Oakwood Sydney Pty Ltd v Minister for Immigration & Anor and Goo & Ors v Minister for Immigration

[2020] FCCA 2354

FEDERAL CIRCUIT COURT OF AUSTRALIA

OAKWOOD SYDNEY PTY LTD v MINISTER FOR IMMIGRATION & ANOR and GOO & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2354

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for approval of nomination of position under the Migration Regulations 1994 (Cth) and application for Employer Nomination (Permanent) (Class EN) – where the outcome before the Tribunal in the application for Permanent visas was interdependent upon the outcome before the Tribunal brought by the nominator – proceedings heard and determined concurrently – whether Tribunal made error of law and or acted in a legally unreasonable way in relation to reg 5.19 – no jurisdictional error made out – amended applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 476

Migration Regulations 1994 (Cth), regs.1.13A, 5.19

Applicant: OAKWOOD SYDNEY PTY LTD

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2394 of 2019

First Applicant: SEOUNGJIN GOO

Second Applicant: JAHYOUNG YOUN

Third Applicant: YUNSEO GOO

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2579 of 2019

Judgment of: Judge Street

Hearing date: 25 August 2020

Date of Last Submission: 25 August 2020

Delivered at: Sydney

Delivered on: 25 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Oliver Robert Jones

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: MinterEllison

ORDERS in OAKWOOD SYDNEY PTY LTD v MINISTER FOR IMMIGRATION & ANOR

1. The proceedings SYG2394/2019 and SYG2579/2019 are to be heard and determined concurrently.

2. Leave is granted to the applicant to rely upon the amended application annexed to the applicant’s submissions filed on 28 July 2020 and directs that the amended application in that form be filed and served on or before 28 August 2020.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 25 August 2020

ORDERS in GOO & ORS v MINISTER FOR IMMIGRATION & ANOR

1. The proceedings SYG2579/2019 and SYG2394/2019 are to be heard and determined concurrently.

2. The application is dismissed.

3. The first applicant and the second applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 25 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2394 of 2019

OAKWOOD SYDNEY PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION. CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

SYG 2579 of 2019

SEOUNGJIN GOO

First Applicant

JAHYOUNG YOUN

Second Applicant

YUNSEO GOO

Third Applicant

And

MINISTER FOR IMMIGRATION. CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Court has before it two proceedings that are interrelated which the Court has ordered be heard and determined concurrently. In the first proceedings (“Oakwood”), the applicant, Oakwood Sydney Pty Ltd, seeks to challenge a decision of the Administrative Appeals Tribunal (the Tribunal) made on 20 August 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) to refuse the nomination.

2. In the second proceedings (“Goo and Ors”), the first and second applicants, who are husband and wife, and the third applicant, who is a child and has been the subject of a litigation guardian order, seek a writ in respect of a decision of the Tribunal made on 25 September 2019 affirming a decision of a different delegate of the first respondent not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. It is apparent that the outcome in those proceedings before the Tribunal was interdependent upon the outcome of the proceedings brought by Oakwood Sydney Pty Ltd. 

3. The parties are in agreement that if the applicant succeeds in the matter of Oakwood Sydney Pty Ltd, the applicants in the Goo and Ors proceedings must succeed, and it is common ground that if the applicant in the Oakwood proceedings fails, the applicants in the Goo and Ors proceedings equally must fail.

4. The applicant applied for a review and appeared before the Tribunal on 23 July 2019 to give evidence and present arguments, and evidence was also received from the first applicant in the Goo and Ors proceedings.

5. The Tribunal identified that the Delegate refused the application and found that the nomination did not satisfy reg 5.19(3)(f) of the Regulations because the training benchmarks had not been met.

6. The Tribunal, in its reasons dated 20 August 2019, identified that Oakwood applied for approval on 12 October 2016. The Tribunal identified that the requirements for the approval are found in reg 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”). 

7. The Tribunal identified that the approval of a nomination of a position of Management Consultant was sought under the Temporary Residence Transition nomination stream. 

8. The Tribunal correctly identified that the issue in the present case was whether the application meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3) of the Regulations, which was attached to the Tribunal’s decision and which relevantly provides as follows:

   5.19 Approval of nominated positions (employer nomination)

   ...

   Temporary Residence Transition nomination

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

   (a)  the application for approval:

   (i)  is made in accordance with subregulation (2); and

   (ii)  identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)  identifies an occupation, in relation to the position, that:

   (A)  is listed in ANZSCO; and

   (B)  has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and

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

   (b)  the nominator:

   (i)  is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

   (iii)  did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

   (c)  either:

   (i)  both of the following apply:

   (A)  in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:

   (I)   held one or more Subclass 457 visas for a total period of at least 2 years; and

   (II)   been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);

   (B)  the employment in the position has been full‑time, and undertaken in Australia; or

   (ii)  all of the following apply:

   (A)  the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);

   (B)  the nominator nominated the occupation;

   (C)  the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)  for a person to whom subparagraph (c)(i) applies:

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

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

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

   (i)  are provided; or

   (ii)  would be provided;

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

   (f)  either:

   (i)  the nominator:

   (A)  fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

   (B)  complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

   (ii)  it is reasonable to disregard subparagraph (i); and

   Note:       Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

   (g)  either:

   (i)  there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

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

   (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

9. The Tribunal referred to the adverse finding of the Delegate in relation to the training obligations in discussing the financial position with Mr Ahn on behalf of the applicant.

10. The Tribunal raised that the income had reduced for the financial year ended 30 June 2017 to 30 June 2018 and that the business was making a loss. The Tribunal referred to the evidence in relation to the profit having been reduced and the need for advertising which is why the expenses remain high. The Tribunal referred to the absence of advertising expenses for the financial year 2018 and the absence of any satisfactory explanation in that regard, and that Mr Ahn was unable to provide a clear picture in relation to the salaries paid and had said that Mr Goo was in charge of paying salaries and management of the business.

11. The Tribunal identified having raised concerns as to whether the nominator is “actively and lawfully operating” a business in Australia given that its registration as a remittance service provider had been cancelled by the Australian Transaction Reports and Analysis Centre (“AUSTRAC”) in January 2016. The Tribunal referred to Mr Ahn’s explanation for the cancellation and his acceptance that the nominator was not currently registered with AUSTRAC and that there were remittances carried out through a new business, and that Mr Ahn said Mr Goo was in charge of the operation and management of the new business called Hoju Jobs and that they applied for a new licence.

12. The Tribunal sought to explore with Mr Ahn his knowledge of the business named ToKorea Pty Ltd (“ToKorea”) and Mr Ahn acknowledged that it was a business that carried out remittances and had been registered with AUSTRAC. The Tribunal raised its concern in relation to the cancellation of the registration of ToKorea by AUSTRAC, and that one of the reasons being listed as “more likely than not, was ‘a party to a contravention of a civil penalty provision’ in that it assisted Oakwood Sydney Pty Ltd in continuing to send funds to South Korea notwithstanding the cancellation…”

13. The Tribunal identified that it may consider this information to be adverse information known to the Department of Immigration about the nominator or a person associated with a nominator and would consider whether it was reasonable to disregard the information.

14. In relation to the information obtained from the AUSTRAC website, the Tribunal informed Mr Ahn that it considered it to be information that may be the reason for affirming the decision to the Delegate, and invited him to comment consistently with s 359AA of the Act. The Tribunal identified the information as being the cancellation of the registration of the nominator and the cancellation of the registration of ToKorea. The Tribunal identified that an adjournment was sought and that Mr Ahn had spoken to Mr Goo but that he had not provided a satisfactory response, and that Mr Ahn maintained that Mr Goo had managed the business so he did not have any further comment regarding the information.

15. The Tribunal foreshadowed that it would raise the matter with Mr Goo. In that regard, Mr Goo confirmed that the remittance registration of the nominator had been cancelled and said that it was because of another person employed by the business that had embezzled funds from clients. Mr Goo identified that person as a Mr Jun Won You who managed the city office. Mr Goo said that the nominator had essentially been maintained for the purpose of nominating him for the Subclass 186 visa. Mr Goo confirmed that he had been paid a salary by another business in 2017, which was in breach of condition 8107. Mr Goo said that he had assisted the New South Wales Crime Commission and the Federal Police in carrying out transactions and had also been investigated in relation to a Korean drug dealer in 2012. Mr Ahn indicated that he had not known of these details and had been trying to help Mr Goo.

16. The Tribunal wrote to the nominator following the hearing and invited it to comment on and/or respond to information it considered would be a reason for affirming the decision, consistent with s 359A of the Act, which included information that it was no longer registered with AUSTRAC and Mr Goo’s oral evidence that it does not do any business.

17. The Tribunal referred to the response and summarised the submissions that were provided in response. 

18. The Tribunal accepted that the business is currently registered with ASIC and also had regard to the financial statements as well as other supporting documents provided to the Tribunal. 

19. The Tribunal referred to having obtained the information that indicates that the nominator’s registration for remittance services was cancelled in January 2016 by AUSTRAC and remains cancelled.

20. The Tribunal referred to the response to an invitation to comment letter and referred to a statement subsequently provided by Mr Goo in which he claims there was an error made by an interpreter and that it is continuing to operate.

21. The Tribunal accepted that the business was set up as a financial services remittance provider and that it has not been able to carry out remittances since January 2016. 

22. The Tribunal referred to the accounts provided and accepted that there are business activity statements (“BAS”) which had the nominator’s listed details, however they only showed wages and taxes withheld. The Tribunal identified concern as to whether the nominator was lawfully operating the business.

23. The Tribunal identified having serious concerns that the business is lawfully operating and that it appears to have continued to engage in remittance activities through other businesses which are now referred to as “its clients”, and the Tribunal decided to proceed to determine whether the requirements under regs 519(3)(g) and 5.19(3)(d) of the Regulations are met.

24. The Tribunal referred to the requirements of reg 5.19(3)(g) of the Regulations and whether it was reasonable to disregard such information.

25. The Tribunal referred to having written to Immigration on 12 June 2019 regarding information from the AUSTRAC website that the nominator’s registration had been cancelled on 27 January 2016. The Tribunal expressly identified that as being “adverse information” known to Immigration about the nominator. 

26. The Tribunal also referred to the fact that, on 27 June 2016, AUSTRAC cancelled registration of ToKorea as an independent remittance dealer. 

27. The Tribunal referred to the response that was provided to its letter and that there were no details provided of the service provided or arrangements with ToKorea. The Tribunal also noted that it was submitted that the findings of AUSTRAC had “never been contested at court and/or verified by ASIC”. The Tribunal noted that no submissions or evidence was given as to why the findings of AUSTRAC were not correct and no reasons were provided as to why the findings were not contested, and that that was a decision that could have been reviewed and no such steps were taken. 

28. It was in that context that the Tribunal referred to AUSTRAC being the body that has been established by the Australian Government to ensure and protect the integrity of the Australian financial system.

29. The Tribunal found the AUSTRAC decision, to cancel the registration of the nominator and its concern that the nominator was continuing to send funds to Korea after its cancellation through another entity, to be adverse information within the meaning of reg 1.13A of the Regulations. 

30. The Tribunal referred to the written statement provided by Mr Goo that he had been the victim of backstabbing from former associates. The Tribunal observed that very limited evidence was provided of the circumstances and outcomes of these allegations and referred to Mr Goo’s explanation of being unable to obtain information from Korean authorities because he is assisting the New South Wales Crime Commission.

31. The Tribunal considered whether it was reasonable to disregard the adverse information known to Immigration, but having regard to the limited evidence before it, did not consider that it is reasonable to do so. The Tribunal found that the requirements for reg 5.19(3)(g) of the Regulations were not met.

32. The Tribunal then turned to the requirements of reg 5.19(3)(d) of the Regulations. The Tribunal referred to the claim that Mr Goo runs and manages the business of the nominator. The Tribunal considered the material before it and formed the view that the business is only operated as a means for Mr Goo to obtain a permanent visa for himself and his family. The Tribunal identified having serious doubts that it would employ Mr Goo on a full-time basis in the nominated position of Management Consultant for at least two years. It was in those circumstances that the Tribunal found Mr Goo will not be employed on a full-time basis in the position for at least two years.

33. The Tribunal found that the nominator did not meet the requirements under reg 5.19(3) of the Regulations and accordingly affirmed the decision under review.

Before the Court

1. The grounds in the amended application in Oakwood are as follows:

   1.In relation to its assessment of r 5.19(g) of the Migration Regulations 1994 (the Regulations), the Tribunal made an error of law and/or acted in a legally unreasonable way and therefore its decision was affected by jurisdictional error.

   Particulars

   a)The Tribunal identified certain information as being "adverse information" about the Applicant or a person connected with the Applicant which was "known to Immigration".

   b)However, the Tribunal did not find - and there was no basis for it to find - that a critical part of the "adverse information" identified was known to Immigration.

   2.In relation to its assessment of r 5.19(g) of the Regulation, the Tribunal failed to give proper, genuine and realistic consideration to the Applicant's claims and/or acted in a legally unreasonable way and therefore committed jurisdictional error.

   Particulars

   a)Mr. Goo, the nominee of the Applicant explained that the remittance registration had been cancelled by AUSTRAC as an employee of the business had embezzled funds from clients.

   b)The Tribunal failed properly to consider and assess this claim as the reason for the remittance registration cancellation.

   3.In relation to its assessment of r 5.19(d)(i) of the Regulation, the Tribunal failed to give proper, genuine and realistic consideration to the Applicant's claims and/or acted in a legally unreasonable way and therefore its decision was affected by jurisdictional error.

   Particulars

   a)The Applicant explained that the Applicant was operating a financial management consulting business and that Mr Goo, the nominee of the Applicant, would be employed on a full-time basis for at least 2 years.

   b)The Tribunal failed properly to consider and assess this explanation in determining that the Applicant is only operating as a means for Mr Goo and his family to obtain a visa.

Ground 1

1. In relation to ground 1, Mr Jones, counsel on behalf of the applicant, took the Court to the Tribunal’s reasons in referring to adverse information, and sought to characterise it in a way in which there was different adverse information, in respect of which it was said that certain of that adverse information was not known to Immigration. 

2. Mr Jones argued that the Tribunal’s reasons should be read, in relation to the requirements for reg 5.19(3)(g) of the Regulations, as if referring to adverse information both known to Immigration and not known to Immigration and that therefore, there was a jurisdictional error, because of the potential compounding seriousness of the other adverse information.

3. The argument is without substance. The Tribunal clearly identified in its reasons, on a fair reading, the adverse information that was known to AUSTRAC in respect of the cancellation of the registration. 

4. The Tribunal was entitled to take into account other information. There is nothing to suggest that the Tribunal did other than comply with the requirements of reg 5.19(3)(g)(i)(ii) of the Regulations. The Court does not accept that taking into account other adverse information in relation to the second step under reg 5.19(3)(g)(ii) of the Regulation gives rise to any jurisdictional error. 

5. It is patent that the Tribunal concluded that it was not reasonable to disregard the adverse information known to Immigration in respect of the cancellation. That was an adverse decision that was open to the Tribunal. It cannot be said to lack an evident and intelligible justification and does not reflect any error of law. 

6. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Jones contended that there was a jurisdictional error because of the omission by the applicant and the applicant’s agent in providing the statement by Mr Goo about the circumstances and outcomes of the cancellation, whereby he omitted, at page 1020 of the court book, a document described in the statement as Exhibit A. In its context the relevant passage under the heading “Betrayals” is as follows:

   Sun Sick Sim, Jun Won You and Jaykoo Kim, and who probably submitted the adverse information against me, are the main culprits behind the fall of Oakwood from its former glory. I would also like to mention that these people’s intent is malicious and fraudulent in nature.

   Sun Sick Sim was appointed as a director to ToKorea, a sister company to Oakwood to act as the other end of the remittance business. He abandoned the project and embezzled project fund in 2015 and he is currently being sued for that in Australia.

   Jun Won You was the manager to the city branch of Koreassongum (the trading name of Oakwood). He embezzled about $310,000 of customers’ money and I had to refund the lost amount out of my pocket because the customers were also my customers and they trusted me for the business. He was sued in a civil and criminal court in Korea and the court decision against him is attached as Exhibit A which is the Australian Supreme Court order of the Korean court. He is to pay back what he stole.

   Jaykoo Kim was an investor and director to Hoju Jobs, a client company of Oakwood. Kim forged documents to transfer Hoju Jobs’ (company in Korea) shares to himself illegally and embezzled company fund also. The evidence of Kim blocking lawful usage of the company fund is attached as Exhibit B. Mr Kim lost his shares in Hoju Jobs after the accounting firm that helped Kim undid their mistake and he will most likely be criminally charged in Korea as well once civil proceedings are done.

2. Mr Jones contended that there was a jurisdictional error because the Tribunal acted legally unreasonably in failing to seek the absent Attachment A to the document.

3. Mr Jones put it also as amounting to a duty to inquire by the Tribunal because of the apparent absence of the attachment of Exhibit A, and maintained that the Tribunal could easily have sought to obtain the document.

4. The Tribunal was under no such duty to obtain further information from the applicant unless there was an obvious inquiry about critical fact that was easily ascertainable. Exhibit A does not fall within the meaning of that expression. There was no duty to inquire. It was the applicant or the applicant’s agent that had failed to provide Exhibit A.

5. The Court does not accept that it was legally unreasonable for the Tribunal not to request Exhibit A in circumstances where the applicant had been given an opportunity, through the migration agent, to provide further information. The omission does not give rise to any jurisdictional error by the Tribunal. 

6. Further, the document cannot be said to be material. The document was put into evidence and is nothing more than a judgment of a state court.  It does not provide the circumstances and outcomes in relation to the alleged betrayals. It provides limited information in respect of the entry of a judgment and cannot on its face be said to be material. The Court is satisfied that it could not possibly have given rise to a different outcome in respect of the application for review. 

7. Further, the Court accepts the submission advanced by Ms Graycar, counsel on behalf of the first respondent, that there is an independent basis for the adverse findings in any event which is the failure to meet the requirements of reg 5.19(3)(d) of the Regulations, by reason of which no jurisdictional error arises in respect of the alleged significance of the absence of steps to obtain the document, Exhibit A. 

8. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground, 3 Mr Jones submitted that the fact that the business was running at a loss was not of itself a basis why the Tribunal should have concluded the adverse finding should be made under reg 5.19(d)(i) of the Regulations.

2. This was nothing more than an invitation to engage in merits review. The Tribunal provided logical and rational reasons in support of the adverse finding in respect of the criteria under reg 5.19(d)(i) of the Regulations. 

3. No jurisdictional error as alleged in ground 3 is made out. 

4. As the amended application fails to make out any jurisdictional error, the amended application is dismissed. Given the concession identified in the other proceedings being heard and determined concurrently the amended application in Goo and Ors fails to make out any jurisdictional error and the amended application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 25 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 November 2020