Han v Minister for Immigration
[2014] FCCA 2844
•12 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2844 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal properly considered whether the applicant was in “exceptional circumstances” – whether Tribunal erred in its approach to PAM3 guideline – applicant’s submissions before Tribunal closely following PAM3 guideline in any event – Tribunal’s decision not disclosing jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 |
| Hatcher v Cohn [2004] FCA 1548 at [49]-[50] Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 Wang v Minister for Immigration [2005] FMCA 918 Jia v Minister for Immigration & Anor [2011] FMCA 422 |
| First Applicant: | ZHIWEN HAN |
| Second Applicant: | LIRONG YAO |
| Third Applicant: | JIASHUAI HAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2120 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 23 October 2014 |
| Date of Last Submission: | 23 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr Guo |
| Solicitors for the Applicants: | G R Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 3 December 2013 be dismissed.
The Applicants are to pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 2120 of 2013
| ZHIWEN HAN |
First Applicant
| LIRONG YAO |
Second Applicant
| JIASHUAI HAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of a decision of the Migration Review Tribunal dated 1 October 2013 by which the Migration Review Tribunal (“the Tribunal”) affirmed a decision of the delegate of the first respondent not to grant the First Applicant an Employer Nomination (Residence) (Class BW) visa.
The first applicant is, for practical purposes, the substantive applicant as the other two applicants are simply family members.
It should be noted that although the application to the Court was out of time, the Minister did not press any objection on that ground.
The essential submission made on the part of the applicant is that the Tribunal fell into jurisdictional error by failing properly to apply the test of “exceptional circumstances” to the applicant. A number of other criticisms are, to a greater or lesser degree, also advanced.
For the reasons that follow I do not think the applicant’s criticisms of the decision are, in the main, made out and, in any event, I do not think that the Tribunal fell into jurisdictional error. For the reasons that follow the application will be dismissed.
The Issue in the Case
It is common cause that pursuant to the Migration Regulations 1994 (“the Regulations”) the applicant required a level of English language proficiency to obtain the grant of his subclass 856 Employer Nomination (Residence) (Class BW) visa.
It is common cause that the applicant did not have that level of English proficiency.
The requirement for English proficiency may be waived if “exceptional circumstances” exist (cl.856.213c(ii)(B)).
The Tribunal found that the applicant did not meet the test of “exceptional circumstances” and it is the way in which the Tribunal addressed that issue that gave rise to the debate before the Court.
Background Facts
What follows is not controversial and is taken from the materials in the case, including the Tribunal’s decision. The applicant is a citizen of the People’s Republic of China and born on 23 June 1966.
He has been working for Absolute Balustrade Systems as a metal machinist since 2008. He applied for an Employer Nomination (Residence) (Class BW) visa with his wife and son as secondary applicants on 22 September 2010 and the delegate of the Minister rejected the application on 4 July 2011 (Court Book “CB”425-436).
The applicant applied for review to the Tribunal and was represented by a migration agent throughout. It is clear that the applicant’s employer wishes to retain his services.
The applicant appeared before the Tribunal on 11 September 2013 and it is apparent that at the end of the proceeding the Tribunal expressed concerns to the applicant about his limited English and his ability to respond to emergencies in the workplace and his apparent inability to progress his English language skills significantly. The applicant’s representative sought and was granted two weeks until 25 September 2013 to provide further submissions or information. No material was provided within that time limit (see paragraph 27, CB498).
In fact, the applicant prepared affidavit material designed to further his case, subsequently forwarded to the Court. The material was forwarded to the Tribunal on 21 November 2013 (clearly after the decision had been handed down) and included further material from the applicant’s employer. Self-evidently, such material was not before the Tribunal at the time of decision.
The applicant has sought to paraphrase the effects of the Policy Advice Manual 3 (“PAM3”) guideline as to what constitutes “exceptional circumstances” at CB29 but a more persuasive extract was set out by the delegate at CB432-433.
The Tribunal’s Decision
The Tribunal set out the application for review and the history whereby the Tribunal hearing occurred at CB495. I note the error in paragraph 4 where the reference to 11 September 2011 should be 11 September 2013.
The Tribunal correctly pointed out that the applicant must meet certain age and English language proficiency requirements at time of application unless “exceptional circumstances” apply, or if the applicant made a certain skilled visa application (which it is common cause he had not) (paragraph 7, CB495.)
The Tribunal noted that the English language proficiency requirements were not met. The visa application makes it clear that the applicant does not have vocational English, nor did he submit to that effect at the hearing (paragraph 10, CB496).
The remainder of the decision is effectively about whether or not “exceptional circumstances” existed. The Tribunal noted correctly, in my view, that the Tribunal had regard to but was not bound by the Department’s policy advice manual.
The Tribunal considered the question as to the extent to which the applicant could perform his duties, bearing in mind his English limitations and the extent to which he would be able to teach and demonstrate his work to others (paragraphs 11-12 CB509).
The Tribunal explored the extent of the applicant’s progress in his English studies (paragraph 13). The Tribunal also explored how the applicant would respond to occupational health and safety matters (paragraphs 14-15) and it is no surprise that the applicant struggled with those matters.
At paragraph 16 the Tribunal recorded some difficulties with the extent to which the applicant would be able to communicate his skills at work to others.
At paragraphs 17-26 (CB 497-498) the Tribunal said:
“17. In response to a question about any other exceptional circumstances he thought the Tribunal should take into account, Mr Han said his English is poor because he had no foundation for English in China, and has had to learn English letter by letter. He said he can now read and articulate and understands 30% which is a great improvement. He added that he wanted to be able to stay in Australia.
18. Mr Wayne gave evidence and said that he is the factory manager at Absolute Balustrade Systems. He said the company does balustrading, pool fences and gates. He said that Mr Han is a saw operator, and does machining, grinding and finishing stainless steel as well as general labouring, general maintenance and general duties.
19. On being asked how he conveyed to Mr Han what to do in a day, he said he uses brief English and images from Computer Aided Design software to help him comprehend the explanation. He can demonstrate the task to Mr Han, but that is often not required.
20. Mr Han said Mr Han communicates with others in the workplace by using brief English, pointing to information on the drawings and demonstration. He said he uses physical demonstration to pass his skills to others. Mr Wayne said Mr Han had to learn to use the equipment in the workplace, but that he had a fair understanding already.
21. Mr Wayne said Mr Han was recruited after the company was approached by an agent with a group of 457 visa applicants five years ago when there was a shortage of applicants. On being asked if Mr Han was necessary for the business, Mr Wayne said Mr Han is multi-skilled and manages to pick up how to do things easily and is an efficient and productive worker. He said Mr Han has a good attendance record and is one of their best workers.
22. Mr Wayne was asked if there was anything unusual about Mr Han’s skills, or he had skills that were not available in Australia and he said there was nothing unusual about his skills.
23. On being asked what the business did to try and recruit local workers, he said they would have gone through advertising agents and local papers. On being asked if the situation was the same or had changed in regard to recruiting trade workers, Mr Wayne said the volume of workers had increased, but that he questioned the skills they have. He said Mr Han would meet or exceed the skills of local workers.
24. On being asked if he had been able to recruit machinists from the local market in the last five years, Mr Wayne said he has been able to recruit more fabricators, and fabricators provided skills that are more similar to what Mr Han does at the workplace. The information that Mr Wayne is able to recruit local workers was put to Mr Han under section 359AA of the Act. He was advised that the information may form a reason, or part of a reason for affirming the decision under review, as well as the relevance of the information and that he could comment on or respond to the information at hearing or seek more time to comment on or respond to the information. Mr Han sought more time and was provided until 25 September to provide further information or submissions. No further response or comments were received by the Tribunal at the date of this decision.
25. On being asked what it would mean to the business if Mr Han did not remain in Australia, Mr Wayne said they would need to employ someone else and retrain others in the workplace to do Mr Han’s duties. This was also put to Mr Han under section 359AA of the Act.
26. Mr Wayne said Mr Han has had no incidents at work, and works safely. Mr Wayne says he has taught Mr Han workplace safety such as evacuation, use of medication and lifting. He said if there is any danger at work he points it out to Mr Han and makes it clear and uses another staff member to interpret if necessary.”
The Tribunal went on to discuss its remarks made to the applicant about concerns as to the development of his English language and continued, paragraphs 28-29 (CB 498):
“28. The Tribunal has considered all of the information before it, and is not satisfied that there are exceptional circumstances. Mr Han appears to have little English despite having been in Australia for five years. Even making allowances for him being nervous at a hearing, he could say few words in English and could not provide the address of his employer or the correct number to contact in an emergency. He said he was reliant on office staff to read labels on drawings and lubricants at work. Mr Wayne said that if Mr Han were not able to continue in Australia, he would recruit another worker and retrain others. The Tribunal was not satisfied that Mr Han could satisfactorily pass on his knowledge to local workers.
29. As the Tribunal is not satisfied that Mr Han has vocational English or that there are exceptional circumstances, the requirements of cl.856.213(c)(ii)(B) are not met.”
Ground 1: The Member of the Migration Review Tribunal (“the Member”) totally, largely or partially failed to consider and/or apply directly applicable and bind legal principles established in case law
Ground 2: The Member failed to consider or apply the legal meaning of ‘exceptional circumstance’s to the case
Counsel for the first respondent correctly submitted that these two matters should be, as it were, taken together as they are essentially the same point.
The applicant’s written submissions submitted (paragraph 2) that the Tribunal merely applied the PAM3 guidelines and failed to consider exceptional circumstances by reference to what was said to be well‑established precedent, including Hatcher v Cohn [2004] FCA 1548 at [49]-[50], Maan v MIAC [2009] FCAFC 150 and Wang v Minister for Immigration [2005] FMCA 918 and Jia v Minister for Immigration & Anor [2011] FMCA 422.
This point was made also in oral submissions although the applicant’s counsel’s oral submissions were made in a somewhat scattergun way and were not always easy, at least for me, to follow.
Counsel submitted (and this was in the written materials forwarded to the court also) that the question of “exceptional circumstances” required the applicant to be compared to others in the same circumstances. This submission sprang from the remarks of Kiefel J in Hatcher v Cohn to this effect at [49]-[50]:
“‘Exceptional circumstances’, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person which set them apart from other persons in a comparable situation may amount to exceptional circumstances.”
It should be noted as counsel for the first respondent submitted that those observations were made in the context of a different area of law, but, with respect, they seem to me to be applicable here albeit that they necessarily involve a measure of generality. In Jia, I observed at [15]:
“In my view Kiefel J’s decision in Hatcher v Cohn went no further than giving some examples to the general proposition that generally exceptional circumstances are those circumstances which are unusual or out of the ordinary. What may be unusual or out of the ordinary may well vary according to the particular circumstances in which an individual finds himself. Indeed, this construction appears to accord with the thrust of the decision of French J, as his Honour then was, in Gaffar & Minister for Immigration and Multicultural Affairs (2000) FCA 293 at [20].”
It should be noted that the submissions presented at the Tribunal hearing themselves concentrated on the sort of matters contained in the PAM3 guidelines. These related to the applicant’s consistent effort to improve his English, his ability to work effectively and safely with the nominator, the fact that he was not at risk of exploitation by the nominator and had the ability to ensure his rights were protected, and that he was able to effect a level of skill transfer even though staff training was not part of his duties and that he was an asset to the nominator.
These matters were said to be the summary of submissions and it is to be noted that there is no reference in that summary to any particular observations about “exceptional circumstances”.
Reading the Tribunal’s decision fairly and as a whole, it would seem that the parameters of the debate were largely set by the submissions of the applicant, and even if that is erroneous, the submissions of the applicant would appear themselves closely to follow the PAM3 guidelines which, I accept, at least in part influenced the Tribunal.
Counsel for the first respondent submitted that some matters in the Tribunal’s decision are not contained in the PAM3 guidelines and referred in particular to the finding at paragraph 22 where the Tribunal asked Mr Wayne if there was anything unusual about Mr Han’s skills.
It is important to remember that the PAM3 guidelines are not the regulation. The test is whether there were exceptional circumstances.
The Tribunal was clearly aware that the test was whether there were “exceptional circumstances” (see paragraph 10 CB496).
The Tribunal explored the question of “exceptional circumstances” by reference, it would seem to me, in large part to the PAM3 guidelines (bearing in mind the matters traversed), but also bearing in mind the applicant’s summary of submissions.
Whether or not somebody is able to communicate in English in an occupational health and safety environment, to my way of thinking, might not necessarily be a matter to do with exceptional circumstances.
Nonetheless, it is clear that the Tribunal knew what the test was. Putting the matter shortly, I do not think that the Tribunal’s failure to refer in express terms to authority is fatal as the applicant asserts. The Tribunal was plainly concerned to see whether, on the facts as disclosed, the applicant’s circumstances were exceptional. A fair reading of the Tribunal’s judgment leads to no other conclusion.
The fact is that the Tribunal appears to have been well-seized of the task before it and to have applied itself to it in a fashion that does not give rise to jurisdictional error.
In the oral submissions made before the Court, the applicant’s counsel sought to assert that the Tribunal failed to consider the applicant against others in a comparable situation. It was submitted that if the applicant had had English in China, he would not have been a fitter. He should be compared to another person that came to Australia like him.
This submission appears to echo a matter asserted in the material sent to the Tribunal on 3 November 2013 (CB27) which appears to suggest that the applicant was in unusual circumstances because most other persons who had come to Australia in the same circumstances had now achieved residence visas. This submission, in my view, cannot be sustained. The mere fact that the applicant has not achieved the visa he seeks cannot possibly be an exceptional circumstance for these purposes.
Ground 3: The Member failed to understand the nominator’s actual position and circumstances and the Member’s view on the same as erroneous
This matter is not developed in the applicant’s written submissions. It may well relate to the material forwarded to the Tribunal on 3 November 2013 in which Mr Wayne sought to improve or clarify his evidence. That evidence was not before the Tribunal and the Tribunal, therefore, cannot have fallen into jurisdictional error in not relying upon it.
Ground 4: The Member did not give the Applicant sufficient time to provide further information and did not consider additional information provided by the Applicant and his nominator
The Tribunal gave the applicant two weeks at the hearing. The applicant failed to comply with that time limit. The material was sent by the applicant to the Tribunal after the decision was published. There is nothing, in my view, to suggest that the Tribunal’s failure to further delay in any fashion was unreasonable and it certainly does not disclose jurisdictional error on the Tribunal’s part.
There was no obligation on the Tribunal to reopen its decision when the material was received after the decision was handed down. Indeed, the Tribunal was functus officio at that time. This ground must be rejected.
Ground 5: The member failed to give any weight or consideration to the human impact of her decision
This ground is misconceived. Self-evidently, the applicants will be devastated by the decision, but that is a conclusion which would apply in each and every case. It is not an unusual matter and, indeed, would not give rise to an exceptional circumstance.
Further matters advanced in oral submissions
Counsel for the applicant suggested that the Tribunal member took it on herself to assess the applicant’s English, to assess what was appropriate. It was submitted that the applicant’s level of English was beyond his control, he being a blue‑collar Chinese man from rural China.
The extent to which the applicant had improved his English is one of the matters referred to in PAM3. It was clearly, in my view, in the circumstances not irrelevant to the Tribunal’s deliberation, because the applicant’s capacity in English and his capacity to improve it obviously impacted on various aspects of the work that he did, including most particularly his capacity to transfer his skills to others and his capacity to respond to workplace dangers. The Tribunal did not fall into jurisdictional error in this regard.
It was further submitted that, as was the case in Jia, the Tribunal should have but failed to look at the effects upon the loss of Mr Han’s services to his nominating employer.
This submission is misconceived. The Tribunal expressly asked Mr Wayne what would happen if Mr Han did not remain in Australia and Mr Wayne said they would need to employ someone else and retrain others (CB498 paragraph 25). The Tribunal plainly took that answer into consideration as it was entitled to.
At one point it appeared that the applicant’s counsel was suggesting that the Tribunal might have been infected by bias. If I understand the matter correctly, that matter was not pressed. I pointed out that bias is a matter requiring cogent proof and there did not appear to be any in this case.
Conclusion
In this case, as in so many, it is a matter of reading the Tribunal’s decision fairly and as a whole. Doing this, to my mind, shows that the Tribunal knew the task by which it was confronted and addressed it in a fashion that does not disclose jurisdictional error. The application will be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 12 December 2014
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