Lordear Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 930
Federal Circuit and Family Court of Australia
(DIVISION 2)
Lordear Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 930
File number(s): SYG 2558 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 November 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Nomination Application – whether Tribunal failed to comply with s 359AA – whether Tribunal failed to take into account relevant information. Legislation: Judiciary Act 1903 (Cth) s 40
Migration Act 1958 (Cth) ss 359A, 359AA
Migration Regulations 1994 (Cth) reg 5.19
Cases cited: ABX15 v Minister for Immigration and Anor [2015] FCCA 3003
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 246
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 4 November 2022 Date of hearing: 4 November 2022 Place: Parramatta Solicitor for the Applicant: Mr Li - Advance Lawyers Group Pty Ltd Solicitor for the Respondents: Ms Roberts - Mills Oakley ORDERS
SYG 2558 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LORDEAR PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $4000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
On 30 June 2016, Lordear Pty Ltd (‘the applicant’) made an application as part of the Employer Nomination Scheme (subclass 186 visa) (Temporary Residence Transitin nomination stream) for approval of its nomination of Mr Yinghui Hu (‘the nominee’), a citizen of the People’s Republic of China, for the position of “Marketing Officer” and occupation “Marketing Specialist” within its homeware retail store.
On 19 January 2017, a delegate of the Minister for Immigration (‘the delegate’) refused the application on the basis that the applicant did not meet reg 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (‘the Regulations’) as the delegate was not satisfied there was evidence that the position would be available to the nominee for at least two years.
The applicant sought merits review at the Administrative Appeals Tribunal (‘the Tribunal’). In a decision dated 30 July 2018, the Tribunal affirmed the decision of the delegate, on the basis that it was not satisfied that the nominee would be employed on a full-time basis in the nominated position of Marketing Officer for at least two years. In these circumstances, the requirement contained in reg 5.19(3)(d) of the Regulations was not met.
The applicant now seeks judicial review of the Tribunal’s decision.
The administrative appeals Tribunal Decision
The Tribunal’s decision record is both extensive and detailed as to its consideration of the applicant’s position, the evidence that was eventually before it as well as the steps it took to obtain all relevant information. The applicant was represented before the Tribunal.
On a number of occasions during the hearing, the Tribunal adjourned to allow the applicant to consider issues that arose during the course of evidence given by Ms Zi Yun Hu, the Managing Director of the applicant company. Following the hearing, the applicant’s representative provided post-hearing submissions and further documentation.
During the hearing, the Tribunal raised concerns that the nominee would not be employed as a Marketing Officer as he had been the applicant’s only employee since July 2017 and had worked predominately as a cashier and sales assistant since July 2015. The Tribunal raised directly with Ms Hu that the applicant did not, based on the financial statements provided, have the financial capacity to employ the nomine as a Marketing Officer, being the nominated position, and employ another person as a cashier. The Court also noted that, even though requested to do so, no evidence was provided by the applicant of the nominee undertaking duties consistent with a role as a Marketing Officer.
Grounds of Judicial Review
The first respondent noted that these proceedings were commenced on 3 September 2018. On 2 October 2018, a Registrar of the Court made orders requiring any amended application to be filed and served by 30 November 2018.
On 7 October 2022, the applicant’s representative filed submissions which annexed a new draft amended application that deletes the first ground in the originating application filed in September 2018. It also substantially amends ground two in the original application and pleads an entirely new ground. Leave is sought to rely upon the amended grounds and the new ground.
Although acknowledged by the first respondent that there would be no prejudice if leave were to be granted to rely upon the new ground, it was submitted leave should not be granted. It was submitted that no explanation has been provided as to the reasons for the amendment, in circumstances where the applicant has been legally represented by the same solicitor since the proceedings commenced.
It was further submitted that as the new ground does not raise an arguable case of jurisdictional error on the part of the Tribunal, it was not in the interests of justice to grant leave to amend the Initiating Application: ABX15 v Minister for Immigration and Anor [2015] FCCA 3003 (‘ABX15’) at [20].
The new grounds relied upon are as follows:
Ground 1: not pressed.
Ground 2
In affirming the Minister’s decision, the Tribunal failed to comply with s 359AA of the Act.
Particulars
a.Relevantly, s 359AA of the Act provides:
(1)If an applicant is appearing before the tribunal because of an invitation under s30:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)If the Tribunal does so -- the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied upon in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information -- adjourn the review, if the Tribunal considers that the applicant needs additional time to comment on or respond to the information…
b.At the hearing, the Tribunal gave orally to the applicant clear particulars of the information, including its financial status, its intended nomination and nominated position of the visa applicant, specifically its nominated employees likely performance of a retail Store Manager’s tasks, that the Tribunal considers would be the reason , or part of the reason, for affirming the decision under review, but, after doing so the Tribunal:
(i)Failed to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied upon in affirming the decision under review, in contravention of s 359AA(1)(b)(i); and
(ii)Despite having orally invited the applicant to comment on or respond to the information, complying with s 359AA(1)(b)(ii), the Tribunal failed to advise the applicant it may seek additional time to comment on or respond to the information, in contravention of s359AA(1)(b)(iii).
Ground 3
In affirming the decision, the Tribunal failed to take relevant information into account.
Particulars
a.The applicant has submitted its financial reports for the years 2016 and 2017, which indicate it had made annual turnovers of close to $500,000 with profits in the two years.
b.After enquiring on the applicant’s company’s history of training, employees, and payments, the Tribunal made an adverse finding that the applicant might not have financial resources to support the future 2 years employment of the nominee;
c.The Tribunal has failed to consider the past two financial years’ turnover figures, thus the cashflow of the applicant, and the implications as to its ability to employ the nominee or other employee(s) in supporting position(s);
d.Such a failure to consider relevant information has led to an unreasonable finding that the applicant might not have sufficient resources to pay the nominee’s annual salary of $52,000.
Consideration
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
…an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
Ground Two
On behalf of the applicant, it was submitted that during the course of the hearing, the Tribunal raised a series of matters that were considered issues for Tribunal. On three occasions, the Tribunal allow the applicant an opportunity to decide whether to continue with the hearing or whether they wished to take a break.
However, on the fourth occasion, when the Tribunal raised the essential issue that it considered that the employee was working as the applicant’s Retail Store Manager, it was submitted that the Tribunal did not comply with the requirements of s 359AA of the Migration Act 1958 (Cth) (‘the Act’), as it did not make the applicant understand why this information was relevant to the review or the consequences of the information being relied upon in affirming the decision. It is alleged that the Tribunal did not advise the applicant that they may seek additional time to comment on or respond to the information.
It was conceded that the Tribunal did allow the applicant the opportunity to make any further written submissions, however it was submitted that this did not cure the non-compliance with s 359AA of the Act. It was submitted that the applicant made further submissions which did not address any issues the Tribunal had in relation to the nominee’s future employment in the position of Marketing Officer and not as a Retail Manager.
On behalf of the first respondent, it was submitted that the issue that the applicant was working in a position as a Cashier and Sales Assistant since July 2015 and not as a Marketing Officer was clearly put to the applicant during the course of the hearing. At paragraph 23, the following appears, “The Tribunal observed that the financial information provided by the Company raised doubts regarding the ability of the Company to continue to employ the nominee for 2 years in the nominated occupation as required by r.5.19(3)(d) of the Regulations”.
At paragraph 26, the Tribunal noted that after a break, the Tribunal observed that it appeared that Mr Hu had worked as a Cashier Monday to Friday for nearly 3 years when he should have been working as a Marketing Officer. Mrs Hu acknowledge the Tribunal’s concern in this regard.
The Tribunal found that Mr Hu had not been paid on a regular basis of at least monthly in accordance with the requirements of the Fair Work Act2009 (Cth) and this also raised issues as to the capacity of the applicant company to employ Mr Hu as a ‘Marketing Officer’ rather than as a Sales Assistant or Retail Sales Manager, which appeared to be more consistent with the description of the duties performed by Mr Hu.
It was submitted that no error arose as there was no obligation to invite the applicant to comment on information, being the company’s financial information, that was provided to the Tribunal by the applicant. This fell within the exception contained within s 359A(4)(b) of the Act. Further information regarding the role of Retail Store Manager (ANZSO position 14211) was not specifically about the applicant or another person, but was information about a class of persons which fell within s 359A(4)(a) of the Act.
The applicant’s own oral evidence to the Tribunal was that Mr Hu was the sole employee of the company and that no further employee had been retained. Further, the applicant’s representatives submission to the Tribunal on 11 June 2019 also acknowledge the Tribunal’s concerns that the nominee appeared to have been employed as a Sales Assistant or a Retail Store Manager rather than as a Marketing Officer and submitted that there were ‘quite some overlapping tasks” between the roles in some of the tasks of a Retail Store Manager which were performed by the Director.
Accordingly, as the information was clearly conveyed to the Tribunal by the applicant itself, it mattered not that it was obtained by the Tribunal from an alternative source: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]. It was submitted the Tribunal did not fail to comply with s 359AA of the Act as the information identified in the applicant’s submissions fell within the exceptions in s 359A(4)(a) or (b).
The applicant’s own evidence is not information for the purpose of s 359A of the Act: Quadri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 246 at [27].
First, it is to be noted that there is no absolute requirement under s 359AA of the Act for information to be put to the applicant. Section 359AA(1)(a) uses the term ‘may’. If information is given to an applicant orally pursuant to s 359AA, then the procedures under s 359AA(1)(b) must be followed.
Further, the Tribunal is not required to provide the applicant with a running commentary as to its thought subjective appraisals, thought processes and determinations, defects gaps or lack of detail in an applicant’s evidence: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
The applicant was clearly on notice of the concerns of the Tribunal as regards the tasks being undertaken by the nominee as the sole employee of the firm, and these were not consistent with the position description of Marketing Officer. These concerns were discussed at length with the applicant. Information was properly requested which would demonstrate that the nominee, Mr Hu, was working as a Marketing Officer, in accordance with a nomination rather than in any other role. None was provided.
There was no requirement for the Tribunal to advise the applicant of issues that arose before the Tribunal from the applicant’s own evidence. The Court is satisfied the Tribunal complied with s 359AA of the Act. Ground two has no merit.
Should leave be granted to rely upon Ground 3?
In ABX15, Smith J stated as follows at [6]-[7] in refusing an application for to rely upon an amended application:
[6]With In Aon [Risk Services Ltd v Australian National University (2009) 239 CLR 175] French CJ explained at 192 [30]:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. In accepting that proposition, JL Holdings cannot be taken as authority for the view that the waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r502. Also to be considered is the potential for the loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation a fixed trial dates resulting in the resetting of interlocutory processes.
[7]The plurality stated, at 251 [102], that the exercise of the discretion will invariably require an explanation to be given where there was a delay in applying for amendment.
The circumstances in ABX15 should be contrasted with the circumstances in this matter. In ABX15, the applicant sought leave to rely upon an amended application electronically filed with the Court’s registry on the morning of the hearing and, if successful, to adjourn the proceedings to allow him to make an application for the removal of the matter to the High Court under s 40 of the Judiciary Act 1903 (Cth). At [20] Smith J stated:
In those circumstances, even if I accept that the point sought to be raised by the amendment were either important or reasonably arguable (which I do not) I would refuse the application for leave to amend. I must use the power to allow an amendment in a way that enables the just, efficient and economical resolution of the proceedings and to avoid them being protracted. To exercise the power to allow an amendment in the circumstances where there was no explanation given for a failure to comply with the court’s direction in a very late application for amendment would, in my view, then impart proper exercise of the power.
In this case, the application to amend was contained in the applicant’s submissions which were filed with the Court on 7 October 2022. The respondent has had sufficient time to consider the proposed new ground and make written submissions in response to it, which were filed with the Court on 21 October 2022. Unlike ABX15, allowing leave to rely upon amendment to Ground 2 and new ground 3 will not cause the substantive hearing to be adjourned and/or delayed.
In all of the circumstances, the Court is satisfied that it is proper to allow the amendments, noting the first respondent has properly conceded that no prejudice flows to the first respondent in allowing the amendments.
Ground three
Ground three contends that the Tribunal failed to take into account relevant information, including that the company had made modest profits in 2016 and 2017. This led to an unreasonable finding that the company might not have sufficient resources to pay the nominees annual salary of $52.000.00pa.
It was submitted that the applicant company was making profits after paying the applicant his salary of $52.000pa and other employees from time to time. It was thus unreasonable to come to the conclusion that it might not be able to pay the applicant his salary in the future.
On behalf of the first respondent, it was submitted that it appeared the applicant agreed with the Tribunal’s calculations that in 2016 the company returned a profit of $22,194.00 and in 2017 a profit of $27,452. It was submitted that, on the evidence before it, it was open to the Tribunal to conclude that the applicant company could not employ the nominee on a full-time basis in the nominated position for at least two years and therefore did not meet the requirement in reg 5.19(3)(d) of the Regulations.
It is important to note that the nomination by the applicant for the employment of Mr Hu was in a position as a Marketing Officer. At paragraph 53 of the Tribunal decision record, the relevant tasks of a Marketing Officer are set out. The Tribunal noted at paragraph 54, that the Tribunal requested evidence of the nominees work in areas such as marketing and advertising campaigns, promotional materials designed and produced, evidence of website content creators including social media comments posted by the nominee and evidence of communications with suppliers and customers. The applicant’s representative stated in an email of 6 June 2018 that the company was “unable to supply” that evidence because it “relied on the employment contract” and said the tasks were performed during the course of his employment and the business operations.
After recounting the evidence that was before it at paragraph 55, the Tribunal accepted that Mr Hu undertook some marketing activities, however these fell within the task undertaken by the description of a “Retail Store Manager” not in the nominated position of Marketing Officer.
Noting the agreed financial results of the company in 2017 and 2017, and its limited profits, the Tribunal concluded that the company would be unable to viably employ a ‘Sales Assistant’ in either the categories of ‘personal and household goods’ or ‘general’ to allow Mr Hu to be relieved of his role as a Retail Store Manager, including acting as a Cashier from Monday to Friday, to allow him to be employed on a full-time basis in the position for which she was nominated, being a Marketing Officer.
This was expressly found at paragraph 63 where Tribunal found that it was not satisfied the company had the financial resources to ensure that suitable staff would be engaged by the company so that the nominee would work full-time in the nominated position of Marketing Officer. The Tribunal found that based on the evidence provided, the description of Retail Store Manager more correctly fitted the description of the nominated position.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (Li) at [28], or where a decision has been made that lacks an “evident and intelligible justification”: Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
There is nothing in the Tribunal’s decision which meets the stringent requirements for legal unreasonableness. There was abundant evidence before the Tribunal as to the fact that the applicant was not working in the nominated position of Marketing Officer. The Court is satisfied that it was open for the Tribunal, based on the totality of the evidence that was before it, that he was in fact working as a Retail Sales Manager. Given the modest profits of the company, and its apparent cash flow difficulties at times, there is nothing legally unreasonable, illogical or irrational in the Tribunal coming to the conclusion based on the financial data that was before it that the company did not have the capacity to employ an additional employee to fulfil a role as Sales Assistant or Retail Manager in order to allow the applicant to work full-time in the nominated role of marketing manager. Ground three has no merit.
Conclusion
The application in the circumstances must be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 11 November 2022
0
8
0