Nutritional Choice Australia Pty Ltd v Minister for Home Affairs
[2019] FCCA 1754
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NUTRITIONAL CHOICE AUSTRALIA PTY LTD v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1754 |
| Catchwords: MIGRATION – Temporary Work (Skilled) visa – Nomination approval – applicant establishes manufacturing plant to produce milk products – applicant’s business has not commenced operations – nominates applicant for position of sales and marketing manager – applicant does not disclose until questioned at hearing that nominee is primary investor in and director and shareholder of applicant – whether position genuine – finding that position for which nomination made not genuine – judicial review – jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.9.04 Migration Act 1958 (Cth), ss.65, 109, 140AA, 140E, 140GB, 348, 359, 430, 477 Migration Regulations 1994 (Cth), regs.2.59, 2.72, sch.2 cl.457 |
| Cases cited: ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Bakri v Minister for Immigration and Border Protection [2016] FCA 396 Cargo First Pty Ltd v Minister for Immigration and Border Protection (2015) 298 FLR 138 Carrascaleo v Minister for Immigration and Border Protection (2017) 252 FCR 352 CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 Dranichnikov v Minster for Immigration and Multicultural Affairs [2003] HCA 26 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Khan v Minister for Immigration and Border Protection [2016] FCA 877 Kio v Minister for Home Affairs [2019] FCA 579 Mentink v Minister for Home Affairs [2013] FCAFC 113 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 Spencer v Commonwealth (2010) 241 CLR 118 SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109 SZSZW v Minister for Immigration and Border Protection [2017] FCA 1544 SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | NUTRITIONAL CHOICE AUSTRALIA PTY LTD |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 834 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 9 July 2018 |
| Date of Last Submission: | 9 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. White |
| Solicitors for the Applicant: | Tahota Law Firm |
| Counsel for the Respondents: | Mr A. Yuile |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The time be extended pursuant to s 477(2) of the Migration Act 1958 (Cth), now for then, until 21 April 2016 within which to file the application for judicial review.
The applicant have leave to file and serve an amended application.
The amended application is dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 834 of 2016
| NUTRITIONAL CHOICE AUSTRALIA PTY LTD |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 21 April 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 March 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse an application for approval of a nomination for a subclass 457 Temporary Work (Skilled) visa (visa) under s 140GB of the Migration Act 1958 (Cth) (Act) and r 2.72 of the Migration Regulations 1994 (Cth) (Regulations).
The application for judicial review has been heard concurrently with a related proceeding; MLG1884/2016. The applicant in that proceeding, Ms Yunling Huang (Ms Huang), was the nominee for the nominated position for which the applicant in this proceeding had sought approval.
Although the application was filed one day out of time, I have determined that the grounds of review are sufficiently arguable that an extension of time should be granted pursuant to s 477(2) of the Act. I have further concluded that the application should be dismissed.
In substance, I consider that no jurisdictional error was disclosed by the Tribunal’s approach to the question of whether the applicant’s nominated position was genuine. Nor do I consider that error was demonstrated in relation to the alleged failure to have regard to information that was obtained from one of the applicant’s proposed suppliers.
Background
Although there is a significant overlap in the chronology of events relating to the present application and Ms Huang’s application, there are some events that are of particular significance to one or other of them.
The applicant in this proceeding, Nutritional Choice Australia Pty Ltd (Nutritional Choice) was incorporated on 7 August 2014. Ms Huang is a director and shareholder of that company.
Nutritional Choice aspires to engage in the business of producing and exporting powdered milk products to markets in China and South East Asia. While its business has been established, it has not as yet actually produced or exported any product.
On 21 September 2014, Nutritional Choice applied for approval as a standard business sponsor and for approval of a nominated occupation.
On 23 September 2014, Ms Huang, a Chinese national, applied for a Long-Stay Temporary Work (Skilled) (subclass 457) visa. The application was to stay for a period of 48 months. By her application, Ms Huang indicated that if her sponsorship or nomination was withdrawn she did not wish to withdraw her own application. The application identified Nutritional Choice as her sponsoring employer and Mr Eric Guo as a point of contact for her application.
On 19 November 2014, the application by Nutritional Choice for business sponsorship approval was refused. As a result, the nomination application was unable to be assessed.
On 21 November 2014, the Department invited Ms Huang to comment on information related to her visa application; namely, that she required an approved nomination. The Department advised that Nutritional Choice did not have an approved nomination for the position and, as a result, her application was unlikely to be successful.
On 25 November 2014, Nutritional Choice re-applied for approval as a standard business sponsor and of a nominated occupation (Nomination application). This application listed Ms Huang as the nominee for the role of Sales and Marketing Manager. In that part of the application which required details of the position, the applicant was directed to refer to the list of positions as designated by the ANZSCO Code. In answering that question, Nutritional Choice stated that the ANZSCO Code for Ms Huang’s proposed job was Sales and Marketing Manager.
On 19 December 2014, Nutritional Choice was approved as a standard business operator for the 12 month period to 19 December 2015.[1]
[1] See Regulations, reg 2.59.
However, on 20 December 2014, a delegate of the Minister refused the Nomination application by Nutritional Choice. In the decisional record, the delegate set out reg 2.72 of the Regulations. Relevantly, reg 2.72(10) identified criteria of which the Minister was to be satisfied including:
2.72(10)(f) the position associated with the nominated occupation is genuine.
The Minister’s delegate was not satisfied that the criterion prescribed by reg 2.72(10)(f) had been met and accordingly, refused the application.
On 20 December 2014, a delegate of the first respondent also refused Ms Huang’s visa application. On 5 January 2015, Ms Huang applied to the Tribunal for review of the delegate’s decision. On 7 May 2015, the Tribunal found that it had no jurisdiction in respect of Ms Huang’s application. On 10 February 2016, the Tribunal’s decision was quashed and the application remitted the matter for re-determination.
In the meantime, on 5 January 2015, Nutritional Choice also applied to the Tribunal for review of the delegate’s decision to refuse its Nomination application.
On 19 May 2015, Nutritional Choice was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. A number of scheduled hearing dates were vacated.
At some point, the Tribunal discerned that Nutritional Choice claimed to have a business relationship with Fonterra Co-Operative Group (Fonterra) to supply it with high quality milk.
On 22 June 2015, the Tribunal emailed Fonterra seeking information in relation to the existence, nature and extent of its business with Nutritional Choice. The email was not copied to Nutritional Choice. On 24 June 2015, Fonterra responded to the Tribunal’s request for information, advising amongst other things that it anticipated supplying Nutritional Choice with 1,500MT of product in the first year, and 12,000MT within three years, of production.
On 24 June 2015, the migration agent acting for Nutritional Choice emailed the Tribunal protesting at its decision to contact Fonterra. The agent stated that the Tribunal should not have contacted Fonterra without its consent and that it should stop doing so immediately. The Tribunal replied to the agent’s email on 1 July 2015, referring to its powers under s 359 of the Act to seek information. On 5 July 2015, the agent protested again, relying upon the Privacy Act.
On 25 February 2016, the lawyers acting for Nutritional Choice lodged a detailed submission stating, in part:
The applicant requires a sales and marketing manager. There is a considerable amount of work already being done by the nominee in marketing the Applicant’s products. Once the above information is considered, the Applicant submits that without a full time sales and marketing manager, there is no-one within the business with the capacity or experience to do that work. The position is a genuine position, and the nominee and the Applicant have demonstrated this with the documents provided here today.
Attached to the submission were a number of documents including many photos of the business premises, a copy of an offer of employment signed by Nutritional Choice and Ms Huang on 29 April 2015, a job description and a range of other materials.
After a number of delays, the hearing was finally scheduled for 1 March 2016. On that date the applicant was legally represented before the Tribunal, and Ms Huang, who appeared as a witness, was assisted by a Mandarin interpreter. Mr Guo also appeared as a representative of Nutritional Choice. The hearing took place over a period of three hours.
Tribunal decision
On 16 March 2016, the Tribunal affirmed the delegate’s decision not to approve the Nomination application and provided a statement of reasons for doing so (Reasons). The Tribunal was not satisfied that the position associated with the nominated position was genuine: [52].
On 17 March 2016, the Tribunal notified Nutritional Choice of its decision to affirm the decision.
Procedural history
On 21 April 2016, Nutritional Choice filed an application for judicial review of the Tribunal’s decision together with an application for extension of time under s 477(2) of the Act. The application was filed at 5:30pm.
An affidavit in support of the application was affirmed by Mr Guo on the same date that expanded upon the bases as to which it was contended the Tribunal’s decision was tainted by jurisdictional error. The affidavit was relied upon without objection. I have had regard to the affidavit principally in relation to its application for an extension of time.
Although the deponent complained of difficulties in the quality of the interpreting service and what were described as the subjective nature of the questions that he was being asked to answer, no ground of review was pressed on this account.
Relevantly, Mr Guo, the applicant’s general manager, deposed that he had been but was not presently a director of Nutritional Choice. He also deposed that the company, incorporated on 7 August 2014, had been established to manufacture and develop high quality infant powdered milk for export; primarily to China, with a secondary focus to the greater South East Asian market. Its business plan was exhibited to his affidavit.
Mr Guo further deposed that the applicant’s business had been financed by Ms Huang, whom he described as a director and the majority shareholder of Nutritional Choice. His evidence was that Ms Huang’s responsibilities as director and were “distinctly separate to, and not a part of her position as Sales and Marketing Manager in most cases”, but that there was some overlap, for example, in cases where contracts were being negotiated. It was further deposed that Ms Huang’s time spent as a director was minimal and often took place outside of normal working hours.
In the period to 21 April 2016, AUD$4M had been investing in establishing the applicant’s business. The deponent did not swear that the whole of that sum had been financed by Ms Huang.
Mr Guo deposed to having significant experience in the design and establishment of plants that were employed in the manufacture of powdered milk products. Mr Guo stated that he had been involved in the establishment of Nutritional Choice and its business since inception, with responsibilities including the internal workings of its factory, the purchase of necessary machinery, the design of product lines, sourcing equipment and staff and all ancillary aspects of the business.
Mr Guo further deposed that it had taken more than 12 months to achieve the establishment of the applicant’s business, and during that time the number of staff who had been employed had fluctuated on account of the requirements of the business at any particular time in, for example, establishing the factory, undertaking administrative work and cleaning and testing the production plant. It was also explained that staff numbers remained unstable as production was yet to commence.
Mr Guo deposed that although production of the milk products had not yet commenced, Nutritional Choice continued to operate its business inasmuch as it undertook sales and marketing activities, including allowing prospective customers to inspect the factory, plant and equipment. So too, regulatory authorities undertook inspection to ensure compliance with various licence requirements. He also deposed that Ms Huang’s role within Nutritional Choice included responsibility for all sales and marketing duties required for the business, and that her position was crucial having regard to the nature of its export business.
Ms Huang’s position description was tendered in evidence (as it had been before the Tribunal). Mr Guo swore that the only duties relating to the role of Sales and Marketing manager were those contained in the position description and that there were no additional roles or duties connected to that position. He also deposed that the operations of the applicant company were designed to produce large volumes of powdered milk products, and that for this reason it could not sell its products to small customers. It was said that any negotiations with prospective customers would take many months. Documentary evidence was tendered in support of those propositions.
So far as export to China was concerned, it was said that Nutritional Choice had applied for, but had not yet gained, approval for an export licence. Further, it was said that until an export licence had been obtained, Nutritional Choice could not commence production. It was also said that Nutritional Choice had obtained a letter from Fonterra confirming its ability to supply the applicant with high quality milk.
By a Response filed on 6 May 2016, the Minister contended that the decision under review was not affected by jurisdictional error.
On 13 September 2016, orders were made, by consent, regulating the preparation of the proceeding for trial. Upon the request of the Minister, the matter was then listed for directions on 8 June 2018 to address an issue arising from the withdrawal of the applicant’s lawyers.[2] The applicant did not appear on that day, and no orders were made.
[2]Namely, that under r 9.04 of the Federal Circuit Court Rules 2001 (Cth), a corporation must be represented unless leave is granted by the court.
On 25 June 2018, the Minister filed submissions that were responsive to the grounds as contained in the application.
On 6 July 2018, the applicant’s newly appointed lawyers filed a proposed amended application together with an outline of submissions.
Extension of time
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).
The power to extend time is made subject to two conditions: (1) an application has been made in writing for such an extension; and (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.[3] The first of those conditions was met by the request for an extension as made in the application for judicial review and the amended application. The second condition is in issue.
[3]For the avoidance of doubt, the 35 day time limit commences from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to extend time for the commencement of proceedings is a deliberately broad one.[4] It is well-settled that, in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.[5]
[4]Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25].
[5]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.[6] Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.
[6] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.
The ground upon which the extension of time was sought read:
1.Application lodged on 21 April 2016 at 5:30pm.
2.Applicant’s representative, Mr Zhixin GUO was due to meet and affirm supporting affidavit at solicitors office by 3:30pm but due to heavy rain that occurred after midday, all arterial roads were significantly congested and delayed his proposed arrival time by more than one hour. The application could not be lodged without the executed Affidavit.
3.The respondents have not suffered any prejudice as a result of the delay by one hour.
Explanation for delay
As the application for judicial review was filed at 5:30pm on 21 April 2016, it was in fact one hour out of time but was deemed to be filed the following day. The application was filed one day out of time in the circumstances explained by the applicant’s affidavit.
I accept that the applicant’s explanation for the delay is reasonable.
Prejudice
The Minister alleged no prejudice.
Arguable case
As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[7] MZABP v Minister for Immigration and Border Protection.[8] Whether an extension of time should be granted will depend upon the particular circumstances of each case: Mentink v Minister for Home Affairs.[9]
[7][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[8][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
[9] [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[10]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[11]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court’s endorsement of her Honour’s use of the criterion ‘reasonable prospects of success’ is apparent. This criterion is akin to that employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[12] It is a criterion which is long accepted as posing a lower threshold than that which is applied on the final determination of the issues in a proceeding.
[10][2015] FCA 1391, [62]-[63].
[11](1998) 195 CLR 516 [7]-[9].
[12] cfSpencer v Commonwealth (2010) 241 CLR 118.
The trend of authority favours an approach to the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time that the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the Tribunal to consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[13] and on appeal;[14] Kio v Minister for Home Affairs.[15] Those authorities confirm that the discretion is deliberately broad.
[13][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[14] [2018] FCAFC 82, [26]-[27] (The Court).
[15] [2019] FCA 579, [4], [10].
The Minister accepted that the delay was minimal but opposed the grant of an extension of time solely on the basis that the grounds as stated in the applicant did not have sufficient prospects of success.
Although the threshold for the purposes of an extension of time is lower than that to be applied upon a final hearing, I have concluded in favour of the applicant that the grounds of review are sufficiently arguable that an extension of time should be granted.
Nomination of occupation
The applicant had applied for approval as a standard business sponsor and for approval of a nominated occupation. Ms Huang had applied for a Temporary Work (Skilled) (subclass 457) visa. The applications were interdependent. As counsel for the Minister submitted, the regime established by the Act does not operate in respect of vacant positions for which an employee may be sought generally. Rather, within Pt 2 of the Act (which concerns the arrival, presence and departure of citizens in Australia), Div 3A addresses the subject, Sponsorship.
Division 3A of Pt 2 is arranged in eight subdivisions comprising ss 140A-140ZL. Relevantly, within Sub-div 3B, Approving sponsors and nominations, s 140E provides for the Minister to approve sponsors, while s 140GB provides that the Minister is to approve nominations.
A person who is, or has applied to be, an approved sponsor may nominate an applicant for a visa of a proposed class in relation to the applicant’s proposed occupation: par 140GB(1)(a)(i). The Minister must approve a person’s nomination if, amongst other things, prescribed criteria are satisfied: par 140GB(2)(b). Criteria for approval of the nomination of a subclass 457 (Temporary Work (Skilled)) visa are prescribed by reg 2.72. Regulation 2.72 applies to a person who is a standard business sponsor who, under s 140GB(1)(b) has nominated an occupation in relation to the holder, or the applicant for a Temporary Work (Skilled) visa. One class of Temporary Work (Skilled) visa is the visa prescribed by cl 457 of Sch 2 to the Regulations.
For the purposes of s 140GB(2), the criteria that must be satisfied for the Minister to approve a nomination are set out in sub-reg 2.72(3)-(12). Relevantly, by sub-reg 2.72(10), if a person is a standard business sponsor, the Minister must be satisfied of each of the matters in sub-par (a)-(h). In particular, the Minister must be satisfied that the position associated with the nominated occupation is genuine and, in the case of a standard business sponsorship, this criterion must be satisfied at the time of the decision.[16]
[16] Regulations, par 2.72(10)(f); Sch 2, cl 457.223(4)(d)(ii).
The determination of whether the nominated position is genuine requires consideration of whether the position is really what it purports to be: Cargo First Pty Ltd v Minister for Immigration and Border Protection.[17] The facts of the present case are very similar to those considered in Cargo First. There, the husband and wife were directors of a company that operated a franchise. The company applied for approval of its nomination of the occupation of Sales Manager. The delegate had applied the ANZSCO classification system, determining that the tasks of the nominated position were not consistent with the tasks listed in ANZSCO. In affirming the delegate’s decision, the Tribunal was not satisfied that the Sales and Marketing Manager’s position associated with the nominated occupation was genuine. It accepted that some of the proposed duties included sales and marketing, and that sales and marketing was an important part of the company’s business.
[17] (2015) 298 FLR 138, [29]-[30].
Dismissing an appeal, the court applied the ordinary meaning of the term ‘genuine’ as being real or authentic and held that the term was qualified by its use in conjunction with the phrase “associated with the nominated occupation.”[18] Smith J observed that the proper construction of the phrase “position associated with the nominated occupation is genuine” was confirmed by the context in which it was used. His Honour had regard to the purposes of Div 3A, one of which was to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages.[19] Smith J noted that, consistently with that purpose, sub-reg 2.72(10)(f) had been introduced in order to strengthen the integrity of sponsorship programs by the introduction of a genuineness test so as to ensure that a position associated with a nominated occupation was genuinely required to address skills shortages. Further, reg 2.72(10)(f) made plain that the Minister must also be satisfied that the occupation nominated by the applicant is one for which there is a six-digit ANZSCO code and that this corresponded to an occupation and its corresponding six-digit code specified by Ministerial instrument.[20] To that end, the focus of the enquiry is upon the nominated occupation by reference to that code. The proper construction of par 2.72(10)(f) was explained in Cargo First in these terms:[21]
The effect of these last two sub-regulations is critical to the understanding of the issues in these proceedings. They reveal that the nomination of an occupation will not be successful unless that occupation is specified by the Minister in an instrument in writing. To explain this by way of example, in IMMI 14/048, the occupation of sales and marketing manager (code 131112) is specified whereas a càfe or restaurant manager in a fast food or takeaway food service is specifically excluded. Thus, if the occupation nominated by the sponsor was in the latter classification the nomination could not be approved.
[18] (2015) 298 FLR 138, [21].
[19] Act, s 140AA.
[20] Regulations, reg 2.72(8A), 2.72(1)(aa).
[21] (2015) 298 FLR 138, [28].
Smith J held:[22]
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant’s arguments suggested otherwise, they are rejected.
His Honour affirmed that by sub-reg 2.72(10)(f), qualitative analysis was required in examining the nature and size of the business, the range of duties of the nominated position and whether they were consistent with the duties of a Sales and Marketing Manager.
[22] (2015) 298 FLR 138, [30].
His Honour’s decision was affirmed on appeal[23] and has been applied subsequently on several occasions: see eg, Khan v Minister for Immigration and Border Protection;[24] Bakri v Minister for Immigration and Border Protection;[25] Pasricha v Minister for Immigration and Border Protection.[26] In Pasricha, Moshinsky J considered[27] it to be unsurprising, having regard to the context in which reg 2.72 was to be applied, that a Tribunal would focus upon the detailed tasks in ANZSCO.
[23]Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87, [23] (Flick J).
[24] [2016] FCA 877, [32] (Farrell J).
[25] [2016] FCA 396, [22] (Gilmour J).
[26] [2017] FCA 779, [46] (Moshinsky J).
[27] [2017] FCA 779, [49].
The analysis in those cases supports a conclusion that where the tasks being undertaken, or to be undertaken, by a person in a nominated occupation are broader than those described by the applicable ANZSCO classification, it may be open to a decision-maker to find that the nominated occupation is not genuine. In this context, a threshold requirement for an applicant company is to select a coded position that is contained in the Ministerial list.
Grounds of review
By the proposed amended application, the applicant abandoned its original grounds of review. In their place, one new ground was advanced which to some extent overlapped with and refined the original grounds.
In addition, the applicant produced a further ground of review at the hearing. Leave was granted to file and serve an amended application. The parties agreed that if an extension of time was granted, it was appropriate to decide the application as if on a final hearing.
By its outline of submissions, the applicant adopted the history and background of the matter as provided by the Minister.
Ground 1 – regulation 2.72(10)(f)
Ground 1, as amended, reads:
The Tribunal misconstrued and misapplied Migration Regulation 2.72(10)(f) by finding that the nominated position was not genuine, on the basis that:
(a)The Tribunal placed undue weight on the fact that the Nominee is a director and shareholder of the nominating business;
(b)The decision and hearing being tainted by the Tribunals failure to appreciate and distinguish duties that relate to the nominee personally, and those duties that related to the nominated position.
(c)The evidence did not support a finding that the nominated position of Sales and Marketing manager encompassed other duties that related solely to the nominee as a director and investor.
(d)The Tribunal failed to provide proper consideration or appreciate the significance of the evidence in support of the range of duties as a sales and Marketing manager for the nominated position.
In substance, the applicant complained that the Tribunal failed to appreciate how under Australian law it was possible for a person to simultaneously hold full-time genuine employment with a company and to also be its director. Further, it was said that because the Tribunal failed to understand this distinction, it did not consider whether Ms Huang performed dual roles. On this basis it was submitted the Tribunal did not properly consider its claim that the nominated position was genuine.
The applicant relied upon the Tribunal’s Reasons at [15] where it stated:
. . . , the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. In short, the Tribunal considers that the tasks currently being performed by the nominee in the nominated occupation of Sales and Marketing manager are substantially different to the tasks contained in ANZSCO. Further, after having regard to the lack of actual production and the size of the business, the salary for the position and the relationship between the applicant, the nominee and Mr Guo, the Tribunal is not satisfied that there is a genuine position for a Sales and Marketing Manager.
The applicant claimed that the role of director and Sales and Marketing Manager were separate, should be considered such, and that by failing to recognise or maintain that distinction, the Tribunal constructively failed to consider the critical question; namely, whether the nominated position was genuine. In support of this proposition, the applicant relied upon the statement by Windeyer J in Peate v Federal Commissioner of Taxation,[28] that it was neither impossible nor incompatible for a person to be both governing director of a company and servant of that company or its agent. The applicant referred to other authority which affirmed that proposition.[29] Those principles may be accepted.
[28] (1964) 111 CLR 443.
[29]Citing Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, [79] (Basten and Leeming JJA); Energo Form ACT Pty Ltd v Beljan [2015] ACTSC 257, [53] (Penfold J); Rowntree v Commissioner of Taxation [2018] FCA 182, [57] (Rares J); Jackson v PT Constructions WA Pty Ltd [2015] FCCA 1014, [28] (Lucev J).
In support of the submission that the Tribunal had conflated the roles of director and Sales and Marketing Manager, attention was drawn to the manner in which it had recourse to ANZSCO and the indicia of a sales and marketing role. In adopting this approach, it was said that it compared those roles with the roles being undertaken by Ms Huang and the work which she had undertaken, but without taking account of the distinct roles of director and Sales and Marketing Manager.
Further it was said that, apart from averting to the submission made by Mr Guo at [38] as to the distinction between Ms Huang’s roles as director and Sales and Marketing Manager, the Tribunal had not grappled with or otherwise engaged with the submission. It was submitted that the Tribunal should have accepted that Ms Huang held a genuine directorship and then considered whether the engagement of Ms Huang as Sales and Marketing Manager was a genuine position. In short, it was said that the treatment of the submission at [38] did no more than to record that the submission had been made, but that the Tribunal had then simply ‘launched’ into a process of checking off the roles that Ms Huang had been performing against those that were listed in ANZSCO in relation to a sales and marketing role.
Then it was said that although the Tribunal had identified three considerations for concluding that the position was not genuine, it could not safely be concluded that the argument based upon the legal recognition of the dual capacity of a person had in fact been addressed.
No issue was taken by counsel for the Minister as to the statement of the general principle made in Peate’s case that a person might, at one and the same time, hold dual roles; however, it was submitted that the relevant inquiry to be addressed by sub-par 2.72(10)(f) was whether the position associated with the nominated occupation was genuine.
Contrastingly, counsel for the Minister submitted that the adoption of the distinction urged by the applicant whereby the dual role of the nominee as a director and sales manager could not be right, and would undermine reg 2.72 construed in the context of the statutory scheme established by Div 3A having regard to its objects and purposes. The proper discharge of the task, it was submitted, entailed identification of the tasks being undertaken by Ms Huang and the requirements of ANZSCO for a Sales and Marketing Manager and whether the two ‘married up.’ The question to be asked, as counsel submitted was: Are they the same thing? In the Minister’s submission, the task of the Tribunal was to examine the reality of the situation and had done so comprehensively.
Resolution
Failure to consider or properly deal with a claim or argument entails a constructive failure by the Tribunal to exercise the jurisdiction conferred on it by s 348 of the Act and may constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2);[30] Dranichnikov v Minister for Immigration and Multicultural Affairs.[31] Fundamental to the exercise of its jurisdiction is that the Tribunal has correctly understood the applicant’s claim.
[30] (2004) 144 FCR 1, [55] (The Court).
[31] [2003] HCA 26, [24] (Gummow and Callinan JJ, with whom Hayne J agreed).
In Minister for Immigration and Border Protection v MZYTS,[32] the Full Court described the Tribunal’s obligations relevantly, in these terms:
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[32](2013) 230 FCR 431, [34]; see also ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054, [33]-[34] (Bromberg J).
The applicant relied upon the further statement in MZYTS that the absence of reasons by a Tribunal upon relevant matters may allow a court to infer that those matters had not been considered, and thereby support a conclusion that it had misunderstood its statutory task of review.
It may be accepted that the failure to consider or properly deal with a claim or argument entails a constructive failure by the Tribunal to exercise the jurisdiction conferred on it by s 348 of the Act, and may constitute jurisdictional error. It is fundamental to the exercise of its jurisdiction that the Tribunal has correctly understood the applicant’s claim. While the principles in MZYTS were stated in relation to a Protection visa, the underlying general proposition that the formation of the state of satisfaction required by the Act requires a correct understanding of the bases on which the visa applicant advances his or her claim may be accepted.
However, a distinction is also to be drawn between the approach to Protection visa applications, where consideration is required of the applicant’s claims, and other forms of visa application where the satisfaction of a particular criterion must be objectively fulfilled. For example, an essential criterion for a Student visa application is that the applicant is currently enrolled in a course of study at the time of the application. If, at the time of decision, the applicant is not so enrolled, this criterion is not satisfied, the visa application must be refused.[33]
[33] Act, s 65.
In the present case, pursuant to reg 2.72(10)(f), the Tribunal was to be satisfied that the position associated with the occupation nominated by Nutritional Choice was genuine; this required identification of the particular job position and the relevant ANZSCO classification.
Contrary to the applicant’s submission, the reasoning at [15] focused on the role played by Ms Huang and stated, by way of summary, that it was not satisfied the position of Sales and Marketing Manager was genuine. In explaining its reasons for that conclusion, the Tribunal observed that it did not find the evidence given by Mr Guo and Ms Huang persuasive or compelling. The Tribunal found that it had significant reservations regarding the reliability of their evidence: [16].
However, I consider that there is no doubt that the Tribunal recognised and considered the distinction between Ms Huang’s role as director and her management position in the company: [21]-[22].
Contextually, the fact of Ms Huang’s role as director, investor and shareholder arose only in the course of the hearing. And this occurred in circumstances where it had not been disclosed beforehand: [21]. Nothing in the applicant’s pre-hearing submission explicitly drew attention to any of those matters. Those circumstances undermine Ground 1 which was advanced on the basis that the Tribunal had failed to appreciate that it was possible for a person to simultaneously hold full-time genuine employment with a company and to also be its director.
It is not without significance that the applicant now challenged the decision on the basis that, as it is said, the Tribunal was required to understand the new ‘claim’, and had not considered or properly dealt with this ‘claim’ or ‘argument’ when, on one view, it had never been squarely put. The submissions filed on behalf of the applicant did not do so, other than to assert in general terms that the role was genuine. The Tribunal was troubled that Ms Huang’s roles in the company as director, shareholder and investor had not been disclosed in any documentation at an earlier time. They were only disclosed in response to questions put to the witnesses after the Tribunal had obtained an ASIC search of Nutritional Choice: [21]. Where a visa application has proceeded through many levels of decision-making, the court insists that, on application for judicial review, the decision must be considered in light of the basis on which it was advanced, not a basis conceived of by the applicant or their advisor after the event: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[34]
[34] (2003) 216 CLR 473, [1], [14] (Gleeson CJ).
The applicant emphasised that the Tribunal’s error was that it had not turned its mind to the possibility of the distinction between Ms Huang in her capacity as a director and in her capacity as Sales and Marketing Manager for the purposes of considering whether her role was genuine. I do not accept that. Read fairly and as a whole, the Tribunal grappled actively with a matter which it had discovered for itself and did so by putting questions to the witnesses who then conceded that Ms Huang was a director, shareholder and investor.
Counsel for the applicant quite properly conceded that the acceptance of its proposition that a person could perform and occupy the dual roles of a director and employee did not compel the Tribunal to conclude that any arrangement was genuine.
The Tribunal correctly identified the requirements of reg 2.72(10)(f): [11]. It proceeded to identify the applicable legal principles, doing so by reference to the reasoning in Cargo First: [12]. The Tribunal also correctly identified that Nutritional Choice had nominated a position for the occupation of Sales and Marketing Manager and observed that it had specified that ANZSCO classification in its application: [13]. The Tribunal identified the issue arising for consideration on review was whether the requirements of reg 2.72(10)(f) were met, and noted the reasons why the delegate had not been satisfied the requirements were met: [14].
The Tribunal considered that the tasks currently being performed by Ms Huang in the nominated occupation of Sales and Marketing Manager were substantially different to the tasks contained in the ANZSCO classification. The Tribunal further found that, having regard to the actual lack of production and the size of the business, the salary for the position and the relationship between the applicant, the Nominee and Mr Guo, it was not satisfied that there was a genuine position for Sales and Marketing Manager: [15].
The Tribunal actively considered the dual role played, and the range of tasks performed, by Ms Huang at [38]:
When the Tribunal commented that it was concerned that the nominee’s role is broader than undertaking the duties of a Sales and Marketing Manager, Mr Guo agreed and said "indeed, that is the case". Later when the Tribunal discussed this issue and whether the role of the nominee involved duties broader than the ANZSCO occupational duties he provided the following information. Mr Guo stated that there are two aspects to the nominee's role. Firstly as an investor she has certain obligations and oversees the whole operation as this is within her power. Then her second role is in the sales department - where the nominee does a lot more than anyone else. He stated that in this role she has done a lot more than she is required to do. He stated that they tried to outsource sales to a local company but this was not satisfactory and they did not achieve what they expected. He stated that she is playing different roles and one investor and one as sales manager and the nominee does things that other people consider too difficult because it affects her business in general and so she has to take it up. He stated that as sales manager the nominee needs to know everything about the market, needs to gather data and analyse customers so the business can position itself. He stated that she needed to study other competitor's products and she negotiates for deals to happen. He also referred to her role in contact and working with MG. Mr Guo commented that the nominee has done a fantastic job in charge of sales and has sometimes gone beyond the scope of that role. The Tribunal queried whether the applicant was the nominee's business - she has invested the money and is a director and Mr Guo replied that is right and that is why the nominee goes beyond her job as Sales Manager and it is perfectly reasonable.
As the Reasons confirm, the Tribunal recognised at [38] that Ms Huang’s role was broader than that of a Sales and a Marketing Manager. It fully identified the submission made by the applicant’s representative, Mr Guo. I agree in the submission that [38] of the Reasons makes clear that the Tribunal well understood that the applicant was adhering to the importance of the distinction between Ms Huang’s role as a director and the tasks required of her as a Sales and Marketing Manager. It is not unimportant that the Tribunal was dealing with a submission that was made (it it was), in effect, only once the ASIC records had been put to the witnesses and the position of Ms Huang as a director, shareholder and investor exposed. Once revealed, those facts seemed to be treated as a sort of inconvenient truth that then called for a belated explanation.
I do not accept that the Tribunal conflated Ms Huang’s duties as director and as Sales and Marketing Manager, and thereby erroneously failed to acknowledge or deal with the applicant’s argument that the roles should not be conflated. For the reasons above, I very much doubt that any such argument had been put until Mr Guo began to provide his explanation of the position once Ms Huang’s position as a director, shareholder and investor was acknowledged. Nothing in the applicant’s pre-hearing submission advanced a contention to that effect, and the Tribunal was critical of the witnesses’ evidence. The Tribunal reasoned at [39]:
The Tribunal finds that the range of tasks undertaken by the nominee are much broader than the tasks listed in ANZSCO for the occupation of Sales and Marketing Manager. These tasks include responsibilities associated with being a director of NCA and an investor in NCA and a general manager of NCA. The Tribunal considers these duties are substantially different to the duties of a Sales and Marketing Manager. Therefore the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal finds that the position is not what it really purports to be.
I consider that the Tribunal did examine the reality of the situation and that it had done so comprehensively. The Tribunal found that the range of tasks undertaken by Ms Huang were much broader than the tasks listed in ANZSCO for the occupation of Sales and Marketing Manager. It squarely identified that the tasks undertaken by Ms Huang included responsibilities associated with being a director of Nutritional Choice and in protecting her interests as an investor. It also accepted that she undertook the role of general manager, but considered those respective duties were substantially different to the duties of a Sales and Marketing Manager. On that basis it was not satisfied that the position associated with the nominated occupation was genuine, as the position was not what it purported to be: [52].
In my opinion, the Tribunal undertook the task that was required of it. In deciding that the nominated position was not genuine, the Tribunal took into account:
a)the ANZSCO code applicable to a Sales and Marketing Manager and the tasks that were associated with that role: [17]-[19];
b)the applicant’s business, its structure and potential operation in the market: [19]-[20];
c)the sales, contracts and business relationships that had been established by the applicant together with the roles played by Ms Huang respecting those matters: [23]-[24];
d)the number of employees and contractors engaged by the applicant: [43]-[50];
e)the roles and duties of Ms Huang as nominee: [27];
f)the involvement of Ms Huang in the applicant company, and the role that she was playing and had played as a director, major investor and major shareholder in it: [28];
g)the role of another director, Mr Xhixin Guo (who had represented the applicant company at the Tribunal hearing), and the interaction of Mr Guo’s role with that of Ms Huang’s role: [36];
h)the nominated occupation contained in ANZSCO, being ‘Sales and Marketing Manager’: [38]-[39]; and
i)the salary of the nominated position: [40]-[41].
I also accept the Minister’s submission on Ground 1 that for the purposes of the Act and in particular, satisfaction of the criterion presented by reg 2.72(10)(f), it is not to the point that a person might generally occupy the position of director at the same time as Sales and Marketing Manager. Nor is it to the point that they might also be an investor and shareholder. The critical inquiry was as stated: was the nominated position of Sales and Marketing Manager genuine? And for that purpose, the Tribunal was entitled to have regard to the matters identified in the ANZSCO classification for that position. It did so. The Tribunal evaluated the range of considerations that was required of it and came to a conclusion that was open on the material before it.
Ground 1 is rejected.
Ground 2 – failure to have regard to information: s 359(1)
As noted above, Ground 2 was first proposed at the hearing. It reads:
The Tribunal erred by failing to comply with the requirement in s 359(1) of the Migration Act 1958 (Cth) to “have regard to” information that it got in accordance with that section.
PARTICULARS
(a)On 22 June 2015, the Tribunal wrote to Mr Ahmed Basha, technical Account Manager of Fonterra Australia (CB228) to seeks information in relation to the Applicant’s application to nominate a position.
(b)On 24 June 2015, Mr Basha responded to the Tribunal, providing the requested information (CB301)
(c)In the Tribunal’s decision of 16 March 2016 there is no reference to the information.
As noted above, the Tribunal had sought information from Fonterra. The applicant’s then migration agent had objected to the adoption of that course. Nutritional Choice now complains that the decision is tainted by error for want of any consideration of the information that was provided.
Resolution
In the circumstance that this ground had been advanced for the first time at the hearing, the parties relied upon their oral submissions.
Sub-section 359(1) of the Act reads:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Counsel for the applicant submitted, by analogy to s 109 of the Act, that the Tribunal was obliged to engage in an active intellectual process in its consideration of information that it receives. Each of ss 109 and 359 of the Act have in common that they employ the expressions “having regard to” and “must have regard to” respectively.
It was common ground that when the Tribunal communicated with Fonterra, it did so in the exercise of power conferred pursuant to s 359. It was also common ground that the Tribunal’s Reasons contain no reference to the information which Fonterra supplied to it. In those circumstances it was submitted the Reasons supported a conclusion that the Tribunal had committed jurisdictional error grounded on a failure to consider that information.
When a decision-maker receives information in response to a request made pursuant to s 359, it must have regard to that information in making the decision on review. It must also be accepted that to do so, the decision-maker must engage in an active intellectual process when it considers that information: Minister for Immigration and Citizenship v Khadgi;[35] SZRLO v Minister for Immigration and Citizenship;[36] Carrascaleo v Minister for Immigration and Border Protection.[37]
[35] (2010) 190 FCR 248, [57]-[59] (The Court).
[36] [2013] FCA 825, [45]-[49] (Barker J).
[37] (2017) 252 FCR 352, [45] (The Court).
The Tribunal is required to set out its findings on questions of fact considered to be material, together with the evidence on which those findings were based.[38] When a Tribunal’s reasons do not refer to information, the court is generally entitled to infer that such information was considered by the Tribunal not to be material: Minister for Immigration and Border Protection v SZSRS.[39] However, the fact that a matter is not referred to in the reasons does not necessarily mean the matter was not considered by the Tribunal at all. To the contrary, the Tribunal may have considered the matter but found it not to be material. Nor does it mean that such information was necessarily overlooked. Rather, the Tribunal may have considered it, but given it no weight; and for that reason, not relied upon it in arriving at its findings of material fact. The question of whether the failure to refer to information is indicative of error and, if so, whether it is jurisdictional in character is necessarily evaluative. For example, as the Full Court noted in SZSRS:[40]
In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.
[38] Act, s 430.
[39] (2014) 309 ALR 67, [33] and cases cited (The Court).
[40] (2014) 309 ALR 67, [34] citing MZYTS at [52].
Equally, since it is well settled that the obligation to give genuine consideration to information that is provided to it does not require the decision-maker to refer to every piece of evidence in its decision, its reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”.[41] For example, where a matter is considered to be of little or no practical relevance in all the circumstances, a decision-maker may well be entitled to be brief in the consideration of that information. By extension, a court will not necessarily infer from the failure of a decision-maker to refer expressly to such information that it had been overlooked.[42] Where the reasons of a Tribunal are otherwise comprehensive and the issue has at least been identified at some point, the inference that the decision-maker failed to “have regard to” the information is an inference that should not readily be drawn: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs;[43] Khadgi.[44]
[41] See, eg, Carrascaleo (2017) 252 FCR 352, [45].
[42] Khadgi, (2010) 190 FCR 248, [59].
[43] (2003) 75 ALD 630, [46]-[47], (The Court).
[44] (2010) 190 FCR 248, [64]-[65].
In the present case, I do not accept that the absence of reference in the reasons to the information received from Fonterra indicates that that the information was not considered. In particular, the Reasons were ‘otherwise comprehensive’. The Reasons did identify as a relevant issue, the existence, nature and extent of the applicant’s business activities: [23]-[24]. Critically, the information received from Fonterra was effectively overtaken, or subsumed, by the totality of the information that was provided to the Tribunal at the time of the hearing. The whole of the evidence before the Tribunal established that the applicant had not commenced trading. The information obtained from Fonterra was rendered largely irrelevant by that fact. The failure to refer to the Fonterra information might be explained by reference to the strident objection made by the applicant’s migration agent in relation to the Tribunal’s exercise of power pursuant to s 359 in contacting Fonterra. Indeed, when the Tribunal responded to the migration agent’s objection by explaining its power under s 359, the agent redoubled his objection, asserting that the use and disclosure of information was subject to protection under privacy legislation.
I do not accept that the failure to refer to the information supplied by Fonterra pwas indicative of error. Nor would I have accepted that any such error was jurisdictional in character. In the circumstances of this case, the Fonterra information was not of central importance to the issue arising for consideration upon review of the delegate’s decision.
Ground two is rejected.
Conclusion
The application is dismissed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 27 June 2019
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