Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 563
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 563
File number(s): ADG 288 of 2018
ADG 289 of 2018
ADG 290 of 2018
ADG 291 of 2018Judgment of: JUDGE HEFFERNAN Date of judgment: 25 March 2021 Catchwords: MIGRATION – subclass 457 visas – whether Tribunal misapprehended and misapplied regulations – whether Tribunal had regard to an irrelevant consideration – whether denial of procedural fairness – whether interpretation of terms of contract of employment unreasonable Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), rr 5.19(3)(c) & (d)
Cases cited: Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264
SZNBX v Minister for Immigration & Citizenship (2009) 112 ALD 475
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration & Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1
Tarrant v Australian Securities & Investments Commission (2015) 317 ALR 328
Re Montgomery & Commissioner for Superannuation [1985] AATA 7
Number of paragraphs: 41 Date of hearing: 21 October 2020 Place: Adelaide Counsel for the Applicants: Mr Jacobi Solicitor for the Applicants: Ujvari Lawyers Counsel for the Respondents: Mr d’Assumpcao Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
ADG 288 of 2018 BETWEEN: DAC DUNG TRAN
First Applicant
THI HONG TUOI NGUYEN
Second Applicant
QUANG BINH TRAN
Third Applicant
QUANG HUY TRAN
Fourth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ADG 289 of 2018 BETWEEN: THI NGOC LAN TRAN
First Applicant
HUU HIEP NGUYEN
Second Applicant
TRAN HONG NGUYEN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ADG 290 of 2018 BETWEEN: H & L HYDROPONICS PTY LTD as Trustee for the H & L Hydroponics Trading Trust
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ADG 291 of 2018 BETWEEN: H & L HYDROPONICS PTY LTD as Trustee for the H & L Hydroponics Trading Trust
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HEFFERNAN
DATE OF ORDER:
25 MARCH 2021
THE COURT ORDERS THAT:
1.The applications in action numbers ADG 290 of 2018 and ADG 291 of 2018 are dismissed.
2.The applicant is to pay the costs of the first respondent in the matters of action numbers ADG 290 of 2018 and ADG 291 of 2018 in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).
3.The applications in action numbers ADG 288 of 2018 and ADG 289 of 2018 are adjourned for further mention to 9.30am on 11 May 2021.
REASONS FOR JUDGMENT
JUDGE HEFFERNAN
These four matters are inextricably linked and were heard together with the consent of the parties.
Action numbers ADG 290 of 2018 and ADG 291 of 2018 have been filed by H & L Hydroponics Pty Ltd as Trustee for the H & L Hydroponics Trading Trust (‘H & L’), the nominated employer for the visa applicants (‘the nominees’) who are Dac Dung Tran who has filed application number ADG 288 of 2018 and Thi Ngoc Lan Tran who has filed application number ADG 289 of 2018. The grounds in the nominated employer applications are almost identical. The grounds in both nominee applications are almost identical.
The grounds in action number ADG 290 of 2018 deal with the substantive content of all four applications.
As the applications in action numbers ADG 290 of 2018 and ADG 291 of 2018 both deal with the nominated employer and as the claims of the visa applicants are consequential or dependent on the success of the employer applications, it was agreed between the parties that I should proceed to hear the applications of the nominated employer first. In the event that I find jurisdictional error established, the parties will have liberty to call the applications of the visa applicants back on for mention and appropriate orders, noting that in that case the Tribunals decisions with respect to the nominees would have been founded on anterior related decisions which were affected by jurisdictional error.
H & L seeks constitutional writs against decisions of the Administrative Appeals Tribunal (‘the Tribunal’) affirming the decisions of a delegate of the Minister to refuse approvals for the nominated positions with respect to Mr Tran and Ms Tran. The Tribunal determined that H & L had not met the criteria that each nominee, “will be employed on a full-time basis in the position for at least two years”, as required by r 5.19(3)(d) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The ground of review relied on by H & L in action number ADG 290 of 2018 is as follows:
1.The Tribunal’s Decision in relation to the Applicant is affected by jurisdictional error by reason that it:
"Profitability" and employment of the nominees
1.1.misapprehended the requirement in r 5. I 9(3)(d)(i) of the Migration Regulations 1994 ("the Regulations") (and accordingly applied the incorrect test) by reasoning that it required the Applicant to satisfy the decision-maker that it could pay the stated wages and still make a trading profit in each future year for at least two years in order to demonstrate that it will employ the nominee Thi Ngoc Lan Tran ('the Nominee");
1.2.had regard to an irrelevant consideration, being the salary of the further nominee, Dae Dung Tran, in reaching the conclusion that the Applicant will not be able to meet the additional wages expense, and therefore will not employ the Nominee on a full time basis for at least two years; and,
1.3. denied the applicant procedural fairness by not affording the Applicant an opportunity, when it was requested, to provide current financial information to support their oral disputed evidence that the Applicant was able to meet all of its wages obligations notwithstanding paying both nominees the stated salary during the 2017-18 financial year.
The contract of employment
1.4.misapprehended the requirement in r 5.l 9(3)(d)(i) of the Regulations (and accordingly applied the incorrect test), by reasoning that the contract of employment ("the Contract") for the Nominee needed to make express mention that the period of employment was at least two years;
1.5.failed to have regard to a relevant consideration, in that the Contract for the Nominee when properly construed provided for ongoing employment on a full time basis and therefore met the criteria in r 5.19(3)(d)(i) of the Regulations;
1.6.was unreasonable in concluding that the Nominee did not have any enforceable legal rights of employment for at least two years within the meaning of r 5.19(3)(d)(i) of the Regulations, when the Contract provided for an ongoing position with enforceable rights;
1.7.misapprehended the requirement in r 5.19(3)(d)(ii) of the Regulations (and accordingly applied the incorrect test) by reasoning that the Contract needed to make express mention of whether it excluded the possibility of an extension (as opposed to it not containing such a provision);
With the exception of the names of the nominee, the ground in action number ADG 291 of 2018 is identical.
BACKGROUND
The background facts to this matter were not in dispute. The following is adapted from the applicant’s written submissions. H & L is a business engaged in growing tomatoes and capsicums. It was a substantial undertaking and had trading revenues in excess of $11 million. At the time of the Tribunal hearing, H & L had employed the nominees since 2014 under subclass 457 visas. H & L entered employment contracts with the nominees on 2 and 3 June 2017 respectively. The terms of the two contracts of employment were essentially identical. They included the following terms:
(1)The nominees were employed as growers and the employer for both contracts is H & L.
(2)Clause 1.1 set the commencement or start date as 1 June 2017.
(3)Clause 1.2 specified that the employment would be full-time.
(4)Neither contract fixed an end date for the employment relationship. As a result, neither contract included a clause setting out whether or not it could be extended.
(5)The remuneration for both contracts was set out in clause 4 and fixed at $180,001 per year plus superannuation.
(6)The notice period required in both contracts was set out in clause 8 and provided that the notice periods for termination of the contracts were as follows:
(a)Not more than one year – 1 week;
(b)More than one year but less than three years – 2 weeks;
(c)More than three years but less than five years - 3 weeks; and
(d)More than five years - 4 weeks.
On 30 June 2017, H & L applied for a nomination under r 5.19 of the Regulations in order to sponsor both of the nominees for a subclass 186 visa. A delegate of the Minister refused the nomination on 6 September 2017. The delegate found that H & L had provided a profit and loss statement for the financial year ending on 30 June 2017. The delegate concluded “I give little weight to the profit and loss statement provided as it has not been prepared by an accountant and is not able to be independently verified”. H & L also provided the delegate with a document headed “2017 Payroll Activity Summary”. That document purported to show earnings of $318,277.98 and payments of $225,033.98. Using those figures the delegate concluded that:
Regulation 5.19(3)(d)(i) requires that the nominee will be employed on a full-time basis in the position for at least 2 years. I find that the evidence provided by the nominator does not demonstrate that they are able to offer full-time employment for at least 2 years.
H & L applied to the Tribunal for a merits review of the decisions of the delegate on 25 September 2017. A hearing took place on 20 June 2018. The Tribunal had the benefit of significantly more evidence than the delegate. On the applicant’s case, during the course of the hearing, H & L offered to provide more evidence to the Tribunal that it was able to pay the salaries for both nominees. The applicant submits that the response given by the Tribunal made it unclear as to whether it was willing to receive more evidence.
The Tribunal affirmed the decision of the delegate on 21 June 2018. In doing so:
(7)The Tribunal referred to the delegate’s reasons.
(8)The Tribunal identified the relevant part of the legislation and set out the requirements as follows:
The Tribunal is satisfied that the requirement under r 5.19(3)(d) applies in this case. For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
(9)The reasoning of the Tribunal in relation to the contractual issue was as follows:
The contract makes no mention of the period of employment and is therefore silent on whether the nominee will be employed on a full-time basis for at least 2 years. The contract also makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment. In these circumstances, the Tribunal considers the nominee does not have any written agreement to enforce any legal rights of full-time employment for at least two years.
(10)The Tribunal noted that the total salary expenditure for H & L, including the wages for both nominees, was approximately $522,000. The Tribunal focused on whether H & L would be able to pay for both nominees by examining its profits:
The profit for the 2016 financial year showed $117,567 growing to $135,550 in 2017. The response from the applicant’s Director and General manager is that the business anticipates a similar growth for the 2018 year (which would extrapolate to approximately $155,000 profit) but that the company remains capable of meeting all its wage commitments -albeit substantial increases ...
... The Tribunal has had regard to the financial statements submitted including the aforementioned Profit and Loss statements covering 2015, 2016 and 2017 and other financial information. Given that in the 2017 financial year, wages were $314,754 against profitability of $135,550, the Tribunal is not persuaded that the applicant will be able to meet new wage expenses in the order of $522,000 for the 2018 financial year against anticipated growth, according to the oral evidence, consistent with the same level of growth from 2016 to 2017.
(11)The conclusion of the Tribunal was that “the applicant employer will not employ the nominee on a full-time basis for at least 2 years at the agreed annual salary level of $180,001 for the nominated role of Vegetable Grower.”
On 21 June 2018, the General Manager for H & L called their accountants and asked them to provide information on H & L’s financial capacity to pay the wages. On 22 June, at 12:38pm, H & L received an email containing the decisions of the Tribunal. Approximately an hour and half later, H & L received a letter from their accountant stating:
As the accountant for HNL hydroponics Trading Trust, our office can confirm that for the period first of July 2017 to 31st of May 2018 the business is trading profitably with an estimated net profit of approximately $414,000 for this period.
The annual salary to Dung Tran and Lan Tran increased to $180,000 each in June 2017 and the increase salary has been taken into account with the 2018 financial year profit estimates.
H & L filed its applications for judicial review within time on 26 July 2018.
In addition to the above summary, the written submissions of the first respondent stressed that the Tribunal placed weight on the nature of the jobs in which the nominees were employed, namely vegetable growers, the significant increase proposed for their wages and what it regarded to be the very small profit margin of the company. The Tribunal found that it was not satisfied that H & L would be able to maintain the relative levels of production and profitability to meet all its wage commitments at the levels of which it gave evidence. Put simply, the Tribunal was not satisfied that the employer would be able to meet its’ new wage expenses and for that reason it concluded that it had not established that it would employ the nominees for at least 2 years in the nominated role.
THE LEGISLATIVE SCHEME
The Regulations require that an application for the visa must relate to a position nominated under r 5.19 of the Regulations.
That regulation relevantly provides as follows:
(3) The Minister must, in writing, approve of a nomination if:
…
(c) either:
(i) both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 … visa identified in subparagraph (a)(ii) has:
(I)held on or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia;
…
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; …
SUBMISSIONS AND CONSIDERATION
Ground 1.1
Applicants’ Submissions
Counsel for H & L submitted that the Tribunal misunderstood the requirement in reg 5.19 and in doing so, applied the incorrect test because it concluded that H & L had to satisfy it that it could pay the stated wages and still make a trading profit in each future year for at least two years in order to demonstrate that it would employ the nominees. In doing so, the Tribunal focused on profitability to the exclusion of evidence of other capacity to pay. To the contrary, it is necessary to demonstrate to the Tribunal that H & L would employ the person and had a capacity sufficient to demonstrate that fact. Instead, what the Tribunal did was to reason that it was necessary for H & L to show that the business would trade sufficiently profitably to meet the additional wage cost. Counsel for H & L accepted that the requirement in r 5.19(3)(d)(i) meant that the Tribunal had to engage in “an element of value judgment as to a prospective position”.[1] All that was required in that process was for H & L to demonstrate that there was no reason apparent from the capacity of the business to conclude that it would not be able to fulfil its agreement such that it would employ the persons for at least two years. In other words, that there was a basis for being satisfied that the legal relationship between the nominated employer and each of the nominees would be able to take place. In order for that state of satisfaction to be reached it would only be necessary for there to be, or likely to be, resources which would be capable of meeting the requirement of paying wages. A profit is not essential for that purpose. Many businesses operate at a loss. When doing so they might either borrow or expend capital in order to secure the future of the business. No regard was had to the capacity of the business to pay additional amounts of wages from existing reserves. It was clear that H & L had cash reserves in excess of $400,000. In order to determine H & L’s ability to hire the nominees for two years the relevant question was whether or not it had the capacity, in all of its forms, to pay the wages of the nominees.
[1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 [28].
First Respondent’s Submissions
In answer to those submissions, the first respondent submitted in effect that the applicant was reversing the onus of proof before the Tribunal. It was for H & L to make its case and present evidence and argument. The Tribunal was not required to assist the applicant in doing so by making enquiries of its own and nor was it required to disclose its thought processes. The onus was on the applicant to produce evidence and present arguments which supported its position before the Tribunal. Whilst Mr d’Assumpcao did not express it in these terms, his submission effectively suggested that, not having presented the argument before the Tribunal, H & L was now seeking to patch up on judicial review the inadequacy of the case it had made to the Tribunal. In support of that submission, the first respondent relied on the following passage from SZNBX v Minister for Immigration and Citizenship:
Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims. It is not for the Tribunal to make the appellant’s case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his ‘nursemaid’.[2] (citation omitted)
[2] (2009) 112 ALD 475 [29].
In the submission of the first respondent, the Tribunal’s reasons must be understood as a practical and pragmatic consideration of the evidence actually presented by H & L. It was simply not persuaded that the financial evidence presented by H & L demonstrated that it would be able to pay the salaries contracted for with the nominees, in light of the fact that it concluded that the historical and oral evidence demonstrated that the projected expenses of the business far outweighed projected revenue. On that basis, it concluded that it was not satisfied that the nominees would be employed for at least two years. Further, it was submitted that the observations of Logan J in Jayshree Enterprises Pty Ltd were apposite to this matter:
There was an interest on the part of Jayshree Enterprises to be served here by adducing such evidence as it could to support that particular prospective position. I suspect strongly that much lay behind the statement given to the Tribunal by Mr Parmar as to “hope”, but it was for Jayshree Enterprises to give further colour and substance, if so disposed, to that “hope”. It was not for the Tribunal to ask further questions. The result before the Tribunal, was a case where reasonable people might reasonably differ as to whether the Tribunal should have been satisfied as to the condition in reg 5.19(4)(d)(i) being met. That being so, it was not a no-evidence case for the purposes of jurisdictional error.[3]
[3] Op cit [28].
I accept the submissions of the first respondent on this ground. The finding was open to the Tribunal on the evidence presented to it. I am not satisfied that H & L has demonstrated that the Tribunal misunderstood the relevant test or that it misapplied the test. It considered the evidence and was not satisfied of the relevant criterion. It is beside the point that different arguments might have been made before the Tribunal urging a broader interpretation of r .19(3)(d)(i), or drawing the attention of the Tribunal to different aspects of the financial evidence before it which might have caused the Tribunal to regard it in a different way.
I dismiss ground 1.1.
Ground 1.2
Applicants’ Submissions
As to this ground, H & L submitted that the Tribunal was in error and took into account an irrelevant consideration, namely, the salary which was to be paid to the other nominee. The argument was that the case for each nominee was considered separately. Separate reasons were given. In that context, whether the company was able to employ for two years the nominee whose application was not under consideration at the particular review was irrelevant. On any view, the financial evidence established that the company would be able to pay for one of the two nominees. The Tribunal concluded that the company would not be able to pay for both nominees but did not consider or determine whether it was able to employ one nominee for a period of two years.
First Respondent’s Submissions
The first respondent submitted that there was nothing in the terms of either the statute or the
Regulations which prohibited the Tribunal from considering the broader factual context of the individual application before it.[4] As a result, the factors to which the Tribunal could have regard were wide and limited only by the subject matter, scope, and purpose of the relevant statutory provisions.[5] The fact of remuneration payable to the other nominee in each instance could hardly be said to have been extraneous.
[4] Minister for Aboriginal Affairs v Peko – Wallsend Ltd (1986) 162 CLR 24, 39-40.
[5] R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, 49-50.
I accept the submission of the first respondent in that regard. That the employer was responsible for the nominated position of the other nominee in each instance, having entered into a contract with them in identical terms, was clearly part of the factual matrix relevant to an assessment of the financial position of H & L which had a direct bearing on whether the Tribunal could be satisfied that the company would employ the particular nominee for a period of two years. In each instance, the question of the financial implications to the company of having employed the other nominee was relevant. Further, as the first respondent submitted, H & L relied at the hearing on an organisational chart which set out the salaries of all employees. It had invited the Tribunal to take that matter into account.
I dismiss ground 1.2
Ground 1.3
Applicants’ Submissions
The argument on this ground boils down to a failure on the part of the Tribunal to provide H & L with an adjournment to enable it to produce further evidence as to its’ then current profitability. It was submitted that to have so failed was a denial of procedural fairness. During the course of the hearing the Tribunal had raised the question of whether the employer was profitable enough to meet the wages for the nominees. In response it was submitted that H & L had sought to provide further information on the matter. The issue was said to have been covered in the following passages of transcript:
A: So our capsicum season ended in May/April, so that would be included in our 17/18 financials and I’ve seen the impact of how that quality of product had on our sales and at the moment our 17/18 financials indicate a profit and it also had allocation for, absorbed to the increased pay for both Lan and Yung as well, and still generates a profit from the business.
Q: Let’s look, there’s no papers before me, that’s just a supposition, there is no financial modelling or evidence of that um before me, um (inaudible).
A: I can provide you the financials as it is right now so you can see where it is but like you stated, the 17/18 year hasn’t finished so we won’t …
It was submitted that the final answer above amounted to a request to provide further information which was either rejected or unresolved:
Q: But you won’t know really what your profitability is until you know what the market rates for the cost of vegetables are and do you have formal contract sales with the supermarkets?
A:We get, with our, they give us a price, you know what I mean? You know, before we send the product, there is an agreement, now we say you know what for a bag of cucumbers I am willing to pay 10, so I’m like no I need 12, or we say all right fine 11 dollars. There is invoices that we send with the price on it when we send our products.
It was submitted that the above response of the Tribunal member with respect to future profitability was not logically responsive to addressing H & L’s request to demonstrate what their current profitability was. In other words, the Tribunal member missed the point of the request made by H & L. Procedural fairness required the Tribunal member to address the request. It was submitted that it was a request which could be simply dealt with. It simply required weighing the importance of the information to the ultimate decision. The information was vitally important because of the comment made by the Tribunal member that the evidence as to performance in the relevant financial year was just a supposition. There was no consideration by the Tribunal member as to how long would be needed to facilitate the request and whether a further hearing would be required. It was submitted that the evidence ultimately obtained by the employer demonstrated the materiality of the information.
First Respondent’s Submissions
The first respondent conceded that essentially this ground was an attack on the use which the Tribunal made the evidence before it. The exchange on which H & L relies was simply part of the debate between the applicant and the Tribunal about the financial sustainability of the business. Counsel for the first respondent tied this submission to the principle enunciated by Brennan J in Kioa v West[6] that procedural fairness required the applicant to be given the opportunity to respond to adverse information which was credible, relevant and significant. H & L did so in this matter. In the circumstances of this case, the applicant had its’ opportunity to respond. There was no ‘practical injustice’.[7]
[6] (1985) 159 CLR 550, 629.
[7] Re Minister for Immigration & Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1 [37].
I accept the submissions of the first respondent in that regard. It is obvious from a reading of the transcript and the reasons that the focus of the Tribunal was on the future viability of the business as a whole in light of the contracts it had signed with the nominees. That was a matter on which H & L sought repeatedly to present argument and provide evidence at the hearing. The passage relied on by H & L was a single instance of the argument presented by it. Further, I am not satisfied that it has been demonstrated that the remark by the representative of H & L amounted to a request for an adjournment:
A: I can provide you the financials as it is right now so you can see where it is but like you stated, the 17/18 year hasn’t finished so we won’t …
The remark was made arguendo. It would have been capable of being understood as just an emphatic statement of H & L’s position. As submitted by the first respondent, it was not an express request for an adjournment. The point was not pressed or clarified by H & L at the time or before the conclusion of the hearing and there was no request for a further hearing. In my view, the first respondent was correct to submit that the observations of the Full Court in Tarrant v Australian Securities and Investments Commission[8] were apposite to these circumstances:
The issue whether or not the AAT erred in refusing to grant an adjournment turns on whether Mr Tarrant can demonstrate that the AAT’s discretion miscarried in law. We acknowledge that there were other courses of action open to the AAT in the circumstances, including that the psychologist and dermatologist could have given evidence and been cross-examined by telephone, which would have avoided the need and expense involved in Mr Tarrant having those professional, and no doubt busy, witnesses travel from Wollongong to Sydney to give evidence at short notice. However, Mr Tarrant made no attempt to suggest to or persuade the AAT that it should adopt this course. Having regard to the reasons given by the AAT, both orally and in its final statement of reasons, for refusing Mr Tarrant’s three requests for an adjournment, we can discern no legal error in the AAT’s decisions such as would amount to procedural unfairness or any other appealable error for the purposes of s 44 of the AAT Act.
[8] (2015) 317 ALR 328 [132].
As can be seen from the above, Tarrant’s case was a matter in which unlike here, the applicant apparently expressly requested an adjournment and more than once. I am satisfied that in pursuing this ground, H & L has sought to place a greater significance and indeed a meaning on the impugned passage which it did not, in the context of the hearing as a whole, actually have.
I dismiss ground 1.3.
Grounds 1.4 – 1.7
Applicants’ Submissions
Both H & L and the first respondent dealt with these grounds compendiously and it is appropriate that I do likewise, the point in each ground being essentially the same.
These grounds contend that the Tribunal erred in its construction of the contract of employment for the nominees. It reasoned that it was necessary for those contracts to expressly refer to the fact that the period of employment would be for at least two years.
Mr Jacobi, for H & L, submitted that the Tribunal failed to have regard to a relevant consideration, namely, that when properly understood the contracts of employment provided for ongoing employment on a full-time basis. By reason of that they met the criteria in r 5.19(3)(d)(i). Further, the Tribunal had concluded that the nominees did not have an enforceable legal right of employment for at least two years within the meaning of the regulations. This was clearly unreasonable because the contracts provided for an ongoing position with enforceable rights. Whilst it was correct for the Tribunal to observe that neither of the contracts expressly set out the period of employment, that simply reflects the fact that they were not fixed term contracts. In the context of employment law, the nominees had ongoing indefinite contracts of employment.[9] For that reason, it was submitted that on any view, the contracts subsisted for at least two years. The effect of the relevant regulation simply prohibited a specific clause being included in a contract, namely, that the contract could not include an express exclusion of a possible extension of the period of employment. By reasoning that the contract needed to make express mention of whether it excluded the possibility of an extension, the Tribunal misunderstood the requirements of the relevant regulation and as a result applied the incorrect test.
[9] Re Montgomery and Commissioner for Superannuation [1985] AATA 78 [25].
First Respondent’s Submissions
The first respondent submitted that the Tribunal had incorrectly decided something about the state of the contracts, namely, that it was necessary for them to stipulate that they would have effect for longer than two years. That was merely an error of fact and as such, within jurisdiction. The Tribunal incorrectly decided something which it was authorised to decide.
If that argument is not accepted, the first respondent submitted that the finding in relation to r 5.19(3)(d)(i) of the Regulations was within jurisdiction. It was necessary for H & L to meet both limbs of r 5.19(3)(d). Having failed in the first limb, any error with respect to the second limb relating to the need for the contract to have an express reference to the fact that it did not exclude the possibility of extending the period of employment had no impact on the outcome. I accept the argument of the first respondent in that regard. The terms of r 5.19(3)(d) are conjunctive. H & L needed to satisfy the Tribunal of both limbs. Having found that there was no error with respect to the finding with respect to the first limb, I find that any error with respect to the second limb does not establish jurisdictional error.
I dismiss grounds 1.4-1.7 inclusive.
CONCLUSION
It was acknowledged by the parties that the applications of both nominees were dependent or consequential on the outcome of the applications made by H & L. The first respondent made written submissions to the effect that if I found against H & L with respect to the employer nominations, the dismissal of the applications by the nominees, Dac Dung Tran and others (ADG 288 of 2018) and Thi Ngoc Lan Tran and others (ADG 289 of 2018), would follow as a matter of course. Whilst that was implicit in the submissions of Mr Jacobi, neither his written outline nor his oral submissions specifically made that concession. Out of an abundance of caution, I will adjourn the applications in ADG 288 of 2018 and ADG 289 of 2018 for mention and presumably an order without opposition from the applicants that those applications be dismissed. In the alternative, I will consider an application for orders to be made from chambers. I note also that there may be different considerations for costs with respect to those matters and I have not heard submissions from the applicants in that regard.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Heffernan. Associate:
Dated: 25 March 2021
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