Naiban Australia Pty Ltd atf Halu Family Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 495
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Naiban Australia Pty Ltd atf Halu Family Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 495
File number(s): SYG 1525 of 2019
SYG 1695 of 2019Judgment of: JUDGE DRIVER Date of judgment: 30 April 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decisions – refusal of employer nomination and visas – failure to meet relevant criteria – whether the Tribunal overlooked material considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 55, 359
Migration Regulations 1994 (Cth)
Cases cited: 1 Abebe v Commonwealth (1997) 197 CLR 510
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Number of paragraphs: 94 Date of hearing: 16 March 2021 Place: Sydney Solicitors for the Applicants: Ms E Anang of Christopher Levingston & Associates Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 1525 of 2019 BETWEEN: NAIBAN AUSTRALIA PTY LTD atf HALU FAMILY TRUST Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURALA AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
SYG 1695 of 2019 BETWEEN: KEISUKE TSUKAHARA
First Applicant
NOZOMI TSUKAHARA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURALA AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The application filed on 21 June 2019 in SYG1525 of 2019 is dismissed.
2.The application filed on 5 July 2019 in SYG1695 of 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
These are two related matters concerning an application for an employer nomination visa for Mr Tsukahara and his wife and an application for approval of an employer nomination by Naiban Australia Pty Ltd (Naiban). It is common ground that the outcome in the nomination case by Naiban will determine the outcome in the visa case by Mr and Mrs Tsukahara.
The following statement of background facts is derived from the submissions of the parties.
Naiban operates a sushi business at Greenslopes Railway Station in Brisbane. On 30 June 2017, it lodged an application[1] for the approval of a nominated position of Cook[2] at the sushi business. The nominated person for the position was Mr Tsukahara.[3] Naiban’s application was made with the assistance of a migration agent.[4] No supporting documentation was provided with the application.
[1] Court Book (CB) 1-8
[2] CB 4
[3] CB 6
[4] CB 3
On 9 August 2017, a delegate of the Minister (delegate) refused the application for approval of the nominated position.[5] The delegate noted that Naiban had not provided any information to support the application.[6] Accordingly, the delegate was not satisfied that Naiban met various sub-paragraphs of regulation 5.19(3) of the Migration Regulations 1994 (Cth) (Regulations).[7]
[5] CB 12-17
[6] CB 16
[7] CB 17
On 29 August 2017, Naiban sought review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal).[8] No documentary evidence was provided to the Tribunal by Naiban at that time. On 1 February 2019, the Tribunal wrote to Naiban and requested that it provided current information addressing why the criteria in regulation 5.19(3) were met.[9] That included evidence about Naiban’s compliance with training commitments and obligations.[10]
[8] CB 18-19
[9] CB 26-30
[10] CB 27 [8]
On 21 February 2019, almost 20 months after the nomination application was made, Naiban provided documentation in support of its application to the Tribunal.[11] In relation to the Tribunal’s request for evidence as to Naiban’s compliance with training commitments and obligations, all that was stated by Naiban’s migration agent was:[12]
The employer confirms that the amount spent on training staff is sufficient to meet IMMI’s requirements. This is supported by the enclosed training documents from AIMS and the several financial documents attached.
[11] CB 38ff
[12] CB 40
Naiban’s agent did not give any greater detail, such as identifying which documents were relied on or explaining how they demonstrated compliance with the relevant requirements.
On 25 February 2019, Naiban’s agent wrote to the Tribunal and commented upon the applicable training requirements.[13] It was asserted that “the sponsor company confirms that the amount spent for training benchmark was in excess of 1% of the payroll for each sponsorship year”.[14] However, once again the agent did not explain how this was established by reference to particular documents or particular figures. The agent did provide some documents, although they were, as noted, unexplained.[15]
[13] CB 113-114
[14] CB 113
[15] see eg CB 119-123. See also CB 129ff
On 5 April 2019, the Tribunal sent to Naiban an invitation to comment upon the training requirement imposed by regulation 5.19(30)(f) and legislative instrument IMMI13/030 - Specification of Training Benchmarks and Training Requirements (IMMI 13/030).[16] It noted, in the final dot point on CB 325, that “Naiban produced tax invoices, pro forma tax invoices, receipts and course descriptions in respect of the fiscal year ending 30 June 2017 provided evidence that it had spent $4,510.00. It did not identify any Australian citizen or permanent resident who benefitted by that expenditure. It did not identify any course or on-the-job training as specified by IMMI 13/030”. The Tribunal observed[17] that if the information it had set out was accurate, then Naiban had not complied with regulation 5.19(3)(f)(i)(A). Information was also sought by the Tribunal as to the name of the employee(s) who had undertaken the training relied upon by Naiban and evidence that they were Australian citizens or permanent residents.[18]
[16] CB 325-326
[17] at CB 326
[18] CB 326
Naiban failed to respond to the Tribunal’s invitation and failed to offer the Tribunal any assistance with its concerns.
On 22 May 2019, the Tribunal affirmed the delegate’s decision.[19]
[19] CB 332-340
The Tribunal’s decision
The Tribunal observed that Naiban had sought approval of the nomination of a position under regulation 5.19 of the Regulations.[20] As Naiban sought to satisfy the Temporary Residence Transition stream, it was required to satisfy regulation 5.19(3).[21] The Tribunal identified the issue on the review as being whether Naiban satisfied regulation 5.19(3)(f), which required it to have fulfilled all commitments relating to the applicable training requirements. The Tribunal identified that the relevant training requirements were found in IMMI 13/030,[22] and summarised those requirements at [19].[23] The Tribunal noted that Naiban was seeking to satisfy “the training requirements through the training of employees, thus the 1% of payroll is to be used”, that is, Naiban was seeking to satisfy Training Benchmark B.[24]
[20] CB 333 [1]
[21] CB 333 [3]
[22] CB 336 [16]-[19]
[23] CB 336
[24] CB 337 [20]; see also [19(e)]
The Tribunal set out the relevant procedural history of the matter at [4]-[14] and also [22]-[24].[25] It observed, at [12], that Naiban had “summarised” the “payroll amount” for various periods, but noted, at [13], that Naiban had failed to calculate the amount that it was actually required to spend on training, for a particular period, in order to satisfy the training benchmark requirements.[26] The Tribunal indicated that it had considered all the information and documents provided by Naiban.[27]
[25] CB 333-335; 337-338
[26] CB 335
[27] CB 335 [14]
The Tribunal was not satisfied at [21] “as to the calculations in the training of Australian employees and Australian permanent residents…as there is insufficient information to either calculate or corroborate the compliance with training obligations”. The Tribunal continued that it was “not satisfied that the amounts paid by the applicant [can] be accurately ascertained to represent its obligation” and noted at [26] that the “applicant has not made any calculation other than supplying information for the tribunal to wade through…and make its own calculations”. The Tribunal was also not able to be satisfied at [27], from the information provided to it, as to whether the training was provided to Australian citizens, Australian residents or other persons.
The Tribunal was thus not satisfied at [28]-[30] that regulation 5.19(3)(f) was met. The Tribunal affirmed the delegate’s decision.
THE CURRENT PROCEEDINGS
Naiban seeks judicial review of the decision of the Tribunal to affirm the decision of the delegate to refuse the nomination. Mr and Mrs Tsukahara seek judicial review of the consequential decision of the Tribunal made on 28 June 2019 to affirm the decision of the delegate not to grant the applicants employer nomination visas.
In each matter I have before me as evidence the court book. The court book in Naiban was filed on 16 August 2019. The court book in Tsukahara was filed on 11 September 2019. In addition, in the Naiban matter, I received the affidavit of Katherine Louise Evans made on 14 January 2021, to which is annexed the notification of approval of Naiban as a temporary business entry standard business sponsor.
The Naiban proceedings began with a show cause application filed on 21 June 2019. Naiban continues to rely upon that application. There is one particularised ground in it:
1. The Second Respondent in determining the Applicant's compliance with the requirements of reg.5.19(3)(f) and in particular the claim of having met Training benchmark [B] failed to properly consider the evidence of payments in satisfaction of the relevant requirement contrary to section 55 of the Migration Act 1958: in doing so the Second Respondent fell into jurisdictional error.
Particulars
(a) The Second Respondent at Paragraph 26 of the decision record found "The tribunal is not satisfied that the amounts paid by the applicant cannot be accurately ascertained to represent its obligation. It is acknowledged that on the applicant's calculations it may have had a liability of $24,220.94. Again, on the information supplied, though there was a duplication of receipts and tax invoices in the various years, the applicant may have paid $32,780. The applicant has not made any calculation other than supplying information for the tribunal to wade through the information and make its own calculations".
Mr and Mrs Tsukahara rely upon their show cause application filed on 5 July 2019, which contains the following grounds:
1.The Tribunal fell into jurisdictional error in the case of the Nomination application, the subject of proceedings (SYG1525/2019) in this Court and refused to grant the applicants 186 visas on the basis of there being no approved nomination in accordance with criterion 186.223(2) of the Migration Regulations 1994.
2.The Tribunal's decision not to adjourn the matter pending the outcome of proceedings (SYG1525/2019) in this Court is in the circumstances legally unreasonable.
CONSIDERATION
Applicants’ contentions
Relevantly to the subject proceedings, on 8 March 2017, Naiban obtained approval as a Standard Business Sponsor for the period of 8 March 2017 to 8 March 2022.[28]
[28] Annexure KE-1 to the affidavit of Ms Evans of 14 January 2021
At the time of lodgement of the nomination application (30 June 2017), the requirements for the approval of the nomination of a position in Australia were found in regulation 5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (regulation 5.19(3)) and a Direct Entry nomination stream (regulation 5.19(4)). Naiban in these proceedings sought approval of the nomination via the Temporary Residence Transition nomination stream.
Legislatively, at the time of the Tribunal’s decision, Naiban was required to satisfy the requirements of regulation 5.19 (3) (f) as it stood at the time of lodgement of the nomination application on 30 June 2017.
The terms of regulation 5.19(3)(f) as at 30 June 2017 were relevantly as follows:[29]
[29] reproduced at CB 340
(f) either:
(i) the nominator:
(A) fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note: Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
The applicable obligations relating to Naiban’s training requirements during its most recent approval as a standard business sponsor were outlined in regulation 2.87B of the Regulations as follows:
Obligation to provide training
(1)This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b) the approval of a variation to the person’s approval as a standard business sponsor.
(2)If, during all or part of:
(a) the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a) the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4)The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5)If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6)If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
The requirements relating to training that Naiban was required to comply with were specified by the Minister in IMMI 13/030.
Clause 3 of IMMI 13/030 provided as follows:
SPECIFY for the purposes of subregulations 2.87B(2) and 2.87B(3) of the Regulations that the requirements relating to training that the person must comply with, are the benchmarks for the training of Australian citizens and Australian permanent residents listed at Schedule A to this Instrument.
Schedule A of IMMI 13/030 provided as follows:
SCHEDULE A
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training.
The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Expenditure that can count towards this benchmark includes:
-paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
-funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
-employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business.
-employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
-evidence of payment of external providers to deliver training for Australian employees
-on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
o the learning outcomes of the employee at each stage;
o how the progress of the employee will be monitored and assessed;
o how the program will provide additional and enhanced skills;
o the use of qualified trainers to develop the program and set assessments; and
o the number of people participating and their skill/occupation.
Expenditure that cannot count towards this benchmark includes training that is:
-delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
-confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
-only undertaken by persons who are not Australian citizens or permanent residents
-only undertaken by persons who are principals in the business or their family members
-only relating to a very low skill level having regard to the characteristic and size of the business.
In summary, to satisfy the training requirements in regulation 5.19(3)(f) and the training obligation identified in regulation 2.87B(2), Naiban was required to evidence satisfaction of the training requirements in either Paragraph A or B of schedule A to IMMI 13/030.
Of note, IMMI 13/030 was repealed on 1 July 2017 by IMMI 17/075. Paragraph 3 of the explanatory statement to IMMI 17/075 provided as follows:
The matters previously addressed in instrument IMMI 13/030 will now be addressed in instrument Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017 and instrument Migration (IMMI 17/074:
1 Specification of Training Requirements) Instrument 2017.
IMMI 17/045 and IMMI 17/074 applied to nominations or standard business approvals lodged on or after 1 July 2017 (paragraph 7 of IMMI 17/045 and IMMI 17/074).
The proceedings before the Tribunal
During the course of the review before the Tribunal, Naiban sought to satisfy the training requirements outlined in paragraph B of schedule A to IMMI 13/030. It provided information to the Tribunal aimed at satisfying the Tribunal that recent expenditure, by the business, totalling at least 1% of the payroll went to the provision of training to Australian citizen or permanent resident employees of the business.
By letter dated 1 February 2019,[30] in accordance with s 359 of the Migration Act 1958 (Cth) (Migration Act), the Tribunal invited Naiban to provide updated and current information addressing the relevant criteria in regulation 5.19 by 18 February 2019. The Tribunal advised Naiban that if it sought to extend the time for provision of the requested information, the request was to be received by the Tribunal by18 February 2019.
[30] CB 26-30
In its aforementioned letter, the Tribunal advised Naiban that failure to provide the requested information within the prescribed time would result in Naiban losing its entitlement under s 360 of the Migration Act to appear before the Tribunal for a hearing.[31]
[31] CB 28
Unfortunately, Naiban failed to provide the requested information or seek to extend the time for provision of the requested information within the prescribed time therefore in accordance with s 360(3) of the Migration Act lost its entitlement to appear before the Tribunal.[32]
[32] CB 334 at [7]-[9]
By letter dated 19 February 2019,[33] the Tribunal advised Naiban that notwithstanding the loss of its entitlement to a hearing, until a decision was made by the Tribunal, Naiban was able to provide any information or evidence to the Tribunal for consideration.
[33] CB 34
By emails and letter dated 21 February 2019, 22 February 2019, 24 February 2019 and 25 February 2019, Naiban provided various documents to evidence its satisfaction of the relevant criteria in regulation 5.19.[34]
[34] CB 38-245
By email dated 27 February 2019, Naiban provided further documents to evidence its satisfaction of the relevant criteria in regulation 5.19.[35]
[35] CB 246-322
Relevant to the proceedings before this Court, Naiban provided the following documents to evidence its satisfaction of regulation 5.19(3)(f):
(a)statement from Naiban’s director dated 16 February 2019[36] indicating that the payroll for the 8 March 2018 to 12 August 2018 fiscal period was $300,804;
(b)the nominating business’s financial statement for the year ended June 2017;[37]
(c)the nominating business’s financial statement for the year ended June 2018;[38]
(d)receipt dated 29 June 2018 in the amount of $3,410 from Australian Business Consulting and Training Pty Ltd (ABCT) detailing the training provided to Naiban’s Australian citizen or permanent resident employees;[39]
(e)receipt dated 30 June 2017 in the amount of $8,690 from ABCT detailing the training provided to Naiban’s Australian citizen/permanent resident employees;[40]
(f)an undated index of all the employees of the business and their Australian visa status;[41]
(g)an index (dated 20 February 2019) of all the employees of the business and their Australian visa status;[42]
(h)ABCT Certificates of attainment issued to Akihiko Kuwajima (identified as the director[43] of the business and an Australian permanent resident[44]) on 28 April 2017,[45] 14 July 2017[46] and 19 September 2017[47] for completion of various training courses;
(i)ABCT certificate of attainment issued to Yumiko Reilly (identified as an employee and an Australian permanent resident[48] on 16 April 2018);[49] and
(j)ABCT certificate of attainment issued to Naoko Woodrow (identified as an employee and an Australian permanent resident[50]) on 16 April 2018.[51]
[36] CB 124
[37] CB 51-70 and CB 283-302
[38] CB 263-282
[39] CB 161
[40] CB 186
[41] CB 71
[42] CB 72
[43] CB 47
[44] CB 71
[45] CB 188
[46] CB 223
[47] CB 245
[48] CB 72
[49] CB 226
[50] CB 72
[51] CB 227
By letter dated 5 April 2019,[52] the Tribunal invited Naiban to comment on or respond to certain information which they consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.
[52] CB 325-328
The information Naiban was invited to comment on or respond to related to the documents provided by it to evidence its satisfaction of regulation 5.19(3)(f).
Of note, in its letter, the Tribunal made the following assertions:[53]
(a)Naiban was required to satisfy the training benchmarks identified in IMMI 13/030 12 months prior to the lodgement of the nomination application;
(b)that Naiban’s financial statements for the period of 1 July 2016 to June 2017 indicated that its payroll for that period was $647,012;
(c)to satisfy the training benchmark identified in Part B of IMMI 13/030, Naiban was required to evidence expenditure of at least $6,470.12 towards training its Australian citizen and permanent resident employees in the 12 months prior to lodgement of the nomination application on 30 June 2017;
(d)that the evidence provided by Naiban indicated that in the 12 months prior to lodgement of the nomination application, Naiban had expended $4,510.00 on 1 May 2016 towards training; and
(e)that the evidence did not identify the Australian citizen or permanent resident employee who benefited from the expenditure of 1 May 2016.
[53] CB 235
Unfortunately, due to “computing issues”,[54] Naiban’s representative did not receive the Tribunal’s letter of 5 April 2019 therefore no response was provided in respect of the issues raised in the Tribunal’s letter.
[54] CB 343-344
The Tribunal proceeded to affirm the decision under review primarily on the basis that Naiban’s did not satisfy the requirements of regulation 5.19(3)(f)[55] for the following reasons:
(a)the Tribunal was not satisfied as to the calculations in the training of Australian employees and Australian permanent residents, as required by IMMI 13/030, as there was insufficient information to either calculate or corroborate the compliance with the training obligations;[56]
(b)Naiban failed to make any calculation other than supplying information for the Tribunal to “wade through” the information and make its own calculations;[57] and
(c)the Tribunal could not ascertain from the supplied staff lists (one of which has a date in 2019 which is irrelevant, and the other is undated) as to whether the training includes Australian citizens and Australian permanent residents. Naiban’s business of making sushi and other Japanese dishes, involves employees who have, as an observation, Japanese names. The Tribunal was not in the position to ascertain, of the employees, who are Australian citizens and Australian permanent residents.[58]
[55] CB 338 at [28]
[56] CB 338 at [21]
[57] CB 338 at [26]
[58] CB 338 at [27]
As outlined in the application for judicial review, Naiban contends that the Tribunal fell into jurisdictional error because it failed to properly consider the information submitted by Naiban to evidence its fulfilment of regulation 5.19(3)(f) of the Regulations.
In essence, the gist of the ground and particular of the application for judicial review is that in assessing whether Naiban met the requirements of regulation 5.19(3)(f), the Tribunal fell into jurisdictional error because it failed to properly consider the evidence provided (under cover of the emails and letters to the Tribunal dated 21 February 2019, 22 February 2019, 24 February 2019, 25 February 2019 and 27 February 2019) by Naiban to demonstrate its satisfaction of the requirements of regulation 5.19(3)(f) and in so doing, failed to fulfill its obligation under s 55 of the Migration Act.
Section 55 of the Migration Act requires the Tribunal to have regard to additional relevant information provided by Naiban, provided the information is given to the Tribunal before it makes its decision.
Naiban submits that in order to meet the relevant training requirements, it was required to satisfy the requirements of regulation 5.19(3)(f)(i)(A)and(B), regulation 2.87B(2)(a) and (b) and Part B of IMMI 13/030.
Naiban further submits that in order to satisfy the requirements of regulation 5.19(3)(f)(i)(A) and (B), regulation 2.87B(2)(a) and (b) and Part B of IMMI 13/030, it was required to provide evidence to demonstrate that from the date of its approval as a standard business sponsor on 8 March 2017[59] up to and including the date of the Tribunal’s decision on 22 May 2019, Naiban expended 1% of its payroll for each relevant fiscal period towards training its Australian citizen and permanent resident employees.
[59] Annexure KE-1 to the affidavit of Ms Evans of 14 January 2021
Naiban submits that the relevant fiscal periods are 8 March 2017 to 7 March 2018 and 8 March 2018 to 7 March 2019.
It is submitted that Naiban provided the following information to evidence its payroll for each fiscal period by reference to:
(a)the statement from Naiban’s director dated 16 February 2019[60] indicating that the payroll for the 8 March 2018 to 7 March 2019 fiscal period was $300,804; and
(b)the nominating business’ financial statement for the year ended June 2018[61] indicating that the payroll for the 8 March 2017 to 7 March 2018 fiscal period was $635,481.[62]
[60] CB 124
[61] CB 263-282
[62] CB 268
On the basis of the above payroll amounts, Naiban submits that in order to satisfy the requirements of regulation 5.19(3)(f)(i)(A) and (B), regulation 2.87B (2)(a) and (b) and Part B of IMMI 13/030, the training expenditure for each relevant fiscal period was required to be as follows:
(a)8 March 2017 to 7 March 2018 fiscal period - $6,354.81 being 1% of the payroll amount of $635,481; and
(b)8 March 2018 to 7 March 2019 fiscal period- 3008.04 being 1% of the payroll amount of $300,804.
To evidence its payment of the amounts detailed above, Naiban provided the following documents:
(a)receipt dated 29 June 2018 in the amount of $3,410 from ABCT detailing the training provided to Naiban’s Australian citizen or permanent resident employees for the 8 March 2018 to 7 March 2019 fiscal period;[63] and
(b)receipt dated 30 June 2017 in the amount of $8,690 from ABCT detailing the training provided to Naiban’s Australian citizen or permanent resident employees for the 8 March 2017 to 7 March 2018 fiscal period.[64]
[63] CB 161
[64] CB 186
The receipts identified above are said to indicate that Naiban met the monetary training requirements and obligations of regulation 5.19(3)(f)(i)(A) and(B), regulation 2.87B (2) (a) and (b) and Part B of IMMI 13/030.
To demonstrate that the 8 March 2017 to 7 March 2018 and 8 March 2018 to 7 March 2019 training expenditures were directed to its Australian citizen or permanent resident employees, Naiban provided the following documents:
(a)ABCT Certificates of attainment issued to Mr Kuwajima (identified as the director[65] of the business and an Australian permanent resident)[66] on 28 April 2017,[67] 14 July 2017[68] and 19 September 2017[69] for completion of various training courses;
(b)ABCT certificate of attainment issued to Ms Reilly (identified as an employee and an Australian permanent resident)[70] on 16 April 2018;[71] and
(c)ABCT certificate of attainment issued to Ms Woodrow (identified as an employee and an Australian permanent resident)[72] on 16 April 2018.[73]
[65] CB 47
[66] CB 71
[67] CB 188
[68] CB 223
[69] CB 245
[70] at CB 72
[71] CB 226
[72] CB 72
[73] CB 227
Notwithstanding Naiban’s provision of the documents listed above, the Tribunal found as follows:
(a)there was insufficient information to either calculate or corroborate the compliance with the training obligations;[74] and
(b)the Tribunal could not ascertain from the supplied staff lists (one of which has a date in 2019 which is irrelevant, and the other is undated) as to whether the training includes Australian citizens and Australian permanent residents. Naiban’s business of making sushi and other Japanese dishes, involves employees who have, as an observation, Japanese names. The Tribunal is not in the position to ascertain, of the employees, who are Australian citizens and Australian permanent residents.[75]
[74] CB 337 at [21]
[75] CB 338 at [27]
Naiban contends that the Tribunal arrived at the conclusions discussed above because, in assessing whether Naiban met the requirements of regulation 5.19(3)(f), the Tribunal failed to properly consider the following additional information provided (under cover of the emails and letters to the Tribunal dated 21 February 2019, 22 February 2019, 24 February 2019, 25 February 2019 and 27 February 2019) by Naiban to demonstrate its satisfaction of the requirements of regulation 5.19(3)(f):
(a)the nominating business’s financial statement for the year ended June 2018;[76]
(b)receipt dated 29 June 2018 in the amount of $3,410 from ABCT detailing the training provided to Naiban’s Australian citizen/permanent resident employees;[77]
(c)receipt dated 30 June 2017 in the amount of $8,690 from ABCT detailing the training provided to Naiban’s Australian citizen/permanent resident employees;[78]
(d)an undated index of all the employees of the business and their Australian visa status;[79]
(e)an index dated 20 February 2019 of all the employees of the business and their Australian visa status;[80]
(f)ABCT Certificates of attainment issued to Mr Kuwajima (identified as the director of the business and an Australian permanent resident)[81] on 28 April 2017,[82] 14 July 2017[83] and 19 September 2017[84] for completion of various training courses;
(g)ABCT certificate of attainment issued to Ms Reilly (identified as an employee and an Australian permanent resident[85] on 16 April 2018;[86] and
(h)ABCT certificate of attainment issued to Ms Woodrow (identified as an employee and an Australian permanent resident)[87] on 16 April 2018.[88]
[76] CB 263-282
[77] CB 161
[78] CB 186
[79] CB 71
[80] CB 72
[81] at CB 71
[82] CB 188
[83] CB 223
[84] CB 245
[85] CB 72
[86] CB 226
[87] CB 72
[88] CB 227
In its decision record, the Tribunal makes no reference to the nominating business’s financial statement for the year ended June 2018,[89] receipt dated 29 June 2018 in the amount of $3,410 from ABCT,[90] the receipt dated 30 June 2017 in the amount of $8,690 from ABCT[91] or the various certificates of attainment issued to Naiban’s Australian permanent resident employees during the relevant fiscal periods.[92]
[89] CB263-282
[90] CB 161
[91] CB 186
[92] CB 188, CB 245, CB 226 and CB 227
The absence of any reference or discussion regarding the financial statement, receipts and various certificates in the Tribunal’s decision record is said to raise a strong inference that it was overlooked and is said to support Naiban’s contention that the Tribunal failed to properly consider the evidence provided (under cover of the emails and letters to the Tribunal dated 21 February 2019, 22 February 2019, 24 February 2019, 25 February 2019 and 27 February 2019) by Naiban to demonstrate its satisfaction of the requirements of regulation 5.19(3)(f).
Considering that in its letter of 5 April 2019,[93] the Tribunal asserted that Naiban was required to meet the relevant training requirements and obligations in the 12 months prior to the lodgement of the nomination application on 30 June 2017, Naiban submits that it is not surprising that the Tribunal overlooked the evidence provided by Naiban in support of its satisfaction of the relevant training requirements and obligations in the 8 March 2017 to 7 March 2019 fiscal periods.
[93] CB 325- 328
At [10][94] of its decision record, of the information provided by Naiban to demonstrate its satisfaction of the requirements of regulation 5.19(3)(f), the Tribunal considered the following receipts to be relevant to its assessment of whether Naiban met the relevant training benchmark requirements:
(a)ABCT receipt dated 8 January 2016, for the period 1 July 2015 to 8 January 2016;
(b)ABCT receipt dated 8 January 2017, for the period 8 January 2016 to 8 January 2017;
(c)ABCT receipt dated 12 August 2018, for the period 8 March 2018 to 12 August 2018;
(d)A.R.M.S. receipt dated 8 January 2015, for the period 8 January 2014 to 8 January 2015; and
(e)A.R.M.S. receipt dated 30 June 2015, for the period 8 January 2015 to 30 June 2015.
[94] CB 334-335
Of note, only one of the receipts (ABCT receipt dated 12 August 2018, for the period 8 March 2018 to 12 August 2018) listed at [10][95] relates to the relevant fiscal period of 8 March 2017 to 7 March 2019. The remainder of the receipts relate to fiscal periods prior to Naiban’s approval as a Standard Business Sponsor.
[95] CB 334-335
The Tribunal’s “fixation” with documents and information relating to fiscal periods prior to Naiban’s approval as a Standard Business Sponsor is said to underpin its failure to properly consider relevant evidence provided by Naiban demonstrating its satisfaction of the requirements of regulation 5.19(3)(f)(i)(A)and(B), regulation 2.87B(2)(a) and (b) of the Regulations and Part B of IMMI 13/030.
The requirement for Naiban to meet the relevant training requirements and obligations 12 months prior to lodgement of the nomination application is stipulated in IMMI 17/074 and IMMI 17/075. IMMI 17/075 repealed IMMI 13/030 on 1 July 2017.
Naiban contends that the Tribunal’s failure to properly consider and evaluate the material listed above constitutes jurisdictional error in the form identified by Bromberg J in MZYPZ v Minister for Immigration and Citizenship[96]. The Tribunal’s failure in this regard is said to be contrary to its obligation under s 55 of the Migration Act.
[96] [2012] FCA 478
Minister’s contentions
Naiban advances one ground of review. That ground alleges that the Tribunal “failed to properly consider the evidence provided” by Naiban to the Tribunal in support of its claim to satisfy Training Benchmark B in IMMI 13/030 (and hence regulation 5.19(3)(f)).
In its submissions, Naiban refers to certain parts of the evidence that it provided to the Tribunal. Naiban asserts that the evidence referred to “indicate[s] that the Applicant met the monetary training requirements and obligations [in regulation 5.19(3)(f) and IMMI 13/030]”. Naiban then refers to certain evidence to “demonstrate” that its expenditure was “directed to its Australian citizen or permanent resident employees”. Naiban then refers to the Tribunal’s findings, and then asserts that the Tribunal reached its findings because it “failed to properly consider” the evidence before it.
The contention that the Tribunal “failed to properly consider” evidence is much like an assertion that a decision-maker failed to give “proper, genuine and realistic consideration” to the evidence. As has been repeatedly warned, allegations of a failure to give “proper, genuine and realistic consideration” to evidence serve to invite a slide into merits review.[97] That is, in the Minister’s submission, what Naiban is doing in this case. Naiban is pointing to certain evidence before the Tribunal and asserting that this evidence “indicates” that Naiban met the requirements of IMMI 13/030 and regulation 5.19. That is, in practical effect, a request for the Court to examine the materials, determine for itself if Naiban met the relevant requirements of IMMI 13/030 and regulation 5.19 and, if the Court thinks that Naiban did meet those requirements, to then find that the Tribunal fell into error. That is not this Court’s task on judicial review.
[97] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [31]-[34]
In order for Naiban’s approval to be granted, it had to satisfy the Tribunal of the matters, among other things, in regulation 5.19(3)(f). As Gummow and Hayne JJ stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002,[98] it was for the applicant to “advance whatever evidence or argument [it] wished” and “for the Tribunal to decide whether [its] claim had been made out”.[99] As explained above, Naiban provided no materials to the Minister’s Department. It then provided some materials to the Tribunal, but failed to offer any explanation to the Tribunal, by reference to particular documents and particular figures and calculations, as to how it met the requirements of IMMI 13/030.[100] Indeed, as noted above, the Tribunal specifically wrote to Naiban seeking assistance and no response was received.[101] The Tribunal’s statement at [26][102] that the “applicant has not made any calculation other than supplying information for the tribunal to wade through” was apt. the Tribunal observed at [13][103] that Naiban had not calculated the amounts required to be paid to meet the relevant requirements of IMMI 13/030, and [21],[104] where the Tribunal observed that there was simply insufficient information for it to “calculate or corroborate” Naiban’s compliance with its training obligations.
[98] (2003) 201 ALR 437
[99] at [57] (Gleeson CJ agreeing at [1]). See also Abebe v Commonwealth (1997) 197 CLR 510 at [187]
[100] See for example CB 40 and 113, where Naiban simply asserts that it met the relevant requirements
[101] CB 324-327
[102] CB 338
[103] CB 335
[104] CB 337
The Minister submits that this was a case where, ultimately, the Tribunal was simply not able to be satisfied as to the amounts that Naiban was required to pay for training, the amounts that it actually paid and whether that training expenditure was upon training provided to Australian citizens or permanent residents.[105] There is said to be no jurisdictional error in such an outcome. It does not show a failure to give “proper consideration” to the evidence. Rather, it reflects, as explained in Applicant S154, the Tribunal simply not being satisfied of the applicant’s claims. In this case, it is said to be readily apparent that this non-satisfaction reflected the fact that Naiban failed to properly present its case to the Tribunal, by actually demonstrating to the Tribunal how and why it met the relevant requirements of IMMI 13/030, and how that was established on the documents. That was so even though the Tribunal wrote to Naiban and sought assistance on the point.[106]
[105] cf. [13], [21], [25]-[26]
[106] CB 324-327
The Minister submits that Naiban’s contention that the Tribunal failed to give “proper consideration” to the evidence ought be rejected, and the application dismissed.
In relation to some of the contentions made in Naiban’s submissions, the Minister notes the following.
Naiban states that the relevant fiscal period for assessment of compliance with regulation 5.19(3)(f) and IMMI 13/030 is 8 March 2017 to 7 March 2018 and 8 March 2018 to 7 March 2019. Naiban then refers to the “evidence” showing its “payroll” for these fiscal periods. Naiban refers to CB 124, which is said to demonstrate the payroll for 8 March 2018 to 7 March 2019. That is said to be incorrect, and the Tribunal would not be obliged to take such a view. CB 124 refers to the period 8 March 2018 to 12 August 2018. Given that there is no evidence that the business ceased trading on 12 August 2018, the payroll for the period 8 March 2018 to 7 March 2019 must be higher than the $300,804 referred to. Naiban refers to a financial statement and asserts that the payroll for 8 March 2017 to 7 March 2018 was $635,481. That is said to be incorrect. The document at CB 268 is a financial statement for the year ending 30 June 2018. It says nothing about the payroll for the specific period of 8 March 2017 to 7 March 2018. These matters are said to simply highlight the complete lack of clarity surrounding Naiban’s claim as to precisely why it met the requirements of IMMI 13/030, and why the Tribunal could not be satisfied that it did.
As a result of the submission above, the Minister submits it follows that the contention of error is not supported by the material.
Naiban refers to the 29 June 2018 ABCT receipt at CB 161, and asserts that this document shows that training expenditure for training in the 8 March 2019 to 7 March 2019 fiscal period was $3,410. The Tribunal would not be obliged to reason in this way. CB 161 states that an amount was “paid” on 29 June 2018, but also states that the training was “1st July 2017 – 30th June 2018”. That is, the actual training appears to have straddled two fiscal periods relevant to the review. There is no way, on the face of the document, to know which fiscal period that training actually fell into (or whether it was both).
Naiban also refers to the 30 June 2017 ABCT receipt at CB 186, but this document is said to suffer from the same uncertainty. It relates to training from “1st July 2016-30th June 2017”, which straddles only part of one relevant fiscal period (and part of another period that was not at all relevant to the Tribunal’s review).
It follows in the Minister’s submission that, contrary to Naiban’s submissions, the matters addressed would not inevitably lead to the conclusion that Naiban met regulation 5.19(3)(f) or IMMI 13/030 (aside from the fact, as submitted above, that these paragraphs do no more than seek merits review).
Naiban refers to particular documents said to show that “training expenditures were directed to the Applicant’s Australian citizen or permanent resident employees”. Again, the Tribunal was not obliged to reason in this way, on the face of the documents. For example, the documents relate to only three persons. Naiban has not established that these three people were the only persons who undertook the training, such that there may well have been others who received training and might not have been Australian citizens or permanent residents. Indeed, the staff lists at CB 71-72 refer to many other employees. That was the Tribunal’s point at [27], where it referred to the “staff lists” and observed that the residency status of persons on it was unknown.
Naiban alleges that the Tribunal failed to refer to particular pieces of evidence in its reasons. That does not demonstrate that the Tribunal failed to “properly consider” the evidence before it. The Tribunal stated at [14][107] that it had considered all the documents provided by Naiban. There is no reason to doubt that statement. The Tribunal is not required to refer to every piece of evidence before it, and non-reference to a piece of evidence does not necessarily mean that it was not considered. The Tribunal is required to give the reasons for its decision, not a “sub-set of reasons why it accepted or rejected individual pieces of evidence”.[108] The Minister submits that here, as explained above, the totality of the evidence before the Tribunal was simply insufficient to satisfy it that Naiban met regulation 5.19(3)(f) and IMMI 13/030. Insofar as Naiban refers to the Tribunal’s reasons at [10], the Tribunal was not there purporting to state that those documents were the only documents before it that could possibly be relevant to its decision.
[107] CB 335
[108] see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48]-[49]
Naiban refers to the Tribunal’s letter of 5 April 2019[109] and asserts, in effect, that the Tribunal was focused upon the wrong fiscal period. The Minister submits that this does not assist Naiban. First, the letter must be read in context. The reference to the fiscal year ending 30 June 2017 was made by reference to the nomination application, which referred to a payroll expenditure of $600,000 and training expenditure of $6,100 in the “past 12 months” (prior to 30 June 2017).[110] Secondly, even if the Tribunal had made some error, that letter does not form part of the Tribunal’s reasons for its decision.
[109] CB 325-328
[110] CB 5
Resolution
I accept from Naiban’s submissions that the periods relevant to the calculation of training expenditure are to be calculated by reference to the approval of Naiban’s sponsorship. While the Tribunal referred in its reasons to different periods, it does not follow that the Tribunal fell into jurisdictional error. First, the Tribunal appears to have understood what the correct period for calculation was at [13] of its reasons.[111]
[111] CB 335
Secondly, the Tribunal’s reasons must be read in the context of the sponsorship application and the material furnished and arguments made by Naiban.
That context begins with the nomination application. No evidence was provided by Naiban to the delegate to enable a calculation of training expenditure to be made, as noted in the delegate’s decision at CB 16. Neither was any evidence provided to the Tribunal with the review application. This led to a written request for information to Naiban from the Tribunal by letter dated 1 February 2019.[112] No information was provided within the required period which resulted in Naiban losing its right to a hearing before the Tribunal.
[112] CB 26-28
Material was eventually provided by Naiban’s representative under cover of a letter dated 21 February 2019.[113] At CB 40 the representative makes the unsupported claim that Naiban had complied with training commitments and sponsorship obligations.
[113] CB 38
On 25 February 2019, the agent wrote again to the Tribunal, apologising for the delays in the provision of supporting material and providing well over 100 pages of documents.[114] It was left to the Tribunal to seek to analyse those documents.
[114] CB 113
Importantly, on 5 April 2019[115] the Tribunal wrote to Naiban’s representative inviting comment or the provision of information under s 359 of the Migration Act. It is apparent from the terms of that letter that the Tribunal did not see itself as in a position to complete the review favourably to Naiban in the absence of the requested information. Under s 359(2) the Tribunal would have been obliged to consider whatever was provided in response to the letter. However, there was no response.
[115] CB 325-327
The resulting position is that Naiban criticises the Tribunal for its efforts in attempting to make sense of the feast of documents provided after a long period of famine without a clear line of explanation about them.
Whilst Naiban is critical of the Tribunal for its reference to a financial year period for analysis, that was derived from the assertions in the nomination application reproduced at CB 5. As noted above, the Tribunal at [13] appeared to understand the correct period for calculation.
Critically, at [21] the Tribunal stated:[116]
The Tribunal is not satisfied as to the calculations in the training of Australian employees and Australian permanent residents, as required by the legislative instrument IMMI 13/030, as there is insufficient information to either calculate or corroborate the compliance with the training obligations.
[116] CB 337
Further, at [26] the Tribunal stated:[117]
The Tribunal is not satisfied that the amounts paid by the applicant [can] be accurately ascertained to represent its obligation. It is acknowledged that on the applicant’s calculations it may have had a liability of $24,220.94. Again, on the information supplied, though there was a duplication of receipts and tax invoices in the various years, the applicant may have paid $32,780. The applicant has not made any calculation other than supplying information for the tribunal to wade through the information and make its own calculations.
[117] CB 338
The Minister’s representative suggested that the word “cannot” in the first line of the paragraph reproduced above is a typographical error and the correct word is “can”. That is possible, and I have incorporated the amendment. An alternative interpretation is that the Tribunal was stating in that sentence that Naiban could itself have accurately ascertained the information necessary to show its obligation but had not done so. It is apparent from what the Tribunal states at [21]-[26] and [27] that the Tribunal was left in the position that it could not be satisfied that Naiban had undertaken the required amount of expenditure on training. That was not the fault of the Tribunal.
I reject Naiban’s contention that the Tribunal fell into jurisdictional error in attempting to deal with the material it had supplied to the Tribunal.
CONCLUSION
I conclude that Naiban is unable to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
It follows that the application in SYG1695 of 2019 must also be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-five (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 30 April 2021
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