Khan v Minister for Immigration and Anor and Rahman and Ors v Minister for Immigration and Anor

[2019] FCCA 3057

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR and RAHMAN & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3057

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Standard Business Sponsor (SBS) – whether the Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments – whether the Tribunal indicated its concern as to the capacity of the business to employ a person on a full-time basis for two years – whether the Tribunal denied the applicant procedural fairness – procedural unfairness made out – the application is upheld.

Legislation:

Migration Regulations 1994 (Cth), rr.5.19, 16.05

Cases cited:

Minister for Immigration v Applicant A125 of 2003 (2007) 163 FCR 285

SZBEL v The Minister for Immigration, Multicultural and Indigenous Affairs

(2006) 228 CLR 152

Applicant: RAFIQUAL ALAM KHAN

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1817 of 2018

Applicant: FARJANA RAHMAN

Second Applicant: MD RAISUL ISLAM

Third Applicant: RUKAYAT LAIBAAH ISLAM

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:	SYG 1910 of 2018
Judgment of:	Judge Humphreys

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Parramatta

Delivered on: 23 September 2019

REPRESENTATION

Solicitor for the Applicants in proceedings SYG1817/2018 and proceedings SYG1910/2018 Mr Jones, Michael Jones Solicitors

Counsel for the Respondents in proceedings SYG1817/2018 and proceedings SYG1910/2018 Ms Carr

Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

IN PROCEEDINGS SYG 1817 of 2018

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. A writ of certiorari removing into this Court the purported decision of the second respondent made on 25 May 2018.

3. A writ of mandamus directed to the Tribunal quashing the decision of the second respondent.

4. A declaration that the decision is void and of no effect.

5. An order by way of mandamus that the second respondent reconsider the application for review in accordance with law and any directions of the Court.

6. The First Respondent pay the Applicant’s costs fixed in the amount of $7467.00.

IN PROCEEDINGS SYG 1910 of 2018

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. A writ of certiorari removing into this Court the purported decision of the second respondent made on 14 June 2018.

3. A writ of mandamus directed to the Tribunal quashing the decision of the second respondent.

4. A declaration that the decision is void and of no effect.

5. An order by way of mandamus that the second respondent reconsider the application for review in accordance with law and any directions of the Court.

6. The first respondent pay the applicants’ costs fixed in the amount of $1033.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1817 of 2018

RAFIQUAL ALAM KHAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

SYG 1910 of 2018

FARJANA RAHMAN

First Applicant

MD RAISUL ISLAM

Second Applicant

RUKAYAT LAIBAAH ISLAM

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant runs an accounting business Accotax Consultant. The applicant applied for a approval as a Standard Business Sponsor (SBS) for Farjana Rahman for the position as an accountant. This matter is being heard in conjunction with the matter of Rahman v Minister for Immigration & Anor (“Rahman”), however, it has been conceded by both Counsel that the outcome of the matter involving the applicant, will be dispositive of the issue in relation to Ms Rahman (the nominee). Therefore, I will give reasons in relation to the matter of Khan first and then short reasons in relation to the matter of Rahman.

2. A delegate of the Minister for Immigration (“the Minister”) refused the application on 23 January 2017. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision of 25 May 2018, the Tribunal affirmed the decision to refuse the nomination by the applicant (the sponsor) Ms Rahman, as an accountant. The applicant, Mr Khan (the sponsor), now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal

1. At paragraph 4 of its decision in Khan, the Tribunal noted that the Minister had refused the application on the basis that the applicant’s nomination did not satisfy r 5.19(3)(f) of the Migration Regulations 1994 (Cth) (“the Regulations”)[1]. This was because the Minister was not satisfied that the applicant had fulfilled the training requirements during the period of the applicant’s most recent approval as a Standard Business Operator. This concerns the amount of money that must be spent on training during a relevant period.

   [1]This was the Regulations that was in force at the time of the Minister’s decision in Khan.

2. Paragraphs 5 to 8 of its decision, the Tribunal noted that the applicant runs an accounting business. The applicant applied for an approval of a Standard Business Sponsor (SBS) for the nominee. The Minister refused the application as it did not meet the criteria as stated above, in that the sponsor had not spent $1380.00 on training of Australian citizens or permanent residents employed as staff, in the past 12 months prior to the Standard Business Sponsorship (SBS) application.

3. At paragraphs 9 to18 of its decision, the Tribunal outlined the evidence provided to it. At paragraph 13 of its decision, the Tribunal noted that the net income of the business (before tax) had decreased in the year from June 2016 to June 2017, which indicated, in the Tribunal’s view, that the business would not be able to employ the nominee for two years on a full time basis. The Tribunal noted that the applicant (Mr Khan) had told the Tribunal that despite a decrease in net income, he was still hopeful of an improved return from the business.

4. At paragraph 19 of its decision, the Tribunal noted the requirements for approval of the nomination under the Temporary Residence Transition nomination stream as set out r 5.19(3) of the Regulations. For the nomination to be approved, all requirements must be met.

5. Paragraphs 20 to 27 of its decision, detail the Tribunal’s analysis of the cash flow of the business. The Tribunal noted that the applicant employed 10 staff from the period 29 January 2017 to 28 January 2018 and that except for the applicant and the nominee they earned less than $9,000 each. The nominee’s gross wages during the period was only $14,807.69. This did not indicate to the Tribunal the applicant’s capacity to employ the nominee on a full-time basis. Accordingly, the Tribunal was not satisfied that the applicant had the capacity to employ the nominee on a full-time basis for two years, as required.

Ground of Appeal

1. A single ground of appeal is now pressed in relation to the applicant. The ground of appeal is as follows:

   (1) The Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments in relation to all of the issues in the review.  

   Particulars

   The decision of the delegate was based entirely on a consideration of the evidence relating to the Applicant’s training record. The Tribunal’s decision was based on a finding that it was not satisfied the nominee would be employed in the nominated position on a full-time basis for at least two years. The Tribunal did advise the applicant that this was an issue in the review.

The Applicant’s Submissions

1. The only issue the Minister considered was the training requirement. The Tribunal decided the matter exclusively on whether the nominee would be employed on a full-time position basis for two years, pursuant to

   
   

   r 5.19(3)(d) of the Regulations. During the course of the hearing before the Tribunal, there was discussion about the finances of the business, but no mention was made as to the capacity of how the business would be able to employee the nominee over a two year period, on a full-time basis. In SZBEL v The Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at paragraph [35] and [36], the Court said the following:

   [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as being determinative of the applicant.

   [36]…But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the decision.

2. Counsel for the applicant submitted that it was simply not sufficient to advise, in a standard form letter, what the issues might be in a circumstance whereby they were very wide. Had the applicant been advised that an issue that would be dispositive, would be the issue of whether or not he had the finances to employ the nominee for a period of two years, the applicant may have been able to make an explanation as to the ability to employ the nominee for a period of two years. Because it was not squarely raised with the applicant, there was error under SZBEL.

The First Respondent’s Submissions

1. Counsel for the First Respondent submitted that the applicant was on notice of the dispositive issue of the review. The letter of 13 February 2018 sent to the applicant, noted that the Tribunal required an “up to date and current information” addressing the criteria in r 5.19(2) and r 5.19(3) of the Regulations. The letter at page 200 of the Court book, makes specific reference to paragraph 7(a):

   a. The nominee has been employed full-time in Australia in the position for which they hold a Subclass 457 visa for at least two years….and they will be employed on a full-time bases for at least two years.

2. At the commencement of the hearing, the Tribunal noted that it was not bound by the Minister’s decision and it needed to be satisfied that the applicant satisfied “every other requirement”. During the hearing, the Tribunal questioned the applicant about the financial status of the business. Counsel for the First Respondent submitted that the Tribunal was not under obligation to identify the significance of those questions on the ultimate matter or issues to which those questions went (see Minister for Immigration v Applicant A125 of 2003 (2007) 163 FCR 285 (“Applicant A125”) at paragraph [88]).

Consideration

1. This matter in relation to the applicant in Khan falls to consideration of a relatively simple point: was the applicant denied a meaningful opportunity to give evidence and present arguments in relation to all the issues. I am prepared to accept that the letters from the Tribunal said the Tribunal required up-to-date information in relation to all matters. I also note that at the commencement of the hearing, the Tribunal member indicated that they were not bound by the Minister’s findings and they needed to be satisfied as to “every other requirement”.

2. Whilst it is for the applicant to prove their case, it is also true that the applicant needs to know what it is they need to prove. The Minister in this case, decided the issue on the basis of the training requirement. The Tribunal decided it on another issue. Nowhere, however, did the Tribunal indicate its concern as to the capacity of the business to employ the nominee on a full-time basis for two years. Over the period 29 January 2017 to 28 January 2018, the nominee’s wages had only been $14,807.69.

3. It is an available inference that this was on the basis that the nominee had also been on maternity leave. I am also satisfied that there was a capacity of the business, had it changed its business arrangements in terms of the number of people it employed, that it could have employed the nominee on a full-time basis. It was also apparent from the financial information that was provided to the Tribunal that had the applicant been prepared to reduce the amount of earnings or drawings he was taking from the business, this would have allowed him increase the amount of employment that the nominee would have had.

4. Another possibility was that the applicant could have significantly reduced the amount of casual employees that the business employed and by so doing, employ the nominee on a full-time basis. The issue is that the nominee was never asked why her wages were so low. The Tribunal noted that the business employed 10 other people on a casual basis. Had it put the issue of concern to the applicant, he may have been able to provide an explanation to the changes he would have been able to make to meet the requirement, but the applicant, in fact, was never asked.

5. I am satisfied that the Tribunal was required, as set out in SZBEL, to put the nominee on notice. I am not satisfied that the general letters did so sufficiently as to what was a different issue. The First respondent put to the Court that the answer to SZBEL is to be found in Minister for Applicant A125 at paragraph [88], which says the following:

   The short answer to the applicant’s submission based on SZBEL 228 CLR 152 is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL 228 CLR 125, and is an attempt to import the requirements of s 424A(1) into s 425.

6. There is no doubt that there is no requirement on the Tribunal to identify the significance of the questions it asks. However, it is required to allow the applicant the capacity to put their case. It is required to identify those issues which will be dispositive. I consider that this case is distinguishable simply because it was not made clear to the applicant in any way during the course of the hearing, as to whether or not he had the capacity to employ the nominee on a full-time basis for two years.

7. It is a matter of procedural fairness. I am satisfied that had those questions been asked, the applicant would have had the opportunity of putting forward some material. Had the Tribunal formed a negative view based on the applicant’s answers, then that would have been the end of the matter, but it did not ask any of those questions. I have identified, based on the information that has been placed before the Court, that there are a number of possibilities that could have been undertaken by the applicant to turn around and, in effect, create circumstances by which he was able to employ the nominee for two years. I am satisfied that there has been a procedural unfairness.

8. In relation to the nominee, for the reasons I have given above and noting the concession of counsel that the matter of Rahman must follow the result of the applicant, I also uphold that application.

Conclusion

1. I am satisfied that the application is made out. The application is upheld.

2. The orders granted will be those set out in the application before the Court.

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

Deputy Associate:

Date: 1 November 2019