Grandwide Pty Ltd v Minister for Immigration
[2007] FMCA 1676
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRANDWIDE PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1676 |
| MIGRATION – Migration Review Tribunal – standard business sponsor – whether criteria met – whether jurisdictional error. |
| Migration Act 1958 (Cth)(as amended): s 474, s 476 Migration Regulations 1994, rr,1.20C,1.20D |
| Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 MAA v Peko Wallsend Ltd (1986)162 CLR 24 Ruangrong v MIEA (1988)14 ALD 773 Craig v State of South Australia (1993)184 CLR 163 p179 Huo v MIMA [2002] FCA617 Lu v MIMIA [2004] FCAFC 340 MIMIA v SGLB(2004) 207 ALR 12 MIMA v Yusuf (2001) 206 CLR 323 Woods v Migration Agents Registration Authority [2004] FCA 162 Lace Holdings Pty Ltd v MIMA [2002] FCA 254 Birdseye v ASIC (2003) 76 ALD 321 ASIC v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 ABT v Bond (1990) 170 CLR 321 Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 MIMA v Eshetu (1999) 197 CLR 611 |
| Applicant: | GRANDWIDE PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | (P)LNG41 of 2006 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 08 May 2007 |
| Date of Last Submission: | 08 May 2007 |
| Delivered at: | Newcastle |
| Delivered on: | 05 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Argyle Law |
| Counsel for the Respondents: | Mr Livermore |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The name of the First Respondent be amended to read Minister for Immigration and Citizenship.
The application be dismissed.
The Applicant pay the Respondents’ costs.
The parties have liberty to re-list the matter within 21 days for submissions as to the quantum of costs or to submit an agreed quantum.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
(P)LNG41 of 2006
| GRANDWIDE PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant company runs a take away food business in North Hobart called Noodle House. In 2004 it sought from the First Respondent approval to be a standard business sponsor in order to employ Mr Xin Hua Xu.
The sponsorship application was refused by a delegate for the Minister in March 2005. The Applicant applied to review this decision in the Migration Review Tribunal which is the Second Respondent. The Tribunal affirmed the delegate’s decision on 31 August 2006 finding that the Applicant did not meet the criteria for approval as a standard business sponsor.
The Applicant asks this Court to quash the Tribunal’s decision and to remit the matter back to the Tribunal for reconsideration in accordance with the law. For this Court to make such an order, it must be satisfied that the Tribunal’s decision, being a ‘privative clause decision’,[1] was vitiated by jurisdictional error to such an extent as to render it void.[2]
[1] S474(2)&(3) of the Migration Act 1958(Cth)(as amended)
[2] S476
In determining this matter the Court was assisted by and had regard to:
1)The Court book filed 15 December 2006;
2)The Outline of the Applicant’s Contentions of Fact and Law filed 22 January 2007;
3)The Outline of the First Respondent’s Contentions of Fact and Law filed 9 February 2007;
4)The submissions of counsel for the Applicant and Respondent when the matter was heard on 8 May 2007 in Hobart.
The Court in conducting a judicial review of an administrative decision is not concerned with reconsidering the material or evidence before the Tribunal and substituting its own findings if they happen to differ but rather is to determine if there has been an error of law in the decision making process.[3]
[3] Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, MAA v Peko Wallsend Ltd (1986)162 CLR 24, Ruangrong v MIEA (1988)14 ALD 773
Grounds for Review
The Tribunal made its decision after conducting a hearing on 27 June 2006 and considering the relevant case files from the Department and Tribunal along with a number of submissions, documents and correspondence that was placed before it.
The Tribunal was required to conduct a hearing de novo and in the course of that consider the criteria set out in r1.20D.
The Applicant complains that this was not done. The grounds that the Applicant relies on to establish that the Tribunal made fundamental jurisdictional errors are:
a)The Tribunal misconstrued sub-regulation 1.20D(2)(a)(i)-(iv) of the Migration Regulations 1994 (“the Regulations”) in presuming that the holder of a subclass 457 Business (Long Stay) visa (“the 457 visa”) had to be cause or source of the benefits specified therein.
b)The Tribunal purported to assess the Applicant’s application for approval as a business sponsor pursuant to sub-regulation 1.20D(2)(a)-(f)(ii) of the Regulations but its reasons for decision omit any findings or consideration of the matters specified in sub-regulation 1.20D(2)(b)-(e) thereof.
c)In assessing whether the Applicant’s business would be contributing to increased competitiveness within sectors of the Australian economy or increased employment opportunities for Australian citizens and permanent residents, the Tribunal failed to take into account the fact that the Applicant’s business operated in Hobart and whether competition and employment opportunities would be enhanced in that market.
d)In its reading of the Applicant’s Profit and Loss Statement, the Tribunal confused turnover, expenditure and profit in finding that the Applicant could not satisfy sub-regulation 1.20D(f) as the Tribunal clearly assumed that costs such as wages had to be paid from the profits rather than being treated as an operating expense funded by the Applicant’s sales.
e)The Tribunal’s decision was not a bona fide exercise of the power in that the conduct of the review by the Tribunal raises an inference that the Tribunal did not conduct a genuine de novo review of the decision made by the First Respondent’s delegate -The Tribunal’s reasons for decision indicates that it considered itself bound by the decision of the First Respondent’s delegate and the evidence before that delegate without making independent findings of its own.
I will consider each of these grounds in turn.
Ground 1: The Tribunal misconstrued sub-regulation 1.20D(2)(a)(i)-(iv) of the Migration Regulations 1994 (“the Regulations”) in presuming that the holder of a subclass 457 Business (Long Stay) visa (“the 457 visa”) had to be cause or source of the benefits specified therein.
An application for approval as a standard business sponsor under r1.20C must be approved if all the criteria set out in r1.20D(2) are met. The criteria in r1.20D(2)(a) are:
a)The Minister is satisfied that the applicant for approval is actively and lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to:
i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; or
ii)expansion of Australian trade in goods or services; or
iii)the improvement of Australian business links with international markets; or
iv)competitiveness within sectors of the Australian economy.
The Applicant argues that the Tribunal’s decision would be invalidated if this Court is satisfied that the Tribunal made any error in the construction or application of r1.20D. In support of that contention the Applicant relied on the decision of Craig v State of South Australia[4] where the High Court held that a tribunal exceeds it authority or power when it falls into error that:
“cause[s] it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of the power is thereby affected.”
[4] (1993)184 CLR 163 and in particular at p179
It was contended by the Applicant that the Tribunal misconstrued r1.20D(2)(a) in failing to understand that the nominated employee did not have to be the sole and direct source of all the benefits specified in the regulations. This contention however can not be supported on any reasonable reading of the Tribunal’s decision. The Tribunal did not hold that the nominated employee had to be the sole cause of the specified benefits. The Tribunal set out the relevant provisions of the Regulation; addressed the evidence of the Applicant’s employment of Australians; its business plan; the alleged requirement for the nominated employee to have ‘developed restaurant and catering links and contacts both in Australia and overseas Asian countries’; the alleged need for the person filling the nominated role to be fluent in Mandarin; and the competitive benefits of the business on the Australian economy. In assessing these matters the Tribunal quite correctly considered the evidence put before it and indicated what weight was given to that evidence in arriving at its decision.
There was no error of law in this approach.
It was further contended by the Applicant that the Tribunal required the Applicant to provide “compelling evidence” that employment of the nominated person would directly yield the benefits specified in the sub-regulation. Although the Tribunal quoted the Delegate’s use of the words “compelling evidence”[5] there is no adoption by the Tribunal of that standard. Even if the Delegate fell into error in requiring “compelling evidence”, a finding this Court does not need to make, there is no indication that the Tribunal required that high a standard.
[5] CB p143 para 30
It was for the Applicant to persuade the Tribunal on the evidence that one of the criteria of r1.20D(2)(a) was satisfied but failed to do so. I find that the Tribunal has not made an error of law in considering the factors set out in r1.20D(2)(a).
Ground 2: The Tribunal purported to assess the Applicant’s application for approval as a business sponsor pursuant to sub-regulation 1.20D(2)(a)-(f)(ii) of the Regulations but its reasons for decision omit any findings or consideration of the matters specified in sub-regulation 1.20D(2)(b)-(e) thereof.
The Applicant was required to meet all of the criteria set out in r1.20D(2). There was no need for the Tribunal to consider the matters set out in r1.20D(2)(b)-(e) given the findings that the Applicant had failed to satisfy the Tribunal that the provisions of either r1.20D(2)(a) or r1.20D(2)(f) had been met. In Huo v MIMA[6] Conti J had the following to say:
“If a condition precedent to an affirmative finding in favour of an applicant for a business long stay visa is absent, and the applicant must therefore fail on that account, there is no reason in the law of administrative review, or otherwise in the Act itself, why the decision-maker must address the fulfilment or otherwise of any other or additional condition(s) precedent to approval. …… there was no requirement in law for the Tribunal to deal expressly with every aspect of the criteria for qualification to a visa, and to make findings in relation thereto, once it found that one critical element was absent.”
[6] [2002] FCA617 at para [30]
I am not persuaded that the Tribunal’s reference to “… the Tribunal may be required to consider all parts of regulation 1.20D(2)”[7] amounts to a misunderstanding of its role. The Tribunal may well have had to consider these provisions if the Applicant had have satisfied it that the provisions of r1.20D(2)(a) or (f) had been met.
Ground 3: In assessing whether the Applicant’s business would be contributing to increased competitiveness within sectors of the Australian economy or increased employment opportunities for Australian citizens and permanent residents, the Tribunal failed to take into account the fact that the Applicant’s business operated in Hobart and whether competition and employment opportunities would be enhanced in that market.
[7] CB p146 at para 39
The Applicant contended that the Tribunal expected the business would have to make a major impact on competitiveness rather than just contribute to it. I do not accept that submission. The Tribunal merely gave little weight to the nominated business’s contributions to the highly competitive restaurant/catering sector.
The Applicant was particularly concerned that the Tribunal may have ignored the fact that the business was operating in the small Hobart economy and placed too much emphasis on the contribution made to the Australian economy as a whole. Further it was contended that the Tribunal did not take into account the flow on benefits, including any benefits to other businesses when making this assessment.
In Lu v MIMIA[8] the Full Court of the Federal Court of Australia held that a decision-maker may be said to have committed a jurisdictional error when he or she has failed to take into account relevant considerations required by the relevant statute. If this is found, the next step is to consider whether relief should be denied on the ground that the failure could not have materially affected the decision. In deciding this issue the appropriate test is whether the Applicant has been deprived of the possibility of a successful outcome, not whether the decision-maker would probably have reached the same result if the appropriate consideration had been made.
[8] [2004] FCAFC 340
I accept the Respondent’s submission that:
“There is no reason to think that [the Tribunal] did not consider that its reasoning applied in the Hobart market, which was where the business operated.”[9]
[9] 1st Respondents Contentions p9 para 38
The Tribunal looked at the employment offered by the Applicant, assessed the evidence in that regard and had regard to the submissions put before it. In forming its decision the Tribunal also weighed up the type of business operated and the business plan. It took into account its financial records over the previous years. There was no error of law in this approach.
The Tribunal was required to assess the criteria set down in r1.20D as conditions precedent to the granting of business sponsor approval.[10] The weight that was to be given to the relevant considerations is a matter for the Tribunal and not this Court.[11]
[10] MIMIA v SGLB(2004) 207 ALR 12
[11] MAA v Peko-Wallsend
In MIMA v Yusuf[12] McHugh, Gummow and Hayne JJ said:
“…the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”
[12] (2001) 206 CLR 323 at para 14
Crennan J in Woods v Migration Agents Registration Authority[13] said:
“Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152]. Where a tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond [(1990) 170 CLR 321] at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J.”
[13] [2004] FCA 162 at para 55
I am satisfied that the Tribunal considered all of the relevant criteria in forming its decision and in doing so did not fall into any error of law.
Ground 4: In its reading of the Applicant’s Profit and Loss Statement, the Tribunal confused turnover, expenditure and profit in finding that the Applicant could not satisfy sub-regulation 1.20D(f) as the Tribunal clearly assumed that costs such as wages had to be paid from the profits rather than being treated as an operating expense funded by the Applicant’s sales.
The Tribunal in considering r1.20D looked at the company’s ability to comply with its undertakings. Its finding in that regard was a question of fact. The Respondent referred the Court to the decision of RD Nicholson J in Lace Holdings Pty Ltd v MIMA[14] where his Honour said:
“Satisfaction as to an Applicant’s ability to comply with the undertakings is a finding of fact and degree for the Tribunal based on the circumstances of the case. The possibility that the Tribunal’s finding of fact is in error or that the Court may have made a different finding of fact is not a permissible basis for review: See Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56].”
[14] [2002] FCA 254 at [34]
The Applicant was very critical of the Tribunal and Delegate:
“…… the primary decision-maker and the Tribunal did not have even the most fundamental understanding of financial accounts or the difference between concepts such as profit, turnover, assets and liabilities.”
The Applicant complained that the Tribunal failed to have regard to the Applicant’s steadily increasing turnover and profits and argued that the conclusion that was made by both the primary decision-maker and the Tribunal that there were insufficient funds from the profits of the business to meet the salary of the nominated person was not open on the evidence.
The Tribunal found that the company’s profits for the 2004 financial year were insufficient to pay the nominated employee had he been employed even at the lowest salary mentioned in evidence. The Tribunal noted the increase in profits for the 2005 and 2006 years but found that even then there would have been insufficient funds to pay the nominated employee. The Appellant argued that the Tribunal did not appear to understand that salary costs are not paid from the profits but that profits are what funds remain once all running expenses are paid. By failing to understand basic accounting concepts the Tribunal misapplied the regulation.
These criticisms are without foundation. I accept the Respondent’s submission that:
“The point [the Tribunal] was making was that, based on past performance, the business could not really afford to employ the nominated employee at the specified salary and hence the MRT could not be satisfied that the business would be able to meet its financial undertaking (of which payment of salary was just one).”
The Tribunal looked at the financial records of the business and found that it would not be able to financially meet the salary of the nominated person. It took into account the original nominated salary of $60,000. Although there was evidence that the appropriate salary would have been $42,000 it was open to the Tribunal to reject that evidence. In any event the Tribunal was still satisfied that even the lower salary could not be met by the business.
I find no error of law by the Tribunal in this regard.
Ground 5: The Tribunal’s decision was not a bona fide exercise of the power in that the conduct of the review by the Tribunal raises an inference that the Tribunal did not conduct a genuine de novo review of the decision made by the First Respondent’s delegate. - The Tribunal’s reasons for decision indicates that it considered itself bound by the decision of the First Respondent’s delegate and the evidence before that delegate without making independent findings of its own.
The Tribunal was required to conduct a de novo review of the application. This required the Tribunal to look at all the evidence and exercise its own determination without limiting itself to the material before or the findings of the primary decision-maker.
I find no basis for the submission that the Tribunal considered itself bound by the decision of the Delegate. The Tribunal took evidence during the hearing and considered various documents that were placed before it including correspondence received after the hearing addressing disputed interpretations of language. This evidence was referred to by the Tribunal throughout its reasons.
The Applicant argued that the Tribunal’s reference to the possible need to consider all parts of regulation 1.20D(2) was an indication that it misunderstood the nature of its task. On the contrary I find that this observation by the Tribunal showed that it may have had to consider further matters if it were to find that the two criteria previously found by the Delegate not to have been met had in fact be met.
Although merely stating that the findings were made on the evidence as the Tribunal did in paragraphs 49 and 55 of its decision is not sufficient to conclude that the Tribunal in fact had regard to the evidence I find that the Tribunal consistently referred to the evidence throughout the decision and I am satisfied that it formed its own determination based on that evidence. Accordingly I reject the submission of the Applicant that the Tribunal failed to consider the evidence before it.
For these reasons I dismiss the application with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 5 October 2007
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