Do v Minister for Immigration and Multicultural Affairs

[2002] FCA 1081

FEDERAL COURT OF AUSTRALIA

Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081

MINH SON DO  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 846 of 2000

RYAN J

2 SEPTEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 846 of 2000

BETWEEN:	MINH SON DO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	2 SEPTEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application such costs to be taxed in default of agreement.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 846 of 2000

BETWEEN:	MINH SON DO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE:	2 SEPTEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks judicial review pursuant to Part 8 of the Migration Act 1958 (“the Act”) of a decision made by the Migration Review Tribunal (“the Tribunal”) on 5 October 2000.  The decision affirmed a delegate of the respondent Minister’s decision to refuse the grant of a General Residence (Class AS) visa, subclass 805.  The primary decision of the delegate was made on 18 November 1999 in relation to an application for visa lodged on 21 December 1998.

2. The applicant was required to meet the criteria prescribed in Sch 2 Pt 805 of the Migration Regulations 1994 (“the Regulations”) as at December 1998, in order for the Minister to grant to the applicant a subclass 805 visa.

3. The applicant is a national of Vietnam born on 15 May 1960.  From 1978 to 1983 he completed a full time course at the Moscow Institute of Railway Transport majoring in the construction of bridges and tunnels.  He was awarded a Bachelor Degree of Civil Engineering of Transportation from that Institute in December 1983.

4. From 1984 to 1991 he worked for Hanoi Transport Engineering and Designing Institute as a bridge designing engineer.  In 1992 until 1994 he worked for Vietnam General Construction Company and worked on the Road Improvement Project in Laos for two years.

5. The applicant arrived in Australia on 18 June 1994 holding a student visa (subclass 560) permitting him to remain in Australia until 31 December 1998.  He was enrolled in and completed a six month English language course at Edith Cowan University in Perth.  Following that, in 1995, he moved to Melbourne where he attended a further English language course at Casey College of TAFE for six months and attained an advanced level of proficiency in English.

6. During his studies the applicant maintained part-time employment in various restaurants and worked casually for a business called “C.S. Traffic Surveys”.

7. In 1997 the applicant obtained full time employment at Polar Electronic Industries Pty Ltd (“Polar Electronic”) as a planner and sales engineer.  The Tribunal noted:-

   “The visa applicant stated that he had begun working at Polar Electronic Industries as an apprentice. The company advertised a position of Technical Sales Engineer on 24 October 1998 because the employer wished to expand into Vietnam and South East Asia. The visa applicant stated variously that he approached the employer to take up the position and that the position was created for him. He stated that he began in the position at the end of 1998. He stated that he was initially training but planning towards the future when they could develop the product and try to develop other opportunities to expand into Vietnam. He had returned to Vietnam early in 2000 to set up connections and networks in Vietnam for the company. The visa applicant stated that he does not yet quite have the requisite skills to undertake his present position. He stated that he still requires a full understanding of the product so that he can introduce it to companies in Australia. He stated that he does not have
   enough experience yet to do so.”

8. The applicant lodged an application for a General Residence (Class AS) visa, subclass 805 (Skilled) on 21 December 1998.  His application was supported by an employer nomination provided by Polar Electronic.

9. The application for a General Residence (Class AS) visa, subclass 805 (Skilled) required the applicant to satisfy the criteria stipulated in Schedule 2, subclause 805.212 of the Regulations. Subclause (1) of Reg 805.212 required the applicant to meet the requirements of sub-clauses (2), (3), (4), (5), (6) or (7). Subclauses 212(6) and (7) provided as follows;

   “(6)An applicant meets the requirements of this subclause if:

   (a)the applicant produces written testimony given by an Australian Citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to a profession, occupation or other activity as to the applicant’s standing in that profession, occupation or activity; and

   (b)either:

   (i)    the applicant:

   (A)has an exceptional record of achievement in that occupation, profession or activity;  and

   (B)would be an asset to the Australian community;  and

   (C)would have no difficulty in obtaining employment or in becoming established independently in Australia in that occupation, profession or activity;  or

   (ii)     the applicant has a record of outstanding achievement and is still prominent in the arts or sport.

   (7)       An applicant meets the requirements of this subclause if:

   (a)the applicant:

   (i)   has an exceptional record of achievement in that occupation, profession or activity;  and

   (ii)     would be an asset to the Australian community;  and

   (iii)   would have no difficulty in obtaining employment or in becoming established independently in Australia in that occupation, profession or activity;  or

   (b)the applicant has a record of outstanding achievement and is still prominent in the arts or sport;  or

   (c)In the opinion of the Minister, acting on the advice of:

   (i)   The Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (ii)     the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.”

10. The Tribunal found that the applicant did not meet the requirements of subclauses 805.212(6) or (7) because he did not have “an exceptional record of achievement in an occupation, profession or activity at the date of application.”

11. The applicant contended before this Court that the Tribunal had erred in law within the meaning of s 476(1)(e) of the Act, by giving an erroneous construction to the term exceptional record of achievement.

12. The applicant’s record of achievement had three main elements;

    (i)his degree in engineering;

    (ii)his work as an engineer in Vietnam, Laos and Australia;

    (iii)his fluency in Russian, Vietnamese and English.

    It was submitted that the Tribunal had erred by considering those three elements in isolation rather than in combination.

13. The Tribunal was also said to have erred by not properly applying the decision in Gaffar v Minister for Immigration and Multicultural Affairs (2000) 59 ALD 421, where French J observed, at 426 [20];

    “The requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions activities. Some will require far greater levels of knowledge and skill than others will in order to rise above the ordinary and the merely competent. And while the applicant for such a visa is required to be “an asset to the Australian community” it is not required that he or she be a “national living treasure”.  The Tribunal in this case, in my opinion, has taken an unduly restrictive approach to the criterion of "exceptional record of achievement". That criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.”

14. The written application raised as a further ground of review the Tribunal’s alleged failure to observe a procedure required to be observed in connection with the making of the decision (s 476(1)(a)) by not further considering whether the applicant satisfied any of the criteria of subclauses 805.213 or 805.214.  However, that ground was not pursued at the hearing of the application.

15. On behalf of the respondent Minister it was contended that the Tribunal had correctly identified the three elements constituting the applicant’s record of achievement and that those elements did not elevate the record above that which could be claimed by any other competent civil engineer.  The ability to speak three languages, it was said, cannot form part of an exceptional record of achievement in civil engineering, which can only be constituted by achievement out of the ordinary in the design or construction of civil works.  Accordingly, so the argument went, linguistic ability may only constitute an element of an exceptional record of achievement in civil engineering if that ability enables the engineer to produce work of an abnormally high quality.

16. After the hearing of this application, Heerey J published his reasons for judgment in Bae v Minister for Immigration and Multicultural Affairs [2001] FCA 578. In that case, there was evidence that the applicant had applied his welding skills to produce outstanding rates of output and new welding technique. His Honour concluded, at [15] - [16];

    “The findings in par 26 (in the context, the use of the expression “The Tribunal notes …” indicates acceptance by the Tribunal) must be taken to be referring to the applicant’s exceptional competence in silver soldering and the development of his steel grease interceptor device as at the date of the visa application, since that is the date at which this condition must be satisfied.

    But in considering the “exceptional record of achievement” condition the Tribunal appears to have disregarded those same facts.  This indicates an error of law, being an incorrect application of the law to the facts as found:  s 476(1)(e).”

17. As Counsel for the present applicant sought to rely on Bae in support of his argument that the Tribunal here had disregarded some relevant facts, I gave leave to each party to file supplementary written submissions on the effect which should be given Bae.

18. The applicant in this case did not adduce any evidence tending to show that his language skills have enabled him to produce outstanding work in engineering.  In fact, he was not currently employed as an engineer in Australia and he did not suggest by evidence that he has ever worked as an engineer in Australia.  Nor was he employed as an engineer in Russia, where he gained his qualification.  He has engaged in active employment as an engineer only for Vietnamese companies in Vietnam and Laos and so the only language which he has been required to use in pursuing the avocation of a civil engineer has been Vietnamese. 

19. Mr Hurley of Counsel for the applicant referred to [23] of the Tribunal’s decision as embodying its essential conclusions and reasoning.  That paragraph was in these terms;

    “In relation to the visa applicant’s previous occupation as a civil engineer, the Tribunal is not satisfied that a degree and work experience alone demonstrate an exceptional record of achievement, in the sense of “excellence which is out of the ordinary.”  The visa applicant has demonstrated that he passed his degree and worked in Vietnam, Laos and now Australia.  He speaks Russian, Vietnamese and English.  However he has not provided evidence as to any achievements which would raise him above any other competent civil engineer.  On the basis of the evidence provided, the Tribunal is not satisfied that the visa applicant demonstrated an exceptional record of achievement in an occupation, profession or activity at the date of application and so the Tribunal finds that he does not satisfy paragraphs 805.212(6)(b)(i) and 805.212(7)(a).  The visa applicant stated that although he plays sports this is not at a competitive level and he does not participate in the arts and therefore does not satisfy paragraphs 805.212(6)(b)(ii) and 805.212(7)(b).  There is no evidence that the visa applicant satisfies paragraph 805.212(7)(c).”

20. The expression “excellence which is out of the ordinary”, it was noted, is taken from the passage from the judgment of French J in Gaffar quoted at [13] above. In one sense, it is tautologous because “excellence” of itself connotes superiority or pre-eminence, “the possession of good qualities to an eminent or unusual degree”: The New Shorter Oxford English Dictionary, p 872.  However, I consider, with respect, that French J correctly identified the requirement erected by Reg 805.212(7)(a)(i) as predicated on professional or occupational achievement which significantly surpasses that of the general run of those engaged in the relevant profession or occupational pursuit.  I agree with the submission of Ms Riley of Counsel for the respondent that “achievement” refers to something already done rather than to what is promised in the future.  It is also to be remembered that the expression that uses the word “record” which, to my mind, signifies an achievement over an appreciable course of time, as in “academic record” or “record of service”.

21. Counsel for the applicant referred to Vetter v Lake Macquarie City Council (2001) 178 ALR 1 where Gleeson CJ, Gummow and Callinan JJ, at 8-9, examined the circumstances in which it will be a question of law whether facts as found answer a statutory description or satisfy statutory criteria. Reference was made to the observation of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at 138, that;

    “[I]f the facts inferred … from the evidence … are necessarily with the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law …”

22. Their Honours went on, after further reference to authority, to indicate that a question of law, as distinct from a mixed one of fact and law, arises if, on the facts found, only one conclusion is open.  It is by no means clear, and, indeed, Mr Hurley did not seek to contend, that an engineer who has studied or practised his discipline in three languages necessarily “has an exceptional record of achievement in that … profession”.  It was, therefore, a question of fact for the Tribunal whether all the relevant matters pertaining to the applicant, including his use in his work of three different languages, constituted an exceptional record of achievement in his profession of an engineer. 

23. However, that is not to say that in addressing that issue, the Tribunal may not have committed an error of law by asking itself the wrong question or failing to take into account a relevant consideration.  In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, McHugh, Gummow and Hayne JJ observed, at 21;

    “The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

24. However, I am not persuaded that, in this case, the Tribunal asked itself a wrong question.  It clearly understood the question to be whether the applicant had an exceptional record of achievement in the profession of engineer, and pertinently referred to the observations of French J in Gaffar which, at the date of the Tribunal’s decision, was the only authority in which Reg 805.212(7)(a)(i) had been construed.  The Tribunal therefore could only have erred in one of the ways described in Yusuf (supra) if, in answering that question, it failed to take into account what was said to be a relevant consideration, namely that the applicant had pursued his professional qualifications and, perhaps, had practised his profession in three different languages.

25. Assuming in the applicant’s favour that the application of three languages to his professional training and practice was a relevant consideration, it is clear that the Tribunal took it into account. It expressly acknowledged at [23] of its reasons quoted at [19] above that the applicant had passed his degree and worked in Vietnam, Laos and now Australia. As well, it noted that “he speaks Russian, Vietnamese and English.” It is true that, immediately after that reference, the Tribunal said “However, he has not provided evidence as to any achievements which would raise him above any other competent engineer.” In its context, I do not regard that sentence as intended to establish a general proposition that speaking more than one language could never raise one engineer above averagely competent practitioners. Rather, it indicates that, while language skills may be relevant to the question which the Tribunal had to decide, they must have been applied to building up a comparatively superior record of achievement.

26. I am therefore unable to hold that the Tribunal committed an error of law of the kind found in Gaffar and Bae by holding that the practice of a profession in more than one language can never contribute to an exceptional record of achievement in that profession.  It did no more, I consider, than acknowledge that the applicant had unusual language skills.  However, it found that fact insufficient to elevate his “record of achievement as an engineer” to one which significantly surpassed the records of achievement of the general run of practitioners of that profession.  It is to be remembered that the applicant never contended that his professional record of achievement was particularly distinguished in any other way.  Accordingly, I can discern no error of law in the Tribunal’s posing and answering of the question which it had to resolve.  The application must therefore be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            2 September 2002

Counsel for the Applicant:	Mr T Hurley
Solicitor for the Applicant:	Armstrong Ross
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 March 2001
Supplementary Written Submissions filed:	7 and 15 August 2001
Date of Judgment:	2 September 2002