J & K Bown Pty Ltd (Trustee) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 262
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
J & K Bown Pty Ltd (Trustee) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 262
File number(s): BRG 569 of 2020
BRG 594 of 2020Judgment of: JUDGE VASTA Date of judgment: 21 February 2022 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth): s376, s 359, s 359A, s 359AA
Migration Regulations 1994 (Cth):reg 5.19(3)(e)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Cases cited: Kioa v West (1985) 159 CLR 550 Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 21 February 2022 Date of hearing: 21 February 2022 Place: Brisbane In BRG 569 of 2020 Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: Chand Lawyers Solicitor for the First Respondent: Sparke Helmore In BRG 594 of 2020 Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: Chand Lawyers Solicitor for the First Respondent: Sparke Helmore ORDERS
BRG 569 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: J AND K BOWN PTY LTD AS TRUSTEE OF THE BOWN FAMILY TRUST
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application filed on 20 October 2020 as amended be dismissed.
2.The Application in a Proceeding filed on 14 February 2022 be dismissed.
3.The Applicant pay the costs of and incidental to the application fixed in the sum of $5,500.
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).
ORDERS
BRG 594 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 10 November 2020 be dismissed.
2.The Applicant pay the costs of and incidental to the application fixed in the sum of $3,500.
IT IS NOTED:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
I am hearing two matters at the same time because of the intrinsic link between them. The Applicant in the second matter, Gurdeep Singh, had been an employee of the Applicant in the first matter, J and K Bown Pty Ltd, who are trustees for the Bown Family Trust. In short, Mr Singh is not a citizen of Australia, and was applying for a visa to work in this country. For him to succeed, he not only had to fulfil the requirements himself, he had to have an approved nominator or approved employer. J and K Bown Proprietary Limited had sought to be that approved employer.
The company’s application failed, and so therefore Mr Singh’s application failed. Both Mr Singh and the company took their respective cases to the Administrative Appeals Tribunal (“the AAT/Tribunal”).
Because of the nature of the application by Mr Singh, if the company’s application before the AAT was successful, then Mr Singh’s application would be successful. If the company’s application was not successful before the AAT, then Mr Singh’s application would not be successful.
The AAT, on 21 September 2020, affirmed the decision to refuse the nomination of the company. On 9 November 2020, the AAT affirmed the decision not to grant Mr Singh his work visa.
On 20 October the company asked this Court to review their matter. On 10 November 2020, Mr Singh asked this Court to review his matter. Because of the nature of the matters, I have really dealt with the application by the company for review, because that application will be determinative of the application of Mr Singh.
The background to the company’s application is this: the company runs a business which deals with the buying of cars, either the maintaining or improving of those cars such that they are up to roadworthy standard, and then the selling of those cars. The company will also provide servicing of cars which they have sold.
On 29 June 2017, the company nominated Mr Singh in the position of motor mechanic. The requirements for the approval of the nomination are found in reg 5.19 of the Migration Regulations 1994 (Cth). The company was asking for the nomination in the Temporary Residence Transition nomination stream, and reg 5.19(3)(e) was the relevant regulation. The Tribunal looked at those regulations, specifically the regulation at 5.19(3)(e), that is, that:
The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.
To this end, the Tribunal looked at what the position was with regard to Mr Singh. They noted that Mr Singh had an employment contract dated 15 January 2020 providing that Mr Singh would be paid a salary of $56,000 per year, which is equivalent to $1,076.92 per week, plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth), and that Mr Singh would be entitled to leave in accordance with the National Employment Standards.
The Tribunal correctly pointed out that the Applicant needed to satisfy this requirement by establishing the terms and conditions which would be provided to an Australian citizen or permanent resident to perform such work.
The Tribunal noted that there was no information before the Tribunal regarding the terms and conditions which would be provided to an Australian citizen or permanent resident who filled the position, particularly in relation to the salary that would be paid to such an employee.
The Tribunal noted that the controlling mind of the company, Mr Bown, did make some references, in his evidence, to the issue of salary for a motor mechanic and referred to the circumstances of his first employing Mr Singh in 2014. At that time, he said, it was difficult to find someone who was prepared to work for less than $2,000 per week. The Tribunal noted to Mr Bown that there was very little market salary difference before the Tribunal, and asked him what evidence had been produced. He didn’t reply to the question directly, but said he did not think that the Applicant could afford to pay a salary of $100,000 per year.
The Tribunal advised Mr Bown that the Applicant needed to show that it was not underpaying the nominee compared to what the Applicant would have to pay to an Australian citizen to do the same work, and the Tribunal renewed its advice to Mr Bown that the Applicant needed to provide evidence of the salary which would be payable to an Australian to fill the position.
The only evidence produced to the Tribunal since the hearing in relation to that requirement, the Tribunal said, was a statement from the migration representative of the company which said:
Our client informs us that the salary of Gurdeep Singh was decided on the basis of his research from and also was advised by his previous migration agent.
The Tribunal considered whether it would be appropriate to adjourn the application for review to allow the Applicant additional time to provide further submissions to support the application, but the Tribunal took into account the history of the matter, which they then set out. The Tribunal finally noted at paragraph 31:
31.The Tribunal notes, that in response to the Tribunal’s letter of 30 March 2020, the applicant produced a copy of the 2020 Employment Contract, but has provided no evidence of terms and conditions which would be provided to an Australian citizen or permanent resident doing the same work. On the evidence available, the Tribunal cannot be satisfied that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided, or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.
32. Accordingly, the requirement r.5.19(3)(e) is not met.
The decision was affirmed.
On 20 October 2020, the Applicant did provide grounds of the application. When the matter came before Registrar Carlton on 4 November 2020, the Registrar made an order that, if the Applicant was going to file an amended application, the Applicant had to do so before 28 January 2021.
On 27 January 2021, the Applicant filed the application that is now before the Court. I will get to the particulars of that application in a second, but in effect, there were two grounds. The first spoke of the AAT embarking upon the wrong test by asking itself the wrong questions and determining that the Applicant needed to show that it was not underpaying the employee compared to what the Applicant would have to pay to an Australian citizen to do the work.
The other ground is that the decision was unreasonable, illogical, and irrational, and that the AAT should have availed itself of the opportunity to look at the Award for the position and make a determination upon that. The ground is a little bit more complicated than that, and I will come back to it in a second.
On 14 February 2022, which is a week ago today, an affidavit was filed by the solicitor for the Applicant appending a draft application in a case. The application in a case apparently was filed that day. However, it was not lodged until today. The failure for lodgement is no fault of the Applicants. It had to do with mechanics within the Federal Court registry.
That application in a case sought an order directing the Minister to file a supplementary green book, or, in the alternative, having the Court order a form of discovery. The application in a case also asked for the Court to allow amendment of the originating application. The proposed new originating application would complement, and in some ways particularise, the more general grounds that were in the amended application of 27 January 2021, but also add a new ground which was that there was no proper review made because the Applicant didn’t have a chance to present its case properly. The basis of the application in a case, and this new proposed ground three, is founded in what the Tribunal said in their reasons at paragraphs 17 to 22.
In those paragraphs, the Tribunal said that they had received information that was expressed to be private and confidential. So as to protect the identity of the informant, the Tribunal decided not to provide a copy of the document to the Applicant, but provided the gist of the information. That gist was that the nominee, Mr Singh, has been working as a taxi driver and as an Uber driver as a 457 visa holder, and had never worked as a mechanic, and that the Applicant company has taken money from Mr Singh to enable Mr Singh to obtain a permanent visa. The information was that the business sponsorship was a sham and that the position had been created by the company so as to attempt to secure a visa by the nominee Mr Singh and by Mr Bown.
Mr Bown rejected the allegations that were implicit in that information. He said that it wasn’t true and he didn’t know why anyone would make that allegation, saying finally, “That’s not me anyway.” Mr Singh was also asked about that, and he said that the allegations were totally wrong. He said that he had worked as a taxi driver and an Uber driver, but only since his 457 visa had expired, and he denied that he paid any money to the Applicant company or to Mr Bown. He believed that the allegation may have come from his ex-wife or some person associated with her.
The Department then issued a certificate and notification under s 376 of the Migration Act 1958 (Cth) (“the Act”) on 13 August 2020, which was after the hearing but before the Tribunal handed down its decision. The Tribunal provided a copy of that certificate to the Applicant by email before it made its decision, and the Tribunal confirmed that all the details of the information referred to in the certificate were provided to Mr Bown at the hearing. At paragraph 22 the Tribunal said this:
The Tribunal gives the allegations no weight due to the fact that the allegations are unsubstantiated by dates or documentary evidence, that the allegations have not been tested and their lack of direct relevance to the issue for determination in this matter.
The Applicant company submitted today, in arguing its application in a case, that the document was before the Tribunal and it did not have a certificate at the time that the Tribunal referred to it to the Applicant and to Mr Singh. The Applicant submits that, because there was no certificate attaching to that document at the time of the hearing, it should have been given to them at the hearing. But the stronger submission from the Applicant was that, because there was no certificate that attached to that document at the time of the hearing, it should have been included in the green book. The applicant submits that it is not to the point that a s.376 certificate has now issued for the document. The fact is that the document did not have the s. 376 certificate. It was relevant and therefore it should have been included in the green book according to the Applicant.
It seems to me that s 359 of the Act is apposite here it states:
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
There is no obligation under s 359 for the Tribunal to give such document to the Applicant during the course of a hearing. All that is needed is for the Tribunal to have regard to that information in making the decision. However, pursuant to s 359A and s 359AA:
Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
(c) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(d) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(e) invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
In this case, the Tribunal did exactly that. The Tribunal ended up ignoring the information. There is no substance in a complaint that the Tribunal failed to hand the document over to the Applicant during the course of the hearing.
The second part of the complaint is that the document should have been part of the green book. The orders of Registrar Carlton were that:
…the first respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall:
(a) be in portable document format;
(b) be searchable;
(c) have an index;
(d) have an entry in the index bookmarked; and
(e) be set so that when opened, it shall display at 100 per cent zoom.
The bundle of relevant documents that was filed included the certificate under s 376, which had been sent to the Applicant. The term “relevant documents” is not further defined, but one would think that the relevant documents are the documents to which the Tribunal had regard in some form or another in coming to its conclusion. By the time the Tribunal came to its conclusion, the document that it had referred to during the hearing was subject to a s 376 certificate.
The s 376 certificate, being in place at the time of the decision, is a relevant document. Because the s 376 certificate covered that information, there was no need for that document itself to be part of the green book. In many ways it could never have been part of the green book, because the certificate was still in force.
The Applicant argues that the Applicant still needs to see that document, notwithstanding that the Tribunal has described the document and has said that it has not put any weight upon it. The Applicant submits that such is not good enough. The Applicant quotes from Brennan J in Kioa v West (1985) 159 CLR 550, where his Honour said:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
That is very much a proper statement. However, it is not a statement that deals with the matter that we have at hand. This adverse information was not found to be credible, was not found to be relevant, and was not found to be significant to the decision being made. It was not information that was shut out of the mind of the AAT. The AAT looked at it, exposed it, and then ignored it, because it was not credible, not relevant, and not significant. And the AAT did make proper reference to it.
Because of that, it is very difficult to see that there is a real risk of prejudice, albeit subconsciously. This can also be contrasted with the situation that obtained in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (13 December 2019). In that matter there had been 48 pages of irrelevant and prejudicial material that had been given to the IAA by the Secretary. There was no mention of that material in the IAA decision. And as Edelman J said at paragraph 110:
…A fair-minded lay observer would consider that the prejudice arising from any consideration of this irrelevant material could be substantial.
At paragraph 93 and following of that decision, Nettle and Gordon JJ said:
93.In light of this, might the fair-minded lay observer apprehend a lack of impartiality? Yes. This conclusion is largely a factual one. It is therefore necessary to consider the facts of the case in light of the statutory context.
94. The fair-minded lay observer knows the key aspects of the statutory scheme, which are as follows. First, the Secretary must give the IAA any material which he or she considers to be "relevant" to the review. Second, the IAA must conduct its review "by considering the review material" provided under s 473CB. Third, it must do so "without accepting or requesting new information" and "without interviewing the referred applicant", except as provided by Pt 7AA. Fourth, the IAA has no duty to accept or request new information and must not consider it except in exceptional circumstances. Fifth, the IAA is under no obligation to give the applicant any material which was before the Minister
…
97Of course, it does not matter whether the IAA actually had such a bias, or whether the IAA in fact put the prejudicial information aside. There is a risk of subconscious bias here, and that risk cannot be cured by putting the information aside.
98The idea that the information could or would be put aside is also difficult to reconcile with the statutory scheme. As noted above, the Secretary endorses the information which he or she gives to the IAA as "relevant" to the IAA's task. The IAA then has to consider that information.
99The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side. (My emphasis)
…
102If circumstances like this arise, a decision-maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias. Is this consistent with the statutory scheme? Yes. Section 473DA(2) says that "nothing in this Part requires the [IAA] to give to a referred applicant any material that was before the Minister" when the Minister made the original decision. But this says nothing about "what might be required of the [IAA] in particular circumstances in order to exercise [its] power [under s 473DC(3) reasonably". The power in s 473DC(3) allows the IAA to get new information. While the IAA "does not have a duty to get, request or accept, any new information" in any circumstances, it may still invite an applicant to comment on information under s 473DC(3) if that would be the best way of avoiding an apprehension of bias.
…
111.It appears from the index of the court book before the Federal Circuit Court that the 48 pages of irrelevant material comprised a very large part of the material provided to the Authority. And yet, the Authority, a professional decision maker, did not suggest that any of that irrelevant and prejudicial material that it had considered had been disregarded or had been given no weight. In these circumstances, a fair-minded lay observer would apprehend, at the very least, that the Authority might have taken the material into account, either consciously or subconsciously. The apprehension might be that the Authority might have formed adverse views of the appellant's character and, consciously or subconsciously, might have acted upon those adverse views when reaching conclusions on the issues in dispute either directly, or indirectly by the effect on its assessment of the credibility of the appellant.
When one looks at what the High Court has said, both in Kioa v West (Supra) and in CNY17 (Supra), it seems to me that the Tribunal here has handled the matter in the appropriate way. It has told Applicant what the material is, it has set it out fully, and it has said that it has put it aside because it is irrelevant. Having done that, it would seem to me that there could be no criticism that there is any real risk of prejudice, albeit subconscious, and that the need for the applicant to have the exact document rather than the summary that has been given because of the existence of the s 376 certificate cannot be a point that is maintained.
It is for that reason that I refused the application in a case when it came before me earlier this morning, and that, even if I had allowed the new proposed ground three of the application, that ground would not have succeeded.
I then turn to the grounds of the application before me. They are, firstly, when satisfying itself whether the Applicant met the conditions set out within reg 5.19(3)(e) of the Regulations, the Second Respondent committed an error of law when it embarked upon the wrong task by determining that the Applicant needed to show that it was not underpaying the nominee compared to what the Applicant would have to pay to an Australian citizen to do the work.
The second ground is that the Second Respondent committed jurisdictional error in circumstances where its decision was unreasonable, illogical, and irrational, when it failed to be satisfied of the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.
In many ways, these two grounds are different sides of the same coin. The Applicant points to paragraph 28 of the reasons, and I will read paragraph 28 into the record in full:
The Tribunal advised Mr Bown that the applicant needed to show that it was not underpaying the nominee compared to what the applicant would have to pay to an Australian citizen to do the same work. The Tribunal advised him that this requirement was usually satisfied by producing evidence from websites such as PayScale or Seek as to the going rate for motor mechanics on the Gold Coast. The Tribunal advised him that time would be allowed after the hearing so that further material could be provided. At the conclusion of the hearing, the Tribunal advised Mr Bown that a period of 14 days would be allowed for the filing of further material. The Tribunal renewed its advice to Mr Bown that the applicant needed to provide evidence of the salary which would be payable to an Australian to fill the position.
The Applicant contends that what the Tribunal did was to change the test. The Applicant says that the Tribunal has used the test that the Applicant needed to show it was not underpaying the nominee compared to what they would have to pay to an Australian citizen to do the same work, whereas the test is that the Applicant had to show that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The terms and conditions of employment are greater than simply the salary, and the salary aspect is just one part of it. The Applicant contends that if it were that the Tribunal was focusing on underpaying the nominee, then the Tribunal was limiting itself as to what it had to look at, and instead concentrating on something that was somewhat extraneous to what it needed to find.
However, it seems to me that the Tribunal was talking about the advising to Mr Bown as to what it was that he needed to give to the Tribunal. The Tribunal advised him that he should produce evidence from websites such as PayScale or Seek as to what the going rate for motor mechanics was on the Gold Coast. The Tribunal renewed its advice that the Applicant needed to provide evidence of the salary which would be payable to an Australian to fill the position.
Now, obviously, if the Applicant provided such information as to what would be payable to an Australian to fill the position, that would be easily able to be compared to what it is that he is actually paying the nominee, Mr Singh, in this case. If it were that he is not underpaying, if it is that he is matching the terms and that the nominee is undertaking the work on the same terms and conditions that an Australian citizen or permanent resident would be, then he has satisfied that particular criterion.
The Applicant says that Mr Bown told the Tribunal that he was paying the nominee a basic wage. The Applicant points to a part in the transcript where Mr Bown said that he was paying a basic wage. What is said there needs to be looked at in context.
At line 492 of the transcript, the AAT said to Mr Bown:
MEMBER BAXTER: The next requirement is that Mr Singh will be employed on a full-time basis in the position for the next two years.
Mr Bown: Yes.
MEMBER BAXTER: You have produced a copy of an employment agreement that says he will be employed for two years from the commencement of his 186 visa.
Mr Bown: Yes.
MEMBER BAXTER: And there’s no express exclusion or the possibility of extension. So just tell me again, when did he leave the business?
Mr Bown: He started here in 2014, the deal with his agent, I never sort of had any prior experience with how it was all done but they seemed to know this had to be done and I took their word that they were doing it by the book and I’m sure that Gary is quite honest but I think halfway through he changed agent because his agent wasn’t doing the right thing from what I can believe. So that’s a little bit beyond me I don’t know what was actually happening behind the scenes, but he turned up for work every day and done his job if you know what I mean.
MEMBER BAXTER: What I was asking though, when he left the business because of his matrimonial problems, when did he leave?
MR BOWN: Well, he left in 2018.
MEMBER BAXTER: Do you recall what month?
MR BOWN: It was late in the year, would have been around this time of year. I know it was in the wintertime.
MEMBER BAXTER: According to the activities statement there was no wage salaries paid since August 2018 so that’s when he left, is it?
MR BOWN: Yes, that would be right yes.
MEMBER BAXTER: What I’m considering is, if you got by using contract mechanics for two years, why would you go back and start paying $56,000 a year for a full-time mechanic.
MR BOWN: Well, he was full time from the day he started really. You know whatever the basic wage was at the time I was paying.
MEMBER BAXTER: But I’m saying, if you got by for two years using contract mechanics to do whatever work –
MR BOWN: Yes.
MEMBER BAXTER: Had been done, why would you now go back and commit to paying for a full-time mechanic?
MR BOWN: Well, I didn’t know there was any difference in it; that was the arrangement they made when I first hired him and that’s how I thought it was done. But I think when he had trouble with his agent after a couple of years, I sort of said to him, well, the wages go on the same so I’m not too sure what arrangements he had made with his agent at that time.
The Applicant contends that the Tribunal should have interpreted the phrase, “You know, whatever the basic wage was at that time, I was paying,” as being Mr Bown giving evidence that he was paying the Award wage. I’m not too sure that such an interpretation can be made. But even if it could, there was no evidence before the Tribunal as to what the Award wage was and what the “basic wage” actually meant. The evidence, that Mr Bown gave, was that he had trouble employing mechanics who would work for less than $200,000 a year, and that the business that he had would not be able to afford anyone in Mr Singh’s position being paid $100,000 a year.
The Tribunal had all of that information there, but it didn’t have the information as to what an Australian citizen or Australian permanent resident would be paid and what terms and conditions they would work under if they were working in exactly the same position at the same place that the nominee was. The biggest criticism that has been levelled at the AAT is that they did not go themselves to try and find out what the Award was. The submission had been made very much to me that it was very easy for the solicitor who was representing the company and who has briefed Counsel to find the Award.
At paragraph 11 of his affidavit, he said:
Regarding the Vehicle Repair, Services and Retail Award 2020, it took me a couple of minutes on the website of the Fair Work Ombudsman to identify which Award applied to a motor mechanic and then download the Award and find the wage prescribed by that Award.
The solicitor says that finding the wage prescribed by that Award means that the nominee should have been paid a sum of $51,173.20 per annum. Because the Award is a legal instrument and can be downloaded in a matter of minutes, the AAT could take judicial notice of the Award as a legal instrument made pursuant to Commonwealth legislation. The Applicant submitted that if the AAT had it looked at that Award and had done the calculations themselves, they would have come up with the answer that $56,000 a year is more than $51,173.20, and therefore the criteria would be satisfied.
However, that submission presupposes that it is the obligation of the Tribunal to do just that.
Going back to the Tribunal’s reasons, the Tribunal, as I’ve already pointed out, said the only information that came from the Applicant company was that Mr Bown decided the wage on his research from seek.com.au and as advised by his previous migration agent. Firstly, that statement coming post-hearing does very little to corroborate that Mr Bown was talking about the Award wage when he talked about “basic wage” to the Tribunal, because there is no reference to basic wage or Award wage in that answer. But instructively, one can look at what the Tribunal wrote to the Applicant on 30 March 2020, some four months before there was a hearing. The Tribunal wrote:
In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in regulation 5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in regulations 5.19(2) and (3) of the Regulations. The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide. Information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, a current employment contract in respect of the nominee, or letter of engagement that complies with relevant Awards for the nominated position, if any.
It would seem to me that when one reads the transcript of what it was that the Tribunal said to Mr Bown and reads the whole of paragraph 28 of its reasons in proper context, the Tribunal clearly advised Mr Bown what he needed to do, and he didn’t do it. The Tribunal needed an employment contract that complied with relevant Awards. The Tribunal is not to be required to go and find the relevant Award itself out of the myriad Awards that there are, to ensure that the particular Award is the right one, and then to meticulously go through it to see if the contract complies with that. That is something that the Applicant has to do, because – and it is trite to say this – it is the Applicant that must prove that they have complied with the Regulations, not that the Tribunal has to somehow prove that they haven’t, before they are satisfied that the criteria has been fulfilled.
It seems to me that there is nothing unreasonable, irrational, or illogical in the Tribunal wanting that information. The information that was before the Tribunal was that $56,000 was being paid; that $56,000 was decided on the basis of research from seek.com.au and as advised by the previous migration agent; and, that the Applicant was not paying contract mechanics any more, but paying $56,000, which was described as a basic wage. On that evidence, it was clearly open for the Tribunal to come to the conclusion that the particular regulation had not been satisfied, and that is exactly what it did.
For those reasons, neither ground one or ground two are made out.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 14 April 2022
2
2
0