Eva Airways v Minister for Immigration
[2007] FMCA 1791
•5 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EVA AIRWAYS CORPORATION v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1791 |
| MIGRATION – Migration Review Tribunal – Employer Nomination – application for review of MRT decision – failure to refer to letter from migration agent – brevity of MRT decision – failure to satisfy two necessary criteria. |
| Migration Act 1958 (Cth) s.474 Migration Regulations 1994 (Cth) rr. 5.19(1C)(b), 5.19(2)(h)(i), 5.19(2)(i) |
| MIMA v Yusuf (2001) 206 CLR 323 Woods v Migration Agents Registration Authority [2004] FCA 1622 Vargas v Minister for Immigration & Multicultural Affairs [2001] FCA 1025 NAHI v MIMIA [2004] FCAFC 10 |
| Applicant: | EVA AIRWAYS CORPORATION |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | LNG 33 of 2006 |
| Judgment of: | Roberts FM |
| Hearing date: | 28 May 2007 |
| Date of Last Submission: | 28 May 2007 |
| Delivered at: | Hobart |
| Delivered on: | 5 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Argyle Law |
| Counsel for the Respondent: | Mr Moseley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application filed on behalf of Eva Airways Corporation is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of three thousand five hundred dollars ($3,500.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNG 33 of 2006
| EVA AIRWAYS CORPORATION |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant EVA AIRWAYS CORPORATION (“the employer”) is seeking a review of a decision of the Migration Review Tribunal (“MRT”) of 4 August 2006 and the quashing of that decision. The decision relates to a nomination by the applicant of LIN MEE CHUN CHEW (“the employee”) under the Employer Nomination Scheme for a position in Sydney.
The employee has also made a similar application[1] and the two applications were heard together. It was accepted by counsel that both applications are inextricably linked and must stand or fall together.
[1] LNG 32 of 2006
The respondents are the Minister for Immigration and Citizenship (“the Minister”) and the MRT. The MRT submitted to the jurisdiction of the Court but did not take any other part in the proceedings. The Minister opposed the application.
Background
In early June 2005 the employer nominated the employee for an Employer Nomination Visa for the position of “Assistant Manager (Reservations/Ticketing Supervisor)” with a base salary of $35,196.
In July 2005 the Department of Employment and Workplace Relations (DEWR) advised the Minister’s Department that the tasks of the position most closely corresponded with the occupation of a ticket seller, which is not a gazetted occupation. Consequently, the occupational requirements were not met. Further, the proposed base remuneration did not meet the gazetted minimum.
The employer was informed of this by letter dated 4 August 2005 and was asked to provide additional information. Further information was provided by the employer’s migration agent on 8 September 2005 and 6 October 2005.
By a decision dated 19 October 2005 a delegate of the Minister (“the delegate”) refused the employer’s application because the nomination did not meet the requirements of sub-regulations 5.19(2)(h)(i) and 5.19(2)(i) of the Migration Regulations 1994.
The delegate stated:
Given the information before me, I am not satisfied that the position requires the appointment of a Marketing Specialist. I find that the position requires the appointment of a Reservation/Ticketing Supervisor as per comments from DEWR…. Therefore, the tasks to be performed in the nominated position do not correspond to the tasks of an occupation specified in a Gazette Notice in force for subparagraph (i) at the time at which the application for approval for the nominated position is made. I find that the requirements of Migration Regulations 5.19(2)(h)(i) is not met.
He went on to say:
The sponsor has indicated on Form 785 and the contract that the nominee will be paid a base salary of $35,196.00 and total remuneration of $41,80.00(including superannuation benefit and other bonus).
Given the information before me, I am not satisfied that the nominee for the position is to be employed in Australia in accordance with the standards for wages provided under the relevant Australian awards and conditions.
I find that the requirement of Migration Regulation 5.19(2)(i) is not met.
On 17 November 2005 the employer lodged an Application with the MRT for a review of the delegate’s decision.
On 17 March 2006 the employer’s migration agent wrote to the MRT to provide additional information and documentation. That letter is marked as having been received by the MRT on 31 March 2006.
In that letter the migration agent stated that there was ample evidence put before the delegate that the task of the nominated position related to that of a Marketing Specialist. He also stated that the assessment by the delegate was wrong in that the salary for the nominated position exceeded the gazetted minimum of $39,100, because the employee’s gross annual salary was $41,801, which included:
a)$35,196 per annum, described as “normal earnings”;
b)a sum of $7.50 per working day described as a meal allowance;
c)a further annual sum of not less than 15% of normal earnings said to be “described as bonus but in fact is non discretionary”.
On 2 June 2006 an officer of the MRT wrote to the employer’s migration agent inviting comment in writing upon the statements by DEWR on 28 July 2005 that:
·on the available information the skill and remuneration requirements were not met;
·the description of the duties of the position as provided most closely correspond to the ASCO occupation of ticket seller which is not a gazetted occupational requirement; and
·the proposed base remuneration did not meet the gazetted minimum.
The MRT letter of 2 June 2006 went on to say:
This information is relevant to the review because the significance of this information is that if the Tribunal finds that the information provided by DEWR is correct then it will not be possible to meet the requirements of Regulations 5.19(2)(h)(i) and 5.19(2)(i).
That letter also stated that written comments should be received by the Tribunal by 11 July 2006 and added:
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or invite you to appear before the Tribunal.
No response was received by the Tribunal within the required period and the Tribunal affirmed the decision of the delegate by a decision dated 4 August 2006 (“the MRT decision”). In that decision the Tribunal stated:
The applicant failed to respond to the Tribunal’s letter of 2 June 2006.
Accordingly, having considered the circumstances of the review applicant and that it had been aware of the deficiencies of its application since the date of the delegates decision, 19 October 2005, the Tribunal has proceeded to make a decision in this matter pursuant to s359C based upon the material already before it.
FINDINGS AND REASONS
The Tribunal finds that on the information before it that the skill and remuneration level for the nominated position have not been met and that the information provided indicates that the position is more likely to be the occupation of a ticket seller which is not a gazetted occupation.
CONCLUSIONS
Having made the above findings the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review that the nomination does not meet the requirements of Regulation 5.19(2)(h)(i) & (j)
The applicant filed its application in this Court on 12 September 2006 and an amended application on 25 October 2006. On 6 March 2007 that was set down for hearing in Launceston on 28 May 2007.
The Law
It is conceded by the applicant that the MRT decision is a “privative clause decision” as defined in section 474 of the Migration Act 1958 (“the Act”). Sub-section 1 provides:
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
However, the applicant contends that the decision is vitiated by jurisdictional error to such an extent as to render the decision void.
In MIMA v Yusuf[2], McHugh, Gummow and Hayne JJ. (Gleeson CJ. agreeing) said at paragraph 82:
It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia[3], if an administrative tribunal (like the Tribunal) “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive[4]. Those different kinds of error may well overlap. 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.
[2] (2001) 206 CLR 323
[3] (1995) 184 CLR 163 at 179
[4] cf Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52; 176 ALR 219
The parties’ positions
The applicant’s contentions included the following:
a)The MRT failed to take the letter from the applicant’s migration agent’s letter of 17 March 2006 into account and this can be inferred because the letter is not mentioned in the MRT decision.
b)The MRT did not conduct a de novo review of the delegates decision, which can be inferred from:
i)the brevity of the MRT decision; and
ii)the failure to refer to the letter of 17 March 2006 in that decision.
c)The brevity of the MRT decision, its reference to a non- existent sub-regulation 5.19(2)(j) and its simple adoption of the DEWR assessment demonstrate that the MRT was merely paying “lip service” to its task.
Clearly, the applicant was contending that the MRT had ignored “relevant material” within the terms of the Yusuf decision as set out above.
At the hearing it became apparent that the applicant no longer relied upon the migration agent’s alleged failure to receive the MRT letter of 2 June 2006. In my view that was sensible because the migration agent is taken to have received it seven working days after the date of the letter.[5]
[5] See sub-section 379C(4) of the Act
The Minister opposed the application and contended that no jurisdictional error had been made.
Discussion
The non- existent sub-regulation
In my view, the MRT decision’s reference to a non-existent sub-regulation “5.19(2)(j)” amounts to no more than a typographical error which was clearly intended to refer to sub-regulation 5.19(2)(i). That is clear from the reference in the MRT decision to both the skill and the remuneration level not having been met.
Failure to refer to the migration agent’s letter
Certainly, the MRT decision does not specifically refer to the migration agent’s letter of 17 March 2006. However, it is clear that failure to refer to each and every piece of evidence does not automatically mean that a decision is improperly based or that the decision maker overlooked any evidence that is not referred to.
In Woods v Migration Agents Registration Authority[6], Crennan J said at paragraph 55:
The reasons of an administrative decision-maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272.
[6] [2004] FCA 1622
That paragraph went on to say:
It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62]. This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal. It is not a jurisdictional error for an administrative decision-maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing).
The emphasis in the last sentence of that quotation has been added by me.
In Vargas v Minister for Immigration & Multicultural Affairs[7] Kenny J said at paragraph 28:
The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191CLR 559 at 593 per Kirby J, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point).
[7] [2001] FCA 1025
Further, in NAHI v MIMIA[8] their Honours Gray, Tamberlin and Lander JJ said:
The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
[8] [2004] FCAFC 10
In this matter, the Court Book reveals that the migration agent’s letter of 17 March 2006 was received by the MRT on 31 March 2006.
Numbered paragraph 1 of the 17 March 2006 letter deals with the tasks of the nominated position in an effort to convince the MRT that there was “ample evidence” that those tasks were related to that of a “marketing specialist” rather than a “ticket seller”. The information provided in the sub-paragraphs of that numbered paragraph had previously been supplied to the Department.[9]
[9] See pages 2, 31, 32 and 39 of the Court Book.
Numbered paragraph 2 of the 17 March 2006 letter deals with the salary applicable to the nominated position.[10] Similarly, that information had previously been provided to the Department and I observe that although the migration agent attempted to portray the bonus received by the nominee as “non-discretionary”, documents provided by the employer state that the bonus payment “is subject to company policy and profitability of that relevant financial year”.[11] A payment that is subject to those conditions can hardly be “non-discretionary” as claimed by the migration agent.
[10] See paragraph 12 above in these Reasons.
[11] See page 45 of the Court Book
A perusal of the Court Book also reveals that much of the information in the 17 March 2006 letter had previously been provided to the Minister’s Department, in any event.
The migration agent consistently included meal allowances as part of the salary of the nominee. In my view, that was inappropriate from the start. The Form 785 Employer Nomination completed by the employer shows clearly at question 17 that the: “base annual salary must be the gross salary paid, excluding any additional payments or allowances such as superannuation, accommodation allowances, commissions, shares, meals or vehicles, etc”.[12]
[12] Page 4 of the Court Book
In my view, the applicant has not shown that the MRT decision maker ignored the letter of 17 March 2006, and a proper inference is that, when the request was sent on 2 June 2006, the MRT was affording the applicant a further opportunity to provide necessary information. The MRT then acted properly within the law when there was no response to the invitation in that letter of 2 June 2006.
Brevity of reasons
The MRT decision is brief. However, that is not necessarily a criticism or an indication that a review is justified. The reasons for affirming the delegate’s decision are clearly stated. They were:
The Tribunal finds that on the information before it that the skill and remuneration level for the nominated position have not been met and that the information provided indicates that the position is more likely to be the occupation of a ticket seller which is not a gazetted occupation.
That statement sets out succinctly the two reasons under Regulation 5.19 why the employer’s nomination of the employee did not meet the necessary criteria.[13] An inability to satisfy either criterion was sufficient to ensure that the nomination must fail. It is quite clear from sub-regulation 5.19(1C)(b) that the Minister (or his delegate) was by law required to reject the application if any one of the requirements of sub-regulation 5.19(2) were not met.
[13] Sub-regulations 5.19(2)(h)(i) and 5.19(2)(i)
Conclusions
In view of the above, I must dismiss the application. It follows that the application by the employee must also be dismissed and I will deal with that separately.
Costs
Rule 44.15 of the Federal Magistrates Court Rules 2001 provides:
The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1.
Part 2 of Schedule 1 provides that the Court may make an order for costs in the sum of $5,000 if the proceeding is concluded at a final hearing. In my view, it is appropriate to order that the employer pay a lesser sum because two applications were heard together. I am of the opinion that $3,500 is an appropriate sum to be paid by the employer.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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