Yuan Hua Pty Ltd v Minister for Immigration
[2018] FCCA 579
•14 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YUAN HUA PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 579 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for approval by Minister of a nomination and grant of a Subclass 457 visa for a Retail Buyer – Administrative Appeals Tribunal not satisfied that the position of Retail Buyer was “genuine” as required by Regulation 2.72(10)(f) of the Migration Regulations 1994 (Cth) and affirmed Delegate’s decision to refuse application for approval of nomination – application for judicial review of decision of Administrative Appeals Tribunal – Tribunal did not fail to provide “information” and breach s.359A(1) of the Migration Act 1958 (Cth) – No jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140G, 140GB, 359A, 359AA, 424A Migration Regulations1994 (Cth) |
| Cases cited: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | YUAN HUA PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1233 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder of Counsel. |
| Solicitors for the Applicant: | Lewis & Bollard Migration. |
| Counsel for the Respondents: | Mr T. Reilly of Counsel. |
| Solicitors for the Respondents: | DLA Piper. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 17 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1233 of 2017
| YUAN HUA PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Yuan Hua Pty Ltd (the Applicant) is a company which owns the fruit and vegetable retail business known as “Crazy Fruit World” situate at 397 Burwood Road, Belmore in the State of New South Wales (business).
Mr Xiaoqin Yan (Mr Yan) was at all relevant times the sole director and shareholder of the Applicant and was also employed by the business as a “Retail Buyer” (Retail Buyer).
On 19 September 2014 the Applicant was approved by the First Respondent, the Minister for Immigration and Border Protection (Minister), as a standard business sponsor under s.140G(2) of the Migration Act 1958 (Cth) (the Act) for a period of three years ending on 19 September 2017.
On 15 September 2015 the Applicant applied for approval of its nomination of Mr Yan for the position of Retail Buyer for the business. Approval of that nomination and the grant to Mr Yan of a Subclass 457 (Temporary Work) (Skilled) visa (457 visa) required the Applicant to satisfy the primary criteria prescribed under s.140GB(2) and (3) of the Act which relevantly, for present purposes, meant that the Applicant had to satisfy reg.2.72(10)(f) of the Migration Regulations 1994 (Cth) (the Regulations), namely by satisfying the Minister that the nominated occupation of Retail Buyer was “genuine”.
I note at this point that it is common ground that the Minister and the Tribunal regularly have regard to the Australian and New Zealand Standard Classification of Occupations (ANZSCO code and accessible on the website of the Australian Bureau of Statistics) in considering the tasks, range and skill level for nominated occupations including, relevantly here, that of a Retail Buyer.
By Application filed in this Court on 17 May 2016 the Applicant seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 22 April 2016, which affirmed the decision of the Delegate (Delegate) of the Minister dated 10 November 2014, refusing approval to the Applicant of its nomination of Mr Yan and the grant to him of a 457 visa.
Decision of the Delegate
By his decision of 10 November 2014 the Delegate of the Minister refused the application by the Applicant for approval of the nomination of Mr Yan. Relevantly, the Delegate considered the scope, nature and size of the business and found that the tasks of the nominated position of Retail Buyer would only rarely be required or performed. The Delegate considered that Retail Buyers are usually employed by large departmental stores or chains of stores to purchase goods on a large scale, and that in a small outlet this would be performed by a store manager and would not require the services of a full time Retail Buyer. The Delegate considered that the position of Retail Buyer had only been created to secure Mr Yan's stay in Australia, and that it was not therefore “genuine”.
Accordingly, the Delegate was not satisfied that reg.2.72(10)(f) of the Regulations had been met and therefore found that the Applicant had not satisfied the prescribed criteria for its nomination of Mr Yan for a 457 visa and he refused the application for approval of the Applicant’s nomination of Mr Yan.
Decision of the Tribunal
On 19 November 2014 the Applicant applied to the Tribunal for review of the Delegate’s decision.
The Applicant appeared at hearings before the Tribunal on 5 November 2015 and 12 January 2016 to give evidence and present arguments with Mr Yan giving evidence on behalf of the Applicant and being represented by a registered migration agent, and Mr Poynder of Counsel, who also appeared for the Applicant at the hearing in this Court.
In the result the Tribunal affirmed the decision of the Delegate not to approve the nomination of Mr Yan because it did not accept that the position of Retail Buyer was “genuine”. At [114] the Tribunal had regard to the ANZSCO code.
From [7] – [111] of its Decision Record the Tribunal set out the claims and evidence of the Applicant, including the evidence given at the Tribunal hearings on 5 November 2015 and 12 January 2016. In general terms, the Tribunal was concerned with the genuineness of the nominated position of Retail Buyer because of the scale and activities of the business, which comprised one fruit and vegetable store that also sold groceries.
The following paragraphs of the Tribunal’s Decision Record sufficiently set out the substance of the Tribunal’s findings.
[133] As stated previously, the Tribunal is not satisfied that the scale and activities of the business are such that a designated Retail Buyer performing the range of duties as described in ANZSCO and at the skill level indicated are necessary to the operations of the business. The Tribunal considers that the Retail Buyer aspects of the duties of the position flow directly from the general operations of the business in providing goods to the public on a day to day basis. The Tribunal considers that these aspects are put into practice on a basic level.
[134]The Tribunal is not satisfied from Mr Yan's evidence that the position encompasses the tasks of a Retail Buyer at the higher skill level or complexity as described in ANZSCO. The Tribunal does not accept that the position involves studying trade, manufacturers' and market information to keep informed of market conditions; liaising with management on long-term planning; establishing working plans according to seasonal and budgetary requirements or anticipating consumer trends, at the level and complexity that is required by a designated Retail Buyer.
[137] Based on the applicant's evidence at the hearing, and taking into account the other written material provided to the Tribunal and the Department, the Tribunal is not satisfied that the position includes a significant majority of the tasks of a Retail Buyer at the range and skill level as set out in ANZSCO for the occupation of Retail Buyer. The Tribunal does not accept that the position of Retail Buyer in the context of a medium fruit and vegetable shop which also sells groceries is genuine. The Tribunal does not accept that the duties of the position amount to the position of Retail buyer, having regard to the size and nature of the business and the duties described in ANZSCO.
[138] For these reasons the requirements of r.2.72(10)(f) are not met.
Accordingly, the Tribunal affirmed the decision of the Delegate not to approve Mr Yan’s nomination.
Ground of Attack on Tribunal Decision in this Court
The Ground of the Application filed in this Court is:
The second respondent failed to comply with the requirements of s 359A or alternatively s 359AA of the Migration Act 1958 (Cth) (the Act).
Particulars
1. During the hearing on 12 January 2016 the second respondent referred to information obtained by the Tribunal for the purposes of the review; namely, information obtained from the internet regarding the applicant's website (the information): Decision at [73].
2. The information was not provided to the applicant in writing by one of the methods specified in section 379A of the Act, as required by s 359A(2)(a) of the Act.
3. The information was not provided to the applicant's director orally by the method required by s 359AA of the Act, in that the second respondent did not:
(i) ensure, as far as is reasonably practicable, that the applicant's director understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; or
(ii) orally invite the applicant's director to comment on or respond to the information; or
(iii) advise the applicant's director that he might have sought additional time to comment on or respond to the information.
4.The information was material to the decision of the second respondent to affirm the decision under review: Decision at [116].
Contextual Background to the Ground
There was no doubt that the Applicant had a website, being This website had been identified on two letters as part of the letterhead of the Applicant, forwarded to the Tribunal in submissions from the Applicant’s migration agent prior to the first Tribunal hearing: see Court Book 199 & 650.
Then at the first Tribunal hearing on 5 November 2015 the following exchange took place concerning whether there was a delicatessen at the business address of the Applicant (the speaker identified as an unidentified male was the migration agent of the Applicant):
MEMBER: And, do you have a delicatessen at the shop as well?
MR YAN: No.
INTERPRETER: Member - - -
MEMBER: I thought your representative said you had a delicatessen? I might be wrong there.
INTERPRETER: Delegate. Member - Member, can I confirm with you delegate test?
MEMBER: Delicatessen. Delicatessen and - - -
INTERPRETER: What it's - what does it mean?
UNIDENTIFIED MALE: They sell salami and all that.
MEMBER: Salami, ham.
INTERPRETER: Okay. Okay. Member, I interpret wrong.
MEMBER: Okay.
MR POYNDER: Ham.
MEMBER: Ham.
MR POYNDER: Ham.
MR YAN: No. No, we don't sell this.
MEMBER: Just excuse me. I might need the - I might have made a mistake. I thought your representative said that there was a delicatessen at the shop.
UNIDENTIFIED MALE: Yeah, they sell rice, some canned food and some...
MR YAN: No. No. Only some tuna, the tin.
MEMBER: Right, tinned tuna. I must have remembered incorrectly. All right. I've got quite a lot of questions please, also. I don't want to just be talking about the - the tiny details about, you know, what's wrong with vegetables and the fruit. I want to know about your job as a retail buyer. So, is there anything else that you do as a retail buyer that you haven't yet given evidence about?
Prior to the commencement of the second hearing before the Tribunal on 12 January 2016 at 10:24am the Tribunal accessed the Applicant’s website which stated as follows:
About Us
Crazy Fruit World provides the people of Belmore with a wide variety of products, personal service and a range of local produce to choose from.
The newly refurbished supermarket showcases a selection of fresh fruit and vegetables, a wide variety of dips, breads and sweets, as well hosting a full service delicatessen, an in-house butcher and of course.
Helpful staff will help make your grocery shop stress-free, and the wide range of products will allow you any occasion.
At Crazy Fruit World we’re busy locking down the prices on hundreds of products in store, and keeping them down low. From household necessities and toiletries to your favourite snack and treats – your local Crazy Fruit World has everything in store that you want and need at a great price!
(emphasis added)
Shortly after the commencement of the second Tribunal hearing on 12 January 2016 the following exchange took place:
MEMBER: Do you have a website?
APPLICANT: Yes.
MEMBER: Your website states that you have a full service delicatessen at the shop.
APPLICANT: It’s not full range, but covers more than 1,000 grocery that meet the local residents’ needs.
MEMBER: You say a full service delicatessen.
APPLICANT: It’s just a wholesale, it’s not the full service.
MEMBER: Okay. But, that’s your website. That’s what it says.
APPLICANT: We had someone else to design the website. We don’t speak English.
MEMBER: And, you know, I might find that misleading, saying that you have a full service delicatessen.
APPLICANT: That could be due to cultural differences. We don’t speak English. We just hire someone to design the website for us.
MEMBER: Do you have an in-house butcher?
APPLICANT: No.
MEMBER: Well, your website says that you do.
APPLICANT: No. They were all blank. They weren’t actual product if you click in there.
MEMBER: Sorry? They are not actual ---
INTERPRETER: Product.
MEMBER: All right. Okay. I didn’t understand that. Could you say that again, please?
APPLICANT: We only hired someone to design the website for us. They design it as it was a supermarket one. But if you click the name of the product there wasn’t – there isn’t any actual product name that can be seen from the website.
MEMBER: Well, as I said, you know, I may find that this is misleading information and, in fact, false information to say that you have an in-house butcher, when you don’t.
APPLICANT: I can close that website down, if necessary. As I said, we just hired someone who could design website for us. They did it as they do for Coles, Woolworths, or other supermarkets. But, we actually just sell fruits and vegetables and some other groceries, which only meet local residents’ needs.
MEMBER: So, what else would you like to say today?
The website of the business was first referred to in the Decision Record of the Tribunal at [72] – [75] as follows:
[72] Mr Yan stated that the applicant has a website. The Tribunal brought to the applicant's attention that the website states that they have a full service delicatessen at the shop. Mr Yan stated that it is not full range but it covers more than 1,000 groceries that the local residents need. However, Mr Yan gave evidence that the groceries account for 5% to 10% of the turnover.
[73] The Tribunal informed the applicant that the website states that there is a full service delicatessen. Mr Yan stated that it is wholesale. It is not full service. The Tribunal brought to the applicant's attention that it is their website and that is what the website says. Mr Yan stated that they hired someone else to design the website. The Tribunal informed the applicant that it may find this misleading saying that they have a full service delicatessen. Mr Yan stated that it could be due to cultural differences. They do not speak English.
[74] The Tribunal asked the applicant if they have an in-house butcher. Mr Yan stated “no”. The Tribunal brought to the applicant's attention that the applicant's website states that they do have an in-house butcher. Mr Yan stated that they were all blank and they were not actual products if you click there. When they found someone to design the website for them, they designed a supermarket one, but if you click the name of the product, there is not any actual product name that can be seen from the website. The Tribunal informed the applicant that it may find that this is misleading information, and in fact, false information, to say that they have an in-house butcher when they do not.
[75] Mr Yan stated that he can close the website down if necessary. They just hired someone who can design a website for them. They did it as they do for Woolworths or Coles or other supermarkets but the applicant just sells fruit, vegetable and some other groceries which local residents need.
The website of the business was again referred to in the Decision Record of the Tribunal at [116], which appears below in the context of the preceding and succeeding paragraphs:
[115]In this case, the Tribunal has several concerns as to whether the position associated with the nominated occupation is genuine.
[116]The Tribunal does not accept that the position is consistent with the scale and activities of the business or necessary to the operations of the business. The business consists of one fruit and vegetable store that also sells groceries. Although the applicant's website ( at the time of the hearings stated that the business, 'Crazy Fruit World', has a full service delicatessen and an in-house butcher, Mr Yan who gave evidence on behalf of the applicant and is also the nominee, stated that there is no full service delicatessen and there is no in-house butcher. The Tribunal has concerns about the truthfulness of the advertising by the applicant on its website and the truthfulness of some of the submissions made by or on behalf of the applicant.
[117]The representative stated in a submission dated 29 June 2015 that the applicant has retail and wholesale functions (folio 104 reverse Tribunal file). However, the applicant stated that they only sell to the public. They only sell retail. They do not sell wholesale to any businesses but some restaurants order products and they may give them a bit lower price. The Tribunal does not accept that the applicant has wholesale functions. The Tribunal does not accept that this evidence, that the applicant has wholesale functions, is true.
Consideration
Mr Poynder’s fundamental submission for the Applicant was that the Tribunal failed to comply with its obligation under s.359A of the Act because it obtained “information” about the Applicant’s website and raised it with Mr Yan for the first time at the hearing on 12 January 2016 without giving to the Applicant in writing “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason… for affirming the decision” of the Delegate under review and invite the Applicant to comment on or respond to it. The “information” was said by Mr Poynder to be that the business had a website and that the website stated that the business had a full service delicatessen and in-house butcher.
Mr Poynder further submitted at the hearing that the Tribunal had not complied with s.359AA of the Act, and that s.359A(1)(a) was not rendered inapplicable by s.359A(4)(b) because the “information” concerning the existence and content of the website was not “information” which the Applicant had given to the Tribunal for the purpose of the application for review.
In my view the Ground fails for a number of reasons.
First, the existence of the website and the statement that the business hosted “a full service delicatessen [and] an in-house butcher” was not “information” within the scope of s.359A(1) because nothing on the website contained in terms “a rejection, denial or undermining” of the Applicant’s claim for approval of Mr Yan as its nominee, as required by SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at 615 [17] and Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 513 [22]. Nothing on the website undermined the Applicant’s claim that its business was of sufficient scale to warrant a Retail Buyer, but rather the contents of the website, if true and believed, had a contrary tendency to magnify and augment the size and scope of the business and “would… have been a relevant step towards rejecting, not affirming, the decision under review”: see SZBYR at [17].
In other words, the “information” relating to the website was not of “dispositive relevance” to the Applicant’s claim for approval of Mr Yam’s nomination: see MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at 492 [27] – [29].
Second, it seems clear that the Tribunal’s accessing of the website just before the second hearing on 12 January 2016 was prompted by a desire to clarify the exchange at the first hearing on 5 November 2015 (reproduced at [17] above) concerning the Tribunal’s uncertainty as to whether or not the Applicant’s business included a delicatessen service.
However, s.359A(1) of the Act does not require the Tribunal to give to an applicant notice in advance of its thought processes or subjective appraisals or to identify gaps, defects, or any lack of detail or specificity in the evidence presented to it. The Tribunal does not have an obligation to give notice of its likely conclusions, the existence of doubts which it may have, inconsistencies or any absence of evidence: see SZBYR at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[18]Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
“…does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…”
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Third, in my view the “information” concerning the existence and contents of the website was “information” that the Applicant gave to the Tribunal on 12 January 2016 for the purposes of s.359A(4)(b) of the Act and therefore the obligation of the Tribunal under s.359A(1) to give clear particulars of such information to the Applicant was rendered inapplicable. This is so because it is not relevant for the purposes of s.359A(4)(b) that the “information” came as a result of the Tribunal’s own questioning, based on “information” that it had already sourced from a third party or information centre, once that “information” has been confirmed by the Applicant at the hearing. In SZCJD v Minister for Immigration and Multicultural Affairs [2006] FCA 609 at [42] – [43] Heerey J said of the analogue section of s.359A(4)(b), namely s.424A(3)(b) which applies to Protection visas:
[42] Even if the “information” here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the “information” is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
“While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source."
This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant “gave” the “information” for the purpose of the Tribunal review application (in contrast to SAAP, where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit.
[43] To conclude that an applicant “gave” information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.
This passage was cited with evident approval by the Full Court of the Federal Court of Australia in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 434 [57] per Gyles, Stone and Young JJ. To similar effect Kenny J stated in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] as follows:
[35]It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
“While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source."
Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him.
Finally, Heerey J returned to consideration of s.424A(3)(b) in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at 493 [32] in the following terms:
[32]Turning to the Minister’s alternative argument based on s 424A(3)(b), I agree that the appellant “gave” the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal’s questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]-[43]; see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35]; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [61].
Disposition
In my view the Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error, and accordingly the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 14 March 2018
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