Ida & Associates Group Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 337
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
IDA & Associates Group Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 337
File number(s): SYG 1662 of 2018
SYG 2525 of 2018Judgment of: JUDGE HUMPHREYS Date of judgment: 10 May 2022 Catchwords: MIGRATON – Administrative Appeals Tribunal – Temporary Residence Employer Nomination Scheme – Whether Tribunal misconstrued reg 5.19(3)(f) – whether Tribunal failed to consider relevant information but took account of irrelevant information – whether review ultra vires – whether there was proper, genuine, and realistic consideration – whether there was apprehension of bias – whether decision was unreasonable – whether there is jurisdictional error – no jurisdictional error found – application dismissed. Legislation: Migration Act 1958 Cth) ss 359, 359AA, 360,
Migration Regulations 1994 (Cth) reg 5.19
Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZOAF v Minister for Immigration and Citizenship [2010] FCA 43
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 4 May 2022 Date of hearing: 4 May 2022 Place: Parramatta Solicitor for the Applicants: Mr Guan Counsel for the Respondents: Ms Carr ORDERS
SYG 1662 of 2018
SYG 2525 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IDA & ASSOCIATES GROUP PTY LTD
First Applicant
KHAIRUL AMIN
Second Applicant
SHAHNAJ PARVIN RATNA (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,100.00.
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 HUMPHREYS
INTRODUCTION
This matter involves two separate applications which are being heard by consent together. The first involves an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to refuse the approval of a nomination by the first applicant (trading as O & H Architects) of a position as part of the Employer Nomination (subclass 186 visa) (Temporary Residence Transition nomination stream) of the second applicant, Khairul Amin, a citizen of Bangladesh, to the permanent position of accountant within the architectural business.
The second application involves an application by Khariul Amin, against a decision of the Tribunal to affirm a decision of a delegate to refuse Mr Amin’s application for a Class EN SC186 visa on the basis he did not have an approved nominator. It is common ground between the parties, that in order for the second applicant to succeed, the Court must find in favour of the first applicant.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At paragraphs 2 to 4 of the decision record, the Tribunal noted that the requirements for the approval of a nomination of this type are to be found in reg 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”). There are two alternate streams: a Temporary Residence Transition stream nomination [reg 5.19(3)] and a Direct Entry stream [reg 5.19(4)]. If the application is made in accordance with reg 5.19(2) of the Regulations and meets the requirements of either stream, then the application must be approved. If not, it must be refused under reg 5.19(5) of the Regulations. In this case, the nomination was made under the Temporary Residence Transition stream.
The Tribunal noted that in this matter, a delegate of the Minister for Immigration (“The Delegate”) refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations, as the delegate was not satisfied that the nominated person would be employed by the applicant on full-time basis in the position for at least two years.
The Tribunal noted that on the information provided to it, noting the nominating firm had incurred significant tax losses in the years 2013, 2014 and 2015. No information was provided to the Department which would show the firm’s financial viability to continue to pay the nominee a full-time salary $54,000 per annum, as will the six other employees of the company.
At paragraph 8 of the decision record, the Tribunal noted it wrote to the applicant on 13 February 2018, pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) requesting further financial information. The Tribunal was provided with various documents, including financial statements for the years ending 30 June 2017 and 30 June 2016, relevant Australian Taxation Office business activity statements and a letter from the applicant’s tax agent indicating that the first applicant had a sound financial position and was able to pay off its debts as and when they fell due.
At paragraph 11 to 12 of the decision record, the Tribunal noted that according to the financial statements, Mr Amin was the only person paid a salary in each financial year from 2015 to 2017. The Tribunal noted that the financial accounts indicated the applicant had not paid any superannuation in 2017 in respect of Mr Amin and only paid $2,000 in 2015. Evidence was given that superannuation was not paid as they were waiting in respect of a decision on Mr Armin’s visa, but that the money had been put away awaiting a decision.
Paragraph 22 of the Tribunal’s decision and onwards deals with the evidence relating to the firms training obligation and the evidence provided in relation to the training requirements while the applicant was approved as a standard business operator. The Tribunal noted that there was not sufficient information to indicate that the applicant company had fulfilled the training commitments made during the period of the last approval as a standard business sponsor nor was there any reason to disregard that requirement.
The applicant company was given until 19 April 2018 to provide any further documentation it wished to rely upon, including audited financial statements.
At paragraph 24 of the decision record, the Tribunal noted that further documents were provided including evidence of the superannuation payment in the sum of $4,736 made on 11 April 2018, claimed to be for the year ending 30 June 2017. Further receipts for training were provided and evidence that the training was provided in 2018. Submissions were made by the applicant’s agent that the applicant met the training benchmark B by payments of $1,010 in financial year 2014, $1,880 in financial year 2015 and $2,740 for financial year 2016, noting that it was paid on the 21st of February 2018.
At paragraph 29 of the decision record, the Tribunal noted that the applicant’s most recent sponsorship approval was made on 3 October 2013 for a period of three years. The applicant was required to meet training requirements for each year of that approval.
Total payroll expenditure for the year ending 2014 was $91,729. It was noted that for this year, there appears to be no payment of superannuation. For the year ending 30 June 2015, payroll was $170,143. For the year ending 30 June 2016, payroll expenditure totalled $273,465. In each year, the only salaries payed to employees were equal to that paid to the visa applicant. In none of the financial statements, are there other claims for training expenses.
At paragraph 34 of the decision record, the Tribunal concluded that the only evidence of any payments made to training over the period of the approval as a standard business sponsorship were to receipts from Taste 4 Business, the first dated 16 March 2016 in the sum of $1,880, and the second dated 23 March 2016 for $1,010. There was no information before the Tribunal that the applicant fulfilled the commitments relating to meeting training requirements for the financial years ending June 2014 and June 2015 or for the anniversary of each year the standard business sponsorship ending 3 October 2014 and 3 October 2015.
At paragraph 36 of the Tribunal’s decision, the applicant provided an organisational chart which showed that a Mr Al Zoha was employed by the applicant as a project engineer. There was no other information that showed that this person was actually an employee of the applicant. There is no information which would indicate that Mr Al Zoha was an employee of the applicant at the time he received the training in 2016.
As there was no information that Mr Al Zoha was an employee of the applicant in 2016, the Tribunal did not take this expenditure into account when assessing whether the applicant fulfilled the commitments made in relation to meeting the training requirements during the period of their approval as a standard business operator. Further, as the payments were only made in 2016, the applicant did not meet the training commitments for the first two years of their approval as a standard business operator.
At paragraph 40 of the decision record, the Tribunal concluded that none of the payments referred to by the applicant could be taken into account in considering whether the applicant fulfilled the training requirements. The Tribunal concluded the applicant did not meet the criteria in reg 5.19(3)(f)(i) of the Regulations.
Having determined that, the Tribunal then consider whether it was reasonable to disregard those requirements pursuant to reg 5.19(3)(f)(ii) of the Regultions. The Tribunal noted that the applicant did not have any expenditure towards the provision of training for employees from any time from March 2016 to February 2018. The Tribunal concluded that this indicated the lack of commitment to training and a disregard to the commitments the applicant had made relating to training when they were approved as a standard business sponsor.
The Tribunal noted that the training requirements were not disregarded, and the nomination application is not approved, then it was likely that the visa applicant, Mr Amin, would not meet the criteria for the grant of his visa. The Tribunal concluded this was not a matter that would make it reasonable to disregard the training requirements. The Tribunal stated that no information had been provided that the visa applicant would face any greater hardship or difficulties than any other visa applicant who does not meet the criteria for the grant of the visa. The Tribunal noted that there was no information before the Tribunal that the visa applicant was of such vital need to the applicant that the training requirement should be disregarded. Accordingly, the Tribunal affirmed the decision of the Delegate not to approve the nomination.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained within an Amended Initiating Application filed with the Court on 29 March 2022. No objection is taken by the first respondent to leave being granted to rely upon this Amended application. The grounds are as follows verbatim:
1. The Tribunal made a jurisdictional error because it had misconstrued the requirements of reg 5.19(3)(f)
Particulars
a)To meet the requirements of reg 5.19(3)(f), the applicant shall meet subparagraph (i) or subparagraph (ii).
b)The subparagraph (i) requires that the applicant has fulfilled its training commitments during the period of its most recent approval as a standard business sponsor.
c)The subparagraph (ii) requires that “it is reasonable to disregard subparagraph (i)”.
d)“reasonable” conveys more than the requirements of considerations of the filling of training commitments but it should be construed or read “in a manner which gives effect to its presumed legislative object and purpose” “that would best achieve or object of the Act.”
e)The Tribunal had acted to the contrary (see details below).
2. The Tribunal failed to take into account the relevant information but took into account irrelevant information.
Particulars
a)It had not appreciated how hard the applicant had managed to grow or survive its business, and how urgent or significant the applicant as a small business owner should do so.
b)It had not appreciated the fact that the applicant had achieve significant increase in business sale by nearly 30 times from $50, 300 in 2013 to $1,488,985 in 2017, how it had replied on the bank loan to operate and came to pay all its debts and achieve the profits within a few years.
c)It had ignored how the applicant appreciated the nominee’s long service and his trustworthy and dedicated contribution made to the business.
d)It had not appreciated the hardship the visa applicants would suffer.
e)It had not appreciated the total amount the applicant had spent on training over the period as a standard business sponsor was no less than the amount required under Benchmark B.
f)But it was excessively interested in irrelevant issues such as caveats, as it was not relevant to any enactment such as reg 5.19(3) that applied to the review, and the way in which the applicant operated its business.
g)It asked the applicant to audit its financial statement ending June 2017 but there was no evidence that it had considered the report.
3. The Tribunal made a jurisdictional error because it conducted the review ultra vires, and in a way not authorised by the enactments.
Particulars
a)So called caveat for the identified occupation is not relevant to the requirements of reg 5.19(3) or even any other parts of the Act or Regulations that applied to them.
b)It might not have jurisdiction to determine whether the applicant complied with the laws relating to business operations or workplace relations.
c)Reg 5.19(3) simply requires it to assess “whether the nominator has a satisfactory record of compliance with the laws of...”but not otherwise.
d)But it had spent substantial time on the issues at the tribunal hearing.
e)Except for Reg 5.19(3)(f), it had not set out the findings on any other material questions of fact in relation to the nomination criteria under reg 5.19 (3) in accordance with s368 (1)(c).
f)It had asked the applicant to comment on irrelevant issues such as caveats and to comment on “no superannuation paid” under s359AA.
g)But there is no evidence to indicate that it had not invited the applicant to comment on whether “it is reasonable to disregard subparagraph (i)“ under s359AA by the applicant was appearing at the tribunal’s hearing.
h)It failed to draw the applicant’s attention to the additional issues upon which the review turned in the breaching of s360 of the Act.
i)there was no evidence or any other material to support its finding that the applicants would not face greater difficulties in relation to their visa refusal.
4. The tribunal made a jurisdictional error because it had failed to give proper, genuine, and realistic considerations into the application.
Particulars
a)The applicant accepted its advice to audit its financial statement and spent substantial money to have it done but there was no evidence to show that it had considered the audited report.
b)There was evidence to show that it had considered many material questions in relation to the nomination criteria under reg 5.19(3).
5. A reasonable bystander might apprehend that the tribunal might not have brought an open mind to its task.
Particulars
a)It repeated its wrong view that the nominee would fail its visa application, as he would fail the caveat requirement for visa grant criteria, and all the efforts would be to no avail.
b)It blamed the agent for not having advised the client about it.
c)It was not happy about the way the applicant operated the business by getting people to work for them as contractors rather than as salaried employees.
d)It had not referred to the evidence or any other material to support its finding that the nominee would not face greater hardship in relation to its visa refusal arising from the nomination refusal.
6. The decision was irrational, unreasonable or unintelligible in that no reasonable decision could have come to it.
Particulars
As stated above.
THE APPLICANT’S SUBMISSIONS
In relation to ground one and ground two, it was submitted that the Tribunal misconstrued Schedule A to IMMI 13/030 in that it found that the first applicant had not met the training requirement of 1% of the payroll in training employees. It was submitted that in relation to IMM 13/030, although Mr Al Zoha was employed as a contractor, for the purposes of the training requirement he should be classified as an employee of the business.
If in fact the Tribunal was correct, it was submitted that it was reasonable for the Tribunal to disregard the requirement pursuant to reg 5.19(3)(f)(ii) of the Regulations. It was submitted that the Tribunal was not bound by department policy but could depart from it where appropriate: (see; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557). It was submitted that the following factors should have been taken into account:
A. Recognition of the nominee’s interests to have a permanent resident visa
B. Recognition of the employer’s needs and the nominee’s contribution of the employer and the Australian economy.
It was submitted that the Tribunal misconstrued the criteria and failed to take into account the relevant informational and give it proper weight, but gave an excessive amount of consideration to information of no importance.
In relation to ground three, it was submitted that the Tribunal spent substantial time in finding out whether the staff working for the applicant were employees or contractors and whether or not superannuation had been paid. It was suggested that the applicant had not paid superannuation in accordance with the law.
It was submitted that the Tribunal did not have the authority to make a determination as to whether or not the applicant had breached laws by not paying superannuation. Thus, the finding in relation to superannuation was ultra vires. Further, the Tribunal spent significant periods of time considering what it called “caveats” as to the visa applicant’s nominated occupation. It was submitted that this misconceived the requirements of the legislation when it warned the applicant of the nominee that the visa application would be rejected even if the nomination had been approved the Tribunal hearing. It was submitted that the Tribunal again engaged in the conduct not authorised by law. It was also suggested that the Tribunal may have breached s 368 of the Act in that it did not set out material findings of fact.
Ground four alleges that the Tribunal asked itself wrong questions, misconstrued the legislation and ignored relevant information and thus did not give a proper genuine and realistic consideration of the application. It was submitted that the decision record left almost all material questions of fact unaddressed and there was no evidence that had done any consideration in relation to them.
Ground five is an allegation of apprehended bias. It was submitted the Tribunal did not trust the financial statements for 2016 and 2017 which had been prepared by a certified public accountant. The applicant was required to spend substantial money on having the accounts audited. There is no evidence that the Tribunal considered this in its decision.
It was submitted that the tone of the hearing was condescending, sarcastic, incredulous, rude overpowering or belittling. Notwithstanding this, the applicant had no intention that the recording be played at the hearing as it was submitted that the mere examination of the transcript of the hearing was sufficient to justify a finding by the Court of apprehended bias.
Ground six is an allegation of irrational or unreasonable or unintelligible findings by the Tribunal. No specific submissions were put to the Court in relation to this matter, and no particulars were provided.
The applicant’s legal representative conceded during the course of oral submissions that if the definition of employee for the purposes of the training guarantee did not include a contractor, then the applicant had not met the relevant training requirement under the Regulations. At times, the applicant’s oral submissions were difficult to follow and disjointed.
In relation to the complaint of bias, it was alleged that the Tribunal member used ‘dirty words’ during the hearing. When invited to do so, the legal representative for the applicant was unable to point out any language of the Tribunal member that might fit the characterisation of “dirty words”, whatever that might mean.
THE FIRST RESPONDENT’S SUBMISSIONS
On relation to Grounds one and two, it was submitted that the applicant had not identified, either in the particulars to ground one or two, how the Tribunal misconstrued reg 5.19(3)(f)(i) but, instead in submissions has sought to impermissibly re-agitate the factual findings that were open to the Tribunal to make.
The Tribunal had before it financial statements for the years ended 30 June 2014, 30 June 2015 and 30 June 2016. The applicant appears to agree in submissions with the Tribunal’s calculation for the total payroll expenditure for those financial years.
The only evidence before the Tribunal of the training carried out in the relevant period were two receipts, both dated 23 March 2016 in the amount of $1,880 and $1,010. In the absence of other evidence, it was open to the Tribunal to find that there was no information before it that the applicant had fulfilled the training requirements of the financial years ending June 2014 and 2015.
Further, it was open to the Tribunal to find that the training had only been provided to one person Mr Al Zoha, who is an Australian citizen but was not an employee of the applicant at the relevant time.
Further, in respect of reg 5.19(3)(f)(ii) of the Regulations the applicant in their submissions sought to impermissibly re-agitate the factual findings of the Tribunal not to exercise its discretion to waive the requirements under sub-subparagraph (i).
It was open for the Tribunal to find that the applicant had only provided training in 2016, and only paid for that training after it had made its nomination application. It was open to the tribunal to conclude that the applicant had a complete lack of commitment to training and a complete disregard for the training requirements during the last period of approval as a standard business sponsor.
It was also open for the Tribunal to take account the timing of the most recent training, noting it had only been arranged after the Tribunal wrote to the applicant requesting further information. To the extent that the applicant now seeks to proffer an explanation of why it is reasonable to waive the requirements under reg 5.19(3)(f)i) of the Regulations, this seeks to engage the court in impermissible merits review.
In relation to ground three, this broadly contends that the Tribunal acted beyond its jurisdiction. The Tribunal was correct to find that as the applicant had made its application under the Temporary Residence Transition Nomination stream, it was required to meet the criteria set out at reg 5.19 of the Regulations. As a conjunctive “and” is included between each of the eight criteria the applicant was required to satisfy each and every criterion otherwise, the nomination must be refused, in circumstances where the Tribunal found that the applicant did not meet one of the criteria, being reg 5.19(3). The Tribunal correctly found that it was unnecessary to consider the remaining criteria.
Contrary to the applicant’s submissions, the Tribunal did not in its findings and reasons consider whether the duties carried out by Mr Amin met the definition of the nominated position of accountant or if the applicant had complied with the laws of the Commonwealth and each State or Territory. The Tribunal did raise observations or queries about these matters with Mr Ahmed and Mr Amin during the hearing, however caution should be exercised when reviewing the transcript for the purpose to “supplement and expand the Tribunal’s stated reasons for exercising the power in the way that it did”: (see; AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58]). It is to be noted that the Tribunal repeated at the hearing that its observations regarding the “caveats” was not a matter in issue and was only raised as a matter of courtesy.
The basis for the Tribunal putting information to the applicant that no superannuation had been paid was correct as the information involved was put so that this information could be commented on by the applicant should it form the reason or part of the reason for affirming the decision under review. To the extent that the applicant complains the Tribunal did not put to the applicant pursuant to s 359AA of the Act as to whether it was reasonable to dispense with the criteria under reg 5.19(3)(f)(i) of the Regulations misconstrues the obligation under the Act. There is no requirement to put information to the applicant for comment which “encompass the Tribunal’s subjective appraisals, thought processes or determinations nor does it extend to identified gaps, defects of lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”: (see; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24(iii)]).
The Tribunal is not otherwise required to put to the applicant a running commentary of its thought processes and preliminarily reasons in respect of whether it accepted the evidence before it. It was for the applicant to present its evidence or material in support of its application that met the criteria in reg 5.19(3) of the Regulations for which it had been given notice.
Ground four contends that the Tribunal failed to give proper genuine and realistic consideration to the application before it by failing to take into account the audited financial statements provided by the applicant. The applicant’s submissions do not address the particulars to the ground but merely makes broad assertions that the Tribunal failed to give consideration to all the material before it. The applicant bears the onus of proof that the Tribunal did not engage in active intellectual process which must be supported by clear evidence: (see; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48]). In the absence of any specificity, the submissions rise no higher than seeking to engage this Court in impermissible merits review.
Further, to the extent that the applicant complains that the Tribunal did not refer in the decision record to the audited financial report for the year ended 30 June 2017, the Tribunal was not required to refer to each piece of evidence before it: (see; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 at [46-][47]).
Ground five makes the very serious allegation of apprehended bias by the Tribunal. It was submitted that the applicant bears the onus distinctly make and clearly prove the allegations: (see; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [71]-[72]). The applicant suggests in their submissions that the tone used by the Tribunal was “condescending, sarcastic, incredulous, rude, overpowering or belittling. This must be rejected in the absence of evidence as the first applicant conceded in submissions that it has “no intention the recording being played at the hearing before this court”.
It is not in contention that the test for apprehended bias is whether fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not being a fair, impartial and independent mind to the determination of the matter on its merits: (see; ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]). Informing such a view, the Court must take into account that the Tribunal is in inquisitorial statutory body which involves testing the claims in evidence before it. The Tribunal raised with the applicant and Mr Amin what were described as “caveats” that had been met in relation to the nominated position for the purpose of the visa application made by Mr Amin. However, the Tribunal repeated that this was not an issue in the application before it. Contrary to the applicant’s contention, no view was taken by the Tribunal as to whether the caveats had been met or not. The applicant’s submissions do not address how it contends the Tribunal “blamed the agent” for failing to advise the applicant about the caveats. There was nothing to suggest that the Tribunal was not happy or did not like the way the applicant operated the business. The Tribunal is entitled to test the evidence material before it and raise doubts about the retention of employees and contractors, whether not the applicant had paid superannuation, the profitability the applicant and the reliability of the evidence before it. During the hearing, the Tribunal continually repeated that it had not made a decision on the merits but sought the applicant’s assistance to provide further evidence and materials which might establish that it satisfied the relevant criteria.
Ground six broadly contends that the Tribunal’s decision was irrational, unreasonable, unintelligible or that no reasonable decision-maker could have come to it. No particulars or specific submissions have been made to support the ground. It was submitted that the content of the Tribunal’s findings were open to it to make on the material on the evidence before it of which the tribunal provided an evident and intelligible justification.
Counsel for the first respondent chose to rely upon her written submissions. The Court clarified with her that the Court did not propose to treat any material within the applicant’s written submissions as additional particulars
CONSIDERATION
In an application for judicial review, such as this one, the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government. The Court does not consider the merits or wisdoms of the decision; nor do does it make the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it: (see; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17]).
The complaints by the applicant appear to contain almost every species of jurisdictional error, with little thought as to the basis upon which each complaint might be properly grounded.
Grounds one and two can be dealt with together. Reg 5.19(3)(f) of the Regulations reads as follows:
(3)The Minister must, in writing, approve a nomination if:
(f) either:
(i)the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)it is reasonable to disregard subparagraph (i) …
Regulation 2.19 and reg 2.87B set out the obligation to provide training
(1)This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2)If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
…
(4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5) If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor…
The relevant benchmarks were set out in Migration (Specification of Training Benchmarks and Training Requirements) Instrument (“IMMI 13/030”).
The regulations indicate that an application will fail if any one of the specified criteria is not met. Having found that the training criteria was not met, noting that this was conceded by the legal representative for the applicant, there was no need for the Tribunal to deal with any of the other criteria. Whilst the Tribunal did raise a number of other issues, the Court is satisfied that these were not dispositive of the matter.
As pointed out by the first respondent, none of the particulars or submissions identify how it is that the applicant complied with the training requirements under IMMI 13/030. Given the financial information presented to the Tribunal, none of which issue seems to be taken issue with by the applicant, the Court is satisfied that it was open on the evidence for the Tribunal to have found that the applicant did not comply with its training obligations. The matters raised by the applicant in the particulars for these grounds appear to only seek to justify the non-compliance, not the non-compliance itself.
As to the issue of whether it is reasonable to waive the training requirement, the Court agrees with the first respondent that the applicant seeks to engage the Court in impermissible merits review. There is nothing in the decision of the Tribunal not to waive the training requirements that is legally unreasonable, or is it otherwise tainted by any other species of jurisdictional error. Ground one and two have no merit.
Ground three is a broad complaint that the Tribunal acted beyond its jurisdiction by either taking into account irrelevant information or failing to comply with s 359AA of the Act. The issue in relation to superannuation was not a matter that involved the gravamen of the issue as to whether or not the applicant met the essential criteria for the granting of the nomination. It was, however, a matter that might have legitimately formed part of the consideration as to whether or not the criteria could be waived. In these circumstances, it was appropriate for the Tribunal to put that information to the applicant for comment to ensure procedural fairness and to comply with the relevant provisions of the Act, in particular s 359AA(a). As noted by the first respondent, the Tribunal was not required to put to the applicant a running commentary of its thought processes or preliminarily reasons in respect of whether or not accept the evidence before it. Ground three has no merit.
Ground four alleges a failure to give a proper, genuine and realistic consideration of the application. Reasons of a Tribunal are not to be read with an “eye finely attuned to error”: (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46]). Such an allegation is difficult to prove if the reasons of the Tribunal are comprehensive and deal with all relevant issues, as it appears to be the case in this matter. The particulars in relation to this ground raise no matter that might give rise to an allegation of a lack of proper consideration. The complaint that the Tribunal did not specifically refer to the audited financial statements has no merit. The Tribunal is not required to refer to each and every piece of evidence. Ground 4 has no merit.
Ground five is an allegation of apprehended bias. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision. Similarly, the mere fact the Tribunal makes adverse findings in respect of an applicant does not give rise to an inference of bias itself, or suggest the decision-maker approach its task other than with the mind open to persuasion: (see; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]).
Robust and forthright questioning by the Tribunal will not sustain a finding of apprehended bias: (see; SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]). None of the particulars complained of by the applicant give rise to a logical finding of apprehended bias. It had no reason to refer to the evidence or other material to support its finding that the nominee would not face greater hardship in relation to its visa refusal arising from the nomination refusal. In the Courts mind, this was self-evident. The decision that the first applicant did not meet the criteria was based on the training requirement. The other caveats do not feature in the ultimate decision-making process that the decision of the delegate should be affirmed. The complaint of language by the Tribunal which might give rise to an apprehension of bias, such as the use of ‘dirty words’ was unable to be sustained when challenged during oral argument. Ground five has no merit
Ground six is a broad allegation of legal unreasonableness. No specific particulars are provided in relation to this complaint other than a reference to the previous grounds. The test for legal unreasonableness is stringent and only arises in rare cases. It is invariably fact dependent. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30], [113]).
Legal unreasonableness, of which there is a subcategory of illogical or irrational, will not be found if different minds might reach different conclusions on a jurisdictional fact: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611). The Court is satisfied that the Tribunal’s findings were open to it on the evidence and materials before it, and for the reasons it gave. There is no material which would indicate that its findings were tainted by any failure to afford procedural fairness, or reached a finding without logical or probative basis. Ground six has no merit.
CONCLUSION
The application by IDA & Associates Group Pty Ltd is dismissed. That being the case, the application by Mr Amin and the third and fourth applicant must also be dismissed
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 10 May 2022
SCHEDULE OF PARTIES
SYG 1662 of 2018
SYG 2525 of 2018Applicants
Fourth Applicant:
ADYAN AMIN
0
18
0