Witty Swiftly Pty Ltd v Minister for Immigration
[2018] FCCA 3469
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WITTY SWIFTLY PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3469 |
| Catchwords: MIGRATION – Review of decision of Administrative Appeals Tribunal – Subclass 187 visa – reg.5.19(4)(a)(ii) the Migration Regulations 1994 (Cth) – whether the Tribunal erred by conflating “ability to afford” with “genuine need” – whether the Tribunal’s decision was unreasonable, illogical or irrational – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 reg.5.19(4)(a)(ii) |
| Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 |
| Applicant: | WITTY SWIFTLY PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 142 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 September 2018 |
| Date of Last Submission: | 5 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Walker |
| Solicitors for the Applicant: | Kingdom Legal |
| Counsel for the First Respondent: | Ms E. Tattersall |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 142 of 2016
| WITTY SWIFTLY PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, trading as Shero Fashion, is self-described as a “professional formal wear company and ceremony decoration accessories sales and hire company based in Perth WA”.
On 14 June 2013, the applicant applied to the Department of Immigration and Citizenship (as it was known then) for an Employer Nomination for a Permanent Appointment visa, nominating Kh Hui Ng (“the nominee”) as nominee for the position of “fashion/industrial designer” and occupation of “fashion designer”.
The applicant applied for approval of that nomination seeking to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream.
On 3 April 2014, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the application on the basis that the nomination application did not satisfy regulation 5.19(4)(a)(ii) of the Regulations. The Ministerial delegate was not satisfied on the evidence before it that there was a need for a full time fashion designer in the applicant’s business.
On 22 April 2014, the applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (“AAT”).
Two hearings were held; one on 29 April 2015 and the second on 30 July 2015. The AAT heard from:
a)Ms Ng, one of the three directors of the applicant;
b)the nominee;
c)Ms Melissa Sainoska, an employee of the applicant; and
d)Ms Foong, the applicant’s accountant.
On 19 and 27 January 2016, the AAT wrote to the applicant, via its representative, requesting advice as to any material change of circumstances or to the facts and financial circumstances of the company.
On 2 February 2016, the AAT received a letter from the applicant’s accountant stating that sales had increased from July to December 2015 and that she believed the company was financially viable and capable of sponsoring the nominee.
On 15 February 2016, the AAT affirmed the decision under review.
The AAT’s Decision
While the delegate dealt with the issue of need in the applicant’s nomination application under regulation 5.19(4)(a)(ii) of the Regulations, the AAT found that the issue for determination was whether there was “a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control” (referring to regulation 5.19(4)(h)(ii)(b) of the Regulations).
These two provisions are worded very similarly and essentially address the same issue. Accordingly, it is largely irrelevant which provision is adopted as the criteria for determining the nomination application. The issues considered by the delegate and the AAT are essentially the same. This is addressed in the AAT’s reasons for decision at paragraph [12].
In its reasons for decision the AAT indicated its concern about the fact that the financial reports produced for the financial year ended 30 June 2014 showed a carry forward loss at the end of that year of $306,244. The AAT also noted that the company tax return indicated that there had been successive losses over the last five financial years and the total losses were $330,355 (at [24]).
These concerns were put to the applicant’s accountant, Ms Foong, who stated that the carry forward loss would not be viable but for two reasons:
a)sales for the past six months of the business have increased. She indicated that they averaged $15 to 16,000 (sic) total sales for each month for the last six months December-June 2015; and
b)the directors in China are happy to make capital injections to the company.
On this basis, the AAT found that the viability of the company for next two years depended on the injection of capital into the company and that the business was being propped up by the injection of funds from overseas (at [27]). The AAT accepted that capital injections of funds are available and had occurred (at [37]).
The AAT noted evidence that certain expenses of the applicant in relation to the manufacture of clothing were being incurred offshore and these were being met by another company, and not by the applicant, such that the applicant’s financial position is better than it otherwise might have been because these overseas manufacturing expenses are not recorded as expenses against the company's income (at [28]).
The AAT also noted that the nominee’s proposed salary is $70,000 (at [37]).
Having regard to the above, the AAT made the following findings:
a)much of the documentary evidence before the AAT was of no assistance (at [34]);
b)the exact parameters of the nominee’s position were not certain given the statements contained in his curriculum vitae about the nature of his duties as against the other evidence (at [35]);
c)the nominee was involved in the business and that he engaged in some design work and some items were produced from his designs but it was difficult to gauge the extent of that activity and its relationship to the sales of the business (at [35]);
d)despite documentary material supplied to the AAT, it was difficult to determine what proportion of the sales are attributed to designs or work undertaken by the nominee (at [37]); and
e)leaving aside the financial situation of the business and even allowing for an increase in business for the period July to December 2015, the AAT was not satisfied that there was a genuine need for the first applicant to employ a paid employee to work in the full-time position of fashion designer given the state of evidence about the position and the nominee’s role in it (at [38]).
The AAT was not satisfied that the business could afford to employ an employee to work as a full-time fashion/industrial designer (at [38]).
Overall, leaving aside the applicant’s financial situation, the AAT was not satisfied there was a genuine need for the applicant to employ a paid employee in the position of fashion designer/industrial designer given the state of the evidence in relation to the proposed position and the nominees role in it (at [39]).
Accordingly, the AAT found that regulation 5.19(4)(h)(ii) of the Regulations was not met. As such, the AAT affirmed the delegate’s decision under review (at [39]).
Application before this Court
On 17 March 2016, the applicant filed an application for review of the AAT’s decision in this Court.
On 25 July 2017, Judge Lucev made orders granting the applicant leave to file and serve an amended application, a draft of which was annexed to those orders.
This draft amended application relied on two grounds of review:
a)first, it was argued that in making the decision under review (namely, that it was not satisfied that there was a genuine need for the applicant as nominator to employ a paid employee to work in the position of a fashion/industrial designer under its direct control) the AAT made a decision that was legally unreasonable, in that the decision under review lacks an evident and intelligible justification, as it is not possible to comprehend from its reasons for decision how the AAT arrived at it; and
b)as to the second ground, the applicant contended that further and in the alternative, in making its decision the AAT committed jurisdictional errors, which affected its purported exercise of power, by:
i)wrongly conflating the issue for decision with the question whether the applicant could afford to employ a full-time fashion/industrial designer;
ii)failing to rationally consider the impact of, and to give realistic and genuine consideration to, the contents of the letter dated 2 February 2016 from Ms Foong (the business’ accountant), and particularly to its bearing upon the business’ capacity to afford and sponsor the nominated employee;
iii)making a finding, namely that the applicant business could not afford to employ a full-time fashion/industrial designer, that was not open to be made in the light of the evidence which it had accepted, implicitly or explicitly, about the financial performance of the business and the reliability of future capital injections being made when and if required; and
iv)in the alternative to each of the above particulars, misunderstanding or misusing the concept of being able to “afford” to employ someone.
As at the date of the final hearing, the applicant had not filed and served an amended application. During the proceedings, the parties agreed that the matter ought to proceed on the proposed amended grounds despite the applicant’s failure to file and serve an amended application. The Court took no issue with this approach given that:
a)as rightly pointed out by the Minister, many of the grounds in the applicant’s original application overlap to a large degree with the proposed amended grounds; and
b)the Minister had, quite prudently, addressed proposed amended grounds proceeded in his written outline of submissions.
Accordingly, the Court will address the grounds of review relied upon in the draft amended application in turn.
Ground 1
In making the decision under review (namely, that it was not satisfied that there was a genuine need for the Applicant as nominator to employ a paid employee to work in the position of a fashion/industrial designer under its direct control) the Administrative Appeals Tribunal made a decision that was legally unreasonable, in that the decision under review lacks an evident and intelligible justification, as it is not possible to comprehend from its reasons for decision how the Tribunal arrived at it.
The applicant did not particularise this amended ground other than to assert that the AAT’s decision lacks an evident and intelligible justification because it is not possible to comprehend from its reasons how the AAT arrived at its decision.
During proceedings, it was put by counsel for the applicant that the AAT’s finding that no genuine need existed because of the applicant’s past financial performance was an irrational one. However, the Court does not understand this ground to be limited solely to the AAT’s reliance on past financial performance as the genesis for any irrational/unreasonable argument.
The Court understands the thrust of this ground to be that, as a consequence of the AAT wrongly conflating the issue of genuine need with the applicant’s business’ ability to afford to employ the nominee, the AAT’s finding that there was not a genuine need to employ the nominee in the position of fashion designer was unreasonable.
The Court infers that the ground as articulated (namely that it is not possible to comprehend from its reasons for decision how the AAT arrived at its decision that there is was not genuine need for the applicant employ the nominee to work in the position of a fashion/industrial designer) is essentially a claim that the AAT’s reasons for decision do not explicitly disclose the evidentiary material relied upon by the AAT to arrive at its ultimate conclusion.
If the Court is wrong in this assessment, then it would appear that ground 1 is merely a recital, albeit differently worded, of ground 2 but with an emphasis to the conclusion drawn as opposed to the process undertaken to arrive at that decision.
In relation to the topic of unreasonableness the applicant submitted in its written submissions:
38. The Applicant submits respectfully that either the Tribunal has misdirected itself as to the relevant law, or the facts, in one or more of the ways identified above, or it has in some manner that cannot be identified misunderstood or failed to discharge its statutory task of reviewing the decision in question.
39. A plurality of the High Court (Hayne, Kiefel & Bell JJ) in Minister for Immigration and Border Protection v Li said at [76] (albeit in reference to the exercise of a statutory discretion):
“ ... 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.”
40. In Kaur v Minister for Immigration and Border Protection [2014] FCA 915 at [110], Mortimer J, although again dealing with an exercise of discretion, made the following remarks, which it is submitted are helpful in the present context:
“If the repository of the power has given reasons, then it is the justification given in the reasons, and the intelligibility of the exercise of power as explained in the reasons, which the supervising court should examine, bearing in mind the constraints applicable to that task. Limiting the examination to the reasons given by the repository of the power is consistent with the approach taken to the role of reasons generally in assessing jurisdictional error: namely, that reasons enable a supervising court to see what the repository of the power herself or himself saw as relevant, irrelevant, or as her or his statutory task. In deciding whether there was an excess of jurisdiction, this is the perspective which is important, understanding why the power was exercised as it was: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] per Gleeson CJ.
41. It is submitted further that it is not open on judicial review for the Court to hear submissions that seek to persuade it that there were other, unstated by the Tribunal, paths by which it might have come to its conclusion. As Mortimer J went on immediately to say in Kaur:
Where there are reasons given by a repository of the power, which are not sufficient to provide an intelligible justification, for a supervising court to engage in finding and applying facts and reaching its own conclusions about how and why, through a different reasoning process, the exercise of power could be justified is tantamount to a re-exercise of the power by the supervising court and in my opinion crosses the line, well established Australian law, between a review of the exercise of a power and the exercise of it, as described by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-38.”
It was further submitted by counsel for the applicant during the proceedings that the Court ought to closely consider paragraph [37] of the AAT’s reasons; in particular the sentence “I accept that the owners of the company and the nominee would like to see the business succeed.” Counsel submitted that the AAT’s acceptance of the business’ desire to succeed goes to the heart of the “genuineness” of the business’ need for the nominee, given that the applicant’s argument was that it required the nominee to increase business sales and increase its successfulness moving forward.
In opposition, the Minister submitted that there was nothing in the AAT’s decision that could be described as arbitrary, capricious, without common sense, plainly unjust, or lacking an evident and intelligible justification.
The Minister drew the Court’s attention to the two bases and evidence relied upon by the AAT to arrive at its conclusions. The Minister argued that the applicant’s disagreement with the AAT’s findings are not indicative of error. Nor can a finding be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of Ground 1
“Unreasonableness” can occur in circumstances where a decision is made that is so devoid of plausible justification that no reasonable person could have taken that course: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French. It can also occur when a decision has been made that lacks an “evident and intelligible justification”: Li at [76].
As was explained by Bell and Crennan JJ in the Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), the correct approach is to ask whether it was open to the AAT to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it (at [133]).
The test for unreasonableness is “stringent” and only arises in rare cases: Haq & Ors v Minister for Immigration & Anor [2018] FCCA 1523 at [36].
In Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 the Full Court of the Federal Court explained, in connection with the principles of unreasonableness:
[65] … The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
As rightly pointed out by the Minister, the AAT’s reasons appear to rely on at least two bases for arriving at its conclusion that there was not a genuine need to employ the nominee, specifically that:
a)it was difficult for it to determine what proportion of the sales of the applicant are attributed to designs or work undertaken by the nominee (CB 679 at [37]); and
b)despite the injections of capital into the business from overseas and the increase in business for the period July to December 2015, it was not satisfied that the business can afford to employ an employee to work as a full-time fashion/industrial designer (CB 679 at [38]).
As to the first base, the AAT specifically referred to, amongst other things:
a)the nominee’s qualifications disclosed in his curriculum vitae (CB 140-141);
b)the nature of applicant’s business (CB 34); and
c)the nominee’s statutory declaration (CB 96),
as the evidence which it relied upon to form the view that the exact parameters of the nominee’s position are not entirely certain.
In those circumstances, and according to the authorities canvassed above, the Court is not satisfied that this conclusion drawn by the AAT lacked an evident and intelligible justification. Upon review of the AAT’s reasons, there is a clearly logical connection between the evidence and the conclusions drawn: SZMDS at [131].
In relation to the ability of the business to afford to employ the nominee, the AAT accepted the evidence that there had been successive losses over the last five financial years and the total losses shown in the tax returns were $330,355 (at [24]). The AAT also accepted that the nominee’s proposed salary is $70,000 (at [37]).
It was open to the AAT, given the evidence before it, to conclude that despite injections of capital of funds being available and having occurred in the past, the business was unable to afford to hire the nominee. The AAT in this regard could not be said to lack a logical connection with the evidence or to otherwise be illogical or unreasonable.
In the Court’s opinion the AAT’s findings are, at best, findings upon which reasonable minds may differ (Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 (“Gupta”) at [34] per Gilmour and Mortimer JJ). The Court is satisfied that there was a logical connection between that evidence and the conclusions drawn: SZMDS at [131].
Accordingly, ground 1 fails.
Ground 2
Further and in the alternative, in making the decision under review the Tribunal committed jurisdictional errors, which affected its purported exercise of power, by:
(a) wrongly conflating the issue for decision with the question whether the Applicant’s business could afford to employ a full-time fashion/industrial designer;
(b) failing to rationally consider the impact of, and to give realistic and genuine consideration to, the contents of the letter dated 2 February 2016 from Ms Foong (the business’ accountant), and particularly to its bearing upon the business’ capacity to afford and sponsor the nominated employee;
(c) making a finding, namely that the Applicant’s business could not afford to employ a full-time fashion/industrial designer, that was not open to be made in the light of the evidence which it had accepted, implicitly or explicitly, about the financial performance of the business and the reliability of future capital injections being made when and if required; and
(d) in the alternative to each of the above particulars, misunderstanding or misusing the concept of being able to “afford” to employ someone.
The AAT’s decision may be vitiated by jurisdictional error if it is found that it has identified a wrong issue or asked the wrong question such that this results in its decision exceeding the authority or powers given by the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ.
In this matter the AAT was tasked with determining whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in regulation 5.19(4) For the nomination to be approved, all the requirements must be met. The AAT’s primary focus as part of this review was whether there was a “genuine need” for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The AAT considered, amongst other things, the financial aspects of the business (CB 677-678 at [22] – [32]) and was ultimately not satisfied that the applicant could afford to employ the nominee to work as full-time fashion designer/industrial designer (CB 679 at [38]). Counsel for the applicant conceded that assessing the nominator’s ability to afford the nominee, the business’ financial history and future prospects were all relevant consideration in assessing ‘genuine need’. However, he argued that the AAT misdirected itself by considering whether the company could “afford the position” and not whether there was “genuine need”.
In its outline of written submissions the applicant relevantly submitted:
28. …the Tribunal at [38] of its Decision Record stated that, firstly, “[i]n the final analysis ... [it] is simply not satisfied that there is a genuine need for the nominating company to employ a paid employee to work in the full-time position of fashion designer.”
29. Secondly, the Tribunal added “Put simply, the Tribunal is not satisfied that the business can afford to employ an employee to work as a full-time fashion/industrial designer.”.
30. The second of those statements appears to be an explication of the first. It is submitted that either the Tribunal has generally equated genuine need with can afford to, or, at least, has approached the matter on the basis that on the facts of the case before it, the second concept functionally equalled the first more general one.
31. In either case, it is respectfully submitted, on a fair and even a beneficial reading of its reasons, the Tribunal has impermissibly substituted for the correct statutory criterion, another, and non-synonymous criterion.
32. The question was not whether the business could afford to employ the nominee in the position in question; it was whether it had a genuine need to do so. Those two questions are not the same.
33. It is accepted that the Tribunal as the decision-maker could properly consider the financial capacity of the business. However, in essence, it was and is for the business, and not for the Tribunal, to make business decisions and to weigh up its decisions and their prudence.
34. It is submitted that while it was certainly open to the Tribunal to decide whether it accepted assertions and evidence made on behalf of Witty Swiftly, in this case it has accepted all such evidence. No doubt about the veracity or accuracy of the evidence was expressed. The Tribunal must be taken to have accepted it all.
35. Once it had done so, the Tribunal’s factual findings came to be considered against the statutory criteria. The Tribunal was required to have a correct understanding of those criteria, and in applying them to its factual findings it had to act rationally, in order to act within its jurisdiction and to discharge the task assigned it by the legislature.
36. While the Tribunal notes in the course of its analysis the fact that there have been and will continue to be, if required, capital injections of funds, such that the business can meet its obligations, it states (opaquely it is submitted) that this fact does not alter its conclusion. Even more curiously, it goes on say that in its assessment “that fact does not make the need a genuine one”. That sentence makes no sense.
37. Nor does the following reference to the finding that certain expenses of overseas manufacture are not borne by the business assist in comprehending the Tribunal’s reasoning process.
38. The Applicant submits respectfully that either the Tribunal has misdirected itself as to the relevant law, or the facts, in one or more of the ways identified above, or it has in some manner that cannot be identified misunderstood or failed to discharge its statutory task of reviewing the decision in question.
At paragraphs 27 to 33 of his Outline of submissions, the Minister relevantly responded that:
27. This ground alleges jurisdictional error in four ways, as set out in the particulars.
28. Particular (a) contends that the Tribunal wrongly conflated the issue on which it was to make its decision (whether there was a “genuine need” for a full time fashion/industrial designer) with the question of whether the first applicant could afford to employ such a person. The first respondent submits that there was no conflation of such issues in the Tribunal’s decision. Rather, the first applicant’s financial capacity, and whether it was in a financial position to employ a full time designer, were relevant considerations for the Tribunal in relation to the question of whether there was a “genuine need” for the position. It was for the Tribunal to determine whether a genuine need existed, which included the objective financial capacity of the first applicant. No error is revealed.
29. Particular (b) contends that the Tribunal did not “rationally” consider the letter of the first applicant’s accountant dated 2 February 2016, or that it did not give “realistic and genuine consideration” to it. The first respondent submits that, where the Tribunal expressly referred to the letter and stated that it had taken its content into account (at CB 678, [32]), no inference should be drawn that it was overlooked. Rather, it is clear from the Tribunal’s decision record that it considered the statements made by the accountant, but simply did not accept that they proved the business had the financial capacity to employ the nominee. The assessment and weight to be given to the evidence was a matter for the Tribunal as part of its fact-finding function. The first respondent submits that this allegation, at its highest, is an impermissible request for the Court to engage in merits review. No error is revealed.
30. Particular (c) contends that the Tribunal’s finding that the first applicant could not afford to employ a full time designer was not open to it on the financial evidence before it, including evidence that it had accepted. This is essentially an argument of illogicality. A finding of illogicality is a high bar and requires more than emphatic disagreement with a Tribunal’s decision or an observation that another decision- maker may have come to a different conclusion on the material. The test is whether the decision is one at which no rational or logical decision maker could arrive on the same evidence or, put otherwise, whether it was “open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did on the material before it”, or whether there was no logical connection between the evidence and the conclusions drawn.
31. The first respondent submits that the Tribunal’s finding was open to it on its assessment of the evidence before it. While the Tribunal accepted that there would be recourse to capital injections from offshore investors if required to meet the business’ obligations, it found that even so there was a carry-forward loss of over $300,000, that the business was being propped up by offshore investors, and that the fact that some expenditure was being borne by an overseas company meant the accounts were not an accurate picture of the business’ financial position in Australia. It evidently placed more weight on these factors than on the availability of capital to sustain the business’ losses and the accountant’s statements regarding an increase in sales. The weight to be afforded to the evidence was a matter for the Tribunal as part of its fact-finding function. The first respondent contends that in these circumstances, it was open for the Tribunal to draw the inference and make the finding that the company could not afford to hire a full time designer. This was not a finding at which no rational decision-maker could arrive.
32. Particular (d) contends, in the alternative to particulars (a)-(b), that the Tribunal misunderstood the concept of being able to “afford” to employ a person. After considering the applicant’s submission, the first respondent understands this to be a really be a recitation of the purported error identified in Particular (a) and repeats the submissions made at paragraph 28 above. The first respondent submits that the Tribunal did not import any additional criterion into its assessment of “genuine need”. Rather, the first applicant’s financial capacity, and whether it was in a financial position to employ a full time designer, were relevant considerations for the Tribunal in relation to the question of whether there was a “genuine need” for the position. No error arises.
(Footnotes omitted)
Consideration
Ground 2 (a)
wrongly conflating the issue for decision with the question whether the Applicant’s business could afford to employ a full-time fashion/industrial designer;
The Court is not satisfied that the AAT conflated the issue of “affordability” with “genuine need”.
The Court notes the transcript of the hearings which took place at the AAT on 29 April 2015 and 30 July 2015 annexed to the affidavit of Lisa Versace affirmed 29 May 2017 (“Versace Affidavit”). A review of this transcript shows that during the hearing held on 29 April 2015 the AAT member informed the applicant that the ‘crux’ of what she must look at was “whether there is a genuine need for you to employ a paid employee to work in the position” (Versace Affidavit, p.19).
Throughout that hearing and the hearing on 30 July 2015 the AAT member made various references to “genuine need” which appear to be made in the context of explaining to the applicant what the predominate focus of her review was (Versace Affidavit, pp. 24, 27, 40 and 43).
In its reason for decision the AAT noted at paragraph 16 that:
…the particular issue under consideration is whether there is a genuine need for the nominator, Witty Swiftly, to employ a paid employee to work in the position, of fashion/industrial designer, under the nominator's direct control.
The Court is satisfied on the material before it that, throughout the hearing process and when arriving at its decision, the AAT was cognisant of its task, which was to determine whether a genuine need existed for the nominator to employ the nominee.
In relation to the alleged conflation of the business’ affordability with ‘genuine need’, the Court notes that the AAT gave detailed consideration to the business’ financial viability and was not satisfied that the business could afford to employ an employee to work as a full-time fashion/industrial designer.
The AAT also found that the exact parameters of the nominee’s position were not entirely certain given the statements contained in the curriculum vitae about the nature of the duties as against other evidence. The AAT accepted that the nominee was involved in the business and accepted that the nominee engaged in some design work and that some items, including clothes, are produced from his designs. However, there was difficulty in gauging the extent of that activity and the relationship of it to the sales of the business. The AAT concluded that, leaving aside the financial situation of the business and even allowing for an increase in business for the period July to December 2015:
the state of the evidence about the position and the nominee's role in it, is such that the Tribunal is not positively satisfied about the genuine need to employ a paid employee in the position of fashion designer/industrial designer.
The Court is not satisfied that the AAT conflated the issue for decision with the question whether the applicant’s business could afford to employ a full-time fashion/industrial designer. The AAT did not simply have regard to the question of whether the business could “afford” to employ the nominee in the position in question to determine genuine need. Instead, the AAT utilised its finding in relation to the business’ ability to afford to employ the nominee and its finding in relation to the nominee’s proposed role within the business to determine that the requirements of regulation 5.19(4)(h)(ii) of the Regulations were not met (CB 679 at 39-40).
The AAT was entitled to objectively assess the business’ viability as part of its determination of whether “genuine need” existed. It concluded that the business was unable to afford to employ the nominee. This finding was open to it on the material before it. Whilst the AAT clearly gave considerable weight to its affordability finding (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1), it did not conflate the question of “affordability” with “genuine need”. Instead the AAT utilised two discrete bases to determine whether genuine need existed.
The Court agrees with the Minister’s submissions in this regard and finds that no error of the sort suggested in ground 2 (a) is revealed.
For this reason, ground 2 (a) fails.
Ground 2(b)
failing to rationally consider the impact of, and to give realistic and genuine consideration to, the contents of the letter dated 2 February 2016 from Ms Foong (the business’ accountant), and particularly to its bearing upon the business’ capacity to afford and sponsor the nominated employee;
The applicant did not address this ground specifically in written or oral submissions. In any event, the Court is not persuaded by the applicant’s argument in relation to this ground and, instead, agrees with the Minister’s submissions that the AAT referred to the letter and considered its contents.
The Court notes that caution must be exercised when reviewing whether “proper, genuine and realistic consideration” has been given as this may lead the Court to engage in impermissible merits review El Chaabi v Minister for Immigration & Anor [2018] FCCA 3042 (“El Chaabi”) at [32] per Judge Smith citing SZQGC v Minister for Immigration & Citizenship [2012] FCA 598 at [32].
Whether the requisite level of consideration has been given requires the Court to focus on whether the applicant has established that the AAT did not engage in an active intellectual process in respect of the matter in issue: El Chaabi at [32] citing Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [35].
At paragraph 32 of its reasons, the AAT addressed the letter of the applicant’s accountant dated 2 February 2016 as follows:
32. Given the delay in finalising this matter, which the Tribunal regrets, the Tribunal requested information as to whether or not there was any material change to the facts and financial position of the company, from the facts previously provided. The accountant provided a letter dated 2 February 2016, which indicated that the company's sales "have increased since July 2015, in particular the sale of evening gowns designed by Mr Kah Hui Ng. On average the sales have increased over 21% per month from July to December 2015." The accountant indicated that she believes that the company is financially viable and capable of sponsoring Mr Ng as its permanent employee. The Tribunal has taken this further information into account.
(emphasis added)
The AAT then, relevantly, makes the following reference:
38. In the final analysis, even allowing for the increase in business over the last six months, the Tribunal is simply not satisfied that there is a genuine need for the nominating company to employ a paid employee to work in the full-time position of fashion designer.
(emphasis added)
The Court is satisfied that the AAT’s reference to the increase in business over the last six months is a reference to the contents of the letter which indicated that, on average, sales have increased over 21% per month from July to December 2015.
The AAT clearly considered the letter. The AAT’s reasoning, set out at [38], displays beyond any question that the AAT did engage in an active intellectual process in respect of that letter.
Accordingly, ground 2(b) fails.
Ground 2 (c)
making a finding, namely that the Applicant’s business could not afford to employ a full-time fashion/industrial designer, that was not open to be made in the light of the evidence which it had accepted, implicitly or explicitly, about the financial performance of the business and the reliability of future capital injections being made when and if required; and
The Court understands the applicant to be submitting that the AAT’s reasoning was illogical, unreasonable or irrational. Ground 2(c) also appears to be a re-wording of ground 1.
The Court has already resolved the issue of whether the AAT’s finding in relation to the business’ ability to afford employee the nominee was illogical, unreasonable or irrational above. However, the Court will, for completeness, briefly address this sub-ground.
In relation to whether the AAT’s finding that the applicant’s business could not afford to employ a full-time fashion/industrial designer was illogical, unreasonable or irrational, the Court notes the following authorities:
a)reasoning described as illogical, unreasonable or irrational may merely be an emphatic way of expressing disagreement with that reasoning (Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] per Gleeson and McHugh CJ);
b)a decision might be said to be illogical or irrational if the decision 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 (SZMDS at [135] per Crennan and Bell JJ); and
c)legal unreasonableness can occur where the decision has the character of a choice that is arbitrary, capricious or without common-sense Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court is satisfied that there was evidence before the AAT that the applicant was unable to afford to employee the nominee. This evidence included:
a)the carry forward loss of over $300,000;
b)the fact that the business was being propped up by offshore investors; and
c)the fact that some of the business’ expenditure was being borne by an overseas company.
Cumulatively, this evidence demonstrated that the business’ accounts were not an accurate picture of the business’ financial position in Australia. The AAT’s reasoning at [33] - [39] shows beyond any question that AAT assessed the material before it to arrive at its conclusion that the applicant was unable to afford to employee the nominee. It is not for this Court to agree or disagree with that reasoning or to substitute its own findings. As such, the Court is satisfied that the AAT made a logical conclusion on the probative material it had before it: SZMDS at [131].
Ultimately, the weight to be afforded to the evidence before it is a matter for the AAT (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [151]). To scrutinise this finding by the AAT would be it invite the Court to impermissibly review the merits of the AAT’s decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, ground 2(c) fails.
Ground 2(d)
in the alternative to each of the above particulars, misunderstanding or misusing the concept of being able to “afford” to employ someone.
For the reasons given in relation to ground 2(a) above, at paragraphs 51 to 61 in these reasons for judgment, the Court is not satisfied that the AAT misunderstood or misused the concept of being able to “afford” to employ someone.
The AAT was entitled to make findings in relation to whether the business could “afford” to employ the nominee as part of its statutory task, which was to determine if there was a genuine need for the applicant to employ a paid employee to work in the full-time position of fashion designer.
Accordingly, ground 2(d) fails.
Conclusion
The Court has concluded that no jurisdictional error is revealed in the AAT’s reasons for decision. As a consequence, the applicant’s application for judicial review of the AAT’s decision is dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 28 November 2018
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