Federal Court of Australia

H & L Hydroponics Pty Ltd as trustee for the H & L Hydroponics Trading Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 825

ORDERS

THE COURT ORDERS THAT:

1.    The appeals be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    There are two appeals before the Court from orders made by the Federal Circuit Court of Australia.

2    There were four applications before the Federal Circuit Court. In action numbers ADG 290 of 2018 and ADG 291 of 2018, H & L Hydroponics Pty Ltd as Trustee for the H & L Hydroponics Trading Trust (the appellant) applied for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The appellant was the nominated employer for the visa applicants who are Dac Dung Tran (Dung Tran) who filed application number ADG 288 of 2018 and Thi Ngoc Lan Tran (Lan Tran) who filed application number ADG 289 of 2018. The Federal Circuit Court said that the four matters were inextricably linked and were heard together with the consent of the parties. The grounds in the nominated employer applications were described by the Federal Circuit Court as almost identical. The grounds in both nominee applications were described by the Federal Circuit Court as almost identical.

3    The grounds in action number ADG 290 of 2018 (the nominee in that case being Lan Tran) deal with the substantive content of all four applications. The Federal Circuit Court said that the nominated employer applications both deal with the nominated employer and that, as the claims of the visa applicants are consequential or dependent on the success of the employer applications, the parties agreed that the Federal Circuit Court should proceed to hear the applications of the nominated employer first. The Federal Circuit Court observed that should it find jurisdictional error established, the parties will have liberty to call the applications of the visa applicants back on for mention and appropriate orders, noting that in that case, the Tribunal’s decisions with respect to the nominees would have been founded on anterior related decisions which were affected by jurisdictional error.

4    The appellant sought constitutional writs in relation to decisions of the Tribunal affirming the decisions of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse approvals for the nominated positions with respect to Dung Tran and Lan Tran. The Tribunal determined that the appellant had not met the criteria that each nominee “will be employed on a full-time basis in the position for at least 2 years” as required by reg 5.19(3)(d) of the Migration Regulations 1994 (Cth) (the Regulations).

5    The Federal Circuit Court held that the grounds of judicial review advanced by the appellant had not been made out and made an order that the applications in action number ADG 290 of 2018 and ADG 291 of 2018 be dismissed (Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 563). The appellant has brought an appeal in relation to each unsuccessful application.

The Relevant Legislation

6    The Regulations require that an application for the visa must relate to a position nominated under reg 5.19 of the Regulations. That regulation relevantly provides as follows:

(3)    The Minister must, in writing, approve a nomination if:

…

(c)    either:

(i)    both of the following apply:

(A)    in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 … visa identified in subparagraph (a)(ii) has:

(I)    held one or more Subclass 457 visas for a total period of at least 2 years; and

(II)    been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

(B)    the employment in the position has been full-time, and undertaken in Australia …

…

(d)    for a person to whom subparagraph (c)(i) applies:

(i)    the person will be employed on a full-time basis in the position for at least 2 years; and

(ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment …

7    There was no dispute that the nominated employees satisfied reg 5.19(3)(c) and the dispute before the Tribunal and before the Federal Circuit Court concerned the application of reg 5.19(3)(d).

The Facts

8    The following background facts, which are not in dispute, are taken from the reasons for judgment of the Federal Circuit Court.

9    The appellant is a business engaged in growing tomatoes and capsicums. It was a substantial undertaking and had trading revenues in excess of $11 million. At the time of the Tribunal hearing, the appellant had employed the nominees since 2014 under Subclass 457 visas. The appellant entered into employment contracts with the nominees on 2 and 3 June 2017 respectively. The terms of the two contracts of employment were essentially identical and they included the following terms:

(1)    The nominees were employed as growers and the employer for both contracts is the appellant.

(2)    Clause 1.1 set the commencement or start date as 1 June 2017.

(3)    Clause 1.2 specified that the employment would be full-time.

(4)    Neither contract fixed an end date for the employment relationship. As a result, neither contract included a clause setting out whether or not it could be extended.

(5)    The remuneration for both contracts was set out in clause 4 and fixed at $180,001 per year plus superannuation.

(6)    The notice period required in both contracts was set out in clause 8 and provided that the notice periods for termination of the contracts were as follows:

(a)    Not more than one year — 1 week;

(b)    More than one year but less than three years — 2 weeks;

(c)    More than three years but less than five years — 3 weeks; and

(d)    More than five years — 4 weeks.

I would add that as I read the contracts, both parties had a right to give a notice of termination.

10    On 30 June 2017, the appellant applied for a nomination under reg 5.19 of the Regulations in order to sponsor both of the nominees for a Subclass 186 visa. A delegate of the Minister refused the nomination on 6 September 2017. The delegate found that the appellant had provided a profit and loss statement for the financial year ending on 30 June 2017, but as to that document the delegate concluded as follows:

I give little weight to the profit and loss statement provided as it has not been prepared by an accountant and is not able to be independently verified.

11    The appellant also provided to the delegate a document headed “2017 Payroll Activity Summary”. That document purported to show earnings of $318,277.98 and payments of $225,033.98. The delegate concluded as follows:

Regulation 5.19(3)(d)(i) requires that the nominee will be employed on a full-time basis in the position for at least 2 years. I find that the evidence provided by the nominator does not demonstrate that they are able to offer full-time employment for at least 2 years.

12    The appellant applied to the Tribunal for a merits review of the decision of the delegate on 25 September 2017. The Tribunal conducted a hearing on 18 June 2018 in relation to the appellant and Lan Tran (ADG 290 of 2018; SAD 71 of 2021) and a hearing on 20 June 2018 in relation to the appellant and Dung Tran (ADG 291 of 2018; SAD 70 of 2021) and delivered a decision in relation to each matter on 21 June 2018. The reasons in relation to each matter are essentially the same.

13    The appellant filed its applications for judicial review within time on 26 July 2018.

The Tribunal’s Decision (the decision in which the nominee is Lan Tran)

14    The appellant’s general manager, Ms Thu Trotter, and director, Ms Lam Phan, appeared before the Tribunal to give evidence and present arguments. The appellant was represented by a registered migration agent, Ms Pepper. The Tribunal also received evidence from the nominee for the position of Vegetable Grower, Lan Tran. Lan Tran is related to the director of the business and its general manager as a cousin. The appellant also employs another relative, Dung Tran, who is also a cousin and is nominated for the second position of Vegetable Grower in a separate application. The nominees are siblings.

15    The Tribunal noted that the appellant is engaged in the business of growing vegetables, predominately tomatoes and capsicums, but at times, cucumbers for supply via intermediaries to major supermarket chains. Its farming operations are located in Virginia, South Australia.

16    The Tribunal was satisfied that the requirement under reg 5.19(3)(d) applied in the case before it. It said that for this class of persons, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

17    Lan Tran is paid $180,001 per year for undertaking the work of a Vegetable Grower and the Tribunal noted that the appellant and the nominee had entered into a contract signed on 2 June 2017 setting out the salary at $180,001 per year plus superannuation.

18    As to the contractual arrangements between the appellant and Lan Tran, the Tribunal said (at para 13):

The contract makes no mention of the period of employment and is therefore, silent on whether the nominee will be employed on a full-time basis for at least 2 years. The contract also makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment. In these circumstances, the Tribunal considers the nominee does not have any written agreement to enforce any legal rights of full time employment for at least two years.

19    The Tribunal noted that it had the benefit of hearing evidence from the appellant’s director and the appellant’s general manager in addition to “considering financial documents discussed below and other evidence”.

20    Ms Phan described the company’s financial circumstances as challenging with just a small profit margin. However, she explained that as the key positions in the company, such as general manager and the two Vegetable Growers nominated, are held by relatives, there is a very strong commitment and dedication to the company with much hard work undertaken by everyone “pulling together” to ensure the business was viable and ongoing.

21    The Tribunal said that it was not persuaded by the evidence that part of the reason the business has offered a salary of $180,001 per year for the role of Vegetable Grower was because it was difficult to recruit and hold onto good personnel in that position. The Vegetable Grower was initially engaged as a Vegetable Grower at a substantially lower salary in the order of $97,000 per year. The Tribunal said that it was clear the nominee could be successfully recruited for the role despite the lower (but still substantially high) salary for a Vegetable Grower. The nominee’s salary was then increased to $180,001 per year from June 2017 and has remained at this level since that time. The Tribunal questioned the director about the large increase in salary and she conceded that part of the reason for raising the annual salary to $180,001 was in consideration of the language proficiency threshold requirements for positions on less than $180,001 per year. The Tribunal accepted this as a plausible explanation for the increase in salary, noting the very poor or negligible English language skills demonstrated by the nominee at the hearing. It noted that the context was one where the general manager, who displayed very good English proficiency skills at the hearing and was described as a hard working relative, was recruited for a salary of $87,000 per year for the senior role of general manager of the business and has remained at that level for at least two years with no increase.

22    The Tribunal referred to the oral evidence provided by the appellant and the organisational chart in which the annual salary for the two Vegetable Grower positions from mid-2017 is stated at $180,001 each. It noted that the general manager’s salary is $87,000 per year, the agricultural technician’s salary is $55,000 per year and a part-time shed supervisor/grower’s salary is $20,000 of casual earnings. The Tribunal noted that this equated to approximately $522,000 per year. Prior to the increase in salary from around $97,000 for the two nominated Vegetable Growers, the aggregate salaries equated to approximately $356,000. The director of the business is not paid wages, but takes drawings. All other staff are paid as contract workers and this was recorded separately to wages on the Profit and Loss Statements provided.

23    The Tribunal noted that at the hearing, it raised concerns relating to the appellant’s ability to employ the nominee on a full-time basis for at least two years at the contracted salary rate of $180,001 per year based on the appellant’s finances in light of the other wage commitments. The profit for the 2016 financial year showed $117,567 growing to $135,550 in 2017. The response from the appellant’s director and its general manager was that the business anticipates a similar growth for the 2018 year. That would mean a profit of approximately $155,000. The appellant said that the company remained capable of meeting all its wage commitments despite the substantial increases. The appellant also submitted that other changes could be made in the business through reducing the use of fertilisers and shutting down the gas heating to the hothouses for a period. However, the Tribunal then said (at para 18):

… However, the Tribunal is not persuaded that this will allow the applicant to maintain the relative levels of production and profitability to meet all its wage commitments at the levels summarised above. …

24    The appellant also said, when asked, that if necessary and in consultation with the nominee, it could consider reducing the salary level.

25    The Tribunal reached the following conclusions (at paras 19 and 20):

19.    In addition to the oral evidence, the Tribunal has had regard to the financial statements submitted including the aforementioned Profit and Loss Statements covering 2015, 2016 and 2017 and other financial information. Given that in the 2017 financial year, wages were $314,754 against profitability of $135,550, the Tribunal is not persuaded that the applicant will be able to meet new wage expenses in the order of $522,000 for the 2018 financial year against anticipated growth, according to the oral evidence, consistent with the same level of growth from 2016 to 2017.

20.    The Tribunal concludes that the applicant employer will not employ the nominee on a full time basis for at least 2 years at the agreed annual salary level of $180,001 for the nominated role of Vegetable Grower.

26    The Tribunal concluded that the requirement in reg 5.19(3)(d) was not met. It affirmed the decision under review to refuse the nomination.

The Grounds of Judicial Review (ADG 290 of 2018 — the action in which the nominee is Lan Tran)

27    The grounds of judicial review in ADG 290 of 2018 are as follows:

1.    The Tribunal’s Decision in relation to the Applicant is affected by jurisdictional error by reason that it:

“Profitability” and employment of the nominees

1.1.    misapprehended the requirement in r 5.19(3)(d)(i) of the Migration Regulations 1994 (“the Regulations”) (and accordingly applied the incorrect test) by reasoning that it required the Applicant to satisfy the decision-maker that it could pay the stated wages and still make a trading profit in each future year for at least two years in order to demonstrate that it will employ the nominee Thi Ngoc Lan Tran (“the Nominee”);

1.2.    had regard to an irrelevant consideration, being the salary of the further nominee, Dac Dung Tran, in reaching the conclusion that the Applicant will not be able to meet the additional wages expense, and therefore will not employ the Nominee on a full time basis for at least two years; and,

1.3.     denied the applicant procedural fairness by not affording the Applicant an opportunity, when it was requested, to provide current financial information to support their oral disputed evidence that the Applicant was able to meet all of its wages obligations notwithstanding paying both nominees the stated salary during the 2017-18 financial year.

The contract of employment

1.4.    misapprehended the requirement in r 5.19(3)(d)(i) of the Regulations (and accordingly applied the incorrect test), by reasoning that the contract of employment (“the Contract”) for the Nominee needed to make express mention that the period of employment was at least two years;

1.5.    failed to have regard to a relevant consideration, in that the Contract for the Nominee when properly construed provided for ongoing employment on a full time basis and therefore met the criteria in r 5.19(3)(d)(i) of the Regulations;

1.6.    was unreasonable in concluding that the Nominee did not have any enforceable legal rights of employment for at least two years within the meaning of r 5.19(3)(d)(i) of the Regulations, when the Contract provided for an ongoing position with enforceable rights;

1.7.    misapprehended the requirement in r 5.19(3)(d)(ii) of the Regulations (and accordingly applied the incorrect test) by reasoning that the Contract needed to make express mention of whether it excluded the possibility of an extension (as opposed to it not containing such a provision);

28    The grounds of appeal to this Court mirror the grounds in the application for judicial review in the sense that it was claimed in the grounds of appeal to this Court that the primary judge had erred in not holding that the Tribunal had committed the jurisdictional errors identified in the application for judicial review. There was one additional matter raised in the Notice of appeal and that was said to be an error by the Federal Circuit Court in not receiving an affidavit of the appellant’s director sworn approximately one week before the hearing in that Court. The appellant’s submission before the Federal Circuit Court, and indeed before this Court, was that the affidavit was relevant to the materiality of the jurisdictional error should the Court reach the point of concluding that the Tribunal had made a jurisdictional error in its approach to, and application of, reg 5.19(3)(d)(i) and the first respondent raised an argument that the jurisdictional error was not material. The Federal Circuit Court did not reach that point. As I understand the appellant’s argument, it is only if that point is reached and a materiality argument is raised, that the affidavit becomes relevant.

Grounds of Appeal

Ground 1(a)

29    This ground alleges that the Tribunal applied an incorrect test in relation to reg 5.19(3)(d)(i). In other words, the Tribunal applied an incorrect test in determining whether Lan Tran will be employed by the appellant on a full-time basis in the position of Vegetable Grower for at least two years. The appellant submitted that the jurisdictional error was that of an administrative decision-maker asking itself the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179).

30    The Tribunal’s approach was to consider the appellant’s financial circumstances and make an assessment whether it was likely the appellant would employ Lan Tran on a full-time basis for at least two years at the agreed annual salary level of $180,001 for the nominated role of Vegetable Grower. At a general level, there is no error in that approach and I did not understand the appellant to suggest that there was (Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 (Jayshree Enterprises) at [28] per Logan J).

31    The precise error identified by the appellant was that the Tribunal framed the issue in terms of ability to pay the relevant wages for at least two years and still make a trading profit, whereas the Tribunal should have framed the issue in terms of whether the appellant could pay the relevant wages for at least two years. It was said that some businesses operate at a loss. Furthermore, businesses have assets aside from trading revenue and profit. The Tribunal erred in focusing on profitability to the exclusion of evidence of other capacity to pay.

32    Before dealing with this argument, there is a factual matter I need to address. The appellant submitted that the Tribunal made a factual error in determining that “new wage expenses” for the business for the 2018 financial year would be $522,000, when, in fact, the correct figure was the total of the increases in the salaries of Lan Tran and Hung Tran respectively, being $166,000 approximately. As I understand it, subject to one argument identified below, the first respondent accepts that the correct figure is $166,000 approximately for additional wage expenses for the 2018 financial year. The first respondent submits that the Tribunal did not err in the manner alleged. The Tribunal used the expression “new wage expenses” to mean a new figure, not a figure over and above previous wage expenses. In my view, the first respondent’s argument is clearly correct when one has regard to the context in which the Tribunal made its observations and the Tribunal did not err in the manner alleged by the appellant. The existing wages totalled $356,000. The total of the increases in the salaries of Lan Tran and Dung Tran (i.e., $166,000 approximately) gives the figure of $522,000.

33    The appellant submitted that the comparison is between a projected profit for the 2018 financial year of $155,000 and increased expenses of $166,000, a difference of only $11,000. Even if the projected profit for the 2018 financial year did not materialise and one worked on the basis of the profit for the 2017 financial year of $135,550, the difference is only in the order of $30,000. This was in a context, so the appellant submitted, where its business was a substantial one with trading revenues in excess of $10.9 million and it had, as shown in its 30 June 2017 Balance Sheet, a current asset of monies in the bank in an amount of over $400,000. On the appeal, the appellant also pointed to its substantial current liabilities by way of loans exceeding $2.8 million and submitted that this showed it had a capacity to borrow further funds if necessary.

34    The primary judge held that the appellant had not shown that the Tribunal had misunderstood the correct test or that it had misapplied the correct test. His Honour relied on two matters advanced by the first respondent in reaching that conclusion.

35    First, his Honour accepted that it was for the appellant to make its case before the Tribunal and present evidence and argument and not for the Tribunal to assist an applicant by making its own inquiries. Nor was the Tribunal required to disclose its thought processes. In other words, it was for the appellant, if it wished to put a case that the business could be conducted without making a profit, even at a loss, and still meet the wage costs of Lan Tran and Dung Tran partly from revenue and partly from loans or capital, to articulate such a case before the Tribunal. It did not do so. His Honour referred to the following observations in SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475 at [29]:

Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims. It is not for the Tribunal to make the appellant’s case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his ‘nursemaid’.

(Citation omitted.)

36    Secondly, his Honour accepted that the Tribunal had considered the evidence actually presented by the appellant in a practical and pragmatic way and was not satisfied that the appellant had demonstrated that it would be able to pay the salaries it had contracted to pay. His Honour considered that the observations of Logan J in Jayshree Enterprises were apposite in this context. His Honour said (at [29]):

The first respondent conceded that essentially this ground was an attack on the use which the Tribunal made the evidence before it. The exchange on which H & L relies was simply part of the debate between the applicant and the Tribunal about the financial sustainability of the business. Counsel for the first respondent tied this submission to the principle enunciated by Brennan J in Kioa v West that procedural fairness required the applicant to be given the opportunity to respond to adverse information which was credible, relevant and significant. H & L did so in this matter. In the circumstances of this case, the applicant had its’ [sic] opportunity to respond. There was no ‘practical injustice’.

(Citations omitted.)

37    His Honour expressed his conclusions with respect to the first ground of the application for judicial review as follows (at [20]):

I accept the submissions of the first respondent on this ground. The finding was open to the Tribunal on the evidence presented to it. I am not satisfied that H & L has demonstrated that the Tribunal misunderstood the relevant test or that it misapplied the test. It considered the evidence and was not satisfied of the relevant criterion. It is beside the point that different arguments might have been made before the Tribunal urging a broader interpretation of r [5].19(3)(d)(i), or drawing the attention of the Tribunal to different aspects of the financial evidence before it which might have caused the Tribunal to regard it in a different way.

38    As I have said, the appellant’s submission is that the Tribunal asked itself the wrong question under reg 5.19(3)(d)(i) of the Regulations in that it asked itself whether the appellant could pay the stated wages and still make a trading profit in each future year for at least two years in order to demonstrate that it will employ the nominees. The error or errors of the primary judge are revealed (so it is submitted) by his observations in the last sentence of [20] of his reasons which I repeat:

It is beside the point that different arguments might have been made before the Tribunal urging a broader interpretation of r [5].19(3)(d)(i), or drawing the attention of the Tribunal to different aspects of the financial evidence before it which might have caused the Tribunal to regard it in a different way.

39    The submission was, as I understood it, that it is not a matter of an applicant failing to put a broad interpretation of the regulation. It was for the Tribunal at the outset to interpret the regulation so that it can then ask itself the correct question. If there was a broader interpretation of the regulation available, then the Tribunal was required to address it. If the broader interpretation was the correct one, then the Tribunal was required to consider the submissions and evidence in light of that interpretation. I will need to return to this submission.

40    The Tribunal’s conclusions are set out above (at [25]). The conclusion in para 20 is expressed in terms of the requirement in reg 5.19(3)(d)(i) indicating that the Tribunal asked itself the correct question. That is not conclusive if the preceding analysis indicates that it did not in fact address the correct question. The preceding analysis does not indicate that. It is true that the preceding analysis is addressed to the profitability of the business, past and predicted, and past and future wages. However, there is no suggestion that the Tribunal proceeded on the basis that the test in reg 5.19(3)(d)(i) could only be satisfied if a fixed level of profit (which the Tribunal never identified) was maintained. At the same time, it is plainly relevant to consider if existing or predicted profit is to be eroded or eliminated by increased wage costs.

41    It seems that, subject to the appellant’s argument about the breadth of the Tribunal’s inquiry, there was ample evidence to justify the Tribunal’s conclusion. I refer, in particular, to the following matters:

(1)    the appellant’s director herself said that the appellant’s financial circumstances were challenging “with just a small profit margin” (Tribunal’s reasons at para 14);

(2)    if the figure for wage costs shown in the 2017 Financial Statements is taken of $314,754 instead of the figure of $356,000, then the trading loss is even more significant;

(3)    the Tribunal addressed the cost cutting measures advanced by the appellant of reducing the use of fertilisers and shutting down the gas heating to the hothouse for a period and was not persuaded such measures would allow the appellant to maintain the relative levels of production and profitability to meet all of its wage commitments; and

(4)    it seems the director of the appellant was working for the company, but not receiving a wage; the director was receiving $150,000–$180,000 per year by way of drawings.

42    The appellant submitted that the Tribunal asked the wrong question because it confined its inquiry and did not consider capital finance, loan finance or cash at bank. The first point to make is that none of these options obviously arise on the material before the Tribunal. To say the appellant has significant loans does not, without more, tell one anything about a company’s capacity to borrow further.

43    An amount of cash in excess of $400,000 is potentially relevant, but so is the fact that current liabilities include accounts payable of some $60,000 in excess of the cash at bank. This is in a context in which the appellant understood the issue and had identified before the Tribunal certain cost cutting which, in the result, the Tribunal did not accept. Secondly, it was not for the Tribunal to go beyond the evidence or argument the appellant advanced (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ).

44    I return now to the primary judge’s observations at [20]. I do not think his Honour was suggesting that there were two interpretations of the regulation or that the Tribunal was free to ignore the proper construction of the regulation. The burden of what his Honour was saying, it seems to me, was that the appellant presented a particular case which, if established, was within the regulation. That was the case which the Tribunal was required to consider, not some other case which was not presented and which may or may not fall within the terms of the regulation.

45    Ground 1(a) of the Notice of appeal must be rejected.

Ground 1(b)

46    This ground is to the effect that the Tribunal made a jurisdictional error in that it took into account in each matter, in making its decision under reg 5.19(3)(d)(i), the salary of the nominee in the other matter. As I have said, the Tribunal delivered a separate decision for each of the two nominees. The reasons of the Tribunal in each case were relevantly identical. In each case, the Tribunal took into account the salary of the other nominee. The Tribunal did not consider each application on the basis that the salary of the other nominee was to be excluded. At a factual level the appellant’s submission is that it was clear on the evidence that the appellant could pay the salary of at least one nominee.

47    The primary judge rejected this ground. His Honour said that in each case, the appellant was responsible for the nominated position of the nominee having entered into a contract with them in identical terms and that was clearly part of the factual matrix which was relevant to an assessment of the appellant’s financial position. The appellant’s financial position had a direct bearing on whether the Tribunal could be satisfied that the appellant would employ the particular nominee for a period of two years. In each case, the financial implications of the appellant having employed the other nominee were relevant. Furthermore, the organisational chart showing all the employees was put forward by the appellant and it invited the Tribunal to take it into account.

48    On the appeal, the appellant made the following submissions: (1) the evidence on a proper understanding of the new wage expenses clearly shows that it satisfied the requirements in reg 5.19(3)(d)(i) with respect to at least one nominee; (2) there were two separate decisions by the Tribunal and as to each the salary paid to the other nominee was an irrelevant consideration; and (3) the organisational chart put forward by the appellant to the Tribunal simply reflected the current state of the appellant’s arrangements and it did not mean that it implied there could be both nominees or none and no one raised such an assertion.

49    The first respondent made the following submissions: (1) an irrelevant consideration is a prohibited consideration, that is, a consideration the decision-maker is either expressly, or by implication having regard to the subject matter, scope and purpose of the power in issue, prohibited from considering (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J (as his Honour then was); Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at [9] per Basten JA); (2) there is no basis to conclude that the salary of the other nominee was a prohibited consideration as it was to form part of the expenses of the appellant and clearly part of the factual matrix of the appellant’s finances and was relevant to an assessment of its financial position; and (3) there is no significance in the fact that the Tribunal considered each application separately and delivered separate reasons for its decision.

50    It seems to me that the first respondent is clearly correct.

51    The argument which the appellant put orally was developed in a different way. The appellant submitted that once it became clear that one application was going to be refused, it followed on the evidence that the other should be allowed and it was up to the Tribunal itself, as counsel put it, “to divide the matter”. I do not accept that submission. First, it is a different case to advance one of the nominees and not the other and, if that was to be advanced, it was for the appellant to do so. Secondly, far from running such a case, the appellant’s case to the Tribunal in both matters was that the appellant’s business relies totally on the nominees for growing, nurturing and harvesting the vegetables (see the letter from the appellant’s migration agent to the Tribunal dated 6 June 2018 at para 12). Furthermore, the appellant asserted in relation to each nominee that there was a genuine need on the part of the appellant to employ the nominee.

52    Ground 1(b) must be rejected.

Ground 1(c)

53    Ground 1(c) is to the effect that the Tribunal did not accord procedural fairness to the appellant because it did not give the appellant an opportunity when requested to provide current financial information to support its oral disputed evidence that the appellant was able to meet all of its wage obligations notwithstanding paying both nominees the stated salary during the 2017–18 financial year.

54    The request was said to have been made during a hearing before the Tribunal. I will come back to this issue, but first it is convenient to identify the notice the appellant had of the relevant issues and the opportunities the appellant had prior to the hearing to provide information. This may be done as follows:

(1)    The delegate’s decision was based on a lack of satisfaction that there were earnings sufficient to meet increased wage costs.

(2)    The Tribunal’s letter to the appellant dated 27 September 2017 includes the following passage:

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible. In providing personal/sensitive information to us you are consenting to the collection and use of that information for purposes under the Migration Act.

(3)    The Tribunal’s letter to appellant dated 24 May 2018 includes the following passages:

In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(2) and (3) of the Regulations.

The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing:

…

3.    Information about the applicant directly operating an active and lawful business in Australia, and its financial position for at least the last two financial years;

•    for example, the applicant’s tax returns, financial statements prepared by an accountant/ financial advisor that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO for the financial years ending June 2016 and June 2017

…

7.    Information about whether:

a.    the nominee has been employed full time in Australia in the position for which they hold a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application, the employment in that position was full-time and in Australia, and they will be employed on a full time bases for at least 2 years with terms and conditions not expressly excluding the possibility of extension …

(4)    The Tribunal’s letter to the appellant dated 5 June 2018 includes the following passages:

I am writing in relation to the application for review made by H&L Hydroponics Pty Ltd ATF The Trustee for H&L Hydroponics Trading Trust.

We have considered the material before us but we are unable to make a favourable decision on this information alone.

…

We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 13 June 2018 ...

55    The Tribunal hearing for the matter in which Lan Tran was the nominee occurred on 18 June 2018 and where Dung Tran was the nominee, the hearing occurred on 20 June 2018. At the former hearing, the following exchange took place towards the end of the hearing (as I have said, Ms Pepper is the appellant’s migration agent):

MS PEPPER: Yes. Your comments about financials and whether we are able to sustain the wages that Dung is on at the moment. I’ve looked at the 17/18 financials and, you know, with regards to the support letter that Kylie Pham provided and you know, the increased quality in capsicums.

MEMBER: Okay, yes?

MS PEPPER: Yep, so our capsicum season ended - I think around May/April, so that would be included in our 17/18 financials and I’ve seen the impact of that quality of product had on our sales and at the moment our 17/18 financials indicate a profit and it also has allocation or absorbed the increased pay for both Lan and Dung as well and still generates a profit for the business.

MEMBER: There’s no papers before me. That’s just a supposition, there’s no financial modelling or evidence of that before me. How can I rely on that?

MS PEPPER: I can provide you the financials as it is right now so you can see where it is but like you stated, the 17/18 year hasn’t finished so we weren’t - - -

MEMBER: But you won’t know really what your profitability is until you know what the market rates for the cost of vegetables are and - do you have forward contract sales with the supermarkets?

MS PEPPER: No, we - - -

MS TROTTER: We sell - we get - with our - they give us a price, you know what I mean, before we send the product there is an agreement now with - you know, like for a bag of cucumbers I’m willing to pay tens I might no - I mean 12 or (indistinct) 11 dollars - there is invoices that we send with the price on it where we send our product to.

MEMBER: The other difficulty I have with that is even if I accept that, that’s for the year. The contract is for the two years from the time of the nomination approval. …

56    A little later, the Tribunal member said:

MEMBER: Well that’s because (indistinct) what Ms Phan is saying about the dedication commitment you get from these people, it may be because they’re related but maybe also they’re getting paid very well. Either way you’re getting a dedication and commitment.

The central issue that I had concerns about - have concerns about - is whether you are going to be able to afford to sustain that in light of the financial information that I have. That’s the central (indistinct) it’s not, yeah, and you’ve given me answer to all of that.

57    Almost at the end of the hearing, the Tribunal member asked those present whether there was anything further they were wanting to say. Nothing was raised by the appellant at this stage about providing financials to the Tribunal.

58    The primary judge said that the appellant’s argument about procedural fairness came down to this: the appellant asked the Tribunal for an adjournment in order to enable it to provide the financials as they are right now and the Tribunal erred in not considering, or in not properly considering, that request. The primary judge rejected that submission because he did not consider the statement by Ms Pepper beginning “I can provide you the financials …” as a request for an adjournment, but rather as a remark made in the course of argument and capable of being understood as “just an emphatic statement of [the appellant’s] position” (at [31]). There was no express request for an adjournment.

59    I reject this ground. It seems to me the appellant had adequate notice of the issues and an adequate opportunity to provide such documents as the appellant saw fit. It would have been apparent that by the time of the hearing, another financial year was about to expire. It was up to the appellant to provide such documents as it saw fit and to make an express request for an adjournment. The other matter which is relevant is that it is not clear precisely what information the appellant was seeking an adjournment in order to provide. For example, it is not necessarily the case that the Tribunal member’s “financial modelling or evidence of that” and the migration agent’s “financials as it is right now” are the same.

60    Ground 1(c) must be rejected.

Grounds 1(d), (e), (f) and (g)

61    The parties and the primary judge dealt with these grounds together. I will do the same.

62    These grounds were addressed by the parties in their written submissions, but little was said about them in oral submissions. As I understand it, that was because the parties recognised that unless the appellant established one or more of the errors in Grounds 1(a), (b) or (c), one or more of the errors in Grounds 1(d), (e), (f) or (g) would not be material.

63    In relation to Grounds 1(d), (e), (f) and (g), the key passage in the Tribunal’s reasons is para 13 which is as follows:

The contract makes no mention of the period of employment and is therefore, silent on whether the nominee will be employed on a full-time basis for at least 2 years. The contract also makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment. In these circumstances, the Tribunal considers the nominee does not have any written agreement to enforce any legal rights of full time employment for at least two years.

64    The position with the second proposition in this paragraph is clear. The Tribunal said that the contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment. If that observation was used by the Tribunal in a manner adverse to the appellant, then that was an error because the legislative requirement is that the contract will not include an express exclusion of a possibility of extending the period of employment. However, it is accepted that an error in relation to reg 5.19(3)(d)(ii) is not material unless an error is established in relation to the requirement in reg 5.19(3)(d)(i) (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421).

65    The first proposition in para 13 is more difficult to understand. It is that the contract is silent on whether the nominee will be employed on a full-time basis for at least two years. The proposition which is said to flow from that is that the nominee does not have a written agreement to enforce legal rights of full-time employment for at least two years. The first respondent accepted before the Federal Circuit Court that “the Tribunal had erred in its understanding of the contracts in that the contracts did not need to specify a period of employment when the nominees were employed on an ongoing basis”.

66    The contract in this case is of indefinite duration, but there are express provisions in the contract for termination by either party at any time on notice with the period of notice fixed by reference to the period of the contract prior to notice being given. Whatever the Tribunal made of its conclusion with respect to the first proposition, it did not affect its approach to the requirement in reg 5.19(3)(d)(i) of the Regulations. As I have said, the alleged errors in relation to that requirement (Grounds 1(a), (b) and (c)) are not made out.

Conclusion

67    Both appeals (SAD 70 of 2021 and SAD 71 of 2021) must be dismissed.

Associate:    

Dated:    19 July 2022