Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 223
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 223
File numbers: PEG 28 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 1 April 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – nomination of an occupation for a Temporary Skill Shortage (class GK) (subclass 482) visa – whether constructive failure to exercise jurisdiction or irrelevant consideration taken into account by reason of incorrect understanding of meaning of “adverse information” and “contravention” of a law of the Commonwealth – whether obligation to pay superannuation – whether failure to pay superannuation a contravention of a law of the Commonwealth – whether constructive failure to exercise jurisdiction by failure to consider whether adverse information relevant to suitability as nominator of the nominee for visa – whether finding as to the alleged failure to comply with Commonwealth superannuation guarantee illogical – whether constructive failure to exercise jurisdiction by asking the wrong question as to favourable employment conditions and entitlements – whether test as to less favourable employment conditions directed to past or future conditions – whether jurisdictional error – writs issued
SUPERANNUATION – whether obligation to pay superannuation – whether failure to pay superannuation a contravention of a law of the Commonwealth
EMPLOYMENT – whether test as to less favourable employment conditions directed to past or future conditions
WORDS AND PHRASES – “adverse information” – “contravened” – “contravention” – “contravened a law of the of the Commonwealth, a State or a Territory” – “will apply”
Legislation: Acts Interpretation Act 1901 (Cth) s 2B
Crimes Act 1914 (Cth) ss 4AA, 90
Criminal Code 1995 (Cth) s 309.12
Fair Work Act 2009 (Cth)
Migration Act 1958 (Cth) Div 5, Pt 5, ss 140GB, 476
Superannuation Guarantee (Administration) Act 1992 (Cth) ss 22, 23
Superannuation Guarantee Charge Act 1992 (Cth)
Migration Regulations 1994 (Cth) regs 1.13, 1.13A, 2.72, 5.19
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595
Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; (2019) 270 FCR 359; (2019) 288 IR 145; (2019) 368 ALR 643
Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198; (1980) 32 ALR 581
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
Deputy Commissioner of Taxation v Rathner [2004] VSC 352; (2004) 57 ATR 185; (2004) 211 ALR 316; (2004) 50 ACSR 533; (2004) 22 ACLC 1363
Graham v Minister for Immigration & Border Protection [2017] HCA 33; (2017) 263 CLR 1; (2017) 91 ALJR 890; (2017) 347 ALR 350
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; (2017) 264 A Crim R 225; (2017) 92 ALJR 52; (2017) 344 ALR 187
Matthews v Hargreaves(No 4) [2012] FMCA 4; (2013) 274 FLR 138
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81; (2017) 351 ALR 153
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84
Parker v Comptroller‐General of Customs [2009] HCA 7; (2009) 83 ALJR 494; (2009) 71 ATR 23; (2009) 252 ALR 619
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1; (2018) 92 ALJR 248; (2018) 351 ALR 225; (2018) 160 ALD 385
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Singh v Minister for Immigration & Anor [2018] FCCA 3423
Sri Guru Gobind Singh Transport Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 118
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors [1943] HCA 19; (1943) 67 CLR 335; [1943] ALR 287; (1943) 17 ALJ 188
Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029
Wei v Minister for Immigration & Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226
YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395; (1964) 37 ALJR 431; [1964] ALR 667
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 4 May 2021 Date of hearing: 4 May 2021 Place: Perth Counsel for the Applicants: Mr M. Crowley Solicitor for the Applicants: William Gerard Legal Pty Ltd Counsel for the First Respondent: Mr G. Johnson Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 28 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER KEAY
First Applicant
DIANE KEAY
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 24 December 2019.
2.A writ of mandamus issue requiring the second respondent to re-hear the application made by the applicants on 16 April 2019 for approval of a nomination under s 140GB of the Migration Act 1958 (Cth) and reg 2.73 of the Migration Regulations 1994 (Cth) of an occupation for a temporary skill shortage and determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 24 January 2020 the applicants (“Mr Keay Snr” and “Mrs Keay” respectively, collectively “Mr and Mrs Keay”) filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal made on 24 December 2019 (“Tribunal Decision” and “Tribunal” respectively”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant an application for approval of a nomination of an occupation for a temporary skill shortage (“Nomination”).
On 20 April 2021 the Court made orders, by consent, that Mr and Mrs Keay be given leave to file and rely on an amended Judicial Review Application (“Amended Judicial Review Application”). The Amended Judicial Review Application contains five grounds of review and are set out below at [7] (ground 1A), [29] (ground 2A), [37] (ground 3A), [57] (ground 4A) and [67] (ground 5A).
At hearing the Court Book (“CB”) was marked as Exhibit 1.
BACKGROUND PRIOR TO THE TRIBUNAL DECISION
The relevant background prior to the Tribunal Decision is as follows:
(a)Mr and Mrs Keay are partners in C Keay & D Keay, a business trading as C & D Keay (“C & D Keay”): CB 64;
(b)the nominated person (“Mr Keay Jr”) is a citizen of the United Kingdom, whose partner and child are listed as migrating family members included in the Nomination: CB 11-13;
(c)on 16 April 2019 C & D Keay applied for the Nomination: CB 1-56;
(d)on 3 May 2019 the Delegate refused the Nomination, on the basis that the Delegate was not satisfied C & D Keay met the requirements of reg 2.72(10) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) and was, therefore, not satisfied that C & D Keay met the prescribed criteria for approval of a nomination under the Temporary Skill Shortage (class GK) (subclass 482) visa program: CB 59-63;
(e)on 20 May 2019 C & D Keay applied to the Tribunal for review of the Delegate’s Decision to refuse the Nomination: CB 64-65;
(f)on 7 July 2019 C & D Keay provided the Tribunal with additional material and supporting statements: CB 72-91;
(g)on 24 July 2019 C & D Keay requested priority processing on the basis of the material provided on 7 July 2019: CB 92. On 25 July 2019, the Tribunal granted priority processing: CB 96;
(h)on 19 November 2019 the Tribunal invited C & D Keay to attend a hearing before the Tribunal (“Tribunal Hearing”): CB 99;
(i)on 3 December 2019 C & D Keay provided the Tribunal with additional supporting materials, including submissions by Mr Keay Snr on behalf of C & D Keay: CB 106-208;
(j)on 9 December 2019 representatives of C & D Keay (including a migration agent) attended the Tribunal Hearing: CB 209-214;
(k)on 9 December 2019 C & D Keay wrote to the Tribunal to provide further documentation and submissions, addressing concerns raised by the Tribunal during the Tribunal Hearing: CB 215-224; and
(l)on 24 December 2019 the Tribunal Decision affirmed the Delegate’s Decision: CB 228-237.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal made findings that:
(a)the required superannuation contributions of 9.5 % of C & D Keay's payment of salaries and wages were short paid in 2017 and 2018, and also late paid in 2018: CB 233 at [30]. On this basis, the Tribunal was not satisfied that C & D Keay had substantially complied with its superannuation contribution obligations under what the Tribunal described as “the (Superannuation Guarantee) laws of the Commonwealth”: CB 233 at [30], in respect of its employees in Western Australia: CB 233 at [30];
(b)the “employment conditions/entitlements (other than earnings)” that applied to the nominee, Mr Keay Jnr, were less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal found that in the circumstances it was not reasonable, on balance, to disregard this information for the purposes of reg 2.72(18)(a) of the Migration Regulations: CB 233 at [31]; and
(c)the requirements of reg 2.72(4) and (18) of the Migration Regulations were not met: CB 233 at [32].
The Tribunal accordingly affirmed the Delegate’s Decision to refuse C & D Keay the Nomination: CB 233 at [34].
GROUNDS OF THE AMENDED JUDICIAL REVIEW APPLICATION
Ground 1A
Ground 1A is as follows:
1.A The decision of the Second Respondent (Tribunal) was vitiated by a constructive failure to exercise jurisdiction, or by taking into account an irrelevant consideration, in that the Tribunal’s lack of satisfaction at [30] that there was not any ‘adverse information’ under Regulation 2.72(4)(a) of the Migration Regulations 1994 was informed by an incorrect understanding of an employer’s legal obligations under the Superannuation Guarantee (Administration) Act 1992 (Cth).
Particulars
i.A fundamental aspect of the Tribunal’s reasons for affirming the decision under review was its lack of satisfaction at [30] that the ‘applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth [sic]’.
ii.The Superannuation Guarantee (Administration) Act 1992 (Cth) does not impose any positive obligation on an employer to in fact make a superannuation contribution in respect of any employee (not [sic – nor] can it be ‘late’). Rather, the superannuation scheme provides for the imposition of the ’superannuation guarantee charge’ on an employer and for the liability for that charge to be reduced to the extent that the employer makes contributions at the defined rate.
iii.There was no ‘adverse information’ within the meaning of Regulation 1.13A(2)(a) of the Regulations in the form of any ‘contravention of a law of the Commonwealth’ for the purposes of Regulation 2.72(4).
C & D Keay’s submissions
C & D Keay’s submissions pertaining to ground 1A are as follows:
(a)in forming its state of satisfaction about whether the criteria for the Nomination had been satisfied, the Tribunal was required to proceed on a correct understanding of the law: Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84 at [48] per Derrington J citing Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 at [30] per Colvin J, which in turn cited Wei v Minister for Immigration & Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226 at [33] per Gageler and Keane JJ and Graham v Minister for Immigration & Border Protection [2017] HCA 33; (2017) 263 CLR 1; (2017) 91 ALJR 890; (2017) 347 ALR 350 (“Graham”) at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, and was required to correctly apply the law: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1; (2018) 92 ALJR 248; (2018) 351 ALR 225; (2018) 160 ALD 385, CLR at [75] per Gageler J, citing Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 at [78] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ;
(b)in Deputy Commissioner of Taxation v Rathner [2004] VSC 352; (2004) 57 ATR 185; (2004) 211 ALR 316; (2004) 50 ACSR 533; (2004) 22 ACLC 1363 (“Rathner”) at [7] per Mandie J the Victorian Supreme Court found that the Superannuation Guarantee (Administration) Act 1992 (Cth) (“SG Administration Act”), or as the Tribunal expressed it at CB 233 at [31] the “(Superannuation Guarantee) laws of the Commonwealth”:
does not impose any obligation on an employer to make a superannuation contribution in respect of any employee. Rather, the scheme provides for the imposition of the [‘] superannuation guarantee charge[‘] [SGC] on an employer and for the liability for that charge to be reduced to the extent that the employer makes contributions at the defined rate either within the period or no later than 28 days thereafter.
(c)in this regard, the SG Administration Act has not been relevantly amended since Rathner, nor was it relevantly amended between 1 July 2016 and 30 June 2018, the period in which the Tribunal found that C & D Keay had not complied with the “(Superannuation Guarantee) laws of the Commonwealth”;
(d)the Tribunal’s finding that C & D Keay had not complied with the “(Superannuation Guarantee) laws of the Commonwealth”: CB 233 at [30], was wrong in law, as C & D Keay had merely exposed themselves to making payment to the Commonwealth of the superannuation guarantee charge;
(e)this finding was crucial to the Tribunal’s finding that C & D Keay had contravened a law of the Commonwealth. There was no:
(i)“contravention” of any Commonwealth law; or
(ii)“adverse information” for the purpose of reg 1.13A(2) of the Migration Regulations; and
(f)the existence of adverse information was the basis of the Tribunal’s non-satisfaction that the Nomination met the criteria set out in reg 2.72(4) and (18) of the Migration Regulations. The Tribunal’s incorrect understanding of superannuation law was material to the outcome of the review.
Minister’s submission
The Minister’s submitted that C & D Keay’s argument in relation to ground 1A was misconceived because:
(a)the SG Administration Act imposes an obligation on employers to pay the “superannuation guarantee charge” which is relevantly reduced to the extent of contributions made to the relevant fund within a specified period: SG Administration Act, ss 22 and 23, but that is not to say that the Tribunal misunderstood the operation or effect of the SG Administration Act. The scheme of the SG Administration Act is to promote contributions of superannuation at specified rates and at specified times by employers to superannuation funds in relation to applicable employees, and where failure to do so results, in effect, in the payment of the superannuation guarantee charge.
(b)in the circumstances, it was therefore open to the Tribunal – having determined that there were relevant shortfalls (a fact not in dispute) – to conclude that C & D Keay had acted in contravention of the SG Administration Act. The word “contravention” in reg 2.72(4)(a) of the Migration Regulations should be given its ordinary meaning: to offend against the prohibition or order of, for instance, a law. It is unnecessary for there to be a “contravention” of the SG Administration Act for there to be a positive obligation imposed under the law for an employer to contribute superannuation for an employee. The contravention, as the Tribunal appears to have concluded at CB 233 at [30], was in the C & D Keay’s failure to comply substantially with its obligations under the SG Administration Act. This phrasing of the Tribunal indicates that the Tribunal did not mistakenly consider that the SG Administration Act imposed any obligation that it did not impose. Rather, the effect of the SG Administration Act is to promote regular and specified contributions to superannuation funds for employees; and
(c)the Tribunal did not make any finding that C & D Keay had failed to make superannuation payments to any particular employee. Rather, on the basis of financial records and a consideration of the oral evidence of Mr Keay Snr, the Tribunal found that C & D Keay had not complied across its business with its obligations to contribute 9.5% of employees’ wages to superannuation: CB 231 at [20] and [22], 232 at [26], and 233 at [30]. C & D Keay accepted before the Tribunal that errors had been made in relation to payment of its superannuation obligations to its employees. Mr Keay Snr had mistakenly believed that the partnership was required to contribute 9% of its employees’ wages to superannuation, when in fact for the period in question that rate was 9.5%: CB 232 at [24]. Mr Keay Snr expected such an anomaly would have been raised by the partnership’s accountants: CB 232 at [24]. The Tribunal assessed the financial records before it, Mr Keay Snr’s oral evidence, and post-hearing submissions, concerning the question of C & D Keay’s compliance with its superannuation obligations.
Consideration of ground 1A
The operation of the relevant provisions of the Superannuation Guarantee Charge Act 1992 (Cth) (“SG Charge Act”) and the SG Administration Act are set out in Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; (2019) 270 FCR 359; (2019) 288 IR 145; (2019) 368 ALR 643 (“Bluescope Steel”) at [26]-[31] per Allsop CJ as follows:
26Under ss 5 and 6 of the SG Charge Act, a charge is imposed on any superannuation guarantee shortfall of an employer for a quarter (s 5) and the amount of that charge is an amount equal to the amount of the shortfall (s 6). To understand how this works one goes to the SG Administration Act which, by s 3 of the SG Charge Act, is incorporated into, and is to be read as one with, the SG Charge Act.
27Sections 16 and 17 of the SG Administration Act provide for the charge imposed on the shortfall for the quarter to be payable by the employer and is the total of the individual shortfalls, plus interest, plus an administration component. Section 19 provides for the calculation of an employee’s individual superannuation guarantee shortfall. Relevantly s 19(1) and (2) are in the following terms:
(1) An employer’s individual superannuation guarantee shortfall for an employee for a quarter is the amount worked out using the formula:
Total salary or wages paid by the employer to the employee for the quarter
x
Charge percentage for the employer for the quarter
100
where:
charge percentage, for an employer for a quarter, means:
(a) the number specified in subsection (2) for the quarter (unless paragraph (b) applies); or
(b) if the number specified in subsection (2) for the quarter is reduced in respect of the employee by either or both section 22 and 23 — the number as reduced.
(2) The charge percentage for a quarter in a year described in an item of the table is the number specified in column 2 of the item.
Charge percentage (unless reduced under section 22 or 23)
Item
Column 1
Year
Column 2
Charge percentage
1
Year starting on 1 July 2013
9.25
2
Year starting on 1 July 2014
9.5
3
Year starting on 1 July 2015
9.5
4
Year starting on 1 July 2016
9.5
5
Year starting on 1 July 2017
9.5
6
Year starting on 1 July 2018
9.5
7
Year starting on 1 July 2019
9.5
8
Year starting on 1 July 2020
9.5
9
Year starting on 1 July 2021
10
10
Year starting on 1 July 2022
10.5
11
Year starting on 1 July 2023
11
12
Year starting on 1 July 2024
11.5
13
Year starting on or after 1 July 2025
12
28It is to be noted that the percentage of the charge is applied to “the total salary or wages paid by the employer to the employee for the quarter”.
29The charge percentage can be reduced in respect of the employee by various means, here, relevantly, by s 23. Under s 23, if an employer makes a contribution to a Retirement Savings Account (an RSA) there is a reduction in the charge percentage. Section 23(1) and (2) of the SG Administration Act are in the following terms:
23 Reduction of charge percentage if contribution made to RSA or to fund other than defined benefit superannuation scheme
(1) This section applies only in relation to RSAs and to superannuation funds other than defined benefit superannuation schemes.
Reduction of charge percentage where contributions are made by employer
(2) If, in a quarter, an employer contributes for the benefit of an employee to a complying superannuation fund or an RSA, then the charge percentage for the employer (as specified in subsection 19(2)) for the employee for the quarter is reduced by the number worked out using the formula:
Contribution
x
100
Ordinary time earnings
where:
contribution is the number of dollars in the amount of the contribution.
ordinary time earnings is the number of dollars in the ordinary time earnings of the employee for the quarter in respect of the employer.
Example: If the contribution is $60 and the ordinary time earnings are $1,000 then the charge percentage is reduced by 6.
30The phrase “ordinary time earnings” is defined in s 6 of the SG Administration Act, as follows:
6 Interpretation — general
(1)In this Act, unless the contrary intention appears:
ordinary time earnings, in relation to an employee, means:
(a) the total of:
(i) earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment:
(A) a payment in lieu of unused sick leave;
(B) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and
(ii) earnings consisting of over-award payments, shift-loading or commission; or
(b) if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter — the maximum contribution base.
31Thus, if the contribution divided by “ordinary time earnings” multiplied by 100 is the equivalent of, or more than, the charge percentage in column 2 in s 19(2), the charge percentage for s 19 and ss 16 and 17 will be zero.
Regulation 2.72(4) of the Migration Regulations provides as follows:
(4) The Minister is satisfied that either:
(a) there is no adverse information known to Immigration about the person or a person associated with the person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Regulation 2.72(18) of the Migration Regulations provides as follows:
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream or Medium‑term stream, the Minister is satisfied that:
(a) 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 nominee 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; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
By reason of reg 2.72(2) of the Migration Regulations, the criteria in reg 2.72(4) and (18) of the Migration Regulations are, for the purposes of s 140GB(2) of the Migration Act, prescribed.
Regulation 1.13A of the Migration Regulations deals with the meaning of “adverse information” and provides as follows:
(1) Adverse information about a person is any adverse information relevant to the person’s suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19).
(2) Without limiting subregulation (1), adverse information about a person includes information that the person:
(a) has contravened a law of the Commonwealth, a State or a Territory; or
(b) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
(d) has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or
(e) has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
(3) Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
(4) In this regulation:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
The question is whether there is an obligation to comply with the SG Administration Act and if there is, whether failure to comply constitutes a contravention for the purposes of reg 2.72(4) of the Migration Regulations.
The ordinary meaning of “contravention” is referred to in the authorities set out at [18] below, and therefore need not be set out here.
The Court notes that while “contravention” has not been defined in the Migration Act or Migration Regulations, “contravene” is defined for Commonwealth law purposes in s 2B of the Acts Interpretation Act 1901 (Cth) as follows:
In any Act:
…
contravene includes fail to comply with
The meaning of “contravention” has been judicially considered by the High Court in Parker v Comptroller‐General of Customs [2009] HCA 7; (2009) 83 ALJR 494; (2009) 71 ATR 23; (2009) 252 ALR 619 which was then applied in Bluescope Steel at [15]-[16] per Allsop CJ as follows:
[15] In Parker v Comptroller‐General of Customs [2009] HCA 7; 83 ALJR 494 at 501 [29]–[30] French CJ discussed the meaning of the word “contravention”. His Honour first referred to the Oxford English Dictionary meaning as “[t]he action of contravening or going counter to; violation, infringement or transgression”. At [30] French CJ said:
Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non‐statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.
[16] Whilst the word “contravention” is capable of a wide meaning, in the context of a civil remedy provision which includes the possible imposition of a civil penalty the word includes the notion of violating or infringing a rule or obligation or standard which is required. One would not assume or conclude that Parliament would provide for the imposition of a penalty for doing or not doing something that one was not obliged not to do or not obliged to do. One does not, in my view, contravene a non‐obligatory term of an arrangement …
Turning to the question of whether a failure to pay something that gives rise to an obligation to pay a charge, in this case, failure to pay superannuation, amounts to a contravention of the SG Administration Act, it is convenient to return to the judgment of the Full Court of the Federal Court in Bluescope Steel.
In Bluescope Steel at [211] and [215]-[219] per Collier J, consideration was given to whether the SG Charge Act and the SG Administration Act imposed a positive binding obligation on employers to make superannuation contributions for the benefit of employees, observing as follows:
[211]In my view the statutory regime created by the SGA Act and the SGC Act do not impose a positive binding obligation on employers to make superannuation contributions for the benefit of employees.
…
[215] In my view, the Commissioner and the appellants correctly submitted that the SGC Act and the SGA Act do not impose any obligation on an employer to make superannuation contributions for the benefit of employees — rather, the regime under the SGC Act and the SGA Act creates an incentive or encouragement for employers to pay the minimum superannuation contributions.
[216] First, it is clear that, under the regime, the employer may lawfully choose not to make superannuation contributions to the requisite amount, but in such a case, the employer will be liable to pay a charge on the resulting shortfall. This plainly follows from ss 16 and 17 of the SGA Act and ss 5 and 6 of the SGC Act. In particular I note the following observation of the plurality in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2011] HCA 35; (2011) 244 CLR 97:
3Broadly speaking, the effect of the legislation under challenge is that if, as specified in the Administration Act, an employer fails to provide to all employees a prescribed minimum level of superannuation then any shortfall represented by failure to meet that minimum level in full, becomes the Charge. This impost is levied on the employer by the Charge Act. The amount of the Charge is a debt due to the Commonwealth and payable to the respondent, the Commissioner of Taxation: Taxation Administration Act 1953 (Cth), Sch 1, s 255–5. The Charge includes a component for interest and an administration cost. The result is to supply an incentive to employers to make contributions to superannuation for their employees without incurring a liability to the Commissioner for the Charge.
(Emphasis added.)
[217] The point was also made by Heydon J in Roy Morgan in the following terms:
53There is no general duty on private employers to pay superannuation contributions to superannuation funds for the benefit of their employees. But particular obligations to pay superannuation contributions can arise in various ways. They may be created by an award or certified agreement. They may be created by contract. This appeal concerns the legislative validity of an indirect method of ensuring the payment of superannuation contributions.
…
57The superannuation guarantee charge provides an incentive to employers to make superannuation contributions at the rate of 9 per cent of employees’ wages. It ensures that in relation to the employees of employers who fail to do so there will be payments into approved superannuation funds equivalent to those which the employers did not make. There are significant factors influencing employers to make superannuation contributions directly to superannuation funds for their employees’ benefit rather than pay the superannuation guarantee charge. Direct superannuation contributions are tax deductible; payments of the superannuation guarantee charge are not. Payments of direct superannuation contributions avoid the nominal interest component and the administration component of the superannuation guarantee shortfall. And in other respects the superannuation guarantee charge may be higher than the corresponding direct superannuation contribution. In a perfect world, no superannuation guarantee charge would be levied at all. But it tends to persuade employers to make direct superannuation contributions. This achieves public purposes quite independently of any revenue collected through it. Those public purposes centre on the encouragement of employers to contribute to superannuation funds so as to meet the needs of aged or infirm employees and to reduce the pension burdens which would otherwise have to be funded by the government.
(Footnotes omitted, emphasis added.)
[218] In summary — the superannuation guarantee charge created by the SGA Act and the SGC Act is a tax. Failure to make the minimum superannuation contributions to reduce the chargeable amount to zero in accordance with the statutory framework is not penalised. However, if an employer does choose to make those minimum contributions that employer can essentially reduce its superannuation guarantee shortfall to zero and therefore be subject to no requirement to pay the charge. As I noted earlier in the judgment, there are a number of incentives to do so, including that the contributions made directly to employees will be tax deductible, the relevant calculation in s 23 uses “ordinary time earnings” which may be a lesser amount than the amount of “total salary or wages” for the purposes of determining the shortfall, and the employer will not be required to pay administrative fees or interest associated with the collection of the charge.
[219] Second, given that I accept that an employer may lawfully choose not to make superannuation contributions but instead be liable to pay the charge, it would be incongruous to find that such a lawful choice under the statute could also be a breach of an obligation sourced in that statute.
In Bluescope Steel at [19] per Allsop CJ, the effect of an employer choosing not to make superannuation contributions was succinctly put thus:
If contributions are not made the employer suffers a tax.
An obligation to pay superannuation contributions may be imposed by other means, as, for example, by provisions in an industrial award or enterprise agreement requiring payment of superannuation at the minimum level that avoids having to pay the charge, and which give rise to enforceable obligations under the Fair Work Act 2009 (Cth) (“FW Act”): Bluescope Steel at [18]-[21] per Allsop CJ and [235] per Collier J. If, however, the relevant provision of an industrial award or enterprise agreement is not one capable of being breached so as to found a contravention of a provision of the FW Act, then no obligation arises: Bluescope Steel at [13]-[17] per Allsop CJ and [235] and [241]-[243] per Collier J. No alternative source of obligation to pay superannuation contribution has been posited in these proceedings, nor does it appear that any such alternative source was posited before the Tribunal. Although the Tribunal made reference to an industrial award, it was not as a source of obligation to pay superannuation contributions: CB 232-233 at [28].
It is clear from Bluescope Steel that there is no legal obligation imposed by the SG Charge Act or the SG Administration Act to pay superannuation, and that an employer “may lawfully choose not to make superannuation contributions but instead be liable to pay the charge”: at [219] per Collier J; see too Rathner at [7] per Mandie J. It follows that not making superannuation contributions for employees for the purposes of the SG Charge Act and the SG Administration Act does not constitute a contravention of a Commonwealth law in circumstances where not doing so is a choice, lawfully made.
From the Tribunal Decision, it is evident that “compliance” with what it described as “the (superannuation guarantee) laws of the Commonwealth”: CB 233 at [30] loomed large in the Tribunal’s reasoning. In the Tribunal Decision the Tribunal referred to:
(a)“… this issue of non-compliance with the Superannuation Guarantee requirement” as part of “adverse information” that would be the reason or part of the reason for affirming the Delegate’s Decision: CB 231-232 at [23];
(b)mechanisms put in place by C & D Keay to facilitate payment to employees, in the future, of superannuation contributions at the minimum level of contribution necessary to avoid the charge, as being a matter to which some weight could be given in relation to the Tribunal’s “consideration of whether it is reasonable to disregard this compliance requirement”: CB 232 at [24];
(c)“the underpayment or short payment of superannuation”: CB 232 at [27]; and
(d)the “late payment of superannuation entitlements” and evidence of “short paid superannuation at 9% of payroll instead of the correct rate of 9.5% under the Superannuation Guarantee legislation”: CB 233 at [29].
Having referred to the matters in the preceding paragraph, the Tribunal concluded that:
(a)it was “not satisfied that the applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth”: CB 233 at [30]; and
(b)Mr Keay Jnr, as the nominee, had employment conditions or entitlements (other than earnings) less favourable than those that would apply to an Australian citizen or permanent resident performing the work that Mr Keay Jnr was being nominated to perform: CB 233 at [31],
and consequently found that the requirements of reg 2.72(4) and (18)(a) of the Migration Regulations were not met, and the Tribunal was therefore not satisfied that C & D Keay met the applicable criteria for the Nomination: CB 233 at [32]-[33].
It is plain that the Tribunal regarded the purported non-compliance with the SG Administration Act as being “adverse information” for the purposes of reg 2.72(4), and as defined in reg 1.13A, of the Migration Regulations, and in particular as “information that the person”, here the nominator, C & D Keay, “has contravened a law of the Commonwealth”: Migration Regulations, reg 1.13A(2)(a), and that it was central to its finding of non-satisfaction that C & D Keay met the applicable criteria of the Nomination.
The Tribunal’s state of satisfaction was one that was required to be formed “on a correct understanding of the law”: Graham at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. The Tribunal Decision is plainly affected by a misunderstanding of the law in relation to the operation and interaction of the SG Administration Act and the SG Charge Act. For the reasons set out in Bluescope Steel at [20]-[21] above, there was no requirement of “compliance” on the part of the C & D Keay by way of having to make superannuation contributions for employees at the rate prescribed to avoid payment of a charge for the purposes of the SG Administration Act and the SG Charge Act. Nor was there any “adverse information” constituted by a “contravention” of a law of the Commonwealth by reason of a failure to make superannuation contributions at the rate prescribed to avoid payment of a charge for the purposes of the SG Administration Act and the SG Charge Act, there being no contravention because there was no failure to do what was required by the law to be done: Parker at [30] per French CJ, cited in Bluescope Steel at [15] per Allsop CJ. The consequence of the Tribunal’s misunderstanding of the law was that it then misapplied reg 2.72(4) and (18) of the Migration Regulations to the circumstances of the Nomination, which lead it to consider a wrong question or wrong issue as to “compliance” with the SG Administration Act and the SG Charge Act. The error was thus jurisdictional, and material in the relevant sense: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ, because a correct understanding of the law could not have resulted in a finding of a failure to meet the requirements of reg 2.72(4) and (18) of the Migration Regulations on the basis of the facts in the particular legislative context relied upon by the Tribunal (and in that regard the Court observes that the Tribunal did not advert, for example, to any specific obligations which might have been imposed under a relevant industrial award or enterprise agreement: cf Bluescope Steel at [8]-[22] per Allsop CJ and [221]-[244] per Collier J).
It follows that ground 1A is made out and does establish material jurisdictional error in the Tribunal Decision.
Ground 2A
Ground 2A is as follows:
2A. The Tribunal’s decision was vitiated by a constructive failure to exercise jurisdiction, by misconstruing or misapplying Regulation 2.72(4)(a), or by not asking itself the correct question, in that the Tribunal’s lack of satisfaction at [30] that the ‘applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth [sic]’ was treated as conclusive of the question required: how was the ‘adverse information … relevant to [the nominators’] suitability as a nominator’?
C & D Keay’s submissions
C & D Keay’s submissions pertaining to ground 2A were as follows:
(a)regulation 2.72(4)(a) of the Migration Regulations, read with reg 1.13A(1) of the Migration Regulations requires, relevantly, that:
the Minister is satisfied that there is no adverse information about the nominator relevant to his or her suitability as a nominator.
(b)regulation 1.13A(2) of the Migration Regulations then lists off some examples of “adverse information”, including that the person has “contravened a law of the Commonwealth”, which was the example relied upon by the Tribunal;
(c)whilst the Tribunal was obviously satisfied that there was “adverse information” about C & D Keay, nowhere in its reasons does it grapple with whether this information was relevant to C & D Keay’s suitability to be a nominator; and
(d)the Tribunal misunderstood this part of the statutory test and failed to ask itself the correct question.
Minister’s submission
The Minister’s submissions in relation to ground 2A were as follows:
(a)C & D Keay’s construction of regs 2.72(4)(a) and 1.13A of the Migration Regulations is incorrect;
(b)regulation 2.72(4)(a) of the Migration Regulations requires the Minister to be satisfied there is no adverse information known to the Department about the person or a person associated with the person, or that it is reasonable to disregard any adverse information known to the Department about the person or a person associated with the person;
(c)regulation 1.13A of the Migration Regulations defines “adverse information” in a particular way, stating that adverse information about a person is any adverse information relevant to the person’s suitability as an approved sponsor, or a nominator (within the meaning of reg 5.19 of the Migration Regulations), but reg 1.13A(1) of the Migration Regulations must be read with reg 1.13A(2) of the Migration Regulations, which provides for specific instances of what “adverse information” includes, without purporting to limit reg 1.13A(1) of the Migration Regulations. It includes as adverse information “information that the person has contravened a law of the Commonwealth, a State or a Territory”. The word “includes” is significant, and in this context, it “indicates that the whole of its object is within its subject, but not that its object is the whole of its subject”: YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395; (1964) 37 ALJR 431; [1964] ALR 667; CLR at 401-402 per Kitto J;
(d)properly construed, it was sufficient for the Tribunal to ask itself whether there was information that C & D Keay had contravened a law of the Commonwealth, a State or a Territory. The effect of reg 1.13A(2) of the Migration Regulations is to define as “adverse information” for the purposes of reg 2.72(4)(a) of the Migration Regulations information that the person has contravened a law of the Commonwealth, a State or a Territory. It was unnecessary for the Tribunal to ask, additionally, whether that adverse information was also information that was relevant to the person’s suitability as an approved sponsor. The instances of adverse information set out, non-exhaustively, in reg 1.13A(2) of the Migration Regulations are taken to constitute information which, of its nature, is relevant to the person’s suitability as an approved sponsor or nominator; and
(e)the Tribunal did not misconstrue the Migration Regulations.
Consideration of ground 2A
Regulations 1.13A(1) and (2), and 2.72(4)(a) of the Migration Regulations are set out at [14] and [11] respectively above.
Regulations 1.13A(1) and (2) of the Migration Regulations define “adverse information” in a particular way. Adverse information is “any adverse information relevant to the person’s suitability as… a nominator”: Migration Regulations, reg 1.13A(1)(b). The use of the word “any” makes the phrase “any adverse information” one of wide import ordinarily excluding limitation or qualification and which should be given as wide a construction as possible: The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors [1943] HCA 19; (1943) 67 CLR 335; [1943] ALR 287; (1943) 17 ALJ 188, CLR at 346 per Williams J; Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198; (1980) 32 ALR 581, FLR at 213 per Fisher J; Matthews v Hargreaves(No 4) [2012] FMCA 4; (2013) 274 FLR 138 at [128] per Lucev FM. This broad cast is not limited by reg 1.13A(2) of the Migration Regulations which “includes” a list of specific matters within the definition of “adverse information”. The use of “includes” in this context enlarges but does not exhaust the definition of “adverse information”: Sri Guru Gobind Singh Transport Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 118 at [126]-[127] per Derrington J, and notwithstanding the broad cast of the phrase “any adverse information”, ensures that the specific matters listed in reg 1.13A(2) of the Migration Regulations are designated as “adverse information”.
C & D Keay says that although certain matters in reg 1.13A(2) of the Migration Regulations fall within the meaning of “adverse information”, and relevantly here, an alleged contravention of a law of the Commonwealth, it is still necessary for the adverse information so defined to be “relevant to the person’s suitability as … a nominator”. The Minister, however, says that the matters defined as “adverse information” by reason of reg 1.13A(2) of the Migration Regulations are to be taken to be or to constitute information which, because of its nature, is relevant to a person’s suitability, in this case, as a nominator.
The construction of reg 1.13A(1) and (2) of the Migration Regulations advocated for by the Minister cannot, with respect, be correct. On its face, the requirement that the assessment of the relevance of the nature of the adverse information to the suitability of a person as an approved sponsor or nominator in reg 1.13A(1) of the Migration Regulations is a separate element to the nature of the adverse information therein. Were it not so, then it would be unnecessary to refer to the relevance of a person’s suitability as an approved sponsor or nominator. Regulation 1.13(2) of the Migration Regulations, whilst prescribing the matters specified therein to be “adverse information”, does not prescribe that those matters are to be taken as being relevant to the question of suitability as an approved sponsor or nominator, and in the absence of any such prescription the “adverse information” matters in reg 1.13(2) of the Migration Regulations ought to be assessed as to relevance in the same manner as other types of “adverse information” in reg 1.13A(1) of the Migration Regulations. Another means of demonstrating that the correct construction of reg 1.13A(2) of the Migration Regulations requires that the relevance of the adverse information as to the person’s suitability be assessed, is to take extreme examples, conveniently for these purposes, of contraventions of a law of the Commonwealth. Assume the nominator nominates a person for a position working with children, and the nominator is under investigation in relation to the offence of procuring children for importing or exporting marketable quantities of border controlled drugs the penalty for which is imprisonment for life or 7500 penalty units (or $1,575,000), or both: Criminal Code 1995 (Cth), s 309.12, and Crimes Act 1914 (Cth) (“Crimes Act”), s 4AA (defining “penalty unit” to mean the amount of $210). Plainly, this possible drugs offence would have to be considered as being a matter relevant to the nominator’s suitability. By contrast assume that the nominator has a prior conviction for permitting, without lawful excuse, trespass by livestock in the nominator’s possession, custody or control, by reason of the livestock straying onto land belonging to the Commonwealth, for which the penalty is one penalty unit (or $210), contrary to s 90 of the Crimes Act. To automatically treat the livestock offence as relevant to the nominator’s suitability to nominate a person for a position working with children would plainly be absurd, but on the Minister’s preferred construction of reg 1.13A(1) and (2) of the Migration Regulations, this would be the effect of such a minor and seemingly irrelevant contravention of a law of the Commonwealth. The absurdity is made manifest by the fact that the minor livestock offence would, on the Minister’s preferred construction, be treated as being as relevant as a possible major Commonwealth drug import-export offence involving children.
For reasons set out at [32]-[35] above, the Court considers that a Tribunal is required to assess whether adverse information, including any contravention of a law of the Commonwealth under reg 1.13A(2)(a) of the Migration Regulations, is relevant to the suitability of a person as a nominator. In this case, however, the question does not arise because there was no contravention of a law of the Commonwealth for the reasons set out at [10]-[28] above, and that means because jurisdictional error has been established in relation to ground 1A the jurisdictional error in relation to ground 2A does not arise. If, however, the Court’s conclusions with respect to ground 1A are incorrect, the issue of jurisdictional error in relation to ground 2A does arise. In this regard, Counsel for the Minister, quite properly, conceded at hearing that the Tribunal did not address itself to whether its findings of a contravention of a law of the Commonwealth were also relevant to the nominator’s suitability: Transcript, p 16. The failure to do so would, had there been a contravention of a law of the Commonwealth, have been a jurisdictional error by reason of a failure to have regard to a relevant, and material, consideration: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Singh v Minister for Immigration & Anor [2018] FCCA 3423 at [73] per Judge Riley.
Ground 3A
Ground 3A is as follows:
3A. Alternatively to ground 2A, the Tribunal’s decision was vitiated by illogicality in its reasoning that an alleged ‘failure to comply with the (Superannuation Guarantee) laws of the Commonwealth’ in respect of an alleged underpayment of 0.5% was relevant to the applicant nominators’ ‘suitability as [] nominator[s]’.
Particulars
i.A finding that the failure by the Applicants to comply with ‘(Superannuation Guarantee) laws of the Commonwealth’ was relevant to their suitability to be a nominator logically involves a prospective finding that non-compliance will occur in the future.
ii.The Tribunal did not find that there was any chance of non-compliance in the future, did not reject evidence that there was no such chance, and made findings inconsistent with their being such a chance.
C & D Keay’s submissions
C & D Keay’s submissions pertaining to ground 3A are as follows:
(a)illogicality or irrationality in the formation of a state of satisfaction may vitiate that state of satisfaction and cause any subsequent purported exercise of power to be affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [34]-[42] per Gummow ACJ and Kiefel J and [133] per Crennan and Bell JJ;
(b)whether adverse information about a nominator is relevant to the person or business, as a nominator, involves a qualitative judgment. The Tribunal was required to assess the factors tending either way and come to a conclusion. That conclusion will only be rational and reasonable if it is supported by a probative basis in the material: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 (“Splendido”) at [68] and [70] per Mortimer J (Moshinsky J agreeing at [113]);
(c)a conclusion about what may happen in the future which is based on a bare recitation of what a person has done in the past is a conclusion without a probative basis in the material: Splendido at [77]-[82] per Mortimer J (Moshinsky J agreeing at [113]). Equally omitting an essential step in reasoning towards a conclusion will be to reach that conclusion without a logical basis: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81; (2017) 351 ALR 153 (“Muggeridge”) at [55]-[56] per Charlesworth J, (Flick and Perry JJ agreeing at [1] and [2] respectively);
(d)assuming the Tribunal in some implicit way grappled with the question of whether the adverse information, non-compliance with the SG Administration Act in 2017 and 2018, was relevant to C & D Keay’s suitability to be a nominator, it did so in a manner that was irrational;
(e)in order to conclude that the adverse information was relevant to suitability, the Tribunal logically had to be satisfied that there was at least some chance of non-compliance occurring in the future. The Tribunal made no such finding. C & D Keay claimed during the Tribunal Hearing that there was no chance of future non-compliance and provided a letter after the Tribunal Hearing from their accountants corroborating this claim: CB 217, and the Tribunal itself seemingly accepted this claim: CB 232 at [24];
(f)the Tribunal also based its conclusion, in essence, on the bare fact of C & D Keay’s previous non-compliance with superannuation laws; and
(g)any implicit conclusion by the Tribunal that the adverse information was relevant to C & D Keay’s suitability to be a nominator either omitted essential reasoning towards that conclusion or was without a probative basis in the material.
Minister’s submissions
In relation to ground 3A the Minister submitted that, in the alternative to ground 2A, C & D Keay contend that the Tribunal Decision was illogical or irrational. On the Minister’s construction, as adverted to in ground 2A, this ground must necessarily fail. That is to say, it cannot have been illogical or irrational for the Tribunal to have implicitly determined that the adverse information was relevant to C & D Keay’s suitability as nominators in circumstances where, as the Minister submits, the Tribunal did not, and did not need to, consider as a separate question whether the adverse information was relevant to C & D Keay’s suitability as nominators. Ground 3A therefore fails to establish jurisdictional error in the Tribunal Decision.
Consideration of ground 3A
The first observation that must be made with respect to ground 3A is that it is sloppily drafted. The words appearing in the two quotes in ground 3A are not words that appear in that collocation in the Tribunal Decision. If, however, ground 3A is read as if there were no quotes, and ignoring the set of empty square brackets in the last quote, ground 3A can be read sensibly, and the Court has read it accordingly.
The Minister relies on the success of his arguments in relation to ground 2A to defeat ground 3A, without specifically addressing the substance of ground 3A in the alternative, a course which is not especially helpful if the Minister is wrong in relation to ground 2A, or if the substance of ground 3A survives any failure of ground 2A. A difficulty in this respect is that the Court considers that ground 3A:
(a)has to be considered as an alternative to ground 2A, because, for reasons set out at [32]-[36] above, ground 2A does not arise if the Court’s conclusion with respect to ground 1A is correct;
(b)if the Court’s conclusion with respect to ground 1A is incorrect, then grounds 2A and 3A may both need to be addressed; and
(c)in any event, ground 3A is a ground that can, in its terms, stand independent of ground 2A.
Difficulty with ground 3A arises from the fact that the Tribunal dealt with the relevant facts, and determined the matter, insofar as it related to whether or not to disregard adverse information, on the basis that there had been a contravention of the laws of the Commonwealth, when in fact there had been no such contravention for the reasons set out in relation to ground 1A at [10]-[28] above. Thus, on one view, the issues raised by ground 3A do not arise because there was no failure to comply with any relevant Commonwealth law. If, however, the Court’s conclusion in relation to ground 1A is incorrect, ground 3A needs to be addressed (that is, addressed as if there had been a contravention of a law of the Commonwealth by reason of an underpayment of the superannuation guarantee amount).
In determining whether there is a jurisdictional error for the purposes of ground 3A it is important to recognise the nature of the specific task or question which was before the Tribunal in this respect, that is whether it was reasonable to disregard the adverse information known, that being the (here assumed) contravention of a law of the Commonwealth, and relevance to the person’s suitability as a nominator.
It is convenient to commence consideration of ground 3A by reference to some of the relevant case law.
There can be no doubt that if the Tribunal has made findings that are illogical then that ordinarily constitutes jurisdictional error: SZMDS at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [148] per Robertson J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [60] per McKerracher, Griffiths and Rangiah JJ.
In Splendido, the Full Court of the Federal Court was dealing with an appeal by the Assistant Minister for Immigration against a decision of a Judge of the Federal Court quashing the Assistant Minister’s decision not to revoke the cancellation of a transitional permanent visa for an Italian born man who had arrived in Australia aged two, and whose visa was cancelled on character grounds when he was aged 51: Splendido at [1] per Mortimer J. The basis for refusal to revoke the cancellation was the Assistant Minister’s view that it was likely that, by reason of his serious criminal record, Mr Splendido would reoffend and that he, therefore, presented an unacceptable risk of harm to the Australian community: Splendido at [2]-[17] per Mortimer J.
In Splendido, the plurality in the Full Court of the Federal Court (Mortimer J, with whom Moshinsky J agreed at [113]), in finding jurisdictional error in the Assistant Minister’s decision, observed that:
(a)a decision-maker who finds a fact and uses it as part of the reasoning process must have probative evidence of that fact, regardless of whether a decision-maker was required to make any factual finding on the subject: at [29] and [52] per Mortimer J;
(b)in making a qualitative assessment of the likelihood that a person might reoffend in the future it is, therefore, insufficient to refer only to the offending conduct contained in the person’s record of criminal offences: at [71], [77] and [81]-[82] per Mortimer J; and
(c)because there was no probative evidence of an unacceptable risk to the community due to the likelihood of reoffending, the Assistant Minister’s finding involved mere speculation: at [49]-[50], [52] and [70] per Mortimer J.
In also finding jurisdictional error in the Assistant Minister’s decision, the other Judge in Splendido (Wheelahan J) found that the Assistant Minister’s “finding that the respondent will reoffend by committing offences of a similar nature was the product of an evaluation rather than something that was itself to be established by evidence. However, that evaluation had to have an evident, intelligible and rational foundation …” at [131] per Wheelahan J, and that the combination of matters that were before the Assistant Minister did not provide a rational, probative foundation for the above-mentioned finding, and that “the absence of a rational, probative basis for that evaluative conclusion was a jurisdictional error”: at [132] per Wheelahan J.
The reasons of the plurality in Splendido need to be approached cautiously. As the Federal Court observed in Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [35] per Steward J, Splendido is an “extreme and rare case” where the Assistant Minister erred because there was not in that case “even a skerrick of evidence to support the findings made about the risk of reoffending”, and the plurality’s observations need to be read in the context of the particular facts in Splendido.
In Muggeridge at [36] per Charlesworth J (with whom Flick J at [1] and Perry J at [2] agreed) the Full Court of the Federal Court observed as follows:
It may be observed from the outset that the task of the Minister necessarily involved a degree of postulation as to what might occur in the future should Mr Muggeridge’s visa not be cancelled and should he remain present in the Australian community. The Minister was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their occurrence.” The adoption of a reasoning process that involved postulation or supposition cannot, in and of itself, therefore constitute jurisdictional error. It is nonetheless necessary that the hypotheses underlying the decision bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.
What needs to be guarded against, however, is a conclusion based on reasoning which amounts to no more than that because a person has behaved in a particular way in the past that person will therefore behave in that particular way again in the future: Muggeridge at [46] per Charlesworth J; Splendido at [77] per Mortimer J; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; (2017) 264 A Crim R 225; (2017) 92 ALJR 52; (2017) 344 ALR 187 at [70] per Gageler J.
In the Tribunal Decision the Tribunal:
(a)said at CB 232 at [24] as follows:
Mr Keay (Snr) explained that he believed the correct rate for superannuation payments in those financial years was 9.0% and that he only just now realised that the correct rate for 2017 and 2018 was actually 9.5%. He emphasised that it was an ‘honest mistake’ and that any shortfall would be remedied. The applicant explained further, that the partnership business relied on their accountant, Peron Accountants to take care of financial matters including processing of wages, payroll entries and superannuation payments and expected that any anomaly to have been raised by their accountant. Mr Keay (Snr) responded, when asked, that their accountant was engaged at the time of preparation of the financial reports for 2017 and 2018 but that no anomaly had been raised. He added that the partnership now has a financial software package (MYOB) to assist in keeping track of payroll and related obligations such as superannuation contributions to avoid such problems in the future. The Tribunal gives this some weight in its consideration of whether it is reasonable to disregard this compliance requirement.
(b)noted, on the basis of an admission from Mr Keay Snr, that superannuation payments had been paid “late as well as short”: CB 232 at [25], with the short payment (that is payment at the rate of 9% instead of 9.5%) being a matter upon which the Tribunal placed weight: CB 233 at [29];
(c)said at CB 232 at [27] as follows:
The Tribunal accepts the accountant’s financial reports as complete and accurate. On this point, the Tribunal accepts the oral evidence provided that no changes or amended tax returns for the partnership have been prepared to the financial years 2017 and 2018. The Tribunal also places weight on the evidence that the applicant’s accountant was engaged at the time of preparation of the reports that record the short/late payments with no remedy actioned to date. This weighs somewhat against disregarding adverse information relating to the employment entitlements/conditions although the Tribunal acknowledges the applicant’s position is to remedy any shortfall which would weigh in favour of the applicant. Further, the Tribunal has considered that the underpayment or short payment of superannuation was for two consecutive years which are also relatively recent. Considered collectively, the Tribunal is of the view that it is not reasonable to disregard the adverse information known, for the purposes of r.2.72(4).
(d)said at CB 233 at [30] as follows:
Having considered the available evidence before it discussed, the Tribunal finds that superannuation contributions of 9.5% of the applicant’s salaries and wages was short paid in 2017 and 2018 and also late paid in 2018. From this the Tribunal is not satisfied that the applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth relating to its WA employees. As aforementioned, the Tribunal places weight on the finalised taxation returns and financial statements for the business prepared by its accountant and provided to the Tribunal.
(e)found that the requirements of reg 2.72(4) of the Migration Regulations were not met: CB 233 at [32].
The bar for establishing illogicality in the Tribunal Decision is a very high one: SZMDS; SZRKT. It must be remembered that here the question is not whether a law of the Commonwealth was as a matter of fact contravened (that being assumed for the purposes of the argument in relation to ground 3A), but whether it was, for the purposes of reg 2.72(4) of the Migration Regulations, not reasonable for the Tribunal to disregard the adverse information known (here the assumed contravention of a law of the Commonwealth).
In deciding that it was not reasonable to disregard the adverse information known, the Tribunal weighed the evidence before it, as was its task: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Tribunal quite properly, and as it was entitled to do, considered the past conduct of C & D Keay: Muggeridge at [36] per Charlesworth J; Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ, in particular, as it related to the question of short and late superannuation payments: CB 232 at [24]-[25] and [27] and 233 at [29]-[30]. But the Tribunal did not have regard to past conduct alone, specifically observing that:
(a)it gave weight to the evidence of Mr Keay Snr that C &D Keay had implemented systems “to avoid such problems in the future” in relation to the question of whether it was reasonable to disregard the adverse information known: CB 232 at [24];
(b)no remedial action in relation to the short or late payments had been “actioned to date”, and that that weighed “somewhat against” disregarding adverse information known: CB 232 at [27]; and
(c)it had considered “the available evidence before it”: CB 233 at [30].
These observations indicate that the Tribunal had regard to evidence relevant to the present and the possible future conduct of C & D Keay when considering the question of whether it was reasonable to disregard the adverse information known.
The matters referred to in the previous paragraph indicate that the Tribunal turned its mind to all the available evidence, as it said it did: CB 233 at [30], and did not, therefore, fall into the error referred to in the plurality judgment in Splendido. It is also evident that the combination of past, present and future matters considered by the Tribunal revealed a rational and probative basis for deciding not to disregard the known adverse information: Splendido at [132]-[133] per Wheelahan J. Furthermore, the Tribunal’s reasoning in this respect is neither illogical in an SZMDS or SZRKT sense, nor unreasonable in the sense described in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181: see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
For the reasons set out at [40]-[55] above, ground 3A is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 4A
Ground 4A is as follows:
4A. The Tribunal’s decision was vitiated by a constructive failure to exercise jurisdiction, or by asking itself the wrong question, by a misconstruction or misapplication of Regulation 2.72(18)(a)(i) of the Regulations in concluding at [31] that ‘the employment conditions / entitlements (other than earnings) that applied to the nominee were less favourable than those that would apply to an Australian citizen or permanent resident’.
Particulars
i.Regulation 2.72(18)(a)(i) required the Tribunal to determine whether the employment conditions (other than in relation to earnings) that ‘will’ apply to the nominee are less favourable than those that would apply to an Australian citizen or permanent resident.
ii.The Tribunal’s self-direction was directed to the conditions that had applied to the nominee that had been less favourable than those which would apply to an Australian citizen and was expressed in the past tense.
C & D Keay’s submissions
C & D Keay’s submissions pertaining to ground 4A were as follows:
(a)regulation 2.72(18)(a) of the Migration Regulations requires an assessment of whether the conditions that the nominee will be working under in the future will be no less favourable than those under which an Australian citizen or permanent resident in equivalent circumstances would be working under; and
(b)the Tribunal misunderstood or misapplied this criterion in that it directed itself: CB 233 at [31], to conditions that the nominee had, apparently, been working under in the past. It did not look to the future in deciding whether this criterion had been met. The Tribunal misunderstood this part of the statutory test and failed to ask itself the correct question.
Minister’s submission
The Minister’s submissions in relation to ground 4A were as follows:
(a)the Tribunal in its reasons did focus on past events in its assessment of C & D Keay’s compliance with superannuation obligations. It had regard to financial records and Mr Keay Snr’s evidence about this topic. It also, however, enquired with Mr Keay Snr about the future. For instance, at CB 231 at [19], the Tribunal recorded that the “oral evidence is that the nominee’s proposed salary is $64,000 gross per year or a package of $70,000 (including leave provisions and superannuation entitlements)”. Further, at CB 232-233 at [28], the Tribunal referred to the oral evidence that “all employees on a contract for bricklaying duties with the applicant will be engaged on the same conditions or entitlements that are equivalent to the minimum standards applicable to an Australia citizen [or] permanent resident worker”. The Tribunal referred here to Mr Keay Snr’s evidence regarding one of the employees of C & D Keay, a Mr Randall, who was employed on a full-time basis under an award. The Tribunal was satisfied that the superannuation applicable for an Australian citizen or permanent resident was 9.5% of their gross earnings;
(b)having regard to the findings in (a) above, it is clear that the Tribunal did not base its conclusions at CB 233 at [31] solely on C & D Keay’s underpayment of superannuation contributions in the past. It also, properly read, had regard to the evidence about future arrangements for Mr Keay Jnr. There is no indication in its reasons that the Tribunal accepted C & D Keay’s promise that there would be no underpayments in the future, and therefore no error is made out.
Consideration of ground 4A
Regulation 2.72(18)(a) of the Migration Regulations is set out at [12] above.
The use of “will apply” in reg 2.72(18)(a)(i) of the Migration Regulations clearly imports a forward-looking or future test as to the condition or conditions to apply. In determining what will occur in the future, it is permissible to look to evidence as to what has occurred in the past: Guo, CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In this case, the Tribunal set out the evidence as to what had occurred in the past with C & D Keay’s short and late superannuation payments: CB 230-233 at [18]-[29]. The Tribunal also referred to evidence concerning what C & D Keay might do in the future, including evidence from Mr Keay Snr:
(a)of systems implemented by C & D Keay “to avoid such problems in the future”: CB 232 at [24]; and
(b)“that all employees on a contract for bricklaying duties with the applicant [C & D Keay] will be engaged on the same terms and conditions or entitlements that are equivalent to the minimum standards applicable to an Australian Citizen of [sic] permanent resident worker”: CB 232-233 at [28].
The Tribunal made no findings as to Mr Keay’s Snr’s credibility and did not express any indication of disbelief of his evidence generally, or as to the effect of the systems introduced, or as to the intended payment of future entitlements.
In the Tribunal Decision at CB 233 at [31] the Tribunal found as follows:
Having considered the financial statements before it and the applicant's oral evidence and submissions discussed, the Tribunal considers that the employment conditions / entitlements (other than earnings) that applied to the nominee were less favourable than those that would apply to an Australian citizen or permanent resident performing equivalent work at the same location. For the reasons already discussed, it is not reasonable, on balance, to disregard this information for the purposes of r.2.72(18)(a).
In the Tribunal Decision at CB 233 at [31], the Tribunal focused entirely on the past, see, for example, its use of the phrase “were less favourable’. The Tribunal did not direct itself to whether there was information that indicated that a non-earnings employment condition, here superannuation, “that will apply” would be less favourable than what would apply to an Australian citizen or permanent resident performing equivalent work at the same location as Mr Keay Jnr. The Tribunal did not only not look at what “will apply”, but it also did not make a finding as to whether any information to which it had regard indicated that what “will apply”, not what had applied, with respect to superannuation, would be less favourable than what would apply to an Australian citizen or permanent resident performing equivalent work at the same location as Mr Keay Jnr. Rather, the Tribunal only had regard to, and made findings with respect to, what had applied to Mr Keay Jnr. The Tribunal reached a different state of satisfaction, that is, one as to what had applied, rather than the required state of satisfaction, which was as to what will apply in the future. In so doing, it applied the wrong test and also failed to consider or make findings as to the seemingly cogent and materially relevant evidence of Mr Keay Snr. In the foregoing circumstances, no inferences should be drawn that the Tribunal either applied the right test or did not apply the wrong test, or that it disbelieved Mr Keay Snr’s evidence.
The error made by the Tribunal in applying the wrong test and failing to make findings in relation to Mr Keay Snr’s evidence were material errors, for if the Tribunal had applied the right test there is a realistic possibility the Tribunal Decision would have been different, and likewise with respect to the consideration of Mr Keay Snr’s evidence.
For the reasons set out at [60]-[65] above, ground 4A is made out and establishes jurisdictional error in the Tribunal Decision.
Ground 5A
Ground 5A is as follows:
5A. Alternatively to ground 4A, the Tribunal’s decision was vitiated by a constructive failure to exercise jurisdiction, or by illogicality or a lack of an intelligible justification, in concluding at [31] that ‘the employment conditions / entitlements (other than earnings) that applied to the nominee were less favourable than those that would apply to an Australian citizen or permanent resident’.
Particulars
i.Particular 4A(i) is repeated.
ii.The Tribunal did not find that there was any chance of non-compliance in the future, did not reject evidence that there was no such chance and made findings inconsistent with their being such a chance.
C & D Keay’s submissions
C & D Keay’s submissions pertaining to ground 5A were as follows:
(a)assuming that it should be implied that the Tribunal correctly directed itself to the question reg 2.72(18)(a) of the Migration Regulations requires to be answered, its conclusion on that question was nonetheless irrational or illogical;
(b)the Tribunal based its conclusion on the finding that the conditions Mr Keay Jnr would be working under were less favourable than those under which an Australian citizen or permanent resident in equivalent circumstances would be working under, due solely to C & D Keay’s underpayment of superannuation in 2017 and 2018;
(c)in order to conclude that the nominee would be working under less favourable conditions in the future, the Tribunal had to conclude that there was some chance that he would be underpaid superannuation. The Tribunal made no such finding and instead based its conclusion solely on the bare fact of the previous underpayments; and
(d)as mentioned above, C & D Keay claimed that there was no possibility of underpayments in the future. The Tribunal did not reject this claim and seemingly accepted it. The Tribunal’s conclusion that reg 2.72(18)(a) of the Migration Regulations was not met was illogical or irrational.
Minister’s submission
The Minister’s submissions in relation to ground 5A were as follows:
(a)the Tribunal’s reasoning at CB 233 at [31], properly understood in the context of its other findings, does not indicate unreasonableness or any other form of error going to jurisdiction;
(b)the question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker. The question involves an assessment of whether the decision was lawful or authorised, having regard to the scope, purpose and objects of the statutory source of power: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [61] per Reeves, O’Callaghan and Thawley JJ, citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [54]-[60] per Gageler J, [78]-[79] per Nettle and Gordon JJ, and [135] per Edelman J. The test for unreasonableness is necessarily stringent because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion: SZVFW at [11] per Kiefel CJ;
(c)there can be a tendency for an applicant asserting unreasonableness to be indicating nothing more than disagreement with a conclusion reached, or with a reasoning process. It is well-established that an administrative decision is not unreasonable simply because another reasonable decision (or finding) was available to the decision-maker: SZMDS at [130] per Crennan and Bell JJ. To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148] per Robertson JJ, SZMDS at [135] per Crennan and Bell JJ; CQG15 at [60] per McKerracher, Griffiths and Rangiah JJ; and
(d)as submitted above in respect of ground 4A, the Tribunal did not limit itself to consideration of past events in considering the requirements of reg 2.72(18)(a) of the Migration Regulations. It had regard to past events as relevant to the question of whether Mr Keay Jnr’s conditions would be the same as those of an Australian citizen or permanent resident. The ground fails to make out error in the Tribunal Decision.
Consideration of ground 5A
As ground 5A is an alternative ground to ground 4A and ground 4A has been made out, it is probably unnecessary to deal with ground 5A. In the circumstances, it is sufficient to observe that, as an independent ground of review, ground 5A is made out insofar as it asserts a constructive failure to exercise jurisdiction for the same reasons that ground 4A was made out in relation to the application of the wrong statutory test by the Tribunal: see [60]-[65] above. Ground 5A therefore establishes jurisdictional error in the Tribunal Decision.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)Grounds 1A, 4A and 5A of the Amended Judicial Review Application have been made out and establish jurisdictional error in the Tribunal Decision;
(b)alternatively if, contrary to the Court’s conclusion above, ground 1A of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision, then ground 2A of the Amended Judicial Review Application is made out and establishes jurisdictional error in the Tribunal decision; and
(c)otherwise, ground 3A of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
It follows that:
(a)a writ of certiorari quashing the Tribunal Decision made on 24 December 2019; and
(b)a writ of mandamus requiring the Tribunal to re-hear the application made by the applicants on 16 April 2019 for approval of a nomination under s 140GB of the Migration Act 1958 (Cth) and reg 2.73 of the Migration Regulations 1994 (Cth) of an occupation for a temporary skill shortage and determine it according to law,
will issue.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 1 April 2022
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