Jai Babaji Di Pty Ltd v Minister for Immigration

[2020] FCCA 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAI BABAJI DI PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2018

Catchwords:
MIGRATION – Failure by Tribunal to grant an adjournment of the review hearing for the purpose of the applicant seeking information from its accountant – erroneous findings by Tribunal – failure to grant adjournment an unreasonable exercise of discretion – decision of Tribunal quashed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 140GB(2)(b), 359AA, 359AA(1)(b)(iv).

Migration Regulations 1994 (Cth), rr. 5.19, 5.19(4)(f), 5.19(4)(g).

Superannuation Guarantee Administration Act 1992 (Cth), s. 23A.

Cases cited:

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: JAI BABAJI DI PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 120 of 2020

Judgment of: Judge Egan

Hearing date: 21 July 2020

Date of Last Submission: 21 July 2020

Delivered at: Brisbane

Delivered on: 24 July 2020

REPRESENTATION

Counsel for the Applicant: Mr Jacobi

Solicitors for the Applicant: Work Visa Lawyers

Solicitors for the First Respondent: Mr Cummings, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The Amended Application for review filed on 6 May 2020 be granted.

2. The decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 10 February 2020 be quashed.

3. A writ of mandamus issue directed to the Tribunal requiring it to determine, according to law, the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Tribunal for rehearing.

4. For the purpose of the Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 10 February 2020.

5. The First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 120 of 2020

JAI BABAJI PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application for review filed on 17 March 2020, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 10 February 2020 by which the Tribunal refused to approve the applicant’s nomination application made pursuant to the provisions of s. 140GB of the Migration Act 1958 (Cth) (‘the Act’).

2. Pursuant to s. 140GB(2)(b) of the Act, the applicant had to satisfy the decision maker that all of the requirements of r. 5.19(4) of the Migration Regulations 1994 (Cth) (‘the Regulations’) had been met. Regulation 5.19 relevantly provided as follows:

   “Regulation 5.19 – Approval of nominated positions – Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

   Application

   (1) A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2) The application must:

   (a) be made in accordance with approved form 1395 (Internet); and

   (b) identify the position; and

   (c) identify a person (the identified person) in relation to the position; and

   (d) identify an occupation in relation to the position; and

   (e) identify the subclass and stream to which the nomination relates, which must be one of the following:

   (i) a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

   (ii) a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

   (iii) a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

   (iv) Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

   (v) a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

   (f) be accompanied by the fee mentioned in regulation 5.37; and

   (fa) be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

   (fb) identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

   (g) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

   Approval of nomination

   (3) The Minister must, in writing:

   (a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

   (b) otherwise – refuse to approve the nomination.

   Requirements for approval – general

   (4) The requirements to be met for the nomination to be approved are as follows:

   (a) the application is made in accordance with subregulation (2);

   (b) either

   (i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

   (c) if it is mandatory, in the State or Territory in which the position is located, for a person to:

   (i) hold a licence of a particular kind; or

   (ii) hold registration of a particular kind; or

   (iii) be a member (or a member of a particular kind) of a particular professional body;

   to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

   (d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

   (da) any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

   (e) if the nomination relates to a visa in a Temporary Residence Transition stream – the requirements set out in subregulation (5) are met;

   (f) if the nomination relates to a visa in a Direct Entry stream – the requirements set out in subregulation (9) are met;

   (g) if the nomination relates to a visa in a Labour Agreement stream – the requirements set out in subregulation (14) are met.

   Temporary Residence Transition stream – additional requirements for approval

   (5) If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

   (a) at the time the application is made, the identified person holds:

   (i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

   (ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream; or

   (iii) for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph – a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

   (iv) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii) – a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

   (v) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii) – for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

   (vi) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii) – a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

   (b) the occupation:

   (i) is listed in ANZSCO; and

   (ii) has the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

   (c) unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph – the occupation must:

   (i) be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

   (ii) apply to the identified person in accordance with an instrument made under that subregulation;

   (d) either:

   (i) there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

   (ii) it is reasonable to disregard any such information;

   (e) during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

   (i) a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

   (ii) a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream;

   (iii) for a person specified in a legislative instrument made under subparagraph (a)(iii) – a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream;

   (f) unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visa, mentioned in paragraph (e) were granted:

   (i) for a total period of at least 3 years (not including any periods of unpaid leave); and

   (ii) on a full-time basis, with the employment being undertaken in Australia;

   (g) if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

   (h) the nominator:

   (i) was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

   (ii) is actively and lawfully operating a business in Australia;

   (j) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (k) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (l) the identified person will be employed on a full-time basis in the position for at least 2 years;

   (m) the terms and conditions of the identified person's employment will not include an express exclusion of the possibility of extending the period of employment;

   (n) the nominator's business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (o) the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i) paragraph 2.72(15)(a) did not apply; and

   (ii) references to the nominee were references to the identified person; and

   (iii) references to the person were references to the nominator;

   (p) either:

   (i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii) it is reasonable to disregard any such information;

   (q) the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

   Minister may vary certain Temporary Residence Transition stream requirements

   (6) The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

   (7) Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

   (8) The Minister may, by legislative instrument, specify:

   (a) occupations for the purposes of paragraph (5)(c); and

   (b) persons who are exempt from the operation of that paragraph; and

   (c) for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (i) the nominator;

   (ii) the identified person;

   (iii) the occupation;

   (iv) the position in which the identified person is to work;

   (v) the circumstances in which the occupation is undertaken;

   (vi) the circumstances in which the person is to be employed in the position.

   Direct Entry stream—additional requirements for approval

   (9) If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

   (a) the nominator is actively and lawfully operating a business in Australia;

   (b)  if the nominator's business activities include activities related to the hiring of labour to other unrelated businesses--the position is within the business activities of the nominator and not for hire to other unrelated businesses;

   (c) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (d) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (e) the identified person will be employed on a full-time basis in the position for at least 2 years;

   (f) the terms and conditions of the identified person's employment will not include an express exclusion of the possibility of extending the period of employment;

   (g) the nominator's business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (h) the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i) paragraph 2.72(15)(a) did not apply; and

   (ii) references to the nominee were references to the identified person; and

   (iii) references to the person were references to the nominator;

   (i) either:

   (i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii) it is reasonable to disregard any such information;

   (j) the requirements set out in subregulation (10) or (12) are met.

   Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

   (10) The requirements of this subregulation are as follows:

   (a) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

   (i) made under subregulation (11); and

   (ii) in force at the time the application is made;

   (b) the occupation applies to the identified person in accordance with that instrument.

   (11) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a) the nominator;

   (b) the identified person;

   (c) the occupation;

   (d) the position in which the identified person is to work;

   (e) the circumstances in which the occupation is undertaken;

   (f) the circumstances in which the person is to be employed in the position.

   Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

   (12) The requirements of this subregulation are as follows:

   (a) the position is located at a place in regional Australia;

   (b)  the business operated by the nominator is located at that place;

   (c)  the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (d)  the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

   (i) made under subregulation (13); and

   (ii) as in force at the time the application is made;

   (e) the occupation applies to the identified person in accordance with that instrument;

   (f)  the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

   (i) whether the identified person would be paid at least the annual market salary rate for the occupation;

   (ii) whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (iii) whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

   (g) the body must:

   (i) be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

   (ii) be located in the State or Territory in which the position is located; and

   (iii) have responsibility for the local area in which the position is located.

   (13) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (a) the nominator;

   (b) the identified person;

   (c) the occupation;

   (d) the position in which the identified person is to work;

   (e) the circumstances in which the occupation is undertaken;

   (f) the circumstances in which the person is to be employed in the position.

   Labour Agreement stream—additional requirements for approval

   (14) If the nomination relates to a visa in a Labour Agreement stream, the following requirements must also be met:

   (a) the nominator is a party to a labour agreement;

   (b) the labour agreement;

   (i) is in effect; and

   (ii) specifies the occupation as one in relation to which a position may be nominated for the purposes of this regulation;

   (c) if the labour agreement specifies requirements that must be met by a party to the labour agreement--the requirements of the labour agreement have been met;

   (d) the number of nominations approved by the Minister under this regulation on application by the nominator is less than the number of approved nominations permitted under the labour agreement for the year.

   Minister must give notice of approval or refusal

   (15) As soon as practicable after deciding whether to approve, or refuse to approve, the nomination, the Minister must give the nominator:

   (a) a copy of the written approval or refusal; and

   (b) if the Minister refuses to approve the nomination:

   (i) a written statement of the reasons why the nomination was refused; and

   (ii) a written statement that the decision is a Part 5-reviewable decision.

   Note: Division 4.1 deals with review of decisions. Paragraph 4.02(4)(e) provides that a decision under regulation 5.19 to refuse an application is a Part 5-reviewable decision.

   Meaning of regional Australia

   (16) In this regulation:

   “regional Australia” means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.”

1. On the question as to whether or not the applicant had complied with the provisions of r. 5.19(4)(g) of the Regulations, the Tribunal, at [11] of its reasons, said as follows:

   “[11] In accordance with the procedure set out in s.359AA of the Act, the Tribunal raised with the applicant the issue of short paying or non-payment of superannuation entitlements in the 2018 financial year for her employees engaged in the business in South Australia. The Tribunal invited the applicant under s.359AA of the Act, to comment or respond to adverse information that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that this was regarding this issue of non- compliance with the Superannuation Guarantee requirement, in breach of industrial laws of the Commonwealth, and the State of South Australia, in which the applicant operates a business and employs employees in the business, relating to workplace relations. The applicant was also advised that the Tribunal would consider any request for additional time to comment or respond.”

2. After having noted that the applicant had retained the services of a firm of accountants to prepare financial reports and taxation returns on behalf of the applicant in respect of the applicant’s business, the Tribunal, at [15], [16] and [17] of its reasons, said as follows:

   “[15] The Tribunal considers that the applicant could not provide any satisfactory reason why the Tribunal should not accept the accountant’s financial reports above as complete and accurate, given the reliance on the accountant to ensure compliance and for lodgement purposes. The Tribunal finds that the applicant has underpaid superannuation employment entitlements in the 2018 financial year.

   [16] Having considered the financial statements before it, and the applicant’s oral evidence and submissions discussed, the Tribunal is not satisfied that the nominator has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff, in South Australia.

   [17] Accordingly the requirements of r. 5.19(4)(g) are not met.”

3. On 6 May 2020, the applicant filed an Amended Application for review, the grounds of which were as follows:

   “Grounds of application:

   Unreasonableness, failure to take into account relevant considerations and an error of law in refusing an adjournment to obtain further information

   1. The Second Respondent in conducting a review of the decision of the delegate of the First Respondent to refuse the Applicant's nomination for a position, acted unreasonably in refusing an adjournment sought by the Applicant in relation to a matter raised by the Second Respondent in accordance with s 359AA of the Migration Act 1958 (Cth) ('the MA'). That refusal was unreasonable in that it lacked an "evident and intelligible justification", and otherwise involved a failure to take into account relevant considerations and proceeded on an error of law, and the Second Respondent thereby did not conduct a "review" in accordance with the MA. Those failures each constitute a jurisdictional error.

   Particulars

   1.1 During the hearing, the Second Respondent sought to satisfy itself that the applicant met the criteria under regulation 5.19(4)(g) of the Migration Regulations 1994 ('the MR') which provides:

   the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

   1.2 The Second Respondent in purported exercise of the power in s 359AA of the MA gave oral particulars and sought a response in relation to information contained in financial statements of the Applicant for the 2017/18 financial year that it identified as adverse information in relation to the Applicant's compliance with its obligations under the Superannuation Guarantee (Administration) Act 1992 (Cth) (' SGA Act') and which it considered to be relevant to satisfaction of r 5.19( 4 )(g). Those issues had not previously been considered by the delegate.

   1.3 The Applicant sought an adjournment from the Second Respondent to respond to the issue on which it sought a response being whether the Applicant had in fact complied with the requirements of the SGA Act to pay a superannuation contribution of  $393 .30 in the 2017/18 financial year.

   1.4 The Second Respondent refused that application on the basis it was a “straightforward question” and was “fairly straightforward”.

   1.5 The refusal of that application to adjourn was a decision without a rational and intelligible justification in all of the circumstances given that addressing the issue whether a payment had in fact been made, raised for the first time at the hearing, could not be answered without recourse to information and documents not in the possession of the Applicant at the hearing.

   1.6 Further, the refusal of the application to adjourn failed to take into account the relevant considerations which the Second Respondent was required to consider but did not, namely:

   (i) The Applicant could not address the issue (whether the amount had in fact been paid) without obtaining information or documents she did not have at the hearing;

   (ii) The substantial period of time since the required payment and whether it might be expected that details of such a payment would necessarily be remembered by the Applicant;

   (iii) The extraordinary personal circumstances of Ms Kaur who was the sole director of the Applicant, and which materially affected her capacity to address the issue raised immediately.

   1.7 Further, and separately, the decision of the Second Respondent proceeded on an error of law in that the Second Respondent considered that even if the payment of the contribution had been made in July 2018, that payment would have been late, in breach of the SGA Act, and thereby r 5 .19( 4 )(g) would not be satisfied. That view affected the Second Respondent's view as to the significance of any adjournment. That is an error of law by reason that payments of contributions under the SGA Act are to be made within 28 days after the end of each financial quarter.

   1.8 The refusal of the application to adjourn was material by reason that:

   (i) The decision-maker found that the Applicant had not complied with its obligations under the SGA Act and that accordingly the Applicant had not satisfied the criteria in r 5 .19(4)(g) of the MR.

   (ii) The Applicant had in fact paid the amount and complied with its obligations under the SGA Act, and would have been able to be proven had Ms Kaur been given the opportunity to identify documents which showed she had in fact on behalf of the Applicant complied and made the payments the subject of the inquiry in accordance with the SGA Act.

   Error in the identification of the question to be answered under r 5.19(4)(g) and constructive failure to address the relevant question

   2. The Second Respondent erroneously construed the expression "satisfactory record of compliance" as used in r 5. 19(4)(g) of the MR and accordingly the test imposed by that regulation, and thereby asked itself the wrong question and as a result did not conduct the review required by the MA, and/or failed to give genuine and realistic consideration to the applicant's claim that in all the circumstances there was a "satisfactory record of compliance" which was a jurisdictional error.

   Particulars

   2.1 The Second Respondent found that the Applicant had not complied with the SGA Act by failing to pay a superannuation contribution of $393.30 in 2017 /18 financial year and on the basis of that concluded that the Applicant did not have a "satisfactory record of compliance" with the "laws of the Commonwealth and of each State" "relating to employment" within the meaning of r 5.19(4)(g) of MR.

   2.2 In reaching that conclusion, the Second Respondent did not make any assessment of the significance of the identified issue (or its circumstances) in the context of the Applicant's compliance more generally which evidence was before the Tribunal and about which it could make findings, including the Applicant's compliance with the requirement to make superannuation guarantee payments in the 2018/19 financial year.

   2.3 In failing to consider that matter in context, it failed to address the correct question (and the applicant's claim) namely, that the facts as a whole suggested there was a "satisfactory record of compliance" which test did not require that there was no default of compliance, irrespective of its significance, cause or any redress later made for that default.

   2.4 That failure to consider the correct question, and the evidence relevant to it, was material by reason that if the correct question had been considered all of the other evidence supported the Applicant's compliance with laws "relating to employment", including on the issue of superannuation guarantee payments, and which if considered, could not be said to mean that the Second Respondent could not have come to a different decision.”

Ground 1

1. This ground constituted an assertion that the decision by the Tribunal to refuse to adjourn the review hearing before it was without a rational and intelligible justification. It was asserted that in circumstances where the question as to whether the applicant had complied with its superannuation guarantee payment obligations or not could only be clarified by an adjournment being granted, so that the applicant could discuss the matter with the applicant’s accountants, the adjournment request should have been granted. The Court agrees with the applicant’s submissions in that regard.

2. At the hearing before this Court, no objection was taken to the admission into evidence on behalf of the applicant of two (2) affidavits, each filed on 17 March 2020.

3. The first affidavit was affirmed by one Ms Kaur who was a director of the applicant, and who appeared before the Tribunal at the hearing of the applicant’s review application. The affidavit established that the sum of $393.30 said by the Tribunal Member at the review hearing to have not been paid by the applicant pursuant to its superannuation guarantee payment obligations, had in fact been paid, and that the assertion by the Member to the contrary was erroneous. Annexed to that affidavit was a receipt verifying payment of that sum on 5 July 2018, a mere 5 days after the end of the relevant quarter year period which ended on 30 June 2018. [1] It also confirmed that Ms Kaur had asked the Tribunal Member to give her some time to talk to her accountant to clarify the issue, the clear import of such request being that she did not have with her any documentation, such as the payment receipt, which could then be produced by her to verify payment. Paragraphs [2] – [14] inclusive of such affidavit are as follows:

   [1]        Annexure JK 1 to affidavit of Jaswinder Kaur filed on 17 March 2020.

   “2. I appeared before the second respondent on 10 February 2020.

   3. At that hearing, I was asked questions by the Tribunal member relating to the superannuation contribution and employee wages of the business and why the sum of $393.30 did not appear in the financial statements for the year ending 30 June 2018.

   4. I had never been asked about this nor was I aware of any issue relating to that part of the statements. I did not at the hearing know which employee the superannuation issue related. Before the hearing I had checked the payments for one employee Sonal Sharma (the visa applicant) and had given the first and second respondent evidence of my superannuation contributions on a regular basis. I later learned when checking the issue, the $393.30 superannuation contribution relates to another employee, Manpreet Kaur, who is not related to the Nomination or Visa Application.

   5. I asked the Member, Stavros Georgiadis, to give me some time to talk to my accountant to explain the situation. 1 wanted to check my records to see what had occurred. I believed I had complied with all the requirements required by me as the Director of the company.

   6. I needed more time to think about when I paid the superannuation, because I knew I had paid all the superannuation. I could not immediately remember when I had paid my employees entitlements. That was so in part because it was about 2 years ago.

   7. Also I was at the time of the hearing suffering from sleepless nights from the grief and sadness at unexpectedly losing my 8 year old daughter, (name omitted) to an asthma attack. I felt miserable and helpless. My whole world was crashing down. I was taking sleeping tablets to manage. I was affected deeply by the death of my daughter. I still cry about her to this day. I miss her everyday and will never stop thinking about her.

   8. However, as explained below, I did in fact do all that I was legally was required to do, because it was my dream to have my own restaurant and I did everything in my power to make it run correctly.

   9. If I were given an adjournment to retrieve the documents I would have been able to produce documents which showed I had complied, being:

   9.1 Commonwealth Bank Receipt of Payment for the relevant Superannuation payment of$393.30 on 5 July 2018;

   9.2 Operating Business Bank Statement of Jai for the period l July 20 18 to 30 September2018 showing payment on 5 July 20 18 of $393.30 with the description of "Manpreet Super".

   9.3 Sch Online Contribution History Records reconciling the $393.30 payment.

   Now produced and shown to me and marked "JK l" is a copy of the above described documents in para 9.1 to 9.3.

   10. I could not get access to the above documents described in paragraph 9 because the Member did not allow me the time to do so.

   11. I did not know that it would be an issue at the hearing and I did not have the documents with me at the time.

   12. If I had been granted an adjournment I would have been able to work with my accountant and work out that there had been a mistake in the financial statements of 2018 and 2019.

   13. This was also the first time that I became aware that there was a mistake in the company financial statements. I was relying on my accountants to ensure that the financial statements were accurate.

   14. When I discovered that the $393.30 in fact related to Manpreet Kaur I was still confused as I had complied by paying her superannuation on time, within the 28 day period after the end of each quarter.”

4. The second affidavit is an affidavit of the applicant’s solicitor which relevantly annexed a transcript of the hearing before the Tribunal on 10 February 2020. Of relevance to a consideration of what transpired at the hearing before the Tribunal are the provisions of s. 359AA of the Act, which section relevantly provided as follows:

   “Section 359AA – 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.
   
   (Emphasis added)

   (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).”

   (Emphasis added)

   Of particular relevance to the Court’s consideration of the Amended Application for Review is s. 359AA(1)(b)(iv).

5. It is clear from a reading of the transcript of the hearing before the Tribunal that Ms Kaur had, on at least five (5) occasions, either said to the Tribunal Member that she needed more time to respond to his assertions about non-payment of superannuation, or that she needed to talk to her accountant in order to clarify the issue. Those examples are as follows:

   a)Transcript pages 29.6 – 30.3 where it was said:

   “MEMBER: So just to be clear, you’ve lodged the financial records for 2017, 18, for the financial year, and also for the 2018 and 2019 financial year, the two years (indistinct). Is that right? A yes is sufficient. Is that right?

   WITNESS KAUR: Yes.

   MEMBER: (Indistinct) let’s just get a yes or a no. You’ve lodged this with the tax office, is that right?

   WITNESS KAUR: Yes.

   MEMBER: For both ’18 financial year and ’19 financial year.

   INTERPRETER: Yes.

   MEMBER: And they haven’t been amended.

   INTERPRETER: No.

   MEMBER: So I need to put something to you, relying on the documents, for the 2018 financial year, and I’d to put it under a particular procedure. Under section 359AA of the Act and it relates to regulation 5.11(4)(g) which is the one that I mentioned earlier about having a satisfactory record of compliance with the (indistinct) of the Commonwealth and the state of South Australia relating to work place relations and I’m going to put information to you and invite you to comment or respond to information that would be the reason, or part of the reason, for affirming the decision under review. That is, refusing the nomination. And I have to advise you that before you respond you can ask for the tribunal to consider allowing further time to comment or respond, which the tribunal can consider.

   Now, the information is this: that in the 2018 financial year, your financial records show that you paid wages of $4140, which, it seems to me, would relate for the period that you open the business in April – 26 April “18, until the end of that financial year, 7 June ’18. So far so good. So, wages $4140, but of those wages it appears to me you have to pay superannuation. That’s an employment entitlement for you workers, where you have to pay a certain percentage to your workers. And the information is that you pay zero, nothing in (indistinct).

   And what I’m wanting you to comment on is that paying zero superannuation for those wages that you’ve paid your staff would be a breach of workplace relations laws, that you are required to satisfy. And this, in this case, the Commonwealth Superannuation Guarantee Commonwealth laws that requires you to satisfy regulation 5.11(4)(g). So I’m inviting you to comment or respond to that, because it seems you’ve underpaid superannuation for those people you paid wages to in that financial year. What can you tell me about that?

   INTERPRETER: I need some time to respond to that.

   MEMBER: Well, it’s a straightforward question. I’m not inclined to allow time, because it is fairly straightforward. You understand you paid the wages, $4140. Is that correct? (Indistinct). So is that right? The financial reports, $4140 of wages. Yes?

   INTERPRETER: Yes.”

   b)Transcript page 30.4 – .10 where it was said:

   “MEMBER: And also there’s zero entry – under the hearing, ‘superannuation’ there’s zero, nothing, it’s blank, for 2018. If it assists you, I can tell you what you did in the following year 2019. Ms Kaur, in the following year, ’19 financial year, 2019, you paid wages of $197,460 and (indistinct) you paid superannuation correctly, because you then said superannuation of $18,749. But that’s the ’19 year. The problem is in the year you first started you paid wages, but you paid zero super. And that would be a breach of the Super Guarantee Commonwealth legislative requirement.

   INTERPRETER: I think I need to talk to my accountant, only then I can answer that question.

   MEMBER: Well, you’re the director and you signed off on these (indistinct). Is there any reason why the super wasn’t paid in 2018? You don’t have a right to be heard here, and the worst thing you can do is interrupt me while I’m (indistinct) of questioning. So please don’t interrupt and I’ll come to you.

   REPRESENTATIVE: Okay

   INTERPRETER: I can’t remember anything about this thing.

   MEMBER: You can’t remember, but you don’t deny that the accounts show zero super being paid? I’m inviting you to comment on any reason why there would be a zero entry for super there.

   INTERPRETER: I’m not sure.

   MEMBER: See one possibility is that you’ve paid it in the following quarter. I don’t know if that’s what you were going to raise or not.”

   c)Transcript pages 33.2 – 34.2 where it was said:

   “INTERPRETER: So the business was new, so I might have made a mistake. When someone opens a new business, it’s natural that they make mistakes.

   MEMBER: I understand that. But it’s an industrial entitlement, like wages. So if you said to me, look, I underpaid these workers, I paid them less than what I was supposed to, you could be fined for that by the Fair Work Ombudsman, if there’s an enquiry. It’s still a breach of industrial relations laws. To your credit, I can see the following year that’s all been corrected, that’s all fine. The issue is this too though, that if, in fact, you have paid it late, because nine and half percent of the wages you paid the following year, $197,460, exactly nine and a half per cent of that is the amount you’ve paid in super, $18,759. I’ll double check that, because it’s relevant. That’s right. So you’ve paid the nine and half per cent for your wages bill the following year, $197,460, but there’s nothing extra to catch up for the wages that you missed in ’18. Did you want to say anything about that? So, just tell me what she said.

   INTERPRETER: She’s saying, ‘maybe.’ She just, ‘maybe,’ twice. Nothing else.

   MEMBER: Did you want to say anything further? Maybe what?

   INTERPRETER: Okay, if I have made that mistake, I will deposit it now.

   MEMBER: Right, so you’re (indistinct) to remedy it, or to rectify the shortfall, but it still doesn’t change the fact that it’s non-compliance at the time. All right. Did you want to say anything further all (indistinct)?

   REPRESENTATIVE: (Indistinct).

   MEMBER: Don’t prompt your witness. You don’t have a right to do that. In the end, I’ve asked the question, I’m taking my time. It’s not for you to interject. So it’s not appropriate.

   REPRESENTATIVE: Sorry, sir.

   MEMBER: She’s already asked for that and I’ve indicated I’m not inclined because they are straight forward questions. She’s admitted also to making a mistake and perhaps paying later. I’ll go through all that.

   INTERPRETER: Okay I will talk to my accountant and then I will see how come I made that mistake and I will pay the money.

   MEMBER: All right.

   INTERPRETER: So, business was new for me, anyone can make mistake in a new business.”

   d)Transcript pages 39.2 – 40.2 where it was said:

   “UNIDENTIFIED SPEAKER: She got confused, sir, but - - -

   MEMBER: Well she did in her oral evidence to me on one hand which I’ve heard a couple of different times and she’s had time to respond and it’s been a persistent message that she’s made a mistake and she’s going to rectify that and pay it back. On the hand you’re given me hearsay, you’re trying to put forward evidence about a discussion you’ve had with the accountant as an advocate and it’s not appropriate, (indistinct). In the end why shouldn’t I accept the oral evidence from Ms Kaur? She’s saying she’s made a mistake, the business was knew, it was only a small amount of wages, I appreciate that, Ms Kaur but through the interpreter it seems to me, you know, I can give weight to your evidence that you made a mistake and it appears to me it hasn’t been repaid. You’re the person who was doing the super, if you have picked up this shortfall and had paid it in the following quarter, I would’ve thought that you would’ve mentioned that to me. Just let her respond to that, do you want to say anything in response to that?

   INTERPRETER: I was pregnant at that time. So I got very busy after that.

   MEMBER: Look, I understand there are lots of circumstances. You were pregnant at the time, it was a new business but unfortunately those things don’t excuse underpaying industrial employment entitlements (indistinct) accountant available to you.

   INTERPRETER: I had paid them they were not underpaid. I have made the payment, they were not underpaid.

   MEMBER: Well that’s different to what you said earlier when you said to me that it was mistake and that you will repay them. You’re making these comments now after your advocate has made certain submissions. Why shouldn’t I give weight to the oral evidence you gave me?

   INTERPRETER: She’s saying I’m admitting both things that I made a mistake and I will talk to the accountant.

   MEMBER: But if you’re admitting both things, you can’t have both made a mistake and not paid and then later say to me, ‘But I have paid them.’ You can’t be both. Either it’s a mistake and you’ve not paid them or you had in fact paid them.

   INTERPRETER: We are now mixing two things together, I think I’ll talk to my accountant only then I’ll find out.

   MEMBER: You can but I’m proceeding to make a decision (indistinct) further submissions or further evidence to come forward, I’m proposing to made a decision on this today. Okay, I take your point about the $200.96, Mr Sharma referring only to contributions by – in relation to Ms Somul Sharma, I understand that. But I make those observations about the amount paid in (indistinct) being exactly in relation to the wages for (indistinct) 460. But nothing to catch up, zero paid for the previous year.”

   e)Transcript page 40.2 – .4 where it was said:

   “UNIDENTIFIED SPEAKER: (Indistinct) last quarter is still pending and that will go in the next year’s financial statements. I would

   (Audio malfunction)

   Saying that I think the best person to answer is accountant. I think there should be an opportunity given to the applicant to - - -

   MEMBER: (Indistinct) there’s an offer still pending.

   MALE SPEAKER: No, sir. If we look and go – the payments of super are always done (indistinct), once we make a financial statement, whatever overdue is left we never include that overdue in the financial statement, that goes in the next year’s financial statement, sir.”
   
   (Emphasis added)

1. Submissions were made by Mr Cummings on behalf of the First Respondent that the witness Kaur had unequivocally admitted non-payment of the superannuation due. [2] However, after Ms Kaur admitted, through an interpreter, and under pressure from the Tribunal Member, that she mustn’t have paid the sum in question, (and as was later submitted on her behalf during the hearing by the migration agent appearing on behalf of the applicant) the Court finds that Ms Kaur was confused when she made such concessions. After having admitted that she had “made a mistake”, Ms Kaur shortly after, on two (2) occasions, said “If I have made that mistake”, [3] or words to that effect. This Court finds that the Tribunal Member ought to have been in no doubt that, upon an appreciation of the totality of the evidence of Ms Kaur, Ms Kaur was not conceding that she had failed to meet her superannuation guarantee obligations.

   [2]        Transcript page 34.1 and 36.5.

   [3]        Transcript page 37.5 and 38.3.

2. The Court further finds that in circumstances where the focus of the Tribunal’s questioning was upon matters pertaining to compliance or non-compliance with r. 5.19(4)(g) rather than to r. 5.19(4)(f) – the latter being the basis upon which the delegate had refused to grant the nomination approval [4] – Ms Kaur was not unreasonably unprepared or able to immediately respond to questions put to her by the Tribunal Member concerning compliance or non-compliance by the applicant with its superannuation guarantee obligations to the extent of $393.30. Because Ms Kaur believed that the applicant had complied with its relevant statutory obligations relating to the making of superannuation guarantee payments, and because she reasonably had to have resort to relevant assistance from her accountant for the purpose of establishing that the applicant had met its obligations, it was erroneous on the part of the Tribunal Member to describe the issue of payment or non-payment  as being either a “straightforward question” or something which was “fairly straightforward”.

   [4]        Court Book (CB) p. 163.

3. The Court accepts the submissions made by Mr Jacobi on behalf of the applicant to the effect that relevant questions asked of Ms Kaur by the Tribunal Member were, due to the lapse of time between the making of the superannuation payments and the time of the Tribunal hearing, unable to be satisfactorily answered by Ms Kaur on the spot, and that the Tribunal ought to have allowed Ms Kaur time to reference primary taxation documentation, in the company of her accountant, for the purpose of resolving what was being put to her.

4. It is also clear from a reading of the transcript that there was disagreement between the Tribunal Member and Ms Kaur concerning the question of whether superannuation payable in respect of an April – June quarter for a financial year ending on 30 June ought to have been recorded in the financial records for that financial year, as opposed to the next financial year. [5] Because of that disagreement, there was even more reason for the Tribunal to adjourn the hearing of the review before it. The Tribunal Member, rather, seemed to have earlier formed the view that he was not inclined to allow any adjournment, in any event, because of the “straightforward” nature of the issue before him, something which was not borne out by the exchanges on that issue as set out in the transcript. [6]

   [5]        Transcript page 38.5 – 39.1.

   [6]        Transcript page 30.3 – .4.

5. The Court finds that the decision of the Tribunal to refuse the application to adjourn the Tribunal hearing was an error in the exercise of its discretion which was jurisdictional in nature. It was not an exercise of discretion which accorded to “the rules of reason”. As was said by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189:

   “It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v. Wakefield. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law: Owning Campbell Investments Pty. Ltd. v. Collector of Imposts.”

   (Citations omitted)

6. Had the adjournment been granted, the very issue on which the Tribunal found against the applicant would have been resolved in favour of the applicant. The applicant should have been given the opportunity to fairly meet the allegations of non-payment of superannuation which had been made against it. The Tribunal gave undue weight to the fact of Ms Kaur having caused the applicant’s accountant to submit, as true in every respect, the applicant’s tax returns. It failed to have regard to the legitimate plea made by Ms Kaur that she would need to consult with the accountant in order to prove, as she had claimed, that the applicant had made all superannuation payments required by law to be made by it. The Court finds that the Tribunal’s exercise of its discretionary power was unreasonable, being an exercise of discretion which no reasonable Tribunal Member ought to have made. [7] The Court, by way of analogy, respectfully adopts what was said by French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [31] where His Honour said:

   “[31] The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.”

   [7]        See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [108] per Gageler J.

Ground 2

1. The Court further accepts the applicant’s submission that the Tribunal was wrong when it found that even if a superannuation payment had been made in July 2018 in respect of the previous quarter (as was in fact the case), then such payment would be a late payment resulting in an unsatisfactory record of compliance with the laws of the Commonwealth for the purposes of r. 5.19(4)(g) of the Regulations. Section 23A of the Superannuation Guarantee Administration Act 1992 (Cth), to the contrary, provided that superannuation contributions are able to be made within twenty-eight (28) days after the end of a financial quarter. That error further compounded the Tribunal’s misconception as to what its duty was when assessing the significance of whether or not it should grant the application for the adjournment or not.

2. In any event, the Court is not satisfied that even if the applicant had been guilty of one transgression in the payment of the sum of $393.30 by way of superannuation contribution, as was erroneously asserted by the Tribunal Member, that that would necessarily constitute an unsatisfactory record of compliance with the laws of the Commonwealth for the purposes of r. 5.19(4)(g) of the Regulations. Mr Cummings on behalf of the first respondent properly conceded that the test for what constituted satisfactory compliance was something less than what constituted absolute compliance. The Tribunal failed to intellectually engage on the question as to what, if any, non-compliance by the applicant less than absolute compliance would have justified a refusal of the nomination application pursuant to r. 5.19(4)(g). That failure to appropriately consider a relevant matter which was central to the Tribunal’s deliberations was also jurisdictional in nature. The Tribunal’s findings lacked sufficient detail to satisfy the Court that it had so intellectually engaged. So much was borne out by what was said by the Tribunal at [15] – [17] of its reasons.

3. The exercise by the Tribunal of its discretion on the question of the adjournment of the review hearing miscarried. The error was fundamental in nature, unresonable and unfair. The error was material. As was said by Hayne, Kiefel and Bell JJ in Li at [66] and [76]:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. The decision of the Tribunal in failing to grant to the applicant the requested adjournment was a jurisdictional error which went to the root of the Tribunal’s final decision. The Tribunal decision made on 10 February 2020 is ordered to be quashed.

5. In the light of the Court’s findings, it is unnecessary to deal with the other grounds for review as asserted in Ground 2 of the Amended Application for Review.

6. The Court will hear the parties as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 24 July 2020