Nasirzadeh & Ors v Minister for Immigration & Anor

[2019] FCCA 1115

FEDERAL CIRCUIT COURT OF AUSTRALIA

NASIRZADEH & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1115

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of business residence visas – applicants failing to include Business Activity Statements with their visa application but they were furnished subsequently – the obligation to furnish BAS was a time of application criterion and failure to comply was fatal to the application – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.31, 54, 55, 56, 65, 351, 359A, 362A, 477, 504

Migration Regulations 1994 (Cth)

Cases cited:

Ashurov v Minister for Immigration & Anor [2015] FCCA 1521

Constantino v Minister for Immigration (2013) 139 ALD 567

Khan v Minister for Immigration [2018] FCAFC 85

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381

Mondal v Minister for Immigration & Anor [2015] FCCA 571

Singh & Anor v Minister for Immigration & Anor [2015] FCCA 1793

SZFDE v Minister for Immigration (2007) 232 CLR 189

Qiu v Minister for Immigration (1994) 55 FCR 439

Yu v Minister for Immigration (2004) 140 FCR 126

First Applicant: MOHAMMAD RASULI NASIRZADEH

Second Applicant: SEPIDEH BASHIRI

Third Applicant: SAHAR RASOULI NASIRZADEH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3094 of 2017

Judgment of: Judge Driver

Hearing date: 29 April 2019

Delivered at: Sydney

Delivered on: 22 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr M Arch of Concordia Pacific

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application lodged on 5 October 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3094 of 2017

MOHAMMAD RASULI NASIRZADEH

First Applicant

SEPIDEH BASHIRI

Second Applicant

SAHAR RASOULI NASIRZADEH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant to the first (Mr Nasirzadeh), second (Ms Bashiri) and third (Ms Nasirzadeh) applicants subclass 892 business skills (residence) visas.[1]  The Tribunal found that it did not have jurisdiction in the matter of the fourth named applicant before the Tribunal.  That part of the Tribunal decision is not impugned in these proceedings and the fourth applicant before the Tribunal is not an applicant before me.[2]

   [1] State/Territory sponsored business owner

   [2] A fourth named applicant (Mr Nasirzadeh’s second daughter) was named in the application for review made to the Tribunal on 18 August 2015 but the Tribunal found she was offshore and outside the migration zone when the visa application was lodged and the delegate’s decision was made. Accordingly, the Tribunal found it did not have jurisdiction to review the decision to refuse the visa to the fourth applicant made on 16 September 2014 (Court Book (CB) 660 at [6]-[8])

2. The following statement of background facts is derived from the submissions of the parties.

3. Mr Nasirzadeh is a male citizen of Iran who applied for the grant of the visa on 16 September 2014.[3]  He was represented by KPMG in connection with his visa application.[4]

   [3] CB 6-37

   [4] CB 3-5

4. Ms Bashiri and Ms Nasirzadeh are the applicant’s wife and daughter respectively and applied for the visa as dependent members of Mr Nasirzadeh’s family unit.[5]

   [5] CB 29

5. The applicant nominated two businesses in his visa application, namely “S Bashiri & M Rasuli Nasirzadeh & A & S Sarkizians” (SMAS) and “S Bashiri & M Rasuli Nasirzadeh” (SM).[6]

   [6] CB 10-14

6. Mr Nasirzadeh stated his interest in both businesses was as a partner. The dates he allegedly commenced his involvement in the businesses was on 1 January 2012 for SMAS and on 1 October 2013 for SM.[7] 

   [7] CB 11

7. A requirement for the grant of a subclass 892 State/Territory Sponsored Business Owner visa was that the applicant met clause 892.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which stated:

   892.211  Criteria to be satisfied at time of application

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

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

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

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

8. On 4 December 2014, the applicants submitted character assessments.[8]

   [8] CB 46-102

9. On 24 March 2015, the delegate invited the applicants to provide more information. The letter stated that the applicants needed to provide copies of all Business Activity Statements (BAS) for the two years preceding the application lodgement, and that BAS had not been provided for the period 1 July 2012 to 30 June 2014. The letter also requested that the applicants provide an Australian Federal Police (AFP) national police check and character requirements for each applicant.[9]

   [9] CB 103-114

10. On 22 May 2015, the applicants’ representative provided a number of supporting documents to the Minister’s Department including the BAS for SMAS for the period July 2012 to June 2014, and the BAS for SM for the period October 2013 to June 2014.[10]

    [10] CB 152-162

11. On 3 August 2015, the delegate refused to grant the applicants the visa.[11] The delegate found the only documents provided at the time of the visa application were the necessary forms to satisfy the Schedule 1 requirements, and that no documents in support of either the main business or the management or operations of the businesses were supplied. The delegate found there was insufficient information to be satisfied that Mr Nasirzadeh has had, and continued to have, a relevant interest in the main businesses and found that he did not meet clause 892.211(1) in Schedule 2 to the Regulations.[12]

    [11] CB 215-231

    [12] CB 225-226

The Tribunal

1. On 18 August 2015, the applicants applied for review of the delegate’s decision,[13] and gave the Tribunal a copy of the delegate’s notification of refusal and decision.[14] The applicants nominated Philip Duncan of KPMG as their representative.[15]

   [13] CB 238-240

   [14] CB 240

   [15] CB 240, 247-248

2. On 3 March 2016, the applicants’ representative requested access to written material under s.362A of the Migration Act 1958 (Cth) (Migration Act) being, “[a]ll material on the DIBP file relating to the application for a subclass 892 application and refusal”.[16]

   [16] CB 246

3. On 8 March 2016, the Tribunal granted Mr Nasirzadeh access to the requested material, but excluded some documents.[17]

   [17] CB 249-253

4. On 21 December 2016, the Tribunal invited the applicants to comment on or respond to information under s.359A of the Migration Act, namely that the visa application made on 16 September 2014 did not include BAS for at least two years immediately before the visa application was made and that the Minister’s Department wrote to the applicants on 24 March 2015 to inform them that BAS for the periods 1 July 2012 to 30 June 2014 had not been received. The letter explained that the information was relevant as it may lead the Tribunal to find that the applicants did not satisfy clause 892.211(2)(b) of the Regulations.[18]

   [18] CB 255-258

5. On 30 December 2016, the applicants’ representative requested a 14 day extension to respond to the invitation,[19] which was granted.[20] The applicants were given until 18 January 2017 to respond.

   [19] CB 259

   [20] CB 262-264

6. On 18 January 2017, the applicants’ representative responded to the information to comment and attached a written submission.[21]

   [21] CB 265-270

7. On 2 February 2017, the Tribunal invited the applicants to attend a hearing on 15 March 2017,[22] which they attended with their representative.[23]

   [22] CB 271-274

   [23] CB 284-285

8. The applicants provided a submission at the hearing,[24] that included further supporting documents such as a letter from Mr Nasirzadeh,[25] letters from a builder and business partner[26] and various photographs and business-related documents.[27]

   [24] CB 287-290

   [25] CB 291-292

   [26] CB 293-294

   [27] CB 295-556

9. On 17 March 2017, the applicants’ representative sent the Tribunal a further submission[28] and supporting documents.[29]

   [28] CB 557-561

   [29] CB 562-648

10. On 5 May 2017, the Tribunal made a decision affirming the delegate’s decision.[30]

    [30] CB 652-666

The Tribunal decision

1. The Tribunal found on the evidence before it that no BAS were provided with the visa application. It took into account the information in the Minister’s Department’s file that the BAS were not included in the visa application lodged on 16 September 2014 and that, as late as 24 March 2015, the Minister’s Department wrote to Mr Nasirzadeh informing him that the BAS were not provided with the application and requesting that they be provided.[31]

   [31] CB 664 at [35]

2. The Tribunal had regard to the evidence and submissions of Mr Nasirzadeh made in response to the s.359A invitation and at the hearing, but was not satisfied that BAS had been included in the visa application for the purposes of clause 892.211(2)(b) of the Regulations.[32]

   [32] CB 664 at [37]

3. The Tribunal was satisfied the applicant provided the BAS to the Minister’s Department after he was sent the email on 24 March 2015 but found there was no documentary evidence to show that the BAS were included in the visa application.[33]

   [33] CB 664 at [38]

4. The Tribunal found that the wording of clause 892.211(2)(b) did not allow for the provision of BAS after the lodgement of the visa application because that criterion was a “time of application requirement” and used the past tense, “all Business Activity Statements required by the Australian Taxation Office…have been included in the application” [emphasis added].[34]

   [34] CB 664 at [39]

5. Noting that it was not bound by policy, the Tribunal nevertheless had regard to the Minister’s Department’s policy guide, which stated that where an applicant has nominated two businesses “certified copies of the BAS should be submitted for the periods in which the businesses have been operating (as indicated by the applicant), over the two year period”.[35]  It found the two years immediately before the visa application was made was 15 September 2012 to 15 September 2014 and that this was the “relevant period” for the purpose of the BAS.[36]

   [35] CB 665 at [40]

   [36] CB 665 at [41]

6. The Tribunal found the requirement in clause 892.211(2)(b) was a two-fold requirement: (1) that all BAS required by the Australian Taxation Office (ATO) for at least two years before the application must have been submitted to the ATO; and (2) must have been included in the application [emphasis in original].[37]

   [37] CB 665 at [42]

7. The Tribunal stated that it “appears” that the BAS were submitted to the ATO on 2 September 2014 (prior to the visa application being made) but found the BAS were not submitted to the Minister’s Department until after 24 March 2015.[38] It was not satisfied that the BAS submitted to the ATO were included in the visa application, and was therefore not satisfied that clause 892.211(2)(b) was met in respect of Mr Nasirzadeh’s two businesses. Accordingly, it found Mr Nasirzadeh did not meet clause 892.211 of the Regulations.[39]

   [38] CB 665 at [43]

   [39] CB 665 at [44]

8. In reaching the above conclusion, the Tribunal expressly considered the response to the s.359A invitation in which the representative submitted that neither the heading nor the text of clause 892.211 warranted an interpretation that restricted those requirements to the time of application, referring to Berenguel v Minister for Immigration,[40] Waensila v Minister for Immigration[41] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[42] The Tribunal found the wording of clause 892.211(2)(b) was the key to ascertaining whether the subclause was satisfied[43] and that, in this case, the BAS were provided to the Minister’s Department more than six months after the visa application was lodged and were not included in the visa application.[44]

   [40] [2010] HCA 8

   [41] [2016] FCAFC 32

   [42] CB 662 at [17]-[18]

   [43] (1986) 162 CLR 24; CB 665 at [45]

   [44] CB 665 at [46]

9. The Tribunal found there was no material to suggest that the applicants met any of the other criteria under alternate subclasses for the grant of the visa.[45]

   [45] CB 666 at [48]

10. The Tribunal considered whether to refer the matter for Ministerial intervention under s.351 in light of the submissions by Mr Nasirzadeh and his representative but refused to do so, noting that it was open to Mr Nasirzadeh to apply for Ministerial intervention directly.[46]

    [46] CB 666 at [50]-[51]

11. On 5 June 2017, the applicants made a request for Ministerial intervention,[47] which attached letters of support.[48] By a letter dated 11 August 2017, the applicants were notified that the Assistant Minister had personally considered their request but had elected not to intervene to exercise his power under s.351 of the Migration Act.[49]

    [47] CB 667-672

    [48] CB 667-676

    [49] CB 677-691

The present proceedings

1. These proceedings began with a show cause application lodged on 5 October 2017. The applicants required an extension of time under s.477 of the Migration Act, which I granted. The application contains three grounds, of which only the third ground was pressed at the trial on 29 April 2019:

   Ground 1: The Tribunal committed jurisdictional error by misinterpreting and/or misapplying clause 892.211(2)(b) of Schedule 2 of the Migration Regulations 1994.

   Particulars

   1. The Tribunal's decision to affirm the refusal of the applicants' applications for Business Skills (Residence) visa was predicated on the Tribunal's conclusion that clause 892.211(2)(b) is a "time of application" criterion and that the language of the clause that provides that Business Activity Statements for the applicants' main businesses must have been "included in the application" is to be interpreted as requiring that the Business Activity Statements must be lodged with the Department of Immigration and Border Protection ("the Department") at the same time as the application is filed with the Department.

   2.The text of Part 892 of Schedule 2 of the Migration Regulations 1994 does not support the conclusion that the criteria in Part 892 speak exclusively to satisfaction of clause 892.211(2)(b) at the time of application.

   3.The interpretation of clause 892.211(2)(b) that was espoused by the Tribunal is inconsistent with sections 54 and 55 of the Migration Act, which expressly allow information to be submitted in support of a visa application after the application is lodged and require the Department to have regard to such information.

   4.The interpretation of clause 892.211(2)(b) that was relied on by the Tribunal leads to such plain unfairness and absurdity that it is clearly incorrect, and amounts to an error of law.

   Ground 2: Alternatively, clause 892.211(2)(b) of the Migration Regulation is ultra vires and therefore invalid to the extent that the clause purports to impose a requirement that Business Activity Statements must be submitted at the same time as the application for a Business Skills (Residence) visa is made as a prerequisite for the grant of the visa.

   Particulars:

   1. The regulation-making power that is vested in the Governor-General; under section 504 of the Migration Act proscribes the making of any regulation that is inconsistent with the Migration Act.

   2. Clause 892.211 (2)(b) is inconsistent with sections 54 and 55 of the Migration Act insofar as the clause purports to prevent the consideration of information that is submitted in support of an application for a Business Skills (Residence) visa after the date that the visa application is lodged with the Department.

   3. Clause 892.211 (2)(b) is inconsistent with sections 54 and 55 of the Migration Act insofar as the clause purports to require the refusal of an application for a Business Skills (Residence) visa application in circumstances where Business Activity Statements are not submitted to the Department at the same time that the visa application is lodged.

   Ground 3: Alternatively, clause 892.211 (2)(b) of the Migration Regulations is invalid on the basis that it is unreasonable such that it is beyond the regulation-making power vested in the Governor­General under section 504 of the Migration Act.

   Particulars:

   1. Insofar as clause 892.211(2)(b) purports to require that Business Activity Statements be submitted to the Department at the same time that an application for a Business Skills (Residence) visa is lodged with the Department, the regulation is so oppressive and capricious that no reasonable mind can justify it.

2. For the purposes of the trial of this matter, the only evidence I have before me was the court book filed on 28 November 2017. 

3. Both the applicants and the Minister filed pre-hearing written submissions and also made oral submissions through their legal representatives at the trial.  I have been assisted by those submissions.

Consideration

1. It is well settled that a regulation may be found to be invalid if it is “unreasonable”.

2. The principles which define the circumstances in which a regulation may be found to be invalid were stated by Lockhart J in Qiu v Minister for Immigration[50] where it was held at 446 that:

   When the validity of a regulation is challenged on the basis that it is “unreasonable”, such that it goes beyond the regulation-making power, the word “unreasonable” in this context means that the regulation is so oppressive and capricious that no reasonable mind can justify it”…

   [50] (1994) 55 FCR 439

3. The passage from Qiu that is quoted above has been cited with approval in several recent decisions of this Court.[51]

   [51] Mondal v Minister for Immigration & Anor [2015] FCCA 571 at [41]; Ashurov v Minister for Immigration & Anor [2015] FCCA 1521 at [116] and Singh & Anor v Minister for Immigration & Anor [2015] FCCA 1793 at [26]

4. The applicants contend that the test for invalidity of the delegated legislation in this place is satisfied “in the specific factual matrix of the present case”.  The applicants note that the late lodgement of the BAS was not an issue for the delegate but was raised by the Tribunal.  They contend that the late lodgement did not prejudice or even inconvenience the Minister’s Department and that the necessary BAS were submitted to the ATO and to the Minister’s Department (the latter at its own request).  Many months passed before the delegate’s decision was made and more time passed before the Tribunal hearing and decision.  The applicants are said to have relied on their migration agent to provide all necessary documents to the Minister’s Department and the Tribunal and Mr Nasirzadeh is described as an “innocent victim” of the apparent failure of the applicants’ migration agent to file the BAS with their visa application.

5. The applicants assert that Mr Nasirzadeh has contributed “millions of dollars” to the Australian economy and that the regulation in issue does not have an underlying purpose.  They assert that the time of application criterion is “hyper technical” and “purely bureaucratic”.  They assert that the application of the criterion in this case demonstrates that the criterion is inflexible, harsh, unfair and unjust such that it rises to the level of arbitrariness and capriciousness necessary to establish invalidity. 

1. I do not accept those submissions.  I prefer the submissions of the Minister.  In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application.  Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity.

2. I accept that delegated legislation may be invalid on the ground of “unreasonableness” if it is “so oppressive and capricious that no reasonable mind could justify it”, because such delegated legislation “cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws”.[52]  Significantly, the authorities make clear that “it is only in an extreme case” that invalidity arises on this ground.[53]  Also, the Court itself is not to form its own opinion as to the “reasonableness” of the delegated legislation or, if it “thinks” it to be unreasonable, but within the scope of the regulation making power, to declare it invalid.[54] 

   [52] see eg. Yu v Minister for Immigration (2004) 140 FCR 126 at [41]-[42] per Kiefel J (as her Honour then was); Constantino v Minister for Immigration (2013) 139 ALD 567 at [43]-[44] per Jacobson J; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381

   [53] Constantino at [44]

   [54] Austral Fisheries Pty Ltd

3. Notably, Mr Nasirzadeh refers to the Full Federal Court’s decision in Khan v Minister for Immigration[55] that considered clause 485.223 of the Regulations. That clause was also a “time of application” criterion, and required that “when the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority”. Mr Nasirzadeh accepts this this is “closely analogous” to that provision under consideration in the present case. 

   [55] [2018] FCAFC 85

4. In Khan, the Full Federal Court rejected an argument that clause 485.223 was invalid, on account of it being inconsistent with, among other things, ss.54, 55 and 56 of the Migration Act. At [15]-[16], Tracey J stated (Charlesworth and Derrington JJ agreeing):[56]

   The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

   The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

   [56] See also [32] per Charlesworth J, Derrington J agreeing

5. Similarly to Khan, clause 892.221(2) imposes a “time of application” criterion requiring, among other things, that BAS “have been included in the application”. This, too, imports an “objective temporal test”.[57] Mr Nasirzadeh stated to the Tribunal that the BAS had not been “included in the application”,[58] and the Tribunal was satisfied that they were not.[59] That conclusion was correct, on the evidence before the Tribunal.

   [57] cf. Khan

   [58] CB 662 at [22]

   [59] CB 664-665 at [37]-[44]

6. There is no basis, in the present case, to find that clause 892.211(2)(b) is “so oppressive and capricious” such that “no reasonable mind could justify it”. Like the Full Federal Court observed in Khan, it is in the nature of a “time of application” criteria found throughout Schedule 2 to the Regulations. There is no basis to conclude that clause 892.211(2)(b) is not within the scope of the regulation making power in ss.31(3) and 504 of the Migration Act, especially when regard is had to Khan.

7. The applicants’ argument proceeds on the basis that “in the specific factual matrix of the present case”, clause 892.211(2)(b) operates oppressively and capriciously, and therefore is an unreasonable exercise of power. However, the fact that Mr Nasirzadeh might disagree with how that criterion operates, or the effect of it, in his specific case does not establish that the criterion is “unreasonable”. Rather, the applicants’ argument appears to be an expression of their emphatic disagreement with the criterion. That does not establish invalidity.[60]

   [60] cf. Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] per Crennan and Bell JJ

8. Notably, the Full Federal Court in Khan considered that the criteria, in that case, might possibly produce a “harsh” outcome, but that did not affect the operation of the criteria.  There was no suggestion, let alone finding, that the Regulations there might be invalid because some “harsh” outcome might, in some case, arise.[61]  It is not apparent why a different result would arise in the present case.  As Tracey J observed, the responsibility for obtaining the required documentary evidence and submitting it with the visa application rests on the visa applicant, and the “Regulations give primacy to that consideration over personal considerations”.[62]  Further, there is ordinarily nothing stopping a visa applicant, in circumstances where that applicant or applicant’s agent had failed to include the BAS in the visa application, from withdrawing the application and re-applying for the visa or to lodge another visa application after any refusal decision.[63]  Mr Nasirzadeh could also have delayed making the visa application until he or his agent had all relevant supporting documents to hand and were able to submit them to the Minister’s Department.  It appears that he did not, because his last visa was about to expire.[64]

   [61] see eg. [15]-[18] and [21]-[22]

   [62] see at [18] and [22]

   [63] cf Khan at [14] and [22]. Mr Nasirzadeh may have had a difficulty in this case on account of his age

   [64] see CB 1

9. No invalidity of clause 892.211(2)(b) is established.

10. At [45]-[47] of their submissions, the applicants observe that the delegate did not refuse the visa application on the basis of clause 892.211(2)(b) and instead focused on whether Mr Nasirzadeh satisfied clause 892.211(1). That is so, however the Tribunal remained entitled, as it did, to consider whether Mr Nasirzadeh satisfied other criteria for the visa, such as clause 892.211(2)(b). In order to be granted the visa, Mr Nasirzadeh needed to satisfy all the relevant criteria and, if not, the decision-maker is obliged to refuse to grant the visa.[65] The propositions advanced in the applicants’ submissions do not follow from the delegate deciding to refuse to grant the visa by reference to clause 892.211(1) and not clause 892.211(2)(b).

    [65] see s.65(1) of the Migration Act

11. The applicants also suggest that there is “no prejudice” to the Minister’s Department “occasioned by the non-compliance with clause 892.211(2)(b)”. That is not the relevant inquiry. As explained above, clause 892.211(2)(b) imports an “objective temporal test” as to whether or not the BAS were included with in the visa application. Here, they were not, as is conceded in the applicants’ written submissions, and as conceded to the Tribunal at its hearing.

12. Mr Nasirzadeh also suggests that he is “blameless” and an “innocent victim” of the apparent failure by his migration agent to include the BAS in the visa application. There is no clear evidence making that submission out, and it does not reflect a finding made by the Tribunal. Moreover, even if it were so, the High Court has made clear that “there are sound reasons of policy” why “bad or negligent advice or some other mishap” does not lead to jurisdictional error by a decision-maker.[66] There is no apparent reason such conduct would or could result in the invalidity of clause 892.211(2)(b).

    [66] see SZFDE v Minister for Immigration (2007) 232 CLR 189 at [53]

13. Some aspects of the applicants’ submissions seem directed to the merits of the visa application, for example by referring to the financial statements submitted on behalf of each business and the various development projects.[67]  The applicants conclude that “the financial records that the applicants submitted record that the applicants have contributed millions of dollars to the economy of Australia in carrying out the business activities necessary to attempt to satisfy the criteria for the grant of the subclass 892 visas”.[68] These submissions essentially attempt to convince the Court of the value of the businesses in contributing to the economy and amount to an impermissible invitation for the Court to review the merits of the Tribunal’s decision. They do not reflect any finding made by the Tribunal (or the delegate). They also do not provide a principled basis for finding that clause 892.211(2)(b) is invalid.

    [67] applicants’ submissions at [36]-[38]

    [68] at [39]

Conclusion

1. The applicants have failed to demonstrate that the regulation in issue in this case is invalid and hence the Tribunal decision is unaffected by any jurisdictional error.  It follows that the Tribunal decision is a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 22 May 2019