Huang v Minister for Immigration

[2014] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1581

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal (MRT) decision affirming delegate’s decision not to grant an Employer Nomination (Residence) (Class BW) visa – whether the employer who had previously nominated the first applicant in an occupation and had satisfied the relevant criteria for approval of such nomination was required to be in a position to satisfy the relevant criteria at the time of MRT’s decision – whether employer satisfied such criteria at the time of MRT’s decision – criteria not satisfied – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.140L, 140M, 140M(2), 351

Migration Regulations 1994 (Cth), rr.2.20, 2.84, 5.19, 5.19(1), 5.19(1C)(a), 5.19(1C)(a)(iii), 5.19(2)
Migration Regulations 1994 (Cth), cl.856.213, 856.213(a), 856.213(c)(ii)(B), cl. 856.221, 856.221(1), 856.221(1)(c)

First Applicant:

Second Applicant:

Third Applicant:

Fourth Applicant:

CHUMING HUANG

HUIYAO HU

JINYE HUANG

RUPING HUANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3186 of 2013

Judgment of: Judge Manousaridis

Hearing date: 8 July 2014

Delivered at: Sydney

Delivered on: 22 July 2014

REPRESENTATION

First Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms H Dejean

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3186 of 2013

CHUMING HUANG

First Applicant

HUIYAO HU
Second Applicant

JINYE HUANG
Third Applicant

RUPING HUANG
Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) contends that the application for review of the decision of the second respondent (Tribunal) filed in these proceedings raises no arguable case for the relief claimed. In these reasons for judgment, I consider whether the Minister’s contention is correct.

Background

1. The first applicant, Mr Huang and his family, who are the other applicants, came to Australia from China in November 2007 as holders of a Subclass 457 visa. From that day Mr Huang was employed by Do & Co Pty Limited as a chef at a restaurant known as “Surf & Turf Modern Cuisine”.

2. On 9 August 2011 Mr Huang and his family applied for an Employer Nomination (Residence) (Class BW) (Subclass 856) visa (Employer Nomination visa). One of the criteria Mr Huang had to satisfy for the grant of such visa was “exceptional circumstances” for his not being in a position to satisfy two other criteria, namely, his being 45 years old or less, and having vocational English.[1]

   [1] These requirements were prescribed by cl.856.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

3. On 12 October 2012 a delegate of the Minister refused to grant the visa. The delegate did so because he was not satisfied exceptional circumstances existed to excuse Mr Huang from satisfying the requirement of vocational English. On 26 October 2012 the applicants applied to the Tribunal for a review of the delegate’s decision.

4. By letter dated 24 July 2013 the Tribunal invited the applicants to provide information in writing demonstrating that at the time the applicants applied for the Employment Nomination visa Mr Huang met the English language requirements specified in cl.856.213(c)(ii)(B) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), including any information in relation to the existence of exceptional circumstances. [2]

   [2] CB211-215

5. In its letter of 24 July 2013, the Tribunal noted that in their application for the Employment Nomination visa, the applicants stated that Do and Co Pty Ltd had nominated Mr Huang for an appointment in the occupation of Chef. The Tribunal, therefore, also invited the applicant to provide information that “the appointment referred to in your application has been approved and continues to be available to Mr Huang for the purposes of clause 856.221(a) and (d)”.[3]

   [3] CB213

6. Subclass 856 of Schedule 2 to the Regulations prescribed the criteria for the granting of an Employment Nomination visa. I have used the past tense to describe the application of that subclass because the Employer Nomination (Residence) (Class BW) (Subclass 856) visa closed to new applications on 1 July 2012. Clause 856.221(1) referred to an appointment mentioned in paragraph 856.213(a) of Schedule 2 to the Regulations. That paragraph, in turn, referred to a nomination by an employer in accordance with r.5.19(2) of the Regulations for an appointment in the business of that employer. Paragraph (a) of cl.856.221(1) provided:

   The appointment mentioned in paragraph 856.213 (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.

   Note: See regulation 5.19 for the criteria for approval of the appointment.

7. Under cover of a letter dated 20 August 2013, the applicants’ agent provided to the Tribunal a copy of a letter dated 21 June 2011 from a delegate of the Minister to Do & Co Pty Limited approving the application of Do & Co Pty Limited for Mr Huang to fill the nominated position of chef.[4]

   [4] CB224-231

8. At a hearing before the Tribunal on 16 September 2013, Mr Huang said he no longer worked at the “Surf & Turf Modern Cuisine” restaurant, and he had worked at a restaurant called “Hollywood” from 1 July 2012 to the end of March 2013.[5] Mr Huang said that he still worked for Do & Co Pty Limited, that he had been involved in renovating a restaurant at Eastwood since March 2013, and would work as a chef at that restaurant after the renovations are completed.[6] Mr Huang further said that the Department of Immigration and Border Protection (then known as the Department of Immigration and Citizenship) (Department) had found that Do & Co Pty Limited had not been acting honestly, and had placed a bar on Do & Co Pty Limited sponsoring people for subclass 457 visas. The Tribunal informed Mr Huang that one of the issues the Tribunal had to consider was whether the appointment mentioned in cl.856.213(a) “has been approved, has not been withdrawn, continues to satisfy the criteria for approval, and is still available to Mr Huang”.[7]

   [5] CB368[9]

   [6] CB368[9]

   [7] CB368[9]

9. After the hearing, Mr Huang, through his agent, submitted further material to the Tribunal. This included evidence that Mr Huang had acquired 50% of Do & Co Pty Limited, and that “he directed another 50% of Do & Co Pty Ltd shares into a new business”.[8] In addition, the Tribunal obtained information from the Department’s electronic records system that showed that a sponsorship bar of five years had been imposed on Do & Co Pty Limited on 19 November 2012.[9] The decision was stated to have been made under s.140M(2) of the Migration Act 1958 (Cth) which provides:

   If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

   [8] CB368[10]

   [9] CB368[11]

10. Regulations under s.140L had been made, these being the regulations contained in r.2.20 of the Regulations.

11. A delegate of the Minister found that Do & Co Pty Limited had failed to provide information to the Department of an event that, as an approved sponsor, Do & Co Pty Limited was required to provide to the Department under r.2.84 of the Regulations. The relevant event was Do & Co Pty Limited’s having ceased to operate the “Surf & Turf Modern Cuisine” restaurant. The delegate also found that Do & Co Pty Limited had provided false or misleading information. Do and Co Pty Limited does not appear to have applied for a review of the delegate’s decision.

12. Mr Huang again appeared before the Tribunal on 21 November 2013. The Tribunal discussed the issue of the sponsorship bar imposed on Do & Co Pty Limited and, in particular, that the bar meant that the applicants could not satisfy cl.856.221 because Mr Huang’s appointment in Do & Co Pty Limited did not appear to continue to satisfy the criteria for approval in r.5.19 of the Regulations.[10] Asked to respond to this, Mr Huang said he did not know Do & Co Pty Limited was subject to the sponsorship bar when he invested in it, that he was a victim, and that he and his family had forgone everything they had in China.[11]

    [10] CB369[12]

    [11] CB369[12]

13. After the hearing, Mr Huang provided the Tribunal with a further submission in which he requested the Tribunal refer his matter to Ministerial intervention, and set out what he submitted were special circumstances. He said that in March 2013 he purchased Do & Co Pty Limited and, through that company, he set up a new restaurant, spending approximately $450,000 to set it up.[12]

    [12] CB353-355

Tribunal’s decision

1. The Tribunal affirmed the delegate’s decision not to grant the applicants an Employer Nomination visa. It did so for the following reasons:

   a)clause 856.221 of the Regulations required at the time of decision that the appointment of Mr Huang in Do & Co Pty Limited had been approved and had not been withdrawn;

   b)the appointment had to continue to satisfy the criteria for approval provided for by r.5.19, and be available to Mr Huang;

   c)if the employer is subject to a s.140L action, namely, a sponsorship bar or cancellation, the “nomination is not able to satisfy regulation 5.19(1C)(a), and regulation 5.19(1C)(b) therefore applies, which requires a nomination application to be rejected”; and

   d)Do & Co Pty Limited was subject to a s.140L action, which means it cannot satisfy r.5.19(1C)(a).

Does the application for review raise an arguable case for relief?

1. In their amended application for judicial review, the applicants rely on the following grounds:

   1.The Tribunal Member . . .  erred in saying that nomination by Do & Co Pty Ltd is not able to continue to satisfy regulation 5.19(1C)(a).

   2.The nomination by Do & Co Pty Ltd was granted on 21 June 2011.

   3.The nomination by Do & Co Pty Ltd was never cancelled.

   4.Do & Co is currently subject to a sponsorship bar but this does not affect the previously granted nominations.

2. In my opinion, ground 1 is not reasonably arguable. It is not reasonably arguable that the Tribunal erred in holding that the nomination of the applicant by Do & Co Pty Limited is not able to continue to satisfy r.5.19(1C)(a) of the Regulations. That paragraph sets out matters of which the Minister must be satisfied exist before he can approve an application by an employer for approval of a nominated position as an approved appointment under r.5.19(1) of the Regulations. One of the matters of which the Minister must be satisfied is that specified in r.5.19(1C)(a)(iii), namely, the employer “is not the subject of an action that is described in section 140L . . .  or section 140M of the Act”.

3. At the time the Tribunal made its decision Do & Co Pty Limited was not able to satisfy r.5.19(1C)(a)(iii) of the Regulations because it was subject to an action under s.140M of the Act. The Tribunal incorrectly said that Do & Co Pty Limited was subject to an action under s.140L of the Act. But that does not matter because it discloses no arguable case of jurisdictional error.

4. Grounds 2, 3, and 4 really comprise one ground; and that is that the sponsorship bar that applies to Do & Co Pty Limited operates on its ability to apply for future approval to sponsor a person in a nominated position as an approved appointment; the ban does not operate in relation to past approvals. That is so. However, cl.856.221(1)(c) of the Regulations requires that, at the time the decision is made whether to grant an Employer Nomination visa, the decision maker must be satisfied that the appointment that had been previously approved “continues to satisfy the criteria for approval”. What this means is that, although the employer may have satisfied the criteria specified in cl.5.19(1C)(a) of the Regulations for the approval of a nominated position as an approved appointment, the employer must remain in a position to satisfy the same criteria at the time a decision is made to grant or not to grant an Employer Nomination visa. Do & Co Pty Limited was not, at the time the Tribunal made its decision on the application for review, in a position to satisfy r.5.19(1C)(a)(iii) of the Regulations.

5. In my opinion, therefore, grounds 2, 3, and 4 also do not disclose an arguable case for the relief the application seeks.

Hardship

1. In his letter to the Tribunal dated 27 November 2013, Mr Huang stated:[13]

   I have invested a large sum of money in running my business and if the restaurant ceases to exist because I have to leave Australia, it will cause irreparable loss to my staff as they would lose their jobs, and it will also have an overarching affect on their families. . . . If I have to return to China, my family and I will be left with absolutely nothing as we have been away for too long and my entire life savings went towards my restaurant business.

   [13] CB354-355

2. If true, these matters suggest great hardship for the applicants. These are matters which the Minister may consider to be worthy grounds for the exercise of his discretion under s.351 of the Act.

Disposition

1. The application should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 22 July 2014