Siddiqui v Minister for Immigration

[2005] FMCA 1603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIDDIQUI & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1603

MIGRATION – MRT decision – refusal to approve employment sponsor – no demonstrated commitment towards training – Tribunal’s reference to policy – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8
Migration Regulations 1994 (Cth), regs.1.20D, 1.20D(2)(c), 1.20D(2)(c)(i), 1.20D(2)(c)(ii), 1.20D(2)(f)

Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112
Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87

First Applicant: MOHAMMAD HAMID SIDDIQUI

Second Applicant: HUMA SIDDIQUI

Third Applicant: HARINA SIDDIQUI

Fourth Applicant: HUNAIZA SIDDIQUI

Fifth Applicant: HAZA SIDDIQUI

Sixth Applicant: MOHAMMAD HARIS SIDDIQUI

Seventh Applicant: WODEN NEW & USED FURNITURE PTY LTD (ACN 099 863 671)

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG3396 of 2004

Judgment of: Smith FM

Hearing date: 24 October 2005

Delivered at: Sydney

Delivered on: 24 October 2005

REPRESENTATION

Counsel for the Applicants: Mr B Zipser

Solicitors for the Applicants: Buttar Caldwell & Co

Counsel for the First Respondent: Mr R Beech‑Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Woden New & Used Furniture Pty Ltd (ACN 099 863 671) is included as seventh applicant. 

2. The application is dismissed. 

3. The first, second and seventh applicants must pay the first respondent’s costs in the sum of $5,700. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3396 of 2004

MOHAMMAD HAMID SIDDIQUI

First Applicant

HUMA SIDDIQUI

Second Applicant

HARINA SIDDIQUI

Third Applicant

HUNAIZA SIDDIQUI

Fourth Applicant

HAZA SIDDIQUI

Fifth Applicant

MOHAMMAD HARIS SIDDIQUI

Sixth Applicant

WODEN NEW & USED FURNITURE PTY LTD (ACN 099 863 671)

Seventh Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 5 November 2004. The Tribunal affirmed a decision of a delegate made on 26 May 2003. After resolving some doubts, the Tribunal identified the decision under review as a decision made under reg.1.20D of the Migration Regulations 1994 (Cth) (“the Regulations”) to reject an application for approval as a standard business sponsor which had been made on 28 March 2002 by a company, Woden New & Used Furniture Pty Limited (“the company”). 

2. The application filed in the Court by the applicants’ previous solicitor did not include the company as an applicant.  However, at the start of the hearing today I raised a concern that it was a necessary party (see Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 at [13]‑[15]). Counsel for the applicants then applied for the joinder of the company, and by consent I joined it as seventh applicant.

3. The other applicants are a businessman and his family members, who are the substantial owners of the company.  Although the Tribunal identified the company as the review applicant in the matter which it decided, the application for review to the Tribunal was brought in the name of the first applicant.  The Tribunal treated him as the agent of the company with authority to speak on its behalf in the course of the proceedings.  

4. The first applicant was required to obtain the approval of the Minister of a sponsoring employer as a condition of obtaining visas under subclass 457 for himself and his family. The evidence before me is unclear as to when he made a visa application for that subclass, and as to its current position. It is my impression from documents in the Court Book that he made his application before the present employer sponsorship approval application was made, and that this was made as a result of the unavailability of an employer originally propounded. Although the Regulations have changed in more recent times to require approval of the same sponsor as was originally proposed, I assume that this was not required in relation to the visa applications of the present first applicant and his family.

5. The first applicant and his family have been present in Australia at least since 2002.  At the commencement of today’s hearing, counsel for the applicants sought an adjournment to allow the first applicant to identify yet another potential sponsor for his employment.  I refused the adjournment application on the basis that there was insufficient evidence before me to show the status of any current visa applications and the relevance of the proposed adjournment to the present proceedings.  From what was said from the bar table, it appeared to me that an adjournment could not affect the validity of the Tribunal decision, which was the subject matter of the present proceeding, but appeared designed to obtain a hypothetical collateral advantage from the continuance of the proceedings.  The present application had been filed on 19 November 2004, and was set down on 2 December 2004 for final hearing today.  I considered that any further delay in the matter was unjustified, and refused the adjournment application.  I then heard full argument from both counsel.  

6. Under s.483A the Court has “the same jurisdiction as the Federal Court in relation to a matter rising under this Act”. That jurisdiction gives the Court powers under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Pt.8 of the Migration Act in relation to the present decision of the Tribunal. The limitations have the effect that I cannot set aside the Tribunal decision and remit the matter to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not myself have power to decide whether the seventh applicant qualified for approval under reg.1.20D, nor whether the first applicant and his family qualified for visas of any class.

7. Under reg.1.20D as it stood at the relevant time, an applicant employer had to satisfy several criteria, and it is unnecessary for me to set them all out. They included satisfaction as to the employer’s financial position, and relevant to the present decision of the Tribunal, the criteria set out in reg.1.20D(2)(c):

   (2)The Minister must approve an application for approval as a pre‑qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if:  

   … 

   (c)the Minister is satisfied that the applicant for approval:  

   (i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or

   (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia;

8. The seventh applicant’s application which proposed the employment of the first applicant provided some financial information and a business plan, in which the company proposed that the first applicant would be the general manager of its business involving a new and used furniture retail business to be conducted from premises in Canberra.  

9. The application for sponsor approval was originally refused by a delegate on 24 April 2002 on the ground that the delegate was not satisfied that the applicant company could meet its obligations under reg.1.20D(2)(f), which required an assessment of its ability to comply with undertakings in relation to the future viability and conduct of the business.

10. That delegate’s decision was set aside by the Tribunal in a decision made on 16 April 2003.  The Tribunal on that occasion seems to have been swayed by sympathy for the first applicant and his company, arising from the destruction of the company’s leased premises and its stock in a fire which occurred on 19 December 2002 after the delegate’s decision.  It is not necessary for me to analyse the reasoning of the first Tribunal.  It remitted the matter to the Minister for further consideration.  Its conclusion was: 

    In the circumstances the Tribunal considers the appropriate course of action is to set aside the Department’s decision and substitute a decision that the applicant meets the requirements of paragraph 1.20D(2)(f).  The Tribunal is not in a position to make findings on other criteria to be met by the review applicant under regulation 1.20D, which remain for consideration by the Department.  

11. On the reconsideration, a delegate addressed the evidence which had been previously gathered and fresh evidence. In particular, he addressed whether he was satisfied in relation to either of the alternative criteria in reg.1.20D(2)(c). The delegate identified the following relevant evidence in the documents which had been presented by the company:

    New or improved technology or business skills 

    There is no information before me to demonstrate that the applicant has introduced to, or utilised or created in, Australia new or improved technology or business skills or will do so in the future.  Therefore I find that Woden New and Used Furniture does not satisfy the requirements of Migration Regulation 1.20D(2)(c)(i). 

    Training record or demonstrated commitment to training 

    Under regulation 1.20D(2)(c)(ii) the Minister must be satisfied that the applicant for approval has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia. 

    At question 17 on form 1067 (Folio 26) regarding details of Australian graduates, registered apprentices, registered trainees or other trainees, the applicant did not supply an answer. 

    At question 18 on form 1067 (Folio 26) with regards to expenditure on informal or formal training, the applicant did not supply an answer. 

    At question 20 on form 1067 (Folio 26) with regards to the question “Do you participate in industry training advisory bodies, co‑operative education and training programs, or liaise with training institutions on curriculum development, career development?”, the applicant indicated “No”. 

    In answer to question 21 “What are your business’ future training plans in respect of your Australian employees?”, the applicant stated “See Attachment”. 

    The only statement addressing training is indicated in the Business Plan prepared by Manv Accountants Pty Ltd which states under TRAINING OF STAFF “Train staff in the sales and management of the business.  Send new sales staff for training courses”.  (Delegate’s emphasis). 

    In the Business Plan it stated that “by the end of 2002 the company would employ 4 additional full time staff in its assembly operations”.  (Folio 12).  The applicant also indicated that he was installing an electronic POS system and a staff training program to support this new system has already commenced.  (Folio 11).  However, at interview on 17/4/02 the previous partner Mr Hossein, in applicant’s presence, stated that the applicant did not have an assembly factory nor did he employ staff.  (Folio 59). 

    No other information has been provided to satisfy me that the applicant has a satisfactory record of, or a demonstrated commitment towards, training Australian employees.  Woden New and Used Furnitures employs no recent Australian graduate, registered apprentices or registered trainees. 

    Furthermore, Woden New and Used Furnitures has not provided any evidence of participation in formal training, industry training bodies or co‑operative education.  There is no confirmation of expenditure on staff training or future training plans.  Other than the general statement regarding training, I find Woden New and Used Furnitures has made no other claims nor supplied any other documents that demonstrate it has or will take part in training any Australian employees. 

    Given the above information, I am not satisfied that the applicant has a satisfactory training record or a demonstrated commitment to training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia.  I am not satisfied that the requirements of Migration Regulation 1.20D(2)(c)(ii) are met. 

12. I consider that this passage contains an accurate summary of the information relevant to these criteria which had been presented in support of the sponsorship approval. 

13. On appeal, the Tribunal as presently constituted received all the material which was before the delegates, as well as the evidence obtained by the first Tribunal at its hearing, which had occurred on 24 March 2003.  A summary of evidence given by the first applicant is in the reasons for decision of the first Tribunal, and includes:  

    20.        Evidence was provided of an insurance policy with NRMA to the value of $80,000 for contents and $240,000 for shortage in turnover.  He confirmed that the value of turnover would be reduced by the insurance company.  The claim was still being assessed at the time of hearing, but the insurance company had indicated that, while the value of turnover would be reduced, the contents seemed to be accepted and the claim was expected to be settled shortly.  A police investigation into the fire had been conducted but no further action seemed likely.  A copy of the police report was provided. 

    21.        At hearing, Mr Siddiqui gave evidence that he had lived in Hong Kong since the age of seven.  He was partner in a company there with his brother, which does business in China and Japan, and from which he had access to funds.  He produced evidence of private health insurance.  He claimed that he had plans to take on additional staff but had not yet done so at the time of the fire.  He claimed he retained plans to establish a plant to assemble imported furniture.  This had been proposed previously but had not been possible because of the funds he had lost in ACT Trade World. 

14. The present Tribunal referred to further material and statements given by the visa applicant at a hearing conducted by it on 31 May 2004:  

    Is the applicant for approval actively and lawfully operating in Australia? 

    17.        A current search of the Australian Securities and Investment Commission (ASIC) database reveals that the review applicant was registered as an Australian Proprietary Company, limited by shares, on 11 March 2002 and remains registered to date. 

    18.        As evidence of active operation, the review applicant provided a BAS statement for the January to March 2002 quarter, which listed total sales of $39,055.  Updated financial information has been received by the Tribunal (T1, ff. 230‑233).  However, the Tribunal has received information from the review applicant that the business premises were destroyed by fire, as evidenced by a Police Incident Report.  The police report indicated that the fire was treated as suspicious, but that no evidence of burglary or identification of persons responsible was found.  At the hearing the review applicant spokesperson, Mr Mohammad Siddiqui, was asked whether he was actively operating his business.  He said he was not – there was no business activity – and he was awaiting the outcome of a police inquest and report due on 27 July 2004. 

    19.        The Tribunal finds that the review applicant firm was previously actively operating but is in a hiatus caused by the fire which destroyed the premises. 

15. The Tribunal then reasoned in relation to the criteria in reg.1.20D(2)(c):

    Will the applicant for approval 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? 

    24.        The review applicant has not made any claims against introducing, utilising or creating new or improved technology or business skills.  In the application form (Form 1067) the review applicant indicated it has 1 employee who is a temporary business entrant, (Mr Siddiqui, the review applicant spokesperson).  It is policy that start‑up businesses will be unable to evidence a training record.  Therefore, a “demonstrated commitment” can be evidenced by a detailed training plan specifying the proposed number of persons (ie permanent employees) to be trained and the nature and duration of training to be offered.  In other words, the training plan should be sufficiently detailed or “quantifiable” to enable an evaluation of progress to be made in the course of business sponsorship monitoring as appropriate.  In the Business Plan, the review applicant stated the training strategy was to “Train staff in the sales and management of the business.  Send new sales staff for training courses”.  This is not adequate as a training commitment which requires greater elaboration.  When asked in the hearing about his training strategy the review applicant spokesperson said he did not have a chance to do anything about it – presumably due to the impact of the fire.  The firm is no longer in the start up category. 

    25.        The Tribunal does not regard the statements of the review applicant spokesperson and previously supplied statements on behalf of the review applicant firm as satisfactory evidence of satisfying the criterion when looked at on balance.  The Tribunal finds the review applicant does not meet the criterion as to introducing, utilising or creating new or improved technology or business skills, or, alternatively, for approval based on a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents. 

    … 

    32.        The Tribunal finds that the review applicant does not meet the criteria for approval as a business sponsor – specifically paragraph 1.20D(2)(c).  The Tribunal must, therefore, affirm the decision under review. 

16. The Tribunal also referred to other aspects of the Regulation, but it is unnecessary for me to refer to these parts of its reasons. 

17. The applicants’ counsel today relied on grounds for review which appear in an amended application, which I gave leave to be filed today:  

    1.Reg 1.20D(2)(c) provides as a criteria for approval as a business sponsor that the Minister is satisfied that the applicant for approval “has a satisfactory record of, or demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia”. The Tribunal found that the applicant did not meet this criterion. The Tribunal fell into jurisdictional error in making this finding for the following reasons:

    a)The Tribunal relied on “policy” (CB 272.3) without considering the merits of the case. 

    b)There was evidence before the Tribunal that Woden had made a claim on its insurance policy in relation to the fire (see for example CB 261.2).  Once Woden received a payout on the claim, it would be able to commence training Australian citizens and permanent residents.  The Tribunal failed to take this point into account, giving rise to jurisdictional error. 

18. In effect, this gave rise to two grounds.  Counsel for the applicant argued that in [24] and [25] of its reasons (extracted above), the Tribunal revealed that it had not properly performed its review function by applying the criteria found in the relevant regulation to the evidence that was before it, but had been blinkered, in effect, by its reference to departmental policy or guidelines in relation to decision‑making.  He relied upon a passage from Hill J in Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87 at 98:

    There can be no challenge to a decision merely because a decision was made in accordance with a policy.  To ensure consistency of administrative decision‑making, it will often be appropriate for a policy to be issued containing guidelines.  The policy of the Minister, to which I have referred, is one such example.  However, a decision‑maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case.  As Gummow J said in Khan’s case (supra: Khan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 11 December 1987) (pp 11‑12):  

    “ ... what was required of the decision‑maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... ”  

1. Although the terms of any departmental policy were not in evidence before me, counsel referred me to the general statements by the Tribunal concerning the role of policy and guidelines at the commencement of its reasons:  

   4. In conducting a review, the Tribunal is bound by the Migration Act 1958 (the Act), the various Regulations made under the Act, and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

   5.          The Tribunal has the power to affirm a decision to refuse to approve a business sponsorship, or to set the decision aside and substitute another decision. 

   6. Regulation 1.20D contains the criteria for approving a person as a business sponsor, and there are guidelines set out in PAM3. The Tribunal generally has regard to the Regulations as they stood at the time of lodgement of an application for approval. However, subsequent amendments may apply in some circumstances.

2. Counsel for the applicant did not argue that the general propositions made in those paragraphs revealed any error of law or misapprehension of the Tribunal’s duties on a review.  

3. As I understood his argument, he invited me to conclude that in [24] of its reasons the Tribunal identified a departmental guideline concerning the concept of “demonstrated commitment towards training Australian citizens and permanent residents” which required evidence of “a detailed training plan” before a satisfaction as to that criterion could be arrived at. He argued that this was inconsistent with reg.1.20D(2)(c)(ii), because it restricted the evidence which a decision‑maker could address so as, in effect, to create a more restrictive criterion. He then sought to persuade me that the Tribunal’s reasoning had applied the policy’s confining view as to what evidence was necessary, when deciding the matter before it.

4. I do not accept these contentions.  I have an initial difficulty with them due to the absence of evidence as to any actually promulgated policy.  The Tribunal’s reference to “it is policy” in [24] does not provide me with a sufficient indication that the Tribunal has indeed identified a clear guideline to the effect argued, and to which it gave the status of a “policy” such as it described in [4] of its reasons. 

5. Moreover, the “policy” considerations referred to by the Tribunal, which counsel for the applicant sought to identify as having been derived from departmental guidelines, are not expressed by it in confining language.  Rather, they are propositions which can validly be made in the course of seeking to understand and apply the statutory criterion. 

6. For example: “start‑up businesses will be unable to evidence a training record” appears to me to be an obvious effect of the language of the criterion.  The statement, if it be derived from a policy, that “a demonstrated commitment can be evidenced by a detailed training plan … ” does not in its own language restrict the evidence which can be relevantly considered, nor does the reference in the following sentence to “the training plan should be sufficiently detailed or quantifiable … ”.  I therefore do not accept that any “policy” referred to by the Tribunal had an impermissible restrictive or confining effect. 

7. Moreover, even if such a policy existed I am not satisfied that this Tribunal has treated it as confining its consideration of the evidence before it.  I understand from the Tribunal’s discussion at the end of [24] and at the start of [25], that it has relevantly addressed the references to training plans in the company’s business plan, which I have identified above from the decision of the delegate.  The Tribunal has made valid comments about the inadequacy of that plan.  But then significantly, it has indicated that it asked the first applicant “about his training strategy” at its most recent hearing, and referred to his response that “he did not have a chance to do anything about it”.  It was open to the Tribunal to understand this as a denial of any current training strategy. 

8. In this context, I accept the submission of counsel for the Minister that the Tribunal’s opening reference at [25], that “the statements of the review applicant spokesperson” were not “satisfactory evidence of satisfying the criterion when looked at on balance”, is a reference back to the visa applicant’s own evidence in response to questions directly seeking to test his commitment in relation to training.  In my opinion, therefore, the Tribunal has shown in its own reasoning that it has not treated the existence of “a detailed training plan” as exhaustive of its considerations, nor as exclusive of other evidence which might have a bearing on a decision on whether the company had a commitment towards training.  I therefore do not accept the ground of review that the Tribunal improperly applied departmental policy or guidelines.  

9. The second ground argued by counsel for the applicant, which appears as particular b) extracted above, sought to persuade me as to a matter which, in my opinion, was plainly no more than an issue of evidence and assessment of evidence by the Tribunal.  If there was evidence as described in the particular, then a failure by the Tribunal to refer to it would have amounted to no more than a failure of factual assessment, and would not have revealed a failure by the Tribunal to exercise its jurisdiction. 

10. Moreover, I am not persuaded that the Tribunal did not take into account relevant evidence.  The evidence to which I was referred by counsel concerning the applicant company’s insurance claim and its settlement included the passages which I have already set out above.  The evidence indicated no more than that there was still outstanding in May 2004 an insurance claim which had been made after the December 2002 fire.  Investigations into the fire had not concluded and nor had the insurance claim.  There was a suggestion that the insurance company might make a payment towards part of the cover, but counsel for the applicant did not take me to any evidence which would have allowed the Tribunal to form conclusions as to the likely quantum or timing of any pay‑out.  Nor did he take me to evidence of any planned use of any such proceeds of an insurance claim, in particular, towards meeting training commitments or plans. 

11. In those circumstances, it is difficult to see how the “point” referred to in this ground of review could have been given much factual weight by any Tribunal addressing this criterion.  Given the weaknesses in the evidence on the “point”, I would not draw inferences from the absence of discussion of it in the Tribunal’s reasoning and would not conclude that it overlooked the evidence.  

12. Moreover, as counsel for the Minister pointed out, the Tribunal’s reasons for not being satisfied as to the training criterion were not based on any financial considerations, but were significantly based on evidence indicating the absence on the part of the visa applicant and his company of any current business plans and in particular any current “training strategy”.  The Tribunal therefore did not need to speculate about the possible application of insurance proceeds towards training, before arriving at its conclusion.  I therefore do not consider that this ground of review is made out either.  

13. For the above reasons I have been unable to find jurisdictional error affecting the Tribunal’s decision. It therefore is a privative clause decision and relief in relation to it is barred by s.474(1). I must dismiss the application.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  9 November 2005