JF Plastering and Construction Pty Ltd v Minister for Immigration
[2016] FCCA 2903
•7 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JF PLASTERING AND CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2903 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – refusal of an employer nomination – insufficient evidence of meeting training benchmark requirements – whether the Tribunal asked itself the right question, breached s.425 of the Migration Act 1958 (Cth), was biased or denied procedural fairness considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Cases cited: Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration v WZARH [2015] HCA 40; (2015) 90 ALJR 25 Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592 |
| Applicant: | JF PLASTERING AND CONSTRUCTION PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1238 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Sivaguru of Parramatta Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 6 May 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1238 of 2015
| JF PLASTERING AND CONSTRUCTION PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (JF Plastering) applied for approval of a nomination of a position for the purpose of sponsoring an employee. A delegate of the Minister (delegate) refused the application and JF Plastering sought review before the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision under review to refuse the nomination and JF Plastering now seeks judicial review of that decision. The following statement of background facts is derived from the submissions of the parties.
JF Plastering is in the building, construction and plastering business. It has been in business for over 30 years.
JF Plastering had previously sponsored a worker under the subclass 457 visa programme in January 2010 and was successful in that nomination.
On 20 November 2013 JF Plastering applied for its second approval of a nomination of a permanent appointment within the Temporary Residence Transition nomination stream[1]. The position nominated by JF Plastering for approval was “Specialist Solid Plasterer and concrete renderer”[2]. The person identified in the application as the nominated person for the position was Carlos Alberto Moriera da Mota (visa applicant)[3]. The visa applicant made a separate application for a visa in connection with the nomination application the subject of the present proceedings.
[1] Relevant Documents (RD) 1-48
[2] RD 4
[3] RD 6
The requirements for the approval of JF Plastering’s nomination of a permanent appointment are set out in regulation 5.19[4] of the Migration Regulations 1994 (Cth) (Regulations). It was a requirement for the approval that:
[4] set out relevantly as an attachment to the Tribunal’s decision record at RD 205
(f) either:
(i) the nominator:
(A) fulfilled any commitment the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i).
Relevantly for the purposes of regulation 5.19(3)(f)(i)(A), the “period of the nominator’s most recent approval as a standard business sponsor” was the period 1 February 2010 to 1 February 2013. On 1 February 2010 JF Plastering was approved as a standard business sponsor.
On 8 April 2014 a delegate of the Minister refused to approve JF Plastering’s nomination for a permanent appointment on the basis that the nomination did not satisfy the requirements of regulation 5.19(3) or 5.19(4)[5]. JF Plastering’s nomination was refused by the Minister’s Department on grounds that it had not provided sufficient evidence to show that it had fulfilled the training requirement. On 27 April 2014 JF Plastering applied for review of the delegate’s decision to the Tribunal[6]. The Tribunal invited the director of JF Plastering, Mr John Gamas, to attend a hearing scheduled on 24 April 2015[7], which Mr Gamas attended accompanied by his migration agent[8].
[5] RD 83-89
[6] RD 90-100
[7] RD 106-107
[8] RD 190
In its invitation to hearing, the Tribunal invited JF Plastering to provide additional information/documentation to it, including in relation to the requirements under and/or regulation 5.19(3). The Tribunal indicated in its letter that the relevant training benchmarks (Benchmark) were outlined in an instrument IMMI 09/107, and a copy of the Benchmark was attached to the letter[9]. On 19 April 2015 JF Plastering’s representative provided documents to the Tribunal for its consideration[10].
[9] RD 114-115
[10] RD 120-186
During its hearing on 24 April 2015 JF Plastering requested the Tribunal to allow additional time to provide further documents. Following the hearing, by email confirmation sent on 26 April 2015, JF Plastering’s representative confirmed that an extension of time to provide documents was “no longer required”[11].
[11] RD 195
Tribunal decision
On 28 April 2015 the Tribunal affirmed the decision under review[12].
[12] RD 199-208
The Tribunal identified the overall issue on the review to be whether JF Plastering met the training requirements under regulation 5.19(3)[13]. At [11][14] the Tribunal observed that JF Plastering had been last approved as a standard business sponsor on 1 February 2010. At [13][15] the Tribunal extracted the relevant training requirements under the Benchmark. In short, it was a requirement under the Benchmark that the nominating entity have spent the equivalent of at least two per cent of the payroll of the business in payments allocated to an industry training fund, and a commitment to maintain expenditure in each fiscal year to that level for the term of approval of a sponsor, or to have spent the equivalent of at least one per cent of the payroll of the business in the provision of training to employees of the business, and a commitment to maintain expenditure in each fiscal year to that level for the term of approval as a sponsor. The Tribunal focussed primarily on the latter (year on year) requirement arising under the Benchmark as the evidence of JF Plastering was that no relevant payments had been made by the company to an industry training fund[16].
[13] [9]; RD 201
[14] RD 201
[15] RD 201
[16] [15]; RD 202
The Tribunal summarised at [16]-[17][17] the evidence submitted to it on behalf of JF Plastering in support of its nomination for approval. The Tribunal observed that the evidence of JF Plastering was that Mr Gamas had personally provided training to his staff over the years he had operated the business[18] and that he did not have any apprentices or formal trainees during the relevant period[19].
[17] RD 202
[18] [17]; RD 202
[19] [19]; RD 202
The Tribunal concluded, on the basis of the documentary evidence submitted to it on behalf of JF Plastering, and the oral evidence of Mr Gamas, that it was not satisfied that the “on-the-job” training expenditure JF Plastering claimed to have incurred was “allowable training expenditure” having regard to the Benchmark. At [22][20] the Tribunal found that the financial records produced by JF Plastering showed items of expenditure on staff training or salaries for in-house training, which did not meet the Benchmark. The Tribunal noted that, even if it had accepted the amounts claimed were allowable expenditure under the Benchmark, the Benchmark was not met for the 2012-13 financial year as total staff training expenditure identified in JF Plastering’s financial records was only $389, well less than one per cent of the salaries that year[21].
[20] RD 203
[21] see also RD 141
The Tribunal found further that the training documents provided by JF Plastering appeared to relate to quite different types of programs and it was not clear which, if any, programs JF Plastering claimed actually to have followed[22]. There was no evidence that any of the programs demonstrated the outcomes prescribed in the Benchmark[23]. The Tribunal was not satisfied that a licenced supervisor for JF Plastering in 2011 was a “qualified trainer” for the purposes of the Benchmark and there was no evidence of the program the person claimed to have followed[24].
[22] [23]; RD 203
[23] see RD 208
[24] [24]; RD 203
The Tribunal found that the amounts spent by JF Plastering on training over the period of February 2010 to February 2013 were not allowable expenditure within the terms of the relevant legislative instrument, and that it was not reasonable to disregard the requirements of regulation 5.19(3)(f)(i)[25].
[25] [28]-[29]; RD 204
The present proceedings
JF Plastering relies upon its application filed on 6 May 2015. That application contains four grounds of review:
1. The Tribunal failed to ask itself a question that it was required to ask in the exercise of its jurisdiction.
Particulars:
(i) The Tribunal failed to take into consideration that the Applicant had compelling case and had complied with the Training Benchmark B provisions.
(ii) The Tribunal, not being certain that its finding was in fact correct was required to ask itself and consider whether its conclusion in that respect was mistaken.
2. The Tribunal committed jurisdiction error by breaching the provisions of s.425(1) Migration Act 1958
Particulars
(i) The Tribunal erred in law when it failed to afford an opportunity to Mr John Gamas (the Employer Nominator) to address the Training Benchmark B amount of $389 at the Hearing. This finding by the tribunal Member has surprisingly appeared in her decision making process.
3. There is a reasonable apprehension of bias
Particulars:
(i) The Tribunal’s decision did not accord the applicant an opportunity to adequately present its case. The Tribunal considered noting the Applicant could have said could have changed its mind.
(ii) The Tribunal prejudged the Applicant’s decision in so stating that it was not convinced with the Applicant’s submissions in support of its MRT review.
4. There is a Denial of Natural Justice and Procedural fairness.
Particulars
(I) The Tribunal Member erred in law when she failed to afford an opportunity to Mr John Gamas (the Applicant Employer/Nominator) to address the Training Benchmark B amount of $389 at the Hearing. This finding by the tribunal Member has surprisingly appeared in her decision making process.
This is a denial of natural justice and procedural fairness and greatly prejudiced the Applicant.
(II) The Tribunal erred in fact in that it did not consider entire historical immigration history of the Nominator (JF PLASTERING) and the Visa Applicant who held a 457 Visa since 2008 I
(errors in original)
In addition to the book of relevant documents filed on 25 June 2015, I received as evidence the affidavit of Mr Gamas made on 11 October 2016, to which is annexed the transcript of the hearing conducted by the Tribunal on 24 April 2015.
JF Plastering and the Minister both made written submissions in accordance with procedural orders made by me on 28 May 2015 as well as oral submissions at the trial of the matter on 10 November 2016.
Consideration
The application raises four grounds of review:
a)first, the Tribunal failed to ask itself a question it was required to ask;
b)secondly, a breach of s.425 of the Migration Act 1958 (Cth) (Migration Act), for failing to give Mr Gamas an opportunity to address “the Training Benchmark B amount of $389”;
c)thirdly, apprehended bias by the Tribunal.
d)fourthly, a denial of procedural fairness for failing to give Mr Gamas an opportunity to address “the Training Benchmark B amount of $389”, and in failing to consider the “entire historical immigration history” of JF Plastering and the visa applicant.
First ground
In its written submissions, JF Plastering asserts that the Tribunal “did not take into consideration the applicant’s representative’s letter, detailed supporting evidence that fulfilled the training benchmark requirements and the relevant training commitment the applicant had in support of his 457 nomination”. I accept the Minister’s submissions on this ground.
It is not clear how the submission promotes the ground of review espoused by JF Plastering. In any event, it is clear from the decision record that the Tribunal gave consideration to JF Plastering’s documents. JF Plastering does not identify what evidence in particular the Tribunal is said to have failed to consider. The submission rather is a contention of disagreement with the Tribunal’s assessment of the documents. However it was a matter for the Tribunal to assess and weigh the evidence and documents before it, and for the Court to be invited to engage in its own assessment of the evidence amounts to a request for impermissible merits review[26].
[26] Minister for Immigration v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164, [32]-[36]
The additional submission that the Tribunal “not being certain that its finding was in fact correct” needed to ask itself whether its conclusion was mistaken, appears to be derived from the High Court’s judgment in Minister for Immigration v Guo[27]. However, there is no requirement for the Tribunal to second-guess itself in relation to its fact-finding[28]. Rather, the Tribunal is required to consider whether it is satisfied that requirements for the grant of a visa have been met, or not. In any event, there was no uncertainty expressed by the Tribunal in its consideration of the relevant findings of fact.
[27] (1997) 191 CLR 559
[28] Minister for Immigration v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, [140]
Second and fourth grounds
The second and fourth grounds may be addressed together.
JF Plastering contends in each of the second and fourth grounds that the Tribunal did not give Mr Gamas the opportunity at the hearing to explain why its training expenditure for the year ended 30 June 2012 was only $389.
I accept the Minister’s submissions concerning these grounds. Section 425 of the Migration Act requires, among other things, that the Tribunal invite JF Plastering to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The section has been interpreted to require a review applicant to be given not just an invitation, but a meaningful hearing[29]. The pertinent question is what were the issues arising in relation to the decision under review[30].
[29] Minister for Immigration v MZAIV [2016] FCA 251, [63]
[30] SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592, [33]
The essential issue arising on the review was whether JF Plastering met the requirements of regulation 5.19. More particularly, as raised by the Tribunal in its invitation to hearing[31] and in its questioning of Mr Gamas at the hearing, the issue was whether JF Plastering met the training requirements under the Benchmark, for the purposes of regulation 5.19(3). The fact that the financial records produced by JF Plastering showed a training spend of $389 in 2011-12 did not give rise to an issue that needed to be explicitly raised with Mr Gamas. Indeed, at [22] of the decision record, the Tribunal’s reference to the 2011-12 training spend was a mere observation of what the financial records showed, and was expressed in terms of being an alternative basis upon which the decision under review could have been affirmed. The actual reason for affirming the decision under review was that JF Plastering had not made any expenditure during the relevant period that met the requirements of regulation 5.19(3). Further, contrary to the submission of JF Plastering, there was no requirement under s.425 that JF Plastering be given an opportunity to explain its training expenditure in a particular financial year.
[31] RD 106-107
In its submissions supporting the fourth ground of the application, additionally to what is put in support of the second ground, JF Plastering says that the Tribunal “erred in fact” in not considering the “entire historical immigration history” of JF Plastering and says that the company had successfully nominated another employee for a subclass 457 visa. However, leaving aside that it is not for the Court to determine questions of fact, I do not accept that JF Plastering’s prior immigration history had, or could have had, any bearing on the question of whether it met the requirements of regulation 5.19(3)(f) in the case before the Tribunal. There was no denial of procedural fairness for this reason.
Third ground
JF Plastering’s contention that there was a reasonable apprehension of bias is explained on the basis that the Tribunal should have made enquiries regarding the claim of the lack of any external training organisation for solid plasterers. I accept the Minister’s submissions, as follows: first, there is no general duty on the Tribunal to make enquiries[32]. The very limited circumstances where a failure of the Tribunal to make an obvious inquiry might result in jurisdictional error do not exist in the present case[33]. Whether there existed organisations that provided training of the kind that may have been of benefit to JF Plastering was not a question that went to the outcome of the review. The Tribunal found, rather, that there was no evidence that JF Plastering had made any allowable expenditure on appropriate training as required under the Regulations and the Benchmark.
[32] Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
[33] see SZIAI, [25]
Secondly, and, in any event, such an argument does not suggest that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided[34]. Nor would the questioning of Mr Gamas by the Tribunal[35], create such an apprehension.
[34] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
[35] as set out in the transcript at page 15, lines 23-31 and page 16, lines 1-28
Additional ground
JF Plastering’s written and oral submissions address what is potentially a fifth ground of the application (which was not included in the application), in which it is asserted that the applicant had a legitimate expectation of a fair hearing at the Tribunal. Whether this is intended by JF Plastering to be a stand-alone ground, or as a corollary of the denial of procedural fairness ground, and as discussed during oral submissions, it has no merit.
First, JF Plastering contends that it was denied the opportunity to provide evidence and submissions on various matters (detailed in its written submissions). However, JF Plastering was not denied the opportunity of presenting its case. In short, whilst the Tribunal indicated at the hearings its preparedness to consider whether to permit JF Plastering to put on a post-hearing submission[36], JF Plastering confirmed subsequently that it would not pursue this opportunity[37]. Secondly, there was no issue arising on the review on the question of whether JF Plastering had met its superannuation obligations[38].
[36] see transcript at pages 20-23
[37] RD 195
[38] see transcript at page 19
Thirdly, and more fundamentally, the legitimate expectation of a person does not dictate whether procedural fairness is to be accorded to the person, or for determining the content of procedural fairness that might be owed[39]. Indeed, as discussed during oral submissions, the notion of legitimate expectations in this context is apt to mislead.
[39] Minister for Immigration v WZARH [2015] HCA 40; (2015) 90 ALJR 25, [30]; Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636, 658
Conclusion
JF Plastering has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 7 December 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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