Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 660
•7 June 2022
FEDERAL COURT OF AUSTRALIA
Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 660
Appeal from: Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA 3074 File number(s): QUD 381 of 2020 Judgment of: GREENWOOD J Date of judgment: 7 June 2022 Catchwords: MIGRATION – consideration of whether the Administrative Appeals Tribunal engaged in jurisdictional error in determining an “employer nomination application” of a position in the “stream” under Reg 5.19(3)(a) to (h) of the Migration Regulations 1994 (Cth) under the Migration Act 1958 (Cth), described as the “Temporary Residence Transition Nomination” stream – consideration of Reg 2.59(d) – consideration of Reg 5.19(3)(d) – consideration of Reg 5.19(3)(f)(i)(A) and (B) – consideration of Reg 5.19(3)(f)(ii) – consideration of Reg 2.87B – consideration of Instruments described as IMMI 12/062, IMMI 13/030, IMMI 17/075 and IMMI 17/045 – consideration of the construction to be attributed to the Instruments and the Regulations Legislation: Migration Act 19589 (Cth), ss 140E, 140GB
Migration Regulations 1994 (Cth), rr 2.58, 2.59, 2.68, 2.87B, 5.19, Div 2.19
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 116 Date of last submission/s: 24 August 2021 Date of hearing: 9 November 2021 Counsel for the Appellant: Dr A J See Solicitor for the Appellant: HSC Legal Counsel for the Respondents: Mr J D Byrnes Solicitor for the Respondents: Clayton Utz ORDERS
QUD 381 of 2020 BETWEEN: PEXBURY PTY LTD
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
7 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
The appellant, Pexbury Pty Ltd (“Pexbury” or the “appellant”), at the date of the decision of the Administrative Appeals Tribunal (the “Tribunal”) in issue in this appeal, carried on the business of “rental, hiring and real estate services” in Brisbane. It did so under the trading name “Rivercity Real Estate” and had been in business providing those services since 5 March 1986. At the date of the Tribunal’s decision on 17 October 2019 it had been doing so for approximately 34 years.
Section 140E(1) and (2) of the Migration Act 1958 (Cth) (the “Act”) provide that the Minister must approve a person as a sponsor in relation to one or more classes of sponsor provided for by the Act and the Migration Regulations 1994 (Cth) if prescribed criteria are satisfied. Different criteria may be prescribed for different classes of sponsor: s 140E(3). One of the classes of sponsor is a “standard business sponsor”, Reg 2.58.
On 22 March 2013, the Minister approved Pexbury as a standard business sponsor. At the date of the approval, the Migration Regulations in force were the 2013 Regulations (described as F2013C00062, Federal Register of Legislative Instruments). Under the 2013 Regulations, the criteria applicable for approval as a standard business sponsor was set out under Reg 2.59. One criterion required to be met was Reg 2.59(d) in these terms:
(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more – the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph;
[emphasis added]
At the date of approval, the Instrument contemplated by Reg 2.59(d) specifying the training benchmarks was an Instrument described as “IMMI 12/062” which had commenced on 1 July 2012. That Instrument was revoked on 28 June 2013 and the training benchmarks specified for Reg 2.59(d) became, from 1 July 2013, those specified in Schedule A to an Instrument described as “IMMI 13/030”.
The 2013 Regulations at the date of approval also provided, by Reg 5.19(3)(f), a criterion that the nominator “has met the training requirements that the nominator was required to meet under [relevantly] paragraph 2.59(d) or (e) … for the purpose of approval as a standard business sponsor”.
Under the 2013 Regulations applicable at the date of approval on 22 March 2013, there was no Regulation 2.87B. Regulation 2.87B was introduced with effect from 1 July 2013 by the Migration Legislation Amendment Regulation 2013 (No 3) (Cth) (the “Amending Regulation”) (otherwise described as F2013L01229, Federal Register of Legislative Instruments). By the Amending Regulation, Reg 5.19(3)(f) was repealed and replaced (see s 2 and Item 10 of Schedule 1 of the Amending Regulation).
The terms of Reg 5.19(3)(f) and Reg 2.87B which took effect from 1 July 2013 are set out below:
5.19 Approval of nominated positions (employer nomination)
…
(3) The Minister must, in writing, approve a nomination if:
...
(f) either:
(i) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i);
Note:Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
2.87B Obligation to provide training
(1)This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a)the person’s approval as a standard business sponsor; or
(b)the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a)the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b)a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a)the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b)a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4)The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5)If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6)If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
[emphasis added]
Regulation 5.19, at the date on which the appellant lodged its employer nomination application on 5 July 2017 (the subject of the appeal; see [10] of these reasons), addresses the topic of “Approval of nominated positions (employer nomination)” and provides that a person may apply to the Minister for approval of the nomination of a position in Australia: Reg 5.19(1).
The Minister must approve the nomination if the application is regularly made (Reg 5.19(2)); identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfies particular criteria in Schedule 2; identifies an occupation, in relation to the position, that meets a prescribed classification; the nominator is, or was, the standard business sponsor who last identified the holder of Subclass 457 (Temporary Work (Skilled)) visa, in a nomination made under s 140GB of the Act (or under particular Regulations in force before 14 September 2019); and the nominator is actively and lawfully operating a business in Australia: Reg 5.19(3)(a) and (b). Other criteria apply (Reg 5.19(3)(c) to (h)) all of which, like the criteria at 5.19(3)(a) and (b), must be met.
The criteria set out at Reg 5.19(3)(a) to (h) are concerned with an employer nomination in the “stream” under the Act described as the “Temporary Residence Transition nomination” stream.
On 5 July 2017, Pexbury lodged online an application in the Temporary Residence Transition nomination stream in relation to an occupation described as “Real Estate Representative” (reflecting the classification contemplated by Reg 5.19(3)(a)(iii)). The nominee for the position reflecting that classification of occupation was Ms Ranjeet Kaur who, at the date of the application, held a Subclass 457 (Temporary Work (Skilled)) visa.
Two aspects of Reg 5.19(3) are engaged by this appeal.
The first is Reg 5.19(3)(d) which provides that the Minister must approve a nomination if (together with all the other requirements of Reg 5.19(3)):
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full‑time basis in the position for at least two years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment;
[emphasis added]
The limb of Reg 5.19(3)(d) relevant for present purposes is the text at Reg 5.19(3)(d)(i). There is no issue about whether the introductory words in Reg 5.19(3)(d) are engaged, that is, “for a person to whom subparagraph (c)(i) applies”.
The second aspect of Reg 5.19(3) at the centre of this appeal is Reg 5.19(3)(f) which at the date of the application on 5 July 2017 was in the terms quoted at [7] of these reasons.
The context in which these questions arise is an appeal from orders and a judgment of the Federal Circuit Court of Australia (now described as the Federal Circuit Court and Family Court of Australia (Division 2)) (the “primary court”) constituted by his Honour Judge Egan (the “primary judge”) dismissing a further amended application for the grant of the constitutional writs under s 476 of the Act in relation to the Tribunal’s decision of 17 October 2019 affirming a decision of the Minister’s delegate to refuse the nomination.
In the proceedings before the primary judge, the parties formulated and relied upon an “Agreed Statement of Facts and Issues” (the “Agreed Statement”). That document is set out in full at [3] of the primary judge’s reasons. It identifies contextual facts and a statement of the three issues or grounds argued before the primary court and the position of the applicant and the Minister in relation to each of those grounds. It is not necessary to set out the content of the Agreed Statement in these reasons. I have had regard to the entirety of the Agreed Statement. In the reasons for judgment of the primary judge, the primary judge having set out all the elements of the Agreed Statement, observes at [4] that the primary court “accepts and adopts the submissions and contentions made on behalf of [Minister] for the reasons set out in the Agreed Statement of Facts and Issues”. The primary court then made further findings commencing at [5] of the reasons.
In these reasons, I propose to address the findings of the Tribunal and the three grounds of appeal on which it is said the primary judge erred. The three grounds agitated on the appeal are, in substance, the three grounds argued before the primary judge and the essence of the three grounds of appeal is that the primary judge erred by failing to find jurisdictional error on the part of the Tribunal on the footing agitated by the appellant before the primary judge.
Before examining the reasoning of the Tribunal, it is useful to examine some aspects of the statutory regime which prevailed at the date of the appellant’s employer nomination application on 5 July 2017.
As already mentioned, at that date, one criterion governing approval of the nomination application was the text of Reg 5.19(3)(f). It contains two possibilities, one at Reg 5.19(3)(f)(i), and another at Reg 5.19(3)(f)(ii).
As to the first of those, it recites a conjunction of two elements.
The first element, described as (A), is that Pexbury was required to have fulfilled “any commitments” it made relating to meeting its training requirements during a particular period described as Pexbury’s “most recent approval” as a standard business sponsor. The “period” of Pexbury’s “most recent approval” as a standard business sponsor was a period of three years commencing on the date of approval on 22 March 2013. That approval was for a period of three years and it is common ground that Year 1 of the approval was 22 March 2013 to 21 March 2014; Year 2 was from 22 March 2014 to 21 March 2015; and Year 3 was from 22 March 2015 to 21 March 2016. Thus, Reg 5.19(3)(f)(i)(A) required an examination of whether Pexbury had fulfilled any commitments it had made relating to training requirements as a standard business sponsor.
Accordingly, what commitments might they have been?
At the date of grant of the Minister’s approval to Pexbury as a standard business sponsor on 22 March 2013, Reg 2.59(d), as earlier mentioned, required as one of the criteria for approval that Pexbury “meets” the “benchmarks” for “training” Australian citizens and Australian permanent residents, specified in the relevant Instrument made for the purposes of Reg 2.59(d). That Instrument as at 22 March 2013 was IMMI 12/062 and it “specified” two alternative training benchmarks for an established business such as Pexbury (described as benchmarks (A) or (B)). The parties have agreed in the Agreed Statement that the applicable benchmark was alternative (A) of IMMI 12/062 which was in these terms:
A)Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business, and as a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of the approval of a sponsor.
[emphasis added]
The “commitment” the applicant made (as the operator of “the business”), as a criterion of its approval as a standard business sponsor was to “meet” that benchmark. The construction to be attributed to the language of benchmark (A) is a little unclear. It probably means recent expenditure by Pexbury to the equivalent of 2% of the “payroll” (in the sense of payments to personnel comprising employees but perhaps also those on contract as they may have been treated as part of the payroll) of the business and a commitment by the business (Pexbury) to maintain expenditure in each “fiscal” year of the approval at that 2% level. The benchmark seems to contemplate analysis of recent expenditure by reference to fiscal years ending, presumably, on 30 June of the relevant year. Thus, the benchmark seems to contemplate a fiscal year ending 30 June 2013 falling in Year 1 of the approval commencing 22 March 2013, a fiscal year ending 30 June 2014 falling in Year 2 of the approval and a fiscal year ending 30 June 2015 falling in Year 3 of the approval. This seems to be an awkward approach (introduced by reference to fiscal years) as the benchmark was probably intended to establish a benchmark threshold of expenditure of 2% of the payroll of the business in each year of the approval. The reference to “fiscal” years seems, however, a quite deliberate choice.
As earlier mentioned, Instrument IMMI 12/062 was revoked on 28 June 2013 and, commencing on 1 July 2013, IMMI 13/030 (Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013 (IMMI 13/030) (F2013L01236)) specified benchmarks for the purposes of Reg 2.59(d). Thus, on and after 1 July 2013 an applicant (an established business) for approval as a standard business sponsor or an applicant seeking to vary the terms of an existing approval, would, as a criterion of approval or variation, need to meet the benchmarks specified in IMMI 13/030 for the training of Australian citizens and Australian permanent residents.
The parties have agreed in the Agreed Statement that the relevant training benchmark for an established business, contained in IMMI 13/030, is alternative (B) in these terms:
B)Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Although the criterion that Pexbury “meet” the training benchmarks specified in an Instrument made for Reg 2.59(d) as a criterion of approval on 22 March 2013, is accurately described as a “commitment” during the period of the most recent approval, a question arises as to whether the benchmark specified by IMMI 13/030 became a “commitment” of Pexbury once it replaced the benchmarks specified by IMM 12/062. It would have become such a commitment, had Pexbury sought to vary its existing approval for any part of the term of the approval. The question is whether the scope of the commitment was a commitment to meet the particular benchmarks specified by IMMI 12/062 or a commitment to meet the training benchmarks specified in an Instrument (any Instrument) made for the purposes of Reg 2.59(d) over the period of the approval. If the latter Pexbury, was required to meet the benchmarks of IMMI 12/062 from 22 March 2013 to 30 June 2013 and meet the benchmarks of IMMI 13/060 from 1 July 2013 to 21 March 2016. If the former, Pexbury was required to meet the benchmarks of IMMI 12/062 for the period of the approval. The more likely construction is a commitment to meet the benchmarks specified in an Instrument made for the particular paragraph from time to time.
These observations at [22] to [28] of these reasons are concerned with the first element or limb (A) of Reg 5.19(3)(f)(i) as described earlier.
The second element of Reg 5.19(3)(f)(i), limb (B), which must also be satisfied (due to the conjunction) in order for the Minister to approve the employer nomination application of 5 July 2017 (subject to the alternative in Reg 5.19(3)(f)(ii)) is that the applicant has “complied” with the “applicable obligations” under Div 2.19 of the Regulations relating to Pexbury’s “training requirements” during the period of its most recent approval as a standard business sponsor. Again, this is a reference to each year of Pexbury’s three year approval as described earlier.
What “applicable obligations” arose under Div 2.19 relating to Pexbury’s training requirements during the period of its approval?
The first year of the period of Pexbury’s most recent approval was 22 March 2013 to 21 March 2014. On 1 July 2013 (a little over three months after the commencement of the approval), Reg 2.87B was introduced into Div 2.19 of the Regulations: see the text at [7] of these reasons.
Subregulation (1) of Reg 2.87B is an “application of laws” provision. It provides that Reg 2.87B applies to a person who was lawfully operating a business in Australia at the time of that person’s approval as a standard business sponsor, or at the time of a variation to the person’s existing approval as a standard business sponsor.
Pexbury was lawfully operating a business of providing rental, hiring and real estate services in Australia at the time of its approval as a standard business sponsor on 22 March 2013. Thus, Reg 2.87B applies to Pexbury and applied to it on the date Pexbury lodged its employer nomination application on 5 July 2017.
Regulation 2.87B(2) contemplates two temporal possibilities with a particular consequence in each case.
The first possibility is that if, during all or part of the period of 12 months commencing on the day Pexbury is approved as a standard business sponsor (commencing 22 March 2013), it is a standard business sponsor of at least one primary sponsored person, a certain training consequence arises for that 12 month period.
The second possibility is that if, during all or part of a period of 12 months commencing on an anniversary of “that day” (that is, the day Pexbury was approved; the anniversary dates of that day being the commencement dates for the relevant periods being 22 March 2014 and 22 March 2015), Pexbury is a standard business sponsor of at least one primary sponsored person, the same training consequence for that 12 month period of the approval commencing on the relevant anniversary date arises, and that consequence, in each period contemplated by Reg 2.87B(2)(a) and (b) (that is, each of the possibilities), is that Pexbury “must comply” with the requirements relating to training specified by the Minister in an Instrument in writing for subregulation (2) of Reg 2.87B, “for that 12 month period” [emphasis added].
Subregulation (3) of Reg 2.87B is in the same terms as subregulation (2) except that it is concerned with periods commencing on the day of variation of an approval and periods commencing on the anniversary of that date. In the event that subregulation (3) is engaged, it brings about the same consequence as earlier described.
Subregulation (4) of Reg 2.87B makes clear that the requirements of subregulations (2) and (3) to comply with specified training requirements are “obligations” and those obligations, according to their terms, “start to apply” on the day the person is approved as a standard business sponsor. In the case of Pexbury, the obligation starting, according to its terms, on 22 March 2013 ended on 21 March 2016, Reg 2.87B(5).
The Instrument that specifies, for the purposes of Reg 2.87B(2) and Reg 2.87B(3), the training requirements a person must comply with, is IMMI 13/030, which commenced on 1 July 2013. One difference in the formulation of the benchmark in IMMI 13/030 as compared with IMMI 12/062 as noted earlier, is that IMMI 13/030 recalibrates the expenditure formulation by abandoning any reference to “fiscal” years and refers to recent expenditure, by the business, to the equivalent of 1% of the “payroll” of the business in the provision of “training to employees of the business”. Thus, IMMI 13/030 is seeking to introduce some greater precision into the formulation although it was not until a later Instrument emerged that any true discipline was introduced into the definition of the expenditure requirements for the purposes of training.
IMMI 13/030 cast an obligation on Pexbury, according to its terms, starting on 22 March 2013 and ending on 21 March 2016. That obligation arose under Div 2.19 of the Regulations and gave rise to “applicable obligations” under Div 2.19 for the purposes of Reg 5.19(3)(f)(i)(B).
In order for the Minister to approve the nomination application of 5 July 2017, Pexbury was required to have fulfilled “any commitments” it made to meet training requirements as discussed earlier under element (A) of the first alternative in Reg 5.19(3)(f)(i), and to have complied with “applicable obligations” arising under element (B) of the first alternative in Reg 5.19(3)(f)(i) arising under Div 2.19 of the Regulations as discussed earlier.
IMMI 13/030 was repealed as from 1 July 2017 by an Instrument described as: Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017.
IMMI 13/030 was replaced with IMMI 17/045, an Instrument described as: Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017.
IMMI 17/045 commenced on 1 July 2017. By Part 2, clause 6(2) and Schedule 1 of that Instrument, IMMI 17/045 establishes the requirements relating to training for the purposes of Reg 2.87B(2) and (3). By Part 2, clause 6(1) and Schedule 1, IMMI 17/045 does so, in the same training benchmarking terms in Schedule 1, for Reg 2.59(d) and Reg 2.68(d) of the Regulations.
Part 3 of IMMI 17/045 addresses the topic of “Transitional provisions” and clause 7 of the Instrument provides that IMMI 17/045 “applies to nominations or standard business approvals lodged on or after the commencement of this instrument [on 1 July 2017]”.
As to the second element of Reg 5.19(3)(f)(i), at the date of the employer nomination application by Pexbury on 5 July 2017, a criterion of approval under Reg 5.19(3)(f)(i)(B) was that Pexbury had complied with “applicable obligations” under Div 2.19 arising by operation of Reg 2.87B(2) (and, if and where relevant, subregulation (3)). If Reg 2.87B(2) was engaged, Pexbury had an obligation to comply with requirements relating to training specified by the Minister in an Instrument for the purposes of the subregulation, for each of the 12 month periods contemplated by Reg 2.87B(2) to the extent that that subregulation was engaged according to its terms. Thus, Pexbury had to meet any commitments under IMMI 12/062 from 22 March 2013 to 30 June 2013 and commitments under IMMI 13/030 from 1 July 2013 to the end of the term on 21 March 2016. The commitment from 1 July 2013 to the end of Pexbury’s term was consistent with the obligation arising under element (B) of Reg 5.19(3)(f)(i) which suggests a symmetry of intention in the scope of the obligations to be discharged as to compliance by the nominator with training requirements on the part of a standard business sponsor.
The alternative to the criterion in Reg 5.19(3)(f)(i) is the criterion in Reg 5.19(3)(f)(ii) which is that it is “reasonable to disregard subparagraph (i)”. The appellant contends that if there was a failure to comply with the elements of Reg 5.19(3)(f)(i), the Tribunal ought to have disregarded that matter in reliance upon the alternative in Reg 5.19(3)(f)(ii) in all the circumstances of the application. That matter will be examined in the context of particular factual matters.
A further aspect of the grounds of appeal engages the Tribunal’s approach to the construction and application of Reg 5.19(3)(d). As already mentioned, that criterion concerns a question of whether the relevant nominee “will be employed on a full‑time basis in the position for at least two years”. The appellant contends that the Tribunal fell into jurisdictional error in reaching findings concerning that criterion related to views formed by the Tribunal about the financial capacity of the nominator, the character of the commitment and whether the Tribunal failed to take into account, in a forward‑looking way, the contribution to revenue and profitability of the nominator which would be generated by reason of the nominee’s participation in the business over the two year horizon.
I will return to these matters having examined the findings of the Tribunal.
The reasons of the Tribunal
At para 8, the Tribunal observes that the issue in the case is whether the appellant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in Reg 5.19(3) of the Regulations.
At para 9, the Tribunal notes that Pexbury has owned and operated a real estate agency in Brisbane for 35 years and the owner of the shares in Pexbury and director of the company, Mr Gary Galbraith, has been ill for some time and was hospitalised at the time of the hearing on 24 September 2019. As a result, Mr Hami Hikaiti, a contractor to Pexbury and who works in the business, represented Mr Galbraith at the hearing. The Tribunal notes at para 10 that Mr Hikaiti was not “privy to all the financial details regarding the business”. The Tribunal also notes that the appellant submitted various documents with the original application to the Department including financial statements, a training plan, Business Activity Statements (“BAS”) and an employment contract in relation to the nominee. Further documents were submitted in the form of a submission of 16 September 2019, a specification of training requirements, financial statements for the years 2015, 2016 and 2017, Business Activity Statements and Profit and Loss Statements up to 31 March 2019 and for the period ending 30 June 2017. The Tribunal notes that medical reports were also submitted concerning the condition of Mr Hanzra, the husband of the nominee, Ms Kaur.
As to the criterion under Reg 5.19(3)(d), the Tribunal notes that the Regulations require that the nominee will be employed on a full‑time basis for at least two years on terms that do not expressly preclude the possibility of an extension.
At para 16, the Tribunal notes that the nominee has worked in Pexbury’s real estate business since 2013 or 2014. It notes that Ms Kaur commenced work on a full‑time basis but took maternity leave and worked part‑time from January to April 2017. The Tribunal notes that Ms Kaur has been on extended unpaid leave from April 2017 to the date of the Tribunal’s decision on 17 October 2019 due to her husband, Mr Hanzra, needing care for a chronic health condition. The medical reports mentioned earlier were provided to the Tribunal as evidence of his condition. The appellant confirmed in material put to the Tribunal that the position remains open to Ms Kaur as she is regarded by the appellant as “an asset to the business”.
The Tribunal notes that Mr Hikaiti explained to the Tribunal that Ms Kaur’s father in India has a similar business and the real estate agency in Brisbane plans to use Ms Kaur’s cultural ties and knowledge in order to sell real estate to Indian investors. The Tribunal notes that appellant’s migration agent submitted on 6 October 2019 that Ms Kaur makes a valuable contribution to the business as the business has a number of Indian clients and a lot of misunderstandings occur with clients because of language difficulties. The submission the Tribunal is referring to is a submission attached to a letter from Chand Lawyers dated 6 October 2019 and the quoted passage is at para 4(g) of the submission. Those observations are consistent with the remarks at para 7 of the submission that Ms Kaur’s role was “very essential to the core business of Rivercity which specialises in the rental market”.
At para 18, the Tribunal notes that Pexbury submitted Profit and Loss Statements for the financial years 2016 to 2019 which revealed the following information (set out at para 18):
Subject
2019
2018
2017
2016
Sales
-
-
$238,345
$269,968
Profit before tax
$11,324
$4,285
$8,661
$19,719
Having regard to that financial information, the Tribunal observes that the business has been “marginally profitable” since 2017 but since the end of the financial year 2017 or April 2017, there has not been any expenditure on Ms Kaur’s salary of $54,704.00. The Tribunal observes at para 20 that had the nominated salary of $54,704.00 been paid to the nominee, the business would have suffered a loss in 2018 of $50,419.00 and a loss in 2019 of $43,380.00.
At para 21, the Tribunal observes that the financial state of the appellant is further evidenced by BAS documents for the period 1 April 2019 to 30 June 2019. The Tribunal notes that for the three month period total sales were $54,744.00 and wages for the quarter were $2,839.00. The Tribunal observes that if these financial statistics are annualised it suggests total sales of $218,976.00 and wages of $54,744.00 for the financial year 2019. The decision‑maker has transposed the total sales for the quarter as the annualised wages. The BAS document shows total “salary, wages and other payments” in the quarter of $2,839.00 which, on an annualised basis, amounts to $11,356.00. If, notionally, Ms Kaur’s salary of $54,704.00 were to be included in the wages component, the annual wages would be $66,060.00. Without Ms Kaur’s notional salary, annualised wages amount to $11,356.00 (at least based on the BAS document).
At para 22, the Tribunal notes that it asked Mr Hikaiti to explain how the business would manage to pay for two Australian employees and also the nominee as shown on the employer nomination. The Tribunal notes that Mr Hikaiti said that he worked as a contractor so his “wages” were taken in the form of commission and otherwise the business employed a woman in the office “which accounted for the $54,744 shown”. The Tribunal notes that Mr Hikaiti made no reference to wages potentially payable to Ms Kaur as she had been on unpaid leave since April 2017. It is not at all clear where the figure of $54,744.00 comes from other than a quarterly figure for sales in the BAS document to the quarter ending 30 June 2019.
At para 23, the Tribunal says this:
23.In the submission of 6 October 2019 by the applicant’s migration agent, it was stated that Mr Hikaiti advised that the business did not have any problems in meeting its operational expenses, rental, governmental charges including salaries of staff and this was evident from the financial statements. The Tribunal considered this submission and noted that the salaries of staff paid did not include the salary of the nominee, Ms Kaur. Therefore, the Tribunal considers this information is not consistent with the profit and loss statement submitted for the financial years 2016 to 2019, which showed that if Ms Kaur’s salary had been paid in 2018 and 2019, the business would have sustained a considerable loss.
At para 25, the Tribunal notes these matters:
25.Mr Hikaiti stated that the figures were “not impressive” however; the business had been established for 35 years and was sound. He was considering purchasing the business for $600,000 and would not contemplate this if the business did not have sound fundamentals. The business used “creative accounting” to minimise tax. The business had a general account and a trust account and it was only the general account that showed the financial figures for Pexbury Pty Ltd. Other income was put through the trust account. He stated that the applicant’s financial status only looks bad on paper.
The Tribunal’s remarks at para 25 are derived from aspects of the submission of 6 October 2019 by Chand Lawyers in these terms:
During the hearing, Pexbury’s representative Mr Hami Hikaiti gave evidence on company’s finances. In summary, Mr [Hikaiti] told the Tribunal
…
(b)[T]hat the business did not have any problems in meeting its operational expenses, rental, government charges including salaries of staff and that this was evident from the Financial Statements.
(c)That he would not be putting himself in a situation where he would be spending $600,000 to buy the business if the business was not profitable. Currently he was in discussions with Mr Gary Galbraith, the owner and director of the business.
(d)That the financials may not be looking good on the paper, but in reality, the business [is] doing good. Mr [Hikaiti] put this to creative accounting where certain amounts are directly drawn as director[s’] drawings. ([Mr Hikaiti] states that these amounts are reflected in Directors Tax return).
(e)That the creative accounting is a way to minimise tax.
(f)That due to Mr [Galbraith’s] current health, discussions are taking place between Mr [Galbraith] and Mr [Hikaiti] for the purchase of [the] business by Mr [Hikaiti]. [Mr Hikaiti] states that he has been part of the business for a long time now and he would not be negotiating if the business did not have any potential.
(g)That Ms [Kaur], the visa applicant, makes valuable contribution to the business as the business has a number of “Indian clients”, and a lot of misunderstanding do occur with clients because of language difficulties.
The submission put to the Tribunal that the financial position of Pexbury “may not be looking good” on “paper”, but that the true position is that “creative accounting” has been adopted as a way of minimising Pexbury’s tax is a particularly unedifying (but perhaps disarmingly frank) submission to put to the Tribunal. Presumably, the submission is intended to convey that had orthodox accounting, according to the accounting standards been adopted, Pexbury’s financial position and thus its profitability would be different to and show a greater and more improved financial position than the financial position revealed by the financial accounts as they stand, but they stand as they do as “a way to minimise tax”.
At para 26, the Tribunal observes that notwithstanding the matters noted by the Tribunal at para 25, the appellant “must be able to financially employ and pay” the person who is nominated for the position “for at least two years” in order to “meet r.5.19(3)(d)”. At para 26, the Tribunal quotes the relevant part of the text from Reg 5.19(3)(d).
Although the Tribunal quotes the text of Reg 5.19(3)(d)(i), the conception in the mind of the decision‑maker is not one of whether, in fact, the nominee will be employed on a full‑time basis in the position for at least two years, but one whether the appellant will be “able” “financially” to employ “and pay” the nominee for at least two years in the position. The evidence before the Tribunal is that the position remains available to Ms Kaur; she is valued; she makes a valuable contribution to the business both in relation to dealing with Indian clients and is “very essential” to the “core business” of specialising in providing services to the rental market.
The text of Reg 5.19(3)(d)(i) adopts a forward‑looking inquiry. The criterion asks whether the nominee “will be” employed, for “at least two years”, on a “full‑time” basis, in “the position”. That forward‑looking inquiry, engaging those four factors or elements, calls for a consideration of whether the nominee has, in fact, secured such an outcome.
I accept, however, that the inquiry also engages a consideration of whether the financial position of the employer nominator of the position enables the criterion to apply. If the evidence properly supports a conclusion that the facts properly give rise to a finding, or an inference can properly be drawn from facts as found, that the nominee will not be employed on a full‑time basis in the position for at least two years, the criterion will not “apply”. The difficulty is whether a conclusion about such a consideration is supported by the facts and whether inferences are open based on facts as found. If the facts relied upon to reach a conclusion that the employer/nominator cannot employ the nominee in the position for at least two years do not support the conclusion, or if inferences drawn from facts as found are not open or supported by those facts, an error of law occurs on the part of the decision‑maker which, if material, gives rise to jurisdictional error.
At para 27, the Tribunal considers matters raised by Mr Hikaiti and notes Mr Hikaiti’s evidence that the business had been established for 35 years and is sound. The Tribunal then observes that the “period of time a business has been operating is not an indicator of current financial viability”. It observes that “there is no evidence the business is sound or that Mr Hikaiti will go ahead with a purchase of the business” [emphasis added]. The Tribunal observes that “there is no evidence of another account or of creative accounting” [emphasis added].
At para 29, the Tribunal observes that Pexbury must demonstrate that the business is “financially viable and able to pay the nominee on a full‑time basis in the position for at least two years”. The Tribunal then observes at para 29:
29.… Even if there is a trust account unrelated to Pexbury Pty Ltd and there has been creative accounting, it does not change the financial situation pertaining to the nominator [Pexbury]. The financial capacity of [Pexbury] is found in its profit and loss statements and BAS statements.
And at para 30, the Tribunal said this:
30.Profit and loss statements and BAS statements for [Pexbury] show that had the nominated salary of $54,704 been paid to the nominee, the business would have made a loss of $50,419 and $43,380 respectively in financial years 2018 and 2019.
At paras 31 and 32, the Tribunal notes further evidence concerning the successful performance by Ms Kaur of the particular role she has been playing during the period of her leave and the flexibility she has exhibited in her circumstances in terms of working hours and engagement by way of helping out whilst caring for her husband. At para 33, the Tribunal notes that the employer values Ms Kaur and notes that Ms Kaur has been on unpaid leave since April 2017 for compassionate reasons due to her husband’s health. It notes again that the business has not had to pay Ms Kaur during this period.
The Tribunal notes at para 33 that these considerations do not “mitigate the substantial loss in the real estate agency [that would have arisen] if Ms Kaur or another new worker had been paid the full salary of $54,704 per annum” for the position during the previous two years.
The ultimate conclusion and finding of the Tribunal is that Pexbury would have incurred a significant loss if it had employed Ms Kaur on a full‑time basis at a salary of $54,704.00 for at least two years and thus Pexbury is “therefore unable to employ a person on a full‑time basis in the position for at least two years”.
Accordingly, the finding rests on a hypothesis about Pexbury’s inability to employ a person in the position for at least two years based on a present assessment of the capacity of Pexbury to meet a future commitment.
It is not correct to say, as the Tribunal does say at para 27, that “there is no evidence the business is sound”. The evidence of Mr Hikaiti is that the business is sound. His evidence is that it has had no problems in meeting its operational expenses, rental and government charges. Moreover, Mr Hikaiti says that he has put himself in a position where he would be willing to spend $600,000.00 to buy the business and he would not do so, knowing the business, “if it was not profitable”. Also, although it is true that past trading performance is no guarantee of future profitability, an important fact is that the company has been engaged in the business in question for 34 to 35 years which is not an insignificant period of time.
In 2013, total income was $231,578.00; expenses were $210,401.00; and the profit before income tax was $21,777.00.
In 2014, total income was $240,402.00; expenses were $187,512.00; and the profit before income tax was $52,890.00.
In 2015, total income was $219,860.00; expenses were $228,802.00; and the company suffered a loss of $8,942.00.
In 2016, total income was $269,968.00; expenses were $250,249.00; and the profit before income tax was $19,719.00.
In 2017, total income was $238,345.00; expenses were $229,684.00; and the profit before income tax was $8,661.00.
The financial information before the Tribunal suggested that in 2018 the profit before tax was $4,285.00. There was no evidence of total income or total expenses. In 2019, the profit before income tax was $11,324.00. Again, there was no evidence before the Tribunal of total income or total expenses data.
Notwithstanding that Pexbury made a loss in 2015, it traded successfully in 2016 and was able to make modest profits (but not losses) in 2018 and 2019. The hypothesis is that the available trading statistics for the last two years suggests that Pexbury (that is the “business”) could not have paid the salary of Ms Kaur over that period, suggesting that the criterion in Reg 5.19(3)(d)(i) does not “apply”.
The circumstance that Pexbury has either generated modest profits or indeed has traded at a loss in any year or years does not, of itself, give rise to a conclusion that the person (nominee) will not be employed on a full‑time basis in the position for at least two years, Pexbury having contended that it would so employ the nominee and having put material before the Tribunal to that effect. In, for example, a contended insolvency context, it is well recognised that trading losses of themselves do not suggest an inability to pay debts or discharge obligations as and when they fall due as the entity in question exhibiting such trading statistics might have the support of its owner/director in providing funds to enable the entity to meet its obligations. The owner/director may be willing to provide facilities by way of loans or it may be that the entity has other lines of credit or financial support available to it so that no ultimate conclusion can be drawn on the face of the profit and loss accounts alone that the company is unable to pay its debts as and when they fall due. That may have been the position in this case.
Nevertheless, in the present case, the Tribunal identified a basis on which it was concerned that Reg 5.19(3)(d)(i) did not apply. It was provided with evidence from Mr Hikaiti as to his confidence about the capacity of Pexbury to pay but was not provided with financial data answering the Tribunal’s concern. Nor was the Tribunal provided with data concerning financial support for the entity from the owner/director of Pexbury or otherwise. Further, Pexbury sought to answer the concerns of the Tribunal on this issue, on the footing that although the “financials” “may not be looking good” on paper, that circumstance was a result of “creative accounting” so as to minimise Pexbury’s income tax liabilities.
The appellant contends in its submissions both before the primary court and on appeal that the Tribunal did not take into account the likely future expansion in Pexbury’s business, consequent revenue and consequent profitability by securing the approval for the nomination of Ms Kaur for the nominated position, and thus failed to recognise and take into account Ms Kaur’s “contribution” to the business. However, if Pexbury was to address the concern reflected on the state of the financials which did not look good on paper, it was incumbent upon Pexbury either through the evidence of Mr Hikaiti or by evidence of Mr Galbraith or by reason of submissions from the advisers supported by the necessary evidence, to put proper forward‑looking projections before the Tribunal as to the likely contribution and likely future expansion of the business with a credible assessment of the likely future trading position of the company. It did not do so. Moreover, at no point did Pexbury put before the Tribunal a set of financial statements for any relevant years that reflected the true trading position of the company (as contended) but disregarding creative accounting designed to bring about a position which minimised Pexbury’s income tax liabilities.
The Tribunal did not fall into jurisdictional error in the way it addressed the criterion at Reg 5.19(3)(d)(i).
Nor did the primary judge fall into error in his assessment of whether the Tribunal fell into error on the contended footing concerning Reg 5.19(3)(d)(i).
The next question is whether the Tribunal fell into jurisdictional error in the way it addressed the criteria at Reg 5.19(3)(f)(i).
The considerations arising under Reg 5.19(3)(f)(i) required the Tribunal to look to whether Pexbury had “fulfilled” “any commitments” arising under limb (A) of Reg 5.19(3)(f)(i) and whether it had “complied” with “applicable obligations” arising under limb (B), and thus arising under Div 2.19 of the Regulations.
In addressing those matters, the Tribunal, under limb (A), was required to consider the fulfilment or otherwise of commitments in Year 1 from 22 March 2013 to 30 June 2013 under the training benchmarks of IMMI 12/062 and the fulfilment or otherwise of commitments from 1 July 2013 to 21 March 2016 under the training benchmarks of IMMI 13/030.
Under limb (B), the Tribunal was required to consider the obligations arising under Reg 2.87B measured against IMMI 13/030 for each of the 12 month periods contemplated by Reg 2.87B(2).
At para 37, the Tribunal quotes Reg 5.19(3)(f)(i) and (ii) and quotes Reg 2.87B of Div 2.19 of the Regulations. It also quotes training benchmark (B) from IMMI 13/030 (quoted at [27] of these reasons) which, for the purposes of Reg 2.87B(2), applied in the various 12 month periods contemplated by that subregulation as discussed earlier in these reasons, which gave rise to “applicable obligations” to be complied with by Pexbury for the purposes of Reg 5.19(3)(f)(i)(B).
As to the reasoning, the Tribunal first identified the three 12 month periods of Pexbury’s standard business sponsorship approval as (noting that at the hearing it was either accepted or “established” that the three periods were as follows): Year 1, 22 March 2013 to 21 March 2014; Year 2, 22 March 2014 to 21 March 2015; and Year 3, 22 March 2015 to 21 March 2016. The Tribunal then began to examine the application of training benchmark (B) from IMMI 13/030 to payroll expenditure for each of the three years. At this point in the Tribunal’s analysis, there is no attempt to identify, in the language of Reg 5.19(3)(f)(i)(A), any “commitments” required to have been “fulfilled” during the period of Pexbury’s most recent approval being the three years as described by the Tribunal. Nor is there a discussion by the Tribunal of the question of whether IMMI 12/062 applied for any part of Year 1 between 22 March 2013 and 30 June 2013 (being the period from the commencement of Year 1 to the end of the day prior to the commencement of IMMI 13/030) for the purposes of limb (A) of Reg 5.19(3)(f)(i). Rather, the Tribunal considers the question of whether the training benchmark derived from benchmark (B) in IMMI 13/030 applied across the three years of Pexbury’s most recent standard business sponsor approval. Benchmark (B) contemplated recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business.
In considering the application of that benchmark in each of the three years, the Tribunal configured the following schedule:
Subject
Year 1 (22/3/2013 to 21/3/2014)
Year 2 (22/3/2014 to 21/3/2015
Year 3 (22/3/2015 to 22/3/2016)
Aggregate
Payroll
$35,290.00
$61,363.00
$102,271.00
Nil
Benchmark (B) 1%
$353.00
$614.00
$1,023.00
$1,990.00
Training Expenditure
$613.00
Nil
$1,022.00
$1,635.00
At para 39, the Tribunal then examines the training receipts provided by Pexbury and notes these matters. A receipt was submitted dated 15 December 2012 from the Real Estate Academy in an amount of $600.00. The Tribunal notes that this amount falls outside any of the sponsorship years. A receipt was submitted dated March 2014 from “American College” in an amount of $613.00. A receipt was submitted dated 26 June 2015 from “Vector Institute Aust” (“Vector”) in an amount of $1,022.00 and a further receipt was submitted dated 20 May 2016 from Vector in an amount of $856.22. The Tribunal notes that this last receipt also falls outside any of the sponsorship years.
As to the receipt from American College, it was a letter from American College concerning a training receipt for $613.00 dated “March 2014”. The Tribunal notes that it might be understood as expenditure by Pexbury in either Year 1 or Year 2. The Tribunal observes that regardless of whichever year of attribution is adopted, it would necessarily mean that there was no expenditure in the other year of either Year 1 or Year 2. At para 40, the Tribunal again notes the two items of expenditure which fell outside the sponsorship years.
Having examined those matters, the Tribunal did not accept that Pexbury had, in each of the three years, expended the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business.
In conducting this analysis, the Tribunal does not separately turn to the question of whether Pexbury has “complied” with the “applicable obligations” arising under Div 2.19 of the Regulations for the purposes of Reg 5.19(3)(f)(i)(B).
Rather, the Tribunal has aggregated the segmented considerations under elements (A) and (B) of Reg 5.19(3)(f)(i) and asked itself whether Pexbury has complied with the elements of benchmark (B) in IMMI 13/030 in each of the three years.
The appellant contends that the Tribunal’s failure to properly recognise the analytical inquiry it needed to undertake by reference to an assessment of whether Pexbury had “fulfilled” “commitments” for the purposes of Reg 5.19(3)(f)(i)(A) and “complied” with “applicable obligations” for the purposes of Reg 5.19(3)(f)(i)(B) is an error of law giving rise to jurisdictional error.
The appellant also contends that because the nomination application was lodged on 5 July 2017, after the repeal of IMMI 13/030 and the commencement of IMMI 17/045 on 1 July 2017, IMMI 17/045 applied to the nomination and not IMMI 13/030.
The transitional provisions make clear that IMMI 17/045 only applies to nominations or standard business sponsor approval applications lodged after the commencement of the Instrument. It is true that Pexbury’s nomination application was lodged after the commencement of IMMI 17/045. However, having regard to the continuing operation of Reg 87B(2) of the Regulations and its reference to each of the 12 month periods looking back to Year 1 of Pexbury’s approval commencing on 22 March 2013 and the two 12 month periods commencing on the anniversary of the approval date during which IMMI 13/030 applied to determine the training benchmark requirements for those periods (in aggregate 22 March 2013 to 21 March 2016), it seems clear enough that from 1 July 2017, IMMI 17/045 applied to nomination applications which contemplated benchmark training expenditure on and after 1 July 2017.
IMMI 17/045 was not seeking to, in effect, go back in time and apply a new set of training benchmarks and definitional terms to the earlier periods.
IMMI 17/045 operates prospectively on prospective expenditures.
It seems to me that the Tribunal fell into error in this sense.
The Tribunal failed to recognise that IMMI 12/062 continued to operate from 22 March 2013 until 30 June 2013. The Tribunal ought to have applied the training benchmark recited in IMMI 12/062 for that period of slightly over three months. Thereafter, the training benchmark was benchmark (B) in IMMI 13/030.
The Tribunal did apply that benchmark to the expenditures in nine months of Year 1 and for the two following years (and also for the first three months of Year 1).
Although the Tribunal did not use the language of fulfilled commitments and compliance with applicable obligations, it nevertheless conducted an analysis which was designed to identify commitments and applicable obligations. It miscarried only for a period of three months by failing to apply IMMI 12/062 for the discrete period in Year 1. The failure to do so was an error.
To the extent that such error goes to jurisdiction and constitutes jurisdictional error, I am not satisfied that it is a material error.
Accordingly, I am not satisfied that the Tribunal fell into jurisdictional error in the conclusions it reached concerning Reg 5.19(3)(f)(i).
The next question concerns the Tribunal’s analysis of the alternative to Reg 5.19(3)(f)(i) which is the alternative in Reg 5.19(3)(f)(ii) that “it is reasonably to disregard subparagraph (i)” of Reg 5.19(3)(f).
The Tribunal concluded that it was not reasonable to disregard the failure to meet the training benchmark expenditures required to be met by Pexbury as earlier described. In analysing whether it is reasonable to disregard the requirements of Reg 5.19(3)(f)(i), the Tribunal analysed policy advice contained in a manual described as “Reasonable to Disregard”, and observed that manual cites two reasons for disregarding Reg 5.19(3)(f)(i). In the submissions of the appellant, Chand Lawyers, on 6 October 2019 made submissions that because Pexbury is a small business having a turnover of less than $1 million, it did not have the luxury of the services of a full‑time accountant and thus, it was reasonable to expect that such an entity would compile its financial accounts at the end of the financial year and thus, it was reasonable to put forward training receipts which fell outside the period of the sponsorship period such as the expenditure receipt from Vector on 20 May 2016 in an amount of $856.22.
The Tribunal observed that it did not accept such a contention.
The Tribunal observed that the legislation is clear in requiring training expenditure to be undertaken according to law. The Tribunal observed that the policy manual did not accommodate the possibility of disregarding Reg 5.19(3)(f)(i) on such a basis. At para 44, the Tribunal recognises that “different scenarios may provide examples of what a delegate may or may not consider ‘reasonable’, however, delegates should not apply regulation 5.19(3)(f)(ii) inflexibly, but must consider the merits of a particular case” [emphasis added]. Accordingly, it can be seen that the Tribunal was recognising that the facts of each case need to be considered and the merits of each case must be considered. The Tribunal concluded that Pexbury had failed to meet its training benchmark obligations and on the basis of the submissions put to it, it concluded that it would be “unreasonable to disregard the fact that the applicant does not meet r.5.19(3)(f)(i), and therefore the applicant does not meet r.5.19(3)(f)(ii)”.
Although it may be that minds might differ about aspects of that question, the reasons as given by the Tribunal plainly reveal an evident and intelligible justification for the finding: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ at [76]. There is no jurisdictional error on the part of the Tribunal in reaching that conclusion and there is no error on the part of the primary judge in concluding that no jurisdictional error was made out.
Accordingly, the appeal must be dismissed with an order that the appellant pay the costs of and incidental to the appeal.
I certify that the preceding one‑hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 7 June 2022
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