Old Swanport Investments Pty Ltd v Minister for Immigration & Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLD SWANPORT INVESTMENTS PTY LTD v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2139

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – Regional Sponsored Migration Scheme – nomination of person to fill a position in rural South Australia – satisfaction of regulated conditions required for nomination to be successful – jurisdictional error – alleged decision vitiated as a consequence of illogicality or unreasonableness or because Tribunal asked itself the wrong question – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353; 360(1); 362B; 363; 474; 476(1); 476(2);

Migration Regulations 1994 (Cth) : r.5.19(4); 187.233(3)

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
R v Australian Stevedore Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Applicant WAEE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2003) 75 ALD 630
SZNBX v Minister for Immigration & Citizenship (2009) 112 ALD 475
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kruger v Commonwealth (1997) 190 CLR 1 at 36
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280

Applicant:

OLD SWANPORT INVESTMENTS PTY LTD AS TRUSTEE FOR THE RUGGIERO FAMILY TRUST

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 300 of 2014

Judgment of:

Judge Brown

Hearing date:

25 March 2015

Date of Last Submission:

9 April 2015

Delivered at:

Adelaide

Delivered on:

31 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Albert

Solicitors for the Applicant:

Clothier Anderson and Associates

Counsel for the Respondents:

Mr d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application filed 11 August 2014 and the amended application filed 3 March 2015 are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of three thousand three hundred and twenty-three dollars ($3,323.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 300 of 2014

OLD SWANPORT INVESTMENTS PTY LTD AS TRUSTEE FOR THE RUGGIERO FAMILY TRUST

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings, Old Swanport Investments Pty Ltd,[1] grows iceberg lettuces, broccoli and cauliflower, year round, on a property located near Murray Bridge, in rural South Australia. The vegetables concerned are sold to various supermarket chains, particularly Woolworths.
[1] Hereafter referred to as Old Swanport Investments or the applicant is the Trustee for an entity known as the Ruggiero Family Trust.
The Directors of Old Swanport Investments are husband and wife, Mr Donato and Mrs Kathryn Ruggiero. They are third generation horticulturalists. In the financial year ending 30 June 2011, the company had a sales turnover of around $6.6 million.
On 18 July 2013, Old Swanport Investments applied, online, to nominate Ms Harpreet Kaur, pursuant to the Regional Sponsored Migration Scheme, for a subclass 187 visa, pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”) in order to enable her to take up a position with the firm.
The position, to which Ms Kaur’s nomination related, was for a project administrator, at Old Swanport Investment’s premises, located at 171 Swanport Village Road, Murray Bridge. The position attracted a salary of $44,000.00 per annum.
As a corollary of the applicant’s nomination of her, Ms Kaur applied for the relevant 187 visa, again online, on 19 July 2013. Concurrently with this application, dependency visas were sought on behalf of Ms Kaur’s spouse, Sukhjinder Singh, and her son, Samardeep Singh Mann, born 17 October 2011.
Ms Kaur’s visa application was declined by a Delegate of the Minister for Immigration and Border Protection on 24 December 2014, on the basis that Old Swanport Investment’s had not provided sufficient information to enable the Minister to make the nomination.
Accordingly, it was found that Ms Kaur had not satisfied a mandatory requirement stipulated by regulation 187.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) namely that the Minister had approved her nomination.
The current reasons for judgment relate to Old Swanport Investment’s failed nomination of Ms Kaur and related review proceedings, which were conducted in the Migration Review Tribunal (“the MRT”). However, these reasons for judgment should also be read in conjunction with the reasons in which Ms Kaur, Mr Singh and Master Singh are applicants.[2]
[2] Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 2138
On 24 January 2014, the Minister’s Delegate found that Old Swanport Investment’s nomination of Ms Kaur did not meet the conditions stipulated by sub-regulation 5.19(4) of the Regulations. This sub-regulation stipulates a number of conditions which must be satisfied for what are termed Direct Entry nominations.
The Delegate’s decision was subject to review in the MRT, which determined, on 14 July 2014, to affirm the Minister’s decision to refuse Old Swanport Investment’s nomination of Ms Kaur.
As a consequence of this decision, Old Swanport Investments has applied for the issue of constitutional writs to quash this decision. The grounds for the application are set out in its Amended Application filed on 3 March 2015.
These reasons for judgment relate to this application. Ms Kaur, her husband and son have commenced other proceedings, of a similar nature, whose outcome depends, to a significant degree, on the success or otherwise of these proceedings.
Besides an order that the decision of the MRT be quashed and a writ of mandamus be issued directing the MRT to reconsider Old Swanport Investment’s application, the applicant also seeks that its application for review be completed before any determination of Ms Kaur’s application.
It is common ground between the applicant and the Minister for Immigration and Border Protection “the respondent” that Ms Kaur was not present in Australia when the MRT considered firstly, Old Swanport Investment’s review application and then her own.
In these circumstances, Old Swanport Investments provides two grounds for its review application as follows:
“1.The Second Respondent erred in its application of regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994 (Cth) by:
a.asking itself the wrong question, namely ‘whether the relevant position cannot’ objectively or ever ‘be filled by an Australian citizen or an Australian permanent resident who is living in the same local area’;
b.alternatively, failing to ask the right question, namely ‘whether the relevant position cannot’ subjectively or in the immediately foreseeable future ‘be filled by an Australian citizen or an Australian permanent resident who is living in the same local area’;
c.taking into account an irrelevant consideration, namely, that:
i. an Australian citizen or permanent resident might exist who could fill the position; or
ii. a ‘preferred’ job criterion was ‘bona fide’ and ‘counter to the objects of the legislation’.
2.The Second Respondent erred by acting unreasonably in that it failed to adjourn the joint hearing on 3 July 2014 under s.362B of the Migration Act 1958 (Cth) to allow the visa applicant to return to Australia to appear at the Tribunal and make submissions to it at or in response to the hearing.”
The hearing of the review application took place on 25 March 2015. At that stage, it became apparent that some documents were missing from the relevant court books. Counsel for the Minister undertook to seek out those documents and provide them to the applicant’s solicitors.
This led to the preparation of a supplementary court book. As a consequence of this, each party provided further written submissions to the court, which addressed matters said to relate to these additional documents.

The legal principles applicable

The legal principles applying to applications of this type are complex. I will do my best to explain them. In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.
Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it.
Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal. Part VIII of the Act deals with judicial review. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions.
Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions. A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[3]
[3] See Migration Act at section 5
Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.
Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[4]
[4] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[5]
[5] See Craig v South Australia (1995) 184 CLR 163
As previously indicated, jurisdictional error is a complex concept. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction.

The Decision of the MRT in respect of Old Swanport Investments (the company decision)

The hearing before the MRT took place on 3 July 2014 at 10.00 am. Earlier, on 28 May 2014, Mrs Ruggiero was invited to appear before the Tribunal pursuant to the provisions of section 360(1) of the Act, which reads as follows:
“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Ms Kaur, her husband and son received a similar invitation, albeit for an hour later at 11.00 am on 3 July 2014. Ms Kaur was unable to take up her invitation because she was outside of Australia on 3 July. She was in India, attending to the needs of her mother, who was ill.
On 16 June 2014, she applied through her advisor to have the hearing postponed. The application was not granted. This is the basis of the second ground of appeal and is also central to Ms Kaur’s own application for review.
It is clear from reading both the decision in this matter and the decision in Ms Kaur’s application, which for the sake of convenience I will refer to as “the family decision”, the Tribunal elected to hear the two matters together.
However the decision in respect of the application made by Old Swanport Investments “the company decision” was delivered on 14 July 2014, with the decision in Ms Kaur’s matter delivered two days later on 16 July 2014.
Mr Donato Ruggiero appeared before the Tribunal to give evidence on behalf of Old Swanport Investments. In addition he provided a number of documents relevant to the applicant’s business and the position to which the nomination related, which Ms Kaur wished to fill.
Pursuant to regulation 5.19(4) the Minister must approve a nomination if eight specified conditions, set out in sub-regulations (a) to (h) are met. The Tribunal found all of these were satisfied (or were not applicable) but for regulation 5.19(4)(h). This sub-regulation provides alternatives relating to employment tasks to be performed in Australia generally and rural Australia in particular.
There is no controversy that both Old Swanport Investments’ premises and the position relevant to Ms Kaur are located at Murray Bridge, which is designated as being in a regional area of South Australia, according to a number of Federal Legislative Instruments. Accordingly the relevant considerations, for the decision-maker, were contained in sub-regulation 5.19(4)(h)(ii) which reads as follows:
(ii) all of the following apply:
(A) the position is located in regional Australia;
(B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control;
(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E) the business operated by the nominator is located at that place;
(F) a body that is:
(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II) located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Essentially, pursuant to this sub-regulation, the Minister must be satisfied that there is a genuine need for the relevant position, in regional Australia, to be filled by the nominator concerned and there is no resident Australian citizen or permanent resident, with appropriate skills, to fill that position.
Therefore it is appropriate to approve the nomination of a non-Australian citizen or non-permanent Australian resident, such as Ms Kaur, so that the position in question may be filled, on the basis of the establishment of the fact that no Australian citizen or permanent resident is available for it.
Old Swanport Investment contended, in submissions to the Tribunal, that the position in question was specialised and persons with the skill set required to fill it were difficult to find. In this context, it was submitted that the position had been widely advertised and Ms Kaur remained the preferred applicant, from Old Swanport’s perspective, as she fitted the necessary criteria for the position and no other Australian citizens or permanent residents, who had applied, did.
The Tribunal was provided with a description of the position.[6] The duties included the following:
·assisting the production manager with processing and production operations;
·organising the company website;
·overseeing contracts, projects and services;
·collating and analysing logistical costs and reporting on same.
[6] See Case Book (company decision) at page 116
The skills necessary to fulfil these duties included the following:
·organisation and communication skills;
·IT skills;
·liaise with employment groups;
·ability to use Microsoft programs;
·time management skills;
·initiative and ability to work in a team; and significantly;
·ability to draft basic correspondence in multiple languages, essentially Indian/Asian.
It is this last skill, the one relating to Asian languages, which is central to the first ground of the appeal. It is Old Swanport Investment’s contention that Ms Kaur had all the necessary skill to discharge the position properly, including aptitude in Asian languages, but other locally based applicants did not.
In support of its case, Old Swanport Investments relied on a letter from the Chief Executive of Regional Development Australia, in the Riverland area of South Australia. He described the applicant in the following terms:
“[Old Swanport Investments] is a key supplier to the South Australian fresh produce market as well as a major employer of local and diverse ethnic groups.”[7]
The applicant submits that this statement is germane to and supportive of its contention that the ability to draft correspondence in multiple Asian languages, particularly Indian ones, was relevant to the position in question.
[7] Ibid at page 90
In this context, the extent and nature of Old Swanport Investment’s advertising of the position was central. The evidence available to the Tribunal indicates that the position was advertised on line on three internet job sites, including SEEK.com, which is apparently Australia’s largest such site and on two occasions in the Advertiser Newspaper, which circulates throughout South Australia.
The advertisement included the statement that “Asian language highly preferred.” In this context, the Tribunal raised with the applicant the issue of whether this expression in the advertisement had “served to limit the range and scope of persons potentially attracted to apply for the position of project administrator – including Australian citizens and permanent residents living in the same local area.”[8]
[8] Ibid at page 131 [54]
Information provided by a recruitment agency, retained by the applicant in respect of the position, indicated that ten applications, for the position had been received, which could be broken down as follows:
·2 overseas applicants looking to migrate;
·1 interstate applicant with no industry experience;
·5 local applicants with no industry experience or required skills;
·1 applicant from Murray Bridge with no industry skills nor matching skill set;
·1 suitable applicant, who withdrew her application, due to a change in her circumstances.[9]
[9] Ibid at page 122
This information was placed before the Tribunal, which noted that the position attracted a salary of $44,000.00, which was said to “point to the level of skill required.” As such, the Tribunal considered that:
“…a substantial number of applicants from the open market could potentially meet the job requirements. Indeed the applicant’s own evidence is that ten people sought to apply for the advertised role of the nominated position.”[10]
[10] Ibid at page 131 [56]

In this context, the Tribunal also noted the distinction, regarding the Asian language stipulation appearing in the advertisement, between such a stipulation being preferred as opposed to a must.
It further noted that Old Swanport Investments had applied to the South Australian Department for Manufacturing, Innovation and Trade, which is a Regional Certifying Body, under the Regional Sponsored Migration Scheme and it had certified both that there was a need for the position in question to be filled and it could not filled by an Australian citizen or permanent resident.[11]
[11] Ibid at pages 104 and 131 [57]
During the course of the hearing on 3 July 2014, the Tribunal apparently raised its concerns that the advertisement, with its reference to Asian languages highly preferred necessarily limited the range of persons who would apply for the position.[12]
[12] Ibid at page 131 [56]
As a consequence of this, on 10 July 2014, Old Swanport Investments made a further written submission to the Tribunal in the following terms:
“It is true that we placed following words in our AD: Knowledge of Asian Languages preferred but it was not a must. So an Australian born and brought up in this country was fully eligible to apply for the position. As explained during hearing, we have a large no of workforce coming from Asian countries (India, Indonesia, etc.) And they are not very good in English. Sometimes, it is far better to explain them in their local language. When we placed the AD, we were of the view that in last few years so many skilled migrants from India, Indonesia have migrated to South Australia and they would be keen to apply for the advertised position. They all are Australian Permanent Visa holder, some of them have become Australian citizens over a period of time but after posting the AD, we got the feeling that despite so many skilled migrants (India, Indonesia etc.) Available in South Australia, most of them do not want to migrate outside big city like Adelaide.
So despite our eagerness to hire Australian PR/Citizen, we failed to recruit.”[13]
[13] See Supplementary Court Book at page 15
Notwithstanding those factors, the Tribunal determined as follows:
“…the Tribunal considers that the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role. The applicant explained to the Tribunal that as a number of its workers are from non-English speaking background, including many skilled migrants from India, Indonesia, etc, it was of benefit to include the criterion in the advertisement to cater for English language shortcomings. The Tribunal raised with the applicant however, that English language proficiency is a core requirement of those overseas workers seeking to migrate for work with the applicant, and considers that the inclusion of the Asian language ‘highly preferred’ criterion, restricts potential suitable applicants, is not bona-fide, and acts counter to the objects of the legislation in this regard.
In the particular circumstances above, the Tribunal finds that the addition of the criterion ‘asian language highly preferred’ in the advertisement has served to limit the range and scope of persons potentially attracted to apply for the position of project administrator, including Australian citizens or permanent residents living in the local area of Murray Bridge. The Tribunal is not satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.”[14]
[14] See Court Book (company decision) at page 131 -132 [58] – [59]
As a consequence of this finding, the Tribunal was not satisfied that the applicant had met the requirements of regulation 5.19(4)(h) and therefore approval for the nomination of Ms Kaur could not be granted. In these circumstances, the Tribunal affirmed the decision to refuse her nomination by Old Swanport Investments.
In essence, the Tribunal determined that a significant number of persons, in the open job market, could possibly meet the requirements of the position advertised by Old Swanport Investments. Therefore it had not been satisfactorily demonstrated, by the applicant, that the position could not be filled by an Australian citizen or permanent resident.
In this context, the Tribunal determined that the usage of the terminology “Asian languages highly preferred” had limited the range and scope of persons, who would be inclined to apply for the position. It reached this conclusion notwithstanding the fact that the relevant South Australian department had indicated that it was satisfied that the position could not be filled by either an Australian citizen or permanent resident.

The decision of the MRT in respect of Ms Kaur (the family decision)

In tandem with Old Swanport Investment’s review application, Ms Kaur commenced her own review proceedings of the decision germane to her and her family. As indicated above, her application ostensibly failed because the rejection of her nomination was confirmed.
Following receipt of her application for review, the Tribunal advised Ms Kaur of the importance of her informing it if there was any change to her personal circumstances, including plans to travel overseas.[15]
[15] See Supplementary Court Book at pages 2 - 9
Ms Kaur’s application came before the Tribunal on the same day, as the application of Old Swanport Investments and she was represented by the same advisor. As indicated above, the two applications were heard together. However, Ms Kaur was not present, but her husband, Mr Singh was. He elected not to give evidence, although this opportunity was apparently offered to him, although an appropriate interpreter had not been arranged.
In the family decision, the Tribunal set out the following as the issue which it was required to determine:
“The main issue in the present case is whether the applicant meets the visa requirements at the time of decision, including that the appointment in the business of the employer for which the applicant has been nominated, has been approved and is not withdrawn and the position is still available to the applicant.”
In this context, the Tribunal noted that on 14 July 2014, in the company decision, the application to review the refusal of Ms Kaur’s nomination by Old Southport Investments had been affirmed.[16]
[16] See Court Book (family decision) at page 80 [14]
The criteria attaching to the subclass 187 visa, for which Ms Kaur was applying, are set out in Schedule 2 to Part 187 of the Regulations. In particular clause 187.233. It requires satisfaction, by the applicant concerned, of the following:
·The position to which the application relates meets the requirements of subparagraph 5.19(4)(h)(ii);
·The person, who will employ the applicant, is the person who was the nominator in the application for approval;
·The Minister has approved the nomination;
·The nomination has not subsequently been withdrawn;
·The position is still available to the applicant;
·The application for the visa is made no more than 6 months after the Minister approved the nomination.
In the decision germane to Ms Kaur, the Tribunal found as follows:
“The Tribunal notes that Mrs Harpreet Kaur, has been employed in the nominated position for a little over 12 months throughout the processing of the application but at the time of the hearing was away overseas attending to the health needs of her mother in India. There is no evidence before the Tribunal that, as at the date of hearing this matter, or at the time of decision, Mrs Kaur is available to take up the nominated position of Program or Project Administrator with the applicant. The migration agent representative reported to the Tribunal at the hearing that Mrs Kaur returned to India in May 2014 and does not have any substantive visa to allow her to return to Australia and therefore she remains overseas.”[17]
[17] Ibid at page 80 [13]
In response to the invitation to appear before the Tribunal delivered on 28 May 2014, Ms Kaur’s representative wrote as follows:
“Ms Harpreet Kaur is right now in India and her bridging visa B expired while she was in India…She went to India on 10 May 2014 and was supposed to come back on 8 June 2014…Unfortunately she missed 8 June 2014 because of some unusual circumstances and her [visa] expired. She does not have in hand right now Australian visa to come back. Very soon we are applying for visitor visa for her in Australian High Commission, New Delhi…”[18]
[18] Ibid at page 63
On this basis, the advisor requested an adjournment of the proceedings scheduled for 3 July 2014. The request was that the case be postponed to a date “after September 2014.” On the same day, the advisor received an email sent on behalf of the Tribunal declining the application and indicating that, if Ms Kaur did not appear on the date in question, the Tribunal might proceed to determine the application in her absence.[19]
[19] See supplementary court book at page 10
This is, in fact, what occurred. The Tribunal determined that it should make its decision on the basis of the material then before it pursuant to the provisions of section 362B of the Act, which provides as follow:
326B Failure of applicant to appear before Tribunal
(1)    If the applicant:
(a)    is invited under section 360 to appear before the Tribunal; and
(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
During the course of the hearing of 3 July, the applicant’s representative made a further application to adjourn the proceedings, which was again refused. The Tribunal indicating that Ms Kaur had “been given notice to be here… and if she chooses not to be here then it’s a non-appearance by that person and therefore I’ve got to make a decision on the evidence that’s before the tribunal.”[20]
[20] See transcript of proceedings at page 6
In these circumstances, the Tribunal found that Ms Kaur did not satisfy the requirements of the visa for which she had applied. It held as follows:
“…where written notices had sent inviting the applicants to give evidence and present arguments on the basis that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, the Tribunal has no further evidence to find that the applicant now satisfies the requirements of cl. 187.233.”[21]
[21] See case book (family application) at 81 [22]
On the afternoon of 3 July 2014, after the hearing had concluded, but prior to a decision having been communicated, in either review application, the Tribunal received a further email from Ms Kaur’s advisor informing that their client had been granted a visitor’s visa for Australia that day and was returning to this country as quickly as she could.
By necessary implication, this information did not persuade the Tribunal to defer the matter until such time as Ms Kaur could present herself before it.
In a further email dated 10 July 2014, in which the advisor provided additional information from Old Swanport Investments regarding the advertising of the relevant position and a previous interaction between it and the Fair work Ombudsman, the Tribunal was advised that Ms Kaur had returned to Australia.[22] However no specific request was made for her to give additional evidence and no submission was made germane to her personal circumstances.
[22] See supplementary court book at page 13
The decision relevant to Ms Kaur was delivered on 16 July 2014. The Tribunal found that she did not meet the requirements of the visa for which she had applied, at the time of decision. It therefore affirmed the decision under review.

Applicant’s submissions

The applicant submits that the Tribunal fell into jurisdictional error by asking itself the wrong question in respect of the application of regulation 5.19(4)(h)(ii) to the material before it. It is submitted that the question the Tribunal was required to consider was whether the position in question could not be filled by either an Australian citizen or permanent resident in the local area of Murray Bridge.
Rather than on focussing on this question, it is asserted that the Tribunal became preoccupied with the text of the advertisement in question, in particular the stated preference for an Asian language speaker. In so doing, it lost sight of the central issue, which it was required to determine and, in this context, ignored salient pieces of evidence.
Mr Albert, counsel for the applicant, submits that the Tribunal either failed to consider or consider properly the following aspects of the evidence:
·The letter of 3 May 2014 for Regional Development Australia regarding the applicant being “a major employer of local and diverse ethnic groups”;
·The applicant’s assertions that, for operational reasons, it was easier for directions to be given in writing, in their native languages, to its very many Asian employees;
·In this context, the obvious relevance of the specific criterion, in the job description, regarding the ability to draft basic correspondence in multiple languages, essentially Indian/Asian;
·The advice of the South Australian certifying authority that the job could not be filled locally;
·The fact that the job had been advertised for 39 days, leading to applications from a number of local applicants, who were found to be not suitable, largely due to a lack of industry experience or inappropriate skill sets rather than a lack of Asian language skills.
In these circumstances, it is further submitted by Mr Albert that all the evidence available to the Tribunal was capable of sustaining a conclusion that the Asian languages preferred criterion was a bona fide one rather than one calculated to limit the number of potential applications.
As such, Mr Albert contends that the finding of the Tribunal that “the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants”[23] must be regarded as a speculative one, which is not based on the evidence available to the Tribunal, as outlined above. This is the basis of the jurisdictional error set out in ground one.
[23] See case book (company application) at page 131 [58]
In contrast, the applicant provided evidence, in its post-hearing submission, as to why an ability to draft basic correspondence, in multiple languages, was genuinely applicable to the position in question because of the nature of Old Swanport Investment’s workforce. It is submitted that the Tribunal did not consider this aspect of the evidence properly. In this context, reliance is placed on the reasoning of the Full Court in Minister for Immigration & Border Protection v MZYTS as follows:
“The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.”[24]
[24] Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 [50]
Essentially, as I understand the submission, the Tribunal has not obviously assessed the applicant’s assertion that the preference, for an Asian language speaker, attached to the advertisement was one likely to be genuinely useful for the position against its apparent assumption that the stated preference was a device to deter Australian citizens and permanent residents from applying for the position.
A similar submission is made in respect of the Tribunal finding that there were “a substantial number of applicants from the open market could potentially meet the job requirements.”[25] It is asserted that this was contrary to the evidence available from the Department of Manufacturing, Innovation and Trade and not consistent with the other evidence available to the Tribunal.
[25] See case book (company application) at 131 [56]
The applicant’s position is that this conclusion is conjectural and not supported by the evidence which was presented. This evidence indicated that the position was advertised in two forms of media – internet and print – for an extended period of time and, as such, was accessible by a broad spectrum of potential Australian citizen job-seekers.
The evidence further demonstrates that some Australian citizens and permanent residents did, in fact, apply for the position but were found not to have suitable qualifications or experience. In addition, the evidence from the applicant itself was that it was eager to recruit an Australian citizen or permanent resident and had employed such categories of person in the past.
As such, it is Mr Albert’s contention that the evidence available to the Tribunal, which addressed the question of whether the position could not be filled by an Australian citizen or permanent resident – on his submission the essential jurisdictional issue for the Tribunal – indicated that after reasonable efforts had been made to recruit such a person, in the Murray Bridge area, no such person could be found.
That the Tribunal concluded otherwise, in Mr Albert’s submission, can only be indicative of the fact that the Tribunal posed itself an incorrect question and thus fell into jurisdiction error. In addition, it is Mr Albert’s submission that the Tribunal took into account an irrelevant consideration in reaching its decision.
This irrelevant consideration arose when the Tribunal indicated that the Asian language preference criterion was to be regarded as acting counter to the objects of the legislation in its restriction of applicants for the position in question and so not bona fide. This, it is submitted, was not relevant to the question of whether the position could not be filled by a locally based Australian resident.
In this context, Mr Albert relies on the following well-known passage from Minister for Immigration & Multicultural Affairs v Yusuf:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
In support of his contention that there is a complete lack of evidence to support the finding, made by the Tribunal, that “a substantial number of applicants from the open market could potentially meet the job requirements” and this can constitute a jurisdictional error, Mr Albert relies on the reasoning of the High Court in R v Australian Stevedore Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd as follows:
“The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.”[27]
[27] R v Australian Stevedore Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 at [15]

The applicant submits that it was both unreasonable and illogical for the Tribunal to refuse the repeated requests for adjournment, made on Ms Kaur’s behalf, particularly given that she subsequently returned to Australia, as she foreshadowed she would, on 10 July 2014, which was prior to the decision being made and only a few days after the hearing had concluded.
Mr Albert submits that the evidence indicates the following:
·Ms Kaur’s adviser made a timely request to adjourn the proceedings because Ms Kaur had been forced to leave Australian because her mother was unwell and this had led to the lapse of her visa;
·On the day of the hearing, the Tribunal was advised that Ms Kaur was expected back in Australia shortly;
·The Tribunal refused the request for adjournment for no clearly articulated reason.
In these circumstances, Mr Albert submits that those representing Ms Kaur sought an adjournment for a clearly articulated purpose and its refusal lacked any intelligible justification and so is to be regarded as legally unreasonable in the terms identified by the High Court in Minister for Immigration & Citizenship v Li.[28] As such the refusal to grant the adjournment was an unreasonable exercise of the power conferred on the Tribunal pursuant to section 362B of the Act.
[28] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Mr Albert further submits that it is clear that the Tribunal elected to hear the company proceedings jointly with the family proceedings, in which Ms Kaur was the principle applicant. It did so for clearly pragmatic reasons and because there was an obvious over-lap between the subject matter of the two hearings.
In these circumstances, Mr Albert submits that it is axiomatic that Ms Kaur was the best witness to give evidence about the requirements of the position in question, as she had filled it for a significant period of time and knew what it entailed, particularly in regards to the desirability of being able to converse and write in Asian languages. In these circumstances, it is submitted that it was procedurally unfair not to adjourn the case in order that she could evidence.

First respondent’s submissions

Counsel for the Minister, Mr d’Assumpcao contends that the Tribunal cannot be said to have overlooked the letter from Old Swanport dated 3 May 2014, as it made specific reference to the correspondence in its decision.
However, the Minister’s major contention is that the Tribunal considered and assessed all the evidence tendered by the applicant. As such, it is not open to this court to conclude that any aspect of the applicant’s evidence has been overlooked.
Rather, Mr d’Assumpcao contends that the Tribunal made a credit finding regarding the contents of the advertisement in question. Essentially, the advertisement in question was found to be a self-filling prophecy which limited the number of applicants for the position in question. In making this finding, it considered evidence to the contrary, proffered by the applicant, which it rejected.
Accordingly, it is contended that it cannot be said that there has been a failure, on the Tribunal’s part, to exercise the jurisdiction conferred upon it. It was required to review the decision of the Minister’s delegate regarding the satisfaction, by the applicant, of the condition relating to the filling of the position in question by either an Australian citizen or permanent resident.
It is submitted that the Tribunal considered all the relevant material and undertook the necessary review. It reached the conclusion that the contents of the advertisement in question were calculated to limit the background and types of person who would apply for the position, particularly by deterring Australian citizens and permanent residents, and therefore the applicable criterion pursuant to regulation 5.19(4)(h)(ii) was satisfied.
Accordingly, it is submitted there has been no error of jurisdiction. Mr d’Assumpcao relies on the following passage from Applicant WAEE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs to support his contention that the reasons of the Tribunal, in respect of the issue in question, are to be regarded as comprehensive in nature, particularly as they deal explicitly with the contentions raised by the applicant regarding the benefits of having an Asian speaker for the position:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf citation omitted) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[29]
[29] Applicant WAEE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2003) 75 ALD 630 at 641 [46] – [47]
In respect of the second ground of review – the failure to adjourn the proceedings on the application of Ms Kaur’s representative, Mr d’Assumpcao submits that, in all the prevailing circumstances, the decision cannot be described as being legally unreasonable.
Firstly, it is submitted that Ms Kaur had not advised the Tribunal immediately of the fact that she intended to depart from Australia, which was contrary to the direction provided to her in the letter from the Tribunal dated 2 April 2014.
Secondly, Ms Kaur did not provide the Tribunal with the dates she anticipated she would be outside of Australia prior to the invitation letter being sent to her. Accordingly no criticism can be attached to the Tribunal for the dates it allocated for the hearing.
In this context reliance is placed on the following chronology of events: the application for review was lodged with the Tribunal on 13 March 2014; on 2 April Ms Kaur was advised formally of the importance of informing the Tribunal, if she intended to depart Australia; her advisor indicated she departed Australia on 10 May 2014, in the written adjournment request of 16 June 2014; this was well after the invitation letter had been sent to Ms Kaur on 28 May 2014.
In these circumstances, it is submitted that the Tribunal was not given the opportunity to schedule the hearing around her planned travel and as such it was not unreasonable for the late application for adjournment to be refused. In his written submissions, Mr d’Assumpcao contends as follows:
“Rather than taking steps to ensure that she could avail herself of the important opportunity to give evidence and present arguments in support of her case, [the applicant] absented herself from the country without notification to the Tribunal with the consequence that a hearing date was set which inconvenienced her. Indeed the papers reveal that she had also let her Bridging visa lapse and did not have a right of re-entry. This is not a case where, through no fault of her own, she lost the opportunity to attend the hearing. Rather, it was by her own conduct that the difficulty arose.”[30]
[30] See first respondent’s further written submissions at paragraph 12
It is further submitted that the decision to refuse the re-agitated application for adjournment, made on the date of the hearing, cannot either be regarded as legally unreasonable, given the information provided by the applicant’s advisor that she was off shore and did not have a valid visa to return to Australia and there was only an indication that she might obtain a visitor’s visa, at some stage in the future.
Finally, Mr d’Assumpcao points to the fact that when Ms Kaur’s advisor informed the Tribunal that his client had in fact returned to Australia, on 10 July 2014, no specific request was made for the hearing to be reconvened. In this context, it is submitted that the Tribunal was not obliged to be Ms Kaur’s nursemaid.[31]

Conclusions

[31] See SZNBX v Minister for Immigration & Citizenship (2009) 112 ALD 475 at [29] per Bennett J

a)Ground One

The basis of this ground can be summarised as follows: the Tribunal’s conclusion that the Asian language preferred criterion artificially confined the number of potential applicants for the position in question was not based on the evidence before it and therefore cannot be regarded as being based on logic or rationality. As such, a constructive failure to exercise the jurisdiction conferred upon it has been demonstrated.
A decision can clearly be demonstrated to be illogical or irrational if, in respect of that decision, only one conclusion can be drawn from the evidence available and the decision maker concerned reaches another conclusion.[32]
[32] See Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan & Bell JJ
However, as Gleeson CJ pointed out in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002:
“…to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it.”[33]
[33] Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61 [5]
In this context, I must keep in mind the admonition provided by the High Court in cases such as Minister for Immigration & Ethnic Affairs v Wu Shan Liang in which the following was said:
“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”[34]
[34] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
In this case, it is asserted that there was no evidence to support the Tribunal’s conclusion. I do not agree that this is the case. The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion Asian language highly preferred”.
Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills. This follows from the use of the phrase highly preferred, which literally means that applicants with an Asian language would be liked better (preferred) by the applicant to a significant degree (highly).
As such, in my view, it cannot be said that the conclusion reached by the Tribunal that “the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role” was in some way illogical or unsupported by evidence, when the plain text of the advertisement in question must logically have supported such a conclusion.
Although there was evidence, provided by the applicant, which on its submission indicated that the proviso did not limit the number of applicants, the text of the advertisement itself indicated otherwise. Accordingly, in my view, it is erroneous to assert that there was no evidence to support the Tribunal’s conclusion or that the evidence available to the Tribunal can only have led to the conclusion that the proviso had no effect.
The function of the Tribunal was to review the decision of the Minister’s delegate on the merits. Some aspects of the evidence pointed in favour of the applicant’s position, one significant aspect, the text of the advertisement itself, pointed the other way. In my view, the Tribunal considered all these aspects of the evidence and concluded in a manner with which the applicant now disagrees.
For this court to conclude that the Tribunal erred in giving “no weight" to matters such as the letter from Regional Development Australia or the subsequent submissions of the applicant would require it to review the Tribunal’s actual finding of fact rather than the process by which it arrived at its conclusions. In my view, this would amount to an impermissible merits review.[35]
[35] See Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [36]
The only definitive way to establish that the criterion had no effect, on the number of job applicants, would have been to place an advertisement, at the same time and in the same areas, without the specification, and see if there were there the same, more or less applicants than applied to the job with the Asian language preference.
Mr Albert contends that the evidence available to the Tribunal indicates that a number of applicants did in fact apply and were found wanting. This is the case, but this factor alone does not negate the logical possibility that an advertisement, without the specification, would have attracted more applicants, who were suitably qualified and who were Australian citizens or permanent residents than applied to the advertisement in question, which in effect was the finding of fact made by the Tribunal.
In addition, in my view, this is not a case in which it can be demonstrated that the Tribunal failed to respond to a substantial argument advanced by the applicant, in the sense identified in Dranichnikov v Minister for Immigration & Multicultural Affairs.[36]
[36] Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
The Tribunal considered the evidence provided by the State certifying authority and the submission that the language criterion was preferred and not must and rejected them both. In my view, in exercising the jurisdiction conferred upon it, the Tribunal was entitled to reject aspects of the evidence before it.
In addition, it gave active consideration to the post hearing submission of the applicant in respect of the number of non-English speaking persons in its workforce but again did not accept it.
With respect to the Tribunal, one of its central conclusions is not particularly eloquently put. It concerns the finding that although professional qualifications are sought by the advertisement, the starting salary is a modest one of $44,000.00.
The necessary implication being that there is a degree of disconnect between the level of qualifications apparently sought and the salary offered, which caused the Tribunal to have misgivings about the overall bona fides of the advertisement and the persons it was designed to attract or exclude.
Whether this conclusion is erroneous or not is, in my view, not a matter which falls within the ambit of this court’s reviewing powers. The making of findings of fact on the credibility of any witness is a function of a primary decision maker “par excellence”.[37]
[37] See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
Accordingly, whether the finding of the Tribunal, that the bona fides of the advertisement were questionable, was or was not erroneous, is not a matter reviewable in this court, as it was an error which fell within jurisdiction of the Tribunal rather than being an error of its jurisdiction.
For these reasons, I have reached the conclusion that there is no merit to the first ground of appeal.
b)Ground Two
In the exercise of its functions under the Act, the MRT is required to provide a mechanism of review that is fair, just, economical, informal and quick [section 353]. It is authorised adjourn reviews before it from time to time [section 363]. The power to adjourn proceedings is one which must be exercised reasonably. [38]
[38] See Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ and Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 254 [94] per Gageler J
It is the applicant’s position and that of Ms Kaur that it was either unfair or unreasonable for the Tribunal not to adjourn the case, when it was requested to do so by their representative. In order to determine whether a decision is unreasonable, including in reference to the exercise of a procedural power, it is necessary to determine what justification existed for the decision in question and determine whether it was open to a reasonable decision maker to have taken such a course.
In Minister for Immigration & Citizenship v Li[39] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one.
[39] Minister for Immigration & Citizenship v Li (supra) at [75] – [76]
Again in Li, Gageler J considered that the authority conferred on a decision-maker, by statute, was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[40]
[40] Li (supra) at 256
Accordingly, it seems clear that the issue of whether it was unreasonable to refuse to adjourn proceedings or the overall reasonableness of the extent of any adjournment granted is one which must be determined by the circumstances prevailing in the individual case concerned. This was the approach taken by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh where it was concluded issues of legal unreasonableness are “invariably fact dependent.”[41]
[41] Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 at 288 [42]
In Singh the Full Court discussed the application of legal unreasonableness in two distinct contexts. Firstly, in terms of the identification of a jurisdictional error, where it is demonstrated that the making of an administrative decision is vitiated by some level of unreasonableness.
Secondly and relevant in the context of these proceedings, legal unreasonableness can be outcome focussed, without necessarily being associated with a specific jurisdictional error, in circumstances where a supervisory court cannot identify how a particular decision was arrived at. Essentially the court looks at what has happened in a particular matter and determines, in its role of oversight over administrative decision-makers, whether the outcome in question is a reasonable one.

This second category of unreasonableness can occur in what was described as an “area of decisional freedom” on the part of the decision-maker concerned, who has a choice as to whether or not to take a particular choice, as here, in terms of the decision whether or not to adjourn the proceedings. In this context, an unreasonable decision is one characterised by the decision-maker concerned making a decision that is “arbitrary, capricious or without common sense”.
It may also arise when a court, in its supervisory role in respect of an administrative decision-maker, “cannot identify how the decision was arrived at” or the decision itself lacks “an evident and intelligible justification”.[42]
[42] Ibid at [44]
The first application for adjournment was made by the applicant’s advisor, on 16 June 2014 and requested an adjournment for a “few months”. The basis for the adjournment was Ms Kaur had departed Australia on 10 May, due to her mother’s illness, planning to return on 8 June. However “because of some unusual circumstances” which were otherwise unexplained, she had not done so and her bridging visa had expired.[43]
[43] See case book (family decision) at pages 63 -64
Thereafter the advisor requested notice of any issue which the Tribunal wished to raise with Ms Kaur at hearing but did not specifically indicate any particular aspect of evidence which Ms Kaur herself wished to raise with the Tribunal.
In its responding letter, dated 16 June 2014, the application is simply declined. In the circumstances, particularly given that Ms Kaur was advised to inform the Tribunal, prior to any departure from Australia on her part; the fact that no elaboration was provided as to the unusual circumstances surrounding her remaining in India; and particularly the lack of indication of what actual evidence she would provide; I do not think that this decision can be regarded as capricious or lacking in overall intelligibility.
Ms Kaur’s application depended on the success or otherwise of Old Swanport Investment’s application, in respect of its nomination of her to the position of project administrator, at its farm and whether it had established satisfactorily that the position could not be filled by an Australian citizen or permanent resident.
The application for an adjournment was re-agitated at the time the matter was scheduled for hearing. The transcript of the proceedings reveals a somewhat confused discussion between the Tribunal and the advisor concerned.
To the advisor, the Tribunal indicated that it would hear the nomination part of the case first. The Tribunal also indicated that the matter would proceed in the absence of Ms Kaur, although Mr Singh, Ms Kaur’s husband was given an opportunity to give evidence, which was declined.
The following interchange occurred between the Tribunal member and the advisor:
“Mr Georgiadis: That hearing is proceeding now.
Mr Kapoor: Ok.
Mr Georgiadis: I mean, if she’s not able to be in the country then that’s a matter for her.
Mr Kapoor: Ok, no problem. So he has nothing extra to add here.
Mr Georgiadis: Ok. So she has no valid visa to be in the country.
Mr Kapoor: Mm.
Mr Georgiadis: And how long do you think that situation will be the case?
Mr Kapoor: We have already applied for tourist visa in Australian High Commission.
Mr Georgiadis: But that’s only for her to come in as a tourist.
Mr Kapoor: Right
Mr Georgiadis: Not to work for two years.
Mr Kapoor: Once she has got the tourist visa we are going to apply for the (indistinct) period. She would apply for the visiting visa, and then once the visa is granted she would be on a valid visa – substantive visa, sir.
Mr Georgiadis: Yes.
Mr Kapoor: So even if she is offshore, the visa can be granted and she can come to Australia and she can join the organisation. The only issue in my view is the nomination approval. Once the nomination has been approved, as far as the visa application is concerned there is no issue at all.
Mr Georgiadis: All right. And your instructions are that she would understand that if the nomination is not approved then there’s no possibility of her being successful on a visa application.
Mr Kapoor: Yes, yes, yes.
Mr Georgiadis: All right, ok, all right. Well, we’ll proceed on the nomination component then in the first instance and then see what the outcome of that is. All right, all right. Thank you for that. Ok.”[44]
[44] See transcript of proceedings at pages 12-13
In this exchange, the advisor conceded that the central and determinative issue, in the case, was whether the nomination made by Old Swanport Investments of Ms Kaur, for the position in question was approved or not. In this context, it also appears to be the case that the advisor conceded that Ms Kaur had nothing to add in respect of this issue.
On the basis of this exchange, it is my view that the Tribunal provided a logical explanation for its decision to proceed with the hearing. The sole evidentiary issue in the case concerned whether Old Swanport Investments’ nomination satisfied the relevant criteria provided by the regulations.
As matters transpired, the Tribunal was satisfied that it did in all aspects other than in respect of it being established that the position could not be filled by an Australian citizen or permanent resident. In this context, the contents of the announcement, advertising the position, were central.
At no stage prior to the hearing or after it had concluded was any indication given that Ms Kaur would give evidence about this central aspect of the case. Indeed, apart from announcing that she had returned to Australia, no request was made for her to give any evidence to the Tribunal.
In all the circumstances prevailing, I do not consider that the decision of the Tribunal not to grant the adjournment can be described as either arbitrary, capricious or without common sense. Ms Kaur was outside of the country; her visa status was uncertain; her application depended on the success or otherwise of other proceedings; and in respect of those proceedings, the Tribunal was not provided with any indication of what would be the import of her evidence.
In Li, Hayne, Kiefel and Bell JJ said as follows:
“It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course, it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case…”[45]
[45] Li supra at 251 [82]
The purpose of section 360(1) is to provide an applicant, in a review application, the opportunity to prevent evidence and arguments. The issue before the Tribunal, in this case, was whether it had been established satisfactorily that no Australian citizen or permanent resident was available to fill the position to which Ms Kaur aspired. Other than that she had temporarily held the position, no indication had been given as to what further evidence she could give.
In all these circumstances, I have come to the conclusion that the refusal of the adjournment application cannot be regarded as an unfair or unreasonable exercise of the Tribunal’s power to adjourn proceedings.
In all these circumstances, I have come to the conclusion that there is no merit in ground two of the application. Accordingly, the application should be dismissed and an order for costs made in the sum of three thousand three hundred and twenty-three dollars ($3,323.00), which is one half of the scheduled costs for applications of this kind.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 31 August 2015

[26] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow & Hayne JJ

[2015] FCCA 2139

31 August 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing