W&Y Property Management Pty Ltd as trustee for W&Y Family Trust v Minister for Home Affairs
[2020] FCCA 883
•21 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| W&Y PROPERTY MANAGEMENT PTY LTD AS TRUSTEE FOR W&Y FAMILY TRUST v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 883 |
| Catchwords: MIGRATION – Nomination application by company – directors of company were a married couple who each were dependent upon the success of the nomination application for the purpose of the grant to them of Subclass 457 Visas – nominated occupation was that of “Property Manager” – such occupation was a qualifying occupation at the time of the making of the nomination application but was no longer a qualifying occupation at the time of the decision in respect of such application – finding by Tribunal that the applicant had failed to satisfy occupation criteria – finding by Tribunal that application was non-genuine – no jurisdictional error on the part of the Tribunal – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.4, 140GB, 504 |
| Cases and other material cited: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 |
| Applicant: | W&Y PROPERTY MANAGEMENT PTY LTD AS TRUSTEE FOR W&Y FAMILY TRUST |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 380 of 2019 |
| Judgment of: | Judge Egan |
| Hearing dates: | 30 October 2019, 31 March 2020 |
| Date of Last Submission: | 31 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 21 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rebetzke |
| Solicitors for the Applicant: | GTC Lawyers |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for extension of time filed on 17 April 2019 is refused.
The Applicant is to pay the First Respondent’s costs of and incidental to the application for review and application for an extension of time filed on 17 April 2019, such costs to be agreed or failing agreement to be assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 380 of 2019
| W&Y PROPERTY MANAGEMENT PTY LTD AS TRUSTEE FOR W&Y FAMILY TRUST |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 3 March 2017, the applicant applied to be an approved work sponsor pursuant to the provisions of s.140GB of the Migration Act 1958 (Cth) (‘the Act’). On the same day, one Wei Zhang and his wife applied for Subclass 457 Visas. The application made by the applicant sought to nominate Mr. Zhang and his wife for the occupation of “Property Manager”. Mr. Zhang and his wife were the sole shareholders and sole directors of the applicant company.
Section 140GB of the Act relevantly provided as follows:
Section 140GB – Minister to approve nominations
(1) A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a workagreement, may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve a person's nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination--the person has paid the charge; and
(ab) in any case--the person is an approved work sponsor; and
(b) in any case--the prescribed criteria are satisfied.
Note 1: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
Note 2: See section 140ZM for when a person is liable to pay nomination training contribution charge.
(3) The regulations may establish a process for the Minister to approve a person's nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a work sponsor.
On 1 February 2019, the Administrative Appeals Tribunal (‘the Tribunal’) refused to approve the applicant as a work sponsor. It found that the occupation of “Property Manager” did not constitute an approved occupation. It also found that the application was not genuine. [1]
[1] Paragraphs [12] – [14] and paragraphs [15] – [18] of Tribunal reasons – Court Book (CB) pp.
On 17 April 2019, the applicant company filed an originating application for review of the decision of the Tribunal. That application was filed forty (40) days out of time. The first respondent, by Mr McGlade of Counsel, submitted that the application for extension of time within which to file the originating application for review should not be granted on the ground that the substantive application was without merit. By reason of the first respondent’s stance, it has been necessary to determine the merits of the applicant’s substantive claim. The question of whether time ought to be extended or not was addressed in written submissions, but a determination of that question was consensually deferred pending a consideration by the Court of the substantive issues in the proceeding.
An amended application for review was filed on 29 July 2019. The grounds for review argued at the hearing before the Court were as follows:
“Grounds of application
(1) The decision was affected by jurisdictional error in that the Tribunal asked the wrong question by asking whether the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060.
Particulars
(a) The correct question pursuant to r. 2.72(10)(aa) of the Migration Regulations 1994 was whether the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in an instrument in writing for [r.2.72(10)(aa)];
(b) The Tribunal ought to have held that the nomination and its corresponding 6-digit code corresponded with the occupation of “Property Manager” and the code 612112 as specified in Schedule 2 of the Minister’s Specification of Occupations, a Person or Body, A Country or Countries 2016/059 (IMMI16/059);
(c) Clause 9 of IMMI 17/060 is invalid because it was made ultra vires to the extent that it purports to apply IMMI 17/060 retrospectively to nominations made and not determined before 1 July 2017 because IMMI 17/060 was made and registered before the Migration Amendment (Specification of Occupations Regulations 2017) commenced operation.
(2) The decision was legally unreasonable.
Particulars
(a) The Tribunal failed to properly take into account the evidence before it of genuineness including:
(i) The certification of the matters referred to in r.2.72(10)(e);
(ii) That the nominated position was already an approved position and the nominee had been working for the business under the same position under the s 457 program;
(iii) That the employment contract dated 31 March 2017 is expressed to be for a term of 4 years;
(iv) That the Department was aware of the relationship between the applicant and the directorship of the nominee when previously approving the nomination and visa;
(v) The submission as to genuineness dated 4 April 2017 outlined the nature of the business and the nominated position;
(b) The Tribunal had no evidence before it, at all, that the applicant did not continue to lawfully operate the business genuinely requiring the position associated with the nominated occupation;
(c) The Tribunal had no evidence before it, at all, that might rationally suggest that the position previously accepted as genuine and occupied by the nominee was not in fact genuine;
(d) The decision was one which no reasonable decision-maker could reach on the evidence before it;
(e) The decision lacked an evidence and intelligible basis.”
Ground 2 of the amended application for review asserted unreasonableness on the part of the decision-maker on the question of whether or not the position of “Property Manager” the subject of the nomination was, in the circumstances, a genuine one. A consideration of that issue was only necessary to be undertaken in the event that the applicant was successful in respect of Ground 1.
Criteria to be satisfied
Before a nomination of this type is able to be approved, the “prescribed criteria” are required to be satisfied. [2] Regulation 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’) prescribes the criteria which are required to be met. Two such criteria are as follows:
[2] Regulation 2.72 of the Migration Regulations 1994 (Cth).
a)2.72(10)(aa) which provided as follows:
2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa
…
(10) If the person is a standard business sponsor—the Minister is satisfied that:
…
(aa) if the nomination is made on or after 1 July 2010—the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(emphasis added)
b)2.72(10)(f) which provided as follows:
2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa
…
(10) If the person is a standard business sponsor—the Minister is satisfied that:
…
(f) the position associated with the nominated occupation is genuine; and
At the time that the nomination application was made on 3 March 2017, the Ministerial Instrument in force which governed the relevant nomination occupations and related 6-digit codes for the purposes of r. 2.72(10)(aa) of the Regulations was IMMI 16/059. The occupation of “Property Manager” was, at that time, and by reason of such instrument, included in the list of qualifying occupations.
By 28 June 2017, the nomination application had not been the subject of final determination by the Department. On that date, the Minister issued a new Ministerial Instrument (IMMI 17/060) for the purposes of r.2.72(10)(aa) of the Regulations. [3] IMMI 17/060 did not contain the occupation of “Property Manager” as a qualifying occupation for the purposes of any proposed nomination. Moreover, paragraph 9 of IMMI 17/060 provided that such instrument applied to nominations “made and not finally determined before 1 July 2017.”
[3] See Clause 3 of IMMI 17/060 which provided: “ 3. Authority – This instrument is made under
In its entirety, paragraph 9 of IMMI 17/060 provided as follows:
9 Application of this instrument
This instrument applies in relation to nominations of occupations:
(a) made on or after 1 July 2017; or
(b) made and not finally determined before 1 July 2017;
regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after 1 July 2017.
Exhibit 3 was the Ministerial Instrument IMMI 17/081, which by Schedule 1 repealed the whole of IMMI 16/059. It was dated 28 June 2017.
On 7 August 2017, a delegate of the Minister refused the applicant’s nomination application on the basis that it had not specified a qualifying occupation as countenanced by IMMI 17/060.
On 17 August 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 8 January 2019, the Tribunal wrote to the applicant and invited the applicant to provide more information concerning the nomination application. At paragraph 2, [4] the letter provided as follows:
[4] CB p. 105.
“In order for the Tribunal to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in r.2.72 of the Migrations Regulations 1994 (the Regulations) and s. 140GB of the Act are met at the time of its decision, including but not limited to the particular criterion that the delegate found was not met.”
(emphasis added)
The letter went on to seek information on 9 specific points, which were as follows:
“1. Information about the identity of any person authorised to speak and make decisions on behalf of the applicant;
2. If the applicant is a company or registered business, current and historical information about its office holders’ registration details;
3. Information about the applicant’s current status as an approved Standard Business Sponsor or party to a work agreement;
4. Information about the applicant directly operating an active and lawful business in Australia, and its financial position for at least the last two financial years;
5. Information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;
6. Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;
7. Information about the base rate of pay and the terms and conditions of employment in the nominated position, including whether or not they are more favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location;
8. Information about the visa status of the nominee, and also about the nominee’s English language ability;
9. If the nominated occupation is subject to an inapplicability condition (also known as a caveat), information about why the caveat does not apply in the circumstances of this case.”
The applicant was asked to provide information by 22 January 2019. Neither the applicant’s representative nor the applicant responded to the Tribunal’s letter of 8 January 2019 by 22 January 2019, or at all.
On 1 February 2019, the Tribunal affirmed the decision of the delegate on the basis that the applicant did not meet either of the two relevant criteria under r.2.72(10)(aa) of the Regulations. As to the genuineness of nomination criteria, it was first noted that the application for a Subclass 457 Visa made by Mr. Zhang was endorsed by his wife in her capacity as a director of the applicant. Mrs. Zhang was also an applicant for a Subclass 457 Visa on the basis that she was employed by the applicant. Secondly, there was only limited evidence that either Mr. Zhang or Mrs. Zhang had previously worked in the position of a “Property Manager” or that the applicant’s business had a need for a person so qualified.
Grounds of Substantive Application
Ground 1.
It was firstly submitted on behalf of the applicant that it was beyond the Minister’s power to make paragraph 9 of IMMI 17/060 on the basis that it included a transitional provision that purported to make IMMI 17/060 apply retrospectively to nominations of occupations “made and not finally determined before 1 July 2017.” It was submitted that for a nomination made after 1 July 2010, the sponsor must satisfy “as part of the nomination” that the tasks of the position included a significant majority of tasks of the nomination occupation specified in an instrument in writing for paragraph (aa): r.2.72(10)(e)(i)(B) of the Regulations. Regulation 2.72(10)(e) provided as follows:
2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa
…
(10) If the person is a standard business sponsor—the Minister is satisfied that:
…
(e) if the nomination is made on or after 1 July 2010—the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A) the nominated occupation listed in the ANZSCO; or
(B) the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia
(A) the nominated occupation is a position in the business of the standard business sponsor; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii) if the person lawfully operates a business in Australia:
(A) the nominated occupation is a position with a business, or an associated entity, of the person; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A) for the occupation in the ANZSCO; or
(B) if there is no ANZSCO code for the nominated occupation—for the occupation in the instrument in writing made for paragraph (aa); and
(emphasis added)
It was said that a sponsor would be unable to certify “as part of a nomination” that the tasks of the position included tasks of an as yet unspecified occupation. It was submitted that there was nothing in r. 2.72(10)(aa) that could be read as delegating a power to the Minister to change the criteria for the approval of a nomination application which had already been made.
It was submitted on behalf of the first respondent that there were four reasons why the submissions made on behalf of the applicant lacked validity:
a)It was submitted that r. 2.72(10)(aa) imposed a “time of decision” criteria rather than a “time of application” criteria. The Court agrees with such submission. The legislature could not be considered to have intended that the Minister was in any way fettered in terms of the identification of those occupations which from time to time might relevantly be the subject of Subclass 457 Visa applications. Circumstances may change whereby some occupations are no longer required occupations, and conversely, others hitherto unspecified based upon a lack of need, may be required to be added to the list. There is nothing in r.2.72(10)(aa) which permits of any other construction.
b)It was submitted that at the time s.140GB(2) of the Act was enacted, and at the time IMMI 17/060 was made, other parts of the Regulations recognised the possibility of the Minister changing the list of occupations able to be the subject of a nomination application or visa application. Regulation 2.73(6) was submitted to be one such regulation, in that it specifically provided for the refund of an application fee in the event of an occupation no longer remaining as a qualifying application. Regulation 2.73(6) provided as follows:
2.73 Process for nomination—Subclass 457 (Temporary Work (Skilled)) visa
…
(6) The Minister may refund the fee if:
(a) both of the following apply:
(i) the tasks of the nominated occupation no longer correspond to the tasks of:
(A) if the nomination was made before 1 July 2010—an occupation specified in the instrument in writing made for paragraph 2.72(10)(a); or
(B) if the nomination is made on or after 1 July 2010—an occupation specified in the instrument in writing made for paragraph 2.72(10)(aa);
(ii) the person withdraws the nomination for that reason before a decision is made under section 140GB of the Act; or
(b) both of the following apply:
(i) the nomination is approved under section 140GB of the Act;
(ii) after the Minister has approved the nomination, but before a visa is granted in relation to the approval, the tasks of the nominated occupation no longer correspond to the tasks of:
(A) if the nomination was made before 1 July 2010—an occupation specified in the instrument in writing made for paragraph 2.72(10)(a); or
(B) if the nomination is made on or after 1 July 2010—an occupation specified in the instrument in writing made for paragraph 2.72(10)(aa); or
(c) if the person is a party to a work agreement—both of the following apply:
(i) the person withdraws the nomination before a decision is made under section 140GB of the Act;
(ii) the reason for withdrawing the nomination is because:
(A) the person has listed an occupation in the nomination that is not specified in the work agreement as an occupation that the person may nominate; or
(B) the number of nominations made by the person and approved by the Minister under section 140GB is equal to or more than the number of approved nominations permitted under the work agreement for the year; or
(d) both of the following apply:
(i) on or after 1 July 2010, the person nominates an occupation using an ASCO code;
(ii) the person withdraws the nomination for that reason before a decision is made under section 140GB of the Act.
The enactment of r. 2.73(6) evinced a legislative intention that nominated occupations may change, from time to time, as and when required. The fact that the application fee was refundable only if the additional requirement of the applicant withdrawing the nomination occurred because of such change, is irrelevant. The recognition that nominated/qualifying occupations might change from time to time by the making of a Ministerial Instrument was clear. The Court agrees with the first respondent’s submission.
c)It was submitted that the purpose of r.2.72(10)(aa) was to enable the imposition of criteria to advance the object of the Act, namely “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.” [5] It was also submitted that it would be anomalous for the r. 2.72(10)(aa) criteria to be regarded as time of application criteria, as opposed to time of decision criteria, when, clearly, the genuineness of application criteria is one which must persist from the time of application up until the time of decision. Both criteria ought to consistently be regarded as time of decision criteria for at least that reason. The Court here agrees with the first respondent’s submission.
d)It was submitted that r.2.72(10)(e)(i)(B) does not prevent the reduction in the number or category of occupations able to be the subject of a nomination when an as yet undetermined nomination application was still on foot. The Court accepts such submission. Regulation 2.72(10)(e)(i)(B) must be read in the context of the balance of sub paragraph (e). Each of (e)(iii)(B) and (iv)(B)must additionally be satisfied on the facts of the within matter. Each of those sub-sub paragraphs make it clear that in addition to the requirement that the tasks were tasks of “the nominated occupation” as provided for in (e)(i), the nominated occupation must nonetheless be a qualifying occupation “specified by the Minister in an instrument in writing”. That requirement was always, under r.2.72(10)(e) a pre-condition to the grant of the nomination application. As referred to earlier, the Court does not accept that the legislature intended that the Minister should be so fettered in his making of instruments, such that appropriate and proper ministerial decisions are unable to made, as and when required, from time to time.
[5] Section 4(1) of the Act.
The first respondent, in argument, further submitted that its contentions were supported by cl. 6601 of Schedule 13 to the Regulations, which relevantly provided as follows:
Part 66—Amendments made by the Migration Amendment (Specification of Occupations) Regulations 2017
6601 Application of instruments made for purposes of paragraph 2.72(10)(aa)
(1) This clause applies to an instrument made:
(a) for the purposes of paragraph 2.72(10)(aa) of these Regulations as amended by Schedule 1 to the Migration Amendment (Specification of Occupations) Regulations 2017; and
(b) after the Migration Amendment (Specification of Occupations) Regulations 2017 are made.
(2) The instrument may be expressed to apply in relation to nominations of occupations:
(a) made on or after the day the instrument commences; or
(b) made and not finally determined before the day the instrument commences;
regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after that day.
It was submitted on behalf of the first respondent that cl. 6601 made it clear that IMMI 17/060 applied on a true construction of r.2.72(10)(aa).
The applicant submitted that there were three reasons why cl.6601 did not apply:
a)The applicant’s first submission was that cl.6601 applied only to an instrument made “for the purposes of paragraph 2.72(10)(aa) of these regulations as amended by Schedule 1 to the Migration Amendment (Specification of Occupations) Regulations 2017.” It was submitted that the transitional provision contained in IMMI 17/060 was not authorised by cl. 6601 because, at the time IMMI 17/060 was made, the Regulations had not been amended by Schedule 1 to the Migration Amendment (Specification of Occupations) Regulations 2017 (‘MASOR Amendment’). There is no force to such argument. There was no need for IMMI 17/060 to specify that it was made for the “purpose” of r.2.72(10)(aa). Whether it was or not was a question of construction. It is clear that IMMI 17/060 was enacted for the purpose of identifying the particular occupations which could be the subject of approval for the granting of Subclass 457 Visas. Because r.2.72(10)(aa) was the regulation which was required to be complied with, it was consonant with such requirement that an instrument changing the list of qualifying occupations would record that it was made under such regulation. That is precisely what was done here. That it was also made “for the purpose of” r.2.72(10(aa) follows naturally as a matter of construction.
b)It was next submitted that the Minister had no power to make IMMI 17/060 before the commencement of the MASOR Amendment. There is no force to such argument. Firstly, though made on 28 June 2017, the instrument was not expressed to commence, and did not commence, until 1 July 2017. Even if inoperative on the day of its making, it was a valid instrument upon its commencement, which date was before the date of the decision in respect of the applicant’s nomination application. [6] The commencement date of IMMI 17/060 was the same day as the amendment to r.2.72(10)(aa) by Schedule 1 of the MASOR Amendment, which amendment was as follows:
[6] Statutory Interpretation in Australia (8th Ed.) by C Pearce & RS Geddes at [10.14] and at [6.6].
“Schedule 1 – Amendments
Migration Regulations 1994
1. Paragraph 2.72(10)(aa)
After “this paragraph” insert “and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation.”
As to the applicant’s submission to the effect that the Minister lacked power to make IMMI 17/060, such argument is additionally met by operation of the provisions of s. 4 of the Acts Interpretation Act 1901 (Cth), which section relevantly provided as follows:
4 Exercise of powers between enactment and commencement of Act
Application of section
(1) This section applies if an Act is enacted and at a time (the start time) after its enactment the Act will confer power to make an appointment, or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), because:
(a) the Act will commence at the start time; or
(b) the Act will be amended at the start time by an Act that has been enacted and that commences at that time.
Exercise of power before start time
(2) The power may be exercised before the start time as if the relevant commencement had occurred.
(3) Anything may be done before the start time for the purpose of enabling the exercise of the power, or of bringing the appointment or instrument into effect, as if the relevant commencement had occurred.
(4) The exercise of a power under subsection (2) does not confer a power or right or impose an obligation on a person before the relevant commencement except so far as is necessary or convenient for the purpose of:
(a) bringing the appointment or instrument into effect; or
(b) bringing the Act conferring power into operation; or
(c) making the Act conferring power fully effective at or after the start time.
(5) An appointment, or a provision of an instrument, made under subsection (2) takes effect at the start time or a later time specified in the appointment or instrument.
Even on the assumption that the applicant was correct in the submission that IMMI 17/060 was invalid because it was made before the MASOR Amendment, because of the obvious legislative intent evident in the passing of the MASOR Amendment, and further because of the requirement that the Act be duly administered, the Court finds that it was surely “necessary”, and at the least “convenient”, [7] that the power conferred by the instrument be exercised before its start time for the purpose of bringing the instrument into effect.
c)It was submitted on behalf of the applicant that cl. 6601 was an impermissible sub-delegation of power. The applicant’s arguments were as set out in paragraphs 43 – 49 inclusive of the applicant’s consolidated submissions as follows:
“43. The power to prescribe the criteria for approval of a nomination is delegated by the Act to the Governor-General: ss 140GB and 504 of the Act.
44. The Governor-General by Regulation may prescribe criteria that depends on a matter being specified in an instrument in writing made under the Regulations: s504(2) of the Act. That is evidently the source of the Governor-General’s power to make regulation 2.72(10(aa) which refers to occupations (and their correspondent 6-digit codes) specified by the Minister in an instrument made in writing for the Regulation.
45. However, it is submitted that it is not possible to locate an intention in the Act to subdelegate to the Minister the power to prescribe for himself the nominations to which his specification of occupations will apply.
46. Delegatus non potest delegare is a rule of construction that provides that “in the absence of express power to do so the authority [i.e., the delegated power to legislate] cannot be delegated to any other person or body”
47. The principle “does not preclude the making of regulations which confer on a subordinate body or official authority to make decisions and exercise discretionary powers within the limits prescribed by the regulations; but it is always to be borne in mind that the legislative power itself cannot be deputed”.
48. The effect of the provisions which would allow the Minister to express an instrument to apply to nominations already made but not yet determined are to “give retrospective effect to the occupational criteria”,21 even though this retrospectivity is not rendered ineffective or invalid by reason of s 12(2) of the Legislation Act 2013. This changing of the criteria for approval of a nomination amounts to an exercise of legislative power.”
[7] Section 4(4)(a) of the Acts Interpretation Act 1901 (Cth).
The applicant’s submissions are without merit. Section 504(2) of the Act relevantly provided as follows:
Migration Act 1958 – Section 504
Regulations
…
(2) Section 14 of the Legislation Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations.
Such section contemplates matters being specified or certified by the Minister in an instrument made under the Regulations. The content and operation of both r. 2.72(10)(aa) and cl. 6601 were as respectively so specified by the Minister. To the extent that the Minister did so, it was an example of the exercise of delegated power, whether effectively sub-delegated power or not. The effect is the same in either case.
Ground 2.
The Court deals with this ground notwithstanding that its findings in respect of Ground 1 are fatal to the success of the application for review irrespective of whether there is merit to the Ground 2 claim or not.
By Ground 2 of the amended application for review, the applicant asserted legal unreasonableness on the part of the Tribunal when it found that the nomination process was not genuine, and therefore failed to meet the r. 2.72(10)(f) criteria. Such ground is without merit. In order for that criteria to be met, the Minister must first be “satisfied” that the position associated with the nominated occupation was genuine.
In EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [97] – [99] and [116] – [129], Derrington J considered in what circumstances it was open for a court to review an administrative decision for unreasonableness based on a finding of fact, absent there being no basis for the finding. At [128], His Honour said:
“[128] After his extensive review in Pilbara Infrastructure, Edelman J concluded that, as at that point in time, there was considerable doubt as to whether a court could review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding. He also considered that, given the previous statements from the High Court, only it was now able to develop the law on this topic. Not in the least because the question would involve a consideration of the constitutional framework in which the power of federal courts to issue the Constitutional writs arises from s 75(v).”
The applicant has not satisfied the Court that the complaint concerning the Tribunal’s decision on this point is other than an attempt to have this Court undertake a merits review on the facts of the decision of the Tribunal, something which it cannot do. For that reason alone, the ground is without merit.
Otherwise, the ground is unmeritorious on a number of bases:
a)As adverted to earlier, it would be anomalous for the r. 2.72(10)(e) application criteria to be a time of application criteria, whilst at the same time, the r. 2.72(10)(e) criteria are to be considered as at the time of decision. It has been held in this Court that a genuineness criteria must be satisfied at the time of decision. [8] No error has been established on the part of the Tribunal by its having considered matters which were current as at the date of its decision. The applicant was asked to provide further information about its application which could have assisted the Tribunal in its deliberations, but the applicant failed to do so. The Tribunal, in those circumstances, was entitled to consider the application in the factual matrix which was before it. It did so at [15] – [18] inclusive of its reasons. [9]
b)The applicant submitted that the Tribunal failed to take relevant considerations into account on the question of genuineness. At [5] – [9] of its reasons, the Tribunal set out why it proceeded to make a decision absent a response having been received from the applicant to its 8 January 2019 letter. It is to be inferred that the information requested would have been of assistance in the decision-making process on the question of the genuineness of the application. Having considered its position, the Tribunal opted to proceed with the decision-making process. It did so having before it all of the substantial material which had been provided by the applicant in support of its application for nomination. It could not be criticised for the approach it adopted in the circumstances. It was left in the position of assessing the application not only in the light of a consideration of the documentation before it, but also having the benefit of its knowledge of the close interpersonal relationship between the directors of the applicant, as well as the fact that each of them were applicants for Subclass 457 Visas in circumstances where the success of their applications for such visas was dependent upon the success of the nomination application. The Tribunal did not err in proceeding in the manner it did. It is to be inferred that the Tribunal looked at all of the relevant material before it. At [18] of its reasons, the Tribunal found as follows:
“[18] Following careful consideration of the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine given the lack of persuasive evidence submitted by the applicant in this regard. Indeed, the Tribunal is not satisfied that the applicant continues to lawfully operate a business genuinely requiring the position associated with the nominated occupation. Therefore, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.”
[8] Nutritional Choice Australia Pty Ltd v Minister for Home Affairs [2019] FCCA 1754 at [58] per
[9] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] per French
CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Ground 2(b) of the amended application for review seeks that this Court undertake a merits review of the Tribunal’s decision. It is un-particularised. The same considerations apply to Grounds 2(c), (d) and (e).
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The decision of the Tribunal could not be characterised as either irrational or illogical. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
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54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The amended application for review is without merit.
Because the applicant has failed to establish jurisdictional error based upon its substantive claims, the application for extension of time for the making of the application for review is refused.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 21 April 2020
118-119. paragraph 2.72 of the Migration Regulations 1994.” Judge Kelly.
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