YANG v Minister for Immigration

[2018] FCCA 3135

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3135

Catchwords:
MIGRATION – Administrative Appeals Tribunal – temporary business entry (class UC) temporary work (skilled) (subclass 457) visa – failure of applicant to provide the information sought – whether tribunal failed to exercise its jurisdiction – unreasonableness – whether the tribunal failed to take into account a relevant consideration – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Migration Regulations 1994 (Cth).

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Immigration and Citizenship v Li and Anor [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Stretton v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 11

First Applicant: YANG YANG

Second Applicant: ZHE MENG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 811 of 2016

Judgment of: Judge Mercuri

Hearing date: 25 June 2018

Date of Last Submission: 25 June 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Advocate for the applicants: In person

Solicitors for the applicants: None

Counsel for the respondents: Ms Symons

Solicitors for the respondents: Clayton Utz

ORDERS

1. The applicants’ application for judicial review filed 21 April 2016 be dismissed.

2. The applicants pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 811 OF 2016

YANG YANG

First Applicant

ZHE MENG

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this court on 21 April 2016 under the Migration Act 1958 (Cth) (“the Act”) in which the applicants seek judicial review against the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on

   
   

   29 March 2016.

2. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and

   
   

   Border Protection (“the Minister”) made on 27 August 2015 cancelling the first named applicant’s Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (“the visa”).

Summary

1. For the reasons that follow, this application for judicial review fails.

2. I make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs.

Background

1. The background facts are not in contention. The following summary has been extrapolated from the Minister’s outline of submissions.

2. The first applicant is a Chinese citizen who, on 4 April 2012, was granted the visa on the basis of a business nomination by his sponsor,
   John Stonemart Pty Ltd, to work for them in the occupation of Accountant General (ANZSCO code: 221111). The second applicant is the first applicant's wife. The first applicant’s visa was subject to condition 8107 which, among other things, required that the visa holder must work only in the occupation listed in the most recently approved nomination for the visa holder.

3. By letter dated 21 July 2015, the Department of Immigration and Border Protection (“the Department”) sent the first applicant a
   Notice of Intention to Consider Cancellation (“the notice”) in relation to his visa pursuant to section 116 of the Act. The notice related to the
   first applicant's alleged breach of paragraph 3 of condition 8107 of the visa. In its correspondence, the Department asked the first applicant to provide a response addressing any reasons why his visa should not be cancelled.

4. On 24 July 2015, the fist applicant's representative sought an extension of time to provide a response. The Department granted the extension and on 4 August 2015, the first applicant provided a response to the notice. One of the documents provided with this response was a
   'Workplace Assessment Report' prepared by Silver Man Solutions
   Pty Ltd. The first applicant provided further material to the Department on 12 August 2015.

5. On 27 August 2015, a delegate of the first respondent decided to cancel the first applicant’s visa and notified the first applicant of its decision on the same day. The delegate cancelled the visa under section 116(1)(b) of the Act on the basis that the applicant had breached condition 8107 and in particular, the requirement in paragraph 8107(3)(b); that is, that the first applicant must work only in the occupation listed in the most recently approved nomination for the visa.

The tribunal’s reasons

1. On 27 August 2015, the applicants applied to the tribunal for review of the delegate's decision.

2. On 1 October 2015, the applicants were invited to provide information to the tribunal pursuant to section 359 of the Act. In particular, the tribunal invited the applicants to provide the following information in writing by 15 October 2015:

   a) information which demonstrates that you have complied with each of the conditions of your visa…; and

   b) information which you feel is relevant to whether or not your visa should be cancelled.[1]

   [1] Court book page 238.

3. By email dated 13 October 2015, the applicants’ representative informed the tribunal that they had ceased acting for the applicants and attached a change of contact details form which recorded the applicants’ details.

4. On 13 October 2015, the tribunal forwarded the letter to the applicants’ updated email address, noting that the due date for the response was
   15 October 2015. The tribunal then by letter dated 16 October 2015 (sent by email) granted the applicants an extension of time to provide information by 30 October 2015. The applicants did not provide any information to the tribunal.

5. By letter dated 5 November 2015, the tribunal informed the applicants that as they had not provided the information requested by the tribunal within the prescribed period, they were not entitled to appear before the tribunal. The letter noted that the tribunal had no power to permit the applicants to appear at a hearing but that it would defer making a decision until 19 November 2015 to allow the applicants to provide further evidence in writing should they choose to do so.

6. By email sent to the tribunal on 19 November 2015, the first applicant requested an additional week to 'complete [his] files'.[2] The tribunal confirmed that it would not make a decision before 27 November 2015.

   [2] Court book page 259.

7. By email to the tribunal dated 26 November 2015, the first applicant provided written submissions.[3]

   [3] Court book page 262 to 264.

8. By letter sent by email on 27 November 2015, the tribunal requested that the applicants contact the tribunal if they had found a new sponsor and if a new nomination application was anticipated in the future.

9. By email sent 1 December 2015, the first applicant informed the tribunal that he had found a new sponsor and was ready to submit the application for nomination.

10. By letter dated 30 March 2016, the tribunal notified the applicants of its decision made on 29 March 2016 to affirm the decision of the delegate to cancel the visa.

11. In its decision, the tribunal:

    a)found that it did not have jurisdiction in relation to the second applicant;[4]

    b)stated that the issue (in the review) was whether the first applicant had failed to comply with condition 8107 and if so, whether the visa should be cancelled;[5]

    c)set out the procedural background to the tribunal's decision, including the invitation to give information made under section 359(2) of the Act, the failure of the first applicant to provide the information sought and the consequential loss of the first applicant's entitlement to a hearing;[6]

    d)noted that by his statement to the tribunal, the first applicant had partially conceded not working in the nominated occupation of accountant;[7]

    e)referred to the first applicant's indication that he had found a new sponsor and was ready to apply for approval of a nomination but noted that the first applicant had made no further contact with the tribunal in a period of almost four months, including to advise of the outcome of any nomination application;[8]

    f)based on both the delegate's observations and the first applicant's written concessions to the tribunal, found that the first applicant was not working only in the occupation listed in the most recently approved nomination as required by clause 8107(3)(a)(ii) and had not complied with condition 8107;[9]

    g)found that as the first applicant's sponsor had been barred under section 140M of the Act, the ground for cancellation in rule 2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) (“the Regulations”) and section 116(1)(9) existed;[10] and

    h)after considering relevant circumstances, including but not limited to the Department's Procedures Advice Manual PAM3 (General visa cancellation powers), decided to exercise its discretion and affirm the decision to cancel the applicants’ visas.[11]

    [4] Court book page 277 at paragraph [2].

    [5] Court book page 277 at paragraphs [3] to [4].

    [6] Court book page 277 at paragraphs [5] to [7]; and page 278 at paragraphs [7] to [10].

    [7] Court book page 278 at paragraph [11].

    [8] Court book page 278 at paragraphs [12] to [13].

    [9] Court book page 279 at paragraph [20].

    [10] Court book page 279 at paragraphs [21] to [23]; and page 280 at paragraph [24].

    [11] Court book page 280 at paragraphs [26] to [29]; and page 281 at paragraphs [29] to [32].

Proceedings before this court

1. At the hearing before this court, the applicants appeared on their own behalf. The first applicant made the principal oral submissions and the second applicant made some further oral submissions. Both were assisted by an interpreter.

2. In addition, the first applicant also handed up a document setting out some written submissions in support of their application. 

3. In his oral submissions, the first applicant:

   a)

   made reference to the fact that since being in Australia he has undertaken a range of courses and training in relation to his accountancy skills and that the report prepared by

   
   

   Silverman Solutions proved that his accountancy skills meet the requirements of the Act;

   b)stated that when he accepted the role with his employer, he was grateful to have been given an opportunity to obtain work as a recent graduate and that as a result he was fearful of losing his job if he did not do as directed by his employer, which sometimes included doing ‘some other things’ which I understood to be a reference to non-accounting tasks; and

   c)the situation with his migration status has had an impact on his wife as well as she has been unable to undertake study or work in Australia and they have not been able to move on with their lives; for example, the applicants have been unable to plan to have a baby. 

4. As the applicants were representing themselves in these proceedings, they were invited to explain in their own terms why they believe the tribunal’s decision was wrong. 

5. In response, the first applicant pointed to the following matters:

   a)the tribunal did not take into account the third party assessment of his accounting skills; and

   b)the applicant’s section 457 visa was cancelled even though it was still valid for a further two years.[12]

   [12] Transcript page 15 at lines 17 to 29.

6. The second applicant also raised concerns about the fact that the first applicant’s visa was cancelled even though it had initially been granted for four years and still had a further two years to run. She also confirmed that she has not been able to study or travel outside of Australia whilst these issues have remained unresolved. 

Ground one

1. The applicant’s first ground of review is:

   The Tribunal constructively failed to exercise its jurisdiction.[13]

   [13] First applicant’s application filed 21 April 2016 at page 3.

2. The ground one particulars appear to contend primarily that the tribunal constructively failed to exercise its review function under section 348 of the Act because it made its decision based on the delegate's observations rather than an independent assessment of what was the correct and preferable decision. This point is reiterated by the applicants in their written submissions where they said:

   6.  … The Tribunal needed to look at the information that we had provided and the information that we previously provided to the Minister’s officer and then decide for itself whether (the applicant’s) visa should be cancelled.

   7.  Instead, what the Tribunal did was to look at the Minister’s officer’s decision as the starting point and see whether that decision was correct or not.  To do that, the Tribunal was wrong. The mistake means that the decision was not valid.[14]

   [14] First applicant’s written submissions filed in court on 25 June 2018 page 2 at paragraphs 6 to 7.

3. The first respondent correctly concedes that the tribunal is required by section 348 of the Act to 'review' such decisions as are specified by the Act. The statutory task of the tribunal is to ‘bring [its] own mind to bear on the issues arising on the review'.[15] As a result, a failure of the tribunal to consider matters with 'fresh eyes' can result in jurisdictional error.[16]

   [15] First respondent’s written submissions filed 9 November 2016 page 5 at paragraph 19 citing MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [56]-[60].

   [16] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [56]-[60].

4. However, the first respondent maintains that in this case, the tribunal did undertake this task of review and did not simply adopt the reasoning of the delegate. 

5. It was submitted on behalf of the first respondent that the tribunal approached the substantive question of whether there were grounds under section 116(1)(b) of the Act to cancel the applicant's visa by first considering the statement provided by the applicant to the tribunal on
   26 November 2015. As correctly pointed out by the first respondent, this was a document that post-dated the decision of the delegate and therefore having regard to it supports the proposition that the tribunal did not simply adopt the reasoning of the delegate.

6. It was further submitted on behalf of the first respondent that the tribunal noted that the concessions made in the applicant's statement were consistent with information taken from the delegate's decision, but in doing so, the tribunal did not abdicate its review function. The tribunal made explicit that its decision in relation to section 116(1)(b) was based on both the evidence before the delegate and the written concessions provided to the tribunal.[17]

   [17] Court book page 279 at paragraph [20].

7. I agree with the submissions made on behalf of the first respondent. The tribunal’s reasons reflect a consideration of both issues; that is, whether a ground for cancellation exists and, if so, whether the discretion to cancel ought to be exercised. In fact, in its decision the tribunal notes that it has had regard to “the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’”.[18]

   [18] Court book page 280 at paragraph [26].

8. Moreover, it is evident from paragraph 27 that the tribunal had regard to the evidence put forward by the applicants. Also at paragraph 29, the tribunal considers the evidence which goes to whether or not the discretion to cancel ought to be exercised.

9. Ground one is no more than an attempt to have this court engage in impermissible merits review.

10. For these reasons, I find that ground one is not made out.

Ground two

1. The applicant’s second ground of review is:

   The Tribunal’s decision: (a) was so unreasonable that no reasonable Tribunal could have made it; and/or (b) was illogical and irrational.[19]

   [19] First applicant’s application filed 21 April 2016 at page 288.

2. In their written submissions, the applicants relevantly stated that the tribunal’s finding that the applicants did not comply with the visa conditions because the first applicant was not working as an accountant was unreasonable. In support of this, the first applicant pointed to the following facts:

   a)he had spent a lot of time in Australia;

   b)he has a Masters qualification in accounting;

   c)he has knowledge and skills as an accountant; and

   d)he was employed by John Stonemart Pty Ltd as an accountant.

3. In that context, it was unreasonable and did not make sense to find that he was not working as an accountant.

4. The applicants further stated in their written submissions that:

   …because the Tribunal’s decision was really unreasonable and did not make any sense, the Tribunal was also wrong.  The mistake also means that the decision was not valid.[20]

   [20] First applicant’s written submissions filed in court on 25 June 2018 page 2 at paragraph [11].

5. It is submitted that this ground in effect seeks impermissible merits review of the tribunal decision.

6. I agree with the first respondent’s submissions that there is nothing in the analysis and final decision of the tribunal that warrants the label of irrational or illogical, bearing in mind the test for illogicality and irrationality is a high one.

7. In the decision of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, Crennan and Bell JJ observed:

   ..the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another conclusion.[21]

   [21] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131].

8. Moreover the authorities on when a decision will be considered 'unreasonable' emphasise the need to consider the statutory source of the power.[22] Having regard to the tribunal’s power on review, it cannot be said that the decision of the tribunal in this case can properly be described as legally unreasonable in that sense.

   [22] Stretton v Minister for Immigration and Border Protection ((No2) [2016] FCAFC 11 at [11].

9. The relevant provisions of the Act and the condition attached to the applicant’s visa is conveniently set out in the Notice of Intention to Consider Cancellation sent to the applicant dated 21 July 2015.[23] By that letter, the applicant was put on notice that he may not have complied with condition 8107 imposed on his visa, in particular paragraph 3 which relevantly stated:

   [23] Court book page 279 at paragraphs [14] to [23].

   If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a)    the holder:

   (i)   must work only in the occupation listed in the most recently approved nomination for the holder; and …[24]

   [24] Court book page 49.

10. The applicant’s occupation for the purposes of condition 8107(3)(a)(i) is an ‘accountant’.[25]

    [25] Court book page 49.

11. Section 116(1)(b) of the Act confers a discretion on the Minister to cancel the visa of a non-citizen if the jurisdictional fact stated in that paragraph is satisfied. That is, the discretion arises where the Minister is satisfied that the person has not complied with a condition of their visa.

1. The tribunal found that the pre-condition for the exercise of discretion under section 116(1)(b) was satisfied by the applicant's failure to comply with condition 8107. This finding was based in part, on concessions made by the applicant to the tribunal and information contained in the delegate's decision that was itself informed by the Department's investigation of the applicant at his place of work. The tribunal provided an 'evident and intelligible justification' for its finding in relation to the application of section 116(1)(b).[26]

   [26] Minister for Immigration and Citizenship v Li and Another [2013] HCA 18 at [68], [74] and [76] per Hayne, Kiefel and Bell JJ.

2. At paragraphs 3 and 4 of the decision record, the tribunal properly identified the task before it; namely, whether the ground relied upon by the delegate to cancel the applicant’s visa was made out and, if so, whether the visa should be cancelled as a matter of discretion. 

3. Having found that there were grounds to cancel the applicant’s visa, the issue raised is whether the tribunal exercised that discretion in a manner which meets the test of legal unreasonableness.  The discretionary power thereafter conferred on the Minister (and the tribunal on review) is not confined by its terms.

4. Thus, the factors that may be taken into account in the exercise of the discretion are similarly unconfined and any limitations on the scope of the power must be derived from the subject matter, scope and purpose of the Act.[27]

   [27] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [39] to [40] per Mason J.

5. I am satisfied that the tribunal’s decision was one that was premised upon a rational foundation and had an evident and intelligible justification such that it could not properly be said to be outside the range of possibly lawful outcomes as an exercise of the tribunal's statutory power, as contemplated in Stretton v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 11.

6. So much is evident from the tribunal’s reasons which specify the factors that the tribunal had regard to in the exercise of its discretion.[28] In particular, the tribunal had regard to the following matters:

   a)the purpose of the applicant's stay in Australia;

   b)the degree of hardship that might be caused to the applicants and any family members;

   c)the circumstances in which the cancellation arose;

   d)the past conduct of the applicant with the Department, which the tribunal described as 'cooperative'; and

   e)whether the cancellation would result in Australia being in breach of its international obligations.[29]

   [28] Court book pages 280 to 281 at paragraph [29].

   [29] Court book pages 280 to 281 at paragraph [29].

7. These were all matters that, by reference to the subject matter, scope and purpose of the enactment, had the potential to bear rationally and logically on the exercise of the tribunal's discretion.

8. I am satisfied that the tribunal’s decision was not legally unreasonable in the sense discussed above. 

9. For these reasons, ground two is not made out.

Ground three

1. The applicant’s third ground of review is:

   By failing to take into account the Workplace Assessment Report completed by Silver Man Solutions Pty Ltd (“Workplace Assessment Report”), the Tribunal (a) failed to take into account a relevant consideration that it was bound to take into account; and/or (b) constructively failed to exercise its jurisdiction.[30]

   [30] First applicant’s application filed 21 April 2016 at page 4.

2. The applicant argues that he provided a report prepared by
   Silver Man Solutions Pty Ltd to the Department in support of his response to the Notice of Intention to Consider Cancellation of his visa in August 2015 (“Workplace Assessment Report”) and the tribunal did not consider this report in its reasoning.  

3. The first respondent argues that this criticism is more aptly described as ‘a failure to consider evidence’. Moreover, the first respondent submits that whilst in certain circumstances, the failure to consider evidence may amount to jurisdictional error, this conclusion does not follow automatically as the 'fundamental question must be the importance of the materials to the exercise of the Tribunal's function and thus the seriousness of any error'.[31]

   [31] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111].

4. In the present case, the first respondent submits that where the tribunal was not obliged to consider any particular piece of evidence before it under the Act or the Regulations, arguably any failure on the part of the tribunal to consider evidence put before it by the applicant, including the Workplace Assessment Report, would not constitute jurisdictional error.

5. It was further submitted on behalf of the first respondent that the court should be slow to conclude that the tribunal overlooked the
   Workplace Assessment Report merely because it was not expressly identified by name in its decision record. It can be inferred that the tribunal had the report in contemplation when it made its decision, having regard to the following references:

   a)at paragraph 27 the tribunal noted that '[m]uch of the evidence’ submitted by the ‘applicant relates to the circumstances of his work for the sponsor who nominated the applicant for his 457 visa.’[32] Given that the Workplace Assessment Report was directed at identifying the 'range and depth of duties undertaken by [the applicant]'[33] whilst employed by the sponsor, it can readily be inferred that 'evidence' of this nature would comprehend the Workplace Assessment Report;

   b)at paragraphs 19 and 20, the tribunal referred to the delegate's decision and information taken from such decision.[34] The decision of the delegate in turn had referred to and made findings concerning the Workplace Assessment Report; and

   c)at paragraph 32, the tribunal stated that it had considered the applicant's 'circumstances as a whole', which could be understood to comprehend the circumstances described in the
   

   [32] Court book page 280 pat paragraph [27].

   [33] Court book page 102.

   [34] Court book page 279 at paragraphs [19] to [20].

   [35] Court book page 281 at paragraph [32].

   Workplace Assessment Report.[35]

6. A fair reading of the tribunal’s reasons does not establish, in my view, that the tribunal failed to consider the Workplace Assessment Report submitted to the Department by the applicant in response to the

   
   

   Notice of Intention to Consider Cancellation of his visa.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

   
   

   (“Wu Shan Liang”), the majority considered the role of a reviewing court in a judicial review application. Although that case arose in the context of a protection visa application, the comments equally apply.  The majority, in considering the reasoning of the court, said:

   … The Court continued: “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

   These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[36]

   [36] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [272].

7. Also in Wu Shan Liang, the Honourable Justice Kirby helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:

   The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[37]

   [37] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [291].

8. In this case, the mere absence of a reference to the

   
   

   Workplace Assessment Report does not mean that the tribunal did not have regard to it.

9. Even if I am wrong on that and the tribunal did not have regard to the Workplace Assessment Report, this does not amount to a jurisdictional error. As noted in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, whether a failure to have regard to particular evidence will constitute jurisdictional error will depend on the importance of the material to the tribunal’s function and the seriousness of any such error. In this case, the Workplace Assessment Report did no more than comment on the nature of the work that the applicant was engaged to perform with his employer and comment on the fact that it was accounting work.

10. In his written submissions, the applicant said:

    It is possible that if the Tribunal had taken that report into account, it would not have cancelled (the applicant’s) 457 visa because the report confirmed that (the applicant) complied with his visa conditions as he performed accounting work when employed by John Stonemart Pty Ltd.[38]

    [38] First applicant’s written submissions filed in court on 25 June 2018 at page 3 at paragraph [13].

11. As noted by counsel for the first respondent, what the Workplace Assessment Report does:

    …is to undertake an analysis by reference to documents such as a duty statement and employment activity account and considers whether, by reference to those documents, it can be said that … the duties do match those of the ‘accountant general’.

    But what the report isn’t directed to, understandably, is the circumstances, for example that the department observed when it made a visit of the workplace … that allowed it to conclude that the first applicant, at the particular point in time when the site visit occurred, was not undertaking work that you might expect somebody engaged as an ‘accountant general’ would be undertaking.[39]

    [39] Transcript page 10 at lines 19 to 30.

12. There is no suggestion that the applicant did not do some accounting work whilst he was employed. Rather, the issue was whether he also did work which was not accounting work in breach of a condition of his visa.  His own concession to the tribunal is evidence that this question was able to be answered in the affirmative. The Workplace Assessment Report therefore was not critical to this assessment.

13. For these reasons, ground three must also fail. 

Conclusion

1. As none of the applicant’s grounds have been made out, the application must be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:  16 November 2018