MM International (Australia) Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 323

FEDERAL COURT OF AUSTRALIA

MM International (Australia) Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 323 MIGRATION – requirements for approval as business sponsor – meaning of 'satisfactory' record of, and 'demonstrated' commitment towards, training.

Migration Regulations 1994 (Cth) reg 1.20D

Lace Holdings Pty Ltd v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 79 referred to Nice Shoes Aust Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 252 referred to MM INTERNATIONAL (AUSTRALIA) PTY LTD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No ACD 27 of 2003 WHITLAM, FINN & CONTI JJ SYDNEY 9 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY ACD 27 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: M M INTERNATIONAL (AUSTRALIA) PTY LTD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WHITLAM, FINN and CONTI JJ

DATE OF ORDER: 9 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY A 27 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: M M INTERNATIONAL (AUSTRALIA) PTY LTD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WHITLAM, FINN and CONTI JJ

DATE: 9 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Dowsett J ([2003] FCA 880) dismissing with costs an application under s39B of the Judiciary Act 1903 for relief in respect of a decision of the Migration Review Tribunal ('the Tribunal') handed down on 16 December 2002. By that decision the Tribunal affirmed the decision of the respondent's delegate under reg 1.20D of the Migration Regulations 1994 to reject the appellant's application for approval as a business sponsor. 2 The Tribunal was not satisfied that the appellant met the requirements for approval as a business sponsor prescribed in pars (a), (c) and (f) of subreg 1.20D(2). Regulation 1.20D relevantly provided: '(2) The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if: (a) the Minister is satisfied that the applicant for approval is lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to: (i) the creation or maintenance of employment for Australian citizens or Australian permanent residents; or (ii) expansion of Australian trade in goods or services; or (iii) the improvement of Australian business links with international markets; or (iv) competitiveness within sectors of the Australian economy; and (b) … (c) the Minister is satisfied that the applicant for approval: (i) will introduce to, or utilise or create in, Australia new or improved technology or business skills; or (ii) has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and (d) … (e) … (f) the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that: (i) the applicant for approval is the employer referred to in subclause 457.223(4) of the Schedule 2 in relation to a visa application; and (ii) the visa holder satisfies the requirements of that subclause; the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067.' 3 Regulation 1.20C(2) required an application for approval as a business sponsor to be made in accordance with approved form 1067. In completing that form, an applicant undertook (inter alia): 'toaccept financial responsibility for obligations to the Commonwealth for sponsored nominees and dependants while in Australia, unless that nominee has, with the agreement of DIMA [Department of Immigration and Multicultural Affairs], subsequently been nominated by another employer and that other employer has become responsible for that nominee; to accept financial responsibility directly or through acceptable medical insurance arrangements for all medical and hospital costs that may be incurred in Australia by their nominee or dependents; to be responsible for repatriation costs for the visa 457 holder and dependants; to comply with Australian industrial laws, Australian levels of remuneration and conditions of employment; to accept as good practice the desirability of creating appropriate career opportunities for Australian residents both in Australia and, if the employer operates internationally, overseas; and to accept that overseas recruitment must not counter Government training policies and objectives of producing a highly skilled and flexible Australian workforce.' 4 In its reasons for decision the Tribunal said: '9. The review applicant claims to be a business involved in exporting, importing and trading to and from a number of countries and has applied for approval as a standard business sponsor (seeking entitlement to make one nomination of business activities within a 12 month period.) It was stated in the review applicant's business plan that the review applicant's parent company, MM International, based in Bangladesh, had been in the import/export business and had successfully traded over 20 years.' After then referring to the basis of the delegate's decision, the course of its review and the material before it, the Tribunal relevantly found: '26. It is a requirement of Regulation 1.20D(2)(a) that the employment of the holder of a Subclass 457 (Business (LongStay)) visa would contribute to the creation or maintenance of employment for Australian citizens or Australian permanent residents. The review applicant stated in a letter of 12 July 2002 that it was running a new and used furniture shop in Canberra and two trainees/employees worked there. BAS statement [sic] submitted by the review applicant disclose that the review applicant did not employ any employees in the 2001 to 2002 income tax year and a BAS statement for the period July 2002 to September 2002 indicate that $1936 was paid in PAYE tax for that period. The review applicant has indicates [sic] that of the 4 persons employed in the period July to September 2002, only one was employed for a period of 7 weeks. The gross salary paid during that period by the review applicant was less than $2000. The Tribunal is not satisfied that the review applicant is creating employment or maintaining employment due to the limited employment for Australian citizens and residents to date. The Tribunal is not satisfied the visa holder's employment would create employment or maintain employment for Australian citizens and residents. Therefore the review applicant does not meet Regulation 1.20D(2)(a)(i). 27. In relation to the alternate requirement the visa holder's employment would contribute to expansion of Australian trade in goods or services whilst the review applicant claims that it intends to expand import and export business, to date there has been no import or export income generated by the review applicant. The review applicant had attempted to export juice but that produced no income. No balance sheets or profit and loss reports have been provided to the Tribunal and a taxation return submitted indicated the review applicant earned a net profit of $1672 from the furniture business. The Tribunal is therefore not satisfied the visa holder's employment would contribute to expansion of Australian trade in goods or services and therefore the review applicant does not meet Regulation 1.20D(2)(a)(ii). 28. In relation to the requirements that the employment of the visa holder would contribute to improvement of Australian business links with international markets or competitiveness within sectors of the Australian economy. The review applicant has not provided any information to the Tribunal that would indicate this requirement is met. The review applicant's only source of income appears to be a furniture shop and a café. Therefore the review applicant does not meet Regulation 1.20D(2)(a)(iii) and Regulation 1.20D(2)(a)(iv). 29. … 30. In relation to Regulation 1.20D(2)(c)(i) the review applicant has not made any claims or provided any evidence in relation to the criterion that the review applicant will introduce to, or utilise or create in, Australia new or improved technology or business skills. 31. In relation to Regulation 1.20D(2)(c)(ii) the review applicant has provided a draft training plan for the financial year 2002/2003 in its business plan and a copy of Certificate of Appreciation dated 24 May 2002 from Skillz Business Development Initiative awarded to the review applicant for participating in the New Apprenticeship/Traineeship Program. The evidence before the Tribunal is that the review applicant has employed 4 staff, one for 3 weeks, another for 2 months, a third for 7 weeks and the fourth for 2 weeks. The Tribunal is not satisfied therefore that the review applicant has a satisfactory record or commitment toward either the employment or training of Australian citizens and Australian permanent residents in the business operations of the applicant in Australia. The Tribunal finds Regulation 1.20D(2)(c)(ii) is not met. 32. … 33. In relation to regulation 1.20D(2)(f) the review applicant has not provided any financial statements to show that it is able to comply with the undertakings in relation to its financial responsibility in accordance with form 1067. Only one taxation return has been provided indicating a net profit of $1672. No balance sheets or profit and loss statements have been provided to the Tribunal. The review applicant does not meet regulation 1.20D(2)(f).' (Emphasis supplied.) 5 In the Court below the grounds of review relied on by the appellant were stated in a variety of ways in its amended application. However, Dowsett J said: '14. In argument … the applicant advanced two specific criticisms, namely: · that the Tribunal had misunderstood the relevant tests prescribed in Regulations; and · that it had failed to consider material provided to it by the applicant, such failure constituting a denial of procedural fairness. 15. The case does not call for a detailed examination of the extent of the Court's jurisdiction to review decisions of this kind, as discussed by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454. I assume for present purposes that if the Tribunal asked itself the wrong question or failed to afford procedural fairness to the applicant, there was jurisdictional error sufficient to justify intervention.' 6 The procedural fairness challenge was evidently prompted by the highlighted passages in the excerpt reproduced at [4] above. The taxation return mentioned by the Tribunal was the 2001 return. The appellant contended that the Tribunal had overlooked numerous other documents which had been provided to it. The appellant's managing director, Mohammad Munir Hussain, gave evidence on this topic. Dowsett J found that none of the documents identified by Mr Hussain were forwarded to the Tribunal, save for the appellant's 2002 tax return and financial statements. As to these documents, his Honour did not make a finding that they were actually sent to the Tribunal or received by it, but he did find that a covering letter purporting to attach them was undoubtedly sent to the Tribunal. In those circumstances his Honour said (at [36]): '… I consider that the Tribunal, having received the faxed letter without some of the attachments, ought to have made further enquiries. Such enquiries would have put Mr Hussain on notice that his intentions had miscarried. He would probably have produced the documents which he now propounds. Whether those circumstances constitute a denial of procedural fairness may be doubted. However I will assume as much for present purposes.' 7 Dowsett J found that the 2002 tax return and financial statements showed no significant change from the position disclosed by the 2001 tax return. His Honour held that, where those documents were relevant to the issues posed by reg 1.20D(2), they could not have affected the outcome. He also held that the Tribunal did not apply the wrong test or address the wrong question in relation to the requirements of pars (a), (c) and (f) of that subregulation. In particular, his Honour said that the Tribunal did not err in looking to the past as a guide to the future. 8 The sole ground relied upon in support of the present appeal is that Dowsett J erred in failing to hold that the Tribunal's decision was affected by jurisdictional error 'involving an incorrect interpretation of the applicable law to the facts as found by the Tribunal'. The appellant does not maintain any complaint of jurisdictional error founded on a denial of procedural fairness. We need not, therefore, consider whether the denial assumed by Dowsett J could have affected 'the outcome' of the application to Tribunal in the sense explained in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. 9 Counsel for the appellant did not confine his submissions to the facts found by the Tribunal. On the contrary, he sought to cavil with those findings and to have us explore the merits of the Tribunal's decision. No oral submission made by counsel for the appellant was directed to the interpretation of reg 1.20D, nor were we referred to any authority dealing with its construction. His written outline did contain a submission that subpar (c)(ii) required the size of an applicant's business and its stage of development to be taken into account. Although we were not referred to it, there is authority to that effect. In Nice Shoes Aust Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 252, Branson J said (at [16]): '… The difficulty that attends the use of the term "satisfactory" to qualify the record of training to which reg 1.20D(2)(c)(ii) refers is that the Migration Regulations 1994 provide no measure or standard against which a record of training is to be assessed in determining whether it affords satisfaction or is acceptable albeit not perfect. In the circumstances the necessary measure or standard must be found by implication from reg 1.20D read as a whole. Seen in that context, in my view, a "satisfactory record" of training is a record that demonstrates that the applicant provides training to Australian citizens and Australian permanent residents to a degree reasonably commensurate with the nature and extent of its business operations in Australia. To put it in ordinary language, that the applicant makes a reasonable contribution to the training of the Australian workforce having regard to the nature and extent of its business operations in Australia.' 10 However, such a construction of the word 'satisfactory' does not advance the appellant's case. The words 'record' and 'demonstrated' are unavoidably preterite in meaning. The Tribunal is obviously required to look to the past in making a determination under reg 1.20D(2)(c)(ii). 11 In the present case, where the Tribunal has stated its ultimate findings or conclusions in relatively terse terms that mirror the language of the legislation, no error in its interpretation is apparent. It is also worth recalling what R D Nicholson J said in Lace Holdings Pty Ltd v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 79 at 86 ([34]): '… the Tribunal correctly interpreted and applied reg 1.20D(2)(f) of the Regulations. Satisfaction as to an applicant's ability to comply with the undertakings is a finding of fact and degree for the Tribunal based on the circumstances of the case. The possibility that the Tribunal's finding of fact is in error or that the court may have made a different finding of fact is not a permissible basis for review …' 12 The appellant has failed to demonstrate any error on the part of Dowsett J in dealing with the 'wrong question' issue. The appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.