Ozben & Sons Pty Ltd v Minister for Immigration - [2005] FMCA 1222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OZBEN & SONS PTY LTD v MINISTER FOR IMMIGRATION

[2005] FMCA 1222

MIGRATION – Application for review of a decision of the Migration Review Tribunal – refusal to approve business sponsorship – whether the Tribunal asked itself the correct question in dealing with claims of the applicant – whether the Tribunal decision affected by apprehension of bias or unreasonableness – whether the Tribunal addressed the delegate’s decision and whether the Tribunal ignored relevant material – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss.348, 474, 474(1), 474(2)
Migration Regulations 1994, regs 1.20D

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
NAAV v. Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449
Applicant NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA)
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 426
Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 877
Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069

Applicant:

OZBEN & SONS PTY LTD (ALSO TRADING AS JORDAN’S JEWELLERS)

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 311 of 2005

Judgment of:

Pascoe CFM

Hearing date:

22 August 2005

Delivered at:

Sydney

Delivered on:

19 September 2005

REPRESENTATION

Counsel for the Applicant:

Assisted by friend, Mr Laba Sarkis

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the Migration Review Tribunal be joined as a party to this application.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $3300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 311 of 2005

OZBEN & SONS PTY LTD (ALSO TRADING AS JORDAN JEWELLERS)

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ozben & Sons Pty Ltd (ABN 42 072 066 016), seeks relief pursuant to the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Act”) against the decision of the Migration Review Tribunal (the Tribunal) made on 5 January 2005 affirming a decision of a delegate of the Minister not to grant the applicant, approval as a standard business sponsor.
In accordance with the recent decision of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.
In its application filed on 4 February 2005 the applicant contends that the Tribunal decision was affected by jurisdictional error, namely that:
a)The Tribunal erred in law by finding that the applicant was unable to comply with the sponsorship undertakings in accordance with its business sponsor application. The applicant contended that this amounted to a grave error as the applicant had been for a number of years able to meet rent of $15,000 per month. This should have lead the Tribunal to understand that payment of $40,000 per annum to the nominee was indeed accessible and that the nominated person who is a qualified import/export specialist having completed her qualifications in Australia, would have generated not only large amounts of money for the company but she would train Australian people and would benefit Australia;
b)The Tribunal failed to ask itself the correct question as to the financial status and assets of the managers of both related businesses; and
c)As there was no adverse information before the Tribunal to suggest that the review applicant did not have a satisfactory record of compliance with immigration law, the Tribunal erred in law by denying the company the right to have approval of the visa application for the visa applicant as both managers are in a position to meet any financial undertaking including wages, medical expenses, taxes, superannuation and the annual salary of $40,000. The Tribunal, even though it accepted low wages were earned by the managers failed to understand that each manager had substantial assets such as prestige cars, a boat and other valuable assets which, if taken into consideration, would have lead the Tribunal to accept the nomination.
At the hearing before me it was contended for the applicant that the Tribunal decision was unreasonable (in the Wednesbury sense) and affected by an apprehension of bias, that it ignored relevant material and did not address the decision of the delegate. Although these contentions were absent from the application it is necessary for me to consider them.
On 15 February 2005 the applicant was ordered to file an amended application giving complete particulars of each ground he intended to rely upon at the hearing by 10 May 2005. I note that no amended application has been filed.

Relevant background

The background to the matter is that the applicant applied for approval as a business sponsor on 26 May 2003 to the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). On 20 June 2003 a delegate of the Minister refused that application on the basis that the applicant did not satisfy all of the criteria under Regulation 1.20D of the Migration Regulations 1994 (“the Regulations”). In particular, the delegate found that the applicant did not satisfy subparagraph 1.20D(f) which required the applicant to demonstrate a capacity to comply with the sponsorship undertakings given in the business sponsor application.
On 27 June 2003 the applicant sought review of the delegate’s decision by the Tribunal.
On 18 November 2004 the applicant and his migration advisor attended the Tribunal hearing and evidence was given by Mr Ozbenian, the manager of the business. In its decision handed down on 5 January 2005 the Tribunal affirmed the delegate’s decision and found that the applicant did not meet all of the criteria for approval as a standard business sponsor.
The applicant is a business trading under the name Jordan’s Jewellers. In the application to the Department and to the Tribunal the applicant sought approval as a standard business sponsor. The application sought entitlement to make one nomination of business activities within a

12 month period.
Mr Ozbenian gave evidence on behalf of the applicant at the Tribunal hearing. He stated that his parents were the owners of the business and that they purchased the business of Jordan Jeweller’s in 1980. Mr Ozbenian has worked in the business for ten years. The business sells and manufacturers jewellery in Central Sydney but also subcontracts design, manufacture and repair work to a number of Sydney based jewellers. Mr Ozbenian told the Tribunal that Jordan’s was a unique Australian business because it imports jewellery from overseas and also designs its own jewellery.
The applicant sponsored Ms Harabati the applicant in proceedings SYG 807 of 2005 to take up a full time position as importer/exporter. That application was heard at the same time as hearing this application. The applicant claimed that the nominee, Ms Harabati had the relevant overseas experience and skill to bring a new dimension to the applicant’s company, which would result in significant growth and create new employment opportunities for Australians.

The legislative framework

The decision of the Tribunal is a privative clause decision and falls within the provision of s.474(2) of the Act. With respect to privative clause decisions, s.474(1) provides:
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 which overruled NAAV v. Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, the High Court, comprising Gaurdon, McHugh, Gummow, Kirby and Hayne JJ upheld the validity of s.474 and at [76] their Honours said:
…the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s474(2) as “a decision…made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act.
The effect of Plaintiff S157 (supra) was set out comprehensively by the Full Federal Court in Applicant NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 where their Honours, comprising Hill, Goldberg and Conti JJ said at [13] said:
So far as the claim of jurisdictional error is concerned, such a ground must now be considered in light of the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra). The effect of the decision of the High Court is that s 474 of the Act does not exclude the court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decision are not “decisions made under…[the] Act for the purposes of s 474. Whatever be the scope or extent of jurisdictional error: see, for example, Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 351.
Thus, what follows from the reasoning in Plaintiff S157 is that s.474 is a valid and operative provision and prevents the review of decisions made under the Act except for decisions affected by jurisdictional error. However, what constitutes jurisdictional error must be understood in light of what the High Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [351]:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. 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. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
and the Full Federal Court in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255. In that case, their Honours, Wilcox, Gray and RD Nicholson JJ said at [16]:
It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself the wrong question, ignoring relevant material, relying on irrelevant material, or at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.

The Tribunal decision

It was correctly noted by the Tribunal that for the applicant to be approved as a business sponsor the applicant must meet all the criteria under regulation 1.20D. In its decision the Tribunal set out the criteria under regulation 1.20D and considered each subparagraph.
In relation to subparagraph 1.20D(2)(a) the Tribunal noted that the applicant registered the company name with the Australian Securities and Investments Commission as a proprietary company on 6 December 1995.
Before the Tribunal were copies of relevant business documents, such as business brochures, tax returns, invoices, financial statements and correspondence for the previous three years. The Tribunal heard evidence from the applicant that the principal activity of the business was manufacturing and selling jewellery at retail level. On the evidence before it, the Tribunal was satisfied that the applicant was actively and lawfully operating in Australia.
In relation to subparagraph 1.20D(2)(a)(i)-(iv) the Tribunal heard evidence from the applicant that the proposed employment of the nominee would contribute to employment for Australian citizens or residents. The applicants evidence revealed to the Tribunal that the applicant would like to expand its business which would lead to further employment. The Tribunal did not accept that the employment of the nominee would contribute to employment for the benefit of Australian citizens or residents. The Tribunal noted that the business only had two employees, namely, Mr Ozbenian and his brother. The Tribunal was not satisfied on the evidence that the company would not be able to operate successfully without the proposed employment of the nominee. Similarly, the Tribunal was not satisfied that the proposed employment of the nominee would contribute to employment for Australian citizens or residents.
Mr Ozbenian gave evidence on behalf of the applicant that the business would contribute to the expansion of Australian trade, improvement of Australian business links, and competitiveness within sectors of the Australian economy.
Further, he gave evidence that the nominee was an experienced overseas exporter/importer from Turkey with experience in liasing with European contacts. It was claimed that the nominee had been exposed to new business procedures and networking techniques and that with these attributes the nominee would increase links and expand Australian trade, and that her involvement would ultimately increase standards, efficiency and competitiveness in the industry. In support of this claim the applicant provided to the Tribunal a number of invoices that evidenced the purchase of jewellery from overseas. The Tribunal was not satisfied that the purchase of jewellery from overseas contributed to the expansion of Australian trade or the improvement of Australian business links. The Tribunal found that the applicant had been purchasing jewellery from overseas for some time and it was unlikely that the proposed employment of the nominee would expand the applicant’s business.
The Tribunal noted that the applicant had been operating as a jewellery business for over 24 years and found that the proposed employment of the nominee would not contribute to competitiveness within any sector of the Australian economy. The Tribunal noted that there was little evidence before it to suggest that the proposed employment of the nominee would contribute to competitiveness within the retail jewellery sector of the Australian economy.
In relation to subparagraph 1.20D(2)(b) the Tribunal noted that the application was made on the basis that the applicant would be the direct employer of the nominee and that the applicant would pay the nominee an annual salary.
In relation to subparagraph 1.20D(2)(c)(i)-(ii) the applicant claimed that it would introduce, utilise or create new or improved technology or business skills. The applicant claimed that the employment of the nominee would help bypass middlemen and enable direct purchase from source. The applicant claimed that the nominee had a talent for discovering new markets and that the nominee’s overseas experience would help implement a more profitable product mix and implement new negotiation and networking strategies. The Tribunal found that there was nothing unique or leading edge about the nominee’s skills.

It was not satisfied that the ability to source jewellery from overseas was a new or improved business skill and that those skills are not readily available within Australia.
The Tribunal also considered the applicant’s financial position. In this regard I note that the Tribunal considered the financial documents set out at paragraphs 11 and 12 of its reasons. The Tribunal noted that in the financial year ending June 2004 the applicant spent nil on wages. For the financial year ending June 2003, a total of $17,681.70 was spent on wages. Mr Ozbenian gave evidence that his wages and that of his brother were paid by Ozy Kebabs. The Tribunal in its decision noted that the financial records of Ozy Kebabs for the financial year ending June 2003 indicated an amount of $30,000 was spent on wages. In this regard I note the Profit and Loss Statement for Ozy Kebabs at page 115 of the Court Book. The Tribunal noted that there were nil expenses for training included in on any of the financial records provided to the Tribunal.
The Tribunal found that there was scant evidence before it of any training courses that Mr Ozbenian and his brother had undertaken. The applicant told the Tribunal that it proposed to employ two additional employees and that they would be trained in business, legal and administrative matters. The Tribunal found that the applicant had not identified any possible external courses to be undertaken and found that the applicant did not provide any evidence that the applicant’s intention would ever be realised. The Tribunal was not satisfied that the applicant had provided a training plan that indicated to the Tribunal that any training will take place either of existing or any proposed employees. The Tribunal was not satisfied based on the evidence before it that the applicant had demonstrated commitment to training Australian citizens and residents and was not satisfied that the financial records of the applicant’s business demonstrated a history of commitment to training.

In relation to subparagraph 1.20D(2)(d) the Tribunal found that there was no adverse information before it.
In relation to subparagraph 1.20D(2)(e) the Tribunal was satisfied that the applicant had a satisfactory record of compliance with Australian immigration laws.
In relation to subparagraph 1.20D(2)(f) the Tribunal considered whether the applicant was able to comply with undertakings in respect to visa holders. The Tribunal noted that the sponsor application and nomination forms included financial undertakings related to, inter alia, payment of the nominee’s medical expenses, repatriation costs, annual salary and other expenses related to employment such as taxes and superannuation. The applicant stated that the nominee would be remunerated at $40,000 per annum. In its assessment of this claim the Tribunal had regard to unaudited profit and loss statements for the years ending 30 June 2001 and 2002 which showed a net loss of $1095 and a net profit of $32,104 in 2002 was an $18,753 profit on sale of fixed assets. The Tribunal went on to consider the business’s unaudited balance sheets for the period 30 June 2001 and 2002 which showed positive net assets of $122,452 and negative assets of $231,749. The balance sheets also showed an entry of retained earnings of $123,544 and an accumulative deficit of $263,855. The Tribunal found that the accumulative deficit of $263,855 in 2002 did not reconcile with the retained earnings of $123,544 in 2001. It noted that the net loss in 2001 was only $1095 while a net profit of $32,104 was realised in 2002. The Tribunal noted that it was not known whether or not part of the earnings were distributed to owners which may have caused the accumulated deficit in 2002. Evidence was given on behalf of the applicant that the negative net assets in 2002 were due to inventory being reported at cost, and that based on the industry’s mark up of 2.2 times and after considering the company’s trade liabilities that it would still have access to $805,135.
The applicant claimed to have a 75% share in the business Ozy Kebabs with a trading profitability value in excess of $500,000. The applicant claimed to have sufficient unencumbered assets to assist in potential sponsorship undertakings. In support of this claim the applicant produced to the Tribunal a letter dated 29 August 2003 from the business Accountant.
The Tribunal received further financial records for the financial years ending 30 June 2003 and 30 June 2004. The Tribunal found that the company had been operating at a profit and that it was a company with sufficient assets to meet its sponsorship obligations.

Ground 1: sponsorship undertaking obligations

It was contended for the applicant that the Tribunal erred in law in finding that the applicant was not able to comply with its sponsorship obligations in accordance with the undertakings given in the business sponsor application. This contention is misconceived. It is apparent on a reading of the Tribunal decision that the Tribunal found that the applicant did have the capacity to meet its sponsorship obligations. In this regard, I note paragraph 40 of the Tribunal decision where it said:
It is clear that the company has been operating at a profit and that it has sufficient net assets to be able to meet its sponsorship obligations.
Thus, this contention must fail.

Ground 2: whether the Tribunal asked itself the right question

It was contended for the applicant that the Tribunal failed to ask itself the right question in relation to the financial status and assets of the managers of the two businesses. As stated above at [15] of these Reasons jurisdictional error is committed if it is found that the Tribunal asked itself the wrong question.
When reading the Tribunal decision as a whole it is apparent that the Tribunal did not ask itself the wrong question with respect to the financial status of the managers of the two businesses. To the contrary, it drew its attention to their financial position quite plainly. In my view the Tribunal was clearly aware of the financial status of the managers and certainly on my reading it made favourable findings on that very point.

Other grounds absent from the application

Unreasonableness

In the absence of particularity it was contended for the applicant that the Tribunal decision was unreasonable (in the Wednesbury sense).

To succeed on this ground, the applicant needed to satisfy me that the decision was one that when read objectively was so devoid of plausible justifications that no reasonable person could have come to the decision it did. It is necessary therefore to consider this notion in light of the English decision of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA), in which Lord Greene MR sitting as the Court of Appeal said at [229-230]:
… a person entrusted with a discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he must consider. If he does not obey these rules, he may truly be said and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she has red hair. That is unreasonable in one sense it is taking into account extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
… It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming.
I also note the comments by Gaudron and Kirby JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Eshutu (1999) 197 CLR 611 where their Honours said at [100]:
We each adhere to what we said in Abebe with respect to relief under s75(v) in the case of a decision that is unreasonable, in the sense that no reasonable person could reach that decision.
The question is therefore, whether the Tribunal decision is one that could not be characterised as a bona fide attempt to exercise the power conferred on it. The Tribunal was required to consider the applicant’s application for review and in assessing the claims of the applicant it was required to have regard to the relevant criteria set out in the regulations. I do not accept that the Tribunal's decision can be described as unreasonable. In my view the Tribunal dealt with the applicant’s claims based on the evidence before it. It’s findings were findings of fact which were reasonably open to it. It found that the applicant did not meet all of the criteria. Accordingly, as the applicant has failed to succeed on this ground it must be dismissed.

Whether the Tribunal failed to address the decision of the delegate

It was contended for the applicant that the Tribunal failed to address the decision of the delegate. The Tribunal was required by virtue of s.348 of the Act to review the decision of the delegate. The Tribunal had before it the Departmental file. It set out the claims the applicant put in its application for review. At paragraph 10 of its decision the Tribunal said:
The review applicant stated in its application for review to the Tribunal that it disagreed with the decision. It stated:
The Tribunal at the same paragraph then went on and set out the claims in that application:
The negative assets came about because its inventory (of jewellery) was based at a cost price of $525,000. Considering that the mark up in the jewellery industry is 2.2 times, the same inventory would have a selling price of approximately $1,155,000. Subtracting its liabilities to trade creditors of $349,865, it would have access to approximately $805,135.
It has a share in another business, the Ozy Kebabs Pty Ltd. This business is trading profitably and was valued in excess of $500,000. This business has sufficient unencumbered assets to assist in potential sponsorship undertakings.
Its profitability is improving based on financial statements 2001 and 2002.
It referred to letter dated 29 August 2003 from its accountant Pitcher Partners to substantiate its claims. The gist of the letter stated the inventory was based at cost but the general mark up for this type of trade is 2.2 times, the review applicant has a 75% share in a Ozy Kebabs Pty Limited which is profitable, the review applicant has sufficient assets to meet the obligations of a business sponsor.
There is nothing in the Tribunal decision that leads me to conclude that the Tribunal failed to consider and address the decision under review. The claims described above were all matters the Tribunal considered in its decision. Accordingly, this ground must fail.

Whether the Tribunal ignored relevant material

It was contended for the applicant that the Tribunal ignored relevant material. In particular the applicant referred the Court to page 173 of the Court Book which are Balances and Transaction documents from the ANZ Bank. At paragraph 10 of its decision the Tribunal stated that prior to the Tribunal hearing the applicant provided a number of documents in support of its application. In particular the Tribunal noted that prior to the Tribunal hearing the applicant provided financial documents, including the document called “Last 30 days of Balance and Transactions of ANZ Bank account for Ozben & Sons” which is included at pages 173 to 176 of the Court Book. The Tribunal did not reach any adverse findings in relation to the financial assets of the business, rather the Tribunal found that the business was capable of meeting its financial obligations. I cannot therefore see any basis for the claim and I am satisfied that the Tribunal had regard to the evidence before it.

Whether there is apprehension of bias

It was contended for the applicant, in the absence of particularity, that there was apprehension of bias on the part of the Tribunal. In particular the applicant referred to page 188 of the Tribunal’s decision. That page is the final page of the decision and at [41]-[43] it is cited as follows:
For the reasons given above, the Tribunal is not satisfied that the proposed employment would contribute to employment for Australian citizens and permanent residents, or contribute to expansion of Australian trade, or contribute to improvement of Australian business links, or contribute to competitiveness within sectors of the Australian economy. The Tribunal is also not satisfied that the applicant for approval will introduce, utilise or create new or improved technology or business skills, or, alternatively, has the applicant for approval a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents. The Tribunal finds that the review applicant does not meet paragraph 1.20D(2)(a). The Tribunal finds that the review applicant does not meet paragraph 1.20D(2)(c).
To meet the criteria for approval as a business sponsor, the review applicant must meet all of the requirements in regulation 1.20D. As the Tribunal has found that the review applicant does not meet one of the criteria for approval as a business sponsor, the Tribunal must affirm the decision under review.
The Tribunal affirms the decision under review, finding that the review applicant does not meet the criteria as a business sponsor.
The test for apprehension of bias was considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 426 at [27] where their Honours Gleeson CJ, Gaudron and Gummow JJ Court said:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
The question of whether a decision maker has committed an act of apprehended bias is an objective standard (See Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 877, per Lander J). In that case his Honour at [65] set out the principles of apprehension of bias in the following way:
Unlike the test for actual bias, the question for apprehended bias is an objective one; whether a reasonable bystander (or fair minded lay observer) might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision maker is required to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakuata v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.
And at [67] his Honour said:
The question for determination when considering apprehended bias is not the state of mind of the decision maker, but the state of mind of a reasonable bystander properly informed: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]. In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four separate, but overlapping, categories which might give rise to apprehended bias; interest, conduct, association and extraneous information.
I also note the decision of Branson J in Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 where her Honour at [57] said:
The appropriate test to be applied in determining whether the conduct of the Tribunal gave rise to an apprehension of bias is that identified by the High Court in Re Refugee Review Tribunal; Ex Parte H 75 (2001) ALJR 982 at [28]. That test is whether a hypothetical fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.
The applicant has presented no evidence that the Tribunal decision was affected by an apprehension of bias. I have no transcript of the Tribunal hearing. All I have before me is the decision of the Tribunal. There is nothing in the decision on page 188 of the Court Book (which is an account of the Tribunal conclsuions) that would lead me to find that that part of the decision or any other part of the decision would give rise to an apprehension of bias. Accordingly, the ground has not been made good and must fail.

Conclusions

On my reading of the material and applying the relevant authorities to which I have referred to above, I am not satisfied that the applicant has disclosed jurisdictional error or any other error of law. Moreover, the applicant’s oral contentions that the Tribunal decision was affected by bias and was unreasonable and that the Tribunal ignored relevant material and that it failed to address the delegate’s decision must fail. The applicant was required to meet all of the necessary criteria under the regulations. The Tribunal found that it did not. I am satisfied that the Tribunal made its decision on the material it had before it and that those considerations were reasonably open to it.
For all the above reasons, I am satisfied that the application should be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 19 September 2005