Federal Court. Was the requirement under para 9.4.2(3) of Direction 90 to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance? Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?
The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act. The applicant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision.
The Tribunal was bound to comply with Direction 90, para 9.4.2(3) of which provided:
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.
The Tribunal summarised the applicant’s submissions on para 9.4.2(3) as follows:
If the Applicant is removed from Australia, he and his business partner in the pizza shop, will suffer the loss of employment and will lose the money they invested in the business. Due to changes in his partner’s circumstances and the Applicant’s incarceration, the business is struggling. However, if he returns to the business, he can help it grow, creating more jobs and expand the business as a great franchise.
Before the Tribunal, the Minister submitted that “the pizza business referred to by the Applicant in his representations to the delegate is not a “major project” or “important service” that falls within this limb of Direction 90”. The Tribunal found as follows: “I agree with the Minister’s submission in relation to potential impact on the pizza business … not being the sort of impact on Australian business interests to which para 9.4.2 of Direction 90 is referring.”
The Tribunal affirmed the non-revocation decision. The applicant then applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision. Ground 2 of the judicial review application claimed that the Tribunal misinterpreted para 9.4.2(3) and thus made a jurisdictional error.
Some of the questions to the FCA were as follows:
Question 1: Was the requirement under para 9.4.2(3) to consider any impact on Australian business interests, meaning that the Tribunal was not confined to interests of a particular scale or importance?
Question 2: Did the qualifications in para 9.4.2(3) (i.e. “major project” and “important service”) apply only where there was an “employment link”?
Question 3: Can it be said that, "even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests"?
Question 4: Can it be said that, "while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances"?
The FCA answered those questions as follows: