Timberbox Pty Ltd v Minister for Immigration

[2020] FCCA 3328

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMBERBOX PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3328

Catchwords:
MIGRATION – Administrative Appeals Tribunal – nomination application under s 140GB of the Migration Act 1958 (Cth) – whether the Tribunal’s findings lack an evident and intelligible justification – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal failed to take into account relevant evidence – whether the Tribunal did not have a real or meaningful engagement with the evidence that was before it – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 140GB, 476

Migration Regulations 1994 (Cth), reg 5.19

Applicant: TIMBERBOX PTY LTD

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 278 of 2019

Judgment of: Judge Street

Hearing date: 7 December 2020

Date of Last Submission: 7 December 2020

Delivered at: Sydney

Delivered on: 7 December 2020

REPRESENTATION

Counsel for the Applicant: Mr D Blades

Solicitors for the Applicant: Munro Doig Lawyers

Solicitors for the First Respondent: Ms B Rayment
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

Date of order: 7 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 278 of 2019

TIMBERBOX PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) to refuse the nomination application under s 140GB of the Act.

2. On 25 May 2016, the applicant applied for approval in respect of the nomination of a position in Australia, the requirements for which are found in reg 5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. On 31 January 2017, the Delegate refused the application on the basis that the Delegate was not satisfied that the applicant has the financial capacity to provide a minimum of two years fulltime employment to the nominee.

4. On 20 February 2017, the applicant applied for review of the Delegate’s decision.

5. By letter dated 8 May 2019, the Tribunal invited the applicant to attend a rescheduled hearing to give evidence and present arguments. The applicant attended the hearing before the Tribunal on that date to give evidence and present arguments.

6. The Tribunal in its reasons summarised what occurred at the hearing. 

7. The Tribunal identified raising concerns in relation to the relationship between the company director, being the wife of the nominee and substantial shareholder, and the nominee.

8. The Tribunal identified raising concerns in respect of the requirements of the Regulations and whether there was a general need for a paid position under the nominator’s direct control that cannot be filled by a locally resident Australian citizen or resident. It is clear from the transcript that that issue was raised in the course of the hearing.

9. The Tribunal identified raising other concerns in relation to the remuneration of the directors.

10. The Tribunal referred to the submissions advanced in writing on behalf of the applicant post hearing. The Tribunal identified those submissions continuing to submit that there was compliance by the applicant with the Regulations. Relevantly, the Tribunal identified the submissions contending that the requirements were met in respect of reg 5.19(4)(h)(ii) sub-paragraphs (B) and (C) of the Regulations.

11. The Tribunal had earlier identified that it had been provided with a copy of an approval letter dated 1 May 2016 from the Regional Certifying Body (“RCB”). The Tribunal referred expressly to the RCB letter that had been provided.

12. The Tribunal expressly identified the requirements of the PAM3, which it correctly found were of guidance but not binding upon the Tribunal.

13. The Tribunal did not accept the applicant’s submission that it was bound to follow the advice received by the RCB.

14. The Tribunal proceeded to identify its concerns in relation to the explanation advanced in the post-hearing submissions as to why there was no express disclosure of the nature of the relationship between the nominee and the company director and major shareholder. The Tribunal found that the relationship was relevant to the question of whether the position cannot be filled by an Australian citizen or an Australia permanent resident that was living in the same local area.

15. The Tribunal referred to the evidence in relation to a statutory declaration and the offering of a position to a part-time employee, to the statutory declaration identifying an advertising process and the receipt of 17 job applications, to five of the applicants being shortlisted and the absence of an explanation why the shortlist of applicants were not offered a position.

16. The Tribunal did not accept that the majority shareholder and director would entertain employing a suitably qualified and experienced Australian citizen or an Australian permanent resident who was living in the same local area in preference to her husband considering that her stay in Australia depended on the nominee being granted the Subclass 187 visa. That was a logical and rational finding that was open to the Tribunal and is not the subject of challenge.

17. The Tribunal was not satisfied that the position could not be filled by an Australian citizen or an Australian permanent resident who was living in the same local area. Accordingly, the Tribunal found that the requirements of reg 5.19(4)(h)(ii)(C) of the Regulations are not met.

18. The Tribunal found that, as the applicant did not meet the requirements of reg 5.19(4)(h)(ii) of the Regulations, the decision under review must be affirmed.

Grounds in the amended application

1. The grounds in the amended application that are pressed are as follows:

   1. The Administrative Appeals Tribunal erred by making an illogical, alternatively, legally unreasonable decision in finding that the Applicant failed to satisfy Regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994 (Cth) being the criterion that the "position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place".

   PARTICULARS

   …

   (4) The Tribunal acted unreasonably by reaching a decision on Regulation 5.19(4 )(h)(ii)(C) that was contrary to the Regional Certifying Body's advice on that criterion (CB 23-24) without discussing its point of view with the Regional Certifying Body, as recommended by the PAM3 policy cited by the Tribunal at footnote 2 (CB 407), section 10.7.2.1, which states:

   The RCB will have specialised knowledge in regard to whether the position can be filled locally by virtue of their location, local knowledge and experience. The delegate may generally accept the advice provided in regard to this criterion, unless there is clear evidence supporting an opposing point of view.

   If the delegate's assessment in regard to this criterion is opposed to the assessment of the RCB, the delegate may wish to discuss their point of view with the RCB before moving to a decision.

   …

   4. The Tribunal made a jurisdictional error by overlooking, or failing to give active intellectual consideration to, relevant evidence that was before the Tribunal concerning the nature of the relationship between the nominee and the director of the applicant company, … , and relying on a mistaken conclusion.

   PARTICULARS

   (1) The Tribunal stated at (52] that the nature of this relationship is "relevant to the question of whether the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area."

   (2) The Tribunal observed at (50] that "this relationship was not disclosed to the Tribunal prior to the hearing."

   (3) However, in the application form for the nomination (CB 1-9), it was stated that:

   (a) the nominated person was … (CB 6):

   (b) his residential address was "…"; and

   (c) his migrating family members included his Spouse/De Facto Partner who was named as …, date of birth … (CB 7).

   (4) Further, in an ASIC extract and ABN lookup that was lodged by the applicant as a supporting document (CB 82; see also CB 385 which refers to a company extract naming … that was provided to the Tribunal on 11 June 2019, before the hearing), it was stated that:

   (a) a person of the same name and date of birth was a director of the applicant company.

   (b) the principal place of business was …

   (c) that director's (…) residential address was …, being the same residential address as that of the nominated person.

   (5) Further, in a copy of a letter submitted to the Tribunal signed by … in her role as director, the address for the applicant company was stated to be ….

   (6) Further, an organization chart for the applicant company included … (stated to be a Director and Australian Temporary Resident) and the nominated person (CB 68, 76, 277).

   (7) Further, the relationship between … and the nominated person was set out in the file relating to the subclass 187 visa application for the nominated person and in the Tribunal file for that review application (Tribunal case no. 1707105), the visa application to which the Tribunal referred at [56].

   (8) The Tribunal relied on its mistaken conclusion that the relationship between the nominated person and … was not disclosed to the Tribunal prior to the hearing as a basis for refusing the application: paragraphs 50 - 52. In so doing, it made a jurisdictional error.

   …

   6. The Tribunal made a jurisdictional error by overlooking relevant evidence and relying on mistaken conclusions in reaching its finding at [56]: "Based on the evidence before it, the Tribunal does not accept that …, as the majority shareholder and director of the nominating business, would entertain employing a suitably qualified and experienced Australian citizen or an Australian permanent resident who is living in the same local area in preference to her husband considering that her stay in Australia depended (and still depends) on the nominee being granted a Subclass 187 visa."

   PARTICULARS

   (1) At [55] the Tribunal stated (bold emphasis added): "In his statutory declaration of 18 June 2019, … stated inter alia that he received 17 job applications after the business advertised for the position in February 2016. He further stated that five applicants were short-listed but failed to provide any explanation why none of the short listed applicants was offered a position."

   (2) In fact, the evidence before the Tribunal included the following explanations which constituted relevant evidence and which were overlooked by the Tribunal:

   (a) Statements by … in his statutory declaration at CB p 394-395 at paragraph 8 that: "2 applicants obtained employment at the point of contact"; and "Carried out 3 full interviews, however they were not suitable".

   (b) A Business Plan for the applicant updated on 17 March 2016, which was signed by … (CB 7 4) in which it was stated at CB 7 4 in relation to appointment of staff: "Through the interview process, we found that majority of the candidates who applied either do not have the required Australian Trade Certification and local experience or any experience in kitchen renovations.

   The shortlisted candidates did not show a passion or interest in kitchen renovations and lacked the motivation and eagerness to learn.

   (c) A letter entitled "Advertisement Declaration" dated 10 March 2016 (CB 17) in which … stated why the remaining shortlisted candidates did not meet requirements.

   (3) In reaching its ultimate decision, the Tribunal relied on a mistaken conclusion that … failed to provide any explanation why none of the short listed applicants was offered a position.

   (4) At [54] the Tribunal stated (bold emphasis added): "The applicant claims that … was offered a full time position as a carpenter. He previously worked for the nominating business from October 2015 to July 2017 as a casual carpenter. … confirmed in his statutory declaration of 18 June 2019 that he was offered a full time position as a carpenter and that he refused that offer. In his declaration, … stated that the offer was made 'during his tenure' at the nominating business (between October 2015 and July 2017). It appears from the oral evidence of … that … was offered this position prior to advertising for the position in February 2016. In addition, there is little information before the Tribunal as to the terms and conditions of the proposed offer of employment to ….

   (a) In relation to the finding: It appears from the oral evidence of … that …was offered this position prior to advertising for the position in February 2016:

   1. in her oral evidence, … did not state that … was offered the position prior to advertising for the position in February 2016. Rather, she stated (Transcript p 15): "Ah before we actually converted my husband, or …, as the full time, full time employee of the business we did advertise to look for carpenter and the business also offered the full time position to ….

   2. In his statutory declaration of 18 June 2019 (CB 394-395), … stated that "Timberbox placed a recruitment advertisement on SEEK in February to March 2016", and "…, the casual carpenter of Timberbox in that point in time was offered the position as Chief Carpenter of the Company, which he declined."

   3. In the Business Plan section dealing with appointment (CB 74), it was stated immediately after the paragraphs dealing with the unsuccessful external recruitment search: "We have further extended the opportunity to include our existing part-timers for a conversion to a full-time position. …, one of our part-timers with 23 years of experience, who was previously chief carpenter of IKEA, declined the offer as do not have interest to take on a permanent full-time position. He prefers to remain part-time and pursue his interest in photography."

   (b) In relation to the finding: "In addition, there is little information before the Tribunal as to the terms and conditions of the proposed offer of employment to …."

   1. The Business Plan stated at CB 72 (bold emphasis added): "This business case is intended to address the recruitment of a highly skilled carpenter to provide us with the required experience in the field for the business. The candidate is required to serve the business on a permanent role for the long term to aid the growth of the business in tandem with the rising market needs ..... Given the nature of the business, the role of a skilled carpenter is one of the core requirements critical to the day-to-day operations of the company. Without the relevant expertise and experience, sales conversion and growth will not be possible. Through extensive market research and analysis, we found that there is huge potential to the renovations market within Perth. In order to tap into it, we will require a highly skilled permanent carpenter who can lead and train a dedicated team."

   2. The Business Plan that was before the Tribunal at CB 74-75, after stating that … had declined the offer of employment as a skilled carpenter, also listed 8 key reasons for …'s nomination – it should be inferred that those reasons, insofar as they constitute the job description component of the terms and conditions of the offer of employment to …, would apply as well in respect of the prior offer of employment to ….

   3. The SEEK job advertisement dated 4 February 2016 (CB 20) gave details of the job location, salary, working hours and job classification - the same details that would have been included in the offer to ….

   4. The job description component of the terms and conditions of the offer of employment to … were also apparent from the SEEK job advertisement (CB 19-20), and the Employer's Declaration (Annexure 22 referred to at CB 305; CB 17), and the Recruitment Evidence (Annexure 23 also referred to at CB 305).

1. Mr Blades of counsel on behalf of the applicant confirmed that only those grounds as identified above were pressed and that the other grounds 2, 3 and 5 and the other particulars to ground 1 are not pressed.

Ground 1

1. In relation to ground 1 particular 4, it is manifest from the terms of the PAM3 that it is not binding upon the Tribunal. The Tribunal correctly identified that the PAM3 was not binding and took into account the PAM3. There is no basis to find that the Tribunal failed to take into account the PAM3 or the existence of the RCB advice in the circumstances of the present case.

2. Given the Tribunal’s concern in relation to the position having been created to achieve a migration outcome, the adverse finding of the Tribunal cannot be said to lack an evident and intelligible justification. There was no legal unreasonableness.

3. The Tribunal did not act unreasonably by not following the RCB advice as submitted by the applicant. The Tribunal was not required to seek advice from the contact of the RCB in circumstances where it was the genuineness of the credit of the wife, being the director and majority shareholder, in relation to whether or not this was designed as a position to create a migration outcome. There is an obvious and intelligible justification for the Tribunal not to follow any advice of the RCB.

4. No jurisdictional error as alleged in ground 1 particular 4 is made out.

Ground 4

1. In relation to ground 4, Mr Blades identified that there was material before the Tribunal from which the relationship between the director and the relevant nominee could be identified.

2. It is apparent from the transcript that the Tribunal expressly raised the absence of express identification of the relationship and a concession was advanced that there was no such express identification and, indeed, submissions were advanced seeking to explain the absence of that express identification.

3. The fact that one might, from other material, seek to glean the nature of the relationship does not, in any way, identify a want of logic or reasonableness in respect of the Tribunal’s concern as to the absence of the upfront express identification of that relationship.

4. Given what occurred in the transcript and the submissions that were provided, it was open to the Tribunal to take into account that there was no express disclosure of the relationship, as identified in the Tribunal’s reasons, and to take the same into account in relation to whether the relevant criteria were met.

5. Ground 4 is, in substance, an invitation to engage in merits review. There was no mistaken conclusion by the Tribunal.

6. No jurisdictional error as alleged in ground 4 is made out.

Ground 6

1. In relation to ground 6, Mr Blades submitted that the Tribunal had overlooked relevant evidence and had not had a real or meaningful engagement with the evidence that was before it by reason of the Tribunal’s reference to the absence of any explanation why none of the shortlisted applicants were offered a position.

2. It was apparent from the Tribunal’s reasons that the Tribunal identified the table the subject of the statutory declaration and took into account information from that table. There is no proper basis to infer that the Tribunal failed to take into account the whole of that information, nor should the Tribunal’s reasons be read with a keen eye for error.

3. The reference to any explanation why none of the shortlisted applicants was offered a position was a reference to the statutory declaration. The limited reference found in the statutory declaration to other persons having obtained employment and three not being suitable is not an explanation of the kind identified by the Tribunal, but rather a bare assertion. Mr Blades sought to take the Court to other material, in relation to which there was a reference in the statutory declaration to the applicant’s relationship with IKEA in respect of his suitability, as well as to other material which Mr Blades submitted was an explanation found in the business plan as to why other persons were not suitable.

1. The Court does not accept that the Tribunal made any mistake in respect of its reasoning concerning the statutory declaration and the finding as to want of explanation in respect of that statutory declaration and those who were shortlisted was open to the Tribunal. The adverse finding was logical and rational. No jurisdictional error is made on this basis.

2. Further, the Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. There was a further submission advanced by the applicant in this regard that the Tribunal had erred in respect of its reasoning concerning a casual carpenter having been offered the position that was advertised. The Tribunal referred to the little information as to the terms and conditions of the proposed offer of employment. There was no offer of employment identifying terms and conditions.

3. Mr Blades referred to the existence of the advertisement from which one could identify an award and an hourly rate. That, however, did not constitute anything more than little information being before the Tribunal as to the terms and conditions. The adverse finding by the Tribunal as to the little information was logical, rational and open and does not reflect any failure by the Tribunal to have a real and meaningful engagement with the applicant’s claims and evidence.

4. No jurisdictional error as alleged in ground 6 is made out.

5. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 12 February 2021