Medinova Pty Limited v Minister for Immigration

[2020] FCCA 710

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEDINOVA PTY LIMITED v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 710

Catchwords:
MIGRATION – Regional Sponsored Migration Scheme – nomination – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to notify the applicant that it had received a certificate issued pursuant to s.375A of the Migration Act 1958.

Legislation:

Migration Act 1958 (Cth), ss.352, 359, 375A, 474
Migration Regulations 1994 (Cth), reg.5.19

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 241

Applicant: MEDINOVA PTY LIMITED

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1272 of 2018

Judgment of: Judge Cameron

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Sydney

Delivered on: 30 March 2020

REPRESENTATION

Counsel for the Applicant: Ms R Lahoud

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1272 of 2018

MEDINOVA PTY LIMITED

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant (“Medinova”) is a corporation that operates a medical practice in Cowra in the Central West of New South Wales.  On 28 August 2015 it applied to what is now the Department of Home Affairs (“Department”) for approval of its nomination of Dhruvkumar Rajendraprasad Damania (“Nominee”) to fill the role of Health Practice Manager at its Cowra surgery. 

2. On 9 August 2016 Medinova’s nomination application was refused by a delegate of the first respondent (“Minister”).  Medinova then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  It was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.  

3. The Nominee had sought a visa based on Medinova’s nomination but was unsuccessful both at the departmental level and then on review before the Tribunal because Medinova’s nomination had been refused.  He has sought judicial review of the Tribunal’s decision in his case and that proceeding was heard concurrently with this one.

4. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

LEGISLATION

1. Regulation 5.19 of the Migration Regulations 1994 (“Regulations”) empowers the Minister to approve the nomination by an employer of a position for the purposes of it being filled by an identified non-citizen. The version of reg.5.19 which applied in this case is the one in force at the time of nomination and it relevantly provides:

   5.19  Approval of nominated positions (employer nomination)

   (1)A person (a nominator) … may apply to the Minister for approval of the nomination of a position in Australia.

   …

   Direct Entry nomination

   (4)The Minister must, in writing, approve a nomination if:

   (a)    the application for approval:

   …

   (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)     is actively and lawfully operating a business in Australia; and

   (ii)    directly operates the business; and

   …

   (d)both of the following apply:

   (i)     the employee will be employed on a full‑time basis in the position for at least 2 years;

   (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)     are provided; or

   (ii)    would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   …

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)    either:

   (i)     both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;

   (B)either:

   (I)     the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub‑sub‑subparagraph; or

   (II)   the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub‑sub‑subparagraph (I); or

   (ii)    all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (II)   located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub‑subparagraphs (B) and (C).

   (5)The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

   …

BACKGROUND FACTS

1. The application for review was made on 15 August 2016. Section 352 of the Act requires the Secretary of the Department (“Secretary”) to provide documents relevant to the review to the Tribunal.

2. Section 375A of the Act provides:

   375A Certain information only to be disclosed to Tribunal

   (1)This section applies to a document or information if the Minister:

   (a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

3. Exhibit A was a redacted copy of a s.357A certificate addressed to the Tribunal, dated 19 August 2016 and signed by a delegate of the Secretary, certifying that disclosure of information contained in specified departmental file notes, redacted copies of which were included in the exhibit, would be contrary to the public interest.  Those documents revealed a very little information concerning Medinova’s financial performance in 2015 and projected profit for 2016.  The redaction passages were the subject of a successful claim in this proceeding for public interest immunity.

4. In its decision the Tribunal summarised the facts alleged in support of Medinova’s application for approval of the nomination.  As summarised by the Tribunal, Medinova relevantly made the following claims:

   a)in around May 2015 it had begun trading as a medical practice in Cowra;

   b)the Regional Certifying Body for Central Western New South Wales approved its nomination for a practice manager position, which is an “approved occupation” for the purposes of visa subclass 187 of the Regional Sponsored Migration Scheme; and

   c)it provided a comprehensive job description and relevant documentation including financial documents.

5. On 12 February 2018 the Tribunal wrote to Medinova pursuant to s.359 of the Act requesting “updated and current information” addressing reg.5.19 of the Regulations by 26 February 2018. It notified Medinova that should the information not be provided by that date or an extension of time not be sought, the Tribunal might make a decision on the application without further notice and Medinova would lose its entitlement to appear and give evidence.

6. Medinova provided information to the Tribunal on 19 March 2018.  On 21 March 2018 the Tribunal notified Medinova that by not providing a response by 26 February 2018 it had “lost any entitlement to appear before the Tribunal to give evidence and present arguments”.  However, the Tribunal would consider and make a decision based on the information provided, including the submissions of 19 March 2018.

THE TRIBUNAL’S DECISION AND REASONS

1. After discussing the claims made by Medinova and the evidence before it, the Tribunal found that it was not satisfied that Medinova met the requirements of reg.5.19(4) and so the nomination of the position could not be approved. It affirmed the delegate’s decision.

2. The Tribunal’s decision was based on the following findings and reasons:

   a)to meet reg.5.19(4)(d), a nominee must be employed in the nominated position on a full-time basis for at a minimum two year period and the possibility of an extension must not be expressly excluded by the employment agreement;

   b)Medinova’s financial circumstances were relevant to whether it could meet that criterion;

   c)the evidence before the Tribunal was that as at 15 April 2015 the total package for the Nominee would be $60,000 comprising a $55,000 salary and superannuation;

   d)the Tribunal found that Medinova had five employees, excluding the Nominee, one of whom was already employed as a practice manager.  Evidence of the other employee’s occupations and salaries were not before the Tribunal;

   e)the Tribunal attempted to reconcile the financial capacity of Medinova to pay the Nominee based upon the business plan, financial statements and most recent tax return.

3. The Tribunal found that the medical practice would not have funds sufficient to support the salary of a second practice manager.  The Tribunal also found that for the financial year ending June 2017 income and staff numbers had decreased.  It found that: 

   … There is no evidence that the applicant is capable of recruiting significantly more staff to make up the numbers, and there is no evidence to demonstrate whether the business is simply more efficient or needs to get by with less staff in order to meet the declining income.

4. The Tribunal was not satisfied that Medinova had the financial capacity to meet the Nominee’s salary and had no evidence before it that the person already employed as the practice manager had changed roles.  It did not think it viable for Medinova to pay two practice managers.  The Tribunal found that Medinova’s profit margin was “slim” and the discrepancies between its business plan and financial performance did not indicate that it could employ the Nominee for the minimum two-year period.

THE PROCEEDING IN THIS COURT

1. Medinova pleaded one ground in the application commencing this proceeding, which it abandoned in its written submissions.  Instead, Medinova submitted that the Tribunal should have notified it of the s.357A certificate.

CONSIDERATION

1. It can be presumed, and I find, that the Secretary provided to the Tribunal the original of the s.375A certificate in exhibit A in August 2016. It is uncontroversial that the Tribunal did not notify the applicant of the existence of that certificate.

2. Medinova submitted that because the Tribunal had not advised it of the existence of the s.357A certificate, it had been denied procedural fairness.  The Minister conceded that not notifying an applicant of a s.357A certificate would ordinarily amount to a denial of procedural fairness.  So much can be accepted:  Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305 at 315 [40]. However, whether Medinova was in fact denied procedural fairness depends on whether the Tribunal’s conduct in not advising of the certificate was material to the outcome of its review.

3. Medinova submitted that the Tribunal had had regard to the information in the file notes attached to the certificate, although no evidence was advanced or pointed to in support of that contention.  However, even assuming that were so, the real issue is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow Medinova a full opportunity to make submissions:  Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445-446 [49].

4. The Tribunal’s reasons do not suggest that it took the information contained in the file notes attached to the s.375A certificate into account when considering its findings. When the Tribunal discussed the finances of the business in para.32 of its reasons it did so by reference to a

   
   

   2015-16 business plan which Medinova undershot by a large margin, according to its financial statements.  When it discussed Medinova’s capacity to afford the Nominee, in para.34 of its reasons quoted earlier at [15], it referred to income figures for 2016-17.  Those discussions give no indication that the information in the file notes, which dealt with the 2015 profit and a projection for 2016, had any bearing on the Tribunal’s reasoning.

5. I am not persuaded that a realistic possibility existed that the Tribunal’s decision would have been different had it advised Medinova of the existence of the s.375A certificate.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  30 March 2020