The Business Interests Ground
19 Mr Tonga contends that the Tribunal erred, analogously, with the errors found in Singh v Minister for Home Affairs [2019] FCA 905 and Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 in misconstruing s 9.4.2 of Direction 90 by focusing only on the delivery of an important service in Australia.
20 Section 9.4.2 of Direction 90 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
21 The Tribunal's error is said to be manifest in the Reasons at [293] where the Tribunal said:
There is no evidence before the Tribunal that the Applicant's deportation will impact on Australian business interests in the manner contemplated by Direction 90.
22 In the Reasons at [165]-[167], the Tribunal referred to the oral evidence given by Mr Tonga's brother, Mr Cade Tonga, to the effect that he was the Projects Training Coordinator for Freo Training based at McArthur River Zinc Mine in the Northern Territory, there was a major shortage of cranage and rigging staff in the Northern Territory, and it was a perfect opportunity to employ Mr Tonga.
23 The evidence was that Mr Tonga had a long history of employment within the construction and mining sectors and had previously worked as a rigger. In a further statement to the Minister dated 11 April 2022, Mr Tonga indicated that he intended to resume employment as a rigger. In his statutory declaration of 18 July 2022, which was before the Tribunal, Mr Tonga stated:
13. I've been offered a job by my brother to operate a Frenna in Darwin. But I can't do that until January 2023, when I'm done with my parole. I have worked with my brother in the past but I'm very comfortable with the fact that he will be my employer.
24 That statement was confirmed in an email dated 1 July 2022 sent on behalf of FreoWGC, which was also before the Tribunal, which read:
Dear Gavin,
We are pleased to offer you the position of Advanced Rigger/Franna Operator at Freo Cranes. This is a full-time position requiring you to live on site.
We feel confident that the skills and experience you contribute will be a great asset towards the growth of our company.
We understand that you are currently experiencing a trialling time, and should you make it through this period we would like to hear from you to discuss your role within our team.
We hope all goes well for you and we look forward to welcoming you onboard.
Kind regards,
Cade F Tonga
Projects Cranes Co-Ordinator
McArthur River Zinc Mine
25 In his oral testimony, Mr Tonga was asked whether he was confident he could do the job in light of his diagnosed bilateral tendonitis. Although he expressed some reservations about the actual position he had been offered, Mr Tonga gave evidence that should it be an impediment, he hoped he "could just maintain employment with my brother but in a different - different department" because he was in a position to hire and fire.
26 In cross-examination, Cade testified that the Freo Group was a "contractor to Glencore, or McArthur River Mine". He also confirmed that there would be other roles for Mr Tonga if his medical issues prevented him from doing the role as offered. Cade also testified that "we have approximately three years' worth of project upgrades at the mine. So that would give Gavin a good comfortable two and half to three years' worth of employment".
27 It is against this evidence that the Tribunal's finding at [293] is challenged. Mr Tonga submits that the proper inference to be drawn is that the Tribunal misunderstood what the Business Interests Consideration required by interpreting s 9.4.2 as requiring more than "any impact on Australian business interests".
28 The Minister contends that no error is established because the Tribunal's finding was qualified by the phrase "in the manner contemplated by Direction 90". The Minister submits that there is no warrant to read into those words an implication that the Tribunal was referring to "an employment link" being "generally only given weight where the decision…would significantly compromise the delivery" of a major project or service; rather, it is equally open that the Tribunal simply found that there would be no impact at all on any Australian business interests.
29 Neither of those interpretations flow easily from the Tribunal's finding. Section 9.4.2 directs attention to two things:
(1) any impact on Australian business interests; and
(2) in circumstances where the non-citizen is an employee of an Australian business interest, weight is generally only to be given where there would be significant compromise of the delivery of a major project or important service.
30 So much is apparent from the judgment of Middleton J in Singh v Minister for Home Affairs [2019] FCA 905 at [10], albeit in respect of a precursor to Direction 90 in the same terms:
I can immediately say that the correct interpretation of the Direction is not to focus only on the delivery of a major project or delivery of an important service in Australia. The focus has to be on the impact on Australian business interests if the non-citizen's visa is cancelled.
31 It cannot reasonably be concluded that the Tribunal's use of the phrase in the "manner contemplated by Direction 90" embraced both aspects of s 9.4.2 given its statement that there was "no evidence". The statement is contradicted by the record.
32 The Minister is correct to observe that the issue of Australian business interests was not raised by Mr Tonga, who was legally represented, in either his Statement of Facts, Issues and Contentions, or in closing submissions before the Tribunal. Nevertheless, as has already been observed, there was oral and written evidence before the Tribunal to which the Tribunal referred. Cade, whose evidence was the most significant to this issue, was one of only four witnesses called on the second day of the hearing. It was not evidence that was simply buried in a tender bundle. The circumstances of this case are not in the category of cases, to which the Minister referred, where an inference might be drawn that an omission of a particular issue from the Tribunal's deliberations can be readily understood in light of the "continuum" of the review: Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [53]; GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [33]-[35]. Rather, this was a claim that clearly emerged from the materials, to a limited extent on the written materials, but more prominently in the course of the oral hearing: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18].
33 The evidence that was before the Tribunal was not dissimilar to that adduced in Singh to the effect of the following, at [16]:
We are in an industry where good people are hard to find … he is a great asset to our team and would be difficult, even impossible at some level, to replace if he had to move on.
34 Similarly, in Arachchi, Mr Arachchi was concerned with the impact on his pizza shop partnership were he to be removed from Australia. His evidence was that, if he returned to the business, he could help it to grow. The Tribunal found that was "not the sort of impact on Australian business interests to which s 9.4.2 of Direction 90 is referring". Justice Rangiah held, at [71]:
By misconstruing para 9.4.2 as only applying to an impact on a "major project" or "important service", the Tribunal precluded itself from considering the applicant's claim concerning the impact of his removal on his partner's interest in the pizza business. The Tribunal failed to comply with s 499(2A).
35 It is tolerably clear from the Tribunal's Reasons that it misconstrued s 9.4.2 of Direction 90 and so omitted to consider what evidence there was relevant to the business interests' consideration.
36 The Minister argues that any misconstruction of s 9.4.2 of Direction 90 was immaterial on the basis that the Reasons do not suggest that its conclusion was finely balanced. That is not the test. The Tribunal denied there was any evidence that went to s 9.4.2. Had it not misinterpreted s 9.4.2, there is a realistic possibility that they would have considered the evidence and that a different decision could have been made: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [39].