsel for the Minister submitted that those were not submissions that were put to the Tribunal for the purposes of the consideration of reg 2.79(3)(b). The Tribunal did not have a duty to inquire about those particular features but was rather required to consider the case on the information before it.
I am not satisfied that the Tribunal has made the error asserted by the applicant. I accept the oral submission advanced by Counsel for the Minister to the effect that the Tribunal’s reasons at [63] shows that it understood the statutory task required by the regulation, namely comparing the terms and conditions of the applicant’s employment with those of a hypothetical Australian citizen or permanent resident performing the same work. The Tribunal did not expressly refer to s 62(3) of the Fair Work Act but in the circumstances of this particular case, I do not consider that that gives rise to jurisdictional error. There are two main reasons for this.
First, the Tribunal’s reasons on this issue are detailed and have regard to the submissions and information provided by the applicant. In setting out the various matters it considered, the Tribunal had regard, at least indirectly, to some of the matters that are referred to in s 62(3) of the Fair Work Act, including the terms and conditions of Mr Varghese’s employment, the averaging agreement that was provided to the Department in relation to the position held by Mr Varghese. The Tribunal also summarised the hours per fortnight that Mr Varghese worked for the applicant and a related company over a period of some months. Therefore, to the extent that there was evidence before the Tribunal of the matters relevant to s 62(3) of the Fair Work Act, the Tribunal had regard to it.
Second, and relatedly, the applicant in a submission to the Department in response to the NOITTA referred in terms, if not by section number, to the matters set out in s 62(3) of the Fair Work Act and submitted that none of those matters were relevant in the present case. I am unable to locate materials before the Court to suggest that the applicant changed his position in this regard when the matter was before the Tribunal. The Tribunal cannot now be criticised for failing to have regard to something that the applicant submitted it was irrelevant.
I do not find any error in the Tribunal’s approach to the question posed by reg 2.79 on the basis that the Tribunal did not expressly refer to consideration of the matters in s 62(3) of the Fair Work Act in determining that the hours Mr Varghese worked were excessive and beyond the reasonable additional hours he is required to perform in his role as described in his contract, and therefore that his employment conditions were less favourable that those which would apply to an Australian citizen or permanent resident performing the same work.
Ground 4 is not established.
GROUND 6
By ground 6, the applicant asserts that the Tribunal misconstrued the legal requirements of reg 2.86(2A) of the Regulations. That regulation provides:
If:
(a)the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(b)the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13);
the person must ensure that:
(c)if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor—the primary sponsored person is engaged only as:
(i) an employee of the person; or
(ii) an employee of an associated entity of the person; or
…
The Tribunal considered this regulation at [87]-[98] of its reasons in the context of two employees, who each held their own ABN. It accepted that Mr Varghese was not undertaking business activities as an independent business using his ABN. However, the Tribunal found that Mr Kuniyil was the holder of an ABN and undertook activities as an independent business operator from 1 February 2018 to 7 December 2021. The Tribunal found that the applicant failed to ensure that a primary sponsored person, Mr Kuniyil, was engaged only as an employee of the applicant and/or an associated entity contrary to the requirement of reg 2.86(2A).
The applicant submitted that the Tribunal construed the obligation in reg 2.86(2A)(c) as requiring that the applicant ensure that any person it sponsored did not perform remunerative work for any person other than the applicant. The applicant submitted that was a misconstruction of the requirement. The regulation imports no such obligation, but instead, imports a requirement that the relevant legal relationship between the applicant and the persons it sponsors is only of employment between the applicant and the sponsor or an associated entity. The applicant submitted that there is no justification in the text of the requirement to treat it as requiring the employer to actively prevent their sponsored employee from working somewhere else. That is a most unlikely construction, in the applicant’s submission, since any disobedient sponsored employee would cause the employer to be in breach of the employer’s standard business sponsor obligations, despite the employer taking all reasonable steps to prevent the employee from moonlighting.
The Minister submitted that the applicant’s construction should be rejected and that the ground should fail because the applicant misconstrued the Tribunal’s approach to reg 2.86(2A). The Minister submitted the Tribunal agreed with the delegate’s conclusion that the applicant did not meet reg 2.86(2A) in respect of both Mr Varghese (who was approved to work in the nominated occupation of ICT Technician, but in fact worked as an Electronics Technician), and Mr Kuniyil (who was approved to work in the nominated position of ICT Technician, but also undertook his own business activity as a business owner outside of his nominated occupation). The Minister submitted that the Tribunal did not interpret reg 2.86(2A) as prohibiting a sponsored person from engaging in remunerative work for another person per se, but rather interpreted the provision as requiring the sponsor to ensure that any sponsored employee works only in the occupation in which the employee was nominated. The Minister submitted that the purpose of reg 2.86(2A) as a sponsorship obligation is to ensure that a person sponsored to perform a particular approved occupation is engaged to perform that work as an employee of the sponsor, not to perform work for others, or perform work in different capacities. The Minister submitted that the applicant has not explained why its construction of reg 2.86(2A) is correct or cited any authority in support of it. The Minister further submitted that, even if the applicant is correct, it does not establish material jurisdictional error because the Tribunal otherwise concluded that the applicant did not meet its reg 2.86(2) obligation, and there is no challenge to that finding.
In his oral submissions Counsel for the Minister submitted that reg 2.86(2A) needs to be read with reg 2.86(2). Counsel for the Minister submitted that those sub-regulations are different but aligned and should be read consistently when one is trying to understand what reg 2.86(2A) means. Counsel for the Minister submitted that reg 2.86(2) imposes an obligation on the sponsor to ensure that the person only works in the occupation nominated under s 140GB of the Migration Act and that the nomination was approved by the Minister. The wording of reg 2.86(2A) also puts an obligation on the sponsor to ensure that the primary sponsored person is engaged only as an employee of the person or an employee of an associated entity of the person. Both regulations involve obligations on the sponsor. Regulation 2.86(2A) says nothing about ensuring that a person does not moonlight. The Tribunal found here that Mr Kuniyil was working under an ABN during the relevant period and that meant the applicant had not ensured that he was engaged only as an employee of the person because he was also engaged by himself in a different work capacity, presumably to do different work outside the work sponsor arrangement. There is nothing unfair or untoward about that reading of the regulation.
The parties have not referred to any relevant case law or any extrinsic materials such as an explanatory statement in relation to reg 2.86(2A) of the Regulations. It is clear from the words ‘the person must ensure that’ that the sub-regulation imposes an obligation on the sponsor. The dispute between the parties in relation to the interpretation of that regulation appears to be whether the obligation is to ensure that the sponsored person is engaged by the sponsor as an ‘employee’ or whether the obligation is also to ensure that the sponsored person is only engaged as an employee by the sponsor or a related entity and not engaging in other employment.
In resolving this ground, it is first necessary to pay close attention to what the Tribunal actually found, given that the parties appear to have interpreted the Tribunal’s reasons differently. The Tribunal considered whether the applicant met the obligations under reg 2.86 under a single subheading. It first found that the applicant did not meet reg 2.86(2) because Mr Varghese worked in an occupation that was not the nominated occupation. The Tribunal then turned to consider reg 2.86(2A) from [87] of its reasons. The Tribunal considered the position of two employees who held ABNs. The Tribunal found at [90] that Mr Varghese was not undertaking business activities as an independent business using his ABN. The Tribunal from [91] to [97] considered the position in relation to Mr Kuniyil. After summarising the evidence at [91] to [95] and making findings about the plausibility of some of that evidence, the Tribunal found at [96] and [97]:
96.Mr Kuniyil was approved to work for the applicant from 26 November 2019. The Tribunal finds Mr Kuniyil was the holder of an ABN and undertook activities as an independent business operated from 1 February 2018 until 7 December 2021.
97.The applicant failed to ensure that a primary sponsored person, Sudhin Kuniyil, was engaged only as an employee of the applicant and or an associated entity contract a requirement of reg 2.86(2A).
The Tribunal’s finding is consistent with the wording of the regulation. The interpretation of the Tribunal, to the extent that it proceeds on an understanding that the applicant was required to ensure that Mr Kuniyil did not do any work outside of his employment with the applicant, is consistent with the interpretation that clause in the NOITTA and in the delegate’s decision. That interpretation does not appear to have been disputed by or on behalf of the applicant at any stage when the matter was before the delegate or the Tribunal.
The Tribunal’s interpretation of the regulation is consistent with the language used in the regulation, including when read in the context of reg 2.86 as a whole. The statutory language used in reg 2.86(2A)(c) of the Regulations on its face imports an obligation on the standard business sponsor to ensure that the primary sponsored person is engaged as an employee (and not, for example, as an independent contractor) of the standard business sponsor or a related entity and that the primary sponsored person is only engaged as an employee of the standard business sponsor or a related entity (that is, that the primary sponsored person is not engaged in work for businesses unrelated to the standard business sponsor). I do not accept the applicant’s submission that this construction is unlikely because it would mean that a disobedient sponsored employee could cause the employer to be in breach of the employer’s standard business sponsor obligations, even if reasonable steps have been taken by the employer to prevent this. Such an outcome is not inconsistent with the statutory regime that imposes a number of obligations on standard business sponsors in relation to their engagement of employees who are sponsored for work-related visas.
The applicant has not established that the Tribunal made an error of the type alleged by ground 6.
CONCLUSION
In circumstances where I have found that the applicant has established jurisdictional error by ground 1, it follows that the application to this Court is successful.
I will issue a writ of certiorari to quash the decision made by the Tribunal. The Tribunal has now been replaced by the Administrative Review Tribunal. Pursuant to the provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), the Administrative Review Tribunal is now substituted for the Tribunal as a party to this proceeding and the Court may do in relation to the Administrative Review Tribunal anything it could previously have done in relation to the Tribunal: see items 10 and 25 in Sch 16. It is therefore appropriate that any writ of mandamus issued in this matter be directed to the Administrative Review Tribunal and I so order.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 November 2024
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