Halal Restaurant Supples Pty Ltd v Minister for Immigration - [2020] FCCA 956

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALAL RESTAURANT SUPPLES PTY LTD v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 956

Catchwords:
MIGRATION – Nomination application by employer for the position of cafe/restaurant manager – whether applicant financially able to employ nominee for at least a two (2) year period from the date of the decision – lack of future financial viability on the part of the applicant – failure to meet criteria – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA.

Migration Regulations 1994 (Cth), rr.19(1), 5.19(2), 5.19(3), 5.19(4).

Cases cited:

Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd

[2017] FCA 264.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

Tsvetnenko v United States [2019] FCAFC 74.

Applicant:

HALAL RESTAURANT SUPPLIES PTY LTD

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 933 of 2019

Judgment of:

Judge Egan

Hearing date:

23 April 2020

Date of Last Submission:

23 April 2020

Delivered at:

Brisbane

Delivered on:

28 April 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Tien, Solicitor of Guru Legal

Counsel for the First Respondent:

Ms Hoiberg

Solicitors for the First Respondent:

Sparke Helmore

Second Respondent

Submitting appearance save as to costs

ORDERS

The application for extension of time filed on 29 October 2019 is refused.
The Applicant is to pay the First Respondent’s costs of and incidental to the application for review and application for an extension of time filed on 29 October 2019, fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 933 of 2019

HALAL RESTAURANT SUPPLIES PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Raison D’Etre

The grounds for review in this matter are identical to the grounds for review in BRG 934/2019. The applicant in each matter was represented by the same lawyers. At a time when the COVID-19 virus epidemic has placed considerable pressures upon the Court and the processes of Judge’s Chambers, the Court is unapologetic that, to the extent that similar issues were necessarily addressed in each matter, identical, or almost identical reasons, were in part handed down on the issues which were common to each. The parties agreed that the reasons for judgment in this proceeding, with minor amendments as to dates and references to pages of the court book, will be treated as the reasons for judgment in BRG 934/2019. The Court is grateful to the parties for having adopted that course.

Introduction

On 19 January 2017, the applicant company (HRS) applied for approval of the nomination of a position, that being for a cafe or restaurant manager (ANZSCO 141111) in what was referred to as the Temporary Residence Transition stream. The nominee was an applicant in a related proceeding, namely BRG977/2019.
On 21 July 2017, the Department requested further information from HRS, including evidence that the nominee would be employed on a full-time basis in the nominated position for at least two (2) years. HRS provided a company tax return for the 2016 financial year, a financial report for the 2016 financial year, a profit and loss statement for the 2017 financial year, and a letter from its accountant dated 10 October 2017. [1]
[1] Court Book (CB) pp. 348 – 349.
On 16 October 2017, a delegate of the Minister refused the nomination application. The basis for refusal of the nomination was that it did not meet the legal requirements in r. 5.19(3) or r. 5.19(4) of the Migration Regulations 1994 (Cth) (‘the Regulations’) as at the date of the decision. In particular, the delegate found that HRS would be unable to meet the financial obligations associated with employing the nominee on a full-time basis for at least a two (2) year period. HRS filed an application for review of the delegate’s decision by the Administrative Appeals Tribunal (‘the Tribunal’) on 2 November 2017.
On 11 October 2018, the Tribunal requested updated information from HRS addressing the relevant criteria in rr. 5.19(2) and 5.19(3) of the Regulations. In that regard, information was sought regarding the applicant’s financial position over the previous two (2) financial years. [2]
[2] CB pp. 375 – 377 inclusive.
On 25 October 2018, HRS provided a financial statement and tax return for the 2017 financial year, a draft tax return and financial statement for the 2018 financial year, as well as letters from the company accountant [3] and from one Mr. Hosen in his capacity as a director of HRS. [4]
[3] CB pp. 403 – 405 inclusive.
[4] CB p. 406.
On 12 November 2018, a further letter was received by the Tribunal from Mr. Hosen.
On 15 April 2019, the Tribunal requested up-to-date financial statements over the previous twelve (12) month period. That information was provided on 9 May 2019.
A hearing was held before the Tribunal on 3 July 2019. At the conclusion of the hearing, the Tribunal invited HRS to comment on information in accordance with the provisions of s. 359AA of the Migration Act 1958 (Cth) (‘the Act’). HRS responded to that invitation on 9 August 2019 by it providing further written submissions and supporting material.
On 20 September 2019, the Tribunal affirmed the decision to refuse the nomination.
On 29 October 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. That application was filed four (4) days out of time. Counsel for the first respondent conceded that the application was only filed four (4) days late, but it was submitted that the substantive application lacked merit and that accordingly the application for extension of time should be refused. The parties agreed that consideration of that application ought to be deferred to the time of the handing down of reasons in respect of the substantive application for review.
The two grounds for review were as follows:
Grounds of Application
1. The Second Respondent’s sole focus on financial information and financial viability to determine whether the Applicant meets Regulations 5.19(3)(d) of the Migration Regulations 1994 is an error of law.
2. The Second Respondent did not take into account relevant considerations when deciding whether the Applicant meets Regulations 5.19 of the Migration Regulations 1994 which is an error of law.
Regulation 5.19(1) and (3) of the Regulations relevantly provided as follows:
5.19 Approval of nominated positions (employer nomination)
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
…
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
…
(c) either:
(i) both of the following apply:
(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B) the employment in the position has been full-time, and undertaken in Australia; or
(ii) all of the following apply:
(A) the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B) the nominator nominated the occupation;
(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full-time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
…
(5) The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.
(emphasis added)

Tribunal’s Analysis of Evidence before It

It was recorded that the applicant was represented at the hearing before the Tribunal by a migration agent.
At [9] and [10] of its reasons, the Tribunal correctly recorded that for an applicant to meet the requirement for approval of the nomination under the Temporary Residence Transition nomination stream as provided for in Regulation 5.19(3) of the Regulations, all of the requirements set out in such regulation must be met. Under r. 5.19(3)(d)(i) a criteria is that the nominee for the nominated position “will be employed on a full-time basis in the position for at least 2 years.”
At [12] – [26] inclusive of its reasons, the Tribunal carefully analysed evidence presented to the Tribunal relating to the financial viability of the applicant as follows:
a)At [12] the Tribunal noted that the applicant had suffered losses of $310,969 and $439,610 respectively for the 2014 – 2015 and 2015 – 2016 financial years.
b)At [13] the Tribunal noted that the profit of $178,647 for the 2016 – 2017 financial year occurred where wages for that period were recorded as being substantially less than in previous years.
c)At [14] – [16] the Tribunal recorded the receipt of further substantial information containing what was purported to be up-to-date financial information.
d)At [17] the Tribunal said :
“[17] On 9 May 2019, the Tribunal received further submissions and documents from the Applicant. The Applicant explains that:
“The losses sustained by the business in 2015 was a result of operational inefficiencies in the “Sitar Central Kitchen” located at 33 Anstey Street, and the turn down in the mining sector in regional Queensland which resulted in various outlets no longer being viable and incurring large losses. This information is confirmed by the company accountant who has addressed this costly year for the business. The heavy losses in 2015 were remedied in the 2016 financial year with the relocation of the Central Kitchen from its old premises to its current premise within their existing flagship store.”
e)At [18] the Tribunal had regard to the assertions made on behalf of the applicant that it was financially viable and therefore able to employ the nominee in the relevant position of cafe/restaurant manager for at least two (2) years.
f)At [19] the Tribunal noted that the operations manager of the applicant who appeared at the hearing confirmed that at the time of the hearing the applicant had three (3) restaurants. The Tribunal recorded that prior to 2017 the applicant had up to seventeen (17) franchised restaurants, an unknown number of which had been closed that year.
g)At [20] the Tribunal noted that though sales for the 2017 and 2018 financial years for the applicant were reasonably consistent in the order of $950,000 per annum (excluding GST), the gross profits from trading had fluctuated substantially in that the gross profit margin was recorded as being 40% for the 2017 financial year whereas the gross profit margin for the 2018 financial year had fallen to 28%.
h)At [21] the Tribunal noted that in both the 2017 and 2018 financial years, the company had derived non-trading income described as “administration fees” being in the amounts of $140,705 and $159,523 respectively. At [22] the Tribunal noted the explanation of the applicant that those administration fees had been paid by external restaurants at four (4) locations in order to allow them to gain access to pre-prepared food supplied from a wholesale kitchen at Albion in Brisbane.
i)At [23] the Tribunal noted that as a result of substantial losses suffered by the applicant prior to the 2017 financial year, losses in the amount of $439,610 were brought forward to the 2017 financial year.
j)At [24] the Tribunal noted that in the 2017 and 2018 financial years, the financial statements provided by the applicant showed that the applicant had no cash on hand. Material subsequently provided to the Tribunal showed that there was no cash on hand or in the bank as at 30 June 2019. At the same time, the bank overdraft was shown to have increased from $46,817 as at 30 June 2017 to $50,194 as at 30 June 2019. [5]
[5]        CB p. 974 – Company balance sheet from 30 June 2015 – 30 June 2019.
k)At [25] the Tribunal noted that the applicant was unable to explain how the applicant, having no cash on hand as at 30 June for either the 2017 or 2018 financial years, had nonetheless been able, in respect of such years, to reduce current liabilities from $71,879 to $69,034, and non-current liabilities from $324,297 to $230,676.
l)At [26] the Tribunal noted that it had been advised by the applicant’s director, Mr. Hosen, that he had advanced the sum of $363,375 to the company on the basis that he would not withdraw or call-in the loan, stating that it was an injection of funds to re-establish the business after the closure of the seventeen (17) franchised restaurants. However, the applicant was unable to identify whether such alleged director’s loan was the same as the applicant’s borrowings reflected on the balance sheet – the amount of shareholder loans shown as owing as at 30 June 2016 was in the amount of $363,575 which was a different figure to that which the Tribunal was advised was the amount advanced by Mr. Hosen to the company, namely the amount of $363,375. It was further noted by the Tribunal that there did not appear to be anything preventing Mr. Hosen calling in the loan at any time.
The Court infers that the Tribunal member was unable to reconcile the conflicting evidence before the Tribunal as to the applicant’s financial position. It is clear from a reading of the most recent balance sheet provided to the Tribunal [6] that at the time of the hearing the indebtedness of the company in respect of any shareholder loan was in the amount of $47,331 as at 30 June 2019. Even if that amount is assumed to have been discharged as a debt by reason of the apparent execution by Mr. Hosen of a Deed of Debt Forgiveness (executed after the Tribunal hearing on 11 July 2019 [7] purportedly “By way of love and affection …”), the question which the Tribunal was entitled to consider, was why the applicant’s operations manager, at the hearing on 3 July 2019, would have even mentioned the purported advance by Mr. Hosen to the company of the amount of $363,375, reference to which appeared nowhere in the financial documents provided to the Tribunal. Further, though the sum of $363,375 was referred to in the McNamara Accountants letter of 24 October 2018, [8] the Court infers that the Tribunal made reference to such sum as being able to be called in at any time because, in that letter, it was merely said that it was not Mr. Hosen’s intention to be repaid that money. It may have been the intention of the accountant to suggest that the related party loan in the amount of $363,575 could be set off against the allegedly gratuitous loan to the company in the amount of $363,375. The relevant paragraph in the letter was as follows:
“The director has contributed $363,375 to finance the previous year’s losses. It is not his intention to be repaid this money. Therefore, $363,575 (related party loan) can be excluded from the liabilities of the company in the short to medium term.”
Why the McNamara Accountant’s letter would correlate an alleged injection into the company of $363,375 with “the previous year’s losses” when the company had a net profit of $96,467 as at 30 June 2018 was unknown and most likely erroneous. [9] The Tribunal was entitled to find, as it did at [31] – [37] of its reasons, that the director’s loan could not be relied upon to support the applicant. The Court infers that the Tribunal’s analysis of the evidence before it, as recorded in [31] of its reasons, was suggestive of the Tribunal not believing that Mr. Hosen would not at some future time be at liberty to call up the advances made by him to the company totalling $363,375.
m)Further, at [27] – [30] of its reasons the Tribunal carefully analysed the evidence before it relating to the payment to the company of administration fees. At [28] – [29], the Tribunal noted that it had advised the applicant, pursuant to the provisions of s. 359AA of the Act, that it had concerns that the applicant was unable to confirm that there were any contractual arrangements between it and the four (4) external restaurants indicative of those restaurants being bound to continue to buy pre-prepared food from the applicant’s wholesale kitchen in the future. In those circumstances, the Tribunal was entitled to find that if the administration fees had been reduced or absent in the 2017 and 2018 financial years, then the applicant would have been trading at a loss.
n)At [33] – [38], the Tribunal assessed the material provided to it post-hearing. At [39] the Tribunal was entitled to find, based on the lack of detail in the documentation provided to it, that it was greatly concerned about the financial capacity of the applicant to offer full-time employment to the nominee for at least a two (2) year period.
o)At [41] of its reasons, the Tribunal noted that though the balance sheet for 30 June 2019 showed that for the 2017 and 2018 financial years there were amounts of $18,820 and $25,604 respectively owed by way of tax (integrated client account figures), no such indebtedness was recorded in the financial statements previously provided to the Tribunal. In those circumstances, the Tribunal was entitled to find that such discrepancies pointed to the accounting records of the applicant as being unreliable.
p)At [42] – [44], the Tribunal noted that further documentation provided to it in relation to the administration fees issue only showed that the licence agreements entered into between the applicant and the four (4) external restaurants assured the payment to the applicant of $33,600 per annum. It was noted by the Tribunal that administration fees received by the applicant for the 2019 financial year were in the amount of $144,508. If those restaurants were to go elsewhere for their pre-prepared food requirements, then based upon the assumption that the 2019 trading figures for the applicant would be the same for the 2020 financial year, there would be an ongoing shortfall of $110,908, thereby reducing notional profit to the sum of approximately $26,000.
q)The Tribunal was entitled to find, as it did at [45] of its reasons, that the applicant had not demonstrated that it was a viable ongoing concern with the ability to meet its financial obligations, including the wages of the nominee, in the future over a two (2) year period. The Tribunal was entitled to regard future sales figures as aspirational.
[6]        CB p. 974.
[7]        CB p. 1027 – 1029.
[8]        CB p. 971.
[9]        CB p. 978 – Net profit figures for 2015 – 2019 financial years.

Ground 1

By Ground 1 it was asserted that the Tribunal had solely focussed on issues involving financial information and the financial viability of the applicant to determine whether the applicant met the r. 5.19(3)(d) criteria, and that in doing so it fell into jurisdictional error.

In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period when he said:
“[22] Quite what to make of all of that material was for the Tribunal. If it transpired that there was a particular gap which hindsight demonstrated to be critical, then that was a gap which it was not for the Tribunal to fill. It is certainly possible, having regard to the trading figures that were placed before the Tribunal for completed financial years, to form a view not just that Jayshree Enterprises’ business was expanding, but that it was so doing in a way that left a profit. Equally though, there was, having regard to the statements made to the Tribunal member by Mr Parmar, quite reasonably an interrogative note left as to whether the business would support the particular wages bill that was specified to the Tribunal member in response to the questions asked. In turn, it is not illogical, even having regard to the growth evident from the trading accounts, to be left with an interrogative note as to whether over the two-year period in question the business would support the continuous full-time employment of a person in the nominated position.
…
[28] The difficulty in relation to the conclusion reached by the Federal Circuit Court judge is that there was material before the Tribunal which reasonably admitted of not being satisfied in respect of the critical criterion; “A person will be employed on a full-time basis in the position for at least two years”. That criterion required an element of value judgment as to a prospective position. It is certainly possible, having regard to the trading performance over the course of three years, and also the statement of a man whom the Tribunal did not regard as dishonest, Mr Parmar, about “hope” to reach a view that there was an upward trend in this business and that it was likely to support a particular position for two years. But that was not the only view to which one might come.
[29] There was an interest on the part of Jayshree Enterprises to be served here by adducing such evidence as it could to support that particular prospective position. I suspect strongly that much lay behind the statement given to the Tribunal by Mr Parmar as to “hope”, but it was for Jayshree Enterprises to give further colour and substance, if so disposed, to that “hope”. It was not for the Tribunal to ask further questions. The result before the Tribunal, was a case where reasonable people might reasonably differ as to whether the Tribunal should have been satisfied as to the condition in reg 5.19(4)(d)(i) being met. That being so, it was not a no‑evidence case for the purposes of jurisdictional error.
[30] Further, the Tribunal’s reasoning as to an absence of satisfaction, leading to its conclusion as to noncompliance with that provision, was not illogical. The particular wages bill in prospect was evidence for the purposes of the Tribunal’s administrative review. It was not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years. Of course, it may have been possible, by virtue of further evidence from Mr Parmar, perhaps corroborated by a forensic accounting report and a related business plan, to see how the position could be supported for that length of time. But it was not for the Tribunal to make out Jayshree Enterprises’ case.”
The Court accepts that the Tribunal properly engaged in a consideration of the financial viability of the applicant for the purpose of considering whether the relevant r. 5.19(3)(d) criteria had been met or not. It clearly found that the criteria had not been satisfied.
In any event, as submitted on behalf of the first respondent, there was no evidence of a contractual obligation on the part of the applicant to continue to employ the nominee into the future, or that any future intention to do so was for at least a two (2) year period after the date of decision.
There is no merit to Ground 1 of the application.

Ground 2

By Ground 2 it is asserted that the Tribunal did not take into account relevant considerations when deciding whether the applicant met the r. 5.19 criteria. Unparticularised as it was, the first respondent had met such argument in its written submissions.
On a plain reading of the reasons of the Tribunal, the Tribunal carefully analysed that material as well as the submissions made on behalf of the applicant. It has long been held that a Tribunal does not have to make a finding on each and every question of fact before it. As was said by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [8]:
“[8] To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate’s decision).”
A failure to consider a relevant matter will only constitute jurisdictional error if the matter is a mandatory consideration for the decision-maker on a proper construction of a statute. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 42, Mason J considered what constituted a failure to take into account a relevant consideration and said as follows:
“(1) Failure To Take Into Account a Relevant Consideration
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. MacKellar (29); CREEDNZ Inc. v. Governor-General (30); Ashby v. Minister of Immigration (31). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (32), that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Ply. Ltd. (33), adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (34), and Water Conservation and Irrigation Commission (N.s. W) v. Browning (35). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal (36); Hanks v. Minister of Housing and Local Government (37); Reg. v_ Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (38). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London (39); Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (40).
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (41).
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar (42); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44); Pickwell v. Camden London Borough Council (45). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation (46), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss. 5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms. The test has been embraced in both Australia and England: Parramatta City Council v. Pestell (47); Bread Manufacturers of NS. W v. Evans (48); Re Moore; Ex parte Co-operative Bulk Handling Ltd. (49); Hall & Co. Ltd. v. Shoreham-By-Sea Urban District Council (50); Reg. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd. (51); Newbury District Council v. Secretary of State for the Environment (52). However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied: cf., e.g., Wednesbury Corporation (53), and Parramatta City Council (54), with the conclusions reached in South Oifordshire District Council v. Secretary of State for the Environment (55); Shoreham-By-Sea Urban District Council (56); and Minister of Housing and Local Government v. Hartnell (57). But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v. Lovell (58); Gronow v. Gronow (59); Mallet v. Mallet (60). So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
(e) The principles stated above apply to an administrative decision made by a Minister of the Crown: Murphyores Incorporated Pry. Ltd. v. The Commonwealth (61); Re Hunt; Ex parte Sean Investments Pry. Ltd. (62); Padfield v. Minister of Agriculture, Fisherie and Food (63); Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (64). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.”
The Tribunal did relevantly consider the documentation before it, and analysed such material before arriving at a considered and reasoned decision.
The applicant is seeking that this Court ought to carry out a merits review of the decision of the Tribunal. That is something which this Court cannot do.
The Tribunal arrived at its decision in a careful and considered way having had regard to all relevant considerations. It did not fall into jurisdictional error in that regard.
Insofar as the submissions of the applicant suggested that the decision of the Tribunal was irrational or illogical, and therefore unreasonable, such submission is without merit. On a plain reading of the reasons of the Tribunal, it examined in detail the financial accounts of the applicant company which spanned a nine (9) year period, and then made a considered decision based upon its assessment of that evidence, as well as upon the written and oral submissions made to it before, during and after the Tribunal hearing.
What constitutes unreasonableness has been characterised in a number of different ways. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ explained at [131] that:
“[131] … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
In Tsvetnenko v United States [2019] FCAFC 74, Besanko, Banks-Smith and Colvin JJ at [84] – [85] said:
“[84] … unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.
[85] The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.”
It is of no moment that a different decision maker may have arrived at a different decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The applicant has not demonstrated jurisdictional error on the part of the Tribunal.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 April 2020