Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 751
•9 JUNE 2005
FEDERAL COURT OF AUSTRALIA
Tide Sequence Industries Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 751
MIGRATION – application for approval as standard business sponsor – Tribunal not satisfied that business able to comply with Reg 1.20D(2)(f) – undertaking as to Australian industrial relations laws and Australian levels of remuneration and conditions of employment not fulfilled – no duty of Minister to enquire in particular circumstances
Migration Act 1958 (Cth) ss 359, 359A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Migration Regulations 1994 (Cth) 1.20C, 1.20D(2)(b), (f), 1.20G, Schedule 2Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 995 affirmed
Craig v South Australia (1995) 184 CLR 163 cited
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 discussed
Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 distinguished
Suttor v Gundowda (1950) 81 CLR 418 at 438 cited
H v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 63 ALD 43 cited
Lace Holdings Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 117 FCR 79 discussedBromley London Borough City Council v Greater London Council [1983] 1 AC 768 cited
TIDE SEQUENCE INDUSTRIES PTY LTD AND MENG QIN ZHU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL
NSD 123 of 2005
CONTI J
9 JUNE 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 123 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TIDE SEQUENCE INDUSTRIES PTY LTD
FIRST APPELLANTMENG QIN ZHU
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
9 JUNE 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant to pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 123 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TIDE SEQUENCE INDUSTRIES PTY LTD
FIRST APPELLANTMENG QIN ZHU
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
CONTI J
DATE:
9 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an appeal from the judgment of a Federal Magistrate delivered on 12 January 2005, which dismissed the appellants’ applications for review of two separate decisions of the Migration Review Tribunal (‘the Tribunal’) made respectively on 28 April 2004 and 16 June 2004. The first appellant, Tide Sequence Industries Pty Ltd (‘Tide’), sought review of the Tribunal’s decision made on 28 April 2004 to refuse its application for approval as a business sponsor in relation to its employment of the second appellant, Meng Qin Zhu (‘Mrs Zhu’), a citizen of the People’s Republic of China. Mrs Zhu sought review of the Tribunal’s separate decision to reject her application for a Temporary Business Entry (Class UC) visa. The appeal was heard by myself sitting alone with the prior approval of the Chief Justice.
Mrs Zhu first entered Australia on a Business (Short Stay) visa on 16 November 1996. There followed a succession of other business related visas granted to the applicant, her husband and son, the last of which expired on 6 January 2003. In the meantime, Mrs Zhu had applied for a Temporary Business Entry (Class UC) Sub-Class 457 visa for herself and related visas for her spouse and her child, on the basis that she would be employed by Tide as a manager of the employer’s so-called Department of International Trade for a period exceeding three months. The delegate refused her application on the ground that she had not been nominated by an employer who was an approved business sponsor for an activity that was the subject of an approved business nomination. This refusal followed upon another delegate’s rejection of Tide’s application for approval as a business sponsor for non-compliance with Reg 1.20D(2)(c) of the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal affirmed the delegate’s decision to reject Mrs Zhu’s visa application after the Tribunal, differently constituted, affirmed the other delegate’s decision to reject Tide’s application for approval as a business sponsor. Since the Tribunal’s affirmation of the delegate’s refusal of Mrs Zhu’s visa application was grounded on the failure of Tide to obtain approval as a business sponsor, and because both Tide and Mrs Zhu had the same legal representation, the Federal Magistrate heard the two applications for review of those decisions concurrently. Counsel for the appellants conceded that the success of Mrs Zhu’s appeal from the Federal Magistrate’s judgment depended on that of Tide’s appeal, and for this reason the issue on the appeal related in essence to Tide’s unsuccessful application for approval as a business sponsor.
The Tribunal decision of 28 April 2004 and the alleged errors in its reasoning articulated by the applicants
Tide was represented at its hearing before the Tribunal by a solicitor who was also qualified as a registered migration agent. Tide claimed to operate the business of a clothing manufacturer, and as evidence of its active operations in Australia, produced unsigned copies of Tide’s 2000 and 2002 company tax returns, and business activity statements for the quarterly periods between April 2001 and June 2002, and also for the period October to December 2002. There was also produced a number of profit and loss statements and balance sheets for various non-consecutive financial years between 1999 and 2003. No explanation appears to have been given as to why those purported financial statements were unsigned, unaudited and the author unidentified, and why no correspondent material was not furnished for other financial periods of time. No income tax assessments relating to Tide were produced, nor any primary documents from which the material was purportedly prepared. However neither the Minister’s delegate nor the Minister appears to have drawn attention to those shortcomings in documentation and explanations, and accordingly I put those observations aside. The Tribunal observed that according to the Australian Securities and Investment Commission database, Tide was registered as an Australian Proprietary Company limited by shares on 8 January 1998.
In order to grant approval to Tide as a standard business sponsor, the Tribunal was to be satisfied that Tide met the requirements contained in Reg 1.20D of the Regulations. The Tribunal found that Tide ‘[did] not meet the criteria for approval as a business sponsor, specifically paragraph 1.20D(2)(f)’ which reads as follows:
‘(2) The Minister must approve the application if [inter alia]:
…
(f) The Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) of Schedule 2 in relation to a visa application; and
(ii)the visa holder satisfies the requirements of that subclause;
the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant with approved form 1067…’ (my emphasis)
The ‘applicant for approval’ was of course Tide and the ‘visa holder’ was Mrs Zhu. According to Reg 1.20C(2) an application by an employer for approval as a standard business sponsor ‘must be made in accordance with approved form 1067…’. Tide submitted to the Minister a version of form 1067 that contained, amongst others, the following undertaking:
‘The business undertakes to do the following in relation to sponsored persons and dependants while in Australia, unless the person has, with agreement from DIMIA subsequently been sponsored or nominated by another employer who has become responsible for that person:
…
§comply with Australian industrial relations laws, Australian levels of remuneration, and conditions of employment
…’
Prior to reaching its conclusion that ‘[Tide] does not meet the criteria for approval as a business sponsor – specifically paragraph 1.20D(2)(f)’, the Tribunal discussed the financial position and performance of Tide, by reference to the unsigned financial statements provided by Tide’s representatives which I have identified. The Tribunal made the following observations about this material:
(i)there was no information as to the identity or qualification of the preparer of the financial information provided by Tide;
(ii)in the financial year ended 30 June 2000, Tide derived net profits of $7001 based on sales of $368,198, having incurred liabilities inter alia for wages of $60,016, for sub-contractors of $233,976 and for a ‘director fee’ of $24,000; in the year ended 30 June 2002 those latter figures were respectively $74,100, $208,930 and $18,200; the slight increase in the amount spent on wages between those two years was ‘attributed to increase of Directors salary and staff wage’, according to one of Tide’s later submissions to the Tribunal;
(iii)according to Mrs Zhu’s group certificates (or as they were called during the hearing, ‘PAYG summaries’), she was paid wages totalling $18,000 in 1999 and 2000, and $18,200 in 2001 and 2002.
In response to that last observation the Tribunal member made the following comment of significance:
‘This raises considerable doubt as to whether the review applicant is complying with both Australian remuneration levels and its undertakings in relation to the Visa applicant. The Tribunal may wish to request further information as to the visa applicant’s position and working hours to determine the suitability of this salary level.’
The appellants placed considerable weight on the second sentence that I have emphasised in bold, both in their submissions to the Federal Magistrate and on their appeal to this Court, upon the footing that no such further requests were subsequently made by the Tribunal.
The Tribunal made the following further pertinent observations in its reasons for decision:
(i)there was a substantial decline in recorded profitability and potential liquidity between 2000 and 2003: thus profits fell from $7001 in 2000 to $388.50 in 2002 and further to $379.36 in 2003; while net assets purportedly declined from $102,423.87 in 2000 to $48,562 in 2002 and further to $46,580 in 2003;
(ii)Mrs Zhu recorded on her visa application form that her gross salary from Tide would be $45,000 (‘the nominated amount’), representing a $26,800 increase from the years for which her PAYG summaries were available.
Those observations in turn led the Tribunal to state:
‘From the profit and loss statement of [Tide] it does not appear that Tide could afford to pay [Mrs Zhu] the appropriate salary. [Tide] has suggested that if [Mrs Zhu] were to be employed by [Tide] firm [sic] the profits and ability to meet undertakings would be guaranteed… .’
I would interpolate to record that what the Tribunal was referring to by the use of the term ‘appropriate salary’ was the ‘nominated amount’ specified by Mrs Zhu on her visa application which was submitted to the Minister on the same day as Tide’s application for approval as a standard business sponsor, being of course the above sum of $45,000. I should add that tendered in evidence to the Tribunal was a document headed ‘Letter of Appointment’ dated 28 November 2002 bearing the seal of Tide and the printed name of its managing director, Lian Ping Guo, reading as follows:
‘The board of directors has decided after discussion that:
Ms Meng Qin ZHU is hereby appointed Manager of the Department of International Trade of our Tide Sequence Industries Pty Ltd, to be in charge of the overall management of the Department of international Trade with an annual salary of A$45,000.’
The Tribunal went on to conclude:
‘Furthermore, the net assets figure though positive would not allow [Tide] to meet the undertakings provision in Regulation 1.20D(2)(f).’
Viewed from at least a mathematical perspective, that conclusion inherently followed from the context of those purported financial statements. However for the fiscal year ended 30 June 2002, according to the notice of assessment issued to her by the Australian Taxation Office on 22 November 2002, her taxable income was $26,268.
The appellants sought to articulate two errors in the Tribunal’s reasons in their application for review before the Federal Magistrates Court. First was that the Tribunal either ignored or simply failed to take into account relevant considerations being Australian industrial laws, Australian levels of remuneration and conditions of employment governing the employment obligations of Mrs Zhu. Second was that the Tribunal made a jurisdictional error by reaching a mistaken conclusion, namely that Tide could not afford to pay Mrs Zhu the ‘appropriate salary’.
The Federal Magistrate rejected both of those grounds of review. In relation to the first, counsel for the appellants submitted below that the Tribunal had erred in concluding that Tide was unable to satisfy its undertaking to comply with Australian industrial relations laws, Australian levels of remuneration, and conditions of employment, because it had failed to satisfy itself that relevant industrial legislation, awards or agreements could not be met. Thus the Tribunal was said to have done nothing more than ‘guess’ that Mrs Zhu’s salary was not sufficient to meet Australian standards. The Federal Magistrate considered that this ‘misunderstood the legal issue for determination’, for essentially the following reasons:
‘Under reg 1.20B(2)(f) [sic, 1.20D(2)(f)] it was open in law for the Tribunal to decide that the criteria were not met if it failed to be “satisfied” as to the ability to comply with, inter alia, the salary undertaking. It was not obliged to address the evidence and make a positive conclusion as to inability to comply before it could affirm the delegate's decision. Nor, in my opinion, was it obliged to conduct further inquiries and locate evidence of awards or comparable salaries upon which to make a finding on the issue. If, as the Tribunal thought in the present case, the evidence did not allow a positive opinion on the comparison raised by the language of the salary undertaking, but did raise a doubt as to the sufficiency of a salary, then in my opinion it would be open to a Tribunal to decline to reach the requisite satisfaction as to that salary.’
The Federal Magistrate proceeded to find that the Tribunal did not purport to reach a positive conclusion that Mrs Zhu’s salary did not satisfy the undertaking. Rather his Honour found that it was reasonably open to the Tribunal to fail to be satisfied that Tide had the ability to pay in the future the proposed salary of $45,000, and further that it was further reasonably open for the Tribunal not to be satisfied that the current salary of $18,200 together with shareholder entitlements met the standards contained in the relevant undertaking, in the absence of evidence provided by Tide to the contrary.
In relation to the second ground above, being that related to the salary paid to Mrs Zhu, counsel for the appellants contended that the Tribunal had reached a mistaken conclusion in the sense that expression was used in the High Court’s reasons for judgment in Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as follows:
‘If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’
The qualification ‘… or at least in some circumstances’ may be observed as must be the necessity for the mistaken conclusion to derive from an error of law. According to the Federal Magistrate’s reasons for judgment (Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 995 at [20]), the appellants’ contended that the Tribunal reached the mistaken conclusion that Tide could not afford to pay Mrs Zhu the nominated salary of $45,000, because it had failed to take into account the total amount of money Tide made available to pay the salaries of Mrs Zhu and the other two directors. The Federal Magistrate rejected this contention for numerous reasons, the chief of which was that the contention amounted to an attempt to challenge the merits of the Tribunal’s decision, rather than to reveal a jurisdictional error. His Honour found that the attempt to classify the alleged error as a ‘mistaken conclusion’ in the Craig sense was misconceived, since the appellants had not identified any error of law that had led to the making of any such mistaken conclusion. Furthermore, his Honour found that the submission misconstrued the nature of the Tribunal’s finding, in that the ‘conclusion’ was not a positive finding to the effect that Tide could not pay the nominated amount but rather that the Tribunal lacked satisfaction that Tide would be able to pay that amount. The Federal Magistrate agreed with the Minister’s contention that it was open on the evidence for the Tribunal to have lacked satisfaction of Tide’s ability to pay the extent of the salary nominated by Tide since to do so would have required a reduction in the salaries of the other two directors, both of which enjoyed superior ownership and management positions within Tide than did Mrs Zhu.
The grounds of appeal to the Federal Court and the appellants’ submissions raised in relation thereto
By their notice of appeal, the appellants sought to raise essentially the same two grounds of challenge as they did before the Federal Magistrate. Those grounds are as follows:
‘1. His Honour erred in finding that the [Tribunal] was not obliged to determine whether or not [Tide] complied with Australian industrial relations laws, Australian levels of remuneration and conditions of employment pursuant to Regulation 1.20D(2)(f) of the Migration Regulations 1994 in its assessment of whether the applicant could be approved as a business sponsor.
2. His Honour should have found that the [Tribunal] failed to take into account Australian industrial relations laws, Australian levels of remuneration and conditions of employment made compulsory by Regulation 1.20D(2)(f) of the Migration Regulations 1994.
3. His Honour erred in finding that the [Tribunal] did not commit jurisdictional error of law in reaching a mistaken conclusion being that [Tide] could not afford to pay [Mrs Zhu] the appropriate salary.’
4. His Honour should have found that the second respondent committed jurisdictional error by reaching a mistaken conclusion.’
For what it may ultimately matter, it may be observed that those grounds made no specific or quantified reference to any such Australian levels of remuneration and conditions of employment, nor to the appropriate salary.
In written submissions and at the hearing of the appeal to this Court, counsel for the appellants raised several additional grounds of appeal in relation to the Tribunal’s decision that appeared to go beyond those set out in the notice of appeal and presented to the Federal Magistrate. One of those additional grounds purportedly concerned ss 359 and 359A of the Migration Act 1958 (Cth). Counsel for the appellants however abandoned that ground at the beginning of the hearing of the appeal, conceding that it had not been raised before the Federal Magistrate. I do not find it necessary therefore to consider the written submissions made by either counsel insofar as they relate solely to this ground.
Another ground involved an elaboration upon the failure to take into account relevant considerations complaint presented to the Federal Magistrate and now purportedly expressed in grounds 1 and 2 of the notice of appeal. Instead of simply asserting that the Tribunal failed to take into account, or was obliged to take into account, Australian industrial laws, Australian levels of remuneration and conditions of employment before determining whether Tide was able to meet the relevant undertaking, this further formulation posited that the Tribunal failed to take into account, as was its obligation, the specific conditions of Mrs Zhu’s employment, being whether she was a full-time or part-time employee, her effective hourly rate of pay and the presence, or otherwise, of benefits in lieu of a paid salary. The difficulty with that submission was the absence of any detailed, much less documented, evidentiary material providing any such particularity. That alleged failure on the part of the Tribunal to observe both Mrs Zhu’s specific employment conditions, and what counsel for the appellants consistently referred to as ‘Australian remuneration laws’, so the appellants’ submissions continued, meant that the Tribunal effectively engaged in the ‘comparison of two unknowns’, thereby rendering any determination of its satisfaction (or otherwise) of Tide’s ability to meet the relevant undertaking impossible to undertake. As correctly pointed out by counsel for the Minister incidentally, there is no such phrase used in the Regulations or in form 1067 as ‘Australian remuneration laws’; rather, form 1067 expresses the relevant undertaking as ‘Australian industrial laws, Australian remuneration levels, and employment conditions’. That difference is significant when considering the nature of the Tribunal’s fact-finding burden presupposed by the appellants’ next submission, to which I will next turn to record.
The first submission of the appellants which I would address in more detail was that there is a ‘relevant principle of law’ to the effect that in cases where ‘clearly relevant information is readily available, the failure to obtain such information results in an exercise of discretionary power that is so unreasonable that no reasonable decision maker could have so exercised the power’, the appellants citing in particular Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 (per Wilcox J), and also Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 generally in that regard. The appellants contended that the Tribunal had a positive duty to enquire into both the ‘actual work being performed [by Mrs Zhu]’ and ‘the appropriate industrial obligations’, in order to be satisfied on reasonable grounds that Tide could or could not meet the relevant undertaking. The appellants suggested that the duty to enquire crystallised in the need for the Tribunal to have requested from the appellants further information regarding Mrs Zhu’s position, as well as to undertake its own research ‘into the provisions of any relevant industrial award’ which ‘[would be] readily available from a computer terminal’. The authority for this duty to enquire was said by the appellants to be found in the decision of Wilcox J in Prasad. Counsel referred me in particular to the following passage appearing at page 170 of his Honour’s judgment:
‘…in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.’
Counsel for the appellants thereafter sought to place emphasis on the Tribunal’s statement (at [24] of its reasons) that ‘the Tribunal may wish to request further information as to [Mrs Zhu’s] position and working hours to determine the suitability of this salary level’, and on that footing submitted that if, as was supposedly apparent from that passage, the Tribunal was left in doubt as to the qualification of Mrs Zhu’s salary or employment conditions, it should have either satisfied itself by enquiring further, or by requiring the appellants to provide further relevant information. Counsel for the appellants conceded however that no attempt was made by the appellants or their representatives to provide the Tribunal with further information about either Mrs Zhu’s remuneration and other working conditions, or about potentially relevant industrial awards, or any related material. It was a concession rightly, as well as in my opinion inevitably, made by the appellants, and has inherent significance.
Counsel for the appellants further conceded, as was indeed found by the Federal Magistrate, that the Tribunal was not under a duty to explicate positive conclusions about certain aspects of the evidence. However she contended that it would have been impossible for the Tribunal to reach the required state of satisfaction on its part about Tide’s ability to meet its undertaking, in the absence of knowledge about ‘remuneration laws’ and Mrs Zhu’s ‘actual position’, to adopt the generality of the appellants’ descriptions. I have already recorded that counsel’s adoption of the expression ‘remuneration laws’ was a misuse of that purported terminology, because it presupposed the existence of some readily verifiable and objectively prescribed levels of appropriate remuneration for given circumstances in which the appellants were placed. It was common ground that the precise expression used in the relevant undertaking, namely ‘Australian remuneration levels’, was undefined. To suggest otherwise would be in my opinion misleading, and would confuse the decision-making role required to be undertaken by the Tribunal in the context of the resolution of issues of the present kind. Counsel for the appellants referred for purported support to the following passage appearing in the reasons for judgment of Ryan and Finkelstein JJ in Yang at 579 (I replicate the emphasis which was made in the citation appearing in the appellants’ written submissions):
‘If “regression” is to be measured in a way capable of rendering it a relevant consideration, an applicant's total completed years of formal education (leaving aside for the moment differences in content and methodology between educational systems), would be one useful, consistent and not unduly onerous criterion to adopt. Where information enabling its adoption is not apparent on the face of an applicant’s papers and “regression” is proposed to be taken into account, an applicant could simply be asked for the relevant information. Material to permit the comparison which we have suggested is readily available and has an obvious bearing on the question of “regression”: (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Luu v Renevier (1989) 91 ALR 39). The need for a decision maker to have regard to such readily available material is particularly acute where, as here, an applicant has no notice that a concept like “regression” is to be applied in determining the application; cf Kioa v West (1985) 159 CLR 550. There was an absence of information in the form completed by the appellant or, at best, there was an ambiguity between that document and the further material submitted by him as to the number of years he had spent in formal education. The obscure statement that he had acquired a “Year 12” qualification in China was not borne out by the translation of his Chinese school certificate. In such a case of “obvious omission or obscurity” a decision-maker should adopt the simple expedient of requiring further information from the applicant (Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178-179); though, if the reply is unhelpful, a decision-maker is clearly not obliged to go further (Ertan v Hurford (1986) 11 FCR 382 at 388).’
Seemingly the connection between that passage and the present circumstances lay in the supposed need for the Tribunal to undertake a comparison between (and I cite the appellants’ written submissions) the ‘actual work being performed [by Mrs Zhu] and the time spent performing it’ with ‘the appropriate industrial obligations’. The appellants submitted that the Tribunal lacked sufficient information before it to determine either of those factors and so, given the fact that the information was supposedly ‘readily available’, the Tribunal should have requested the same from the appellants. I would draw attention at the outset to the expression such readily available material, and an applicant had no notice, and the simple expedient of requiring further information. Tide’s financial circumstances, contained, as they would necessarily be in its own records if the same were being conducted according to law, are significantly distinguishable from the readily available material apparent in the context of Yang.
I would here point out that counsel for the Minister, in his written submissions, contended that the submissions purportedly directed to grounds 1 and 2 of the notice of appeal, which put forward the notion of the Tribunal having a positive duty to enquire, as well as an extension of that duty to obtain evidentiary material which revealed Mrs Zhu’s specific working conditions, went significantly beyond any submission presented to the Federal Magistrate by the appellants and as such amounted to a new ground of appeal, requiring leave to be so introduced. I will essay counsel’s submissions on that issue as to leave shortly. Aside from any such issue as to the need for leave to raise the same on the present appeal, the juridical basis for imputation of any such duty to the Minister was not seemingly explained, at any rate upon any compelling basis.
As with the submissions directed towards the first and second grounds of the notice of appeal, those made in respect of the third and fourth grounds appeared to merge the latter two grounds essentially into one. There was no suggestion in either the appellants’ written or oral submissions that the ‘mistaken conclusion’ alleged in ground 4 was any different to that alleged in ground 3. This complaint was in substance that the Federal Magistrate erred in failing to find that the Tribunal fell into jurisdictional error by reaching a ‘mistaken conclusion’, namely that Tide could not afford to pay Mrs Zhu the ‘appropriate salary’. The first argument advanced in support of this ground was that it was not reasonably open to the Tribunal to find that Tide could not afford to pay Mrs Zhu the nominated amount of $45,000. That was precisely the same submission that had been led before the Federal Magistrate. The second argument was that, in spite of its express conclusions to the contrary, it was implicit in the Tribunal’s satisfaction that Tide had complied with Reg 1.20D(2)(b) that it was satisfied that Tide could have in fact paid the nominated amount. In any event, even if the Federal Court was not to be now convinced that it was open on the evidence for the Tribunal to have found that Tide could afford to pay Mrs Zhu $45,000, that was an irrelevant factor, because the Tribunal had effectively decided that Tide could do so by way of necessary albeit implicit corollary to the conclusion favourable to Tide in respect of the operation of Reg 1.20(2)(b).
The appellant’s primary submissions on that latter theme were that the Tribunal’s understanding of the financial statements of Tide, and in particular the inferences the Tribunal drew in relation to Tide’s liquidity, were inaccurate, and thereby caused the Tribunal to reach the mistaken conclusion expressed in [25] of its reasons that ‘it does not appear that [Tide] could afford to pay [Mrs Zhu] the appropriate salary’. It is not clear from either the written or oral submissions of counsel for the appellants how this contention differs, if at all, from that unsuccessfully put on behalf of the appellants to the Federal Magistrate. Thus the Federal Magistrate found that this contention amounted merely to an attempt to assail the Tribunal’s finding of fact, and did not disclose any jurisdictional error, in spite of the appellants’ evocation of the High Court’s language as to ‘mistaken conclusion’ appearing in Craig. Nevertheless, counsel for the appellants drew my attention to the minimal ratio created by dividing current assets by current liabilities, and to the apparent consistency of that minimal ratio subsisting over the relevant period. It was contended by the appellants that those financial results of Tide were indicative of a company trading with consistently sufficient liquidity, or at least solvency to be able to afford the salary increase allegedly promised by Tide and set out in Mrs Zhu’s respective application forms. So much is not readily apparent from Tide’s financial statements. In any event, the difficulty with that supposed method of measuring liquidity is that it ignores the then current cash or cash resourced position of Tide, and furthermore is predicated on the supposed accuracy of unaudited accounts prepared by unnamed and otherwise unidentified persons of accounting qualification. I observe that no attempt was made by the appellants to tender evidence to the Federal Magistrate, for instance, by way of its bank statements, which might have assisted to prove that, contrary to what may clearly in my opinion be inferred from the limited records placed before the Tribunal, Tide was actually in the financial position at the material times to afford, much more in fact outlay in cash, the requisite additional $26,800 or thereabouts in salary to Mrs Zhu. Indeed the failure to tender any such evidence should I think give rise to an inference adversely to Tide in that material respect. Moreover the submission went seemingly no higher than a purported challenge to the merits of the Tribunal’s decision in that respect, and not to establishing any error of law.
Counsel for the appellants next addressed an asserted confusion in the Tribunal’s conception of the ‘appropriate salary’ whereby at [25] of its reasons for decision, it appeared to refer to the nominated amount of $45,000 as the appropriate salary, whereas at [26] thereof, the appropriate salary was seemingly transmogrified into ‘some level of appropriate remuneration under Australian law’. The latter contention appears to purportedly address the Tribunal’s statement at [26] that ‘the net assets figure though positive would not allow [Tide] to meet the undertakings provision in Regulation 1.20D(2)(f).’ The contention appears to involve an alleged presumption made by the Tribunal that its determination of Tide’s ability to meet the relevant undertaking depended on its satisfaction of Tide’s ability to pay the nominated amount of $45,000, since why else would the Tribunal have referred at all to the net asset position of Tide? Counsel for the appellants insisted in any event that there was no need for the Tribunal to satisfy itself of Tide’s ability to pay a salary as large as the nominated amount of $45,000 in order for it to be satisfied of Tide’s ability to meet the relevant undertaking, but for what viable reason I have had difficulty in comprehending, in the absence of additional evidence.
Leaving aside the circumstance that this present contention also constitutes a ground of appeal not raised before the Federal Magistrate, counsel for the Minister insisted that in the context of the events leading up to the hearing below, and in the course of the hearing itself, it was something at least akin to common ground that were Mrs Zhu’s salary to be confined to merely $18,200, the undertaking would not be met, but were Tide to have been able to establish that the nominated amount of $45,000 was in fact bona fide, then so much would have sufficed to alleviate the Tribunal’s concerns. However the correspondence between the Tribunal and Tide’s representatives, which took place prior to the Tribunal hearing, contained the warning that Tide had not complied with the relevant undertaking, by reason of the circumstances that Mrs Zhu was being merely paid $18,200. In response, Tide’s representative was said to have explained to the Tribunal that from 2004, Mrs Zhu would be in fact paid $45,000. Given the tenuous nature of that evidentiary material, and the apparently poor financial position and performance of Tide evident from its records, such as they were in evidence before the Tribunal, it is not only understandable, but also entirely reasonable for the Tribunal to have concluded in the way that it did. As the Federal Magistrate explained (at [18] of his reasons for judgment), the Tribunal failed to be satisfied, first, that the appellant’s current salary of $18,200, along with undisclosed shareholder entitlements met the standards identified in the relevant undertaking given to the Department, and secondly, that Tide had the financial ability to pay the nominated amount. The Tribunal’s second finding does not in my opinion reveal any error or ‘mistaken conclusion’ amounting to a jurisdictional error.
Somewhat confusingly, in light of the latter submission, counsel for the appellants contended that in spite of the Tribunal’s express conclusion to the contrary in [25] of its reasons, the Tribunal implicitly found that Tide was able to pay the nominated amount of salary to Mrs Zhu, by reason of its satisfaction with Tide’s compliance with Reg 1.20D(2)(b). That subclause reads as follows:
‘(2) The Minister must approve the application if:
…
(b) in respect of each visa applicant who seeks to satisfy the primary criteria for a Subclass 457 visa to be granted on the basis that:
(i)the applicant for approval is the employer referred to in subclause 457.223(4) of Schedule 2 in relation to the visa application; and
(ii)the visa applicant satisfies the requirements of that subclause;
the Minister is satisfied that:
(iii)the applicant for approval proposes to be the direct employer in Australia of the visa applicant as the holder of the visa (the visa holder); or
(iv)if the applicant for approval is a body corporate – the applicant for approval is, under section 50 of the Corporations Act 2001, related to the body corporate that proposes to be the direct employer in Australia of the visa holder…’
It was contended by the appellant that it was impossible for the Tribunal on its part to be satisfied relevantly in the terms of Reg 1.20D(2)(b) without being also satisfied as to fulfilment of sub-paragraph (i) thereof which, it was further said, necessarily required that the Tribunal also be satisfied in the terms of subclause 457.223(4) of Schedule 2 to the Regulations. Subclause 457.223(4) reads relevantly as follows:
‘(4) The applicant meets the requirements of this subclause if:
…
(f) for an applicant in respect of whom there is a nomination for an activity under regulation 1.20G – the Minister is satisfied that:
(i)the applicant will be paid at the level specified in the nomination; and
(ii)that level will be at least the minimum salary level that applied at the time the nomination was made; and
(g) for an applicant in respect of whom there is a nomination of an activity under regulation 1.20GA – the Minister is satisfied that:
(i)the applicant will be paid at the level specified in the nomination; and
(ii)that level will be not less than the level of remuneration provided for under relevant Australian legislation and awards; and
(iii)the applicant’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards…’
The Tribunal structured this segment of its reasons under separate headings that correlated with each subclause in Reg 1.20D(2). Thus in relation to Reg 1.20D(2)(b), the Tribunal asked ‘Who will be the direct employer?’, but did not appear to proffer a concluded finding in respect of that issue, merely recording instead that Tide had indicated on its form 1068 lodged with the Minister that it would be the direct employer of Mrs Zhu, who would be paid an annual salary of $45,000. It is tolerably clear from the Tribunal’s reasons that it did not turn its mind to the preliminary element of Reg 1.20D(2)(b), but that moreover, the correct reading of that subclause demonstrates that there was no requirement for the Tribunal to have done so in any event. As was submitted by counsel for the Minister, in circumstances where the applicant seeks approval as a business sponsor in respect of ‘a visa applicant who seeks to satisfy the primary criteria for a Subclass 457 visa’, the Tribunal need only be satisfied that the applicant seeking that approval is the direct employer of the visa applicant (see again subpars (iii) and (iv) of Reg 1.20D(2)(b) as well as the first twelve words of subpar (i) of the same).
Given that the Tribunal had expressed satisfaction that Tide would be Mrs Zhu’s direct employer, notwithstanding the absence of the kind of employment records required to be maintained by the general law, any such predication would not involve implicitly a finding on the Tribunal’s part that it was satisfied that ‘Mrs Zhu [would] be paid at the level specified in the nomination [$45,000]’, as was put forward by counsel for the appellants. It was not enough for the Tribunal to have been satisfied that the nominated amount could conceivably be paid by Tide in order for it to be satisfied of the matters outlined in subclause (2)(b). The appellants’ foregoing argument was to my mind simply misconceived, and relied upon an incorrect interpretation of the relevant regulatory provisions.
The Minister’s submissions
In any event, counsel for the Minister’s primary submission was that leave should be refused to the appellants to present several of the grounds raised in the written and oral submissions of their counsel that had not been raised before the Federal Magistrate.
The Minister disputed the appellants’ submission that their claim that the Tribunal failed to enquire into Mrs Zhu’s working conditions and the relevant Australian industrial laws or remuneration levels constituted merely another aspect of the ‘relevant considerations’ ground argued before the Federal Magistrate. In spite of the perhaps superficial similarity between the duty to enquire contention advanced by the appellants on the appeal, and that advanced to the Federal Magistrate in similar or cognate terms, the former is qualitatively different, and leave is open to be refused to the appellants to raise it on appeal. Counsel for the Minister drew attention to the appellants’ written submissions to the Federal Magistrate, in so far as the same described the ground raised before the Federal Magistrate as being the Tribunal’s failure to take into account material relevant to its decision, namely, ‘actual Australian industrial laws, conditions of employment and salary levels’. Counsel for the Minister submitted, in my opinion correctly, that a failure to take into account relevant considerations, and a failure to make enquiries, are qualitatively different and productive of separate issues of dispute. As a ‘fresh’ ground thus propounded, so counsel for the Minister submitted, leave to present the same should be refused, relying in that regard upon the following passage from the High Court’s reasons for judgment in Suttor v Gundowda (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ):
‘The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.’
Counsel for the Minister therefore asserted that evidence concerning Mrs Zhu’s working hours and employment position could and should have been adduced before the Federal Magistrate, but further that no such material was tendered. Counsel for the Minister further relied upon the statement of the policies informing the exercise of the power to admit fresh grounds of appeal contained in the following extract from the reasons for judgment of Branson, Marshall and Katz JJ in H v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 63 ALD 43 at [24]:
‘In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.’
Counsel for the Minister observed that competent solicitors and counsel had represented the appellants at the hearing before the Federal Magistrate. Moreover, counsel emphasised that no explanation has been provided as to why the new grounds sought to be agitated were not raised before the Federal Magistrate.
Counsel for the Minister next submitted that even if leave were to be granted in order to raise the duty to enquire ground, any such ground was without substance. Challenging the viability of any duty to enquire, counsel for the Minister discussed the events leading up to Tide’s hearing before the Tribunal, and drew my attention in particular to a letter dated 21 January 2004 from the Tribunal addressed to Tide’s former migration agents. That letter, purportedly sent pursuant to s 359A of the Migration Act 1958 (Cth), invited Tide to comment on ‘particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’; the letter then continued as follows:
‘You are invited to comment, in writing, on the following information:
§Information on the Departmental file indicates that the nominee, Ms Meng Qin Zhu, has been paid by you an annual salary of $18,000 for 1999 and 2000 and $18,200 for 2001 and 2002.
This information is relevant to the review because in order to be approved as a standard business sponsor, it is a requirement that you comply with the undertakings in relation to the visa applicant and her family. The above remuneration levels suggest that you may not be paying Ms Zhu in accordance with Australian industrial laws.’
The appellants were accordingly said to have been placed on notice that the Tribunal contemplated an adverse finding in respect of Reg 1.20D(2)(f), in the light of the limited amount of Mrs Zhu’s annual salary. By letter dated 26 March 2004, the solicitor for Tide made the following response under the heading ‘Salary for Meng Qing Zhu’:
‘It was agreed between [Tide] and [Mrs Zhu] that she be paid $18,000 rather than a higher salary or the amount set out in the original nomination application, on the basis that she be allowed 10% shareholdings of [Tide]. (Doc 3)
The nominated position for [Mrs Zhu] is that of Trade Manager. (Doc 4)
As far as we are aware, [Tide] may enter into an agreement with a manager on any salary terms without breaching Australian industrial laws. The above salary level was agreed between [Tide] and [Mrs Zhu]. (Doc 3)’
The document referred to as ‘Doc 3’ was an undated open letter signed by Lian Ping Guo, a director of Tide. That letter detailed an agreement said to have been apparently reached between Mrs Zhu and Tide soon after Tide’s incorporation in January 1998, to the effect that in exchange for being paid an annual salary of $18,000 until the end of the 2004 financial year, Mrs Zhu would become a 10% shareholder of Tide as well as a director. Thereafter it was said that Mrs Zhu would be paid $45,000 annually, as well as retaining her 10% share interest and her directorship. Also annexed to Tide’s undated letter to the Tribunal of 26 March 2004 was a document entitled ‘Job Descriptions for Ms Meng Qin Zhu’, which described Mrs Zhu as a ‘director and Trade Manager’ having responsibilities for ‘local production’ and for the ‘international trade business’. The document ends by stating that Mrs Zhu’s is ‘a full-time position’. Each of these documents emphasised the importance of Mrs Zhu to Tide’s business, referring to her ‘excellent business connections in China’, and to her skills in ‘organising the production and …monitoring quality control’.
Counsel for the Minister next made reference to a business plan submitted by Tide to the Tribunal bearing the date 27 November 2002 which describes Mrs Zhu’s position as ‘Director and Trade Manager’ as carrying the following responsibilities in broad outline (read literally):
‘Will be responsible for the Trade business and the Clothing business. Organise purchase orders to overseas suppliers and get orders from local clients. Take the quality control for the clothing manufactory and technical guide. [Mrs Zhu] has extensive skill in Trade and Clothing Technics. Has very strong business connection with Chinese market’.
It is apparent from the foregoing documentation that Tide claimed to place value in Mrs Zhu’s services and intended services and purportedly significant responsibility in her hands, particularly in relation to the ‘growth areas’ targeted by Tide in its business plan.
The Minister’s purpose in highlighting these last mentioned documents was three-fold: first, to demonstrate that the Tribunal did have placed before it information about Mrs Zhu’s position, and that it was a full-time rather than some casual position; secondly, that when presented with the opportunity to make submissions in relation to the Tribunal’s stated concerns as to Tide’s ability to remunerate her in accordance with Australian cognisable levels, Tide did not assert that Mrs Zhu was working less than full-time hours, or was in receipt of other benefits in lieu of salary, thereby leaving it open to the Tribunal to find that unless Tide could make good its promise to pay Mrs Zhu $45,000, in all likelihood her salary would remain at the same minimal levels and thirdly, that the emphasis placed on her role, as well as the apparently elevated position which Mrs Zhu enjoyed, rendered it unlikely that the Tribunal could identify an appropriate award with which to make the comparison contemplated by the appellants in their submissions.
As I have already foreshadowed, counsel for the Minister next submitted that the fact that Tide had specified in its form 1068 that the nominated amount was $45,000 did not obviate the problem identified by the Tribunal in its abovementioned 21 January 2004 letter to Tide’s former representative. That was said by the Minister to be because the Tribunal was not satisfied that Tide was capable of remunerating Mrs Zhu to that allegedly assured extent. Moreover the Minister emphasised that no attempt had been made by the appellants to raise the ‘duty to inquire’ issue before the Federal Magistrate, or to adduce evidence of Tide’s financial results for the financial year ending 30 June 2004 to prove that the Tribunal reached its conclusion erroneously. The Minister therefore submitted that because it was virtually common ground that $18,200 was insufficient for the employment position which Tide claimed Mrs Zhu to have held, the issue before the Tribunal was in reality whether the nominated amount of $45,000 represented bona fide remuneration payable to Mrs Zhu.
Finally, the Minister challenged the appellants’ purported reliance on Prasad, being that no attempt had been made by the appellants to specify what material was ‘readily available [that was] centrally relevant to the decision to be made’, citing the passage from the reasons for judgment of Wilcox J in Prasad which the appellants invoked. According to counsel for the Minister, the failure of the appellants to identify, in affidavit form or otherwise, the precise material to which the Tribunal should have paid regard was inimical to their purported reliance upon Prasad. Moreover, since that Prasad issue was not raised before the Federal Magistrate, the appellants were confronted with that formidable line of judicial authority militating against the grant of leave to adduce not only fresh evidence on appeal but also new grounds of appeal. In any event as I have explained, no attempt was ultimately made by the appellants to adduce any such fresh evidence.
In those circumstances, counsel for the Minister submitted it was open to the Tribunal to express its dissatisfaction with the ability or willingness of Tide to meet Australian remuneration levels, without coming to any specific finding as to what were or should be those precise levels, on the footing that an annual wage of $18,200 was significantly below what would necessarily be required. It was equally open to the Tribunal to find, in relation to Tide’s assertion that Mrs Zhu’s salary would rise to $45,000, that on the basis of Tide’s financial statements placed before it in evidence, any such remuneration levels in her favour were not a feasible or likely outcome. So much was equally a finding of fact open to be made by the Tribunal, so the Minister submitted, and the endeavour to characterise the same as a ‘mistaken conclusion’ on the part of the Tribunal involved in reality an attempt to re-open the merits of the Tribunal’s decision. Counsel for the Minister contended in that regard that no re-agitated analysis of the liquidity of Tide could correctly be undertaken in the course of the appeal, the only basis for overturning the Tribunal’s relevant findings being if the same were held to be not reasonably open on the material placed before the Tribunal.
My conclusions on the appeal from the Federal Magistrate
In support of his reasons for judgment, the Federal Magistrate cited dictum of RD Nicholson J in Lace Holdings Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 117 FCR 79 at [34] to the effect that:
‘Satisfaction as to an applicant’s ability to comply with the undertakings is a finding of fact and degree for the Tribunal based on the circumstances of the case. The possibility that the Tribunal’s finding of fact is in error or that the court may have made a different finding of fact is not a permissible basis for review…’,
his Honour thereby citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 (per Gleeson CJ and McHugh J). Aside from Lace, neither counsel cited authority relevant to the level of satisfaction of the Minister which addressed the ability of a putative standard business sponsor to comply with the form 1067 (ante) undertaking to comply with Australian industrial relations laws, Australian levels of remuneration and conditions of employment in relation to a visa applicant. His Honour proceeded to describe the implications of meaning of the term ‘able’ appearing in Reg 1.20D(2)(f), being that ‘… the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant with approved form 1067…’. His Honour observed in that regard that the term ‘able’ is not defined in Div 1.4A of the Regulations, or elsewhere in the Regulations or the Migration Act 1958 (Cth) and that it should therefore take its ordinary and natural meaning from the context in which it is used, which translates to the following in his Honour’s opinion (at [31]):
‘In the context of determining whether an applicant is a suitable business sponsor, the assessment of whether or not that person is suitable, competent, has the qualifications for and the means or sufficient power to comply with specified requirements must be assessed in some manner or method. In making such an assessment in the circumstances of each case, the Tribunal must consider the evidence that points to the competency of the applicant to comply with the undertakings it has given.’
In Lace, an aggrieved appellant had failed to obtain approval as a standard business sponsor on numerous grounds, including the Tribunal’s failure to be satisfied that it could meet the undertakings contained in form 1067, one of which being the undertaking to comply with Australian industrial laws and levels of remuneration.
I would reject the appellants’ submission that the Tribunal was subject to a duty to enquire further into the ‘actual work being performed [by Mrs Zhu] and the time spent performing it’, and into ‘the appropriate industrial obligations’. So much would operate effectively to place an onus on the Tribunal, in cases such as the present, not only to determine the competency of the approval applicant but seemingly also, for what that might have achieved in the present context (which to my mind is not apparent), positively to seek out and enquire into additional evidence, in circumstances where what the applicant has already provided is insufficient, and indeed perhaps also in circumstances where the applicant has already been specifically warned of insufficiency or a measure of insufficiency, of the evidence placed by the applicant before the Tribunal. As counsel for the Minister further pointed out, the Tribunal by its letter dated 21 January 2004 had already put the appellants on notice that it was not susceptible to being satisfied, on the basis of the information placed before it, that Tide was able to meet its undertaking to comply with Australian industrial laws and levels of remuneration.
I am of the opinion that no such duty to enquire of the nature postulated by Wilcox J, in circumstances such as those envisaged in Prasad, fell here to be imputed to the Minister. In Prasad, Wilcox J undertook the review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) of the Minister’s delegate’s decision to refuse an application for a permanent entry permit to an applicant, who was the spouse of a permanent resident of Australia. The relevant test found by his Honour to be applied was ‘whether the parties genuinely intend[ed] to continue living as a married couple in Australia’, that test being derived from a policy manual used by the Department. His Honour upheld the applicant’s contention that the Minister’s delegate had failed to take into account relevant considerations within the purview of s 5(2)(b) of the ADJR Act, comprising a number of statutory declarations furnished to the Department in support of the couple’s marriage, as well as an earlier report made by an interviewing officer in the applicant’s country of origin which had expressed an opinion that the marriage was genuine. Both the declarations and the report were deemed to have been either actually or constructively placed before the delegate.
Wilcox J further considered the common law authorities on Wednesbury unreasonableness in formulating the correct approach to be taken to s 5(2)(g) of the ADJR Act and drew particular attention to Lord Diplock’s explanation of the meaning of the word ‘unreasonable’ in Bromley London Borough City Council v Greater London Council [1983] 1 AC 768 at 821 where his Honour described ‘unreasonable’ decisions as ‘decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them.’ It was in relation to the question of whether a decision could be vitiated for unreasonableness where it was made without recourse to material that was not before the decision-maker, either actually or constructively, that his Honour raised the possibility of the existence of a duty to enquire in certain limited circumstances. Wilcox J further observed that the duty may only arise in circumstances where the manner of the exercise of the decision-making power can be said to have been improper (at 169):
‘A power … is exercised in an improper manner if the decision maker makes his decision – which perhaps in itself, reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him.’
His Honour then directly went on to say:
‘[t]he circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries…’
That statement demonstrates an important qualification to the dictum expressed thereafter by his Honour (at 170) that ‘where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may be properly described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it’.
Prasad was relied upon by Ryan and Finkelstein JJ in their joint judgment in Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 at 579, in another passage relied upon by counsel for the appellants. In Yang, the ministerial delegate rejected an application for a student visa on the apparent basis that the intended study plan, which the applicant there involved intended to take up in Australia, represented a ‘regression’ in his studies of some three years. The delegate relied upon a statement made by that applicant on his application that he had completed up to ‘Year 12’ in China, and compared this to the applicant’s intended plan to study Year 10 level in Australia. Their Honours held that if the concept of regression was to be a deciding factor in the Minister’s decision to refuse the visa, in circumstances where the information provided by the visa applicant was insufficiently detailed for the Minister to determine whether the intended study plan amounted to a regression, there was a duty on the Minister to request the relevant information.
No submissions were made by counsel for the appellants in relation to the readily apparent distinction between the present circumstances and those in Yang. In the present case, the appellants were on notice of the Tribunal’s concerns as to Tide’s ability to comply with the relevant undertaking, and thus as to the centrality of the evidence directed to Mrs Zhu’s working conditions and relevantly applicable industrial obligations, at least from the time that the appellants received the letter dated 21 January 2004. Moreover, as submitted by counsel for the Minister, the Tribunal was made aware from the information provided by Tide that Mrs Zhu’s position was to involve full-time engagement, and that she was considered to have an absolutely essential management role in the organisation. In spite of all that neither Tide, nor its representatives, made any attempt at the hearings before the Tribunal or before the Federal Magistrates Court to adduce any evidence demonstrative of the circumstance that the actual salary paid to her of $18,200 complied with any industrial thresholds, or even that any industrial thresholds had relevant application. The Tribunal was given details merely of an employment agreement between Tide and Mrs Zhu, and a Tide promise to begin paying her $45,000 from 2004 onwards. No evidence was tendered by or on behalf of the appellants from which it was reasonably open for the Tribunal to find that Tide would have the ability to pay Mrs Zhu a salary of $26,800 higher than the sum of $18,200 she was being actually paid, other than unaudited accounts evincing, inter alia, significant reductions in both net assets and net profits of Tide over the relevant period. Irrespective of how the appellants’ claim that the Tribunal was obliged to enquire further was sought to be expressed, it fell at least within the limitation expressed by Wilcox J in Prasad, namely that it was not for the Minister as decision-maker in effect to make out the appellants’ case for the appellants. Moreover, the facts here involved are clearly distinguishable from those in Yang, as may be readily appreciated.
I would also reject the appellants’ elaboration of their claims, from that advanced before the Federal Magistrate, to the effect that the Tribunal failed to take into account relevant considerations, those being said to be either Mrs Zhu’s working conditions or ‘appropriate industrial obligations’. As his Honour duly found, the Tribunal did not need to reach any positive finding in relation to Tide’s ability or otherwise to meet its purported salary undertaking, made in her favour. Moreover, the text of the Tribunal’s reasons, when considered in light of the correspondence entered into between the parties, indicated that the Tribunal was well aware of the nature of what was said to be Mrs Zhu’s position of employment, including the fact that it was apparently a full-time position. As I have already stated, the metaphorical ball was in Tide’s court if it wanted to disabuse the Tribunal of its communicated concern that the actual salary paid to Mrs Zhu, in light of her apparent importance within the organisation, was not sufficient to meet the relevant undertaking. As counsel for the Minister submitted, the postulation of the figure of $45,000 did not remedy that fundamental difficulty with the appellants’ cases, namely that the Tribunal’s lack of satisfaction that Tide was capable of meeting the additional financial burden represented in relation to Mrs Zhu was reasonably open on the evidence tendered by Tide to the Tribunal.
In relation to the further ground of appeal raised by the appellants, namely that it was not reasonably open to the Tribunal to find that Tide could not afford to pay Mrs Zhu the nominated amount of $45,000, the same amounted to an attempt merely to re-open a finding of fact made by the Tribunal, and in any event was in my opinion contradicted by such of Tide’s financial statements as were tendered in evidence. As his Honour found in effect below, the attempt to ‘dress-up’ this ground as a ‘mistaken conclusion’, purportedly adopting dicta from Craig, was misconceived. As I already indicated, I would reject that other aspect of the further ground of appeal advanced by the appellants supposedly involving the Tribunal’s apparent satisfaction of Tide’s compliance with Reg 1.20D(2)(b).
Since I have determined that each of the appellants’ grounds is lacking substance, and if I may say so, clarity, I have not found it necessary to determine the question of whether leave should be granted to the appellants to pursue those purported grounds of appeal not articulated in any event before the Federal Magistrate.
As was the case before the Federal Magistrate, if the point remains relevantly open for consideration, I would be of the opinion that the failure of Tide to succeed in its appeal carries the consequence that Mrs Zhu’s appeal necessarily fails as a matter of course.
For all those reasons, I would dismiss both appeals and order the appellants to pay the respondent Minister’s costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Associate:
Dated: 9 June 2005
Counsel for the Appellants:
K Welshman
Solicitor for the Appellants:
Ren Zhou Lawyers
Counsel for the Respondent:
R Beech-Jones
Solicitor for the Respondent:
Clayton Utz
Date of Hearing:
7 April 2005
Date of Judgment:
9 June 2005
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