YWJ Group Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1220
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
YWJ Group Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1220
File number(s): BRG 408 of 2022 Judgment of: JUDGE EGAN Date of judgment: 20 December 2023 Catchwords: MIGRATION LAW – Whether Tribunal misinterpreted or misconstrued r. 5.19(4)(h)(ii)(B) of the Regulations – whether the decision of the Tribunal was unreasonable or irrational – no jurisdictional error established – Application dismissed. Legislation: Migration Regulations 1994 (Cth) r 5.19(4) Cases cited: Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 5 December 2023 Date of hearing: 5 December 2023 Counsel For the Applicant Mr L. Boccabella Solicitor for the Applicant W J Markwell & Associates Counsel For the First Respondent Ms S. Spottiswood Solicitor for the First Respondent Sparke Helmore ORDERS
BRG 408 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YWJ GROUP
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
20 DECEMBER 2023
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 28 September 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review in the amount of $8371.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The applicant company relevantly carried on a sushi restaurant business called “Sushi Machi” from premises situated at 3/222 Margaret Street, Toowoomba in the State of Queensland.
On 7 November 2017, the applicant made a nomination application to the Minister for the employment of one Ms Pyeongeun Kim (‘the nominee’) for the position of restaurant manager of the applicant’s restaurant. That application was made in circumstances where the applicant had already employed another person in the position of restaurant manager in the said restaurant.
The applicant’s Nomination Application sought approval of the nomination under the Direct Entry Nomination Stream. Under r. 5.19(4)(h)(ii) of the Migration Regulations 1994 (Cth) (‘the Regulations’), the Minister must approve a nomination in writing if:
(i) …
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under sub-paragraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)…
(D)The tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-paragraph;
The relevant Ministerial Instrument was annexed to the affidavit of Mr Markwell filed on 30 August 2023. [1] Under the heading ‘UNIT GROUP 1411 CAFÉ AND RESTAURANT MANAGERS’ tasks included in the position description were as set out below:
[1] See Annexure WJM-01.
“CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
•planning menus in consultation with Chefs
•planning and organising special functions
•arranging the purchasing and pricing of goods according to budget
•maintaining records of stock levels and financial transactions
•ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
•conferring with customers to assess their satisfaction with meals and service
•selecting, training and supervising waiting and kitchen staff
•may take reservations, greet guests and assist in taking orders”
On 29 April 2019, a delegate of the Minister refused to grant the nomination application on the ground that the applicant had not demonstrated a genuine need to employ the nominee as was required by r. 5.19(4)(h)(ii)(B) of the Regulations.
On 2 May 2019, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 26 August 2022, the Tribunal affirmed the decision of the delegate.
On 28 September 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal, the grounds of which were as follows:
“1. The AAT misapplied and misinterpreted Reg 5.19(4)(h) of the Migration regulations 1994 and/or failed to properly apply and interpret the definition of occupation of Café or Restaurant Manager as contained in the Australian and New Zealand Standard Classification of Occupations (the ANZSCO)
2.The AAT exceeded its function as a reviewer of the delegate’s decision and descended into an impermissible role as micromanager of the applicant’s business, inter alia, as evidenced by paragraph 48 of the AAT’s reasons.
3. The AAT’s decision was unreasonable.
4. The AAT erred by failing to conduct a proper review by failing to meet the requirements of decision making, set out at [24] and [25] in Plaintiff M1/2021 v Minister for Home Affairs[2022] HCA 17”
At the hearing before the Court, the applicant only relied upon Grounds 1-3 inclusive.
The Court agrees with the submissions made on behalf of the Minister that Grounds 1 and 2 sought an impermissible merits review of the decision of the Tribunal.
Further, the Court finds that the Tribunal did not misapply or misinterpret the provisions of r. 5.19(4)(h) of the Regulations. The Tribunal correctly identified that under the Regulations there must be a demonstrated necessity for the employment of a person in the nominated position. The Tribunal specifically made reference to the Regulation at [19] – [20] of its reasons, and thereafter analysed the evidence before it relevant to the genuine need criteria at [21] – [30] of its reasons.
At [31] – [41] of its reasons, the Tribunal recorded the evidence of one Mr Yang who was a director of the applicant company. It recorded how Mr Yang had stated that the restaurant was very busy and needed two managers. At [45] – [46] of its reasons, the Tribunal specifically engaged in a consideration of the position description of Café and Restaurant Manager under ANSCO. It was open for the Tribunal to find that because the managerial tasks were shared as between one Mr Lim and the nominee, that the nominee could not be said to be carrying out the role of a Restaurant Manager.
When considering the evidence of Mr Yang, the Tribunal made findings at [48] – [50] and at [52] – [58] of its reasons as follows:
“[48]Mr Yang gave evidence of his involvement with another sushi restaurant operated by a related entity. The Tribunal accepts that he has responsibilities in the other restaurant and that he may require assistance in the management of the Sushi Machi restaurant. However, he already has a manager working in this restaurant and this influences the Tribunal to find that the applicant has not demonstrated a genuine need to employ the nominee in the position. The Tribunal also accepts Mr Yang’s evidence that a Manager cannot be expected to work seven days per week. However, the Tribunal does not accept that it is necessary to employ a second Manager to full the Restaurant Manager role in this case. If a Restaurant Manager is employed, it is open to the employer to engage employees in lesser roles to work when the Manger is not present on the premises.
[49]The Tribunal has considered Mr Yang’s evidence that the restaurant is very busy and needs two Managers. The Tribunal accepts that the restaurant is busy but does not accept that this supports a genuine need to employ the nominee in the position of Restaurant Manger for the same reasons as are set out in the preceding paragraph.
[50]The Tribunal has also considered Mr Yang’s evidence as to why he has employed two Restaurant in the restaurant. It is undoubtedly Mr Yang’s choice to employ two employees in the position if he chooses to do so. However, for the nomination to be approved, the applicant must show that the genuine need for the employment of the nominee in the position of Restaurant Manager according to the Regulations has been demonstrated. Although Mr Yang has claimed that he would be required to pay a supervisor a salary almost equivalent to that of a Restaurant Manager, the Tribunal does not accept that this factor supports a genuine need to employ the nominee in the position. The applicant acknowledges that it employs another employee in this position and the Tribunal is not satisfied that a genuine need to employ the nominee in the nominated position has been demonstrated.”
…
“[52]The Tribunal acknowledges that a certificate of the RCB, the Queensland Chamber of Commerce and Industry, Toowoomba date1d3 December 2017, has been produced. The certificate is required under reg 5.19(4)(h)(ii)(F) which requires that the relevant body has advised the Minister about certain matters, including that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the nominator's direct control. In the present case, the RCB has certified that it has assessed the nomination against the requirement that there is a need for a paid employee in the nominated position within the business activities of the nominating employer and advises that the nomination satisfies the requirement. The Tribunal notes that the RCB advice refers to the need for a paid employee in the nominated position (following the wording of an earlier version of the regulation), rather than to the genuine need for the applicant to employee the nominee as a paid employee (as required by the applicable version of reg 5.19(4)(h)(ii)(F)). However, the Tribunal has considered the advice of the RCB in relation to the requirement for genuine need.
[53]This certificate may satisfy the requirement under reg 5.19(4)(h)(ii)(F) referred to above, but the Tribunal must consider and be satisfied on the matters about which the advice is provided. The advice is relevant to the Tribunal's considerations but is not conclusive. In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, the Court considered a similar requirement in a pre-July 2012 version of reg 5.19(4), and commented obiter that the use of the word 'advice' undoubtedly puts beyond doubt the construction of reg 5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.
[54]The Assessment Statement of the RCB which was produced to the Department, in relation to to this requirement, reveals that:
a. A reference to an organisational chart provided to the RCB refers to one Manager (the nominee), five part-time Wait Staff, two Chefs, four part-time Cooks and one Kitchenhand.
b. In relation to the enquiry as to how the business was being managed at that time, the document provides that the Director has managed the business since opening, that the Director has opened another sushi restaurant in Toowoomba and needed to oversee both restaurants.
[55]These comments indicate that it was not disclosed to the RCB that another Manager was employed in the business. The Assessment Statement was made in December 2M01r 7. Yang and the nominee agreed that the nominee had been employed part-time since October 2017. Mr Yang confirmed that Mr Lim had been employed at approximately the same time as the nominee.
[56]In this case, the Tribunal considers that the advice of the RCB is outweighed by the lack of evidence to support a genuine need for the applicant to employ the nominee in the position.
[57]Having regard to all the evidence, including the RCB advice, the Tribunal finds that the applicant has not established that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Restaurant Manager under the applicant's direct control. Accordingly, the requirement in reg 5.19(4)(h)(ii)(B) is not met.
[58] Accordingly, the requirements of reg 5.19(4)(h) are not met.”
The Court finds that the Tribunal properly engaged in the interpretation and consideration of the relevant Regulation. It intellectually engaged in the process of reviewing the applicant’s claims in the light of the Regulations. It did so in a considered and reasonable way.
The Court rejects the proposition advanced on behalf of the applicant that the Tribunal impermissibly applied some objective test when assessing the applicant’s claims, rather than relying upon the subjective view advanced by Mr Yang that in his opinion it was necessary to employ two managers. If the applicant’s proposition was accepted, and if the Tribunal was required to accept carte blanche what might be claimed on behalf of an applicant, one wonders what review role the Tribunal could thereafter possibly play.
There is no merit to Grounds 1 and 2.
As to Ground 3, Counsel for the applicant submitted that the decision of the Tribunal was unreasonable and illogical. Reliance was placed by Counsel for the Applicant upon the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said as follows:
“[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76]As to the inferences that may be drawn by an appellate court, it was said in House v R157 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [11], Kiefel CJ said:
“[10]In the joint judgment in Minister for Immigration & Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11]Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] – [56] and [61], Wigney J said:
“[52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53]The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54]The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT(2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
…
[61]In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed.”
In the present matter, questions of credibility did not arise. It was unsurprising that the Tribunal made no adverse finding against Mr Yang in such circumstances. What the Tribunal did do was form a view as to whether or not there was a genuine need for the nominee to be employed as a Café or Restaurant Manager by the applicant based upon all of the material before it. It has not been demonstrated that the Tribunal erred in the way in which it approached its decision-making process. The applicant has not scaled the high bar required to establish legal unreasonableness or illogicality. The test is stringent, and Courts ought not lightly interfere with the exercise of a statutory power involving an area of discretion. The decision of the Tribunal did not lack an evident and intelligible justification.
Ground 3 of the Application for Review is without merit.
Further, the decision of the Tribunal was one which could have been made by another reasonable decision maker. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) CLR 611 at [130] and [135]:
“[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational o2r logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The Applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of Review are dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 20 December 2023
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