Lee v Minister for Immigration

[2008] FMCA 1523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1523

MIGRATION – MRT decision – business skills (residence) visa – disqualification for involvement in business activities “of a nature that is not generally acceptable in Australia” – regulation not invalid for uncertainty or unreasonableness – applicant failed to meet PAYG tax obligations in operation of car wash business – weight given by Tribunal to unlawfulness of activities – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.31(3)
Migration Regulations 1994 (Cth), r.892.214

Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752
Brunswick Corp v Stewart (1941) 65 CLR 88
Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214
Vanstone v Clarke (2005) 147 FCR 299

First Applicant: GI WUN LEE

Second Applicant: ME HWA SIN

Third Applicant: NA MI LEE

Fourth Applicant: HUN JUN LEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1771 of 2008

Judgment of: Smith FM

Hearing date: 27 October 2008

Delivered at: Sydney

Delivered on: 25 November 2008

REPRESENTATION

Counsel for the Applicants: Mr N Poynder

Solicitors for the Applicants: Peter Bollard & Associates

Counsel for the First Respondent: Mr S Lloyd

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs as agreed or taxed under Federal Court Rules O.62.  Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1771 of 2008

GI WUN LEE

First Applicant

ME HWA SIN

Second Applicant

NA MI LEE

Third Applicant

HUN JUN LEE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants were refused class DF ‘business skills (residence)’ subclass 892 ‘State/Territory sponsored business owner’ visas, because the applicant husband did not satisfy a criterion in cl.892.214 of Sch.2 to the Migration Regulations. This required:

   Neither the applicant nor his or her spouse (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia. 

2. The applicants contend that the Minister had no power to prescribe this criterion in the Migration Regulations, because it is ‘overly wide, vague and uncertain’. Alternatively, they contend that the Tribunal made a jurisdictional error when applying it to the applicant husband’s circumstances, because the Tribunal thought that it was enough merely that he admitted breaches of PAYG taxation and other employer obligations in the course of his business.

3. The applicant husband and his wife came to Australia on temporary business visas in 2003, and established a car wash business in the North Rocks Westfield Shopping complex.  This closed in late 2005, and the applicants then purchased “a bigger car wash business… employing 2 full-time Australian citizens”, which was conducted at a Caltex service station at Lane Cove. 

4. On 23 January 2007, an agent lodged the residency visa application for the husband as primary applicant, and his wife and two children as secondary applicants.

5. Officers of the Department of Immigration visited the business on 29 March 2007.  They observed “4 young men working on two cars when we arrived”.  The applicant husband told them that his business was open 7 days per week and closed in rainy weather.  He said that “he currently employed 4 – 5 staff and 6 – 7 on weekends”.  He said that the two Australian citizens who were referred to in the visa application as the business’s full time employees, and who were mature women, were “both away today”, but “they took money and did light work like cleaning windows”.  He had no “paperwork” at the business, and said that the employees were paid in cash.  He later told the Department that the casual workers were ‘working holiday visa holders’.  However, their wages did not appear in the business’s company accounts for 2006, and had not been declared to the Australian Taxation Office for any of the four quarters in 2006.

6. After further exchanges with the applicants’ migration agent, a delegate refused the visa applications.  He was not satisfied that the business had employed the claimed two Australian citizens, nor that the applicants had established the required level of asset backing.  He also was not satisfied that criterion 892.214 was met by the primary applicant.  He said:

   I consider that the granting of a business skills visa to an applicant who appears to have evaded tax obligations through participation in the ‘cash’ or ‘black’ economy would be likely to be offensive or to give rise to controversy in the Australian community.

7. The applicants appealed to the Tribunal.  In response to the delegate’s concerns ‘about employment matter’, the applicant husband provided ‘the following clarifications’:

   (1)Employment – I have employed two Australian citizens (Young Ja Song and Min Jung Nam) who worked full-time, one in the capacity of accounting matters including cashiers duties and the other in the capacity of car interior detailing.  Nam.  As evidence I enclose a certified copy of the Notice of Assessment issued by the Australian Taxation Office for one employee.  I am waiting for another, and will send you one as soon as it arrives at my place.

   (2)Casual employment – Due to the nature of the business, I had to employ a few people on a casual basis.  And due to the lack of interest from the Australian general public in working in this type of labour work, I had no choice but to rely on overseas people such as working holiday makers for the required job.  They work for a short period due to their travel plan and work limitation condition.  This has been the main reason why they were omitted from employment declaration and PAYG withholding tax.  I have now rectified this situation and will continue to do the right things.  I regret about the default of conducting business in the way that had gone through.

8. A second statement by him was forwarded to the Tribunal on 9 June 2008, after he had attended a hearing.  It said:

   To begin with, I reiterate my earlier submission that I sincerely regret about the default of conducting the business in the way that had gone through and also that I have rectified this situation as from July 2007.

   Having said that, I would like to elaborate on the realities of my business operation in Australia. I have been operating a car wash business providing car wash, polish and vacuum, interior and exterior detailing, with the customer's complete satisfaction as the top priority. As would be appreciated, the type of work generally gives a first impression of a dirty labour work which is unattractive to local people. It is hardly thinkable that local people in Sydney would want to take this job as their career at all.  To be of fair assessment of the Australian labour market, it is of my impression that local people may be interested in this type of work only, if not generally, on the following circumstances:

   •   if they had to work for their survival (like in time of financial crisis). But Australian realities in my observation appear to be that the Australian social security benefit system does relax local people's urgency in getting a job to the extent that they don't feel desperate to work in the type of job available in my business.

   •   Even if they decide to work in this type of job, they would work only, if not mostly, on a casual basis and paid in cash. If I do not pay cash for their work, they do not come to work. As I understand it, such preference appears to be a quite common attitude in the Australian community.

   I respectfully submit that I have experienced almost impossible to employ local Australian citizens or permanent residents under the current Australian labour market culture and environment most probably because of the above mentioned realities.

   The only other real alternative source of getting workers in my industry is mostly working holiday makers who work only to supplement their finance by working on a short term or casual basis for their holiday in Australia, who want to be paid cash. Due to their short term employment, say a week or a month, I have found extremely difficult to maintain book keeping for them as well as their taxation matters. And yet, I found it extremely difficult, if not impossible, to operate my business without them.

   At this point I would like to assure the Tribunal that my submission is not intended to argue that the employment of people including working holiday makers with cash payment arrangement is right or wrong, but simply to draw the Tribunal's attention to the realities which I believe commonly practiced in my line of business in Australia.

   Before I close, I also would like to convey two points. First one is that despite what I said above, I have rectified my old system where I happened to neglect taxation matters on my casual employment of working holiday makers and students and that I am determined to continue to operate the business in a right way. Second one is that I have really worked hard to make my business as a viable and sustainable one, for which I have been successful, but I have been short of a perfect business conduct due to with my limited familiarity with Australian business environment and culture and also limited knowledge of taxation matters.

9. The Tribunal handed down its decision on 30 June 2008, affirming the delegate’s decision. It agreed with the delegate that the primary visa applicant did not satisfy cl.892.214. Its reasoning in relation to this was:

   The Tribunal observes that the first named visa applicant has admitted by way of submission and oral evidence that he had paid cash to his carwash casual employees. The delegate found that the salaries had not been declared to the ATO and that PAYG withholding tax obligations on their behalf had not been met and that the first named visa applicant “had evaded tax obligations through participation in the ‘cash’ or ‘black’ economy and this behavior “would be likely to be offensive or to give rise to controversy in the Australian economy”.

   The issues facing the Tribunal are, therefore, whether the first named visa applicant has “a history of involvement in business activities that are of a nature that is not generally acceptable in Australia”. The first named visa applicant has admitted to failing to pay withholding taxes and has rectified his failure according to his submission to the Tribunal. He gave as his reason for this course of conduct that the industry in which he works is driven by casual labour. He claims that it is very difficult to secure employees in a car wash business because the nature of the job is that it is dirty and monotonous work with no obvious career path.

   In these circumstances the only people attracted to work in the industry (car washing) are employees like Student visa holders or backpackers. He has insisted that many employees cease working after only one day - for whatever reason - and others spend only a little time in his employ. He said in the hearing that the majority of the employees expect to be paid in cash for their work because of their transient situation. The first named visa applicant has pointed out that his is also a ‘start up’ business which has enjoyed a certain success and he submits that in the early years of a business little tax is paid to the Government in any case.

   The Tribunal finds that the first named visa applicant’s claims are based on what he thinks is a real world scenario and the reality of his industry. The Tribunal does not disagree with him regarding the nature of the employment scenario he outlined to it.  But the crucial point is that he has admitted to breaking the law over a period of time by bypassing payroll tax, superannuation and workers' compensation payments through cash payments to his casual employees. The employees for their part have evaded paying income tax. He, therefore, has ‘a history of involvement in business activities’ meaning an elaborated, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful. Furthermore, although the first named visa applicant has claimed to have rectified these payments, he did not desist from this conduct until discovered by the Department on a site visit in regards to his Business visa application.

   The Tribunal finds that this behaviour may be prevalent in Australia due to the exigencies of certain employment situations (as the first named visa applicant claims) but it is, nevertheless not ‘generally acceptable’ in Australia because it is, in fact, a breach of the law of the land and avoidable. The Tribunal finds, therefore, that the first named visa applicant does not meet the criterion in clause 892.214

The construction of criterion 892.214

1. The starting point for both grounds of review is to consider the construction of this criterion. 

2. The Tribunal extracted ‘the essential criteria’ which provide context for the consideration of cl.892.214, as they stood at the relevant time:

   892.21   Criteria to be satisfied at time of application

   892.211(1)     The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

   (2)     For each business to which subclause (1) applies:

   (a)     an Australian Business Number has been obtained; and

   (b)     all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

   892.212Unless the appropriate regional authority has determined that there are      exceptional circumstances, the applicant meets at least 2 of the following      requirements:

   (a)     throughout the 12 months immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse, or the applicant and his or her spouse together, employed at least 1 full-time employee (or a number of part-time employees working an equivalent number of hours) who:

   (i)      is not the applicant or a spouse of the applicant; and

   (ii)     is an Australian citizen, an Australian permanent resident or a New Zealand passport holder;

   (b)     the net value of the business and personal assets in Australia of the      applicant, the applicant’s spouse, or the applicant and his or her spouse together, is, and has been throughout the 12 months immediately before the application is made, at least AUD250 000;

   (c) the total value of the net assets owned by the applicant, the applicant’s spouse, or the applicant and his or her spouse together, in the main business or main businesses in Australia is, and has been throughout the 12 months immediately before the application is     made, at least AUD75 000.

   892.213In the 12 months immediately before the application is made, the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD200 000.

   892.214Neither the applicant nor his or her spouse (if any) has a history of      involvement in business activities that are of a nature that is not generally      acceptable in Australia.

   892.215 If the applicant is not the holder of a Skilled – Independent Regional      (Provisional) (Class UX) visa, the applicant has been in Australia as the holder of 1 of the visas mentioned in paragraph 1104B (3) (f) of Schedule 1 for a total of at least 1 year in the 2 years immediately before the application is made.

   892.22Criteria to be satisfied at time of decision

   892.221The applicant:

   (a)     continues to satisfy the criteria in clauses 892.211 and 892.214; and

   (b)     if the applicant met the requirements of paragraph 892.212 (b), continues to meet those requirements.

   Main business is defined in the Regulations as follows:

   Regulation 1.11.    Main business

   1.11.(1)     For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

   (a)     the applicant has, or has had, an ownership interest in the business; and

   (b)     the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   (c) the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse, in the business is or was at least 10% of the total value of the business; and

   (d)     the business is a qualifying business.

   (2)     If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

   Qualifying business is also defined as follows:

   qualifying business means an enterprise that:

   (a)     is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

   (b)     is not operated primarily or substantially for the purpose of speculative or passive investment.

3. It has been held that the criterion must be affirmatively satisfied, for an applicant to qualify for the visa.  As the Full Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 at [74]:

   It is true that the criteria in reg 131.214 [which was in identical terms to cl.892.214] are stated in the negative.  But that does not alter the fundamental principle stated above.  The delegate was obliged to refuse the visa in light of her failure to be affirmatively satisfied that the respondent did not have a history of involvement in unacceptable business activities.

4. A decision-maker faced with evidence suggesting questionable business activities associated with an applicant is required to identify the ‘business activities’, characterise their ‘nature’, and assess whether this is ‘not generally acceptable in Australia’. The decision-maker must also address whether the evidence shows ‘a history of involvement’ by the applicant in the activities. 

5. Grammatically, the test in cl.892.214 of ‘not generally acceptable in Australia’ relates to the ‘nature’ of one or more ‘business activities’ in which the primary applicant has a ‘history’ of ‘involvement’. It does not attach directly to the ‘history’ of such ‘involvement’. It would therefore be an error for a decision-maker to ask whether a ‘history of involvement’ was ‘not generally acceptable in Australia’, rather than whether the nature of relevant business activities in which he was involved had that character.

6. However, in some situations the making of findings which precisely address each of the elements in cl.892.214 might not be necessary. Evidence about the history of an applicant’s involvement in questionable business activities might assist the assessment of the ‘nature’ of the business activities, and whether it was not ‘generally acceptable in Australia’. The duration, extent and significance of business activities might bear on an assessment of their ‘nature’ and its acceptability. In a simple situation such as the present, it might be enough for the decision-maker to address the criterion in an overall assessment of the circumstances, repetition, and acceptability of the applicant’s business activities. The decision-maker could consider whether, viewed collectively, and taking into account all its surrounding circumstances, the applicant’s questionable conduct should be regarded as showing a ‘history’ of ‘business activities’ which would ‘not generally be regarded as acceptable in Australia’ in the context of a grant of permanent resident status. If the decision-maker is satisfied that there was such a history, the criteria will not be satisfied. So too, if the decision-maker is left unpersuaded that there was no such history.

1. This is how the present Tribunal appears to have approached the criterion, and it was not submitted that jurisdictional error was made by doing this.  The errors which are contended are that the Tribunal treated the criterion as legally valid, and that it confused the test of ‘not generally acceptable in Australia’ with a test of ‘unlawful in Australia’.

2. I note that the applicants did not submit that the Tribunal misconceived the criterion’s reference to ‘history’ or ‘involvement’ or ‘business activities’ when addressing the applicant’s conduct.  They accepted that it was within the ambit of the criterion for the Tribunal to address the failure of the applicants’ company to comply with PAYG and other legal requirements in relation to its employees over a period of 12 months prior to the visa application and continuing until these deficiencies were discovered by the delegate.  In my opinion, this was properly conceded. 

3. Although there may be limits implicit from the context of cl.892.214 as to a relevant ‘history of involvement in business activities’, the term must clearly include business activities of the applicant in the qualifying periods identified in the other criteria for this subclass. I also accept the view taken by the Tribunal that ‘business activities’ can include the manner in which a business is conducted for profit, as well as the profit-making activities themselves. The criterion allows a decision-maker to consider a primary applicant’s compliance with laws, standards, ethics, and community expectations in the course of conducting a legitimate business in Australia. The contrary was not submitted by the applicants nor by the Minister.

The validity of cl.892.214

1. In relation to the validity of cl.892.214, the applicants’ written submission argued:

   30.It is here contended that cl.892.214 is invalid for similar reasons as discussed in Vanstone v Clarke.  The phrase “not generally acceptable in Australia” – even read with the words limiting it to “involvement in business activities” – is vague and so incapable of ready determination that it could mean almost anything.  While one could readily point to conduct which would come within the provision – for example the border trading activities discussed in Minister for Immigration v Lay Lat 151 FCR 214 – the sheer breadth of possible circumstances in which the provision might be applied could leave a visa applicant subject to arbitrary exercise of a discretion of a decision maker as to whether or not the clause has been met.

2. However, the legislation in Vanstone v Clarke (2005) 147 FCR 299 does not provide any analogy with the delegated legislation which is challenged in the present case. In that case, the Full Court addressed a clause in a Ministerial determination whose ordinary meaning was not difficult to determine, but which was contended to reach beyond the scope of the legislative power. The Minister’s legislative power was to “make a written determination providing that specified behaviour is taken to be misbehaviour for the purposes of this Act”.  The challenged clause purported to do this by providing: “the person is convicted of an offence for which there is a penalty of imprisonment.” 

3. Black CJ found that the clause was simply ultra vires, as drafted.  He held that it did not specify something which was ‘behaviour’ (see [10]-[12]).  Even if it were read as intending to refer to the conduct giving rise to a penalty of imprisonment, this would catch such an extraordinary wide range of conduct that it would not achieve the expressed statutory requirement of specificity (see [14]).

4. Weinberg J approached the issues of validity from a different angle.  He provided an impressive general discussion on the invalidity of subordinate legislation, in particular, because it adopts a disproportionate or unreasonable means for implementing the object of the legislative power.  At [162] Weinberg J said that the challenged clause “did not meet the requirements of reasonable proportionality”.  At [174] he said it was “drafted in extraordinarily broad terms.  It is difficult to conceive of a broader definition of ‘misbehaviour’, at least in the context of criminal offences leading to termination or suspension”.  These statements are later explained by him:

   [192]There is no rational basis for embarking upon the process of considering suspension or termination in relation to conduct that cannot, on any sensible view, ultimately justify suspension or termination. The vice in cl 5(1)(k) lies in its failure to filter out, as a possible basis for the Minister's consideration, conduct that could not conceivably warrant suspension, still less termination. In that sense, cl 5(1)(k) is premised upon reasoning that is seriously flawed, almost to the same extent as reasoning containing a logical fallacy.

   [193]It is one thing to permit the Minister, by delegated legislation, to develop an expanded meaning of "misbehaviour". It is altogether another to permit the Minister to define "misbehaviour", in the context of considering suspension or termination, in a manner that is unreasonable and disproportionate, as well as arbitrary and capricious.

5. In the present case, the Minister’s legislative power conferred by s.31(3) of the Migration is to make regulations which “prescribe criteria for a visa or visas of a specified class”.  The power must be exercised consistently with the objects of the Act and its scheme of regulating the entry and residence of non-citizens through the granting of visas “in the national interest” (see s.4).  However, this object leaves open a very broad range of valid visa criteria, ranging from those requiring a decision-maker to make precise determinations of fact, to those requiring very broadly defined evaluations of evidence and human behaviour.  The concerns in Vanstone v Clark arose because the legislative power required subordinate legislation with specificity of reference, and with relevance to achieving the object of regulating misconduct by a statutory officer.  In my opinion, it provides no analogy for the present legislative power given to the Minister.

6. The applicants’ submissions referred to a statement by Starke J in Brunswick Corp v Stewart (1941) 65 CLR 88 at 97, cited by Weinberg J in Vanstone v Clark at [143].  This suggests that delegated legislation could be held invalid because it is “uncertain, that is, does not contain adequate information as to the duties of those who are to obey it … or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it”.

7. The applicants argued that there was uncertainty or unreasonableness in the test of ‘not generally acceptable in Australia’, because it lacked a meaningful identification of the standards of ‘acceptability’ for business activities which were to be applied by a decision-maker.  As a consequence, it was conceivable that decision-makers might apply their own idiosyncratic standards, and might penalise behaviour which was trivial or not deserving of the withholding of a visa. 

8. However, I do not accept these arguments.  A visa criterion such as the present does not itself regulate behaviour in the manner of legislation imposing obligations “to obey it” or face civil or criminal sanctions.  Its validity is to be tested against its capacity to be applied by the Minister to achieve the objects of the Act, and as a criterion for determining eligibility for a visa, not whether a prospective visa applicant will be able to modify his or her behaviour to qualify for a visa.  The legislative power does not expect, nor require, that the Minister should prescribe criteria for granting visas which have the degree of specificity or certainty of a price-fixing or similar instrument.

9. If a broadly worded criterion is within the scope of the legislative power, the possibility of a capricious or unreasonable determination by a decision-maker under the criterion does not defeat the validity of the criterion itself.  Rather, these possibilities could be addressed through judicial review of such decisions.  To point to them in the present context, confuses the invalidity of possible decisions purporting to apply the criterion, with the validity of the criterion itself. 

10. In my opinion, the criterion’s test of ‘not generally acceptable in Australia’ is capable of meaningful, rational and reasonable application to an assessment of “business activities”.  I do not accept that it would require or allow the Minister lawfully to make decisions to refuse visas which would be characterised as ‘arbitrary’ or ‘capricious’ or ‘perverse’, even if the possibility of such decisions being lawfully made would be sufficient to give rise to legislative invalidity. 

11. The criterion does require a broad evaluation of conduct, in which reference is to be made to standards of behaviour relating to business activities which might not always be found in legislation.  It is quite possible that minds might differ in some particular cases as to how the criterion should be applied.  However, these are often features of valid legislation, particularly in the field of immigration controls.

12. The submissions of both parties referred me to other legislative contexts in which tests of “generally acceptable” have been adopted.  I did not find these to be of much assistance.  No doubt in some of them, it is easier to identify the standards of acceptability which are invoked, or the group of persons whose opinions on acceptability are notionally to be consulted.  In others, it might be harder to identify a relevant standard of acceptability.  However, none of the illustrations had any direct parallel with the present criterion. 

13. Contrary to the applicants’ submissions which took me to Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752, I do not accept that requiring an administrator to consider what is ‘generally acceptable’ business conduct in Australia is less meaningful than asking a censor to take into account “the standards of morality, decency and propriety generally accepted by reasonable adults”.  Unlike such standards, the standards governing unacceptable business activities would usually be identifiable by reference to Australia’s laws and prevailing business ethics and practices.  There would usually be little controversy about these.  In doubtful situations, decision-makers would have access to expert or experienced sources of advice and information about relevant business standards. 

14. I therefore do not accept that the criterion adopts a meaningless test, nor one incapable of application by the Minister and his delegates in a reasonable, consistent, and rational manner.

15. For the above reasons, I am not persuaded by any of the applicants’ submissions in support of the first ground of their amended application.

The Tribunal’s application of cl.892.214

1. I have set out above the Tribunal’s reasons for concluding that the primary visa applicant did not meet the criterion in cl.892.214. The applicants submit that this shows that the Tribunal arrived at its conclusion “simply because it was unlawful” for the applicants to pay most of the business’s employees on a ‘cash’ basis without complying with PAYG and other legal requirements.  They argued:

   [The Tribunal] considered that the applicant’s conduct may well have been generally acceptable in Australia in lay terms; however it did not form any conclusion on this since the mere fact that it was unlawful meant that the applicant could not satisfy clause 892.214.

2. In my opinion, this is not a correct description of the Tribunal’s reasoning.  It is clear that the Tribunal took into account all the circumstances of the applicants’ failure to comply with the relevant legislation, including the period of time over which the business had operated with ‘black’ labour, and the failure to rectify this situation until it was discovered on the site visit by Department officers.  The Tribunal also took into account its assessment of how the conduct would be regarded generally in the Australian community.  It concluded:

   He, therefore, has ‘a history of involvement in business activities’ meaning an elaborate, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population and which are unlawful.

3. In its terms, this conclusion did more than reach a conclusion that the activities were unlawful.  It shows that the Tribunal did consider whether the activities were “generally acceptable in Australia” from a broader perspective than legality alone.

4. The Tribunal’s statement in its last paragraph, in which it said “this behaviour may be prevalent in Australia due the exigencies of certain employment situations”, must be considered in the context of its other findings.  Moreover, its statement that “it is nevertheless not ‘generally acceptable’ in Australia because it is, in fact, a breach of the law of the land and avoidable”, expressly refers to a consideration of ‘avoidable’ as impacting upon the gravity of the activities admitted by the applicants.

5. I accept that the Tribunal gave considerable emphasis, even overriding emphasis, to the illegality of the employment practices of the applicants’ business.  However, I am not persuaded that its references to the unlawfulness of the conduct reveal that it confined its consideration to that element alone.  In the circumstances admitted by the applicants, it was almost inevitable that the Tribunal would find that their employment practices were “not generally acceptable in Australia”, and that it would give dominant consideration to the fact that significant legislation governing the employment of labour in Australia had been ignored.  In this context, it is difficult to see how it would have been open to the Tribunal to have characterised the behaviour as “generally acceptable in Australia”, even if it had made a definite finding (which it did not) that the applicants’ employment practices were “prevalent” in the Sydney car wash industry.

6. I am therefore not persuaded that the Tribunal’s reasoning shows that it proceeded upon a misconstruction of cl.892.214 or that it failed to consider any relevant matters.

7. Since neither ground of review has been upheld, I must dismiss the application.  A consequential costs order is agreed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  25 November 2008