North Shore Sikh Association Incorporated v Minister for Immigration

Case •

[2010] FMCA 812

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NORTH SHORE SIKH ASSOCIATION INCORPORATED v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 812
MIGRATION – Review of the decision of the Migration Review Tribunal – the additional information provided by the applicant to the Tribunal did not form part of the Tribunal’s decision – no procedural unfairness – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.357A, 359, 359B, 359C, 379A, 379C, 379G, 476, 477, 478
Migration Regulations 1994 (Cth), reg.4.17, reg.5.19
Income Tax Assessment Act 1997 (Cth)
Gulzar Singh & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 813
Associated Provincial Picture Houses v Wednesbury  Corporation [1948] 1 KB 223
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598
Applicant: NORTH SHORE SIKH ASSOCIATION INCORPORATED
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1268 of 2010
Judgment of: Nicholls FM
Hearing date: 27 August 2010
Date of Last Submission: 27 August 2010
Delivered at: Sydney
Delivered on: 29 October 2010

REPRESENTATION

Appearing for the Applicant: Mr M Newman
Solicitors for the Applicant: Newman & Associates
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 9 June 2010 is dismissed.

  2. The applicant, North Shore Sikh Association Incorporated, to pay the first respondent’s costs set in the amount of $5,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1268 of 2010

NORTH SHORE SIKH ASSOCIATION INCORPORATED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. By application made on 9 June 2010 the North Shore Sikh Association of Sydney (“the Association”), pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), sought judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 May 2010, which affirmed the decision made by a delegate of the respondent under the Employer Nomination Scheme (“ENS”).

  2. Initially a Mr “Gurdav Singh” (emphasis added – see [5] below) was also presented as an applicant in these proceedings.

The Background

  1. The background to this application is that on 13 December 2006 the Association applied for approval of a nominated position under reg.5.19 of the Migration Regulations 1994 (Cth) (see Court Book – “CB” – CB 1 to CB 23). In essence, the relevant regulatory scheme provides for what is known as the Employer Nomination Scheme (see “ENS” above). This involves an employer being approved for appointment under the scheme.

  2. A further part of this scheme is the nomination of a person who also separately seeks a permanent visa on the basis that they are to be employed in the proposed approved appointment.

  3. This person was a Mr Gulzar Singh (emphasis added – see [2] above) who had already been working with the Association under the aegis of a temporary visa (CB 1).

  4. The application of 9 June 2010 to the Court was filed on behalf of the applicants by Newman & Associates solicitors. Following a number of directions hearings, I ultimately made an order on 27 August 2010 that: “The second applicant Gurdav Singh be removed as a party from these proceedings”. Gurdav Singh was not the name of the person that the Association proposed to employ. That person was Gulzar Singh.

  5. Mr Gulzar Singh was the subject of a different decision made by the Tribunal to that in relation to the Association. Section 478 of the Act relevantly provides that an application to this Court, and as referred to in s.477 of the Act (dealing with the Court’s jurisdiction), may only be made by the particular applicant in the review conducted by the relevant Tribunal.

  6. It was clear that the Tribunal had properly made two separate decisions, one dealing with the application for review made by the Association, and the other by Mr Gulzar Singh and his family. While the matters were heard together before the Court, the consideration in relation to Mr Gulzar Singh is the subject of a separate judgment. (See Gulzar Singh & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 813.)

The Tribunal

  1. The Association applied for review of the delegate’s decision on 28 July 2008 (CB 158 to CB 165). The Association appointed a registered migration agent to represent it before the Tribunal (CB 161), who was also authorised to receive correspondence from the Tribunal (CB 165).

  2. On 21 August 2009 and 30 November 2009 the Tribunal invited the Association to provide information. This related generally to the financial situation and organisation of the Association, some detail as to the salary paid to Mr Singh, and the status of the Association for the purposes of the Income Tax Assessment Act 1997 (Cth) (“charitable organisation”) (CB 172 to CB 174 and CB 210 to CB 212).

  3. The Tribunal conducted a hearing on 9 May 2010 (CB 230). Present were a Mr Gill for the Association, the migration agent and five witnesses. The Tribunal’s account of what occurred is set out in its decision record ([32] to [36] at CB 304).

  4. On 31 March 2010 the Tribunal again sought further information from the Association pursuant to s.359 of the Act (CB 286 to CB 287). This related to information concerning outstanding wages due to Mr Gulzar Singh.

  5. The Tribunal made its decision on 5 May 2010 (CB 297 to CB 308). It reasoned that, given the manner and form in which the Association’s application for approval had been made, the Association was required to satisfy the provisions of reg.5.19(2). The Tribunal recorded at [40] (CB 305):

    “… The Tribunal must determine whether the applicant’s application for approval of a nominated position satisfies the requirements of regulation 5.19(1C)(a) of the Regulations. The Tribunal can only approve the applicant’s application if all of the requirements in regulation 5.19(2) or (4) have been met. As previously noted, the application was made on form 785. Therefore, the Tribunal finds that regulation 5.19(4) is not relevant to this case pursuant to regulation 5.19(1C)(ii).

    Nomination is for a paid employee in a business that the employer is actively and lawfully operating in Australia: regulation 5.19(2)(a)

    Salary is at least that specified in Gazette Notice: regulation 5.19(2)(i).”

  6. Ultimately, the Tribunal found that the Association’s nomination did not meet the requirements of reg.5.19(2)(a) and (i) (see [54] to [55] at CB 308). The reasoning behind this finding was that the Association had provided inconsistent financial information to the Tribunal (see in particular [50] to [53] at CB 307). In these circumstances the Tribunal was unable to be satisfied that the Association was paying the applicant a salary at least equivalent to the amount as gazetted under reg.5.19(2)(i). Further, that the Australian Taxation Office had not been given correct information in relation to the salary of Mr Singh.

  7. The Association was required to satisfy the criteria in reg.5.19(2)(a) and (i). The Tribunal found it did not meet all of the requirements for approval. It therefore was compelled to affirm the delegate’s decision.

Before the Court

  1. The application before the Court is in the following terms:

    1. The tribunal erred in its jurisdiction by displaying procedural unfairness when, without claiming any expertise in the field of revenue law; without nominating the Act and section thereof which in the tribunal’s opinion had been breached; without obtaining any independent expert advice to support its view, and without affording the review applicant the opportunity of calling its own expert to address the issue, it found that the first applicant, a properly established religious institution, had unlawfully conducted itself.

    2. The tribunal erred in its jurisdiction by not affording procedural fairness when at the request of the First Applicant it informed them that it would delay its decision to enable to enable [sic] outstanding wages to be paid to the second applicant, the first applicant’s nominee but then made its decision the very next day.”

  2. At the hearing Mr M Newman appeared for the Association. Mr T Reilly of counsel for the first respondent.

  3. I granted leave for the Association to file in Court what was headed: “Proposed Amendment to Application for Judicial Review” as particulars to ground two of the application:

    “By letter dated 31 March 2010 (CB 286) (after a hearing on 9 March 2010) the Tribunal represented that the First applicant had until 11 May 2010 to provide a statement as to when outstanding wages were paid and supporting evidence of the outstanding wages being paid, the letter in effect envisaging ongoing payment(s) of unpaid wages. Contrary to the said representation the Tribunal published its decision on 5 May 2010 effectively precluding any chance that the outstanding wages could be paid.”

  4. In submissions Mr Newman identified the ultimate issue for consideration before the Tribunal to be the question of the outstanding “wage” to be paid to Mr Singh, who had been employed by the Association as a “priest”. I understood from Mr Newman that ground one of the application was not pressed. Ground two contained the central issue for consideration.

  5. The issue for the Court was said to be the Tribunal’s conduct and approach in relation to this question. The relevant circumstances were said to be that, at the Tribunal hearing on 9 March 2010, there was a discussion about outstanding wages and the payments of wages to Mr Singh, and whether these met the gazetted threshold. Mr Newman relied on the Tribunal’s account of what occurred at the hearing ([32] at CB 304).

  6. Following the hearing on 31 March 2010 the Tribunal wrote to the Association. It made reference to the history before the Tribunal of requests by the Association for time to provide relevant information about the payment of wages to Mr Singh (CB 286).

  7. The Tribunal sought information from the Association as to when the outstanding wages were paid, and evidence in support of this. The Tribunal advised that the information should be provided by 11 May 2010. If the Association was unable to do this by this date, they could seek an extension of time, but must do so before 11 May 2010. Finally, if the information was not received by that time the Tribunal would proceed to make its decision (CB 294).

  8. On 3 May 2010 the Tribunal received a letter from the Association’s representative. He advised that information that the outstanding wages had been paid could not be provided because the outstanding wages had in fact not been paid. The letter advised that the outstanding wages were expected to be paid by 1 September 2010 (CB 289). The letter also stated:

    “… Should the Tribunal wish to confirm that all outstanding wages are paid, then, I would kindly request the Tribunal to wait until the new Gurdwara building is completed. If the Tribunal is not willing to wait and wants the outstanding wages paid, please let me know so I can advise the Association accordingly.”

  9. The Tribunal wrote to the Association by letter dated 4 May 2010. Mr Newman noted that the letter stated that the Tribunal had decided not to delay in making its decision (CB 294).

  10. The Tribunal then proceeded to make its decision on 5 May 2010 (CB 297).

  11. On 6 May 2010 the Tribunal received a letter from the Association’s representative. It was dated 5 May 2010. The following is relevant (CB 309):

    “… I received today confirmation that Gulzar Singh’s outstanding wages will be paid today. I also today received your letter, then later today Gulzar Singh attended my office with a cheque, please see attached copy, for the outstanding wages.”

  12. It should be noted that the amount on the cheque was $13,891.50 (CB 310 to CB 311). The outstanding wages appeared to be in excess of $40,000 (see [18] at CB 301). The gazette amount was certainly of this order.

  13. Mr Newman also pointed to the Tribunal statement in its decision record (at [39] at CB 305):

    “On 4 May 2010, the Tribunal informed the review applicant that it would delay making its decision.”

  14. Ultimately, later on 6 May 2010, the Tribunal recorded in a case note (at CB 313):

    “… After the decision was sent to the rax’s [sic] rep provided additional information to the Tribunal which iwas [sic] a cheque for Mr Singh’s outstanding wages. This indicated that the rax [sic] may have been paid Mr Siongh’s [sic] outstanding wages on 5 May 2010. As this information would not have changed the Tribunal’s decision the Tribunal has decided that there has been no jurisdictional error and will not take any further action.”

Consideration

  1. In essence I understood the complaint to be that the Tribunal first told the Association it had until 11 May 2010 to provide the information it sought, yet the Tribunal went ahead and made its decision on 5 May 2010. The argument is that the Tribunal was bound by what it had said in the letter. Presumably, had it done so it would have then had before it the evidence it had requested (the copy of the cheque presented on 6 May 2010).

  2. Beyond articulating the factual complaint it was not clear what exact jurisdictional error was being asserted. At best, I understood this to be a failure of procedural fairness, although in submissions a reference was made to an invocation of the “Wednesbury principles” (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223).

  3. No submissions were made on behalf of the applicant as to whether the failure of procedural fairness was with regard to statutory provisions given the existence of s.357A (the exhaustive statement of the natural justice hearing rule contained in Division 5 of Part 5 of the Act), or whether only a breach at common law. Although given the way the case was argued before the Court, it was probably the latter.

  4. It is however, not necessary in this case to consider whether Saeed v Minister for Immigration and Citizenship [2010] HCA 23 provides some opportunity to the Association to argue that the matter complained about was not dealt with in Division 5.

  5. I agree with Mr Reilly that, whether regard is had to Division 5 or the principles of procedural fairness at general law, no error is revealed.

  6. I should note as a preliminary point that what the Tribunal said at [39] (CB 305) (at [29] above) was plainly in context of its letter of 4 May 2010, and its subsequent action is to be read as being that the Tribunal informed the Association on 4 May 2010 that it would not delay (emphasis added). A clear typographical omission.

  7. The relevant statutory procedures commence with s.359. The Tribunal plainly sent its letter of 31 March 2010 (CB 286) pursuant to that section. In context the invitation in respect of certain information was for the information to be provided in writing (s.359(2)). It was given by one of the methods specified in s.379A (s.359(3)(a) and s.379A(4)) by prepaid post sent to the authorised recipient (CB 285) and s.379G.

  8. Section 359B(2) provides that if an invitation to give information is given then the information is to be given within a period specified in the invitation as being a prescribed period or, if there is no prescribed period, within a reasonable period.

  9. Such a period is prescribed in reg.4.17(4): 28 days after the invitation is received. The Association would have been taken to have received the document within 7 working days of its date (s.379C(4)). In all, therefore, the date provided by the Tribunal (11 May 2010) complied with these requirements.

  10. The following sequence is important in understanding the answer to the complaint. The Association’s letter of 30 April 2010 (see [26] above and CB 288 to CB 289) states unequivocally that the requested information cannot be provided “at that time”. Further, that the action precedent (the payment of the outstanding wages) to the information sought by the Tribunal (evidence of the payment) would be done: “by the first of September”.

  11. Even further, the extract of the letter reproduced at [27] above makes it clear that an extension of time, by the end of 11 May 2010, was being sought by the Association, by which time the outstanding wages could be paid and evidence provided. The letter plainly contemplates that the Tribunal may not agree to this extension of time.

  12. The Tribunal’s letter of 4 May 2010 (CB 294) notified the Association that no extension would be granted and the Tribunal would not further delay the making of its decision.

  13. In terms of s.359 the Tribunal’s letter of invitation complied with all relevant requirements. Section 359C does provide for the situation where the time allowed for the giving of information has passed, without the giving of the information, the Tribunal may proceed without further action.

  14. But I agree with Mr Reilly that there is nothing in this section, or indeed any other part of Division 5, that prohibits the Tribunal from proceeding to a decision when a response to the invitation is received, as in this case. Section 359C is concerned with a different circumstance.

  15. Further, to take a contrary view in any event would have the consequence that, where an applicant promptly provided a response to an invitation, the Tribunal would be precluded from proceedings to a decision unless the prescribed time had passed. Even in circumstances where that decision may be favourable to the applicant.

  16. That the Association provided some evidence of what appears to be a partial payment on 6 May 2010 does not alter the situation that there is nothing in Division 5 to have precluded the Tribunal to proceed to a decision in the circumstances that it did.

  17. The Association’s position is in some senses even weaker, if regard is had to the complaint in light of the relevant principles at general law. This after all was the way that the applicant’s ground was pleaded and argued.

  18. The Association applied for appointment under the ENS on 12 December 2006. This application was refused on 27 June 2008 because the delegate found that reg.5.19(2)(i) was not met. In effect this was because the delegate could not be satisfied that Mr Singh, who was an employee of the Association and who was engaged in religious duties for the Association, had been or would be paid a salary that equated with the gazetted salary (CB 157).

  19. This issue was clearly a central issue before the Tribunal. The Tribunal wrote to the Association on 21 August 2009 (CB 173) and amongst other matters specifically raised the issue of what Mr Singh’s salary was and evidence of payments to him.

  20. The Association’s response on 25 September 2009 was to seek more time (CB 176). This was granted by the Tribunal on 28 September 2009 (CB 181). The Association was given until 5 November 2009 to do this. The Association provided a number of documents on 19 October 2009 (CB 182 to CB 209).

  21. Importantly, as the Tribunal itself noted in its setting out of the evidence, the documents provided indicated some discrepancy between Mr Singh’s stated salary and actual payments, that there were outstanding wages to be paid, but in contradiction that the outstanding wages had been paid (see [31] at CB 303 to CB 304, CB 183, and in particular CB 188).

  22. The state of the information provided clearly prompted the Tribunal, at least in part, to send its letter of 30 November 2009 to seek information from the Association as to its status with the Australian Taxation Office (CB 211).

  23. At the hearing on 9 March 2010, attended by the representatives of the Association and the migration agent representatives, the Tribunal was plainly concerned about the salary to be paid to Mr Singh, the circumstances attendant on the payment of the salary, and the state of the evidence in relation to tax payments.

  24. It wrote to the Association on 31 March 2010 (CB 286) requiring information as to when the outstanding salary had been paid to Mr Singh. At this point, it must be remembered, it was some 21 months after the delegate’s decision, which turned on the matter of the salary to be paid to Mr Singh.

  1. The response received by the Tribunal a month later (30 April 2010) (CB 288) was that the outstanding wages had still not been paid and would apparently not be paid for some months.

  2. There was no expectation in the letter that the Tribunal would provide further time. In fact the letter contemplated the alternative: that the Tribunal would not be willing to wait. The migration agent’s alternative expectation is understandable given the time that had elapsed and the inability of the Association to give a clear answer to the Tribunal’s concerns.

  3. In the circumstances, some 22 months after the making of the application for review, nearly two years after the delegate’s decision, taking into account the numerous and generous (as to time) opportunities provided to the Association to respond to the Tribunal’s concerns, the Tribunal was entitled as at 4 May 2010 to say “enough is enough” and to proceed to a decision.

  4. There is no procedural unfairness here. The Association was on notice of what was required. It was given time to provide the relevant evidence. For whatever reason, it still sought to procrastinate before the Tribunal.

  5. That a partial payment of the outstanding wages was made on 5 May 2010 does not reveal any failure of procedural fairness on the part of the Tribunal.

  6. Most probably, having in mind what was relevantly said in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598, the Tribunal considered this additional information (CB 313).

  7. The Tribunal’s consideration led it to the view that, as the information would not have changed the Tribunal’s decision, no jurisdictional error is revealed. To the extent that the Tribunal expressed this as a decision, it is of course for the Courts to ultimately decide whether jurisdictional error exists. I understood the Tribunal to be expressing a view or an opinion.

  8. In any event, no error is evident. The Tribunal’s decision turned on its finding that the Association did not meet the criterion in reg.5.19(2)(i). This also involved the issue that in part determined the delegate’s decision. That is the Tribunal could not reach the requisite level of satisfaction that the Association was able to pay their employee a salary that was at least equivalent to the specified amount for the relevant occupation in the gazette notice.

  9. That amount at the relevant time was $41,850. The evidence ultimately presented showed that only an amount far short of that had been paid ($13,891.50). While the Tribunal’s note did not fully explain this, it is clear that is why it said the additional information would not have led it to change its decision.

  10. In terms of procedural fairness, the Association was unable to satisfy two decision makers over a period of three and a half years that it was able to satisfy the criterion in reg.5.19(2). Mr Newman alluded before the Court to ligation that the Association was involved in before the Supreme Court of NSW. This provides no basis for asserting a breach of procedural fairness either in the statutory sense or with reference to principles at general law.

  11. For the sake of completeness, it was never explained before the Court how the “Wednesbury principles” would apply to reveal jurisdictional error on the part of the Tribunal. In any event, the Tribunal’s decision cannot be said, in the circumstances, to be so unreasonable that no reasonable decision maker could have come to the conclusion that it did. In fact, given the simplicity of the ultimate questions (do you have the capacity to pay the gazetted salary, have you paid it, if so please provide the evidence), the Tribunal’s decision was not only reasonable but, given the passage of time available to the Association, had an air of inevitably about it in light of the clear regulatory requirement.

Conclusion

  1. The Association through its legal representative pressed one issue before the Court. As no jurisdictional error is revealed the application to the Court should be dismissed. Accordingly, I will make that order as sought by the respondent Minister.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  29 October 2010

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Cases Citing This Decision

1

Singh v Minister for Immigration [2010] FMCA 813