Total Eye Care Australia Pty Ltd v MIAC
[2007] FMCA 281
•8 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOTAL EYE CARE AUSTRALIA PTY LTD v MINISTER FOR IMMIGRATION & ANOR and KAVANAGH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 281 |
| MIGRATION – Business entry visa – Migration Review Tribunal – Regulation 120B and 120D of Migration Regulations – application dismissed. |
| Migration Regulations 1994 |
| Qi v Minister for Immigration and Multicultural Affairs [2002] FCA 326 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 Nice Shoes Australia Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252 Chiang v Minister for Immigration and Multicultural Affairs [2001] FCA 542 MM International (Australia) Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 323 Re Ruddock & Another Ex parte S154/2002 (2003) 201 ALR 437 |
| Applicant: | TOTAL EYE CARE AUSTRALIA PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 845 of 2006 |
| Applicant: | SARAH KAVANAGH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 863 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 25 January 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr W.G. Gilbert |
| Solicitors for the Applicants: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr W.S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
In Application MLG845/2006:
(a)The Application be dismissed.
(b)The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
In Application MLG863/2006:
(a)The Application be dismissed.
(b)The Applicant shall pay the First Respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 845 of 2006
| TOTAL EYE CARE AUSTRALIA PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
MLG 863 of 2006
| SARAH KAVANAGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In the proceedings before the court, the Applicants in proceedings numbered MLG 845 and MLG 863 of 2006 have filed separate amended applications in relation to decisions of the Migration Review Tribunal (the Tribunal) both dated 31 May 2006.
Although the Tribunal delivered two separate applications, it is common ground before this court that the outcome of the judicial review application for Total Eye Care Australia Pty Ltd (the sponsor) will determine the outcome of the application for judicial review of Sarah Kavanagh (the proposed employee).
The parties have relied upon contentions which address issues arising out of the Tribunal decisions, although as indicated, the outcome of the application on behalf of the sponsor will determine the outcome of the application of the proposed employee.
On 10 January 2005, the sponsor made an application to the First Respondent's Department for approval as a standard business sponsor in accordance with Regulation 1.20D of the Migration Regulations 1994 ("the Regulations"). The sponsor sought an approval of a nomination of an activity in which the individual was proposed to be employed. The person who the sponsor wished to employ in the nominated activity as a customer service manager was the proposed employee.
On 10 January 2005, the proposed employee applied for a temporary business entry (class UC) (subclass 457) visa to be sponsored by the sponsor.
A delegate of the First Respondent refused both applications on 7 July 2005 and the sponsor and the proposed employee then applied to the Tribunal for review of the delegate's decisions.
As indicated, the Tribunal affirmed the delegate's decision in relation to both parties. Essentially, the Tribunal decision on the application by the proposed employee was based upon the finding of the Tribunal that she did not have an approved business sponsor as was required by sub-clause 457.223(4) of part 457 of Schedule 2 of the Regulations by reason of the Tribunal's decision to refuse to approve the sponsor as a standard business sponsor. The relationship between the applications is therefore quite clear.
Relevant legislation
Regulation 1.20B defines "standard business sponsor" as meaning "a person approved as a standard business sponsor in accordance with Regulation 1.20D".
Accordingly, for the sponsor to be approved as a standard business sponsor, it was required to meet the criteria in Regulation 1.20D.
In should be observed that both parties conceded that the criteria set out in Regulation 1.20D provides options in most subclauses but that each of the options, if fulfilled, then should be considered cumulatively with the other subclauses. The use of the word "and" between sub-clauses (a), (b), (c), (e), (f) and (g) confirm the cumulative effect of the criteria.
The significance of the Regulation is that although challenges were made by the sponsor and the proposed employee to the Tribunal's decision in relation to various criteria, it is recognised that if the Tribunal has made a decision free of jurisdictional error in relation to only one criterion, then having regard to the cumulative effect of the criteria, the application for judicial review would fail in both instances.
In this judgment, when referring to the Tribunal decision, unless otherwise stated I shall refer to the decision dated 31 May 2006 which dealt with the sponsor's application; that is, the substantive decision of the Tribunal. In that decision the Tribunal made a finding after setting out in full Regulation 1.20D, and did so under headings which related to relevant criteria. For convenience I will adopt the headings and cross‑reference the headings to the relevant Regulation and then set out the Tribunal Decision, the Applicants’ contentions, the First Respondent's contentions and the court's reasoning.
The Tribunal Decision, Submissions and Reasoning
Would the proposed employment contribute to the creation or maintenance of employment for Australian citizens or Australian permanent residents, or contribute to expansion of Australian trade in goods and services, or contribute to improvement of Australian business links with international markets, or contribute to competitiveness within sectors of the Australian economy?
(Regulation 1.20D(2)(a))
“(2) The Minister must approve the application if:
(a) the Minister is satisfied that the applicant for approval is actively and lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to:
(i) the creation or maintenance of employment for Australian citizens or Australian permanent residents; or
(ii) expansion of Australian trade in goods or services; or
(iii) the improvement of Australian business links with international markets; or
(iv) competitiveness within sectors of the Australian economy; and”
(emphasis added)
Tribunal decision
The Tribunal concluded that it was not satisfied that the sponsor meets Regulation 1.20D(2)(a). In reaching its decision it referred to the decision of Qi v Minister for Immigration and Multicultural Affairs [2002] FCA 326 (Qi) as authority for the proposition that whether this "criterion is satisfied is essentially a question of fact and degree". The Tribunal then referred to Form "1196" provided by the sponsor to the Tribunal where the sponsor claimed that the employment of a temporary business entrant would benefit Australia through the employment of Australian citizens or Australian permanent residents.
Form 1196 appears in the Court Book of the sponsor's application at p.40. At p.42 under the heading "Details of Training," in answer to question 25 which asks, "What was your expenditure on training Australian citizens or permanent residents for the most recent financial year?" an amount of $22,000 has been inserted. It is noted in passing that under the question the following appears:
“Include paid study leave, accredited training courses, reimbursement of study-related costs, employment of designated training officers and the cost of in-house training which follows a predetermined plan and format.”
The Tribunal then sets out what it regards as a relevant extract from the Procedures Advice Manual 3 (PAM3) and then relevantly finds as follows:
“34.The Tribunal takes into account the information provided on form 1196. The Tribunal also takes into account the oral evidence of Mr Kazanis. The Tribunal takes into account the evidence regarding the duties of the nominated position. The Tribunal is not satisfied on the evidence submitted that the nominated position will result in additional jobs for Australian citizens or Australian Permanent residents or in the maintenance of employment for Australian citizens or Australian Permanent residents, which may be lost without the input of the nominated position.” (Emphasis added)
It will be noted in that extract that I have emphasised the words "will result" for convenience.
Applicants’ submissions
It was submitted that the Tribunal misunderstood and/or misapplied this criterion or asked itself the wrong question. There was evidence before the Tribunal that four Australian citizens were employed by the First Applicant (see Supplementary Court Book p.11 line 20). All that was needed to be satisfied for the purpose of the Regulations was that the employment of the proposed employee would contribute to the maintenance of employment of Australian citizens or permanent residents according to the Applicant's submissions.
It was further submitted that the use by the Tribunal of the words "will result" when dealing with this aspect sets a higher test than that which would be required by the subclause which simply refers to "would contribute".
It was argued there was no necessity that the nominated position actually created additional jobs or that it actually prevented the loss of jobs. The expression, it was argued, is in the conditional and requires contribution. To the extent that PAM3 says otherwise, it was submitted that is wrong and inconsistent with the Regulation.
First Respondents submissions
It was submitted on behalf of the First Respondent that whether the Applicant's employment of the proposed employee would contribute to the creation or maintenance of employment for Australian citizens or permanent residents was a question of fact for the Tribunal. The evidence concerning the four Australian citizens does not necessarily satisfy the Tribunal that the criterion was satisfied. This was a matter for the Tribunal to determine. On the face of it, it would not appear that the evidence itself must have led to a finding that the criterion was satisfied.
Counsel for the First Respondent referred to an extract from the decision of Tamberlin J in Qi where the court, when considering the same expression in subclause 457.223(2) as in the present matter, relevantly stated as follows:
“4.The question as to what amounts to a contribution within the meaning of the regulation is one of fact and degree. It is a matter for the Tribunal and is not one on which it is appropriate for this Court to differ on an application for judicial review.”
In relation to the use of the phrase "will result" by the Tribunal, the First Respondent submitted that the Tribunal, after setting out the relevant part of the PAM3, was then entitled in reaching its decision and following PAM3 to determine whether it was satisfied there would be net job creation or the maintenance of employment. The analysis of the use of the words "will result" by the Applicants, it was submitted, invites the court to encourage the type of scrutiny mandated against in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang).
Reasoning
In my view, the submissions made for and on behalf of the Applicants in relation to this matter are correct. The Tribunal misdirected itself by asserting it was required to be satisfied that the employment "will result" rather than "would contribute" to the creation and maintenance of employment. This is a significant error and misdirection of a kind which could not properly be described as involving scrutiny in an overcritical or overzealous fashion. It is a fundamental misdirection which has resulted in the Tribunal taking into account an irrelevant matter and thereby committing jurisdictional error by directing itself to apply an outcome not contemplated by the relevant criterion; namely, by the use of the words "will result" instead of the words "would contribute".
It is not necessary for the court to do anything other than consider the natural and ordinary meaning of those words. It is clear that a contribution is different from a result. The use of the words "would contribute" in the Regulations in my view clearly means something less than an outcome, which would be the meaning conveyed by the Tribunal incorrectly adopting and using the words "will result".
I accept the submission by the Applicants that the Regulation does not require that the nominated position actually creates additional jobs or that it actually prevents a loss of jobs but rather it requires a ‘contribution’.
The extract from PAM3 relied upon by the Tribunal does not appear to use the words "will result", though to the extent that it purported to suggest that the Regulation will result in "net job creation", which then may be regarded as justifying use of the expression "will result", then I accept that the PAM does not accurately reflect the ordinary meaning of the Regulation, and it is the ordinary meaning of the Regulation which in my view should prevail.
Accordingly, I am satisfied the Tribunal has made a jurisdictional error for the reasons stated when considering this criterion.
Will the Applicant for approval introduce, utilise or create new or improved technology or business skills?
(Regulation 1.20(D)(2)(c))
“(2) The Minister must approve the application if:
…
(c) the Minister is satisfied that the applicant for approval:
(i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or
(ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and”
In its decision, the Tribunal noted the claim made on Form 1196 that the sponsor will utilise new technology.
The Tribunal then refers to PAM3 which in part states:
“Regulation 1.20D(2)(c)(i) reflects the need for Australian businesses to import highly-skilled persons who can assist businesses to take advantage of new or improved technologies or have other new business skills vital to a business maintaining its competitive edge. A wording of the criterion is that it must be the 'applicant for approval' (ie, the sponsorship applicant) who will introduce, utilise or create new or improved technology or business skills. ...”
The PAM3 referred to by the Tribunal then states under the heading “Requirements” in part the following:
“Any purported new or improved technology or business skill to be introduced, utilised or created must have discernible qualities and capabilities beyond that widely established or readily available in Australia:
·…
·…
·‘utilise’ - refers to companies that wish to incorporate and adapt a technology (or business skill) not widely established or readily available within Australia.”
In its findings, after reciting in detail PAM3, the Tribunal then succinctly concludes in relation to this matter:
“38.The Tribunal takes into account the information provided in form 1196 and the oral evidence of Mr Kazanis. His evidence indicated that the review applicant uses new technology – up to date equipment and software. He agreed that most businesses in this area would be using this equipment.”
The evidence of Mr Kazanis, which appears in the Supplementary Court Book, which is relevant to this issue appears to be the following:
“MS WHITAKER: Okay. Now, it was indicated in the document submitted that the sponsor would be introducing, utilising, or creating new and improved technology. Now, this is not often a thing that’s claimed at the tribunal because it has got to be cutting-edge technology and all this kind of thing. Usually people go for the training one but you have indicated in the form that you’ve ticked this box. So are you saying that you have created new technology or you are going to introduce new technology or you’re utilising new technology.
MR KAZANIS: Pretty much we’re utilising new technology.
MS WHITAKER: So can you explain what you mean by that?
MR KAZANIS: Well, the form of business that we do at Epworth Centre we have the laser - - -
MS WHITAKER: But hasn’t that been around for years now?
MR KAZANIS: Yes. But the technology is updating constantly.
MS WHITAKER: Yes. So you need to explain.
MR KAZANIS: Over a matter of the last 12 months we’ve picked up a different laser which now is – it basically has a different beam. It’s supposed to be the most advanced that there is at the moment and what they’re doing is the difference between the old and new now is the software that comes with it which gives a lot more accuracy.
MS WHITAKER: So what you’re saying is that you update to the most modern your – whatever equipment you’re using.
MR KAZANIS: Pretty much so, yes.
MS WHITAKER: So that’s the basis of saying that you’re utilising new technology.
MR KAZANIS: Yes. Also the software, the computer software and all that type of thing.
MS WHITAKER: All right. But wouldn’t every eye clinic in Australia, in every state, that’s doing what you’re doing, you know – you’d be using the latest resources?
MR KAZANIS: I would say we’re unique because you’ll find most ophthalmologists don’t have dispensing practices as well.”
(Supplementary Court Book p.8 lines 5-41 to p.9 lines 1-5)
Applicants’ submissions
The Applicant's submissions emphasised the fact that this subclause is in the alternative to the following subclause; namely, Regulation 1.20D(2)(c)(ii). In the event that the Applicants succeed in demonstrating error in relation to either subclause, it was submitted that this aspect of the decision could not be upheld.
It was submitted there was evidence before the Tribunal, which it appeared to accept, that the sponsor was using new technology. It was argued that no reason was given for the Tribunal's lack of satisfaction with regard to the subclause. Accordingly, the Applicant's counsel invited the court to assume, having regard to paragraph 38 of the decision of the Tribunal set out earlier in this judgment, that it was because Mr Kazanis agreed that most businesses in the same field would be using the equipment in question that the Tribunal found this criterion had not been satisfied. It was argued, however, that this was not a disqualifying feature. All that the sponsor needed to do according to the submissions of the Applicant was to "utilise new or improved technology" (emphasis added).
Accordingly it was submitted that the Tribunal had misconstrued or misunderstood the relevant criterion or took into account an irrelevant consideration; namely, that other like businesses were also using the same technology.
First Respondents submissions
The First Respondent submitted that the Tribunal, after noting the evidence of Mr Kazanis given at the hearing, had indicated that new technologies used in the sense of up-to-date equipment of software and its reference to "most like businesses use the same equipment" meant the Tribunal was simply not satisfied that the technology being used by the sponsor satisfied the criterion. Hence the Tribunal in that context made reference to the relevant part of PAM. As the PAM stated, it was submitted, the new technology to be used was required to have "discernible qualities and capabilities beyond that widely established or readily available in Australia" (Court Book p.61). It was submitted that it appeared, incidentally, that the further technology related to laser surgery equipment or associated software was used by Meadownick rather than the Applicant.
Accordingly, it was submitted, there was no error.
Reasoning
In my view, the Applicants’ submissions in relation to this criterion are correct. The Tribunal has misdirected itself and/or asked itself a question which is irrelevant; namely, relying upon the question that most businesses in the same field were using the equipment in question. That factor seems to be determinative in the Tribunal's reasoning rather than whether the equipment was used by another related business rather than the sponsor. The Tribunal does not seem to have made a finding of fact on that issue, which I accept may of itself have been determinative of the question the Tribunal was required to consider.
The Tribunal's reliance upon the PAM in my view seems to misinterpret the PAM. The PAM for this criterion, under the heading "Requirements" next to the word "utilise", certainly states that it refers "to companies that wish to incorporate and adapt a technology (or business skill) not widely established or readily available within Australia" (emphasis added).
The PAM, under the heading "Evidence," further seeks to provide advice in relation to the evidence that the plan to introduce, utilise or create in Australia new or improved technology "may include but is not limited to business plans, contracts or correspondence with buyers and evidence of the success of the technology overseas and its adaptability to the Australian workplace.
The PAM, by introducing a concept of utilising technology "not widely established or readily available within Australia", seems to go beyond the normal meaning of the Regulation which simply provides that the Applicant for approval will "introduce to, or utilise or create in, Australia new or improved technology or business skills". That concept in my view is very broad and the Tribunal, by seeking to import a somewhat narrow interpretation of the word "utilise", has unnecessarily confined the meaning of the criterion in the manner perhaps supported by the PAM but not accurately reflecting the wording of the criterion itself.
I accept, as submitted by the Applicants, that the Tribunal in its decision at [38] set out above notes the evidence of Mr Kazanis "indicated that the review Applicant uses new technology, up-to-date equipment and software" and that that evidence should not have led to an adverse conclusion reached by the Tribunal taking into account an irrelevant matter; namely, that "most businesses in this area would be using this equipment". That conclusion, whilst perhaps consistent with the PAM, is inconsistent with the relevant criterion and therefore constitutes taking into account an irrelevant matter sufficient to provide a basis for the claim of jurisdictional error.
Has the Applicant for approval a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents?
(Regulation 1.20D(2)(c)(ii))
““(2) The Minister must approve the application if:
…
(c) the Minister is satisfied that the applicant for approval:
(i)will introduce to, or utilise or create in, Australia new or improved technology or business skills; or
(ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and”
Again in considering this criterion, the Tribunal referred to the relevant PAM3. In that document the following appears under the heading "Training Record or Commitment to Training":
“In assessing this criterion, employers must provide clear evidence of either a satisfactory training record or demonstrated commitment to training Australian citizens and permanent residents in the employer’s business operations.”
The Tribunal then refers to the other part of the PAM3 which provides some guidance in relation to evidence. It then relevantly makes the following findings:
“41.Although Form 1196 indicated that $22,000 was expended on training, the Tribunal notes that there was no expenditure for training in the financial statements. When this aspect of the financial statements was discussed with Mr Kazanis, he indicated that the training provided by suppliers is free and that his on the job training is part of his role and not a separately shown expense. The Tribunal noted that while there was a reference in form 1196 (submitted to the Tribunal) to the training of optometrists, the oral evidence was that this was not undertaken by the review applicant. While it was indicated in form 1196 that the in-house training of staff was undertaken by the general manager, optometrist and other support staff, in his oral evidence Mr Kazanis gave evidence that training was undertaken by him (general manager), administrative staff and from more experienced staff to less experienced staff. He indicated that training is ongoing and entails a monthly meeting where discussion in specific areas occurs. The Tribunal also noted the future training plans for staff in form 1196.
42.Even though on the job training it may not be quantifiable, such training may provide the basis of a satisfactory record of training. The Tribunal has considered all evidence provided by the review applicant. The Tribunal notes that the review applicant did not provide, as requested, any documentation regarding their past training record, current training program, and of the review applicant’s financial commitment to future training. The oral evidence lacked detail. The submission in form 1196 that the amount of $22,000 was spent on training was not supported by any additional evidence and not explained sufficiently at the hearing.”
The Tribunal then concludes that it was not satisfied that the review Applicant meets Regulation 1.20D(2)(c)(ii).
Applicants’ Submissions
It was submitted that the Tribunal, in considering this criterion, did not address the case put by the Applicants. Although it recited some of the material, it did not articulate any reasoning process. Further, it was argued the Tribunal did not consider whether the sponsor's facilitation of training of its staff by external agencies, in this case business supplies, could be part of its record of or commitment to training.
It was submitted the Tribunal failed to consider or analyse the "in-house training" to determine whether that was sufficient either on its own or in combination with the external training to demonstrate whether the training requirement had been satisfied.
Further, it was argued the Tribunal did not consider whether the sponsor's provision of staff training was reasonably commensurate with the nature and extent of the First Applicant's business operations in Australia.
Both parties referred the court to the decision of Branson J in Nice Shoes Australia Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 252. It is relevant to set out the following paragraphs from Her Honour's decision:
“14 The terms of reg 1.20D read as a whole demonstrate that the approval of an applicant as a standard business sponsor is intended to benefit the Australian economy. For an approval to be granted the Minister must be satisfied that the applicant for approval is lawfully operating a business in Australia in which the employment of the holder of a Subclass 457 visa would contribute to one of the aspects of the Australian economy identified in reg 1.20D(2)(a)(i), (ii), (iii) or (iv). Additionally, the Minister must be satisfied that the applicant for approval itself will do one of the things referred to in reg 1.20D(2)(c)(i) or satisfy one of the requirements of reg 1.20D(2)(c)(ii).
15 It is in the above context that the particular requirement of reg 1.20D(2)(c)(ii) must be considered. It can be seen to be a requirement that the Minister be satisfied that the applicant for approval will contribute to the Australian economy by providing training to Australian citizens and Australian permanent residents in its business operations. As the applicant’s commitment towards training Australian citizens and Australian permanent residents in its business operations was sought to be demonstrated principally by its training record, it is sufficient to concentrate on the question of whether the Tribunal misunderstood what was involved in determining whether it was satisfied that the applicant ‘has a satisfactory record of ... training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia’.
16 The Macquarie Dictionary (Rev 3rd ed, 2001) relevantly defines ‘satisfactory’ as meaning ‘affording satisfaction; fulfilling all demands or requirements’. The New Oxford Dictionary of English (1998) may indicate a lesser standard. It relevantly defines ‘satisfactory’ as meaning ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’. The difficulty that attends the use of the term ‘satisfactory’ to qualify the record of training to which reg 1.20D(2)(c)(ii) refers is that the Migration Regulations 1994 provide no measure or standard against which a record of training is to be assessed in determining whether it affords satisfaction or is acceptable albeit not perfect. In the circumstances the necessary measure or standard must be found by implication from reg 1.20D read as a whole. Seen in that context, in my view, a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to Australian citizens and Australian permanent residents to a degree reasonably commensurate with the nature and extent of its business operations in Australia. To put it in ordinary language, that the applicant makes a reasonable contribution to the training of the Australian workforce having regard to the nature and extent of its business operations in Australia.
…
19 Similarly, in my view, the consideration given by the Tribunal to the nature of the training provided by the applicant does not disclose a misinterpretation or misapplication of reg 1.20D. Nor does it disclose that the Tribunal took into account an irrelevant consideration. As is mentioned above, the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant has a satisfactory record of training Australian citizens and Australian permanent residents in its business operations in Australia. It is entirely understandable that the Tribunal might be less readily satisfied that a record of training is satisfactory where that record is of unquantifiable training all undertaken on-the-job than where that record is of quantifiable training undertaken, for example, at a training institution. That is not to say that on-the-job training that is not quantifiable can never provide the basis of a satisfactory record of training. It is just that a record of on-the-job training of a kind that is not quantifiable might prove difficult to evaluate for the purpose of determining whether that record of training is a ‘satisfactory record’. By contrast, a record of quantifiable training undertaken while free from the distraction of ordinary duties is likely to be more readily evaluated.
20 The Tribunal’s consideration of whether the training of the applicant’s sales staff was ‘extensive’ and whether the training of its managers was ‘significant’ is, in my view, to be seen in the same light. It is true that reg 1.20D(2)(c)(ii) does not require that a record of training be a record of extensive or significant training. However, a record of extensive or significant training will more readily provide the Tribunal with the satisfaction required by reg 1.20D(2)(c) than a record of training not shown to be either extensive or significant. For the reasons given in [17] above, where, as in this case, the record of training relates to one aspect only of a multi-faceted business, the scope and importance of the training may assume particular significance.
The Applicant submitted that the concept of considering the staff training reasonably "commensurate with the nature and extent of the sponsor's business operations in Australia" was particularly relevant given the sponsor was a new small company only in its fourth year of operation with six employees.
It was further submitted the Tribunal failed to consider at all evidence of the employee in relation to the question of the sponsor's training record of or commitment to training. The Tribunal had in its possession the employee's file and it is noted from the transcript that she was present at the sponsor's hearing, which appeared to have been conducted jointly with the employee's application. Reference was made to the Court Book in the employee's application at pages 14 and 15. That is a letter from the employee which refers to her duties, including "training, leading and motivating staff".
Reference is made in some detail to the letter to what are described as "administrative skills I have developed through on-the-job training at Meadownick". Further details are provided under a heading, "Technical skills I have developed through continuous on-the-job training at Meadownick". The employee states specifically, "My previous experience and on-the-job training have led to proven growth of the business during my employment." She then refers to her career strategy and states, "I am also undertaking external training to add to my qualifications and skills base." Details were then given of relevant courses.
Further, it was submitted that the Tribunal omitted to deal with this relevant evidence.
It was submitted that the Tribunal only considered whether the sponsor had a satisfactory "record of training". The Tribunal focused on documentary evidence in support of the sponsor's record of training but failed to consider the alternative limb under the Regulation; namely, whether the First Applicant had a demonstrated commitment towards training. It was submitted the Tribunal failed to deal with the evidence of Mr Kazanis in relation to this issue.
First Respondents submissions
The First Respondent referred to the Tribunal's decision, and in particular [42] where it states that it had "considered all evidence provided by the review applicant". It is significant to note that the Tribunal then made specific findings, set out in [42] above, which included reference to on-the-job training not being "quantifiable" and that "such training may provide the basis of a satisfactory record of training". The Tribunal then, it was submitted, further found that the evidence lacked detail. It referred to the form 1196 where an amount of $22,000 was spent on training and that this was not supported by any additional evidence, nor explained sufficiently at the hearing. It was open to the Tribunal to therefore find that it was not satisfied that the Applicant satisfied this criterion.
Reference was made to the decision in Chiang v Minister for Immigration and Multicultural Affairs [2001] FCA 542 (Chiang) where North J concluded:
“10 In my view, the Tribunal committed no error of law in dealing with this question. In the passage relied upon, the Tribunal made findings of fact on the basis of the evidence before it. It determined that the training provided was informal and confined to a low level and it determined, as a matter of judgment and assessment, that the particular level and type of training did not fall within the description of a "satisfactory record" of, or "demonstrated commitment towards", training as required by the subclause. At the very best for the first applicant, it might be argued that the Tribunal made an error in assessment or judgment of the facts. Even if that were so, and I do not suggest that it was, it would not support the ground of review urged by counsel.”
The First Respondent further referred to a Full Court decision in MM International (Australia) Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 323 (MM International) where the court, when considering the relevant sub regulation, stated:
“10 However, such a construction of the word ‘satisfactory’ does not advance the appellant’s case. The words ‘record’ and ‘demonstrated’ are unavoidably preterite in meaning. The Tribunal is obviously required to look to the past in making a determination under reg 1.20D(2)(c)(ii).
11 In the present case, where the Tribunal has stated its ultimate findings or conclusions in relatively terse terms that mirror the language of the legislation, no error in its interpretation is apparent. It is also worth recalling what R D Nicholson J said in Lace Holdings Pty Ltd v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 79 at 86 ([34]):
‘... the Tribunal correctly interpreted and applied reg 1.20D(2)(f) of the Regulations. 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 ...’”
In the present case, it was submitted, the Tribunal determined as a matter of judgment and assessment, and in light of the limited material advanced by the Applicant notwithstanding the Tribunal's request, that the training provided did not satisfy the criterion. This was a determination of fact for the Tribunal open to it and free of jurisdictional error.
A number of authorities were referred to by the First Respondent concerning the Tribunal's role as arbiter of fact and it is not necessary for the court to refer to those authorities in any detail. It was submitted that the challenge to the Tribunal's decision in relation to this criterion was no more than an invitation to undertake merit review. In meeting the Applicant's submission that the Tribunal did not analyse the evidence before it or articulate its reasoning process, the First Respondent referred to the decision of Tamberlin J in Qi where the court states relevantly:
“7 In the absence of either of these matters having been established, the application was bound to fail before the Tribunal. Accordingly, the Tribunal reasoned in its conclusion that the visa applicant did not meet one of the essential criteria for subclause 457.223(7) of the Migration Regulations 1994. The applicant did not contend that he meets the criteria for a visa sought on any other ground. The reasoning of the Tribunal is succinct and does not describe the details of the way in which the conclusion was reached by it. However, because the questions involved are questions of fact and degree, I am not persuaded that the conclusion reached was not available to the decision-maker.”
It was submitted that the Tribunal was not obliged to set out every detail of the reasoning process which it eventually employed for the Applicant's consideration (see Re Ruddock & Another Ex parte S154/2002 (2003) 201 ALR 437).
It was submitted the Tribunal did not fail to consider evidence of the employee in relation to the issue of training. Instead it made specific reference to that material in its decision at paragraph 8. The evidence of the employee which appears in the Supplementary Court Book, it was submitted, appears to be limited to confirming her salary.
The Tribunal did not only consider whether the Applicant had a satisfactory record of training but also whether the Applicant had a demonstrated commitment towards training. In paragraphs 41 and 42 of its decision set out earlier in this judgment, it was submitted the Tribunal made reference both to future training plans and whether there was any financial commitment to future training.
During the course of submission, reference was made to the apparent confusion in the material provided by the employee concerning her training with Meadownick. However, it appeared to be conceded by counsel for the First Respondent that although the Tribunal may have embarked upon an investigation concerning the relevance of this related entity, its failure to further explore that issue would not be relevant in considering whether jurisdictional error has occurred in this instance. I agree that that concession was appropriately made and that it does not appear to be a relevant matter for the consideration of this court when dealing with the submissions of the parties.
Reasoning
In my view, the First Respondent's submissions in relation to this criterion are correct. Although the Tribunal may not have considered in detail the material before it concerning in-house training and other material by the employee, it did consider the issues and recited in brief terms the material relied upon in support of the application.
I accept and apply the authorities to which reference has been made by the First Respondent, and in particular the extract from the decision of the court in Chiang and MM International. I further accept and apply the reasoning of Tamberlin J in paragraph 7 in Qi.
In my view, in a matter of this kind, even though the reasoning of the Tribunal could properly be regarded as succinct and in part fails to describe some of the details and the way in which the conclusion was reached by it, it is not sufficient in this instance to conclude that it has failed to consider the relevant issues, including whether the sponsor had a demonstrated commitment towards training. It has also not failed to consider, in my view, the relevance of "on-the-job training" or "in-house training". It has specifically and clearly made reference to that material as at least having the capacity to provide the basis of a satisfactory record of training.
I can see no error in the Tribunal's reasoning when it considered this criterion.
However, I further accept that this criterion is an alternative to the preceding criterion, namely, 1.20D(2)(c)(i), where I have found error in the Tribunal's reasoning. Accordingly, the fact that I have agreed with the submissions by the Second Respondent that there is no error when dealing with criterion 1.20D(1)(c)(ii), which is the alternative, is not fatal to this application.
Is the Applicant for approval able to comply with undertakings with respect to visa holders?
(Regulation 1.20D(2)(f))
“(2) The Minister must approve the application if:
…
(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 in accordance with the approved form 1196 of 1196 (Internet); and”
The Tribunal's Decision
The Tribunal recites Regulation 1.20CB of the Regulations which sets out the list of undertakings which are relevant to this application.
In brief terms it then makes the following finding:
“49.The unaudited financial statements (Statement of Financial Performance and Trading Profit and Loss Account) indicate that in the 2003 financial year the review applicant made a loss of $50,207 and made very modest operating profit of $2433 in 2004. Mr Kazanis’ oral evidence indicated that he would be satisfied if the review applicant made any profit. The Tribunal had requested the review applicant’s Balance Sheets, but these were not provided . On the information submitted the Tribunal is not satisfied that the review applicant’s financial position is such as to be able to meet its undertakings.”
After making that finding it concludes that the Applicant failed to meet Regulation 1.20D(2)(f).
Applicant's Submissions
It was submitted that the paucity of reasoning in relation to this criterion makes it clear that the Tribunal failed to deal with the case which the Applicant had put forward. First, it was argued the Tribunal confined itself to one set of accounts and appears to have been influenced by the small profit recorded by the sponsor in 2004. It could be inferred therefore that the Tribunal did not appreciate that figure represented the company's profits after the sponsor had already been paying the employee's wages. Otherwise, the Tribunal did not appreciate the sponsor had only been in operation since 25 June 2002 and had doubled its revenue from the previous financial year.
The decision of the Tribunal was criticised as it appeared to have required the sponsor to have achieved a more substantial level of business profit before it could have the ability to meet its obligations under sponsorship undertakings. That, it was argued, misunderstands the nature of business profit and ignores the fact that a business may run at a loss but nevertheless have the capacity to meet its commitments. The Tribunal failed to have regard to the critical link between the sponsor and Meadownick and evidence that that related corporate body was supporting the sponsor, which was effectively a subsidiary entity of Meadownick. Reference was made to the transcript in the Supplementary Court Book as follows:
“MS WHITAKER: Right. Now, according to the financial statements in 2003 there was a loss of $50,207.
MR. KAZANIS: That’s right.
MS WHITAKER: In 2004 a profit of $2,433. Now, the relevance to that is the sponsor has to sign financial undertakings and as a decision-maker the tribunal has to be satisfied that the undertakings can be met.
MR KAZANIS: Yes.
MS WHITAKER: So given that the profit was $2433 I guess that the tribunal has to be satisfied that the sponsor is in a position to pay the salary, repatriation costs, any liabilities to the Commonwealth, superannuation contributions, Medicare, all those kind of things. So what’s your response to that because $2433 - - -
MR KAZANIS: Yes, this is when we first began - - -
MS WHITAKER: - - - is looking – this company was registered in 2002.
MR KAZANIS: 2 – correct, yes.
MS WHITAKER: So its 2006 now. Yes?
MR KAZANIS: Yes. So ideally what’s happening is they are – in a way the two companies are merged. There is Meadownick Laser Centre and there is Total Eyecare which is also Meadownick Total Eyecare.
MS WHITAKER: Now Total Eyecare involves everything, doesn’t it?
MR KAZANIS: No.
MS WHITAKER: Meadownick is a totally separate company?
MR KAZANIS: Meadownick – Meadownick is separate.
MS WHITAKER: I DIDN’T REALISE THAT. So Meadownick is a totally separate company.
MR KAZANIS: Yes. But Meadownick is supporting Total Eyecare.
MS WHITAKER: Okay. So Meadownick is a totally separate incorporated company?
MR KAZANIS: A totally separate incorporated company, yes.
MS WHITAKER: That’s in charge of the eye clinic.
MR KAZANIS: That’s correct.
MS WHITAKER: That’s their core business.
MR KAZANIS; That’s correct.
(Supplementary Court Book transcript p15 lines 15-41 and p.16 lines 1-24)
“MS WHITAKER: So who pays the wages then if the two companies are totally different?
MR KAZANIS: Well, ideally with Total Eyecare - - -
MS WHITAKER: Who pays the nominated position’s wages?
MR KAZANIS: It’s all paid through Dr Meadownick; with the two practices if the Total Eyecare for example is not making, you know, huge profits at the moment – its improved a lot this year, we cover it from the Meadownick company.
MS WHITAKER: So they’re two separate companies but you’re saying the wages are paid by?
MR KAZANIS: There’s separate ways of wages. There is those - -
MS WHITAKER: For Eyecare.
MR KAZANIS: For Eyecare.
MS WHITAKER: For Eyecare wages and Meadownick wages.
MR KAZANIS: Yes.
MS WHITAKER: So who pays the nominated - - -
MR KAZANIS: The company does.
MS WHITAKER: Which company?
MR KAZANIS: Total Eyecare.
MS WHITAKER: All right. Because you’re the sponsor, aren’t you?
MR KAZANIS: Yes. Yes.
MS WHITAKER: So did you want to add anything to what we were talking about, which is the ability to meet financial undertakings of Total Eyecare?
MR KAZANIS: Because of the size of the business itself a lot of funds are being put into ensure that that company survives: Total Eyecare. The funds are possibly put in privately; I’m not 100 per cent sure which way it goes in.
MS WHITAKER: Yes.
MR KAZANIS: But it’s something that’s – well pretty much set up. They’re developing at a good rate and we don’t envisage anything is going to change in the future. We’re now looking a different things by maybe trying to create some ownership through optometrists in there.
MS WHITAKER: Yes. I guess what the tribunal is trying to get a response on is the $2433 profit. The tribunal has to be satisfied that you can meet financial undertakings and that’s not – it doesn’t seem very much of a leeway.
MS KAZANIS: You see this is profit after the poor financial year.
MS WHITAKER: Yes.
MR KAZANIS: So that means within that everyone has been paid; all expenses have been paid. What it actually does is it alleviates a lot of pressure from the Richmond clinic and if we’re able to get to that standard I’d be quite satisfied, you know.
MS WHITAKER: If you can get to what standard.
MR KAZANIS: To achieving any form of profit. Obviously we’re looking to try to develop that as well.
MS WHITAKER: Okay. Now, what is Ms Kavanagh’s salary?”
(Supplementary Court Book p.17 lines 19-43 and p.18 lines 1-41)
It was submitted by the Applicant the Tribunal failed to consider the content of form 1196 signed by the sponsor. Reference was made to the decision of Nicholson J in Lace Holdings Pty Ltd v Minister for Immigration and Multicultural Affairs (2001) 117 FCR 79 (Lace Holdings) where His Honour states:
“[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.”
First Respondents submissions
It was submitted that in relation to this criterion the Applicant seeks impermissibly to challenge the Tribunal's assessment of the evidence before it and conclusions reached.
It was argued that a question posed by the criterion was whether the Applicant was able to comply with the undertakings given. The Tribunal set out the relevant undertakings and considered the material appointed to the competency of the sponsor to comply with the undertakings. The assessment was made on what was described as relevant material to the sponsorship undertakings and that this was a matter of fact and degree for the Tribunal.
It was argued there was nothing to suggest the Tribunal did not take into account the whole of the evidence as to the relevant corporate training history of the sponsor. Specifically, the Tribunal noted evidence regarding the $50,207.00 loss in the 2003 financial year and the profit of $2,433.00 in the 2004 financial year. It set out evidence given at the hearing in its decision (paragraph 25, Court Book p.56) and then considered it in [49] set out earlier in this judgment. It noted it had requested further financial information in the form of the Applicant's balance sheets but these had not been provided.
Again during the course of submissions, when referring to the documents provided which were before the Tribunal, it was noted, though neither party sought to explore the issue any further, that the profit and loss account (Court Book pp.50-51) appears to relate to "Total Eye Care Australia unit trust." Appropriately, it was conceded the Tribunal did not discount the material even though it clearly refers to another entity, and for present purposes I am not satisfied it is relevant to consider that issue any further.
The First Respondent otherwise also referred to the decision of the court in Lace Holdings and specifically the following paragraph:
“[34] In the present case the Tribunal correctly interpreted and applied reg 1.20D(2)(f) of the Regulations. 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: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629.”
It was noted that that passage from the decision of Nicholson J in Lace Holdings was referred to by the Full Court of the Federal Court in MM International at [11].
The First Respondent submitted that in dealing with this criterion there is no jurisdictional error.
Reasoning
In my view, the First Respondent's submissions in relation to this criterion are correct. The Tribunal is not required to examine the material placed before it in the manner now suggested by the Applicant. Whilst the Tribunal's reasoning may in some ways be fairly described as a "paucity of reasoning", it demonstrates in [49] set out earlier in this judgment, that it has considered the appropriate issues and has otherwise been cognisant of the material placed before it by the sponsor.
The analysis now sought to be advanced for and on behalf of the sponsor in my view is simply an alternative finding of fact and not demonstrable of jurisdictional error. Challenges to the reasoning process of the Tribunal, its failure to understand business reality of a capacity to meet expenses even though not making a significant profit, cannot in my view form the basis upon which it could be argued the Tribunal has committed jurisdictional error. The Tribunal's reasoning process and findings of fact in relation to this issue are matters reasonably open to it which are free of jurisdictional error.
I accept, as stated by Nicholson J in Lace Holdings, that the mere possibility that the Tribunal's finding of fact is in error and that this court may have made a different finding does not of itself provide a permissible basis for review. Accordingly, the challenge to the Tribunal's decision in relation to this criterion fails.
Conclusion
Given that the challenge to the Tribunal's decision in relation to the failure of the Applicant to meet Regulation 1.20D(2)(f) has failed and that failure by the sponsor to meet this criterion as one of the cumulative criterions, it follows that the application for judicial review should be dismissed with costs. The failure of the sponsor to meet this criterion set out in Regulation 1.20D(2)(f) is sufficient to dispose of the application. The absence of any jurisdictional error by the Tribunal when considering that criterion, as indicated, means that this application for judicial review should fail.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 March 2007
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