Wellbeing Korea Qld Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 448
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wellbeing Korea Qld Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 448
File number(s): BRG 575 of 2021 Judgment of: JUDGE EGAN Date of judgment: 29 May 2023 Catchwords: MIGRATION – Whether Tribunal erred by failing to receive evidence from an essential witness – whether error on the part of the Tribunal was material – materiality established – application granted. Legislation: Migration Act 1958 (Cth) s. 360
Migration Regulations 1994 (Cth) rr. 5.19, 519.
Cases cited: Mazhar v Minister for Immigration and Multicultural Affairs [2000] 183 FCA 1759
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2007) 231 ALR 592
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 25 May 2023 Date of hearing: 25 May 2023 Place: Brisbane Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Park & Co Lawyers Counsel for the First Respondent: Ms E Hoiberg Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 575 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WELLBEING KOREA QLD PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
29 May 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, and Multicultural Affairs”.
2.The Amended Application for Review filed on 25 April 2023 be granted.
3.The decision of the Administrative Appeals Tribunal made on 26 November 2021 be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 26 November 2021.
6.The First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
On 25 May 2023, two matters came before the Court – namely a Nomination Application made pursuant to the provisions of regulation 5.19 of the Migration Regulations 1994 (Cth) (‘the Regulations’) (BRG 575/2021), and a Regional Employer Nomination (Permanent) (Class RN) Visa application (BRG 55/2022). The Visa Application was adjourned pending the handing down of judgment in the Nomination Application.
The applicant company WELLBEING KOREA QLD PTY LTD has, for a number of years, carried on the business of an Asian grocery store in Cairns, as well as other businesses including providing tour guide packages for tourists and an international courier services business.
On 10 March 2017, the applicant lodged a nomination application in respect of one Yuri Na for the position of Retail Manager at the applicant’s Cairns store. It was common ground that Ms Na had been employed by the applicant from 2019 until at least 31 January 2022.
On 17 December 2018, a delegate of the Minister refused to approve the nomination application on the ground that the applicant had not identified the need for it to employ a paid employee to work in the position under the applicant’s direct control, as provided for under the provisions of r. 519(4)(a)(ii) of the Regulations.
On or about 21 December 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
By its registered migration agent named Park & Co Lawyers, a submission dated 19 August 2021 was sent to the Tribunal in support of the review application. [1]
[1] Exhibit 1 – Court Book (CB) pp. 174 - 31
On 11 October 2021, an invitation to attend a hearing before the Tribunal was sent to the applicant nominating the time and date for hearing as being 12pm (QLD time) on 27 October 2021. [2] An invitation to attend the same hearing, at the same time and on the same date, was sent to Ms Na. Each of the invitations invited the applicant and Ms Na “ … to give evidence and present arguments relating to the issues arising in your case … ”.
[2] CB pp. 318 - 320
By an email sent by Park & Co to the Tribunal on 20 October 2021, the Tribunal was provided with further documents in support of the application for review, including two medical reports, respectively dated 13 April 2021 [3] and 20 October 2021, [4] which each provided as follows:
[3] CB 328
[4] CB 331
“13/4/2021
THIS IS TO CERTIFY THAT
Mr Uncheol Kim has [sic] a patient at this medical clinic since September of 2019, during this time he has been treated for elevated blood pressure with appropriate medications.
There is no other documented history of more significant cardiovascular disease or other medical conditions.
Dr Damian Cavanagh
377 Sheridan Street
Cairns North 4870
20/10/2021
THIS IS TO CERTIFY THAT
Mr Uncheol Kim has a medical condition for which increased workload increases risk of serious cardiac illness. In order to prevent imminent risk of harm, I would recommend that he limit his work hours to no more than 30 hours per week,.
He has been receiving treatment for a protracted period of time and his condition requires further reduction of stress in order to reduce risk of heart disease.
Yours sincerely,
Dr Soohan P Sohn”
On 26 November 2021, the Tribunal affirmed the decision of the delegate and dismissed the review application on the ground that there was not a need for the nominated position of retail manager. The Tribunal found that the requirements of r. 5.19(4)(a)(ii) had not been met.
On 22 December 2021, the applicant filed an Application for Review of the decision of the Tribunal.
Grounds of Review
At the hearing before the Court, the applicant relied upon an Amended Application for Review, the grounds of which were as follows:
“Grounds of application
The Administrative Appeals Tribunal (Tribunal) failed to comply with s 360 of the Migration Act 1958 (Cth)
Particulars
a) The Tribunal was required to give the applicant a meaningful opportunity to present evidence and arguments in relation to all of the issues arising in the review.
b) At the hearing, the Tribunal:
i)did not identify critical issues relating to the tasks undertaken by the nominated position, and whether higher level tasks’ would be undertaken by the nominee or the director; and
ii)did not take any evidence from the nominee
c) The Tribunal’s findings that five of the tasks listed in the position description were “higher level tasks that are undertaken by the Director” were not obviously open on the material and the significance of these issues was only raised in the Tribunal’s decision: CB pp 393 – 396; [39], [46] – [51]
d) The Tribunal’s assessment of the need for the position was based upon its consideration of the tasks undertaken by the nominated position, and its error in not identifying issues relating to the nominated position’s tasks materially affected its decision.”
Section 360 of the Migration Act 1958 (Cth) (‘the Act’) relevantly provided as follows:
“360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
In Mazhar v Minister for Immigration and Multicultural Affairs [2000] 183 FCA 1759 at [31] Goldberg J held that the invitation and opportunity to appear before the Tribunal to give evidence and present argument in an analogous s. 425 context must be meaningful and cannot be a “ … hollow shell or an empty gesture … ”.
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 the Full Court, when considering the then s. 425 of the Act which was in similar terms to s. 360(1), said as follows:
“[38]It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a `jurisdictional error'.
[39]The legal position is analogous to that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. In that case the applicant had sent a facsimile to the Tribunal advising that he could not attend the hearing on account of illness and seeking another date. The Tribunal member was not informed of the facsimile and proceeded with the hearing in the absence of the applicant. The question in that case was whether a hearing conducted by the Tribunal in the absence of the applicant was invalid for jurisdictional error. The High Court held that it was. As it was put by Hayne J at [149]:
`The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act.'
Admittedly that decision was made in the context of the then relevant statutory provision which required that the Tribunal give the applicant an opportunity to appear before it and to give evidence and to present arguments, whereas s 425 of the Act is limited to giving notice in relation to those matters. However, for the reasons given above that difference is not critical in the current case, whatever might be the situation in other cases.”
The above cases have been the subject of consideration because it was again common ground at the hearing before the Court that Ms Na had not been called upon, at any time during the course of the joint hearing before the Tribunal, to either give evidence or present arguments on her own behalf, or give evidence in respect of the applicant’s own review application.
It is not without significance that Ms Na was employed for over a two year period in the very position which was asserted to be required to be occupied for the efficient running of the applicant’s business. At [45] – [47] inclusive of its reasons, the Tribunal made findings as to the type of tasks which fell within the job description of “Retail Manager” the subject of the nomination application as follows:
“[45]The Tribunal has considered the Job description given by the applicant as shown below.
Position: Retail Manager
Position Objectives: As a manager, you are required to fully control the operation of the store and maximise the business profit and name value
Requirement: Hold relevant AQF Diploma level of qualification or at least 3 years of relevant experience
DUTIES IN DETAIL:
a) Managing and motivating a team to increase sales and ensure efficiency
b) Managing stock levels and making decisions about stock control
c) Analysing sales figures and forecasting future sales
d) Analysing and interpreting trends to facilitate planning
e) Using IT to record sales figures, for data analysis and forward planning
f) Dealing with staffing issues such as interviewing potential staff, conducting performance reviews, as well as providing training
g) Ensuring standards for quality, customer service and health and safety are met
h) Resolving health and safety, legal and security issues
i) Responding to customer complaints and comments
j) Organising special promotions, displays and events
k) Initiating changes to improve the business
I) Completing store operational requirements by scheduling and assigning employee
m) Identifying current and future customer requirements by establishing rapport with potential and actual customers and other persons in a position to understand service requirements
n) Providing a safe and clean store environment for both clients and employees
o) Maintaining the stability and reputation of the store by complying with legal requirements
p) Discussing with Marketing Manager about promoting and advertising the store's goods and services
q) Formulating and implementing purchasing and setting prices
[46]The Tribunal has considered the higher level tasks in the job description as below and considers that since Mr Kim works in the business 30 hours per week and has a significant professional commitment to the business that he would control the final decisions in these matters although he may receive input from the nominee.
b) Managing stock levels and making decisions about stock control
c) Analysing sales figures and forecasting future sales
d) Analysing and interpreting trends to facilitate planning.
e) Using IT to record sales figures, for data analysis and forward planning
q) Formulating and implementing purchasing and setting prices
[47]For these reasons, the Tribunal gives limited weight to these tasks being undertaken or decided by the nominated position since Mr Kim would control the final decisions and undertake these tasks.”
The Tribunal held that because the applicant’s director known as Mr Kim “ … works in the business 30 hours per week and has a significant professional commitment to the business … ” , the duties of a retail manager were able to be performed by him rather than by Ms Na.
There are a number of difficulties with that finding. First, such finding related to the provisions of r. 5.19 (4)(h)(ii)(D) of the regulations, but the only mention of that regulation during the course of the hearing was at Transcript p 16.35 - .40 where it was said as follows:
“35MEMBER: All right. Thank you, Mr Kim, that’s very helpful. We’ll move now to Regulation 5.19(4)(h)(ii)(D). This goes to the tasks of the position. I have no questions about that. Then we’ll go to Regulation - I’m sorry, Madam Interpreter, I’m getting ahead of you. My apologies. Then we’ll go to Regulation 5.19(4)(h)(ii)(DA), ‘The occupation is applicable to the nominee’. I have no questions with regard to that, thank you.
40We’ll then go to Regulation 5.19(4)(h)(ii)(E) and (F). The first relates to the location of the business and that’s certainly in Cairns. There’s no concern over that. And there’s certainly a regional certifying body assessment done. So, there’s no questions about that as well, thank you.”
In circumstances where factual findings were made by the Tribunal which were contrary to the claims of the applicant, one would have expected that the Tribunal would first have canvassed the ability of Mr Kim to carry out the work with Mr Kim and with Ms Na before making any such findings. Ms Na could have given evidence about her observations as to Mr Kim’s health whilst performing work at the store, and perhaps as to how she might have lightened his load in that regard. Those were issues that directly impacted upon the question as to whether or not a retail manager such as Ms Na was required to be filled as a necessary element of this particular business operating efficiently. In that regard, there was evidence before the Tribunal that the profits of the business had increased since Ms Na had commenced her employment. At [6] of the Tribunal’s reasons in BRG 55/2022, the member said of Ms Na, “The applicant appeared before the Tribunal on 27 October 2021 to give evidence and present arguments.” That did not happen.
Second, the Tribunal made a finding that Mr Kim worked in the business 30 hours per week, but there was no evidence before the Tribunal which constituted a basis for the making of such finding. The evidence as to the hours worked by Mr Kim in the business was inconclusive in that regard, as shown at Transcript p. 7.5 - .17 which was as follows:
“5MEMBER: Thank you. Mr Kim, how many hours a day would you be in the store managing the register?
INTERPRETER: I think approximately eight hours per day.
MEMBER: Okay. Who handles the register at the other times?
10INTERPRETER: Usually my wife in the morning until I arrive in the shop. So, she looks after that for me in the morning.
15MEMBER: Thank you. Well, that’s a very helpful overview. Could I ask you, please, Mr Kim, how many days a week is the shop open?
INTERPRETER: We have no days off at all, we always open 365 days a year.”
It may be that the Tribunal innocently but erroneously relied upon the medical report dated 20 October 2021 for the finding that Mr Kim worked 30 hours per week in the business. The medical report, rather, recommended that Mr Kim limit his work hours “ … to no more than 30 hours per week.” Again neither Mr Kim nor Ms Na were called upon to give evidence before the Tribunal about a matter found by the Tribunal to be adverse to the applicant’s claims.
Third, the Tribunal made its findings about the capability of Mr Kim to perform the duties of a retail manager based upon the Tribunal’s assessment of the two medical reports referred to above. The Tribunal set out its findings at [24] – [25] of its reasons, which were as follows:
“[24]The Tribunal noted that there are two medical certificates for Mr Kim, one dated 13 April 2021 from Dr Damien Cavanagh which states that he has been a patient of the clinic since September 2019 and has been treated for elevated blood pressure with appropriate medications and there is no other documented history of more significant disease or any other medical conditions. The other medical certificate dated 20 October 2021 does not mention how long the practice has been treating Mr Kim and states that he has a medical condition for which increased workload increases the risk of serious cardiac illness. In order to limit harm, the doctor recommends that Mr Kim limit his work hours to no more than 30 hours per week. The Medical Certificate dated 20 October 2021, goes on to state that the practice has been treating him for a protracted period of time and his condition requires further reduction of stress in order to reduce risk of heart disease. It is also noted that there is a medical certificate for the wife, Mrs Park, which states she has been a regular patient since September 2019 and has required some therapeutic iron transfusions but has no other significant medical conditions.
[25]The Tribunal finds the two medical certificates for Mr Kim somewhat at odds with on another. One warns of serious cardiac illness and the requirement to limit work hours to no more than 30 hours while the other advises he suffers from elevated blood pressure which is being managed with medication and there are no other medical conditions or significant disease.”
As to those findings, the Tribunal first recorded that the medical report dated 20 October 2021 did not mention how long the practice had been treating Mr Kim, but the report recorded that Mr Kim had been receiving treatment “ … for a protracted period of time … ”. The Tribunal then found that the two medical reports were “ … somewhat at odds with one another” presumably for the purpose of diminishing the import of the second report in time without apparently considering that there had been a recorded deterioration in Mr Kim’s condition over the six-month period between 13 April 2021 and 20 October 2021.
The Court finds that had Ms Na been called upon to specifically address the nature of the duties of her role as retail manager of the applicant’s business, such evidence could realistically have resulted in the Tribunal arriving at a different decision. [5] That is particularly so in circumstances where the Tribunal made no finding under r. 5.19(4)(h)(ii)(C) of the regulations to the effect that the position the subject of the nomination application was one that could have been filled by an Australian citizen or a permanent Australian resident. The Tribunal solely relied upon its own impressions of how the duties could or could not be carried out so as to found a basis for its finding that the position the subject of the nomination application was in reality the lower-skilled position of a sales supervisor rather than as a retail manager.
[5]
The Court finds that the Tribunal ought to have explored with both Mr Kim and Ms Na the specific aspect of the roles and duties of Ms Na’s employment over a substantial period of time before making the adverse findings which it did. The Court respectfully adopts what was held by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2007) 231 ALR 592 at [47] where it was said:
“[47]First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
The Tribunal’s position is further eroded by reason of the fact that in its Response to the hearing invitation it was indicated, on behalf of the applicant, that Ms Na was intended to be called as a witness at the applicant’s hearing before the Tribunal. [6] The failure to enable Ms Na to give evidence on behalf of the applicant constituted procedural unfairness on the part of the Tribunal.
[6] CB p. 325
The Court finds that the failure on the part of the Tribunal to receive any evidence from Ms Na constituted a jurisdictional error in that such failure was material. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The applicant has established jurisdictional error on the part of the Tribunal.
The Amended Application for Review is granted. The decision of the Tribunal handed down on 26 November 2021 is quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 May 2023
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