Jayshree Enterprises Pty Ltd v Minister for Immigration and Anor and; Gohil v Minister for Immigration and Anor

[2016] FCCA 2825

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAYSHREE ENTERPRISES PTY LTD v MINISTER FOR IMMIGRATION & ANOR and
GOHIL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2825

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error established – writ of certiorari issued.

Legislation:

Migration Act 1958 (Cth)

Applicant: JAYSHREE ENTERPRISES PTY LTD

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 258 of 2016

Applicant: SAURABH VIKRAMISNH GOHIL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 256 of 2016

Judgment of: Judge Vasta

Hearing date: 22 August 2016, 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Brisbane

Delivered on: 21 October 2016

REPRESENTATION

Counsel for the Applicants: Mr P. Travers

Solicitors for the Applicants: Chand Lawyers

Counsel for the First Respondent: Ms A. Stoker

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

In proceeding No. BRG 258 of 2016

1. A Writ of certiorari issue directed to the Second Respondent quashing its decision dated 23 February 2016.

2. That a Writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 19 February 2016 according to law.

3. That the First Respondent pay the Applicant’s costs fixed in the sum of $5,329.00

In proceeding No. BRG 253 of 2016

1. That a Writ of certiorari issue directed to the Second Respondent quashing its decision dated 22 February 2016.

2. That a Writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 16 February 2016.

3. That the First Respondent pay the Applicant’s costs fixed in the sum of $3,995.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 258 of 2016

JAYSHREE ENTERPRISES PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

BRG 253 of 2016

SAURABH VIKRAMISNH GOHIL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 16 March 2016, the applicant, Jayshree Enterprises, sought judicial review of the Tribunal decision to affirm the decision of a delegate of the Minister to refuse the nomination of Jayshree Enterprises.

2. To have been successful in that nomination, Jayshree Enterprises would have to satisfy the Tribunal that the nominated employee, a Mr Gohil, would be employed on a full-time basis in the position for at least two years if the nomination were approved. 

3. Because of that connection, I have heard at the same time as the present application, an application by Mr Gohil where he seeks to review a Tribunal decision that did not give him a visa because he was not employed by an approved employer. 

4. The two applications go hand in hand. 

5. The Tribunal in Mr Gohil’s matter affirmed the decision of the Minister because Jayshree Enterprises did not have their nomination approved.  If I were to accede to the Jayshree application, the Minister has conceded that Mr Gohil’s application would also have to succeed.

6. The basis for the Tribunal coming to their conclusion, that they were not satisfied that Mr Gohil would be employed on a full-time basis in the position for at least two years , was that:

   “25. …the business does not appear to have the financial resources to provide such employment. 

   26. Accordingly, the requirement in rule r.5.19(4)(d) was not met.”

7. The facts before the Tribunal were this:

   a)The applicant, Jayshree Enterprises, operated three businesses, though one was closed when another opened;

   b)They were the Marcoola Mini Mart, the Friendly Grocer at Wurtulla and the Friendly Grocer at Buderim Meadows;

   c)Those businesses were all said to be, in effect, “going concerns” at the time of the application which was February 2016. 

8. What the Tribunal noted was that the Applicant’s total wage expenditure for the 2013/2014 financial year was $134,902.98.  For the 2014/2015 financial year, it was $143,705.78.  What was also before the Tribunal was the fact that, at this present time, the Applicant employed five full-time staff and twelve part-time staff.  The five full-time staff included Mr Gohil. 

9. Before the Tribunal also were records showing the payments made to all the employees for the period of 2015 to 2016, some eight months into the financial year 2015/2016.  All those persons have been paid accordingly under the terms and conditions, it would seem, of any award and under the National Employment Standards.  There have been no claims of people having been either underpaid or having been paid late.  There was no evidence that there was any financial stress on the business whatsoever.

10. At paragraph 20 of their reasons, the Tribunal asked the principal of the Applicant to describe the Applicant’s current workforce.  He said that the Applicant currently had five full-time employees including the current nominee, three nominees approved in 2015 and another permanent resident.  The Applicant had twelve part-time employees currently. 

11. The Tribunal asked the Applicant what the Applicant’s wages bill would be for the next year if all the employees continued to work for the business.  He agreed with the Tribunal’s estimate that the five full-time employees would cost about $250,000.00.  He said that the wages cost for the part-time employees would depend on the hours that they had worked but agreed that it would be at least $100,000, making a total wages bill of at least $350,000 for the current financial year.

12. At paragraph 22, the Tribunal pointed out that the total wages bill for the last financial year had been $143,705.78 and asked how the Applicant would afford this bill, given that in his evidence he said the net profit for the year of 2014/2015 was $86,237.91, and that was drawn from the business’ salary for the principal and his wife. 

13. The Tribunal noted that the principal said that it was his hope that the business would expand to generate enough profit to cover the additional wages bill as well as allowing for drawings for he and his wife. 

14. At paragraph 25, the Tribunal ended up concluding that:

    “The evidence before the Tribunal is that if this nomination is approved the applicant would face a wages bill in excess of $350,000 for the current financial year, an increase of about 250% on the wages figure shown in the accounts for the 2015 financial year.  While (the principal’s) evidence was that he hoped that the business would be able to fund this level of wage growth through increased turnover, no evidence was supplied of such an increase in turnover.”

15. Paragraph 26, which is the crucial paragraph:

    “In the circumstances, the Tribunal is not satisfied that the nominated employee would be employed on a full-time basis on the position for at least 2 years if this nomination was approved, as the business does not appear to have the financial resources to provide such employment.” 

16. It is trite to say that to find that there is a jurisdictional error this Court must be satisfied that the conclusion reached by the Tribunal was simply not open to it on the evidence.  It is whether the conclusion could have been made, rather than should have been made. 

17. What the Minister has submitted here, is that there must be no evidence before the Tribunal capable of establishing this finding (that the Tribunal was not satisfied the nominated employee would be employed on a full-time basis in the position for at least two years if the nomination were approved) for a jurisdictional error to have occurred. 

18. There are errors in the reasoning of the Tribunal.  Whether they end up being jurisdictional errors may be another matter, but the first error is in paragraph 25:

    “That the evidence before the Tribunal is that if this nomination is approved, the applicant would face a wages bill in excess of $350,000 for the current financial year…”

19. That was not the evidence that was before the Tribunal at all.  The evidence that the tribunal was referring to, came from a sort of agreement between the two; that if all of those five full-time employees and twelve part-time employees continued to be employed, that would mean that the five would have an average of $50,000.00 a year, which would mean $250,000.00 and the twelve part-time employees, however that is made up, would be $100,000.00 a year.  That was a very rough “guestimate” of what the wages bill would be like. 

20. If the Tribunal were wanting to look at what the wages bill would have been, then the evidence before the Tribunal was that all the employees had been paid up until, it would seem, close to February 2016. 

21. The Tribunal could have looked at everything that every employee had been paid up to that time and extrapolate if need be.  The Tribunal could easily have looked at what the wages bill for the 17 employees had been in the last month and then extrapolate. 

22. But in any event, whether the figure of $350,000.00 was correct, the Tribunal went to the extraordinary statement of saying that the $350,000 would only be faced by the Applicant if the nomination were approved.

23. It is an extraordinary sentence in many ways, because the evidence before the Tribunal was, even if it was not for this particular applicant, who was being paid, it would seem, about $70,000.00, that the wages bill would still be more than double what the wages bill was for the previous financial year. 

24. Therefore to say that the evidence before the Tribunal is that if this nomination is approved, the Applicant will face a wages bill in excess of $350,000 for the current financial year is not a proper summary of the evidence before the Tribunal. 

25. Instead, what it does, in using such a figure that seems to be a “guestimate” after a discussion, is that that estimate has taken on, for the Tribunal, an aura of fact. Using that as fact, it is has then made a number of other assumptions. 

26. Of course, it has not recognised that, whatever the wages bill actually is, already two-thirds of the financial year had occurred at the time of the hearing and the evidence was that the Applicant had been meeting its wages bill, had paid all of its employees and was not suffering any financial stress or hardship. 

27. Therefore, to come to the conclusion that the business does not appear to have the financial resources to provide such employment, flies in the face of the evidence that was before the Tribunal.

28. The question is whether that error actually amounts to a jurisdictional error. 

29. As I said at the beginning, it is for this Court to decide whether or not a particular finding was open on the evidence.  That is, whether any decision maker could come to that conclusion on the evidence if they were acting according to their duty.

30. On my view of the evidence, such a conclusion that the business does not appear to have the financial resources to provide such employment was not open.  Therefore, I am of the view that it was not open to the Tribunal to conclude that they were not satisfied that the nominated employee would be employed on a full time basis in the position for at least two years if there nomination were approved. 

31. Having come to that conclusion, I therefore find that there is a jurisdictional error in the way that the Tribunal has decided the matter of Jayshree Enterprises Proprietary Limited. 

32. I therefore would issue the writs and remit the matter back to the Administrative Appeals Tribunal to be dealt with according to law. 

33. That finding means that in the matter of Saurabh Vikramisnh Gohil and the Minster for Immigration and Border Protection, I must make a similar order quashing the decision of the Tribunal issuing the writs and remitting the matter back to the Administrative Appeals Tribunal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 8 November 2016