Lobo v Minister for Immigration
[2005] FMCA 1024
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LOBO & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1024 |
| MIGRATION – Migration Review Tribunal decision – refusal of a Business Skills (Residence) (Class BH) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.357A, 359A, 360(2)(b), 474
Migration Regulations 1994 (Cth), cl 845.216-845.222 of Sch 2, Division 1.4 of Sch 7
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
Abebe v Commonwealth (1999) 197 CLR 510
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicants: | JOYCE LOBO PHILIP ANDREW LOBO REENA LOBO RITISHKA LOBO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2803 of 2004 |
| Delivered on: | 29 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2803 of 2004
| JOYCE LOBO PHILIP ANDREW LOBO REENA LOBO |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 September 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 6 November 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 8 March 2001 to refuse to grant the applicant a Business Skills (Residence) (Class BH) visa.
Background
On 30 August 1999 Mrs Joyce Lobo, the applicant, a national of India born on 5 December 1951, applied to the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) for a Business Skills (Residence) (Class BH) visa (Court Book pp.6-95) (“CB”). Included in her application were her husband, Philip Andrew Lobo born on
13 September 1947 and her two daughters, Reena Lobo, born on
20 January 1979 and Ritiksha Lobo, born on 14 December 1985 (the secondary visa applicants). On 8 March 2001 the delegate refused to grant a visa to the applicant (CB pp.99-102) and on 14 March 2001 she lodged an application with the Tribunal for a review of the delegate’s decision. The delegate’s decision was affirmed by the Tribunal on
6 November 2002 (CB pp.244-256).
On 3 December 2002 the applicant lodged an application for a review of the Tribunal’s decision with the Federal Court. On 6 March 2003 the Federal Court (Gyles J) dismissed the application with costs. On
11 March 2003 the applicant lodged an appeal against the decision of Gyles J. On 8 August 2003 the Full Court of the Federal Court (French, Sackville and Hely JJ) set aside the decision of Gyles J, quashed the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration. On 13 February 2004 the High Court dismissed the Minister’s application for special leave and confirmed Full Federal Court’s judgment. Having been remitted to the Tribunal from the Federal Court on 8 August 2003, the matter was before the Tribunal for reconsideration. On 30 August 2004 the Tribunal (differently constituted) affirmed the delegate’s decision under review and found that the applicant and her family were not entitled to the grant of Business Skills (Residence) (Class BH) visas (CB pp.294-308).
The issue before the Tribunal was whether the applicant maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. At the time of the primary application, the applicant nominated City Professionals Pty Limited (ACN 074 874 883) as her main qualifying business. The business had previously been known as Lobo Investments Pty Limited (ACN 074 874 883) and changed its name to City Professionals Pty Limited on
3 July 1998. The applicant indicated she had been involved in the company since 1 October 1996 and that she owned fifty percent of the business. The principal activity of the business was described as a multi national software consulting company based in Sydney. The company offered on-site IT training for software applications, the in-house development of IT course material and consulting services.
On 22 March 2000 the delegate conducted a site visit of the company. It was noted that City Professionals Pty Limited operated from one desk within a small accounting firm and the applicant was not present. The applicant’s husband, Mr Philip Lobo was present at the time of the delegate’s visit and was interviewed. The interview notes indicated that the applicant did not have any business cards at the office although Mr Lobo did. Mr Lobo described his role at City Professionals Pty Limited which included making decisions relating to staff, property leases and the direction of the business. Mr Lobo stated that the applicant, Mrs Joyce Lobo, took care of all the accounts. None of the company’s employees were present at the office and Mr Lobo indicated that they were at other locations undertaking consulting work.
The applicant’s then migration agent requested a copy of the delegate’s report (CB p.98). No copy was provided, and the application was rejected by the delegate under covering letter dated 8 March 2001 (CB pp.99-103). An application for review of the delegate’s decision was subsequently lodged with the Tribunal on 14 March 2001. On 24 July 2002 the Tribunal wrote to the applicant requesting further documentation (CB pp. 162-3) and documentation was later received (CB pp.165-241). The applicant attended the Tribunal hearing and during the hearing she referred to the fact that her husband, Mr Philip Lobo, had travelled extensively throughout the year in question (CB pp.252). The Tribunal’s decision was made on 6 November 2002. However, the Tribunal’s decision was subsequently set aside by the Full Court of the Federal Court and the application remitted to the Tribunal for reconsideration. On remitter, the applicant declined to attend a further hearing and the Tribunal made a decision on the material already provided, including records of the hearing before the first Tribunal.
The second Tribunal’s findings and reasons (Presiding member Mr David Thomas: MRT File No. V04/02507; date of decision 30 August 2004)
The Tribunal’s decision summarised the claims made for and on behalf of the applicant (CB p.298-302). The site inspection was noted and the Tribunal accepted that the ownership interest and capital requirements were met (CB pp.299-303).
It had been claimed that the applicant had been in charge of the administrative side of the business and evidence had been adduced to support that claim. The Tribunal noted:
“… that the visa applicant’s role in the business included preparing invoices under direction, signing off on invoices to customers, attending to the banking, purchasing stationary, attending to correspondence, acting as telephonist and possibly preparing payrolls. In the further documentation provided to the Tribunal the visa applicant was not the person who signed the employees group certificates. In the Tribunal’s view none of these activities demonstrate an “involvement in the management of that business or those businesses from day to day, and in making decisions that affected the overall direction and performance of that business.” (CB p.305 at [48])
The Tribunal was not persuaded that other documentation presented indicated that the applicant made executive decisions or was involved in the management of the business (CB pp.305-6 [49]-[52]). The Tribunal noted that it appeared Mr Lobo was the actual moving force behind the company and its business (CB p.306 at [50]) and therefore, the applicant did not meet the requirements of Sch 2, cl 845.216 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal observed that the applicant and her husband appeared to have exchanged the position of managing director on 17 July 1998. It also noted that Mr Lobo had been out of the country for a considerable period during the year in question, and observed that a nine month residence requirement during that year was necessary to meet the requirements of the sub class 845 visa (CB p.305 at [46]).
The Tribunal also noted that the applicant did not meet the points test pursuant to Sch 7 to the Regulations so as to meet the requirements of Sch 2 cl 845.222. One requirement was that the relevant business employed three full time employees who were Australian citizens or permanent residents. The Tribunal cited Departmental policy to the effect that the part time equivalent of three full time employees was acceptable in terms of this requirement (CB p.307). It then used minimum wage rates based on records of the Australian Industrial Relations Commission (“AIRC”) and concluded that the employees did not work the equivalent of 36 months full time employment.
Application for review of the second Tribunal’s decision
On 13 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Migration Review Tribunal (‘the MRT’) constructively failed to exercise its jurisdiction under the Act
Particulars
The MRT failed to put to the First Applicant adverse information that was to form the reason or part of the reason to affirm the delegate’s decision, in breach of s359A of the Act.
(i)The MRT found that the First Applicant did not satisfy subclause 845.222, based on research that it undertook in relation to salary scales based on Australian Industrial Relations Commission records. However, the MRT did not put to the First Applicant that it considered subclause 845.222 might not be satisfied and it did not put the adverse information that it relied upon to the First Applicant for comment before finding that the subclause was not satisfied.
2.The Migration Review Tribunal (‘the MRT’) constructively failed to exercise its jurisdiction under the Act
Particulars
In considering whether the First Applicant satisfied subclause 845.216, the MRT erred in finding that the First Applicant did not have direct and continuous involvement in the management of the business or businesses from day to day and in making decisions that affected the overall direction and performance of the business or businesses by:
(i)failing to take into account that the business only had two managers, being the First and Second Applicant and that the Second Applicant was outside of Australia for a period of more than nine months out of the twelve months immediately preceding the subclass 845 visa application.
(ii)impliedly requiring the Applicant to be at a decision-making level equal to that of the Second Applicant in order to make decisions that affected the overall direction and performance of the business, when there is no such requirement in law.
(iii)failing to make a finding in relation to whether or not the administrative duties that the First Applicant claimed she undertook, either separately or in combination with her other claimed duties and responsibilities, showed that she had the requisite involvement.
The Regulations
The applicant for a subclass 845 visa is required to meet the criteria set out in the Regulations, Sch 2, cl 845 which provides that:
845.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
845.21 Criteria to be satisfied at time of application
845.211 The applicant holds a temporary substantive visa other than any of the following visas:
(a)a special purpose visa;
(b)a Border (Temporary) (Class TA) visa;
(c)a Diplomatic (Temporary) (Class TF) visa;
(d)a Domestic Worker (Temporary) (Class TG) visa;
(e)a Transit (Temporary) (Class TX) visa;
(f)a transitional (temporary) visa that the applicant is taken to hold because he or she held, or applied for, a visa referred to in paragraph (a), (b), (c), (d) or (e) before 1 September 1994.
845.212 The applicant has been in Australia as the holder of the temporary substantive visa for at least 9 months during the period of 12 months immediately preceding the making of the application.
845.213 The applicant:
(a)has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and
(b) continues to have an interest of that kind.
845.214 The total value of the net assets in Australia of the applicant, or the applicant and the applicant's spouse together:
(a)is; and
(b)has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD250,000.
845.215 The total value of the net assets owned by the applicant, or by the applicant and the applicant's spouse together, in the main business or main businesses in Australia:
(a)is; and
(b)has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD100,000.
845.216 In the 12 months immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses in Australia, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.
845.217 The applicant has overall had a successful business career.
845.218 Neither the applicant nor his or her spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.
845.219 The applicant has signed a declaration in a form approved by the Minister that the applicant acknowledges the Government's requirements in relation to residence in Australia as the holder of a Subclass 845 visa.
845.22 Criteria to be satisfied at time of decision
845.221 The applicant continues to satisfy the criteria in clauses 845.213 to 845.218.
845.222 (1) The applicant's score on the business skills points test is not less than the number of points that is specified for the purposes of this subclause by Gazette Notice.
(2)For the purposes of subclause (1):
(a)an applicant's score on the business skills points test is the sum of the applicant's scores under:
(i)Division 1.4 of Schedule 7; and
(ii)Parts 2, 3 and 4 of that Schedule; and
(b)an applicant's score under a Subdivision or Part of Schedule 7 is the number of points specified in that Subdivision or Part in relation to the attribute described in the Subdivision or Part that relates to the applicant:
(i)in the case of an attribute specified in Division 3.1 of Schedule 7 — at the time when the application is decided; and
(ii)in the case of any other attribute — at the time when the application is made;
and if there is more than 1 attribute of either of those kinds, the highest single number of points so specified; and
(c)in determining the score of an applicant under Part 4 of Schedule 7, only:
(i)assets in Australia; or
(ii)assets available for transfer, and capable of being transferred, to Australia within 2 years of grant of a business skills visa to the applicant;
are to be taken into account
The term “main business” is relevantly defined in Regulation 1.11 as follows:
(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
Applicant’s submissions
Mr L J Karp of Counsel, appearing for the applicant, filed written submissions prior to the hearing which contained the following contentions:
a)The application to the Tribunal failed on two grounds. These grounds were independent and therefore the applicant had to find relevant error in both to succeed before this Court.
b)Error in consideration of Regs, Sch 2, cl 845.216
i)The applicant submitted that the words, “maintained direct and continuous involvement in the management of that business” in Sch 2 cl 845.216 of the Regulations requires the decision-maker to have regard to the whole of the circumstances of the business. That is because the paragraph is directed to the individual business and each business is unique. Thus, it was submitted, the circumstances and the requirements of the particular business must be taken into account: see Minister for Aboriginal Affairs v Peko-Wallsend (“Peko-Wallsend”).
ii)It seems to have been accepted by the Tribunal that Mr Lobo was outside Australia for a considerable period during the relevant 12 months that is immediately before the application was lodged. There were only two shareholders and officers of the company, these being the applicant, Mrs Lobo, and her husband.
iii)A person involved in the “management of the business” does not necessarily have to manage the whole of the business (Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168). In this case Mr Lobo may indeed have been the driving force, but that may still have left Mrs Lobo with a residual role to play in the management and operation thereof, especially during Mr Lobo’s absence.
iv)The applicant submitted that the Tribunal failed to take relevant considerations into account. This might also be regarded as a failure to ask the right question, because the reason that the Tribunal did not take these considerations into account was that it did not ask itself the questions that might have led it to consider the relevant issues.
c)Error in the consideration of the number of employees of the business.
i)It might firstly be emphasised that this ground of review is argued as a denial of common law natural justice, rather than s.359A of the Act. The application for review was filed prior to the date of commencement of s.357A and so common law natural justice applies: Minister for Immigration & Multicultural Affairs; Ex parte Miah.
ii)The applicant contended that the Tribunal was required to disclose its intended use of the records of the AIRC in assessing whether the applicant employed three Australian citizens or permanent residents on a full time or equivalent basis during the period in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (“Alphaone”) at 591-592.
iii)No doubt the Tribunal’s use of AIRC records as adverse to the applicant took the applicant and his advisers completely by surprise. Indeed the use of this information could not have been predicted by them. In these circumstances the Tribunal was obliged to disclose the existence and intended use of the AIRC information, and its failure to do so was a breach of the requirements of procedural fairness.
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)Firstly it was claimed that the Tribunal failed to comply with s.359A of the Act. In the applicant’s submissions at paragraph 14(c) above it was stated that it was intended as a claim that the Tribunal denied the applicant common law procedural fairness. The breach of procedural fairness was said to be the Tribunal’s use of the AIRC records (CB pp.261-262) in assessing whether the applicant met cl 845.222 (CB p.308 [57]). The applicant’s submissions (paragraph 14(c)(iii) above) stated that ‘no doubt’ the Tribunal’s use of these records took the applicant and her advisers “completely by surprise” and “could not have been predicted by them”. Counsel submitted there was no evidentiary basis for these assertions.
b)In any event, the AIRC records contained publicly available information that was accessed by the Tribunal as part of its reasoning in considering whether the applicant’s business employed not less than three full time employees as required by Division 1.4 of Sch 7 to the Regulations. The Tribunal used these records as part of its consideration as to whether an office assistant being paid $193 per week by the applicant’s business was a full time employee (CB pp.307-308). There was no unfairness in the Tribunal having regard to such information and reasoning in the circumstances. The information was apparently uncontentious and the applicant had not suggested that she could have submitted any contrary information as required in these circumstances: NARV v Minister for Immigration & Multicultural & Indigenous Affairs (“NARV”) at [18], and she declined to attend the Tribunal hearing. Further, it is well established that procedural fairness does not require the Tribunal to put its thought processes or preliminary conclusions to an applicant for comment: Abebe v Commonwealth (“Abebe”) at [187], [295]; Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs per Merkel J at [63]-[73]; Re Ruddock; Ex parte Applicant S154/2002 at [54], [57]-[58], and the Tribunal’s use of the AIRC records was in the context of its reasoning process as to why the office assistant was not a full time employee. For all of these reasons there was no breach of procedural fairness.
c)
The second ground claimed was that the Tribunal erred in considering cl 845.216. However, the particulars given and the applicant’s submissions (paragraph 14(b)(i)-(iv)) did not explain how the Tribunal erred in a legal sense. The Tribunal concluded that the applicant did not satisfy cl 845.216 based on an extensive examination of the evidence (CB pp.304-306) and bearing in mind Lobo v Minister for Immigration & Multicultural & Indigenous Affairs ([2003] FCAFC 168 at [65]) where a previous decision of the Tribunal had been set aside because it treated assessment according to departmental policy as assessment for the purposes of cl 845.216. The words of cl 845.216 are ordinary words of the English language used in a non-technical sense and the Tribunal’s conclusion that the facts found by it did not fall within those words was reasonably open to it. The Tribunal’s conclusion to that effect was accordingly one of fact: Vetter v Lake Macquarie City Council (“Vetter”) at [24]-[27] per Gleeson CJ, Gummow and Callinan JJ and per Hayne J at [108];
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen(“Ex parte Cohen”) per McHugh J at [36]. A wrong finding by the Tribunal on this factual issue would not establish any jurisdictional error because the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) at 272, and there was no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact: Abebe. Counsel submitted that the matters raised by the applicant in relation to this ground do no more than challenge the Tribunal’s factual conclusions and assessment of the merits.
d)Counsel submitted further that as there was no jurisdictional error in the Tribunal’s decision it is a “privative clause decision” within s.474 of the Act.
Reasons
In its decision under the heading “Evidence”, the Tribunal set out the history of the matter based on the initial application up to the stage when the matter was remitted to the Tribunal by the Full Court of the Federal Court (CB pp.298-302). On 27 May 2004 the applicant’s agent provided financial statements for the business for the year ended 30 June 2003. The applicant was invited to a hearing of the Tribunal scheduled on 14 July 2004 but that invitation was declined and consent was given for the Tribunal to decide the review without the applicant appearing before it (CB pp.289-291). The Tribunal proceeded to make a decision under s.360(2)(b) of the Act. The visa application was considered under subclass 845 (Established Business in Australia) as no claim was made against any other subclass. The criteria for subclass 845 visas are contained in part 845 of Schedule 2 to the Regulations. The threshold criteria to be satisfied by the applicant are set out in cls 845.211 to 845.221 together with the points test in Schedule 7 (CB pp.28-31).
The first ground pleaded by the applicant concerned the Tribunal’s consideration of cl 845.216 of Schedule 2 to the Regulations. The Tribunal considered the material before it and made the following findings:
“The Tribunal accepts that the visa applicant’s role in the business included preparing invoices under direction, signing off on invoices to customers, attending to the banking, purchasing stationery, attending to correspondence, acting as a telephonist and possibly preparing payrolls. In the further documentation provided to the Tribunal, the visa applicant was not the person who had signed the employees’ group certificates. In the Tribunal’s view, none of these activities demonstrate an “involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business.” (emphasis added) (CB p.305)
The Tribunal also considered the requirements of cl 845.215 in the Regulations setting the value of the net assets of the business during the twelve month period relevant to the application. The applicant submitted unaudited statements for the relevant period which the Tribunal accepted as they were reluctant to put the applicant to the expense of an audit unless there appeared to be a compelling reason to do so. The Tribunal did not enforce this requirement (CB p.303 [38]-[39])
The requirements of cl 845.216 of the Regulations required the Tribunal to assess the extent to which the applicant exercised direct and continuous involvement in the management and strategic decision making of the business for the relevant period, being 31 August 1998 to 30 August 1999 (emphasis added). The Tribunal at [44] referred to the Full Federal Court decision of Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 which quoted Gyles J at first instance where His Honour considered the term “involvement in” and distinguished that term from the word “responsibility” which is used in the Procedures Advice Manual 3 (PAM 3). At [36] the Full Federal Court noted that His Honour Gyles J:
“… found that the Tribunal had been diverted by the policy into an examination of which person held the principal or dominant role in the company rather than concentrating upon whether Mrs Lobo was involved in the manner required.”
The Tribunal then commented on further business transactions of the company such as the sublease, group certificates, various banking documents and superannuation arrangements and noted that the correspondence was essentially mechanical and none of these documents themselves involved executive decisions or were indicative of an involvement in management. The Tribunal also considered that the applicant was not named in the company’s advertising booklet nor did she have business cards in her own name, problems which she attributed to an oversight by her spouse (CB pp.305-306). The Tribunal found that this evidence demonstrated that the applicant was herself not involved in decisions about her business cards and determining the direction and performance of the business.
The Tribunal made the following finding that the primary visa applicant did not meet the requirements of cl 845.216:
“The evidence supporting the visa applicant’s “involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business” is essentially her own assertions. The documentary evidence shows her role in the business as assisting in the office and acting under supervision. The documentary evidence fails to support the proposition that she is a decision maker in the business or that she is even fully cognisant of the overall direction and performance of that business. On the balance of the evidence, the Tribunal is not satisfied that the visa applicant “maintained direction and continuous involvement in the management of that business … from day to day and in making decisions that affected the overall direction and performance of that business” in the 12 months prior to the date of application.” (CB p.306)
The Tribunal adopted the correct criterion for the assessment of the evidence before it. There are a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance. The Minister (represented by a delegate), in her decision to grant or to refuse to grant a visa, must be satisfied that the criterion is met by that involvement in each individual business regardless of its nature and method of operation: s.65(1) of the Act.
Counsel for the applicant contended that the words, “maintained direction and continuous involvement in the management of that business” required the decision maker to have regard to the whole of the circumstances of the business. He argued that cl 845.216 is directed to individual businesses and each business is unique. Consequently, the circumstances and requirements of a particular business must be taken into account. In support of that proposition, the Court was referred to the High Court decision of Peko-Wallsend per Mason J at 39:
“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.”
The factors which the decision maker is bound to consider are not expressly stated and must be determined by implication from the subject matter. There was no issue that each individual business was unique and the manner in which it was managed was also unique. Nor was there any issue that there were only two shareholders, two officers of the company, the applicant and her husband. The respective distribution of responsibility between those two parties was not subject to any statutory requirement nor was there a requirement for either individual to have a dominant role or manage the entire business: Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168. The major business activity of the company consisted of on site IT training for software applications, in-house development of IT course material and consultancy services relating to software, hardware and any other IT related matter. From the evidence it was clear the driving force behind these activities was the applicant’s husband, Mr Lobo.
The question that the Tribunal was required to address was whether the residual role played by Mrs Lobo demonstrated an “involvement in the management of that business from day to day and in making decisions that affected the overall direction and performance of that business”. The wording of that test in cl 845.216 is in ordinary words of the English language used in a non technical sense. The nature of Mrs Lobo’s work was considered by the Tribunal in [47]-[52] (CB pp.305-306).
The Tribunal’s role was accordingly a determination of fact. Counsel for the respondent relied on the Court decision in Vetter per Gleeson CJ, Gummow and Callinan JJ at [24]-[27] and per Hayne J at [108]:
“As Mason J pointed out in Hope v Bathurst City Council, when a statute uses words according to their common understanding and it is not unreasonable to conclude that the facts as found fall within those words, the conclusion that they do, is a conclusion on a question of fact.”
I was also referred to Ex parte Cohen per McHugh J at [36]:
“The ordinary meaning or common understanding of a non-technical word is generally a question of fact. (Hope v Bathurst City Council (1980) 144 CLR; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 289”
A wrong finding by the Tribunal on this factual issue does not establish any jurisdictional error because a Court cannot review the merits of a Tribunal’s decision: Wu Shan Liang at 272, and there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact: Abebe.
The Tribunal’s finding of fact, as to the applicant’s involvement in the business, was that it was not in satisfaction of the criterion in cl 845.216.
The second ground pleaded by the applicant concerned the Tribunal’s consideration of the number of employees of the business. For the purpose of cl 845.222 pursuant to Division 1.4 of Schedule 7, in order to be entitled to the allocation of points in the business skills points test, the applicant was required to establish that throughout the period of twelve months immediately preceding the making of the application, the company employed not less than three full-time employees, each of whom was not the applicant or a member of the family unit of the applicant and was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. To satisfy that test the applicant was required to establish a total of 36 months employment or equivalents. Three of the employees had worked for a period of less than twelve months, while the office assistant was the sole employee on the pay roll for the full twelve months preceding the primary application.
The contribution to the employment equivalents of the three employees who worked for the company for less than twelve months was four, seven and eleven months respectively, being a total of 22 months. The sole employee employed for the full twelve months when considered with the others only gave a total of 34 months employment equivalent, which fell short of the target. However, the Tribunal formed the view that the office assistant appeared to have a low wage when compared with the AIRC published records of the weekly federal minimum wages for the 1998/1999 year. The Tribunal found that view that on the office assistant’s pay structure she was effectively a part-time employee and therefore would not contribute twelve months to the employment total, which brought the total for the business further below the threshold of three full-time employees in the relevant period, although the reduced period was not nominated.
The Tribunal adopted this approach on the basis that the business was meeting the Australian standards of employment conditions, so based on her weekly wage compared with the federal minimum wage, the Tribunal concluded the office assistant was a part-time employee and contributed less than twelve months to the total employment. This analysis may not have been correct if the office assistant was a junior and paid under an award based on a percentage of the adult award. This procedure is fairly common in a number of clerical awards for the payment of junior employees. However, if the issue was overlooked and the office assistant was, in fact, a full-time employee and contributed twelve months to the total employment, the company still did not satisfy the requirement of 36 months employment equivalents. This denied the business of the essential points allocated to the business skills points test in Schedule 7. The attributes must be satisfied to achieve the points allocation. The absence of these points would prevent the applicant satisfying the skills requirement because of the substantial weighting of this component.
The applicant claimed that the use of the AIRC records to determine the number of employees was a denial of natural justice. This claim was made as a denial of the common law natural justice rather than s.359A of the Act because the application for review filed with the Tribunal was dated 14 March 2001 which was prior to the date of commencement of s.357A which came into operation on 4 July 2002. Consequently, the common law natural justice applies to this matter and the principle to apply is found in Ex parte Miah per Gaudron J at 86:
‘The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her.”
Further per McHugh J at 102:
“The delegate had a duty to exercise his power in accordance with the rules of natural justice.”
The argument submitted on behalf of the applicant contended that the applicant was required to disclose its intended use of the AIRC material to determine whether the applicant satisfied the requirements of employing the required number of full-time or equivalent employees during the relevant period. In support of this principle, Counsel for the applicant relied upon the authority of Alphaone at 591-592 where the Full Court of the Federal Court stated the principle as:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
The applicant’s argument was that the use of the AIRC records was adverse to the applicant and took both the applicant and her advisers by surprise as they had not anticipated its use. The failure to disclose this material to the applicant was claimed to be a breach of procedural fairness. The respondent argued that the Tribunal used the AIRC material as part of its reasoning process and it was material of the nature that did not require to be disclosed. The Tribunal used these records as part of its consideration as to whether an office assistant paid at the average rate of $193 per week by the applicant’s business was a full-time employee. It was submitted by the respondent that the AIRC material was publicly available and would be known by members of the business community who were conducting their business in accordance with the Australian Standards of Employment Conditions. It was argued that the information was uncontentious and that the applicant had not submitted any information that would have challenged the validity of the AIRC material: NARV per Ryan and Finkelstein JJ at [18]:
“… there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered “practical injustice”, then the complainant may be required to adduce evidence to explain why he has been unfairly treated.”
There were no submissions before the Court that suggested that contrary information was available and could have been submitted by the applicant. It was noted that the applicant was invited to attend the Tribunal hearing on 14 July 2004. This hearing was scheduled to take place at Level 12, 460 Lonsdale Street, Melbourne, Victoria. However, evidence could also have been given by closed circuit television by attending the Sydney office of the Tribunal at Level 3, 44 Market Street, Sydney. This invitation also invited the applicant to provide any further written evidence and any requests for the Tribunal to interview witnesses. The lawyers representing the applicant advised the Tribunal in writing that the applicant did not wish to attend the hearing (CB pp.287-291).
The submissions made by Counsel for the respondent argued that the thought process or preliminary conclusion did not have to be put to an applicant for comment: Abebe per Gummow and Hayne JJ at [187]:
“It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention …. The Tribunal must then decide whether that claim is made out.”
Also noted per Callinan J at [295]:
“…the Tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability.”
See also Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs per Merkel J at [63]-[73]; Re Ruddock; Ex parte Applicant S154/2002 at [54], [57]-[58].
The respondent’s contentions were that the Tribunal used the AIRC records in the context of its reasoning process as to why the company’s office assistant was not a full-time employee. I accept that for this reason there was no breach of procedural fairness by the Tribunal for using the AIRC published National Wage Case Minimum Wage Determination in its assessment of whether the office assistant should be counted as a full-time employee.
Schedule 7 Item 7170 uses the words “not less than three full-time employees” in describing the attributes of the business skills points test that has to be achieved. The employment details provided by the applicant on the raw data did not satisfy the skills test requirement. The use of the AIRC Minimum Wage Determination does not change the ultimate outcome of whether the applicant satisfies or alternatively fails the skills test.
Conclusion
For the reasons set out above, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 July 2005
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