GROUNDS OF APPEAL
29 The appeal to this Court is made on two grounds.
30 First, the appellants claim the court below erred in its construction and application of cl 845.216 in finding that the Tribunal did consider the question of whether Mrs Lobo maintained direct and continuous involvement in the management of City Professionals although she was not the moving force in the business. The appellants submitted that the approach taken by the second Tribunal to cl 845.216 is 'indistinguishable' from that taken by the first Tribunal, so that it repeated the error identified by Gyles J and the Full Court of approaching cl 845.216 in the manner suggested by the Policy instead of following the statutory criterion.
31 The appellants submitted in this regard that, statements made by the second Tribunal indicate that it took the erroneous approach alleged. First although the Tribunal observed that it was required to have regard to policy and apply it unless there were cogent reasons for departing from it, the Tribunal had inserted an extract of the impugned Policy (in an attempt to 'salvage it', suggested counsel). However, the Tribunal quoted an extract from the Full Court's judgment in which it criticised the Policy. Second, prior to setting out cl 845.216, the Tribunal made one of two observations which the appellants identified as crucial to their claim: that cl 845.216 'requires the Tribunal to assess the extent to which the visa applicant exercised direct and continuous involvement in the management and strategic decision making of the business…'. The appellants submitted that this sentence suggests that the Tribunal made a comparative assessment of Mrs Lobo's involvement in City Professionals with that of other officers of City Professionals, in this case, Mr Lobo. However, such an analysis is not required by cl 845.216: the clause refers to 'involvement', and does not require a ranking within the organisation. Nor is 'involvement' excluded by reason of the fact that ultimate decision making power rests with a person other than the appellant.
32 The second crucial observation made by the Tribunal, after referring to the documentary evidence, was that such evidence failed 'to support the proposition that she is a decision-maker in the business or that she is even fully cognisant of the overall direction and performance of that business'. The appellants submitted that Mrs Lobo was not required to show she was a 'decision maker' or that she was 'fully cognisant' of the direction and performance of the business; she had only to show that she had a direct and continuous involvement in the stipulated matters. In placing these requirements on Mrs Lobo, the appellant's submitted the Tribunal 'placed a gloss on the words of the regulation' and erroneously applied the Policy. Consequently, the Tribunal erred in its construction and application of cl 845.216. According to the appellants, the Tribunal set the bar 'too high'.
33 The respondent argued that this ground of appeal was not before the Federal Magistrates Court, the appellants require leave to raise it here, and such leave should not be granted. The appellants responded that a claim was made by them in the court below that the Tribunal had not understood cl 845.216 - a consistent theme in their application.
34 The respondent further argued that the appellant's criticism is premised on a reading of the Tribunal's decision that is unfair and strained, contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291. Further, whether or not Mrs Lobo was a decision maker, or whether she was fully cognisant of the overall direction and performance of City Professionals, were not irrelevant factors in reaching its conclusion. The respondent submitted that the Tribunal's conclusion was open to it, and referred to the Full Court's decision in which, the Court acknowledged that Mrs Lobo would have difficulty satisfying the relevant visa criteria on the material before it.
35 The second ground of appeal alleges that the court below was wrong to find that the Tribunal had not breached the rules of procedural fairness in relation to the use of the AIRC records, and/or that the Tribunal had also breached s 359A of the Act. As discussed at [24], the s 359A point was not pursued by the appellants in the Federal Magistrates Court. However, the appellants argued that the point was not abandoned in the court below, rather it was argued under the rubric of natural justice. They sought leave to raise it, submitting that the argument is purely legal, could not have been the subject of further evidence, will work no injustice, and is otherwise in the interests of justice (see Branir Pty Ltd and Others v Owston Nominees (No 2) Pty Ltd and Anor (2001) 117 FCR 424).
36 Both aspects of this ground are supported by the same omission by the Tribunal: the failure to inform Mrs Lobo of, and to provide her with the AIRC information it intended to use against her, or to invite her comments. As to the procedural fairness claims, the appellants submitted that their right to have the AIRC information disclosed to them arose as part of the broader requirement of procedural fairness that Mrs Lobo have a reasonable opportunity to present her case (see, inter alia, Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Kioa v West (1985) 159 CLR 550 at 569 per Gibbs CJ; at 582 per Mason J; at 602 per Wilson J; at 628-629 per Brennan J; at 633 per Deane J). The appellant argued that their claim that procedural fairness was not accorded to them is to be viewed in the context of two things. First, Mrs Lobo had been advised by the first Tribunal that the information which it considered would be the reason, or part thereof, for affirming the decision under review was 'documentary evidence' about the employees, as detailed in a letter from the Tribunal. There was no mention by either the first or the second Tribunal about the possible use of other information concerning rates of pay. Second, as Lloyd-Jones FM observed, the reasoning of the Tribunal, based on the AIRC figures, that the office assistant must have been employed part-time, may not have been correct (for example, if the office assistant was employed as a junior person). Consequently, the Tribunal failed to accord procedural fairness to Mrs Lobo by failing to disclose to her that it had decided to discount the employment period of the office assistant based upon information that it had also not disclosed to her, and which in any event, may have been irrelevant. The appellants relied on Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 where the Full Court of the Federal Court stated the principle as:
'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.'
37 The appellants argued that this is not a case, as the Minister had argued in the court below, where the requirement that natural justice be afforded is defeated because the appellant could not have challenged the validity of the AIRC material. Nor is it relevant that the AIRC material, to use the approach in NARV and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89at [18] (relied upon by the court below) might be, 'of a type which is difficult to controvert'. It is the use made of the material, and the analysis of it by the Tribunal, and not the validity or incontrovertibility of it, which is challenged.
38 The appellant submitted that the basis for Lloyd-Jones FM's decision against them was his acceptance of the respondent's argument that the Tribunal 'used the AIRC records in the context of its reasoning process' (at [39]), and that 'material of the nature that did not require to be disclosed' (at [35]). In any case, the Tribunal did not find against Mrs Lobo on the new basis introduced by his Honour, and there was conflicting and possibly erroneous evidence before the Tribunal about the number of staff employed by City Professionals, which the Tribunal failed to comment upon. The appellants submitted that, in the light of this, and the apparent fact that there was insufficient material before the Federal Magistrates Court on this issue, the decision by Lloyd-Jones FM that the alleged breach could not have made a difference to the end result is incorrect.
39 The appellants referred to the conflicting and possibly erroneous evidence about the number of employees as an unresolved question of fact. A document before the Tribunal and the Federal Magistrates Court revealed that City Professionals had employed five Australian citizens or permanent residents. The second Tribunal identified only four.
40 Counsel for the Minister agreed with the appellants' view as to the basis for the decision by Lloyd-Jones FM. However, counsel submitted that the Tribunal made a finding on the number of qualifying employees, and as a finding of fact, it cannot be challenged by the appellants in this Court. Further, counsel argued that the issue was one that should and could have been raised in the Federal Magistrates Court, and noted that Mrs Lobo had provided inconsistent evidence on the number of employees although the number identified by the Tribunal is the same as that suggested by Mrs Lobo's migration agent, that being four.
41 As noted earlier, Mrs Lobo declined an invitation from the second Tribunal to attend a hearing. However, she provided some additional financial statements for City Professionals. The Minister submitted that Mrs Lobo's decision not to attend the hearing, at which the AIRC information could have been put to her, prevents the appellants from now claiming she was denied procedural fairness. Further, there was nothing to suggest to Mrs Lobo that only those issues arising in the first Tribunal decision and subsequent appeals would arise before the second Tribunal (including nothing to suggest that the question satisfied whether the cl 845.222 would not be at issue before the second Tribunal) so that she need not attend a hearing.
42 The appellants responded that, given that Mrs Lobo had attended the first Tribunal hearing, their situation is no different from one in which the Tribunal, having conducted a hearing at which the applicant was present, proceeds to make a decision based upon information adverse to an applicant, not provided by the applicant and not put to him or her by the Tribunal at any stage. Counsel for the appellants referred to observations of Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [192] that 'it is not right to see [an] applicant's appearance before the tribunal pursuant to s 425 … as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process'.
43 The appellants also claimed that the Tribunal had breached s 359A of the Act. They rely on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41], in which Finn and Stone JJ said that, under s 424A of the Act, a provision applicable to the Refugee Review Tribunal ('RRT') which is similarly worded to s 359A, information which is integral to the reasoning process rejecting the applicant's claim, as a matter of fairness, must be disclosed to the applicant and the applicant must be told of its relevance to the review. The appellants submitted that the AIRC information fell within this category. The appellants further argued that the decision in SAAP, which also concerned s 424A, established that the duty in s 359A is strict. Therefore, unlike the procedural fairness claim, the appellants submitted that Mrs Lobo is not burdened with showing that she could have answered the material, and the issue of 'practical injustice' is irrelevant to the question of jurisdictional error.
44 The Minister submitted that there is nevertheless no merit in the appellants' claim because the AIRC information is caught by subs (4)(a) of s 359A: the section does not apply to information 'that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member'. The appellants responded that the information is specifically about the office assistant because it was 'brought back' to the office assistant. The appellants drew an analogy with Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380. In that case, the RRT rejected an application partly based on information contained in two newspaper articles. The articles concerned a by-election involving a political party whose campaign the applicant claimed to have supported, and as a consequence, claimed to fear persecution from other political forces. The articles referred to by-elections and the party, but not its supporters, and were not expressly about the applicant nor did they expressly or impliedly refer to the applicant. The RRT concluded that none of the by-elections discussed in the articles occurred in the region for which the applicant alleged to have campaigned, although Gray J held that, it was clear from those articles that they did occur on the date the applicant alleged the by-election for his region had occurred. The RRT did not invite the applicant to comment on the article and found the applicant's evidence to be unreliable, partly because it was inconsistent with the information contained in the articles. Gray J held (at [33]) that information in the articles did not fall within the exclusion in s 424(3)(a) because it was not just about a class of person of which the applicant or any other person was a member; it 'bore specifically upon the question of the applicant's involvement in campaigning in a by-election'.
45 Gray J's reasoning was accepted in later considerations of s 424(3)(a) by this Court. In VHAJ and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80, Baig wasapproved by Kenny J at [51] and also by Downes J at [72].
46 The appellants also referred to the joint judgment of Gyles and Conti JJ in VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2005) 80 ALD 559 in which their Honours agreed with the construction of s 424(3)(a) made by Kenny J at [50] and by Downes J at [71] in VHAJ.
47 The appellants argued that the AIRC information was relevant to the Tribunal's reasoning because it was used by the Tribunal to find that the appellant was not employed on a full-time basis and bore specifically upon that issue. As such, it does not fall within s 359A(4)(a).