Howard v Minister for Immigration
[2012] FMCA 547
•19 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOWARD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 547 |
| MIGRATION – Employer sponsored skilled residence visa – requirement of three years employment in the relevant occupation – dispensation where exceptional circumstances – proposed employment of cook at café – Tribunal did not fail to consider relevant work references for employee – no jurisdictional error found – application dismissed. |
| Migration Regulations 1994 (Cth), regs.1.15B(3), 5.19(1B), Sch.2 cl.121.211 |
| An v Minister for Immigration & Citizenship (2007) 160 FCR 480 Hatcher v Cohn (2004) 139 FCR 425 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 |
| Applicant: | MARK HOWARD T/AS LYNE PARK CAFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2968 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 19 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Newman |
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2968 of 2011
| MARK HOWARD T/AS LYNE PARK CAFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Howard is the proprietor of a business trading as “Lyne Park Café” at Rose Bay in Sydney. In July 2009 he employed Mr Dinesh Sapkota in a position as cook for that establishment. Mr Sapkota had lived in Australia on student visas, before gaining employment with Mr Howard after completing a Certificate IV in Hospitality (Commercial Cookery) in September 2008. To regularise his immigration situation following the expiry of his student visas, Mr Sapkota applied for a permanent residence visa based on sponsorship by Mr Howard in his employment at the Lyne Park Café.
For this purpose, Mr Howard first obtained the Minister’s approval under reg.5.19(1B) of the Migration Regulations 1994 (Cth) of a position of cook ASCO code 4513-11 as an approved appointment for Mr Sapkota. The approval was sought with the assistance of a migration agent, and was obtained on 1 September 2010.
On 22 September 2010, the migration agent lodged an application on behalf of Mr Sapkota for a permanent residence visa Class AN subclass 121 of Sch.2 of the Migration Regulations. That subclass applies to visas granted on employer nomination. It is common ground before me that the present decision-makers properly identified the relevant criteria in clause 121.211, which stated:
121.211
If clauses 121.210 and 121.211A do not apply, each of the following is satisfied:
(a)the applicant has been nominated by an employer, in accordance with subregulation 5.19(2), for an appointment in the business of that employer;
(b)either:
(i)both of the following are met:
(A) an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;
(B) unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or
(ii)the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph;
(c) the applicant:
(i)unless exceptional circumstances apply, has not turned 45; and
(ii)unless exceptional circumstances apply, has vocational English.
In his visa application, Mr Sapkota identified the position which he had been nominated to fill in Australia as being his position at the Lyne Park Café, the job title being “breakfast chef”, and the occupation being “cook … ASCO code 4513-11”.
The Australian Standard of Classification of Occupations (ASCO) defines this position:
4513-11 Cook
Prepares, seasons and cooks food in catering and dining establishments.
Skill Level:
The entry requirement for this occupation is an AQF certificate III or higher qualification.
Tasks Include:
· examines food to ensure quality
· regulates temperatures of ovens, grills and other cooking equipment
· prepares and cooks food
· seasons food during cooking
· portions food, places it in dishes, adds gravies or sauces, and garnishes
· stores food in temperature controlled facilities
· may plan menus and estimate food requirements
· may prepare food to meet special dietary requirements
· may train other kitchen staff and apprentices
I note that it is not common ground before me that the Court may take into account the terms of this classification, but it was cited by the decision-makers and in the documents before them, and I consider that they were probably very familiar with its terms in the context of visas such as this and other skilled residence visas.
The visa application was supported by evidence of Mr Sapkota’s qualifications and work experience gained during the period of his student visas. In this respect, he had last been employed at Spitlers Waterfront Restaurant, whose manager had given him a reference on 1 October 2008, immediately after the conclusion of Mr Sapkota’s Certificate IV studies. It stated:
The following certifies that Dinesh Sapkota has been working at Spitlers Restaurant since July 1, 2007 until the present time on a casual basis. He has averaged 20 hours per week over the course of the year. Initially he began as a kitchen assistant, however his loyalty and determination had him quickly promoted to demis chef with an increase in pay. He has learnt a substantial amount from our head chef and is now responsible for 2 sections in the kitchen. The following outlines his skills and duties.
If you require any further information please do not hesitate to contact me.
In the visa application lodged on 22 September 2010, it was recognised that Mr Sapkota was required to bring himself within “exceptional circumstances” for the purposes of cl.121.211(b)(i)(B). This was shown in his response to part C of the visa application form:
Part C – Exceptional Circumstances
33Do you want your visa application to be considered as ‘exceptional’?
Note: If your nominating employer has already provided this information with their nomination you must still indicate that you want your visa application considered ‘exceptional’ by ticking ‘yes’ against each category to be considered. In the comments box you should confirm that your employer has already provided this information and add any additional comments/information that you believe will support your claim.
No o
Yesþ Please indicate which category of ‘exceptional’ refers to your application by ticking one (or more) of the boxes below and outline in the space provided the exceptional circumstances applying in your case
Skills
þ 3 years post-qualification full-time work experience (for ENS subclass 121/856 visa applications only)
I am seeking the waiver of 3 years of post qualification work experience because I have studies in Australia and I have been doing the same job of a cook in Australia for more than 3 years and I am currently working with my sponsor and the level of skill that I have is sufficient for the purpose of the job that I am sponsored for.
Mr Sapkota also submitted a letter dated 5 December 2008, which indicated that the agency known as “Trades Recognition Australia” had assessed his skills as suitable for the nominated occupation of cook 4513-11. He therefore could satisfy cl.121.211(b)(i)(A). However, he also required dispensation from the requirement under cl.121.211(b)(i)(B) of “at last 3 years” employment in that occupation, if that period was measured after the date of completion of his Certificate IV as would appear implicit from the ASCO definition.
A delegate decided the visa application on 1 March 2011, and was not satisfied that exceptional circumstances applied for the purposes of criteria in cl.121.211(b)(i)(B). In the statement of reasons accompanying the decision, the delegate said:
Under Policy, for exceptional circumstances to apply, the applicant and/or employer will need to demonstrate that the nominated person is so unusual or highly specialised that it is unlikely a suitable person with at least three years work experience could be found to fill the vacancy.
The applicant stated: “I am seeking the waiver of three years of post qualification work experience because I have studied in Australia and I am been doing the same job of a cook in Australia”.
The sponsoring organisation has not requested any waiver with request to skills requirements.
In my assessment I have considered the legislative and policy requirements against the information provided by the applicant. The applicant has not provided sufficient evidence to prove that the nominated position is so unusual or highly specialised that it is unlikely a suitable person with at least three years work experience could be found to fill the vacancy. No evidence was provided to me for consideration outside the current policy.
I am not satisfied that exceptional circumstances apply.
An application for review of this decision was lodged by the migration agent in the name of Mr Howard, not Mr Sapkota, as the review applicant. No issue has been raised as to Mr Howard’s standing to do this, and now to seek judicial review of the Tribunal’s decision.
Mr Howard signed a written submission stating that there were exceptional circumstances for the purposes of cl.121.211(b)(i)(B):
Exceptional Circumstances in terms of Post Qualification Work Experience
Dear Sir/Madam
I refer to the above mentioned application made under our sponsorship.
He has been worked in Australia since 2007 and overseas since 2005 …
Position
The position is of the Cook & in charge of the Kitchen cooking breakfast, Lunch to the patrons.
Nominee
Dinesh has been working with us from July 2009. He was an experienced cook when we initially hired him. He has worked in other places in Australia as well. Dinesh has also worked overseas as Cook.
He has also completed a Diploma course in Hospitality with Certificate III in commercial Cookery.
Lyne park café is a fine dining establishment in Rose Bay and served Breakfast and Lunches.
The applicant is particularly suited for the position that he is nominated as he knows the job and works without supervision.
There are no chefs or cook available in the market as good as him and who are looking for the job.
Skills required are not very unusual but someone who occupies this position needs to know breakfast as well as lunch menu which takes time to be trained. Dinesh is already trained and doing this job.
The nominated position is important to the strategic and financial direction of the business, as the applicant has special skills and qualifications that are required for the nominated position we wish to keep him on the job.
The Nominated position is necessary to engage existing clients. In addition with the highly skilled Cook like Dinesh we expect a reasonable number of customer increases.
The business will suffer financial hardship if the nominated applicant is disapproved because it will take another six-nine months for the business [to] get another person therefore, it will cause stress.
The work duties require specialised or unusual skills that are not readily available to similarly employed workers in Australia, and the applicant possesses those skills.
As explained above the nominated position is different to the similar positions elsewhere in Australia and within the industry as mentioned above there are no cooks with the skills that I require in the business are commonly available in the market.
In light of the above mentioned details kindly waive the Vocational English requirement the nominee. If you require further information please feel free to contact me.
The last sentence of this submission was clearly mistaken in its suggestion that Mr Sapkota needed exemption from the English language criterion, and it is clear that in fact the submission was directed at cl.121.211(b)(i)(B). In this respect, I note that Mr Sapkota had submitted a certificate showing that he had achieved vocational English in an International English Language Test performed on 21 March 2009 (see the definition in reg.1.15B(3) of the Migration Regulations.)
Various documents were attached to the submission, including the menu of the Lyne Park Café for its breakfast and lunch services, and Mr Sapkota’s reference and informative material in relation to his work at Spitlers Waterfront Restaurant. Also included was a work reference written by Mr Howard and dated 9 March 2011, which stated:
This is to certify that Dinesh Sapkota has been working with us from 1 July 2009 till date as Cook.
During this period we found him to be very sincere and hardworking. He has performed following duties and responsibilities as cook.
1.Food quality checking/inspection of the raw materials.
2.Set temperatures of various cooking appliances.
3.Prepare and cook food for various occasion including ala carte.
4.Season food during cooking & add gravies or sauches, garnishes.
5.Portion food places it in dishes.
6.Store food in the fridges or fridge.
7.Plan menus and estimate food requirements.
8.Food for allergic or diabetic.
9.Customer feedback.
10.Complaint handling, & problem solving.
11.Discuss the required changes
12.Work health and safety
13.Train other kitchen staff and apprentices.
His performance at workplace is very satisfactory. For further information please feel free to contact the undersigned.
All this material was forwarded to the Tribunal with a request by the migration agent that the Tribunal should make a decision “on papers and for this reason, they have signed the letter and the following is waived: Right to a Hearing [and] Right to adverse information”. It appears that this was done because an expedited decision was desired.
The Tribunal acceded to the request and proceeded to make a decision on 22 November 2011, without holding a hearing.
The Tribunal affirmed the delegate’s decision. In its “Statement of Decision and Reasons”, the Tribunal referred to the visa criterion in issue, and to the existence of policy guidelines. In particular, to a policy guideline suggesting that the three year period under cl.121.211(b)(i)(B) should be calculated by reference a standard period of full-time work. No issue has been taken before me as to that interpretation of the Migration Regulations, and the propriety of the Tribunal accepting it.
The Tribunal did not identify any policy guidelines which explained the relevant considerations by which “exceptional circumstances” were to be addressed, and no issues were taken before me that the Tribunal made any error of law in its understanding of these words.
In submissions before me, the applicant referred to statements in Federal Court judgments in different contexts, which have suggested that “‘exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary” (See Hatcher v Cohn (2004) 139 FCR 425 at [49], and also An v Minister for Immigration & Citizenship (2007) 160 FCR 480 at [8] and [114]). These authorities suggest that it is necessary to examine the factual and statutory context of a power to consider whether exceptional circumstances applied, and that in some contexts a broad and flexible operation may be given to a dispensing power expressed in these terms.
However, little more can be said usefully by way of generalities in relation to the present reference to ‘exceptional circumstances’ in cl.121.211(b)(i)(B). In the context of the words as a visa criterion allowing eligibility for a visa based upon a specifically nominated position with a specific employer, and without confining the potential breadth of the words, the exception appears to invite or allow a consideration of the particular circumstances of the proposed employment, and whether they suggest to the mind of the decision‑maker that there is special justification for departing from the usual three year employment rule.
This approach appears to have been taken by the present Tribunal, and no complaint is made about its focusing upon Mr Howard’s case for the issue of a visa to enable him to continue to employ Mr Sapkota, including by a consideration of Mr Sapkota’s education and work history.
In its “Evidence and Findings”, the Tribunal clearly recognised that it had read the written submission presented to the Tribunal and all the supporting documents. It made specific reference to the work references given by past and present employers of Mr Sapkota. It summarised his work history, and expressly quoted the pertinent parts of the above submission made by Mr Howard.
The Tribunal then reasoned:
16.The Tribunal has considered the review applicant’s arguments but is not satisfied that exceptional circumstances apply in the present case that would justify a waiver of the ‘3 years specified work experience’ requirement. The review applicant first concedes that the “skills required are not very unusual” but then appears to contradict himself by claiming that the “work duties require specialised or unusual skills that are not readily available to similarly employed workers in Australia”. The review applicant does not amplify the nature of the putative “specialised or unusual skills” beyond the requirement that the occupant of the nominated position have a knowledge of both breakfast and lunch menus; the Tribunal does not consider this latter requirement involves unusually specialised skills. The Tribunal accepts that the nominated position may be important to the strategic and financial direction of the business but does not accept, on the evidence provided, the review applicant’s claim that there are no cooks available in the market that can satisfactorily carry out the duties of the position. The review applicant has provided no evidence that he has tested the availability of qualified cooks through advertising the position or otherwise testing the market.
17.Based on the evidence, the Tribunal finds that the visa applicant was not employed in the occupation to which the appointment relates for at least 3 years before making the visa application and is not satisfied that exceptional circumstances apply in this matter. The visa applicant therefore does not meet the requirements of cl.121.211(b)(i)(B).
Mr Howard now seeks judicial review of the Tribunal’s decision. Mr Sapkota is not an applicant, nor has he been joined to the proceeding, but no issue is taken by the Minister in relation to these matters.
The application seeks relief by way of orders in the nature of certiorari and mandamus to quash the Tribunal’s decision and remit the matter for further consideration according to law. I have power to give this relief only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether Mr Sapkota should be given a visa to reside in Australia.
The ground of the application is formulated as follows:
The tribunal erred in law and in its jurisdiction when in considering exceptional circumstances it failed to give any consideration to and in so doing ignored the fact that the applicant’s nominee had worked in the applicant’s café business in that occupation for 14 months and had gained experience specific to his employment over and above such general experience as may be gained from working in the restaurant business.
In support of the application, Mr Howard’s solicitor, Mr Newman, submitted the following in his written submissions:
3.The review applicant says that the Tribunal erred when it failed to take into account or to give proper consideration to the fact that for over a year the nominee had worked as a cook in his nominator’s business and was regarded as irreplaceable. The Tribunal rejected the claim on the basis that – (para16 at CB124) ‘knowledge of breakfast and lunch menus’ does not demand possession of ‘unusually specialised skills.’
4.The review applicant says that the Tribunal in making that finding applied the wrong test and ignored the accompanying claims that the nominee worked without supervision, held the position for over a year and that he performed duties over and above the prescriptive norm found in the ASCO and ANZCO definitions of ‘cook’.
5.… [citing An v Minister for Immigration & Citizenship (supra), Wang v MIMIA [2005] FMCA 918, Hatcher v Cohn (supra), and Baker v R (2004) 78 ALJR 1483 at [13]]
6.Accordingly, the Tribunal erred when it interpreted the word subjectively without regard to the facts and without contrasting the norm with posited exceptionality, even ignoring a key attribute of the nominee viz., that he was able to work without supervision in an up-market locale in the eastern suburbs, the Tribunal satisfying itself by merely stating: “The Tribunal does not consider this latter requirement (a knowledge of both breakfast and lunch menus) involves unusually specialised skills.
7.At CB 100 the nominator attempted to describe the work duties that the nominee performed in his position of cook. Apart from cooking, the nominee performed duties outside of the realm of cooking and outside the embrace of the relevant ANZSCO and ASCO specifically at points 9-12. These additional duties were not discussed by the Tribunal and it is asserted that they fall into the category of ‘special’ or ‘exceptional’. It was no substitute for the Tribunal to consider whether or not the review applicant had tested the labour market to source suitable candidates-in fact the testing has no bearing on this question whatsoever.
8.At para 16 CB124 at the Tribunal took aim at a perceived inconsistency in statements appearing in a submission provided by the review applicant on 13 March 2011 at the foot of CB 96 and in the fourth sentence of CB 97. On close examination there is no such inconsistency. The former passage where the term ‘unusual’ appears relates to the position of a breakfast and lunch menu cook generally speaking while the latter passage relates to the particular position that is held by the nominee and it was that particularity which gave the position its exceptional requirements.
The ground and written submissions were, as I understood it, maintained in Mr Newman’s oral submissions today. I endeavoured to understand them as contentions of jurisdictional error, although essentially they appeared to be arguments as to the merits of the Tribunal’s evaluation of evidence.
As I ultimately understood his submissions, I was invited to infer from an inadequacy in the Tribunal’s “Statement of Decision and Reasons”, that it had failed to consider parts of the evidence which had been presented to the Tribunal with Mr Howard’s written submission. In particular, Mr Newman suggested that the omission from the Tribunal’s decision of express discussion of three elements in the evidence presented to the Tribunal, allowed an inference that it had not considered that evidence.
He submitted that the words in the work reference from Spitlers Waterfront Restaurant that “he has learned a substantial amount from our head chef and is now responsible for two sections in the kitchen”, provided evidence that proved that Mr Sapkota had management skills. He submitted that this was also the import of Mr Howard’s statement that “he knows the job and works without supervision.” Mr Newman also suggested that paragraphs 9, 10, 11 and 12 from the work reference given by Mr Howard, referred to the performance of duties and responsibilities by Mr Sapkota which are not specifically identified in the ASCO code list of ‘tasks’ of a cook. He submitted that these pieces of evidence showing management skills, in combination with the work reference given by Mr Howard, showed that Mr Sapkota was exercising exceptional responsibilities and capacities in the sponsored position, and that the Tribunal had failed to appreciate this and to consider the supporting evidence when considering whether there were exceptional circumstances.
Mr Newman submitted that the Tribunal should have expressly identified these pieces of information and discussed their implications, when considering Mr Howard’s assertion to the Tribunal that “the applicant has special skills and qualification that are required for the nominated position.” I was invited to infer from the absence of discussion of these pieces of information that the Tribunal had failed to address Mr Howard’s submission to the Tribunal by reference to the relevant evidence which supported it.
However, I would not draw that inference. It appears to me that the submissions made to me have elaborated factual claims which were never put to the Tribunal in the manner in which they were put to me, and which have dubious factual foundations, and which the Tribunal could not have been expected to have discerned and to have specifically discussed in its statement of reasons. In the absence of such an expectation, I would not draw an inference that the Tribunal overlooked any of the evidence to which I was taken.
Indeed, I consider that the Tribunal’s express reference to all of the submissions and evidence presented to it by Mr Howard, including the work references from Mr Howard and from Spitlers Waterfront Restaurant, shows that the Tribunal probably did carefully consider their content, and probably took all of the evidence into account before arriving at its conclusions on the merits of the matter (cf. Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [33], [73]).
Moreover, the path of reasoning followed by the Tribunal in paragraph 16 does not suggest that the Tribunal overlooked those pieces of evidence when forming its assessment as to whether exceptional circumstances applied. The Tribunal did endeavour to try to understand the submission that Mr Sapkota had “special skills and qualifications,” in a context where Mr Howard was asking the Tribunal to accept that those special qualifications rendered him, in effect, indispensable and irreplaceable.
The Tribunal concluded that it was not satisfied that the required knowledge of “both breakfast and lunch menus” established that Mr Sapkota had “unusually specialised skills”. No challenge to that conclusion of the Tribunal was made before me and in my opinion it was clearly open to the Tribunal to form that assessment.
In relation to the other attributes of Mr Sapkota cited by Mr Newman, I would not infer that the Tribunal did not consider whether they might not be usual in the range of employments of cooks. However, the Tribunal identified the critical issue as being the lack of demonstrated indispensability and irreplaceability of Mr Sapkota. In my opinion it was open to the Tribunal to have addressed the submission that was before it, by focusing upon that question, and by identifying the absence of pertinent evidence that Mr Howard had “tested the availability of qualified cooks through advertising the position or otherwise testing the market.” It was then open to the Tribunal to give that consideration emphasis, when not being persuaded that exceptional circumstances applied which would dispense with the normal requirement that the visa should be given only to sponsored employees with “at least three years” of employment in the relevant occupation.
Taking into account all the submissions that were put to me, I am not persuaded that the Tribunal’s reasoning evidences a failure to address the evidence or claims which were before the Tribunal, nor any other error of law or jurisdictional error in its application of cl.121.211(b)(i)(B) of the type contended by Mr Newman.
I therefore am required to dismiss the application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 6 July 2012
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