Lace Holdings Pty Ltd v Minister for Immigration and Multicultural Affairs
[2002] FCA 254
•15 MARCH 2002
FEDERAL COURT OF AUSTRALIA
Lace Holdings Pty Ltd v Minister for Immigration & Multicultural Affairs [2002] FCA 254
MIGRATION – application for approval as a standard business sponsor – affirmation by Migration Review Tribunal of delegate’s refusal of application – whether Tribunal wrongly cast onus of proof – whether Tribunal in error of procedural failure – whether Tribunal in error of law – whether Tribunal acted on no evidence or other material
Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 476(1)(g), 476(4)
Migration Regulations reg 1.20D(2)(c)(ii), 1.20D(2)(d), 1.20D(2)(f)Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Curragh Queensland Mining Ltd v Daniel & Ors (1992) 34 FCR 212 cited
Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 citedLACE HOLDINGS PTY LTD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 127 of 2001RD NICHOLSON J
15 MARCH 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 127 of 2001
BETWEEN:
LACE HOLDINGS PTY LTD
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
15 MARCH 2002
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application for an order of review be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 127 of 2001
BETWEEN:
LACE HOLDINGS PTY LTD
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
15 MARCH 2002
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 28 March 2001. The Tribunal affirmed a decision of a delegate of the respondent that the applicant did not meet the criteria for approval as a “standard business sponsor” under the Migration Regulations made under the Migration Act 1958 (Cth) (“the Act”). The applicant claims to be aggrieved by the decision because it is prevented from employing the person the subject of nomination in the application. That person is herself an applicant for an order of review in the related matter of Abeywardane v Minister for Immigration & Multicultural Affairs, the reasons for which are published contemporaneously with these reasons. They should be read together.
Grounds of review
The application relies on three bases. The first is a failure to observe procedural requirements: s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”). The second is error of law involving an incorrect application of the applicable law and a failure to apply it to the facts: s 476(1)(e) of the Act. The third relies on absence of evidence or other material to justify the making of the decision: s 476(1)(g) and (4).
Legislative and regulatory provisions
A “standard qualified business sponsor” has the same meaning as in Div 1.4A which is set out in reg 1.20B of the Migration Regulations. It is defined by reg 1.20B to mean a person approved as such in accordance with reg 1.20D.
Regulation 1.20D addresses approval of business sponsors, applications for approval as such being authorised by reg 1.20C. The relevant portion of the former regulation at the relevant date reads as follows:
“1.20D(1) Subject to this regulation, the Minister may, by instrument in writing, approve or reject an application for approval as pre-qualified business sponsor or as a standard business sponsor.
(2) The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if:
(a)the Minister is satisfied that the applicant for approval is lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to:
(i)the creation or maintenance of employment for Australian citizens or Australian permanent residents; or
(ii)expansion of Australian trade in goods or services; or
(iii)the improvement of Australian business links with international markets; or
(iv)competitiveness within sectors of the Australian economy; and
(b)in respect of each visa applicant who seeks to satisfy the primary criteria for a Subclass 457 visa to be granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) or (5) of Schedule 2 in relation to the visa application; and
(ii)the visa applicant satisfies the requirements of that subclause;
the Minister is satisfied that:
(iii)the applicant for approval proposes to be the direct employer in Australia of the visa applicant as the holder of the visa (in this subregulation called the visa holder; or
(iv)if the applicant for approval is a body corporate – the applicant for approval is, under section 50 of the Corporations Law, related to the body corporate that proposes to be the direct employer in Australia of the visa holder; and
(c)the Minister is satisfied that the applicant for approval:
(i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or
(ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and
(d)the Minister is satisfied that nothing adverse is known to Immigration about the business background of the applicant for approval; and
(e)the Minister is satisfied that where relevant, the applicant for approval has a satisfactory record of compliance with the immigration laws of Australia; and
(f)the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) or (5) of Schedule 2 in relation to a visa applicant; and
(ii)the visa holder satisfies the requirements of that subclause;
the applicant for approval is able , in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067.”
The undertakings to be given by an applicant arising from form 1067 as they were at the date of the decision were relevantly:
“
qcomply with Australian industrial relations laws, Australian levels of remuneration and conditions of employment;
qcomply with immigration requirements;
qnotify DIMA of any change in circumstances that may affect the company’s capacity to honour its sponsorship obligations, or any change to the information provided on this form;
qaccept that the recruitment of labour from overseas must not counter Government training policies and objectives of producing a highly skilled and flexible Australian workforce.”
Tribunal’s findings
The Tribunal found that on the available evidence and material before it, Lace Holdings did not satisfy regs 1.20D(2)(c)(ii), 1.20D(2)(d) and 1.20D(2)(f).
The Tribunal’s conclusion in relation to reg 1.20D(2)(c)(ii) (relating to the issue of training) was in the following terms:
“19. At the hearing the review applicant’s response to questions asked by the Tribunal was sketchy and evasive. It was the review applicant’s own evidence that no training of Australian citizens and permanent residents has been undertaken by the business. Nor has the review applicant demonstrated any commitment to training.”
In relation to reg 1.20D(2)(d) (adverse knowledge) and (f) (compliance with undertakings), the Tribunal said:
“20. As already mentioned above the review applicant did not deny not having complied with undertakings she gave in the previous application in regard to salaries to be paid. The Tribunal has considered the submission by the review applicant’s agent stating that DIMA made no attempt to contact the employer to ascertain if they were complying with provisions of the legislation at the time the second sponsorship was lodged. Notwithstanding this the Tribunal is not satisfied that the review applicant met the requirements of regulation 1.20D(2)(d) and 1.20D(2)(f).”
Additionally, the Tribunal said there was no evidence before the Tribunal that indicates a suitably qualified Australian citizen or permanent resident is not readily available to fill the position [par 21].
The conclusion of the Tribunal in relation to reg 1.20D(2)(f) (compliance with undertakings) is to be considered in the context of what the Tribunal had previously recounted in consideration of the evidence before it in the following terms:
“15. At the hearing the review applicant reiterated much of the evidence contained in the files. She did not deny not having complied with the undertakings that she gave in the previous application, but suggested that as business had slowed down in recent years she provided the nominee with whatever work her business could sustain. She believes the nominee has special cooking skills and that she cannot find any one else to do her work. She employs 6-7 employees all of whom, including the nominee, are classified as ‘permanent casuals.’ She admitted that although the nominee has been in her employ since at least 1997 no training or passing on of the nominee’s skills to other Australian citizens has occurred.”
That was followed by the following statement:
“16. Following the hearing the agent submitted further documents, including copies of group certificates and a submission dated 5 February 2001. In the latter it is suggested that the review applicant could not find a suitable applicant to fill the position that the nominee holds and that the nominee cooks dishes that no other Indian/Sri Lankan restaurants in Perth cook”.
Reasoning
Onus of proof
For Lace Holdings it is submitted that when the Tribunal concluded Lace Holdings “does not satisfy the requirements” of reg 1.20D it was purporting to place an onus of proof upon the applicant contrary to the provisions of the Act. What was required, it is submitted, is that the Tribunal, standing in the shoes of the Minister, should be satisfied in relation to the matters enumerated in reg 1.20D(2). In so doing it is said the Tribunal imposed the wrong test, asked the wrong question, incorrectly applied the law and failed to apply the law to the facts.
I agree with the submission for the respondent in response that on a fair and objective reading of the paragraphs of the Tribunal’s reason for decision, the Tribunal did not make an error of law by applying the test to the effect that the applicant must satisfy “requirements” in reg 1.20D. In par 18, the Tribunal recounted that it took into account all the material and evidence before it. It made a finding in the light of that evidence and material. It then proceeded to address three of the criteria in reg 1.20D. This argument for Lace Holdings amounts to an invitation to discern error in an impermissible way: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
Commitment to training: reg 1.20D(2)(c)(ii)
In relation to the Tribunal’s finding in par 19 of its reasons quoted above, it is submitted for the applicant that the reasoning of the Tribunal involved an error of law being either a wrong interpretation of the law or a misapplication of it: s 476(1)(e) of the Act. It is said the evidence before the Tribunal, relied on by it, went only to the question of whether it had a satisfactory record of training Australian citizens and Australian permanent residents in its business operations in Australia. It is submitted the evidence did not entitle the Tribunal to conclude, as required by the second limb of reg 1.20D(2)(c)(ii), that the applicant did not have “a demonstrated commitment” towards such training. The contention is that the Tribunal has failed to treat the requirements of the subparagraph disjunctively and has conflated the tests mandated by it.
It is patent from the express words of the final sentence of par 19 in the Tribunal’s reasons that it sought to address the question of “demonstrated commitment”. There was therefore no error of law within s 476(1)(e) either as to interpretation or application.
Additionally, given the recorded admission on behalf of applicant in par 15 of the Tribunal’s reasons and the evidence relied upon by it in par 19 and the other evidence before the Tribunal, I consider there was evidence or other material from which the Tribunal could reach a conclusion not only in relation to the absence of a “satisfactory record” but also of “demonstrated commitment”. In my view no ground for review exists in relation to this contention under the alternative ground in s 476(1)(g).
Adverse knowledge concerning business background: reg 1.20D(2)(d)
It is submitted for the applicant that there is no explanation as to why it did not satisfy this requirement – that is, there is nothing recorded by the Tribunal adverse about the applicant’s business background. Two errors are alleged in relation to this (and the Tribunal’s findings on compliance with undertakings). The first is procedural non-compliance with the requirements of s 368 of the Act. The second is the no evidence ground in s 476(1)(g) and (4).
Paragraph 20 of the Tribunal’s reasons is to be read as a whole. The last sentence cannot be disembodied from what precedes it. It is apparent that in reaching its conclusion in relation to subpar (d) and the issue of business background, the Tribunal was relying upon the fact that the applicant did not deny not having complied with undertakings previously given in regard to salaries to be paid. The Tribunal would have been entitled to consider that was material adverse about the business background of the applicant. The case for the applicant seeks to minimise that reliance by referring to it as the “sole basis” for the finding. That does not assist the applicant because it does provide a basis for the finding.
Paragraph 20 of the reasons refers to matters previously mentioned in the Tribunal’s reasons. These would appear to be those addressed in par 12 which reads:
“12. The files before the Tribunal contain a letter from DIMA to the review applicant dated 21 August 1998. This letter is in the form of a monitoring report seeking the review applicant’s co-operation with providing further information in relation to the first business sponsor application, specifically information relating to evidence of salary and training records. In responding to this request the review applicant gave no indication as to any training being undertaken by the review applicant. However the review applicant provided information as to salaries paid to the nominee. These appeared to be substantially less than the $33,500 per annum originally stated by the review applicant on form 1068 in 1997. It would appear that in a subsequent telephone conversation between DIMA and the review applicant, the review applicant claimed that she was not aware such a salary had been indicated on the sponsorship. It was further claimed that the business could not afford to pay such a high salary.”
Paragraph 12 is therefore also part of the evidentiary matrix providing a foundation for the finding of the Tribunal under reg 1.20D(2)(d).
In these circumstances the applicant’s case cannot satisfy the requirements of either s 476(1)(g) or (4): see Curragh Queensland Mining Ltd v Daniel & Ors (1992) 34 FCR 212 at 220-221 and Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 at 54-58.
Turning to the procedural argument, it is clear that this cannot succeed either. The Tribunal has set out its findings in relation to reg 1.20D(2)(d) and reg 1.20D(2)(f) of the Regulations. In light of the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, the Tribunal was not under a duty to provide exhaustive findings on every fact objectively material to the decision it was required to make. It is only obliged to set out its findings on those questions of fact it considered material to its decision and its reasons. In Yusuf it was held that a complaint that a tribunal has not made a finding of fact on a material question cannot support a ground of review based on failure to observe the procedures in s 430 at par [77]. Section 368 is in the same terms as s 430.
Unavailability of suitably qualified Australians
Next it is submitted for Lace Holdings that in its conclusion in par 21 that a suitably qualified Australian citizen or permanent resident is not readily available to fill the position, the Tribunal fell into error of law. The error of law is said to be jurisdictional error rising under s 476(1)(e) or alternatively (b): Yusuf. This ground was not included in the application for an order of review but arose from the written submissions for the applicant.
There was evidence before the Tribunal in the form of a letter from Mrs Che on behalf of Lace Holdings that prior to the employment of Mrs Abeywardane she had constant problems in finding a suitable cook to employ in the curry business. Further, in its reasons the Tribunal made the statement in par 16 quoted above. It is contended for the applicant that par 16 is a direct contradiction of the finding in the reasons in par 21. Therefore, it is submitted, the Tribunal failed to take into account a relevant consideration so that the decision is affected by jurisdictional error.
It is apparent from par 21 of the Tribunal’s reasons that it did not fail to take into account the relevant consideration as alleged. Rather it implicitly rejected the applicant’s assertion that she could not find a substitute and made a finding, open to it, that there was no evidence to indicate that a suitably qualified Australian citizen or permanent resident was not readily available. The evidence before the Tribunal disclosed evidence on which the Tribunal would have been entitled to find Mrs Che’s evidence on this point unreliable, namely, that she did not undertake any training of locals in the requirements of cooking for her business.
Ability of applicant to comply with undertakings: reg 1.20D(2)(f)
For Lace Holdings it was also submitted that in par 20 of the Tribunal’s findings and its conclusions, it was in error of law in its interpretation of the use of the word “able” as it appears in reg 1.20D(2)(f). It is submitted that the Tribunal was required by the use of that word to be satisfied that the applicant for approval had the ability to comply with the relevant undertakings. However, it is said the Tribunal interpreted the requirement as requiring it to be satisfied that the applicant for approval “will” be able to comply with the undertakings.
I agree with the submissions of the respondent on this issue. They are to the following effect.
No authorities have been found where ‘able’ in the context of reg 1.20D(2)(f) of the Regulations is the subject of judicial interpretation. The cases cited by the applicant that deal with reg 1.03 of the Regulations are not instructive in interpreting reg 1.20D(2)(f) as reg 1.03 deals with the definition of “special need relative” which means a relative “who is willing and able to provide substantial and continuing assistance to the citizen or resident”.
The word “able” is not defined in Div 1.4A of the Regulations or elsewhere in the Regulations and the Act, and therefore, should take its ordinary and natural meaning in the context in which it is used. The New Shorter Oxford Dictionary gives meaning to the word “able” as follows:
“…2. Suitable, competent. …4. Having the qualifications for, and means of, doing something; having sufficient power (to do); …”
The word “able” is used in reg 1.20D(2)(f) of the Regulations in the context of considering whether an applicant should be approved as a business sponsor, and the relevant criterion is that:
“(f)the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) or (5) of Schedule 2 in relation to a visa application;
…
the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067.” [Emphasis added]The applicant claims the Tribunal has interpreted and applied the criterion in reg 1.20D(2)(f) as meaning “the applicant will comply with the undertakings”.
In the context of determining whether an applicant is a suitable business sponsor, the assessment of whether or not that person is suitable, competent, has the qualifications for and the means or sufficient power to comply with specified requirements must be assessed in some manner or method. In making such an assessment in the circumstances of each case, the Tribunal must consider the evidence that points to the competency of the applicant to comply with the undertakings it has given.
In assessing whether it was satisfied that the applicant is able to comply with the undertakings it had given, the Tribunal looked to the evidence before it. The applicant’s own evidence demonstrated its lack of commitment to training and the applicant had not produced sufficient evidence that a suitably qualified Australian citizen or resident was not available to fill the position. As well, there was evidence from the Department of Immigration and Multicultural Affairs of the applicant’s non-compliance with previous undertakings made in respect of the same visa holder. All these matters were material considerations. The Tribunal was satisfied the applicant was not able to comply.
The Tribunal could only move to the question the applicant alleges it asked (i.e. whether the applicant will comply with the undertakings) after first determining whether the applicant was able to comply. If the applicant is not able to comply then in all probability it will not comply. This is not a case where on the evidence the applicant had demonstrated it was able to comply with the undertakings and the Tribunal then determined that the applicant will not comply despite being competent to comply.
In the present case the Tribunal correctly interpreted and applied reg 1.20D(2)(f) of the Regulations. Satisfaction as to an applicant’s ability to comply with the undertakings is a finding of fact and degree for the Tribunal based on the circumstances of the case. The possibility that the Tribunal’s finding of fact is in error or that the Court may have made a different finding of fact is not a permissible basis for review: see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56].
Conclusion
For the above reasons I consider the application should be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.Associate:
Dated: 15 March 2002
Counsel for the Applicant: Mr AJ Goldfinch Solicitor for the Applicant: Messrs Goldfinch & Co Counsel for the Respondent: Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 November 2001 Date of final submission: 30 November 2001 Date of Judgment: 15 March 2002
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