Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FedCFamC2G 223

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 223

File number(s):	CAG 57 of 2020
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	5 November 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – nomination of a position approval pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) – whether the AAT failed to make an obvious inquiry about a critical fact – whether any email from the AAT to the applicant was not properly transmitted – whether the AAT failed to properly apply and interpret reg 5.19(5) – whether jurisdictional error is made out – no jurisdictional error made out – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 348, 357A, 359, 359C, 363 Migration Regulations 1994 (Cth) reg 3.19, 5.19 Administrative Appeals Tribunal Act 1975 (Cth) ss 10A, 24PA
Cases cited:	Minister for Immigration and Citizenship v Li [2013] HCA 18 House v R (1936) 55 CLR 499 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Division:	Division 2 General Federal Law
Number of paragraphs:	32
Date of last submission/s:	22 October 2021
Date of hearing:	22 October 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Boccabella
Counsel for the First Respondent:	Mr Kaplan

Table of Corrections

Paragraph 29

Paragraph 31

Second sentence, words change ‘consent’ to ‘consist of’. Sentence three, words change ’there just economical and quick’ to ‘fair, just, economical and quick’.

Change ‘at the’ to ‘are of’.

ORDERS

CAG 57 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SINO-AUS MOTOR PTY LTD Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	5 NOVEMBER 2021

THE COURT ORDERS THAT:

The application is dismissed.
The matter is stood over to 9:30am 26 November 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

On 21 March 2017, the applicant applied for the approval of Ms Jing Jing (“the nominee”) for the position of Office Manager under reg 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).The nomination of the nominee was under the direct entry scheme pursuant to reg 5.19(4) of the Regulations.
On 5 December 2018, a delegate of the Minister (“the delegate”) rejected the approval of the nomination.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 17 November 2020, the Tribunal affirmed the delegate’s decision to refuse the nomination.
The applicant now seeks judicial review of the Tribunal’s decision.

THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

The Tribunal decision is relatively short. At paragraph 5 of its decision, the Tribunal notes that on 9 October 2020 it wrote to the applicant, care of its authorised recipient and representative, at the email address provided. The letter was issued pursuant to

s 359(2) of the Migration Act 1958 (Cth) (“the Act”), and invited the applicant to provide current information addressing the relevant criteria under reg 5.19(2) and

reg 5.19(4) of the Regulations by 23 October 2020.
As no response was received, the Tribunal noted that s 359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or to obtain the information invited to be provided by the applicant. The Tribunal further considered whether not it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act, however decided not to exercise its discretion to do so.
At paragraph 14 of its decision and onwards, the Tribunal considered the applicants claims and evidence. The Tribunal was satisfied that the requirements of

reg 5.19(4)(a)(i)-(ii) of the Regulations were met, along with reg 5.19(4)(a) of the Regulations.
At paragraph 26 of its decision and onwards, the Tribunal noted the information provided by the applicant to the Department, but determined that it had a number of queries under reg 5.19(4)(h) of the Regulations, including whether the applicant had a genuine need now to employ a paid employee to work in a specified position under the applicant’s direct control. As it could not be satisfied as to this issue, the Tribunal determined to affirm the decision under review.

GROUNDS OF JUDICIAL REVIEW

The grounds of judicial review relied upon are set out in the Initiating Application filed with the Court on 22 December 2020. They are as follows.
Ground One
The AAT failed to make an obvious inquiry about a critical fact i.e. whether the email to the applicant (referred to in paragraph 28 of the reasons) had actually been transmitted by the AAT to the applicant and as such the AAT failed to conduct a proper review.
Ground Two
Any email from the AAT to the applicant was not properly transmitted to the applicant which led to the AAT not conducting a proper review.
Ground Three
In the particular circumstances of this case, an obvious internet inquiry would have revealed that the applicant was a working and active business, and as such the AAT ought to have taken the step referred to in paragraph 31 of its reasons, the failure to do so meant the AAT did not conduct a proper review.
Ground Four
Not Pressed.
Ground Five
The decision of the second respondent was unreasonable.
Ground Six
The AAT did not otherwise conduct a proper review in accordance with the Migration Act.
Ground Seven
Not pressed.
Ground Eight
Not pressed.

CONSIDERATION

During the course of the preparation of submissions, the applicant’s case shifted ground considerably. Any contention that the letter was not lawfully transmitted and thus presumed to have been received by Mr Hourigan was abandoned. This followed evidence being tendered from, Mr Michael Codner, a Hosting Management Engineer employed by Macquarie Cloud Services. This Affidavit clearly showed the transmission of an email from the Tribunal to Mr Hourigan at the email address on record. Provided there has been ‘transmission’ of a document the applicant is presumed to have received it: (see; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 905).
It was accordingly agreed at the commencement of the hearing that, there was evidence before the Court that the letter of 9 October 2020 was properly ‘transmitted’ to the applicant’s authorised representative, but there was no evidence that it had been received.
Two broad attacks were then made on the Tribunal decision. In submissions dated 4 October 2021, Counsel for the applicant stated that grounds one, two, three, five, and six coalesced into one issue, that being that, the Tribunal did not conduct a review in accordance with the Act. The second, was that the letter itself was not a valid notice under s 359 of the Act.
The first attack centred on the Tribunal’s reasoning at [31] of the decision record. That paragraph reads as follows:
The Tribunal had a number of queries relating to the genuine need requirement that it wished to canvass with the applicant at a hearing. However, the Tribunal was not able to invite the applicant to a hearing as it did not respond to the s.359(2) invitation. The Tribunal has considered sending out a further general request letter; however, has decided not to do so as the Tribunal previously sent a request for information, to which the applicant failed to respond. Further, the applicant was represented, so has had the opportunity to receive professional advice relating to the requirements and the types of evidence that would be required to meet the criteria as per the Tribunal’s request, and the implications of not responding to the Tribunal’s invitation.
It was submitted that the discretion exercised by the Tribunal not to send out a further request for information miscarried, as the Tribunal member assumed a fact that was not correct. That being, Mr Hourigan had received the 9 October 2020 invitation letter and that a positive decision had been made not to respond to it. A significant consideration in the decision of the Tribunal to consider the matter on the information before it was the assumption, which Counsel for the applicant says is factually incorrect, that Mr Corrigan had received the 9 October 2021 letter and had advised the applicant in respect of the material sought. Had the Tribunal not referred to this factual error, then the decision to proceed in the way that it did, would be unremarkable.
Reliance was placed on s 357A(3) of the Act that states that the “Tribunal must act in a way that is fair and just’. This requirement is not just aspirational and should apply to the discretion contained in s 359C(1) of the Act which allows the Tribunal, as it did here, to make a decision without getting further information where there has been a failure to provide information or comment to a written invitation.
If the Court concludes that the applicant never received the professional advice that the Tribunal thought he had received, then the discretion exercised under

s 359C(1) of the Act miscarried. The error is one identified in House v R (1936) 55 CLR 499 at [55]. No proper review occurred under s 348 of the Act.
The applicant further complains that although the application was lodged with the Tribunal on 21 December 2018, nothing happened for almost 2 years until the

9 October 2020 email, when the request for further information was sent out. Reliance was placed on Minister for Immigration and Citizenship v Li [2013] HCA 18 at [100], where the following was said:
[100]… Thus, while it has been held that the MRT has no general duty to make inquiries [185], it has been accepted that "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review". The touchstone is reasonableness in the performance of the duty to review.
It was submitted that the failure to make an enquiry of the applicant or his representative in these circumstances was unreasonable and the review miscarried
On behalf of the respondents, it was submitted that the Tribunal having issued an invitation to provide comment or information, the Tribunal ‘may’ make a decision without taking any further action: (see; s 359C(1) of the Act”). Further, where

s 359C(1) of the Act applies, the Tribunal is under no duty to invite the applicant to appear before it to give evidence and present arguments.
In so far as it is asserted that the Tribunal should have made an enquiry or issued a further invitation to provide material, it was asserted that the reasons are unobjectionable and identify a rational basis for not issuing a further invitation. Nothing in the submissions of the applicant points to a decision that was unreasonable in that the Tribunal did not otherwise conduct a review in accordance with the Act. This is not a situation where the Tribunal had any information before it that the invitation had not been received. No “Bounce back” of the email was received by the Tribunal. The address that the email was sent to, was that of the applicant’s legal representative. The clear evidence is that the invitation was transmitted. It is not for the first respondent to have to explain why it is that Mr Hourigan says he did not receive the request.
The Court is satisfied that the email requesting the further information was properly ‘transmitted’ by the Tribunal in accordance with s 379A(5) of the Act on

9 October 2020 and by operation of s 379C(5) of the Act was taken to be received by the applicant at the end of the day on 9 October 2020.
In these circumstances it is hardly surprising that upon no response being received, the Tribunal determined to proceed on the basis of the information that was before it. The Court is not of the view, given the situation that the Tribunal found itself in, that there was a requirement for the Tribunal to exercise a discretion to issue a further letter or make an enquiry of the applicant’s representative. The Tribunal was entitled to assume the facts as it did. To find otherwise, that it was required to send out a further invitation to provide further information or make an enquiry of Mr Hourigan, would be to place a burden that is not clearly contemplated by the Act.
Even if the Court accepts that the Tribunal’s considerations involved a mistake of fact, that being the applicant’s representative had received the email is accepted, the Court does not see that its subsequent consideration of the matter based on the evidence that was before it of the applicant’s claims miscarried. The mistake of fact was not dispositive of the applicant’s claims: (see; Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51). This ground has no merit
The second ground agitated by Counsel for the applicant is that the 9 October 2020 letter was invalid. The applicant suggests that as the letter was signed off as follows:
Tanya I
For the Registrar
As it was not signed, the letter was not executed by “an officer of the Tribunal”. The Court does not accept this assertion. Firstly, evidence of a Delegation and Appointment pursuant to ss 10A(3) and 24PA of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) dated 30 June 2015 and signed by the Registrar, Ms Sian Leathem, was tendered in evidence.
That Instrument of Delegation at Schedule A appoints as “an officer of the Tribunal” the following persons:
Staff of the Administrative Appeals Tribunal
APS employees made available to the Tribunal, and
The Registrar and Deputy Registrar of the Supreme Court of Norfolk Island.
There is no evidence before the Court that Tanya I was not an employee of the Tribunal. Counsel for the applicant did not assert that. On the face of it, the Delegation is valid and the Court should not seek to go behind it. The presumption of regularity applies in respect of the Instrument of Delegation.
Counsel for the applicant asserted that pursuant to s 24PA of the AAT Act that the Registrar, in making the Delegation, could not possibly be satisfied in accordance with s 24PA(b) of the AAT Act that, all staff of the Tribunal were persons that had ‘appropriate experience and qualification’ to be appointed as an ‘Officer of the Tribunal.’ That would make a ‘Photocopy Clerk’ an ‘Officer of the Tribunal”. That could not possibly be correct. No evidence was before the Court as to what considerations were or were not undertaken by the Registrar before she signed the Instrument of Delegation. No evidence was before the Court as to the qualifications of Tanya I, the position she occupied and duties she undertook within the Tribunal. If the applicant seeks to attack the validity of the Instrument of Delegation, then the applicant bears the evidence of showing that the Instrument is invalid. There is no such evidence. The Court is thus bound to accept that the Instrument of Delegation is valid. Tanya I is therefore an Officer of the Tribunal and was authorised to send the letter of 9 October 2020.
In the Courts view, the letter is otherwise unremarkable. Counsel for the applicant’s submission that all notices under s 359 of the Act should not consist of template letters written by junior staff having no particular relevance to particular issues of contention simply cannot be accepted. To a large extent, Counsel’s arguments and submissions for the applicant can be broadly described as submissions of what has happened is unfair and not in accordance with the overall objectives of the Tribunal to provide a mechanism of review that is “fair, just, economical and quick”. It was further asserted that any interpretation of any provision of the Act should be done so in a manner that is generally beneficial to the review applicant.
These assertions have little substance. The objectives of the AAT Act are aspirational not freestanding and imposing requirements of other sections within the AAT Act or other Acts. Many of the provisions of the Migration Act operate in a manner that may be described as harsh. The objective provisions of the AAT Act cannot operate in such a manner as to override specific provisions of the Migration Act in relation to the powers and duties of the Tribunal in the manner in which it conducts reviews of migration decisions.

CONCLUSION

None of the grounds of judicial review are of merit.
Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated: 5 November 2021