Kaur v Minister for Immigration

[2016] FCCA 1775

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1775

Catchwords:
MIGRATION – Application for judicial review – Application for employer nomination (residence) visa – Employer’s application for judicial review – dismissed under Rule 13.03 (C)(1)(c) of Rules – this Application dismissed.

Legislation:

Migration Act 1958(Cth)

Cases cited:
Minister for Immigration and Citizenship v Li [2013] HCA18
Minister for Immigration and Border Protection [2014] FCAFC 1
Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16

First Applicant: SANDEEP KAUR

Second Applicant: SUKHCHAIN SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1032 of 2015

Judgment of: Judge McGuire

Hearing date: 20 June 2016

Date of Last Submission: 20 June 2016

Delivered at: Melbourne

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the First Applicant: In person

Solicitors for the First Applicant: N/A

Counsel for the Second Applicant: No Appearance

Solicitors for the Second Applicant: N/A

Counsel for the First Respondent: Mr Aleksov

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: N/A

Solicitors for the Second Respondent: N/A

ORDERS

1. The application for judicial review be dismissed;

2. The applicants pay the first respondent’s costs $5, 094.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1032 of 2015

SANDEEP KAUR

First Applicant

SUKHCHAIN SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of the decision of the Migration Review Tribunal (as it then was) made 7 April 2015 affirming a determination of the Minister’s delegate not to grant her an Employer Nomination (Residence) (Class BW) visa (“the visa”).

2. Ms Kaur’s application has travelled with and is heard together with an application of her nominating sponsor, Indian Tandoori Restaurant Bright Proprietary Limited (the employer), being proceeding number ML9741/2015. Both matters were listed for hearing on the same day before me. The employer’s matter was called, and there was no appearance by her on behalf of the applicant, and consequently that application was dismissed for default of appearance pursuant to the Federal Circuit Court Rules.

3. Ms Kaur appears unrepresented given that solicitors for both she and her employer withdrew some time ago.  Ms Kaur also appears by telephone given a medical condition.  She has not provided written submissions and offered no oral submissions.  She relied on the material before the Court in the Court books of both matters and, given the inherent connection between the applications, it was suggested by counsel for the first respondent that she could rely on the application of Indian Tandoori Bright Proprietary Limited which sets out four grounds of complaint with the Tribunal’s decision.

4. Ms Kaur’s application sets out independently one ground of complaint.

5. Ms Kaur’s visa required an approved nomination in respect of her position of employment with the nominating sponsor being, in this case, the employer.

6. On 6 March 2015 the Tribunal refused to approve the employer’s nomination.  It followed, therefore, that Ms Kaur could not satisfy the visa criteria.  Consequently, Ms Kaur’s application relies on the success of the employer’s application for judicial review which, of course, was not prosecuted before this Court although, again, some indulgence was granted Ms Kaur to argue the matters complained of by her employer.

7. The application or nomination was made pursuant to Reg 5.19 of the Migration Regulations (1994), and specifically as to Reg 5.19(4) being a Regional Sponsored Migration nomination stream effectively allowing employment in regional areas but upon the satisfaction of certain requirements.

8. The employer conducted a restaurant in Bright in country Victoria.  The nominated position was as “cook”.  The application and nomination were made on 10 May 2012.

9. The criteria to be satisfied were:

   (i)That Ms Kaur would be provided with full‑time employment in a regional Australia location for at least two years (Reg 5.19(4)(b)(i));

   (ii)Ms Kaur’s employment must be in accordance with the awards and standards under relevant Australian legislation.

The Tribunal’s Decision

1. The Tribunal firstly noted concerns as to the viability of the employer’s business for the next two years, noting also that there had been a recent sale of the business and hence a new director.  At [26] of its reasons, the Tribunal said:

   In this context, the Tribunal noted that there was no financial information before it concerning the viability of the applicant’s business, as currently operated by the new director.  A financial statement and a company tax return for 2013 were provided, however these are of limited weight because they are neither audited, signed nor complete.  In addition they reflect the figures for the applicant when it was a larger concern, operating more than one restaurant.  Therefore even if they could be confidently relied upon, they are of limited value in assessing, or forming a view, that the appointment by this business will provide the employee/nominee with full-time employment for at least two years.  Similarly, the applicant’s Profit and Loss statement for 2013/14 (also unaudited and unsigned) relates to the operation of two restaurants (Howlong and Bright).

   …The applicant claims to have employed the nominee part-time since June 2012 and full-time since 2014.  Even taking into account the nominee’s evidence that she had not worked full-time in 2013, the claimed wages for 2013/14 are incompatible with the current director’s evidence that he employs two full-time cooks, two casual front‑of‑house staff and one casual kitchen hand, and is open seven days per week from “5.30 pm till late”.  For the above reasons, and having taken into account all relevant submissions and evidence, the Tribunal doubts the applicability and the reliability of the financial records provided and considers them of little evidential weight in assessing whether the nominated appointment will be full‑time and available to the employee full‑time for at least two years.

2. At [27], the Tribunal noted that solicitors acting for the new director on the purchase of the Bright business advised that it was essential to engage an accountant or financial adviser who should be provided with the business trading figures, bank statements, etc and be in a position to advise in relation to the profitability and viability of the business.  This advice was not taken up.

3. The Tribunal allowed the employer time to provide additional financial information.  This elicited a letter from Income Tax Professionals (ITP) in Wagga Wagga which was superficially supportive of the viability of the business.  However, the Tribunal, on closer scrutiny, was not assisted by this letter in that it referred to former owners who operated several restaurants under the same masthead and did not, in fact, refer to this employer of the sole enterprise at Bright.

4. Similarly, the Tribunal was not assisted by the employer’s business plan in that it provided no detailed analysis and was largely speculative.

5. The Tribunal also noted at [30] a discrepancy in the employer’s records of Ms Kaur’s wages and her own pay slips.  It is clear now that a simple explanation was available, being a difference between gross and net pay.

6. The Tribunal, as is its role, considered and weighed the evidence and submissions and at [31] found that it was:

   … not satisfied that there is sufficient probative, reliable material before it to demonstrate that the appointment will provide the employee with full‑time employment for at least two years in regional Australia (r.5.19(4)(b)(i)).

7. Secondly, the Tribunal considered the employment contract between Ms Kaur and the employer pursuant to the requirements of Reg 19(4)(d).  That contract was dated 27 February 2012.

8. The Tribunal noted that the employment contract provided for a flat rate of pay for hours worked despite Ms Kaur’s hours and work being subject to penalty rates and other allowances.  The evidence of the employer and Ms Kaur at the hearing confirmed this to be the case. 

9. The Tribunal was satisfied that the Restaurant Industry Award 2010 was the relevant award and at [44] concluded that it was not satisfied that Ms Kaur was to be employed or engaged in Australia in accordance with the standards for wages and conditions provided in the award and hence the requirements of Reg 5.19(4)(d) were not met.

10. Consequently, the Tribunal found that the employer failed to satisfy two separate requirements of Reg 5.19.

Application to this Court – Indian Tandoori Restaurant Bright Proprietary Limited

Ground 1

The decision of the Second Respondent dated 6 March 2015 is affected by jurisdictional error because the Tribunal misunderstood or misapplied the relevant law.

Particulars:

a)Throughout the decision the Tribunal repeatedly refers to the Director of “Indian Tandoori Restaurant Bright Pty Ltd” as “the Applicant” (see for example at [20], [28], [29] and [30]).

b)The Tribunal has clearly used the word “applicant” to refer to the current Director or Owner of the applicant business.

c)The Tribunal has failed to understand that the applicant was the business entity and not the individual Director or Owner of the business.

d)The Tribunal has misunderstood or misapplied the relevant law by applying the provisions of r.5.19(4) to the applicant’s owner, rather than the applicant business itself.

1. Whilst it is true that a company constitutes a separate “legal person”, any conflation of the company and its director here is not material to the Tribunal’s decision.  It is clear from [5] of its reasons that the Tribunal did not misunderstand the distinction and proceeded properly with “…the applicant, represented by its sole director/owner, appeared before the Tribunal on 3 February 2015 to give evidence and present arguments”.

2. The interests of the director and the company are not contrary.  The director appeared to give evidence on behalf of the company.  He is the sole director of the company.

3. I find no merit in this ground of complaint.

Ground 2

The decision of the Second Respondent dated 6 March 2015 is affected by jurisdictional error because the Tribunal misunderstood the Applicant’s evidence or claims.

Particulars:

a)The Applicant submitted evidence (following the Tribunal hearing) regarding the nominee’s pay.

b)At [30] the Tribunal found that the evidence of weekly pay provided by the Applicant was inconsistent with the nominee’s pay slips.

c)The Applicant’s evidence regarding the nominee’s pay was at all times consistent and the Tribunal erred by referring to the applicant’s net wage at $749.99.  The pay slips submitted by the Applicant clearly indicate her net wage was $662.

1. The Tribunal’s reasons at [30] state:

   The transactions demonstrate business purchases and POS credits, and, as highlighted by the applicant, three amounts of $662 of weekly “pay”.  This is inconsistent with the nominee’s pay slips provided for the same period (see paragraph 35) and no other wage or similar payments are evident.  In this context the Tribunal considers they provide little meaningful evidence supporting the applicant’s claims in this regard.

2. The first respondent concedes that there was, in fact, no inconsistency with the discrepancy being explained as between gross and net pay.  Nevertheless, and significantly, the Tribunal considers this “inconsistency” within the context of “…they provide little meaningful evidence supporting the applicant’s claims in this regard”.  If, indeed, this is an error in factual finding by the Tribunal then I am of the view that it has no bearing on the ultimate decision which was that the financial information provided by the applicant and Ms Kaur did not satisfy the Tribunal that the business was a viable concern which could employ the applicant for the forthcoming two years. 

3. Consequently, I find no merit in this ground of complaint.

Ground 3

The decision of the Second Respondent dated 6 March 2015 is affected by jurisdictional error because the Tribunal misunderstood or misapplied the relevant law or took into account irrelevant considerations.

Particulars:

a)Regulation 5.19(4)(d) of the Migration Regulations 1994 (“Regulations”) requires a decision‑maker to determine whether the employee will be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards.

b)In relation to r.5.19(4)(d) the Tribunal relied on the previous circumstances of the nominee’s employment to find that her employment would not be in accordance with the relevant award and did not therefore meet the standards for wages and working conditions provided for under the relevant legislation.

c)Regulation 5.19(4)(d) requires the decision‑maker to consider whether the employee “is to be employed” in accordance with the relevant standards.

d)The Tribunal erred by limiting itself to a consideration of the nominee’s employment history without having proper regard to the employment contract and terms of the nominee’s future employment.

e)The Tribunal failed to properly consider whether the nominee’s employment contract met the requirements of r.5.19(4)(d).

f)The Tribunal failed to put the applicant on notice that the nominee’s previous employment record would be one of the “issues under review” in relation to r.5.19(4).

1. I am not persuaded by this argument where it is clear at [35] of the reasons that it was the applicant (director) who supplied the employment contract of 27 February 2012.  There is no evidence of any later contract being put into evidence.  At [36], the Tribunal refers to evidence as to the employee’s current work hours and at [38] the applicant addresses concerns of the Tribunal as to the employee’s current work days and hours.

2. It is not for the Tribunal to prosecute an applicant’s case and the Tribunal engages and considers evidence that is provided to it.

3. Further, under this ground, the applicant complains that the Tribunal failed to put the applicant on notice that the nominee’s previous employment record would be an “issue under review”.  Again, however, the employer itself adduced evidence of Ms Kaur’s previous employment and employment contract.  Ms Kaur gave evidence as to her previous employment.  This is not a case of information coming to the notice of the Tribunal which requires comment or response.

4. I find no merit in this ground of complaint.

Ground 4

The decision of the Second Respondent dated 6 March 2015 is affected by jurisdictional error because the Tribunal made a finding that was unreasonable, illogical, irrational or for which there was no evidence.

Particulars:

a)At [26] of the decision, the Tribunal noted that “there was no financial information before it concerning the viability of the Applicant’s business”.

b)This finding was unreasonable, illogical or irrational, given the financial information submitted by the Applicant, which was also referred to later in the same paragraph.

c)At [29], the Tribunal found that the letter from ITP Tax Professionals which was provided by the Applicant in support of his application did “not relate to the current Applicant or the business as it currently operates”.

d)The “Applicant” for the nomination application was Indian Tandoori Restaurant Bright Pty Ltd, not the business’s (sic) Director.

e)The Tribunal’s conclusion that the letter did not relate to the current application is illogical or irrational or is made without evidence, given the letter specifically refers to the Applicant business.

f)The letter was dated 19 February 2015 and there was no basis for which the Tribunal could reasonably, rationally or logically conclude that the information contained in the letter did not relate to the applicant business.

1. The High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68] per Hayne Kiefel and Bell JJ comment in respect of reasonableness and illogicality of administrative decision‑making thus:

   However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point.  The legal standard of unreasonableness should not be considered as limited to what is, in effect, an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.  This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may, in some cases, be objectively drawn even where a particular error in reasoning cannot be identified.  This is recognised by the principles governing the review of a judicial discretion which, it may be observed, was settled in Australia by House v The King. 

2. The Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [48] observed:

   As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be factor dependent.  That is not to diminish the importance of the supervising Court maintaining an approach which does not involve the substitution of its own judgment for that of the decision‑maker.  Rather, it is to recognise that any analysis which involves concepts such as intelligible justification must involve scrutiny of the factual circumstances in which the power comes to be exercised.

3. And as the High Court in Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ said:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to judicial jurisdictional error must mean that the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one which no rational or logical decision‑maker could arrive at on the same evidence…

   What was involved here was an issue of jurisdictional fact upon which different minds might read different conclusions.  The complaint of illogicality or irrationality was said to lie on the process of reasoning, but the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt a different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning, and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

4. The Tribunal had before it the letter of 19 February 2015 from ITP. The Tribunal deals with this evidence at [28]-[29] of its reasons. The context and content of the letter are actually engaged and considerations of weight are made [29]. In applying weight, the Tribunal noted that the letter related to a previous owner who operated a number of outlets. The Tribunal also noted no specific reference to the Bright restaurant. The Tribunal determined that the letter did not relate to the current applicant or the Bright restaurant business. The reasoning for that determination is apparent in [29]. It is not for this Court to agree or disagree with that reasoning or to substitute its own findings. To the contrary, the logicality of the consideration is apparent in the Tribunal’s reasons at [29] and these are factors which might reasonably impact on the allocation of weight to evidence.

1. I find no merit in this ground of complaint.

Conclusion

1. Consequently, I find no merit to any of the grounds of complaint in the application for judicial review made by Indian Tandoori Bright Restaurant Proprietary Limited.

Ms Kaur’s Application to this Court

1. As Ms Kaur’s application is wholly dependent upon the success of her employer’s application, her own application must also inevitably fail and it is dismissed accordingly.

2. I order that the application for judicial review be dismissed and there be an order that the applicants pay the first respondent’s costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 22 July 2016