Juliana Kanu t/a Momoa Interior Home Services v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, of and incidental to the appeal, to be assessed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Ms Juliana Kanu trades as Momoa Interior Home Services. On 5 September 2016, she applied to the department presently administered by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), for approval of a nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations). That application was refused by a delegate of the Minister on 19 January 2017. Lest it be thought cryptic, and before further describing the history of this appeal, both in public administration and on judicial review, some brief reference should be made to the relevant statutory scheme. 2 The Act and the Regulations provide for three stages with respect to the sponsoring of an employee from overseas for the grant ultimately of a visa under subclass 457 of the Regulations. Those stages are: (a) sponsorship, in which the employer applies for approval as a standard business sponsor; (b) nomination, in which the employer nominates an occupation for a prospective or existing subclass 457 visa holder; and (c) visa application, in which the person nominated to work in the nominated occupation applies for the subclass 457 visa. 3 This case arises with respect to the second stage of the process just described. That stage entails nomination of an occupation for a subclass 457 visa holder under s 140GB of the Act and reg 2.72 of the Regulations. Regulation 2.72 (3)(2)(12) prescribes particular criteria that must be satisfied for the Minister to approve a nomination of an occupation for a prospective or existing visa holder. Pertinent in relation to the decision by the delegate, and later in the course of public administration, was the particular prescription in reg 2.72(10)(f): (f) the position associated with the nominated occupation is genuine … 4 Suffice it to say, the Minister's delegate was not satisfied that the position associated with the nominated occupation was genuine. 5 Ms Kanu then sought the review of the Minister's delegate's decision by the Administrative Appeals Tribunal (Tribunal). On 29 May 2019 for reasons given in writing that day. The Tribunal (Member L. Mojsin) decided to affirm the Minister's delegate's decision not to approve the nomination. Ms Kanu then sought the judicial review of the Tribunal's decision by the Federal Circuit Court of Australian (Federal Circuit Court) on 25 February 2020. That Court dismissed with costs the judicial review application: see Kanu v Minister for Immigration & Anor [2020] FCCA 398. 6 In essence, the Federal Circuit Court dismissed the judicial review application because of a conclusion by the learned primary judge that the particular basis upon which the Tribunal was not satisfied that the reg 2.72(10)(f) criterion was met, as expressed in the Tribunal's reasons, was neither illogical nor irrational and was reasonably open as a conclusion on the material before the Tribunal. The Court below was also satisfied that no error in the construction of that particular subparagraph of reg 2.72 of the Regulations was entailed in the Tribunal's reasons. 7 Ms Kanu has now appealed to this Court against the Federal Circuit Court's order of dismissal. The grounds of appeal are as follows: (a) Misconstrued the criteria for the approval of a nomination of an occupation for a position in the appellant's business by assessing the genuineness of the position associated with the nominated occupation as at the time of the decision of the Tribunal, without regard to evidence that the position was proposed to be created at some future time. (b) Failed to give weight to evidence provided by the appellant that her business was demonstrating strong business growth in a manner that misconstrued the evidence and was illogical and unreasonable. (c) Failed to carry out the task required by reg.2.72(10)(f) of the Migration Regulations 1994, in that it failed to undertake a qualitative analysis of the position associated with the nominated occupation and to compare that with the occupation which had been nominated by the appellant. 8 Mr N Poynder of counsel, who appeared for the appellant and who argued the appellant's case with commendable focus and succinctness, as for that matter did Mr G Johnson for the Minister in relation to the Minister's case, conceded, with respect correctly, that whether ground (c) arose for consideration necessarily depended on the fate of grounds (a) and (b), in particular ground (a). 9 There is a deceptive simplicity in the language of reg 2.72(10)(f). So much was made readily apparent by his Honour, Smith FCJ , in a reflective consideration of the provision in Cargo First Pty Ltd v Minister for Immigration and Border Protection (2015) 298 FLR 138 (Cargo First). His Honour approached the meaning of the provision, as one must, not just by reference to its text but by examining that text in the context of the Regulations and the Act in relation to the statutory scheme for which provision is made ultimately for the granting of subclass 457 visas. In essence, his Honour's view was that consideration of whether, in terms of reg 2.72(10)(f), the position associated with the nominated occupation is "genuine" entailed not just consideration of whether the position exists but also a question as to whether the position is really what it purports to be. The latter, in his Honour's view, involved a qualitative analysis of the position and comparison of that with the occupation which had been nominated by the proposed sponsor. 10 There was nothing gainsaid, on the subsequent appeal, about his Honour's analysis of reg 2.72(10)(f); see: Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) 242 FCR 87. Moreover, as Moshinsky J records in Pasricha v Minister for Immigration and Border Protection [2017] FCA 779, at [46], Judge Smith's analysis of the provision in Cargo First has commended itself to other judges of this Court as, indeed, it did to his Honour. There was no submission on behalf of Ms Kanu that Cargo First was incorrectly decided in relation to the construction of reg 2.72(10)(f). Indeed, that construction was embraced so as to reveal, so it was submitted by reference to ground (c), an error of law on the part of the Tribunal which ought to have led, on judicial review to the granting of writs of certiorari and mandamus, such that the case be decided again in the Tribunal. 11 It is necessary, now, to make some reference to the Tribunal's reasons and, via that, to the material before the Tribunal. The material before the Tribunal included an employment agreement made in 2016 between Ms Kanu and her husband, the prospective visa applicant. Regard to that agreement discloses a salary of some $50,000 and a full-time appointment. The evidence which came to be given for the appellant at the hearing conducted by the Tribunal was at variance with that particular contract in relation to the position in question. This notwithstanding, the Tribunal did not, in its reasons, make anything adverse to the appellant of that variance but rather seems to have decided the case that on the basis that whatever may have been the situation as envisaged, or "that existed" at the time of the application to the Minister, there had been some evolution of circumstances. 12 Thus, as recited, at [19], of the Tribunal's reasons: … the nominee [Ms Kanu's husband] stated to the Tribunal that he does not work for the applicant, 5 days per week, he works part time when needed. He does not assist with the cleaning. 13 In the following two paragraphs, the Tribunal offered a summary, the accuracy of which has never been gainsaid of evidence given by Ms Kanu: 20. The applicant, who stated that she started the business at the end of 2013, said that she needed a customer service manager as he knows how to do business marketing and to understand industrial cleaning and someone with good management. The applicant does the cleaning. She initially said that she has 2 permanent and some casual people working with her. The permanent people are Perry and Paul, they are Australian citizens or residents. When put to the applicant that their wages were not shown in the financial documents provided to the Tribunal, she said that their wages are not shown as they are too low. They come sometimes and work with her. She pays them petty cash. 21. She is doing the cleaning. She answers the phone and get some calls and cannot run around to do the job. Asked how the family is supported, the applicant said their income is from the business. It was put to the applicant that the financial information provided did not suggest that anyone was paid a salary for doing the cleaning which is the activity required to be funded in order to generate an income. [sic] The reference to payment of Perry and Paul from petty cash will be noted. 14 After the hearing, the Tribunal received further documents from the appellant, the obvious purpose of which was to bolster satisfaction that the position concerned was genuine. The Tribunal faithfully records the documents they received, at [22]. Later in the Tribunal's reasons, the Tribunal expressly engaged, at [26] - [28], with those documents: 26. The applicant has submitted, post hearing, a letter from the applicant marked as prepared by the applicant and the nominee. That letter projects the income for the applicant for 2019 to be $100 542 and opines that the nominated position would create 2 working teams to be supervised by the nominee. This growth would occur through a growth in the regular client base and a growth in the corporate client area for big cleaning contracts. It is also intended to have partnerships with other cleaning companies. The Tribunal places no weight on this submission. It does not address the lack of payment of staff to date or the lack of payment of income tax and superannuation. 27. A letter dated 29 December 2017 from Beaches was addressed to the applicant and the nominee and James Interior House Care. The Tribunal places no weight on this letter as it is not addressed to the applicant, but James Interior House Care. A Contractor Appointment Form from Cairns Platinum Realty does not purport to guarantee any income for the applicant or even on going work and is merely a contractor appointment form, required by REIQ, outlining rights and obligations when undertaking work for the real estate agency. 28. Whilst the applicant and the nominee have assured the Tribunal that they have contracts that will increase turnover to 30 June 2019 and beyond, as they have changed their business model from being a franchisee, the applicant did not produce any contracts or agreements that would suggest that the business' turnover was about to increase so that the business was in a position to pay the salary of a team of cleaners and a Customer Service Manager. The Tribunal therefore rejects the applicant's claims that the applicant has demonstrated strong business growth by an overwhelming increase in its cliental base to levels over and above handled by a one man operational team. 15 Before so doing, the Tribunal had, at [25], analysed financial information, as earlier presented, in relation to Ms Kanu's business, stating: 25. Having considered the ANZSCO description for the nominated occupation the Tribunal is not satisfied the position required by the applicant is that of a Customer Service Manager. The applicant's business turnover for 2018 was $75 042 and after payment of expenses the net income to the applicant was $20 497. The turnover from July 2018 to 30 March 2019 was $70 203 and the applicant's accountant has opined that there will be sufficient funds available to pay the nominee's salary. Asked how much tax and super was paid in last 9 months from 1 July 2018, the applicant said that at the moment the wages of the cleaning staff are less than the required amount that is needed to pay tax. They have not paid any tax or super. They pay money by cash. Asked why they pay by cash, the applicant said they pay as the job comes and goes and payments are petty cash. The Tribunal notes that none of the financial statements, including the accountant's letter, show payment for cleaners by way of petty cash, and even small wages are a deduction for the business income. Nor does the accountant's letter suggest that any money would be available to pay for cleaners or provide a salary for the applicant. [sic] 16 At [29], the Tribunal stated: 29. … It is difficult to imagine how the business of the applicant can be operated by the nominee performing the duties of a customer service manager as ANZSCO defines that role, detailed above, and no other person being employed to complete the income generating work, the cleaning, other than the applicant herself. 17 Having so done, and in a passage which is critical having regard to the grounds of appeal, the Tribunal stated, at [30]: 30. The Tribunal is not satisfied that the applicant has been entirely honest in her evidence to the Tribunal regarding the running of the business and her explanation of the nominated position. The applicant has stated that she has cleaners employed working in the business with her, she has provided a letter from Cairns Quality Cleaning. That letter refers to the applicant's teams working for the company but the applicant has not shown any deductions in her financial records for those teams, petty cash or otherwise. The Tribunal does not accept therefore that the applicant employs anyone. The nominee works in the business, part-time. The nominee does not claim to assist with the cleaning but as the applicant does not employ anyone to assist her with the cleaning the Tribunal is unable to be satisfied that the full-time position of Customer Service Manager exists and that it is what it purports to be. 18 It was in light of the conclusions evident, in [30], that the Tribunal was not satisfied that the position associated with the nominated occupation was genuine. Instead, the Tribunal concluded that the position associated with the nominated occupation was solely to facilitate the stay of the appellant, the nominee and their family in Australia. 19 Paragraph 30 of the reasons must, of course, be read in the context of the reasons as a whole. In particular, in that regard, the opening words of the first sentence, in [15], are pertinent: 15. The applicant is a Cleaning business intending to nominate a Customer Service Manager … 20 Also pertinent is a more detailed description of the nominated position derived from Ms Kanu's application and other material before the Tribunal. The Tribunal stated, at [17]: 17. The applicant stated in her application that the nominated position "Customer Service Manager " in her business became an important strategic move to realign the Company in the face of strong business growth in terms of an overwhelming increase in its cliental base to levels over and above handled by a one man operational team. The applicant has well over 30 regular clients. The aim of a Customer Service Manager position was to bring in a dedicated "eye" into the operations of the company whose interest was purely to service the client base by way of ensuring the best possible service was delivered to the customer, and the customer was always happy. These were the tasks that were often neglected by the Business Manager. Awarding important positions to family members with strong business credentials is a trend often taken by businesses in the first tenures of the operations of the business. [sic] 21 It was put on behalf of the appellant that reg 2.72(10)(f): … does not require that a position associated with the nominated occupation actually exists as at the time that the Minister decides whether to approve the nomination. 22 On that premise, it was put that [30], in particular the last sentence thereof, revealed an error of law on the part of the Tribunal. The regulation requires nothing more or less than that there be a position and that it is genuine. It certainly does not require that the position has existed in the past in a business, much less that the position has been filled by anyone at all. To say more is to offer a substitute for the language of the regulation. The analysis offered by Smith FCJ is an analysis which speaks to what may be entailed in deciding whether one is satisfied in terms of the provision. But his Honour was plainly not intending to offer a substitute for the language of the provision. Whether or not one ever has to engage in the qualitative analysis envisaged by his Honour depends upon whether, in any way, shape or form, there is anything which even resembles the position concerned. 23 In this particular case, when one reads in context, as one must, [30], the Tribunal was just not satisfied that the Customer Service Manager position as described in the application was: … what it purports to be. 24 The reason for that, as is truly pellucid if one reads the reasons as a whole, is that the Tribunal was just not satisfied that, when one looked at the gross receipts of the business and also at the projected gross receipts, that there was any ability at all to fund the position as promoted. The Tribunal expressed a very particular reservation as to Ms Kanu's honesty. That reservation was one reasonably open. There is an obvious disjunct between the gross receipts as disclosed and other evidence as to employees who were being paid in cash. There is no expenditure side which discloses such payments. Necessarily, there must have been cash coming in and out outside the books, as it were. This is what the Tribunal, in [30], in as kind a way as possible, is describing. 25 That, in turn, plainly left the Tribunal in a position where it was not satisfied that the Customer Service Manager position existed or was what it purported to be - a position which was there to be filled as the business prospered. The structure of the Regulations is such that the Tribunal had to be satisfied as to the criterion expressed in reg 2.72(10)(f). As Gummow J notably explained by reference to pertinent authority, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, such satisfaction based decisions are not unexaminable on judicial review. An error of law would most certainly provide a basis for a conclusion that jurisdictional error existed if that error could be shown to have been material to the decision. Here though, and contrary to ground (a), [30] does not disclose an error of law in construction of the provision, only an absence of satisfaction as to the meeting on the facts of that provision, properly construed. 26 It is worth recalling that, although in some respects the Tribunal differs from a predecessor, the Refugee Review Tribunal, it does not differ in this sense. As with the Refugee Review Tribunal, its core function is that of review, not inquisition, see as to the core function being review: s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). It is a duty to review. As was observed in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [25]: 25. … It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. The same is true in relation to the Tribunal. 27 In general, however, and as was explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, at [40], in relation to a comparable tribunal: 40. … There is no joinder of issues between parties, and it is for an applicant for a protection visa to establish the claims that are made. That does not mean that it is apt to speak in terms of an onus of proof. It is just that it is in the interests of a person seeking to engender a favourable administrative outcome, in this case satisfaction, to introduce such material, already before the Tribunal or such further material as he, she or it is able in order to engender the desired satisfaction. That is an apt note upon which to turn to ground (b). 28 A particular cautionary note must attend dealing with ground (b). That cautionary note is sounded by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS), at [34] - [36]: 34. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal. 35. Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs. 36. The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions. [emphasis added, footnote references omitted] 29 The terms of appeal ground (b), and in particular "Failed to give weight", read with the Tribunal's use of "no weight" in relation to the analysis of various materials submitted after the hearing bear uncanny resemblance to the approach in this Court emphatically deprecated in SZJSS. Singular care needs to be taken in relation to an appeal ground such as ground (b) not to substitute this Court's view, as to the merits of the materials which were submitted, for those of the Tribunal. 30 I was taken in the course of submissions in relation to ground (b) to each of the later submitted materials as described in [26] - [28] of the Tribunal's reasons. The observation, in [26], as to no weight was, as the learned primary Judge found, reasonably open. There is a gap, as the Tribunal was entitled to find, on the expenditure side of the ledger in relation to the payment of staff. It was not for the Tribunal to fill that gap. Perhaps if the full receipts and expenditures of the business had been disclosed, it might have been seen how it was quite reasonably possible for the position concerned to exist. But that is not the state of the material and it was for the applicant, not the Tribunal, to engender, by material, the state of satisfaction. 31 The criticisms made, at [27], in relation to particular letters which related to clientele or purported clientele of the business are criticisms one might reasonably make. The addressing of the letter of 29 December 2017, as referred to in [27], does legitimately raise as many questions as it answers. It was open to the Tribunal to place no weight on the letter. It is not clear, at all, as to whom, truly, that letter is addressed and James Interior House Care is a separate business. 32 The Tribunal's observation in relation to the Contractor Appointment Form from Cairns Platinum Realty is reasonably open. It guarantees nothing in terms of income. The analysis offered by the Tribunal, in [28], as to turnover and prospect of increase thereof is also an analysis reasonably open. 33 I decline to find any error on the part of the learned primary judge in his Honour's conclusion that the like ground of review to ground of appeal (b) was made out. There is no evident jurisdictional error in the analysis of the material. It is not illogical and it is certainly not unreasonable. 34 As to ground (c), insofar as there was any need, given the obvious lack of satisfaction as to the existence, at all, of the position, to engage in a qualitative analysis, that analysis, as the Minister submitted, is wholly undertaken and evident just in the words that conclude [30]. unable to be satisfied … that it is what it purports to be. 35 The appellant should be assured that, truly, everything which might be said in favour of the allowing of the appeal was put on her behalf by her counsel. However, for the above reasons which take up and expand upon submissions made on behalf of the Minister, this is just one of those cases where the appellant, who had the benefit of services of a migration agent, put her case at its highest in terms of supporting material before the Tribunal but ultimately left the Tribunal, quite reasonably, for reasons expressed by the Tribunal, in a position of not being relevantly satisfied. It necessarily follows from the foregoing that the appeal must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.