CAI v Minister for Immigration

[2017] FCCA 3024

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3024

Catchwords:
MIGRATION – Application for Employer Nomination (Residence) (Class BW) subclass 857 visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision – no matter of principle.

Legislation:

Migration Regulations 1994, regs.5.17, 5.19, cls.857.213 and 857.221 of sch.2
Tribunals Amalgamation Act 2015, item 15AG of sch.9
Migration Act1958, ss.5, 357A, 474
Migration Amendment Regulation 2012 (No.2), items 26 and 29 of sch.2

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

X.W Xu & Z.C Xu & Anor v Minister for Immigration & Anor [2017] FCCA 2329

First Applicant: XIONGMIN CAI

Second Applicant: SULING HUANG

Third Applicant: SIQI CAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 49 of 2015

Judgment of: Judge Cameron

Hearing date: 13 November 2017

Date of Last Submission: 13 November 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Solicitors for the Applicants: The First Applicant appeared in person

Counsel for the First Respondent: Ms R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 49 of 2015

XIONGMIN CAI

First Applicant

SULING HUANG

Second Applicant

SIQI CAI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of China who arrived in Australia on 20 January 2009.  On 19 April 2011 the first applicant applied to what is now the Department of Immigration and Border Protection (“Department”) for an Employer Nomination (Residence) (Class BW) subclass 857 visa.  His wife and daughter, the second and third applicants respectively, were included in that application as his dependants.  On the same day the first applicant’s employer, X.W. Xu & Z.C Zu (“Country Noodles”), lodged a related application for approval of a nominated position in the first applicant’s favour.

2. On 8 June 2012 a delegate of the first respondent (“Minister’) refused the visa application on the basis that the first applicant did not satisfy cl.857.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because Country Noodles’ employer nomination application had not been approved. The first applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

3. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. The criteria for the grant of a subclass 857 visa were set out in pt.857 of sch.2 to the Regulations. Part 857 was omitted from the Regulations on 1 July 2013 but continued to apply to applications made before that date: items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2).

2. One of the criteria which the applicant had to satisfy at the time he made his application was cl.857.213, which relevantly provided:

   857.213

   Each of the following is satisfied:

   (a)the applicant has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer;

   (b)     the applicant:

   …

   (ii)     in any other case:

   (A)     unless exceptional circumstances apply, has not turned 45; and

   (B)     unless exceptional circumstances apply, has functional English; and

   (C)    unless exceptional circumstances apply, has a diploma (within the meaning of subregulation 2.26A (6)) or a higher qualification, that is relevant to the appointment; …

3. Section 5(2)(b) of the Act specified that a person had functional English if the person provided the Minister with prescribed evidence of his or her English language proficiency. For the purposes of s.5(2)(b), such evidence was prescribed in reg.5.17 of the Regulations.

4. At the time a decision was made on his application the first applicant also had to satisfy cl.857.221, which at all material times provided:

   857.221

   The appointment mentioned in paragraph 857.213(a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c) continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

BACKGROUND FACTS

Visa application

1. The first applicant’s visa application relevantly revealed the following:

   a)the first applicant arrived in Australia in January 2009 on a temporary subclass 457 visa which had been granted on the basis of his proposed employment as a cook in an Asian takeaway restaurant in Ulladulla.  His proposed employer was Country Noodles;

   b)the first applicant had been working as a cook at the Ulladulla restaurant since shortly after his arrival in Australia;

   c)the 857 visa was sought to enable the first applicant to work and live in Australia permanently.  The visa application was sponsored by Country Noodles, which had nominated the first applicant for the position of a cook at its Ulladulla restaurant;

   d)as noted earlier, on 19 April 2011 Country Noodles lodged a corresponding application under reg.5.19(4) for approval of a nominated position in its business;

   e)with respect to the criteria in cls.857.213(b)(ii)(B) and (C), the first applicant submitted that he did not have functional English or a diploma level qualification and requested consideration of his application on the basis of exceptional circumstances;

   f)the first applicant submitted that exceptional circumstances applied because he did not need functional English to perform the majority of his duties.  It was also submitted that Country Noodles had advertised the nominated position but had been unable to find a suitably qualified person other than the first applicant.

2. On 17 April 2012 Country Noodles’ employer nomination application was refused. As a consequence, on 8 June 2012 the first applicant’s 857 visa application was also refused because he did not meet the requirements of cl.857.221(a) for the grant of the visa.

3. Country Noodles lodged an application for review of the delegate’s decision to refuse its employer nomination application, however, the Tribunal affirmed the refusal.  On 29 September 2017 the Court dismissed Country Noodles’ application for judicial review of the Tribunal’s decision:  X.W Xu & Z.C Xu & Anor v Minister for Immigration & Anor [2017] FCCA 2329.

Tribunal proceedings

1. The first applicant applied to the Tribunal for a review of the delegate’s decision on 19 June 2012.

2. By letter dated 23 October 2014, Mr Zan Chun Xu, one of the proprietors of Country Noodles, submitted on behalf of the first applicant that exceptional circumstances applied which justified the waiver of the requirements in cl.857.213.  Mr Xu essentially submitted that the first applicant’s specialised skills were critical to the operations of the business, such that he would be forced to close the Ulladulla store if the visa was not granted.  He also submitted that the following factors were relevant:

   a)the first applicant did not need English language skills to perform the majority of his daily duties, which involved preparing, seasoning and cooking food; 

   b)despite numerous attempts, the business had not been able to recruit a suitably skilled cook in Australia who was also willing to live in a regional area;   

   c)due to the nature of his work, the first applicant was able to train and transfer his culinary skills to others through demonstration;

   d)the first applicant had a clear understanding of occupational health and safety (“OH&S”) requirements and could communicate with emergency services if necessary;

   e)the first applicant had made consistent efforts to study English in Australia;

   f)the rest of the staff at the Ulladulla store spoke the same Chinese dialect as the first applicant.  As such, misunderstandings in the workplace were unlikely to occur; and

   g)the first and second applicants were willing to pay the VAC2 (i.e. the visa application charge) if they were granted the visas.

3. On 24 October 2014 the Tribunal conducted a combined hearing of the review applications (together with another of Country Noodles’ employer nomination applications and its related visa application).  The first applicant attended that hearing, as did Mr Xu.  

4. On 29 October 2014 the first applicant’s representative wrote to the Tribunal asking that the review application be reconstituted to another member. The representative referred in this regard to comments made by the Tribunal at the hearing about the weight which it should give to a certification provided by the relevant regional certifying authority. It was also submitted that the Tribunal had refused to watch a video which showed the first applicant using English while working and training local Australians. Referring to s.357A of the Act, it was submitted that these matters indicated that the review applications would not be assessed by the Tribunal fairly.

5. The first applicant’s request was refused by the Tribunal on 30 October 2014.

Tribunal’s decision and reasons

1. On 18 December 2014 the Tribunal affirmed the decision of the delegate not to grant the first applicant a subclass 857 visa.

Request for reconstitution of the Tribunal

1. The Tribunal addressed, as a preliminary issue, its reasons for refusing the first applicant’s request for reconstitution of the Tribunal by another member.

2. First, and for the reasons it expressed in the related employer nomination application, the Tribunal observed that the question of weight was generally a matter for the Tribunal. 

3. Secondly, the certification referred to by the first applicant was a criterion for the grant of an employer nomination application, whereas the issue before the Tribunal was whether the first applicant satisfied the criteria for the grant of a subclass 857 visa. 

4. Thirdly, the Tribunal noted in relation to the video evidence that this had not been submitted in a form which would have assisted the Tribunal to view it prior to or at the time of the hearing.  Further, despite being invited to do so, the first applicant did not provide this evidence after the hearing.

5. Finally, the Tribunal observed that it was a matter for the Court to determine whether the Tribunal had complied with its statutory obligations to afford the first applicant procedural fairness but rejected any suggestion that its conduct of the hearing had in any way been inappropriate or unfair.

Clause 857.213

1. The Tribunal then considered whether the first applicant satisfied the time of application criteria in cl.857.213.

2. In relation to sub-cls.857.213(b)(ii)(B) and (C), the Tribunal accepted that the first applicant did not have functional English or a diploma or higher level qualification at the relevant time and that the issue before it was whether exceptional circumstances existed which justified the waiver of those requirements.  Having regard to the criteria in the legislation, case law and the considerations set out in departmental policy, the Tribunal assessed the material before it under the following headings:

   a)the duration of employment in the proposed nominated position;

   b)the nature of the work to be performed;

   c)the transfer of the first applicant’s skills to other employees;

   d)the first applicant’s ability to understand and comply with OH&S requirements and his workplace rights;

   e)labour market issues and the impact upon the first applicant’s employer;

   f)the first applicant’s efforts to learn English; and

   g)other matters.

3. The Tribunal relevantly made the following findings in relation to each of those matters:

   a)the Tribunal noted that the first applicant had worked at the business for almost six years and that those years encompassed the period of his 457 visa and his continuing employment during the processing of his 857 visa application.  In the Tribunal’s view, these aspects of the duration of the first applicant’s employment did little to distinguish him from other visa holders in similar circumstances and the Tribunal therefore placed little weight on them;

   b)the Tribunal accepted that the first applicant would be working with colleagues who spoke the same Chinese dialect as he did, that he had appropriate qualifications and experience to perform the duties and tasks of the nominated position, that his role in the business placed greater emphasis on his practical skills as a cook than on his ability to speak English and that his lack of functional English had not prevented him from competently undertaking his duties as a cook in the business.  However, the Tribunal did not accept that the particular skills the first applicant possessed in April 2011 went beyond the usual skill set that might be expected of a Chinese/mixed Asian cuisine cook or that the nature of the work to be performed by the first applicant in the nominated position set him apart, in the sense of being unusual or atypical, from others in a comparable situation;

   c)although the first applicant may have been willing to share and transfer his skills to others at the time of application, the evidence that he had done so was quite limited.  In such circumstances, the Tribunal did not consider his potential ability to transfer his skills to others pointed to the existence of exceptional circumstances;

   d)the Tribunal accepted that the first applicant had some understanding and ability to comply with OH&S and food hygiene requirements.  However, given that OH&S matters applied to all workplaces in Australia and food hygiene matters applied to all food handling establishments, these factors did not set the first applicant apart from others in a comparable situation;

   e)in the Tribunal’s view, the existence of a familial relationship between the first applicant and his sponsoring employer, together with Country Noodles’ limited efforts at recruitment, undermined the claim that Country Noodles had made, and continued to make, genuine but unsuccessful efforts to identify and recruit a suitably qualified cook.  The Tribunal also considered the financial information before it relating to Country Noodles’ overall business and found that the business’s profits had declined in the period June 2010 to June 2014.  This did not suggest to the Tribunal that the first applicant’s presence had led to improved business circumstances that set him apart from other persons in a comparable situation;

   f)the Tribunal accepted that the first applicant’s efforts to learn English constituted a relevant consideration in his favour; and

   g)the Tribunal placed little weight on the first and second applicants’ willingness to pay the VAC2, which it noted would only be required if exceptional circumstances were found to apply.  The Tribunal also had regard to the submission and evidence that other applicants sponsored by Country Noodles had been successful in their visa applications but noted that it was not bound to follow decisions made at the primary level about other visa applicants.  Finally, the Tribunal accepted that the applicants had integrated into, and contributed to, the Australian community at the time of application but found that neither of these factors set them apart from other visa holders in a comparable situation. 

4. Having regard to all the evidence before it, the Tribunal was not satisfied that exceptional circumstances applied for the purposes of cls.857.213(b)(ii)(B) and (C).  As such, the Tribunal found that the first applicant did not meet the requirements of cl.857.213(b) at the time of application.

Clause 857.221

1. The Tribunal noted that the Regulations did not provide it with any discretion to waive the requirements of cl.857.221. Consequently, as the Tribunal had affirmed the delegate’s decision not to approve Country Noodles’ employer nomination application, the first applicant did not satisfy cl.857.221(a) or (d) at the time of decision. As a result, his visa application failed on this basis too.

PROCEEDINGS IN THIS COURT

1. The first applicant, in his affidavit in support, relevantly deposed as follows:

   2.There are jurisdictional errors for the purposes of s.75(v) of the Constitution when MRT reviewing my case. MRT breached the rules of procedural fairness.

   3.Under 353 Tribunal’s way of operating, the Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  I believe this case is processed by an incompetent tribunal member.  I noted that the tribunal has a fatal misunderstanding of the regulation about the expiry date of Regional certify body’s approval.  The whole hearing was guided under the misunderstanding by the member.

   4.The tribunal member thought that Regional certify body’s approval is only valid for 2 years, which is not the case.  During the hearing I already knew the case officer intended to refuse my case.  Then I requested to change the tribunal member.  The tribunal just informed us that they decide not to do so, and did not give us any reasonable grounds as to why the tribunal has decided not to change the member after I have already pointed out that our cases were unfairly processed by the incompetent tribunal member.

   5.The tribunal member also said in the hearing that the regional certify body did not look at financial aspect of business which is also incorrect.

   6.It is inappropriate for the tribunal member to say my sponsor X.W Xu & Z.C Xu has suffered a reduction of more than 60% in turnover since June 2010, as indicated in the financial report for 2011 as provided, our sale has increased $50,000 compared with 2010.  Again this indicates that the tribunal member is incompetent.

   7.We are very disappointed and during the hearing we knew the tribunal intended to refuse us, as she spoke with bias and sometimes with the careless smile on her face.  We find our cases are unfairly processed.  We deserve a professional member to process our case. …

Consideration

1. The allegations which the applicants made in the first applicant’s affidavit did not engage with the bases of the Tribunal’s decision.  Rather, they were largely a repetition of the allegations which the first applicant’s employers made in their proceeding concerning the latters’ unsuccessful employer nomination application:  X.W Xu & Z.C Xu & Anor v Minister for Immigration & Anor at [31]-[40]. Therefore, they are not relevant to a proceeding which is concerned with an application for a subclass 857 visa.

2. To the extent the grounds relied on were not derived from the allegations made in the employers’ proceeding, they are unparticularised and so lack meaningful substance (ground 1, para.2) or raise a new complaint which is not arguable because it is concerned with the refusal of the employers’ application (ground 4, para.5).  Neither of those additional allegations discloses a basis on which the Tribunal’s decision ought to be set aside.

3. Most relevantly, the applicants’ allegations did not address the most important aspect of the Tribunal’s decision, its finding that it had no discretion to do anything other than to affirm the delegate’s decision because Country Noodles’ employer nomination application had been unsuccessful. The terms of cl.857.221(a) and (d) were intractable and the Tribunal did not err in so concluding and from consequentially finding that cl.857.221 had not been satisfied.

1. In addresses the first applicant raised matters which went to the merits of the visa application.  As advised to him at the hearing and noted earlier in these reasons, the Court cannot review the Tribunal’s findings on the merits of the visa application.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 7 December 2017