Bvumbe v Minister for Immigration

[2013] FCCA 2254

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVUMBE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2254

Catchwords:
MIGRATION – Skilled (Residence) (Class VB) visa – whether the applicant had worked full-time in a specified regional area for a total of one year – Tribunal found that cl.887.213 of Schedule 2 not complied with – application rejected – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958, s.476
Migration Regulations 1994, cl. 887.213

Minister for Aboriginal Affairs v  Peko-Wallsend  Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v  Wu  Shan Liang (1996) 185 CLR 259

Applicant: BRENDA RUFENDO TAKUDZWA BVUMBE

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 45 of 2013

Judgment of: Judge Jarrett

Hearing date: 5 April 2013

Date of Last Submission: 5 April 2013

Delivered at: Brisbane

Delivered on: 5 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Nguyen

Solicitors for the Applicant: Brisbane Migration Law

Counsel for the Respondents: Mr McGlade

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 18 January 2013 be dismissed.

2. The Respondent pay the Applicant’s costs of and incidental to the application fixed in the sum of $6,471.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 45 of 2013

BRENDO RUFENDO TAKUDZWA BVUMBE

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. On 13 January, 2011 the applicant applied to the Department of Immigration and Citizenship for a Skilled (Residence) (Class VB) visa.  On 5 September, 2011 the application was refused by a delegate of the Minister.  On 21 September, 2011 the applicant before me applied to a Migration Review Tribunal for a review of the delegate’s decision. 

2. The Tribunal duly considered that review application and, on 14 December, 2011 the delegate, on behalf of the Minister, refused the applicant’s Class VB visa application by affirming the decision under review.

3. By this application, the applicant applies for an order that the respondents show cause why remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the Migration Review Tribunal’s decision.

4. The applicant’s grounds of appeal, as articulated in the application and more precisely in the applicant’s outline of submissions filed on 20 March, 2013 are:

   a)That the Tribunal fell into jurisdictional error in reaching an unreasonable and illogical finding that the applicant did not work from home, by accepting the evidence of her employer and rejecting the applicant’s evidence, when the evidence provided by the employer was ambiguous and equivocal.

   b)The Tribunal fell into jurisdictional error in failing to consider a relevant factor in affirming the decision to refuse the applicant’s visa application and, in particular, a verbal agreement between herself and her employer’s representative, at her initial job interview.

   c)The Tribunal fell into jurisdictional error in that it was biased and it pre-judged the case that the applicant was trying to make, by accepting the evidence of the applicant’s employer and rejecting her evidence on a critical issue. 

5. Both parties agree that unless the applicant can establish that the Tribunal has made a jurisdictional error, or went beyond jurisdiction in making its decision, the decision of the Tribunal is a privative clause decision and it is binding and final on each of the parties.

6. The visa for which the applicant applied could be granted by the Minister if the Minister was satisfied that the relevant criteria for the grant of the visa existed. The visa in question, the Skilled (Residence) (Class VB) visa, is subject to the criteria – at least to some of the criteria set out in part 887 of Schedule 2 of the Migration Regulations. At the relevant time the primary criteria for the grant of the visa included that:

   a)the applicant held a relevant visa set out in the relevant regulations for a particular period;

   b)the applicant had lived in a specified regional area for a total of at least two years as the holder of one of the specified visas; and

   c)the applicant had worked full-time in a specified regional area for a total of one year, as the holder of one or more of the relevant visas.

7. The last criterion, found in clause 887.213 of Schedule 2 of the Regulations, is the lynchpin of this case. In terms it provides:

   The applicant must have worked full-time in a specified regional area for a total of at least one year, as the holder of one or more of the visas mentioned in clause 887.212.

8. There is no issue that the other relevant criteria to which I have just referred were met by the applicant in this case.  The hurdle at which her application fell was that she could not satisfy the Tribunal that she met the requirements of clause 887.213.

9. The Tribunal had before it material provided to it by the applicant and, as will soon become clear, information obtained when the Tribunal caused some of its own inquiries to be made. 

10. Before the Tribunal the applicant asserted that she worked full-time for an entity known as Thomson Reuters and that she was a telephone account manager for the period between January, 2008 and August, 2010. 

11. She further contended, before the Tribunal, that while she was working for Thomson Reuters she worked from her home in Carrara in Queensland.  That location, Carrara, is a specified regional area for the relevant visa criteria.  Her claim was that she was working from home, in the specified regional area, on a full-time basis. 

12. The Tribunal accepted that:

    a)the applicant worked for Thomson Reuters during the relevant period; and

    b)she lived during the relevant period in a specified regional area for the purposes of the Regulations.

    The issue of fact for the Tribunal was whether the applicant worked on a full-time basis from that regional location. 

13. The applicant put before the Tribunal some evidence which she says bore on that issue.  The first was her oral evidence about her agreement with the person who recruited her to the effect that she could work from home.  Secondly, she provided some statutory declarations from her friends and her family that tended to support her case that she worked from home.  Thirdly, she provided the Tribunal with some photographs of a home work office or study, although the photographs were taken, it seems, at or about the time the matter was before the Tribunal.  And fourthly, she provided some evidence that the employer for whom she was then working allowed her to work from home.  That employer was not Thomson Reuters.

14. The Tribunal, as I said earlier, caused its own inquiries to be made and, on or around 23 October, 2012 it wrote to Thomson Reuters.  The letter is in the bundle of relevant documents that has been filed in these proceedings, at or about page 26.  The letter provides, in part:

    The Tribunal is reviewing a decision to refuse to grant a visa to Ms Brenda

RECORDED : NOT TRANSCRIBED

- - - Ms Bvumbe, born on 29 December 1981. In conducting a review under the Migration Act, the Tribunal may get any information that it considers relevant to the review. You are invited to provide the following information in writing:

·     The period of Ms Bvumbe’s employment with the company.

·     Whether such employment was on a full-time basis.

·     Ms Bvumbe’s location during the period of her employment (ie, confirm that she was working from home).

Please provide the requested information in writing.

And thereafter appear some contact details.

1. Thomson Reuters obliged and by letter dated 25 October, 2012 provided the following:

   In response to your enquiry of 23 October regarding the employment of Ms Bvumbe by Thomson Legal and Regulatory (now Thomson Reuters [Professional] Australia Limited), the following information is provided:

   ·Ms Bvumbe was employed by this company from 14 January 2008 until 16 September 2010 as a telephone account manager (telesales) in its sales department.

   ·Ms Bvumbe’s employment was on a full-time basis.

   ·Ms Bvumbe’s work location was Level 24 of the Lennons Centre at 66-76 Queen Street, Brisbane.  She was not ordinarily required to work from home.

   If you require additional information or clarification of the above, I can be contacted on - - -

   And thereafter is provided some contact details.  That letter was signed by Stuart Hillier, under whose name the title, Human Resources Manager, appears.

2. According to the reasons for decision the Tribunal remained uncertain about where the applicant ordinarily worked or carried out her work.  The Tribunal referred to the Policy Advice Manual that the Department has issued, and noted that it was not so much the location of the employer that was important, but it was where the employee carried out the work that was important.  And it was that task that the Tribunal set about trying to determine, according to the evidence before it.

3. It is important to understand, however, the nature of the task that confronted the Tribunal.  The Tribunal had to be satisfied that the relevant visa criteria were met by the applicant.  The Tribunal needed to achieve a level of satisfaction about the existence of the relevant criteria before the visa could be granted.  The Tribunal came to the conclusion that it could not be satisfied that criterion 887.213 was satisfied.  It decided to affirm the decision under review.

4. The first ground of review relied upon by the applicant is set out at paragraph 31 of the written outline filed on her behalf: 

   It is said that the Tribunal’s finding that the applicant did not work from home was unreasonable and illogical by accepting the evidence of her employer and rejecting her evidence, where the evidence provided by the employer was ambiguous and unequivocal. 

   There are some difficulties with that statement.  I accept the first respondent’s submission that the Tribunal did not find that the applicant did not work from home.  The Tribunal’s findings, encapsulated as they are in paragraph 30 of the statement of reasons, amounts to nothing more than a statement by the Tribunal that it did not reach the requisite level of satisfaction.  It did not, in my view, make any finding that the applicant did not work from home but, rather, that it was not satisfied, on the evidence before it that the applicant had worked full-time in a specified regional area for a total of at least one year.  That is a very different matter to a finding that she did not work from home.

5. But even so, the applicant’s argument is that the Tribunal ought to have been satisfied, on the evidence before it, that she did work from home for the specified period and that any other conclusion was unreasonable and illogical.  The tests for illogicality are well known and the first respondent, in his written outline, as does the applicant, refers to the relevant passages from the well-known judgment in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and in particular:

   130   In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   131   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

6. The applicant’s challenge to the Tribunal’s approach in this case is, in my view, nothing more than an attempt to address the merits of the decision made by the Tribunal.  There is no contention that the Tribunal did not weigh all of the evidence; the contention is that the weight ascribed to various parts of the evidence ought to have been different.  The weight to be given to each part of the evidence, or any part of the evidence, by the Tribunal is a matter entirely for it.

7. The letter from Thomson Reuters that responded to the invitation to provide information from the Tribunal is not, in my view, ambiguous and equivocal; it is straightforward and direct.  It provides that the applicant’s work location was level 24 of the Lennons Centre at 66-76 Queen Street, Brisbane.  It provides that she was not ordinarily required to work from home.  I accept the submission from the first respondent that, read in context – that context being provided by the Tribunal’s invitation to Thomson Reuters – the purport of those statements becomes even clearer.

8. Nor is there anything, in my view, in the submission that because the letter is written by somebody purportedly in New South Wales, who is described as a Human Resources Manager, there is another tier or layer of ambiguity added.  The letter speaks for itself and, more importantly, the weight to be ascribed to it was a matter which was entirely for the Tribunal. 

9. There is nothing illogical, irrational or unreasonable about the process of reasoning embarked upon by the Tribunal.  It identified the evidence it had before it, and it then embarked upon a determination about the weight it should ascribe to that evidence.  And, with due respect to the Tribunal, it gave reasons for ascribing the weight that it did to each of the relevant pieces of evidence that it had to consider.  Consideration was given to the statutory declarations.  Consideration was given to the other matters and the way in which the Tribunal chose to use those other matters – the photographs and the like.  That it chose to place more weight on the evidence from Thomson Reuters is not something about which the Tribunal can be properly criticised. 

10. There is one matter that needs observation, though.  The applicant’s case before the Tribunal included her evidence about the oral agreement that she says was reached between she and the person that interviewed her when she first sought the position with Thomson Reuters.  That matter does not get express mention in the Tribunal’s reasons.  It is a matter of inference, however, that the Tribunal has considered that evidence.  The inference can be drawn from paragraph 21 of the Tribunal’s reasons and, in particular, the second and third sentences and less so from paragraphs 28 and 29.  But it is tolerably clear, when one bears in mind the warnings of the High Court in Minister for Immigration & Ethnic Affairs v  Wu  Shan Liang (1996) 185 CLR 259 that the Tribunal has appropriately considered the evidence before it and has determined the weight which ought to be given to it. In my view, neither illogicality nor unreasonableness have been made out.

11. The second ground of review is that the Tribunal did not give consideration to a relevant factor in that the Tribunal failed to take into consideration the verbal agreement between the applicant and the employer’s representative at the initial job interview.  The argument made for the applicant in the written submissions is not so much that the Tribunal did not take that evidence into account, but rather the Tribunal did not accept it: see, for example, paragraph 48 of the written submissions. 

12. It is true to say that one can only conclude by inference that the Tribunal gave that evidence some weight.  However, one cannot conclude from the Tribunal’s reasons that the Tribunal did not accept the evidence.  Even if it were the case that the Tribunal accepted that there was an oral agreement between the applicant and the company representative who interviewed her at the initial job interview that she might work from home, that agreement says nothing about the amount of work that could be done at home, the terms upon which the work could be done at home, and whether the applicant complied with those terms.  Indeed, it says nothing about whether the applicant did any work from home at all.

13. It was for the applicant to demonstrate that she satisfied the relevant visa criteria.  The Tribunal simply determined that she had not demonstrated the matters that she needed to demonstrate to its satisfaction.  To the extent that the applicant argues that the Tribunal failed to take into account or give consideration to factors or integers of her claim (as identified in cases like Minister for Aboriginal Affairs v  Peko-Wallsend  Ltd (1986) 162 CLR 24 at 39) her ground of review is misconceived. There is a difference between the factors or integers of her claim and the evidence that relates to those factors or integers. The Tribunal considered the evidence. The weight to be given to the evidence is a matter for the Tribunal: Peko-Wallsend at 41.

14. I am not satisfied that the Tribunal did not give consideration to a relevant factor in this case.  The relevant factor was whether the Tribunal was satisfied that the applicant had worked full-time in a specified regional area for a total of at least one year.  That was the criterion.  The evidence by which the applicant sought to establish that criterion was considered by the Tribunal.  The second ground must fail.

15. The third ground alleges that the Tribunal’s decision, in accepting the evidence of the applicant’s employer, and rejecting the evidence of the applicant, was biased or prejudiced.   As the first respondent points out in his submissions, an allegation of bias is serious and one which must be clearly made and distinctly proved.  There are a number of authorities that establish that an allegation of bias will rarely succeed on the basis of the decision record alone. 

16. Both parties have referred to the relevant test, that is, whether a fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the decision-maker may not have brought an impartial mind to the determination to be made.

17. There is nothing in this case to which I have been taken which demonstrates that the Tribunal did not approach this case with an impartial mind, or had pre-judged any of the issues.  The Tribunal, in this case, embarked upon a search for material which would enable it to decide whether it had reached the requisite level of satisfaction.   

1. The applicant’s argument under this ground is nothing more than:

   a)a different way of arguing the first ground of the application; and

   b)an attempt, in my view, to have this Court revisit the merits of the Tribunal’s decision below.

   Ground three must fail.  And, having regard to those matters, the application must be dismissed with costs.

RECORDED :   NOT TRANSCRIBED

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 5 April 2013

Date:  20 December 2013