Southland International Group Pty Ltd v Minister for Immigration

[2019] FCCA 2490

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOUTHLAND INTERNATIONAL GROUP PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2490

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employment nomination – nomination position found not to be “genuine” – various errors alleged – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359, 359A

Migration Regulations 1994 (Cth)

Cases cited:

Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091

Cui & Anor v Minister for Immigration & Anor [2019] FCCA 2492

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: SOUTHLAND INTERNATIONAL GROUP PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1974 of 2018

Judgment of: Judge Driver

Hearing date: 4 September 2019

Delivered at: Sydney

Delivered on: 4 September 2019

REPRESENTATION

Mr Y Cui appeared with leave for the Applicant

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: DLA Piper

ORDERS

1. Leave is granted for Mr Y Cui to appear for the applicant, pursuant to rule 9.04 of the Federal Circuit Court Rules 2001 (Cth).

2. The application filed on 16 July 2018 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,406.

4. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1974 of 2018

SOUTHLAND INTERNATIONAL GROUP PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Southland International Group Pty Ltd (Southland), seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 June 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to approve an employment nomination. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 9 April 2019. 

3. On 5 June 2016, Southland lodged an application to nominate Mr Yulong Cui in the position of Sales and Marketing Manager under the Temporary Work (Skilled) (Class UC) (Subclass 457) Visa programme.[1]  On 6 June 2016, Mr Cui applied for the visa, in reliance on that nomination application.[2]

   [1] Court Book (CB) 1-8

   [2] Court Book in related proceedings SYG1972/2018 (Cui CB) 1-13

4. On 29 July 2016, the Minister’s Department wrote to Southland and requested the provision of further information in support of their nomination application.[3]  A response was provided on 17 August 2016.[4]

   [3] CB 23-33

   [4] CB 34-80

5. On 6 October 2016, the delegate refused the nomination application.[5]  The delegate observed that the prescribed criteria for approval of a nomination were contained in regulation 2.72 of the Migration Regulations 1994 (Cth) (Regulations). One such criterion was that contained in regulation 2.72(10)(f), which provided that “the position associated with the nominated occupation is genuine”.[6]  The delegate observed that the nomination applicant (Southland) had declared that the nominee was Mr Cui, who was a principal of Southland, with the effect that the nominee was self-sponsoring.[7]  The delegate concluded that the nominated position existed solely to facilitate the stay of Mr Cui in Australia, rather than to fill a genuine vacancy or skill shortage, and thus concluded that the position associated with the nomination was not genuine.[8]

   [5] CB 81-90

   [6] see CB 87

   [7] CB 89

   [8] CB 89-90

6. On 6 October 2016, the Minister’s Department wrote to Mr Cui and indicated that his prospective employer, Southland, did not have an approved nomination for him (owing to the above decision by the delegate), and advised that Mr Cui’s application was unlikely to be successful.[9]  On 14 November 2016, the delegate refused to grant Mr Cui the visa.[10]  That was because clause 457.223(4)(a) of Schedule 2 to the Regulations required that Mr Cui be the subject of an approved nomination, which he was not (owing to the rejection of Southland’s application).[11]

   [9] Cui CB 98-100

   [10] Cui CB 102-109

   [11] Cui CB 107

7. On 24 October 2016, Southland sought review of the delegate’s decision by the Tribunal.[12]  On 5 November 2016, a range of material was provided by Southland to the Tribunal in support of its review application.[13]  Mr Cui sought review of the refusal decision in relation to him, on 2 December 2016.[14]

   [12] CB 91-112

   [13] CB 117-221

   [14] Cui CB 110-111

8. On 21 November 2017, the Tribunal wrote to Southland, pursuant to s.359 of the Migration Act 1958 (Cth) (Migration Act), seeking information that demonstrated that Southland met the requirements of regulation 2.72.[15]  A response was provided on 1 December 2017.[16]

   [15] CB 224-225

   [16] CB 228-253

9. On 24 April 2018, Mr Cui, on behalf of Southland, appeared before the Tribunal.  A hearing was also conducted, at the same time, in relation to the review of the delegate’s decision to refuse to grant Mr Cui the visa.[17]  On 11 May 2018, Southland’s migration agent and Mr Cui provided the Tribunal with further documents in relation to both review applications.[18]

   [17] CB 271-276; Cui CB 134-139

   [18] CB 280-358; Cui CB 144-222

10. On 15 June 2018, the Tribunal affirmed the decision not to approve Southland’s nomination application.[19] On 19 June 2018, the Tribunal wrote to Mr Cui pursuant to s.359A of the Migration Act, in relation to its refusal of Southland’s nomination application.[20]  No response to that letter was received.  On 6 July 2018, the Tribunal affirmed the delegate’s refusal of Mr Cui’s application for the visa.[21]

The Tribunal’s decision

[19] CB 362-375

[20] Cui CB 237-240

[21] Cui CB 244-248

Decision in relation to Southland

1. The Tribunal identified the issue on the review as whether Southland met the criteria for approval of its nomination, being those contained in regulation 2.72.[22]  The Tribunal referred to Southland’s claim that it ran the Orange Chinese Cultural Centre, which offered visitors cultural experiences, and also that it needed a Sales and Marketing Manager.  It also observed that the owner and director of Southland, Mr Cui, was its own nominee.[23] The Tribunal had regard to the position description provided to it, the various supporting documents and submissions provided, the duties and responsibilities of the proposed position, and Southland’s response to the s.359 invitation.[24]  The Tribunal also set out, in detail, the evidence given at the hearing (including by Mr Cui), as well as matters raised by the Tribunal and the responses given.[25]

   [22] CB 363 [7]

   [23] CB 363 [8]

   [24] CB 364-365 [9]-[16]

   [25] CB 365-368 [20]-[36]

2. The Tribunal was satisfied that Southland was an approved standard business sponsor, and thus satisfied regulation 2.72(4).[26]  The Tribunal then turned to whether regulation 2.72(10)(f), which required that the position associated with the nominated occupation was genuine.  The Tribunal was of the view that self-sponsorship did not of itself prohibit approval of the nomination.  However, the Tribunal held concerns about whether the position the business required was actually a Sales and Marketing Manager.[27]

   [26] CB 368 [38]

   [27] CB 369 [40]

3. The Tribunal formed the view that a Sales and Marketing Manager played a “strategic role in planning, organising, directing, controlling and coordinating the sales and marketing activities within a business”, and that the position holder did not ordinarily undertake those activities him or herself.[28]  The Tribunal considered the evidence before it as to the duties that the nominee would be performing, such as conducting Chinese tea ceremonies, calligraphy lessons, teaching martial arts, booking accommodation and flights, picking up tour groups, and helping out at the front desk.  The Tribunal was not satisfied that the nominated position’s actual duties “are consistent with those of a Sales and Marketing Manager”.[29]  The Tribunal was, further, of the view that given the nature of Southland’s business (at the time of its decision), Southland needed the nominee to undertake duties and tasks that were not consistent with those of a Sales and Marketing Manager.[30]  The Tribunal thus concluded that it was “not satisfied the bulk of the duties of the position are, in the main, those of a Sales and Marketing Manager.  The Tribunal is not satisfied the position the business needs is that of a Sales and Marketing Manager.  Accordingly, the Tribunal is not satisfied the position associated with the nominated occupation is genuine”.[31]  The Tribunal accordingly found that regulation 2.72(10)(f) was not met, and that Southland thus did not satisfy the criteria necessary for the nomination to be approved.[32]

   [28] CB 369 [42]

   [29] CB 369 -370 [43]-[44]

   [30] CB [46]

   [31] CB 370 [47]

   [32] CB 370 [50]

The present proceedings

1. These proceedings began with a show cause application filed on 16 July 2018.  Southland now relies upon an amended application filed on 26 November 2018.  The grounds in that application are:

   1.The decision of the Tribunal was affected by jurisdictional error and failed to complete the exercise of its jurisdiction.

   2.The Tribunal relied on a version of the ANZSCO which did not exist at the time of application nor the delegate’s decision (made on 6 October 2016).

   3.The Tribunal relied on the position description in the ANZSCO without proper regard to all potentially relevant tasks which are applicable to the nominated position and relied upon a version of the ANZSCO which did not apply at the time of the application nor the delegate’s decision (made on 6 October 2016).

   4.The Tribunal applied inapplicable law including IMMI 17/060 which did not apply at the time of the delegate’s decision nor the Tribunal’s decision.

   5.The Tribunal was tainted by apprehended bias including that it prejudged the materials before it and their effect and referred incorrectly to the status of the nominee as being a director of the applicant.

   6.The Tribunal failed to consider the applicant’s case in the context of all the information and evidence before it.

   7.The Tribunal failed to properly interpret and apply Reg 2.72 of the Migration Regulations 1994.

   8.The Tribunal’s decision was tainted by “serious irrationality”.

   9.The Tribunal failed to take relevant considerations into account

   10.The Tribunal took irrelevant considerations into account.

   11.The Tribunal’s decision was otherwise unlawful.

2. The only evidence I have before me is the court book lodged on 10 September 2018 and filed on 12 September. 

3. This matter came before me for a show cause hearing on 16 April 2019.  Also listed at that time was another application by Mr Cui as the nominated employee.[33]  It was apparent that the proceedings are related.  The company proceedings concern the rejection of the nomination application, whereas Mr Cui’s proceedings concern the decision not to grant him a temporary business entry visa.  Having heard Mr Cui on both matters, I decided to dispense with the need for a show cause hearing and to list both matters today for a final hearing.  I gave Southland the opportunity to file an amended application and evidence, which it has not taken up.

   [33] Proceedings SYG1972/2018; Cui & Anor v Minister for Immigration & Anor [2019] FCCA 2492

4. Both at the show cause hearing and again today, Mr Cui made eloquent submissions in the English language concerning his business.  He is developing what appears to be a successful business based at Orange in the tourism sector.  Mr Cui provides services to Chinese tourists visiting the region and also engages with the local community in a successful cultural exchange program. 

5. Mr Cui explained at some length the detail of his activities, and he impressed me as being both an honest and a successful businessman.  All of that might have some bearing on the merits of the Tribunal decision, although there may also be a question whether Southland and Mr Cui were pursuing the best available visa avenue.  It may also be that the Minister, if apprised of all the circumstances, might take a more favourable attitude to Mr Cui and Southland than the Tribunal did.  Those are all matters beyond the scope of this proceeding.

6. Mr Cui’s oral submissions did not address the grounds advanced.  Those grounds are dealt with perfectly adequately in the Minister’s submissions.  I agree with those submissions.

7. As a preliminary matter, I noted that Southland is no longer represented by a solicitor in this proceeding.  I granted leave for Mr Cui to represent Southland.

Consideration

Ground 1

1. This ground alleges that the Tribunal’s decision “was affected by jurisdictional error and failed to complete the exercise of its jurisdiction”.  However, no particulars or further explanation is given and, without more, the ground cannot succeed.

Ground 2

1. This ground alleges that the “Tribunal relied on a version of the ANZSCO which did not exist at the time of application nor the delegate’s decision”.  Again, no particulars or other explanation of the ground is given.  Southland has adduced no evidence to make good, and has not otherwise explained the basis of, its claim that the “version of the ANZSCO” relied on by the Tribunal “did not exist at the time of application nor the delegate’s decision”.  In any event, whether that version of ANZSCO did or did not exist at the time of the nomination application or delegate’s decision is immaterial, as the Tribunal was required to assess whether regulation 2.72(10)(f) was satisfied at the time of its decision.  Southland does not suggest that the ANZSCO relied on by the Tribunal “did not exist” at the time of its decision.

Ground 3

1. This ground alleges that the Tribunal relied upon the position description in the ANZSCO “without proper regard to all potentially relevant tasks” which are applicable to the nominated position.  Again, no particulars or other substantiation of the ground are given.  Properly construed, this ground rises no higher than an invitation for this Court to engage in impermissible merits review.  It is apparent that the Tribunal did have “regard” to the tasks potentially relevant to the nominated position.[34]  The suggestion that the Tribunal did not have “proper” regard is no more than an expression of factual disagreement by Southland with the Tribunal’s findings.

   [34] see especially [43]-[45] of its reasons

2. Also, insofar as this ground again seems to allege that the Tribunal applied the wrong version of ANZSCO, no evidence has been adduced to make good that proposition (see Ground 2, above).

Ground 4

1. This ground alleges that the Tribunal applied “inapplicable law”, including IMMI 17/060, which “did not apply” at the time of the Tribunal’s decision.  However, IMMI 17/060 was made on 28 June 2017 and commenced operation on 1 July 2017.[35]  It is further expressed, at Item 9, Part 3 of the Instrument, to apply to nominations made and not finally determined before 1 July 2017 (being the present case).  As such, the Instrument was in force and was applicable at the time of the Tribunal’s decision. No error is established.

   [35] see Item 2, Part 1, to that Instrument

Ground 5

1. This ground alleges that the Tribunal was “tainted by apprehended bias”.  The Tribunal is said to have “prejudged” the materials, but it is not explained how that is so.  Nothing in the Tribunal’s reasons suggests prejudgement of any matter by it.  It also appears to be suggested that an apprehension of “bias” is shown by the Tribunal referring to Mr Cui as a “Director” of Southland, but it is unclear how such a description alone could possible lead to a fair-minded lay observer reasonably apprehending that the Tribunal might not have brought an impartial mind to its decision.[36]

   [36] cf. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]

Ground 6

1. This ground alleges that the Tribunal “failed to consider [Southland’s] case in the context of all the information and evidence before it”. Again, no particulars or other elucidation of the ground are provided.  In its present form, this ground appears to rise no higher than an expression of Southland’s factual disagreement with the Tribunal’s findings, thereby inviting impermissible merits review.  No jurisdictional error is shown.

Ground 7

1. This ground alleges that the Tribunal failed to properly “interpret and apply Reg 2.72” of the Regulations.  Again, no particulars are provided and this ground also appears to be no more than an expression of Southland’s disagreement with the Tribunal’s findings.

2. In relation to regulation 2.72(10)(f), Judge Smith held, in Cargo First Pty Ltd v Minister for Immigration & Anor[37] at [30] that “what is required…is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be.  The second part of that determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor”.

   [37] [2015] FCCA 2091

3. Fairly read, the Tribunal’s reasons show that it undertook this task.  The Tribunal was satisfied that the position was not “what it purported to be” in that, despite the title the nominated position had, the Tribunal was not satisfied that the bulk of the duties were those of a Sales and Marketing Manager.[38]  No misunderstanding, or misapplication, or regulation 2.72(10)(f) is shown.

   [38] see eg. [42]-[46] of its reasons

Ground 8

1. This ground alleges that the Tribunal’s decision “was tainted by ‘serious irrationality’”. Again, no particulars are provided.  It appears that the allegation of irrationality is merely an expression of Southland’s disagreement with the Tribunal’s decision.  However, disagreement, even emphatic disagreement, with the Tribunal’s findings does not establish irrationality or jurisdictional error.[39]

   [39] see eg. Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] per Crennan and Bell JJ

Grounds 9 and 10

1. These grounds allege that the Tribunal failed to take into account relevant considerations and also took into account irrelevant considerations.  No particulars are provided and the ground is, in the circumstances, meaningless and cannot succeed.

Ground 11

1. This ground alleges that the Tribunal’s decision was “unlawful”. In the absence of particulars, this ground is also meaningless and cannot succeed.

Conclusion

1. I conclude that Southland is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  It follows that the decision is a privative clause decision, and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale as it formerly applied.  Southland did not wish to be heard on costs.

3. I will in addition order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, in accordance with the Court scale, in the sum of $7,406.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:         6 September 2019