Xie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 72
•21 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Xie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 72
File number(s): BRG 374 of 2020
BRG 13 of 2021Judgment of: JUDGE JARRETT Date of judgment: 21 September 2021 Catchwords: MIGRATION – Judicial review – Employer Nomination (Permanent) (Class EN) (Subclass 186) visa – application for nomination approval – whether nominee performing work in nominated role – no jurisdictional error – dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1966 (Cth), ss 140GB, 357A(1), 359A, 359AA, 477(1)
Migration Regulations 1994 (Cth), regs.2.72(1), , 5.19, 5.19(4), 5.19(4)(d), 5.19(4)(d)(i), 5.19(4)(h), 5.19(4)(h)(i), 5.19(4)(h)(i)(A), 5.19(4)(h)(ii)(B), cl. 186.233(3)
Cases cited: Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
Curragh Queensland Limited v Daniel (1992) 34 FCR 212
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Commonwealth; Ex Parte Marks (2000) 75 ALJR 470
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 114 Date of last submission/s: 15 July 2021 Date of hearing: 15 July 2021 Place: Brisbane Counsel for the Applicant: Mr Hii Solicitor for the Applicant: AE & Associates Counsel for the Respondents: Ms Hoiberg Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 374 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LINGHAO XIE
First Applicant
HONGWEI CHEN
Second ApplicantNUO CHEN
Third RespondentAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
21 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s.477(2)(b) of the Migration Act 1958 (Cth), the time within which the applicant may make application to this Court pursuant to s.476(1) of the Migration Act 1958 (Cth) is extended to 2 July, 2020.
2.The Amended Application filed 8 April, 2021 is dismissed.
3.The applicant pay the first respondent’s costs of the application, fixed at $6,000.00.
4.The applicants pay the first respondent’s costs of the adjournment of 10 June, 2021 fixed at the amount of $500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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).
ORDERS
BRG 13 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TWINKLE GRACE PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
21 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s.477(2)(b) of the Migration Act 1958 (Cth), the time within which the applicant may make application to this Court pursuant to s.476(1) of the Migration Act 1958 (Cth) is extended to 8 April, 2021.
2.The Application filed 8 April, 2021 is dismissed.
3.The applicant pay the first respondent’s costs of the application, fixed at $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 JARRETT:
These reasons relate to two applications. The principal application (BRG13 of 2021), filed second in time, is made by Twinkle Grace Pty Ltd. Twinkle Grace applies for an extension of time to seek review of the second respondent’s decision to refuse the grant of an employer nomination for a permanent appointment pursuant to s 140GB of the Migration Act 1958 (Cth) for the purposes of an application by Ms Linghao Xie for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa.
Ms Xie’s application for that visa failed when Twinkle Grace’s employer nomination approval application failed. Ms Xie and her dependents also apply for an extension of time to seek review of the second respondent’s decision to refuse her the grant of a 186 visa (BRG374/2020). It is uncontentious that the success of Ms Xie’s application relies entirely upon the success of Twinkle Grace’s application.
The parties have agreed that I should determine the applications for extension of time and if I grant those applications, I should go on to determine the judicial review applications proposed by Twinkle Grace and Ms Xie. Those judicial review applications are constituted by amended applications for review filed in each case on 8 April, 2021. Given that the applicants have been given an opportunity to amend their review applications, I have approached the grounds on the basis that they have been put at their highest.
Thus, there are four separate applications with which to deal. Not surprisingly, the applications were argued together and the argument was focussed almost exclusively upon the grounds of Twinkle Grace’s amended application for review.
The first respondent opposes the applications for the extension of time and if extensions are granted, the substantive applications pursued by the applicants.
These reasons relate to all four applications.
BACKGROUND
Ms Xie, her husband Hongwei Chen and their son Nuo Chen are all citizens of the People’s Republic of China. Twinkle Grace is an Australian company that was incorporated on 1 November, 2012. According to the evidence, it originally carried on business importing women’s fashion from China to Australia, however its core business presently consists of exporting Australian goods to China for retail or wholesale.
Ms Xie is the sole director of Twinkle Grace.
On 7 September, 2016 Twinkle Grace entered into an agreement to employ Ms Xie as its corporate general manager. Prior to this, she had apparently been employed by:
(a)Shenzhen Bao Liyuan Trade Co. Ltd in China as its general manager for 10 years from August, 2001 to December, 2011; and
(b)Shenzhen Chino-E Communications Co. Ltd in China for at least 12 months as its Marketing Executive from January, 2012.
On 8 September, 2016 Ms Xie:
(a)applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa nominating Twinkle Grace as her sponsoring employer, with her husband and son as secondary applicants; and
(b)caused Twinkle Grace to apply for approval of a nomination for a permanent appointment of her for a position within its business pursuant to s 140GB of the Act and r 5.19 of the Migration Regulations 1994 (Cth).
For the purposes of those applications, Ms Xie enlisted the services of Astute Migration and Ms Lily Qin in particular. Ms Qin prepared and lodged the applications for Ms Xie and Twinkle Grace.
On 31 March, 2017, a delegate of the Minister approved Twinkle Grace’s application for a temporary business entry standard business sponsor.
On 17 April, 2017, Ms Qin submitted a Notification of Incorrect Answers to the Minister’s delegate to correct the representation made about Twinkle Grace’s gross payroll expenditure for the last 12 months.
On 21 September, 2017, the first respondent’s delegate:
(a)refused Twinkle Grace’s nomination application for Ms Xie on the basis that:
(i)it was not satisfied reg 5.19(4)(d)(i) of the Regulations had been met as it formed the view that the submitted documents did not demonstrate that Twinkle Grace had the capacity to offer Ms Xie a position on a full time basis in the position for at least two years; and
(ii)the delegate was unable to assess if “training benchmark B” was met in circumstances where the applicant had provided four different figures for wage expenditure and no explanation for the discrepancies; and
(b)invited Ms Xie to comment on her intentions regarding the 186 visa application as Twinkle Grace’s nomination application had been refused.
On 10 October, 2017 Twinkle Grace sought a review of the delegate’s decision to refuse the nomination application.
Ms Qin emailed the first respondent’s department on 12 October, 2017 stating, “Please refuse the application, we are going to take application (sic) to AAT (sic)”. Accordingly, the first respondent’s delegate issued a notice refusing the 186 visa applications to Ms Xie on 13 October, 2017. Ms Xie filed a review application on 30 October, 2017.
On 1 November, 2019, the second respondent invited the applicant to provide updated and current information in relation to the criterion in reg 5.19 of the Regulations including information about the roles and duties of the nominated position and how they corresponded to the position description in the ANZSCO. In response to that invitation, Twinkle Grace provided submissions and a large amount of supporting evidence, including a job description for the position.
A hearing was held by the second respondent in respect of both reviews on 24 January, 2020. Ms Qin had arranged for an advocate, Mr Phillip Duncan, to represent and subsequently appear at the hearing for Twinkle Grace. Ms Qin represented Ms Xie.
In response to a request from the second respondent that Twinkle Grace comment on or respond to the delegate’s decision, Twinkle Grace gave a post-hearing submission to the second respondent on 19 February, 2020.
On 11 March, 2020 the second respondent affirmed the first respondent’s delegate’s decision to refuse the nomination application on the basis that reg 5.19(4)(h)(i)(A) was not met because the second respondent was not satisfied that the nominated position did not correspond to the tasks of the occupation of Corporate General Manager. The second respondent issued a corrigendum to its decision to make corrections to references to the regulations on 29 April, 2020 amending three incorrect references to clauses in the Regulations, contained at paragraphs [49] and [64] of its reasons.
On 13 March, 2020 the second respondent invited Ms Xie to comment on its decision to refuse Twinkle Grace’s employer nomination on 11 March, 2020. Ms Xie, by her agent Ms Qin, did not respond to the invitation.
On 30 March, 2020 the second respondent affirmed the delegate’s decision to refuse Ms Xie (and consequently her husband and her son) the visa for which she applied, on the basis that she did not satisfy cl. 186.233(3) of Schedule 2 of the Regulations as there was no approved nomination for her application. I will deal with the second respondent’s reasons later in the context of the grounds of review pursued by Twinkle Grace and Ms Xie respectively.
In an affidavit sworn by Ms Xie and filed on 25 January, 2021 in BRG13/2021, she swears that she, her husband and their son “do not write or speak any English whatsoever”. She swears that she and her family have relied on the expertise of Ms Qin ever since they arrived in Brisbane many years ago. Ms Xie further swears that:
(c)In early March, 2020 Ms Qin told her that the “second respondent Merits Review application dual hearing on 11 March 2020” before the second respondent had been unsuccessful;
(d)On the same day, she requested Ms Qin to continue engaging Mr Philip Duncan for any further steps to further appeal the matter;
(e)Ms Qin strongly advised her that she should not continue engaging Mr Duncan, but she insisted that Ms Qin reconsider engaging Mr Duncan because he was initially recommend by Ms Qin because he had more experience than her in these types of matters;
(f)Ms Qin told her that she had not engaged Mr Duncan as she thought his assistance was not further needed. Ms Qin promised her that she would represent her and handle a judicial review application for the company, her, and her family;
(g)She was never provided with copies of the second respondent’s reasons for decision, nor was she advised of the fact that she had 35 days within which to seek judicial review of the second respondents’ decisions;
(h)She was never told that there were two “decision notices” or the dates of when those decisions were given by the second respondent;
(i)She was never given any advice on the consequences of not lodging an appeal for both the employer nomination refusal and the visa application refusal within the 35 day time limit;
(j)She was not told that there were two separate independent decisions made by the second respondent, requiring separate appeals;
(k)On 20 April, 2020 Ms Qin asked her to attend her office at Sunnybank to discuss the judicial review application and to sign some papers which Ms Qin explained were notices that authorise her to act on her behalf;
(l)On 27 April, 2020 when asked if she had submitted the judicial review application, Ms Qin replied that she was still waiting to apply online. She asked Ms Qin no questions about that;
(m)At no time did Ms Qin explain to her the importance of any due dates to lodge the “Appeal/Judicial Review at the Federal Circuit Court” nor that she was not a solicitor;
(n)On 1 May, 2020 she received an invoice from Ms Qin for $1,775 inclusive of GST. Ms Qin informed her that she would lodge the application for review online that day;
(o)After paying those fees on 1 May, 2020 she was never kept updated in terms of the appeal process nor was she advised “what the next step should be”;
(p)On 28 July, 2020 she was sent some “Short minutes of order” and asked to sign them. She did so and returned them to Ms Qin without understanding what she was signing;
(q)During this period, she was also faced with medical issues and did not have “the mental capacity to chase the progress of my appeal matter with the former agent”. However, the medical certificate attached to the affidavit does not corroborate that assertion. At best is says that she had reflux and was “unfit for work from 11/05/2020 to 02/06/2020 inclusive”;
(r)On 19 September, 2020 she received a Court Book by post. She did not know why she received that and she asked Ms Qin what it was and what she had to do with it;
(s)She attended Ms Qin’s office on 21 September, 2020 and the again asked Ms Qin what the Court Book was about. Ms Qin words to the effect, “I already said to you not to worry. I will keep you updated”;
(t)She was often tearful and stressful and was unable to sleep. She is currently affected in the same way. She thought she was suffering from depression but has never consulted a professional about that (despite having time to get a medical certificate for reflux earlier in May, 2020);
(u)On 18 January, 2021, she had a detailed discussion with her present solicitor, Mr Alan Ng of AE & Associates “who has been looking after my commercial legal matters”. She swears that she “then realised that he is a Registered Migration Agent and also practice in migration matters regularly at the second respondent and Federal Court”;
(v)She showed Mr Ng her Court Book and told him that she had not been given any updates from Ms Qin even though she had paid her all the professional fees. She asked Mr Ng if this was normal practice by a migration agent;
(w)Mr Ng expressed surprise and he expressed a concern that Ms Qin may not be a solicitor;
(x)She immediately engaged Mr Ng as her solicitor and asked Ms Qin to provide her with all of the files concerning my matter;
(y)Ms Qin was reluctant to provide her with any information whatsoever and then told her that she had a court hearing set down and that she should not attend the upcoming court hearing on 29 January, 2021;
(z)Ms Qin has refused to give her the files in her possession since about 21 December, 2020 when she requested the files;
(aa)Upon examination of the court documents, she and Mr Ng found that the application form contained an email that was noted as “[email protected]”. Ms Xie denies that this email address belongs to her, claiming that she has never had a gmail account and her email address has always been “[email protected]”;
(bb)Upon checking the emails in the file Ms Qin gave her she discovered that the email address noted in the Federal Court application was an email address created and controlled by Ms Qin exclusively to access and communicate with the Federal Court; and
(cc)Mr Ng told her that Ms Qin was never the authorised representative on her judicial review application. He told her that Ms Qin is not a solicitor.
I also have an affidavit from Mr Alan Ng, the applicant’s present solicitor. He swears that:
(a)On or about 12 January, 2021 he received instructions from Ms Xie, who he knew to be the sole director of Twinkle Grace Pty Ltd. He was made aware of a judicial review application that had been made by Ms Xie;
(b)He filed and served a Notice of Address for Service in that application (BRG374/2020) on 12 January, 2021;
(c)On or about 20 January, 2020 he sought a copy of “the files for second respondent case number 1724561 and second respondent case number 1726596 being the cases for the employer nomination and the visa applicants’ application” from the Federal Court;
(d)On the same day he made an unsuccessful attempt to contact Mr Philip Duncan, solicitor and migration agent who represented the applicant on 24 January, 2020 at the hearing conducted by the second respondent;
(e)He subsequently secured a copy of the second respondent’s decisions dated 11 March, 2020 from Mr Duncan on 24 January, 2020;
(f)After discussions with Ms Xie and perusal of the Court Book in matter BRG374/2020, Mr Ng formed the view that Ms Xie did not know of the basis of the application that had been made on her behalf; and
(g)It became apparent to Mr Ng that no review application had been filed in respect of the nomination refusal, only the visa application by Ms Xie and her dependents.
Following the filing of Ms Xie’s application, consent orders were made programming her application towards a hearing date, which was subsequently fixed to be 29 January, 2021. The present application was filed on 25 January, 2021 a matter of days after Mr Ng received the relevant files from Ms Qin and days before the hearing date fixed for Ms Xie’s application.
On 29 January, 2021 the Court made further orders in Ms Xie’s application listing the application for an extension of time and, if time is extended, the application for judicial review to 24 March, 2021. On 8 April, 2021 Ms Xie filed an amended application as did Twinkle Grace Pty Ltd. The hearing date of 24 March, 2021 was subsequently changed to 10 June, 2021.
On that day Twinkle Grace and Ms Xie were each given leave to amend their applications for review. Directions were made to accommodate the amendments and the first respondent’s response. The amended applications were fixed for hearing on 15 July, 2021.
At the hearing of the amended applications neither Ms Xie nor Mr Ng were required for cross-examination. I have no reason not to accept the evidence they have given.
EXTENSION OF TIME
There is no dispute that the factors which the Court must apply in determining whether to grant an extension of time are as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
Twinkle Grace’s application was filed 285 days outside of the 35-day time limit prescribed under s 477(1) of the Migration Act 1958 (Cth).
This delay is over eight times the legislated time limit. As a general proposition, where a significant period of time has elapsed, the time limit should be rigidly applied in all but very exceptional cases: Re Commonwealth; Ex Parte Marks (2000) 75 ALJR 470 at [16].
Ms Xie’s application was filed 59 days outside of the statutory time limit. Although this delay is not to the same extent as that in Twinkle Grace’s proceeding, it is nevertheless significant.
The applicants attribute the reason for the delay to the conduct of their former migration agent, Ms Lily Qin. The applicants submit that Ms Qin’s conduct amounted not only to a deception on the applicants, but one that also stultified the decision-making process under the Act.
I think however, the explanation is simpler than that. The failure by the company to properly commence a judicial review application was clearly due to the negligence of Ms Qin. Whilst it seems that an application to review the decision relating to Ms Xie was commenced (albeit out of time), there was no application at all in respect of the company’s nomination application. Without a successful nomination application, Ms Xie’s review application could not be successful.
Ms Qin’s conduct sufficiently explains the delay in the commencement of the company’s application. It also sufficiently explains the delay in the commencement of Ms Xie’s application. She placed matter in the hands of Ms Qin. It seems that Ms Qin was well aware of the time limit although did not tell Ms Xie about the limit. But that did not matter because as the first respondent points out Ms Xie’s affidavit filed with her application was sworn on 22 April, 2020, within the 35 day time period. Whilst there is no affidavit filed in Ms Xie’s proceeding which explains the delay between her swearing her affidavit on 22 April, 2020 and the application being filed on 1 July, 2020 the implication is clear that the commencement of the application was in the hands of Ms Qin and she failed to commence the application within time.
There is no specific prejudice to the first respondent, beyond the public interest in the finality of administrative decision making. However, the mere absence of prejudice cannot of itself justify the exercise of the discretion sought by Twinkle Grace.
The impact on the applicants if time is not extended would be significant. Ms Xie’s entitlement to remain in Australia would arguably be in jeopardy and she would be prohibited from making another visa application while in Australia.
In considering whether a case has sufficient merit such as to warrant an extension of time, the Court will have regard to the grounds at an “impressionistic level”. The Court is not required to determine whether the second respondent’s decision is vitiated by jurisdictional error. If an application has no prospect of success, an extension of time, even for a short period, may be refused.
EXTENSION OF TIME
I am satisfied that both applicants have established a satisfactory explanation for the delay in commencing their proceedings. I accept that the applicants put the conduct of their applications for review in the hands of an advisor who turned out to be dilatory and incompetent. Whilst I do not accept the misrepresentation arguments pursued by the applicants and the suggestion that the conduct of the advisor was a fraud on them and the second respondent, it is not necessary to do so to conclude that the applicant’s advisor’s actions explain the applicants’ failure to commence proceedings within time or to focus upon the significance of a review by Twinkle Grace rather than Ms Xie.
I do not intend to rehearse why I have concluded that the grounds of review Twinkle Grace proposes have some merit at an impressionistic level. I am satisfied that they do, as will be apparent from my reasons concerning those grounds set out later.
Both Twinkle Grace and Ms Xie will be granted an extension of time within which to commence their applications for review. I am satisfied that it is necessary in the interests of the administration of justice to make those orders.
THE AMENDED APPLICATIONS FOR REVIEW
Twinkle Grace Pty Ltd
Twinkle Grace Pty Ltd proposes four grounds of review set out in its amended application for review filed on 8 April, 2021. I will deal with each in turn.
The first is as follows (errors in the original):
3. The second respondent erred in law in finding that regulation 5.19(4)(h)(i) of the Regulations was not met because it took into account a consideration of whether the nominated position was ‘genuinely’ carrying out the duties of Corporate General Manager, being an irrelevant consideration not required by regulation 5.19(4)(h)(i).
To understand this ground it is necessary to understand a little more about the second respondent’s decision.
First, however, I should record that I accept the first respondent’s argument that when it determined Twinkle Grace’s application, the second respondent was to apply reg 5.19 of the Regulations as in force at the date of Twinkle Grace’s application for an employer nomination on 8 September, 2016, not as at the date of the second respondent’s determination.
The second respondent correctly identified that for the nomination to be approved, Twinkle Grace needed to satisfy all of the requirements of reg 5.19(4) of the Regulations. It recorded in detail the material put before it for that purpose by Twinkle Grace.
Critically, the second respondent considered whether the applicant met reg 5.19(4)(d), which required that the nominee will be employed on a full-time basis in the nominated position for at least 2 years.
The second respondent analysed the documentary material, including the financial information, given to it by Twinkle Grace. Concerns arose from that analysis. Specifically, the second respondent recorded:
24. In the hearing under s.359AA of the Act, the Tribunal put to the applicant that the wages paid to the managerial staff and the nominated position may be the reason or a part of the reason for affirming the decision that is under review. The clear particulars of this information is that the wages for managerial staff and the nominated position appear not to allow enough scope to employ packers and customer service officers for a business turning over $11,936,509 with total expenses of $11,902,285 for a profit before tax of $34,224. If the Tribunal relied on this information it may find that the applicant does not meet r.5.19(4)(d) which provides;
(d) both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
The second respondent recorded that, in response, Twinkle Grace generated its own profit and loss statement:
25. …that was submitted after the hearing and shows total income of $6,347,564 with total expenses including wages of $4,532,302 for a profit before tax of $1,815,262. This is a remarkable change in the profitability of the company. The Tribunal gives no further consideration to whether the company is able to employ the nominated employee on a full time basis in the position for at least 2 years.
Next, the second respondent considered whether Twinkle Grace met reg 5.19(4)(h). It accurately, in my view, summarised that subregulation:
26. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
• the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059) the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
• the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Twinkle Grace’s business is not located in regional Australia. Relevantly then, Twinkle Grace needed to demonstrate satisfaction with reg 5.19(4)(h)(i). In circumstances where Twinkle Grace had been operating its business for more than 12 months, the second respondent correctly identified that Twinkle Grace was required to meet the training requirements set out in IMMI 13/030, namely:
(a)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or,
(b)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
In accordance with s 359AA of the Act, the Tribunal put to the applicant that the training requirements did not appear to be met in circumstances where the only expenditure for the relevant period was $4500 for a Diploma of Leadership and Management for Jianhua Jiang, who, by reason of being a director and shareholder, might in any event be precluded from being counted towards the training requirements as she was a principal in the company. This issue was addressed, to the second respondent’s satisfaction.
The second respondent considered whether the tasks to be performed in the position proposed for Ms Xie corresponded to the tasks of a Corporate General Manager ANZSCO 111211.
The second respondent put to Ms Xie that the fact that she was undertaking other roles for Twinkle Grace may mean the nominated position was not a full time Corporate General Manager role, but a lesser role such as a Supply and Distribution Manager or Importer or Exporter. The second respondent recorded that in its post-hearing submission the applicant provided a number of PAYG payment summaries which indicated that, contrary to the applicant’s evidence at the hearing that all managerial positions were full-time, some were filled on a part-time basis. This aspect of the second respondent’s decision is the subject of one of the grounds of review so I will not discuss it in detail until later in these reasons.
The second respondent set out the responsibilities of a Corporate General Manager as prescribed by ANZSCO 111211 and the tasks set out in the nominee’s job description and proceeded to compare them. In the course of argument before me, counsel for Twinkle Grace agreed that this was an appropriate thing for the second respondent to do. As to this issue the second respondent concluded:
52. Overall, the tasks in the job description correspond to the tasks of an ANZSCO 111211 Corporate General Manager, however, the Tribunal must consider whether the nominated position is actually undertaking the tasks described for the latest financial year, namely 2019.
As to the qualification referred to by the second respondent in that paragraph – whether the nominated position is actually undertaking the tasks described, counsel for Twinkle Grace again agreed that it was necessary for the second respondent to undertake that exercise if it was to properly conduct the review.
After analysing the material provided by Twinkle Grace, particularly in the 19 February, 2020 submission and Ms Xie’s own evidence about her duties, the second respondent concluded that she was undertaking the role of Sales and Marketing Manager for 34.7 weeks or 67% of the 2019 financial year. If the functions and duties of a Sales and Marketing Manager overlap and align with the tasks of a Corporate General Manager then there might be no difficulty, but if they did not, then it might be said that Ms Xie was not actually carrying out the duties of the nominated position. For that reason, the second respondent embarked upon a comparison of the tasks and functions of a Sales and Marketing Manager with those of a Corporate General Manager. Twinkle Grace did not suggest that it was inappropriate to conduct that enquiry.
After undertaking that assessment, the second respondent concluded:
56. The Tribunal considers that the nominated position undertakes the tasks of a Sales and Marketing Manager for 34.7 weeks or 67% of the financial year 2019 because only one task of a Corporate General Manager correspond with that of a Sales and Marketing Manager.
From [57] to [60] the second respondent recorded and considered the submissions and evidence made by Twinkle Grace said to demonstrate that Ms Xie carried out the functions of a Corporate General Manager. It then concluded:
61. The Tribunal considers that with such a small percentage of time allocated to the higher level tasks of a Corporate General Manager ANZSCO 11211 it cannot reasonably be said that these seven tasks are undertaken in any meaningful way by the nominated position. Inherent in a position is the ability to undertake the full range of tasks and responsibilities of that role in a meaningful and effective manner.
62. The Tribunal considers that the tasks of the nominated position correspond with those of a Sales and Marketing Manager ANZSCO 131112 since 67% of the nominees working hours in financial year 2019 were spent on this role. This decision was reached based on the director of Twinkle Grace Pty Ltd, Ms Xie’s own statements in the hearing and the evidence in the PAYG payment summaries for the financial year 2019.
63. Therefore the tasks to be performed in the nominated position do not correspond to the tasks of the occupation Corporate General Manager (ANZSCO 111211) specified by the Minister in writing. Therefore r.5.19(4)(h)(ii)(D) and r.5.19(4)(h)(ii) are not met.
When discussing the requirement to identify and consider the ANZSCO description of Corporate General Manager, the second respondent instructed itself as follows:
48. The Tribunal is mindful that ANZSCO is not prescriptive, however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith. His Honour was referring to r.2.72(10)(f) of the Regulations; nonetheless the statement is applicable to the Tribunal’s decision making in regard to r.5.19(4)(h)(ii)(D):
what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another… (Judge Smith, Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30].)
(my emphasis)
As Twinkle Grace points out in submissions, the decision in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 was concerned with reg 2.72(10)(f) of the Regulations, which at the relevant time included a requirement that the position associated with the nominated occupation be genuine.
Counsel for Twinkle Grace submits that after giving itself the instruction I have just referred to, the second respondent discusses whether the duties undertaken by Ms Xie in the nominated role were, on the inferences it drew from the weeks of work it calculated that Ms Xie undertook in 2019, genuinely that of Corporate General Manager or that of a Sales and Marketing Manager. He argues that such an approach was erroneous.
But that is not what the second respondent did. At least, it did not do that by reference to the adjective genuinely. It did not use that word at all. In fact, what it did was to compare what Ms Xie actually did (as it had found) with the tasks ascribed to a Corporate General Manager and made findings about that. To the extent that it did find that Ms Xie devoted some of her time to the tasks of a Corporate General Manager, it was not concerned with whether she was genuinely undertaking those tasks – its decision proceeded on the basis that she did.
The reference in Cargo First Pty Ltd to the requirement in reg 2.72(1) that the position associated with the nominated occupation be genuine was not the point of the second respondent’s reference to Cargo First. The point of the reference was those parts of the extract (at [59] above) that I have emphasised – the qualitative analysis that is required to determine if the actual work performed aligned with the ANZSCO description of the nominated position.
At the time of the delegate’s decision and that of the second respondent, reg 5.19(4)(h)(ii)(B) was similar to reg 2.72(1) considered in Cargo First in that they required the decision maker to be satisfied that that there was a genuine need to employ the person to work in the position under the nominator’s direct control. I accept Twinkle Grace’s submission that to the extent the second respondent was required to consider the “genuineness” of the nominated position, it was in the context of one or other of those sub-regulations. The second respondent reached no concluded view about this issue because it was unnecessary to do so.
I accept Twinkle Grace’s submission that there is no requirement in reg 5.19(4)(h)(i)(A) for the work undertaken by the nominated position to genuinely correspond to that of the nominated occupation of Corporate General Manager and that if the second respondent had undertaken such a task then arguably it would have fallen into error. But, in my view, the second respondent did not embark upon such a comparison.
The ground reveals no jurisdictional error.
The second ground of review is in the following terms (errors in the original):
4. The tribunal erred in finding that the tasks undertaken by Ms Xie, the employer nomination, do not correspond to the tasks of the occupation Corporate General Manager (ANZSCO 111211) it was illogical and based on inferences that were wrongly drawn from the material before the second respondent and its purely mathematical approach.
Particulars
(a) The tribunal’s conclusion at [61] of the Decision Record that “with such a small percentage of time allocated to the higher level tasks of a Corporate General Manager ANZSCO 11211 it cannot reasonably be said that these seven tasks are undertaken in any meaningful way by the nominated position’ was a conclusion drawn on the basis that Ms Xie was working predominantly in those roles of Sales and Marketing Manager and not Corporate General Manager.
(b) The tribunal found at [44] of the Decision Record that because:
(i) the Company’s Warehouse Manager Hongwei Chen worked 9 weeks in 2019 and therefore Ms Xie worked 43 weeks in the position of Warehouse manager in 2019.
(ii) the Company’s Sales and Marketing Manager Nuo Chen worked 17.3 weeks in 2019 and therefore Ms Xie worked 34.7 weeks in the position of Sales and Marketing Manager in 2019.
(c) The Tribunal found at [59] of the Decision Record that Ms Xie only undertook the tasks of a Corporate General Manager 17.3 weeks or approximately 23% of the financial year.
(d) However, Ms Xie gave evidence that ‘when the employees cannot satisfy the requirements [she] would just do those things herself’ and not that she was also doing their work in substitution to her own.
(e) There is no logical connection between the evidence before the Tribunal, the findings made by the Tribunal that Ms Xie was working over 62 weeks a 52-week year in a non-employer nominated position, and the conclusion drawn by Tribunal that by working ‘doing those things herself’ Ms Xie therefore was not also working substantially in the role of Corporate General Manager.
Whilst jurisdictional error may lie where a decision maker makes a finding of fact and that finding of fact is a critical step in its ultimate conclusion and there is no evidence to support that fact (see Curragh Queensland Limited v Daniel (1992) 34 FCR 212), the evidence and the argument dos not establish that is what happened in this case.
The second respondent found at [46] of its reasons that Ms Xie’s son, Nuo Chen, was the Sales and Marketing manager for Twinkle Grace and was a part- time employee, despite her claims that he was a full-time employee. It reached that conclusion on the basis of the PAYG summaries for Nuo Chen’s employment that showed he was apparently employed for the full 2019 financial year, yet only earned $15,108 of his $45,500 annual salary. The conclusion that he must have been employed part-time, or only worked part-time, was clearly open on that evidence. That conclusion, when coupled with Ms Xie’s own evidence that she would do the work of the employees who were not there to do it, led the second respondent to conclude that Ms Xie undertook Nuo Chen’s tasks, and those of other employees determined to be part-time. Again, a reasonable inference in the circumstances.
I have set out above the sections of the second respondent’s decision relevant to these findings above.
Twinkle Grace submits that the second respondent fell into error because the findings set out in paragraphs [53], [56], [59], and [61] to [63] of the reasons for decision amount to no more than mere speculation.
Twinkle Grace submits that the inference that underlies the second respondent’s findings is that the roles of Corporate General Manager and Sales and Marketing Manager are exclusive in that by performing one of the tasks she was not fulfilling the duties of the other role, and that she was not able to multitask. Twinkle Grace argues that so much is apparent in the way in which the second respondent analysed Ms Xie’s testimony that she “would just do those things myself” in relation to the role of Warehouse Manager for example, and the submission that Ms Xie “performs her function through her managers, and as such, the tasks and duties closely align with the tasks and duties of a corporate general manager”. Twinkle Grace submits that the inference it identifies that the second respondent drew ignores the equally plausible, compelling and reasonable premise that Ms Xie, as General Manager, was juggling several roles and was undertaking other work on an ad hoc basis. Indeed, it was her evidence that she put a lot of effort and energy into the business and worked 14 hours a day.
However, I cannot accept these submissions. The findings set out in paragraphs [53], [56], [59], and [61] to [63] of the second respondent’s reasons for decision were not mere speculation, but were explained by the second respondent. They were the result of the careful analysis carried out by the second respondent of the material put before it by Twinkle Grace and Ms Xie. Whilst it is the case that another decision maker might have made different findings, analysed the material in a different way and drawn different inferences, that is not the test of jurisdictional error for present purposes. As the first respondent submits, the failure to draw an inference which was open to the second respondent cannot amount to jurisdictional error. Twinkle Grace does not suggest that the findings that were made were not open to the second respondent, but rather that it ought to have come to a different finding. Such submissions suggest merits review and nothing more.
I accept the submission that it cannot be said that the second respondent’s decision in this respect was one which no logical or rational decision-maker could have arrived at as Twinkle Grace now argues.
This ground of review reveals no jurisdictional error.
The third ground of review is in the following terms (errors in the original):
5. Alternatively, that the Tribunal erred in reached conclusion:
(a) at [59] of the Decision Record that Ms Xie, the employer nomination, only undertook the tasks of a Corporate General Manager 17.3 weeks or approximately 23% of the financial year; and
(b) at [61] of the Decision Record that “with such a small percentage of time allocated to the higher level tasks of a Corporate General Manager ANZSCO 11211 it cannot reasonably be said that these seven tasks are undertaken in any meaningful way by the nominated position”.
as it was not based on factual evidence raised by the Applicant or available to the Tribunal in relation to the Applicant.
This ground of review overlaps significantly with the last and remonstrates with the second respondent’s findings about the nature and the extent of work actually carried out by Ms Xie. For the reasons I have given above, the conclusions reached about this matter expressed by the second respondent at [59] of its reasons was open to it on the evidence. Similarly, given the finding at [59], the finding at [61] of the second respondent’s reasons was also open to it.
This ground does not reveal jurisdictional error.
Twinkle Grace argues that the second respondent misapprehended Ms Xie’s evidence. It draws attention to Ms Xie’s evidence that:
(a)she “‘put a lot of effort and energy” into the business and works 14 hours a day; and
(b)“I have to do all these things by myself. Main reason for the differences in the payment structure because when the employees do not fulfil their responsibilities and they do not perform well, I would hire new employees. For example about the management of the warehouse when the employees cannot satisfy the coming hello are right.”
But the second respondent did not misapprehend the evidence. It accurately recorded the evidence and then analysed that evidence. Whilst Twinkle Grace’s case was that Ms Xie was only filling in in the warehouse and doing sales and marketing tasks on an ad hoc basis, the second respondent took a different view after considering the wages records together with Ms Xie’s evidence. Other decision makers might not have reached the same conclusion, but that is not the test of jurisdictional error.
Twinkle Grace also argues that the second respondent’s finding about the nature and extent of Ms Xie’s work is contrary to its own internal reasoning and finding at paragraph [44] of its reasons. The relevant “findings” appear in the table, in the column headed “Weeks Ms Xie worked 2019”. As the first respondent points out, this is in substance an argument that the second respondent’s findings were illogical.
Twinkle Grace submits that the second respondent reasoned in [44] that Ms Xie worked a total of 77.7 weeks during the 2019 financial year in roles which were not equivalent to the nominated position of Corporate General Manager. Then, at [56] and [62] of its reasons Twinkle Grace ignores the finding that, by its own calculations, Ms Xie worked 43 weeks in the 2019 financial year as Warehouse Manager.
However, Twinkle Grace’s argument misapprehends the second respondent’s reasons. Even if the figures in the table in [44] could be seen as findings about the amount of time Ms Xie performed tasks in the warehouse manager role or sales and marketing role, the second respondent explains its reasoning process in [46] as follows:
46. The Tribunal knowing the wages paid in 2019 from the PAYG payment summaries and the annual wages advised by Ms Xie for each position has calculated the hours worked in 2019 by the managerial staff listed above. The Tribunal is not considering the Warehouse Manager since Ms Xie advised that this position was filled by Mr Hongwei Chen on 1 April 2019 and presumably continues on a full time basis to the present day. In the hearing the Tribunal questioned whether the Sales and Marketing Manager position was a full time position and was advised by Ms Xie that it was a full time position. However, the Sales and Marketing Manager only worked 17.3 weeks in 2019. Since Ms Xie advised that ‘when the employees cannot satisfy the requirements I would just do those things myself’, the Tribunal considers that Ms Xie has undertaken the Sales and Marketing Manager position for the remaining 34.7 weeks of the 2019 financial year.
In its post-hearing submissions Twinkle Grace had provided information that prior to the appointment of Mr Chen to the role of Warehouse Manager, parts of that role had previously been outsourced. Thus, whatever the second respondent made of the figures in the table in [44] it is clear enough that it discarded its views about Ms Chen working in the warehouse manager role because the position was filled by Mr Chen on a full-time basis and before that, parts of that work at least, was performed by others. The approach taken by the second respondent is not without explanation.
This ground too, in my view, simply remonstrates with the merits of the second respondent’s decision. It reveals no jurisdictional error.
The fourth ground of review is in the following terms:
6. The Tribunal erred in failing to afford the Applicant natural justice or procedural fairness by failing to draw the Applicant’s attention that it considered that the Nominated Position did not correspond with the occupation Corporate General Manager on the basis of its analysis of the material submitted by the Applicant post-hearing that in the 2019 financial year Ms Xie was undertaking the role of Sales and Marketing Manager for 34.7 weeks and Warehouse Manager for 43 weeks.
Having regard to the submissions made for the applicants, this ground focuses upon [44] of the second respondent’s decision. That paragraph is as follows:
44. When the PAYG payment summaries were submitted on the 19 February 2020 for the financial year 2019 it was found that as shown below several of the managerial staff were working on a part time basis, notably the Sales and Marketing Manager and Retail Shop Manager. Because there had been a significant turnover of staff, it was not possible to correlate all the names in the organisation chart with the names on the PAYG payments summaries. It is noted that in the hearing when the organisation chart was being discussed and the second respondent asked about these positions the applicant advised that all managerial positions were full time. It was only when the PAYG payment summaries were submitted after the hearing that it became apparent that many managerial positions were filled on a part time basis.
[table omitted]
Twinkle Grace argues that the findings in this paragraph to the effect that the Sales and Marketing Manager and the Retail Shop Manager were part-time positions were based upon an inference that the second respondent drew from the PAYG statements submitted by Twinkle Grace on 19 February, 2020. Counsel argued that the inferences are “in direct contradiction to the material submitted by Twinkle Grace prior to the hearing, during the hearing” and in the post-hearing written submissions.
The gravamen of this ground is the proposition advanced by Twinkle Grace that the findings in [44] of the second respondent’s decision and the inferences on which they were based ought to have been put to Twinkle Grace for comment at the hearing, or via an invitation to make post-hearing submissions. The argument advanced in support of this ground is not that the inferences and conclusions reached by the second respondent were not open to it.
The argument proceeds that if the second respondent had intended to rely on “critical adverse findings it found only after the hearing”, it ought to have afforded Ms Xie, presumably as the controlling mind of Twinkle Grace, an opportunity to comment on those matters.
It is uncontroversial that the second respondent did not invite Twinkle Grace or Ms Xie to comment on those inferences or the findings that were made as set out in [44]. Again, it is uncontroversial that the second respondent did not invite Twinkle Grace or Ms Xie to comment or make further submissions on the proposition that having regard to the documents submitted on 19 February, 2020 and the second respondent’s own calculations it, “could not reasonably be said that the seven tasks [of a Corporate General Manager] are undertaken in any meaningful way” by Ms Xie.
Twinkle Grace submits that the second respondent had an obligation to permit Twinkle Grace and Ms Xie an opportunity to comment, clarify or make submissions in response to the views the second respondent had formed. In failing to do so, it is submitted it breached the rules of natural justice or procedural fairness.
However, as the first respondent submits there is no obligation of procedural fairness beyond that which is provided for in the Act. The procedural fairness obligations cast upon the second respondent are codified in s 357A(1) of the Act. The second respondent’s obligation was only to put to the applicants “information which would be the reason, or a part of the reason, for affirming the decision under review”: s 359A of the Act. Whilst I accept the matters set out in [44] of the second respondent’s reasons might be seen as important and part of the reason for affirming the decision under review, the second respondent’s reasoning and conclusions about the evidence was not information for the purposes of s 359A of the Act. It is trite that the term information does not extend to the second respondent’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18].
In support of its argument, Twinkle Grace draws my attention to Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 although no particular aspect of that decision was drawn to my attention. The relevant proposition said to emerge from that case is that it will be a breach of the rules of natural justice if a decision maker fails to draw to an applicant’s attention that the decision maker was not minded to treat what “the applicant claimed as sufficiently probative material in the absence of other material”.
However, there are two problems with this argument.
The first is that Broussard is of limited assistance. That case was decided under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, I accept, is of limited utility in determining an application under the review regime established by the Migration Act.
In Broussard a priest from the United States had come to Australia with permission to remain in the country for six months, with the condition that “Employment [was] prohibited without written permission of an authorised officer”. While in Australia, he claimed to have been integral to establishing a new order of catholic priests, including writing its rules and constitution. The key issue the delegate had to decide was whether strong compassionate or humanitarian grounds for the grant of a permanent entry permit existed. In reaching that decision, the delegate considered the applicant’s claims but also considered that there was no “evidence” beyond the applicant’s claims themselves to support them. Gummow J (as he then was) interpreted the use of the word “evidence” here to be interchangeable with “material of probative value” rather than material admitted pursuant to the rules of evidence. His Honour considered the question of whether, in the circumstances, there was a want of procedural fairness because no opportunity was given to the applicant and his legal advisers to supplement the perceived deficiencies which, unless corrected, would be regarded by the delegate as fatal deficiencies.
His Honour distinguished the cases wherein the delegate was not required to engage in further inquiry of third parties or otherwise on the basis that the complaint was to a different effect. The key failure of the delegate was the failure to alert the applicant and his solicitors of the need for corroborative material which was perceived by the decision maker, if the decision maker was not to go against the applicant. The attitude of the delegate as to what was said to be required of probative value was central to her decision making process. In circumstances where it was not drawn to the applicant’s, or his solicitor’s, attention that the delegate was not minded to treat his claims as sufficiently probative material in the absence of other material, Gummow J concluded that this was a denial of procedural fairness. This leads to the second problem in the present case.
Here the second respondent raised its concerns about Twinkle Grace’s case with it and those that advised it. It offered to Twinkle Grace the opportunity to put further material before the second respondent dealing with the issues of concern. The second respondent did not just have Twinkle Grace’s claims before it. It also had the evidence that Twinkle Grace wished to put before it. The second respondent analysed that material and proceeded to draw inferences from it. It gave that material weight. That is to say, it treated it as probative material that had worth in the decision making process. The facts of the present matter do not engage the ratio in Broussard.
Moreover, I accept the first respondent’s argument that Twinkle Grace did not claim the PAYG summaries provided in the post-hearing submission were probative of its claim that the employees all worked in full-time positions. They were said to be probative of the company’s capacity to pay all staff, including Ms Xie. So much is apparent from this part of the post-hearing submission:
Issue 6 – Is the wages expenditure of the business consistent with the org chart?
During the hearing the Tribunal questioned Mrs Xie regarding the salary of each staff member identified in the org chart. The member calculated that the wages total was $250 800 (or $274,626 after calculating super). Out of a wages total of $443,600 this would leave $168,977 to pay Mrs Xie, which is less than her contracted $182,000 salary. However it is broadly consistent with that figure, being approximately $10,000 different (approximately 2.5%). And while the part time workers salaries are not included in those calculations, they do not earn very much, as can be seen from the PAYG statements provided.
Further, I am informed that the position of warehouse manager is less than 12 months old, and an annual salary would not be included in the figures above. I am informed that parts of this role were previously outsourced.
As previously submitted, the financials of the business show ample capacity in terms of revenue and profitability to pay the salary of all staff including Mrs Xie.
In any event, even if Twinkle Grace did claim that the summaries were probative of its claim that the employees all worked in full-time positions, the second respondent was not bound to use that material only in the way suggested by Twinkle Grace. It was for the second respondent to decide what use to make of the material.
The conclusions reached in [44] by the second respondent were open to it on the documents provided by the applicant in the post-hearing submission when analysed with the other material provided by Twinkle Grace. As I have already remarked, Twinkle Grace does not contend to the contrary.
It was put to Ms Xie during the second respondent’s hearing that the fact that she undertook other roles may mean her nominated position was not a full-time Corporate General Manager role, but a lesser role. At [43] of its reasons, the second respondent recorded:
43. The position of Warehouse Manager was filled by Hongwei Chen on 1 April 2019 but up until that time Ms Xie was undertaking the role of Warehouse Manager since “about the management of the warehouse…I would just do those things myself’. In the hearing, the Tribunal advised Ms Xie under s.359AA of the Act that the fact she was undertaking other roles in the company may mean her nominated position is not a full time Corporate General Manager role but a lesser role such as Supply and Distribution Manager or Importer or Exporter. This may mean the application does not meet r.5.19(4)(h)(i)(A). The Tribunal invited the applicant to address this concern in writing within 14 days.
As invited, Twinkle Grace made a post-hearing submissions directed to this issue. It appears in the post-submission hearing made on 19 February, 2020 under the heading “Issue 7 –Position of General Manager”.
In my view, there was no breach of the obligations upon the second respondent to afford Twinkle Grace procedural fairness when it did not give it an express opportunity to respond to the conclusions that the second respondent reached on the evidence before as identified in this ground.
In any event, if that view is wrong, I accept the first respondent’s submission that Twinkle Grace provides no evidence as to what it would have said had the apparent “critical adverse findings” been put to it for comment. As the first respondent points out, there is no evidence to suggest that, had it been asked, it would have adduced evidence to demonstrate that the Sales and Marketing Manager did in fact work full-time despite only being paid $15,108 in the 2019 financial year.
This ground of the amended application does not reveal arguable jurisdictional error.
Linghao Xie
The single ground of review in Ms Xie’s amended application for review is expressed as follows:
1.That the Tribunal erred in the process of its determination that the related nomination application by Twinkle Grace Pty Ltd did not satisfy regulation 5.19 of the Migration Regulations 1994 which gave rise to it wrongly affirming the decision to not to grant the Applicants Employer Nomination (classe EN) visas (subclass 186).
Given my findings above concerning Twinkle Grace’s application for review, this ground of review cannot succeed.
CONCLUSION
Twinkle Grace should have an order extending the time within which to commence a judicial review application, but the application filed on 8 April, 2021 must be dismissed.
Ms Xie should have an order extending the time within which to commence a judicial review application, but her amended application filed on 8 April, 2021 must be dismissed.
The applicants should pay the first respondent’s costs of the applications. At the hearing before me, counsel for the first respondent submitted that in the event that the applications for extension of time were allowed, but the amended applications for review dismissed, the first respondent’s costs should be fixed at the scale fee of $7,467 for Twinkle Grace’s application and less than the scale fee at $6,000 for Ms Xie’s application. Counsel for the applicants submitted that costs should follow the event and they should be fixed at the sums set out in the scale of costs forming part of the Federal Circuit Court Rules 2001 (Cth), thereby effectively agreeing with counsel for the first respondent.
Costs orders as sought by the first respondent are appropriate. It is also necessary to make an order for the costs thrown away by the adjournment of the applications on 10 June, 2021. The parties have agreed that those costs should be fixed at $500.00
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Associate:
Dated: 23 September 2021
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