Huynh v Minister for Immigration
[2015] FCCA 2433
•8 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUYNH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2433 |
| Catchwords: MIGRATION – Judicial review – Employer Nomination (Residence) (Class BW) Visa – whether exceptional circumstances – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth),ss.476, 477 Migration Regulations 1994 (Cth), reg.1.15B, Schedule 2, cl.856.213 |
| Applicant WAEE v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Bushell v Repatriation Commission (1992) 175 CLR 408 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; (2000) 74 ALJR 490; (2000) 106 LGERA 419; (2000) 169 ALR 400; (2000) 60 ALD 342 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 |
| First Applicant: | TAN QUANG HUYNH |
| Second Applicant: | TRAN THI THU HUONG |
| Third Applicant: | THI MY DUYEN |
| Fourth Applicant | THI MY UYEN |
| Fifth Applicant: | THI MY TRINH LINDA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 182 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 June 2015 |
| Date of Last Submission: | 29 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 8 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A J Goldfinch |
| Solicitors for the Applicant: | Stables Scott |
| Counsel for the First Respondent: | Mr P R Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 182 of 2014
| TAN QUANG HUYNH |
First Applicant
| TRAN THI THU HUONG |
Second Applicant
| THI MY DUYEN |
Third Applicant
| THI MY UYEN |
Fourth Applicant
| THI MY TRINH LINDA |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (“Mr Huynh”) filed this application for judicial review (“Judicial Review Application”) on 30 June 2014. The second to fifth applicants are members of Mr Huynh’s family unit and are applicants on that basis (collectively “the Applicants”). The Judicial Review Application is seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision was made on 26 May 2014 and is at Court Book (“CB”) 273-277. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration and Citizenship, now the Minister for Immigration & Border Protection (“Minister”) to refuse to grant Mr Huynh an Employer Nomination (Residence) (Class BW) Subclass 457 visa (“457 Visa”).
Mr Huynh filed an affidavit together with the Judicial Review Application (“Mr Huynh’s Affidavit”) annexing a copy of the Delegate’s Decision, the Tribunal Decision, and the submissions made to the Tribunal on behalf of the Applicants.
Factual and procedural background
The factual and procedural background to the Judicial Review Application is as follows:
a)on 15 June 2010 the Applicants applied for 457 Visas: CB 49-69;
b)on 12 April 2012 the Delegate refused to grant the 457 Visas on the basis that Mr Huynh did not satisfy cl.856.213(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) because he did not have vocational English and the Delegate did not consider that there were exceptional circumstances: CB 134-139;
c)on 3 May 2012 the Applicants applied to the Tribunal for review of the Delegate’s Decision. The Applicants were represented in the Tribunal review proceedings by their registered migration agent: CB 145-158;
d)on 23 April 2014 the Applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stephen Perkins, the director of the business nominating Mr Huynh for a 457 Visa: CB 219 and 274 at [4];
e)on 26 May 2014 the Tribunal affirmed the Delegate’s Decision not to grant the 457 Visas to the Applicants: CB 282; and
f)the Applicants were notified of the Tribunal Decision by letter dated 29 May 2014 to their registered migration agent and authorised recipient: CB 278-279.
Tribunal Decision
In the Tribunal Decision the Tribunal found as follows:
a)the issue before the Tribunal was whether Mr Huynh met the requirements of cl.856.213(c)(ii) of Schedule 2 to the Migration Regulations, which requires that an applicant for a 457 Visa meet certain age and English language proficiency requirements at the time of the application, unless exceptional circumstances apply: CB 274 at [7];
b)it was not in dispute that Mr Huynh did not have vocational English and the only issue for determination by the Tribunal was whether exceptional circumstances applied: CB 275 at [10];
c)the Tribunal set out the claims of exceptional circumstances at CB 275 at [11] and CB 276 at [24] as follows:
i)that Mr Huynh’s elderly parents live “here” and he wants to be with them, and he and his family are well settled in Australia and his children’s future is in Australia: CB 275 at [12];
ii)Mr Huynh has given eight years of service to his employer, as a valued employee, and is exceptionally good at his job with advanced skill and knowledge of the printing process: CB 275 at [13];
iii)the business needs Mr Huynh and would lose income from printing and sales without him, the business is presently profitable and profits have been increasing: CB 275 at [14];
iv)the printing undertaken by Mr Huynh is specialised and in a niche market of small jobs for specialty products including bottles for corrosive or medical purposes for which it is especially important that the labelling is correct [he doesn’t have functional English!], and the bottles required depth of knowledge and skill that Mr Huynh holds and are a specialty product: CB 275 at [15];
v)no other plastics manufacturers in Western Australia have the capacity to undertake screen printing on plastic containers and the company for which Mr Huynh works is exceptional in providing a complete service from manufacturing to printing: CB 275 at [16];
vi)the employer says that whilst there are many screen printers there are no plastics screen printers and that plastics screen printing is complex, and not a job that people wished to take on, and in respect of which there are no apprenticeships or TAFE courses or pool of prospective employees, and screen printers are in demand though not on the skills shortage list: CB 275 at [17];
vii)Mr Huynh’s employer has advertised for the position but there were not suitable applicants with relevant experience in plastic bottle screen printing, and some employees have not been suitable and have left the position: CB 275 at [18];
viii)Mr Huynh’s employer uses advanced machinery unique in the State, and Mr Huynh has been taken to Singapore to train on this production equipment, and the employer has invested in his training as it needs staff skilled in the operation of the machinery: CB 275 at [19];
ix)Mr Huynh’s employer wants to grow the business and Mr Huynh is necessary to enable future growth of the business which is presently profitable: CB 275 at [20];
x)Mr Huynh has two people working for him, both supervised and trained by him: CB 275 at [21];
xi)Mr Huynh is trained in safety courses provided by Red Cross and Protective Fire Services and there has never been an accident under his supervision: CB 275 at [22];
xii)Mr Huynh has attempted to improve his English skills, and has attended TAFE, and the employer has hired tutoring for him, as well as employing bilingual staff who can assist Mr Huynh at any time: CB 275 at [23]; and
xiii)Mr Huynh understands workplace rights as these have been explained to him: CB 276 at [24];
d)the Tribunal said that it had “closely considered all of the claims” but “was not satisfied that exceptional circumstances exist”: CB 276 at [25];
e)the Tribunal accepted that:
i)Mr Huynh was a loyal and highly skilled employee, and that his employer’s business was attractive to potential customers as it provided a complete service from production to printing of the final product;
ii)the employer had purchased unique machinery and invested in the training of Mr Huynh; and
iii)Mr Huynh had received training in occupational health,
but those matters did not in the Tribunal’s opinion amount to exceptional circumstances: CB 276 at [25]; and
f)the Tribunal expressed concern about evidence which the Tribunal suggested meant that the claim of exceptional circumstances was not made out: CB 276 at [26].
The Tribunal then dealt with its concerns, in detail, at CB 276-277 at [27]-[34], as follows:
a)the Tribunal indicated that it had “given close consideration” to evidence of recruitment difficulty and Mr Huynh’s critical role in the business. The Tribunal noted that the occupation of screen printer was not included in the skills shortage list and such demand as there was it was not of such a level as to deem it to be a skills shortage. The Tribunal did not consider the employer having “experienced some recruitment difficulty”, either of itself, or combined with other claims, amounted to exceptional circumstances. The Tribunal further noted that when the position was advertised in January 2014 the salary level offered was lower than the salary offered to Mr Huynh, and the Tribunal considered that the lack of suitable applicants might be related to the salary level offered, and there was not, as such, evidence of exceptional circumstances in relation to recruitment difficulty and Mr Huynh’s critical role in the business: CB 276 at [27];
b)the Tribunal considered the claims concerning specialised machinery and Mr Huynh’s overseas training to operate that machinery. The Tribunal considered that training was part of any or most occupations and roles, and the fact that the training was overseas, and that the machine was unique and one of a kind, did not raise exceptional circumstances: CB 276 at [28];
c)the Tribunal noted evidence that subsequent to the Tribunal hearing Mr Huynh had been offered a continuation of his position as a “Screen Printer” on a gross salary of $63,365 up from $53,429, but was not able to satisfy itself that that salary level, either in itself, or combined with other evidence, was suggestive or indicative of exceptional circumstances: CB 276 at [29]; and
d)the Tribunal noted that on the organisational chart for the employer Mr Huynh’s position was “Manager” of the employer’s Printing Division, but that in his most recent letter of offer dated 28 April 2014 the position was referred to as “Screen printer”, and that ambiguous evidence caused the Tribunal to question the employer’s claims that Mr Huynh was as fundamental to the business and the future growth of the business as was claimed: CB 276 at [30].
The Tribunal’s concerns regarding Mr Huynh’s English language skills were extensive, and included:
a)an observation that his IELTS test level was 1, which is the lowest IELTS possible which meant that his English language skills were severely limited, the IELTS 1 grade being described as “essentially having no ability to use the language beyond possibly a few isolated words”: CB 277 at [32], and also CB 276-277 at [31];
b)that it had difficulty in accepting that Mr Huynh had been tutored for three or four years in English, as it would have expected improved IELTS results over this time, and the Tribunal questioned why Mr Huynh was being tutored by a person with a Bachelor of Science, and did not accept Mr Huynh’s explanation that the employer was not able to recruit a qualified English tutor or that that tutor taught the applicant from an IELTS manual, and notwithstanding copies of invoices from the tutor, the Tribunal was not satisfied, due to the concerns outlined, that Mr Huynh had actually received private tuition as claimed: CB 276-277 at [31];
c)that it was not satisfied that Mr Huynh adequately managed and supervised two staff members, in view of his extremely limited English speaking skills: CB 277 at [33]; and
d)that it was concerned about the claim that Mr Huynh understood his workplace rights as explained to him by his employer in view of his answer to a question about what he would do if he became aware of any workplace issues, to which he responded “I keep working … I don’t have any question” which the Tribunal considered did not support a claim that Mr Huynh understood workplace and employee rights: CB 277 at [34].
Weighing, it said, “all” the evidence, and in view of its concerns, the Tribunal was not satisfied that there were exceptional circumstances. The Tribunal found that the requirements of cl.856.213(c)(ii)(B) of Schedule 2 to the Migration Regulations were not met and, accordingly, affirmed the Delegate’s Decision not to grant the 457 Visas: CB 277 at [35]-[37].
Judicial Review Application
The Judicial Review Application contained a single ground of review as follows:
1. The decision was affected by jurisdictional error because the Tribunal failed to take into account a relevant consideration, namely:
(a) the primary Applicant specifically provided material in support of his application to the Tribunal that had been identified by the delegate and which had not been provided to the delegate;
(b) the Tribunal did not identify nor consider what was meant “exceptional circumstances” and purported to make findings of fact without so doing. Accordingly, the Tribunal failed to apply or wrongfully applied the term “exceptional circumstances” or did not exercise its jurisdiction as the decision on the application of “exceptional circumstances”. [sic]
Applicants’ submissions
The applicants’ submissions were as follows:
a)it is accepted that the decision as to whether there has been “exceptional circumstances” is a question within the jurisdiction of the Tribunal and that it is a question of fact to be decided by the Tribunal after it considers the evidence. The fact that an applicant may disagree as to what constitutes “exceptional circumstances” does not give an applicant grounds to appeal if the Tribunal is otherwise acting legally and within its jurisdiction;
b)In Fay v Fay [1982] 2 All ER 922 at 926 per Lord Scarman (“Fay”) it was stated as follows:
[W]hat is or not exceptional is a matter of degree...Applying prevailing standards and taking account of all relevant circumstances, the judge had to make his assessment. He had to make a “value” judgment...Questions of degree, involving as they do a strong subjective element, are best left to judges of first instance: and the particular statutory provision now under review clearly places the responsibility...of determining what is exceptional...on the judge...Can it be said, therefore, that the judge’s decision was clearly wrong? The evidence is totally inadequate to enable any such conclusion to be reached. It is not possible to define with any precision what is meant by “exceptional” hardship or depravity. The imprecision of these concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is itself an indication that the determination of what is exceptional is essentially a matter for the judge.
The above comments, taking into account the different legislation in issue, are applicable to this case;
c)the subjective nature of “exceptional circumstances” is illustrated by Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65; (1988) 92 ALR 167; (1988) 16 ALD 611 (“Nikac”) where it was stated as follows:
Notwithstanding my own view about the Minister’s conclusions that the circumstances in the cases...are “exceptional”, I do not think that it is possible to say that the Minister’s contrary view is devoid of plausible justification. The term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what?...[I]t is impossible to categorise a different view as being devoid of plausible justification. Like beauty, “exceptional circumstances” lies in the eye of the beholder.”
Nikac at 81 per Wilcox J;
d)Nikac was approved by the Full Court of the Federal Court in Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586; (2001) 110 FCR 582 (“Hicks”). Nikac and Hicks were considered by the Federal Magistrates Court in Xu Ren v Minister for Immigration [2003] FMCA 475 (“Xu Ren”). The Federal Magistrates Court stated as follows:
What I understand Nikac and Hicks to be saying is that a consideration of exceptional circumstances is one of fact and provided some facts that are not devoid of plausible justification exist such a finding can be made without risk of making any error, let alone a jurisdictional error.”
e)Re Minister for Immigration and others: Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542; (2001) 177 ALR 473 (“Cohen”) involved consideration of the term “serious circumstances”, and at [35] McHugh J stated as follows:
The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions “disability” and “other serious circumstances” were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, may in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error. (underlining added)
The reference to “jurisdictional facts” is not applicable here: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; (2000) 74 ALJR 490; (2000) 106 LGERA 419; (2000) 169 ALR 400; (2000) 60 ALD 342; at [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ;
f)in Attorney-GeneralNSW v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J the High Court stated as follows:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
g)in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 per Mason JA (“Williams”) where it was stated as follows:
[I]t may happen that the Tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude the decision appealed from is erroneous in point of law.
The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact.
h)in Xu Ren the Federal Magistrates Court stated as follows:
In this case the question which the Tribunal had to decide was whether or not exceptional circumstances existed. It did consider that question. Whether or not it made a mistake in its answer is a question of fact and one which to my mind and on the authority of Cohen cannot constitute a jurisdictional error.
It seems to me that the decision of the Tribunal clearly indicates the existence of plausible justification for the decision to which it came.
Xu Ren at [10]-[11] per Raphael FM;
i)in Xu Ren the Tribunal had decided that there were no exceptional circumstances, and the Federal Magistrates Court found that there was no error in that finding: Xu Ren at [10]-[11] and [15] per Raphael FM;
j)the following statement in the Tribunal Decision at CB 276 at [28] is “a factual error made in the course of [the]...decision”:
The Tribunal has considered the claims concerning the specialised machinery and the fact that the applicant was trained overseas to operate the machinery. The Tribunal considers that training is part of any or most occupations and roles. The fact the training was overseas, and the machine is unique and one of a kind, does not raise exceptional circumstances.”
k)the fact that the machine is unique and the training was given overseas would clearly seem to give rise to “exceptional circumstances”. Fay, Nikac, Xu Ren, Cohen and Williams indicate, however, that any challenge to the Tribunal Decision on that basis would not succeed. If there is a “plausible justification” for the Tribunal Decision: see Nikac and Xu Ren, it would not be amenable to judicial review in this Court;
l)the Tribunal did not consider what was meant by “exceptional circumstances”. The Tribunal did not identify or set out in the Tribunal Decision what it considers the phrase “exceptional circumstances” means. In the circumstances, the Tribunal missed a vital step in the process and failed to apply the “statutory expression to [the] primary facts”. The Tribunal therefore did not address itself to the proper question to be decided. The Tribunal did not exercise its jurisdiction on the question of the application of the words “exceptional circumstances”. This is highlighted by the fact that the Tribunal Decision itself appears to be factually incorrect;
m)the Tribunal Decision did not take into account a relevant consideration, namely, the extra information provided by Mr Huynh after the Delegate’s Decision;
n)in the Delegate’s Decision it was stated that Mr Huynh had not provided certain information from his employer. This information was provided to the Tribunal by the Mr Huynh’s migration agent. Although the Tribunal referred to this material, it did not take into account the fact that the material had been specifically provided as a result of the Delegate’s Decision. That material was highly relevant and filled a gap in the proof of the claim of “exceptional circumstances”; and
o)the Tribunal could not just dismiss that material out of hand without first considering its relevance and importance. The material had been specifically provided as a result of the Delegate’s Decision. In the circumstances, the Tribunal was required to decide, or at least, consider, whether that information (as opposed to purportedly making general findings of facts on the matters raised by Mr Huynh) amounted to the proof or establishment of exceptional circumstances.
Minister’s submissions
The Minister submitted that ground 1(a) and (b) were not made out because:
a)neither paragraph (a) or (b) of ground 1 identifies a mandatory consideration which the Tribunal was required to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 39 per Mason J;
b)the applicants appear to contend in ground 1(a) that the Tribunal failed to consider the additional material provided to the Tribunal which had not been given to the Delegate;
c)this contention is without merit. The Tribunal clearly did consider the additional material as it expressly referred to some of that material in its reasons for decision: CB 276-277 at [25], [27], [29], [30], [31], [33] and [34];
d)the Tribunal did not and is not required to make specific reference to every piece of evidence before the Tribunal in its written reasons: see Applicant WAEE v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] per Madgwick J;
e)the additional material did not oblige the Tribunal to be satisfied that there were exceptional circumstances. To the extent that the applicants contend otherwise, they are inviting the Court to engage in impermissible merits review;
f)ground 1(b) does not appear to relate to the ground of a failure to take into account a relevant consideration;
g)the applicants contend, and the Minister accepts, that the Tribunal did not identify precisely what it meant by “exceptional circumstances”. That, however, does not establish jurisdictional error;
h)the term “exceptional circumstances” is not defined in the Migration Act or the Migration Regulations and there is no reason to consider that the Tribunal did not employ the ordinary meaning of those words;
i)further, there is no true construction of the expression “exceptional circumstances” and circumstances may appear exceptional to one person and not to another: see McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 at [10] per Whitlam J. The adjective “exceptional” does not introduce an objective standard and whether exceptional circumstances exist will always involve a subjective judgment: McNamara at [10] per Whitlam J;
j)it appears from the matters addressed by the Tribunal in its reasons for decision, at CB 276 [27]-CB 277 [34], that the Tribunal was aware of, and took into account, the Department’s policy guidelines in relation to exceptional circumstances in PAM3 which are set out in the Delegate’s Decision at CB 136-137;
k)the Tribunal was not bound as a matter of law to find that there were exceptional circumstances having regard to the whole of the evidence presented by and on behalf of the applicants. Unless such a conclusion is reached, it cannot be inferred that the Tribunal erred in its interpretation or application of the term “exceptional circumstances”; and
l)the applicants also contend, in ground 1(b), that the Tribunal purported to make findings of fact without so doing. The applicants do not identify what findings of fact were purportedly made and, in the absence of further particulars, this ground is not made out.
Consideration
As indicated above, Mr Huynh was required to have “vocational English” unless “exceptional circumstances” applied: Migration Regulations, Schedule 2, cl.856.213(c)(ii)(B). It was not in dispute that Mr Huynh did not have vocational English as that term is relevantly defined in reg.1.15B of the Migration Regulations.
The question which arises here is whether the Tribunal committed jurisdictional error in determining that there were not exceptional circumstances warranting the waiver of the English language requirements in cl.856.213(c)(ii) of Schedule 2 of the Migration Regulations.
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
The Tribunal clearly identified the correct issue, and asked the right question, namely whether Mr Huynh met the requirements of cl.856.221(c), and if he did not whether there were exceptional circumstances which applied: CB 274 at [7] and CB 275 at [10].
The Tribunal considered the claims which it perceived to have been made, and did so in a reasonably detailed fashion: CB 275-276 at [11]-[25], and then set out, again in reasonable detail, its concerns which led it to consider that there was not exceptional circumstances which applied: CB 276-277 at [26]-[35].
In the broad sense, the Court is of the view that it cannot be said that the Tribunal addressed the wrong issue or asked the wrong question. The applicant’s submissions did however suggest that the Tribunal had not identified the right issue because it had failed to define what constitutes “exceptional circumstances”. That, then, leads the Court to ask the question as to how “exceptional circumstances” has been dealt with by the courts. The answer essentially lies in three judgments of the federal courts, Hicks, Nikac and Xu Ren, each dealing with the issue of “exceptional circumstances”, and each of which is cited above: see [8(c), (d), (h) and (i)].
In Hicks at [18]-[21] per Lee, Lindgren and Katz JJ the Full Court of the Federal Court observed as follows:
18 The third point to be made about the principle is that one of the conditions precedent of which it required satisfaction was that " exceptional circumstances" exist.
19 In Nikac v Minister for Immigration & Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65, Wilcox J gave consideration to the effect of the use in a quasi-legislative instrument of the term "exceptional circumstances". That case was decided at a time at which the Minister was merely obliged to reconsider an earlier decision to deport a person by reason of that person's criminal conviction if the Administrative Appeals Tribunal ("the AAT"), on review of the Minister's decision, had decided that the preferable decision was that the person not be deported. In other words, the Minister was not obliged to give effect to such a decision by the AAT. There was in place, however, a policy that the Minister would refuse to give effect to such a decision by the AAT “only in exceptional circumstances". In Nikac, the Minister had refused to give effect to two such decisions by the AAT, taking the view that “exceptional circumstances " existed which justified such refusals. Those "exceptional circumstances" had been the nature of the offences which had enlivened the Minister's discretion to deport, namely, drug offences, and the risk of recidivism by the deportees. The Minister's view that the nature of those offences and the risk of recidivism constituted “exceptional circumstances" was challenged in this Court as being incapable of plausible justification.
20 Wilcox J made plain in his reasons for judgment that, if he had been the Minister, he would not have considered the nature of the offences concerned and the risk of recidivism to amount to “exceptional circumstances" for the purpose of the policy. For instance, he said (at 80), “I admit to extreme difficulty in seeing how these factors can amount to `exceptional circumstances' within the meaning of the ... Policy". Later (still at 80), he said, " I have already made apparent my opinion that the offences themselves, and such risk of recidivism as exists in each case, cannot appropriately be described as constituting `exceptional circumstances'". However, his Honour continued (at 81),
"Notwithstanding my own view about the Minister's conclusions that the circumstances in the cases of Mr Nikac and Mr Gogebakan are `exceptional', I do not think that it is possible to say that the Minister's contrary view is devoid of plausible justification. The term `exceptional circumstances' postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, `exceptional circumstances' lies in the eye of the beholder."
21 We accept the correctness of the approach taken by Wilcox J in Nikac to the use in a legislative or quasi-legislative instrument of the notion of " exceptional circumstances" and consider that approach applicable to the principle.
The references in Hicks to Nikac make it unnecessary for this Court to further refer to Nikac.
The decision of the Full Court of the Federal Court in Hicks, and the decision of the Federal Court in Nikac, which are both directly on point as to the use of “exceptional circumstances”, are binding on this Court: Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ.
The question of what constitutes exceptional circumstances was also addressed by the Federal Magistrates Court in Xu Ren. Relevantly, having cited both Hicks and Nikac, the Federal Magistrates Court in Xu Ren observed at [8] and [10] per Raphael FM that:
8. What I understand Nikac and Hicks to be saying is that a consideration of exceptional circumstances is one of fact and provided some facts that are not devoid of plausible justification exist such a finding can be made without risk of making any error, let alone a jurisdictional error.
10. In this case the question which the Tribunal had to decide was whether or not exceptional circumstances existed. It did consider that question. Whether or not it made a mistake in its answer is a question of fact and one which to my mind and on the authority of Cohen cannot constitute a jurisdictional error.
Given that the Court is bound by the judgments in Hicks and Nikac, Xu Ren also ought to be followed by this Court, not merely as a matter of comity, but also because it accords with the binding precedent set in Hicks and Nikac.
The effect of Hicks, Nikac and Xu Ren would appear to be that if the Tribunal has considered the correct issue and asked the correct question and then arrived at a conclusion which has a plausible justification, there can be no jurisdictional error.
Turning then to ground 1(b), the question is whether or not the conclusions which the Tribunal reached in respect of whether exceptional circumstances exist have a plausible justification.
It is plain that the matters claimed to be exceptional circumstances have been set out and considered by the Tribunal, and that they relate to:
a)family circumstances;
b)service to the present employer by Mr Huynh and his knowledge of the job and processes;
c)the income and profitability of the employer’s business;
d)the specialised nature of the business and its product;
e)the alleged paucity of plastic screen printers available as prospective employees;
f)the nature of the machinery and training required to operate the machinery in the business;
g)the role of Mr Huynh as a supervisor and trainer;
h)Mr Huynh’s involvement in necessary training courses;
i)Mr Huynh’s endeavours to improve his English skills; and
j)Mr Huynh’s understanding of his workplace rights.
See generally CB 275-276 at [12]-[24].
The Tribunal accepted many of the above claims, including Mr Huynh’s loyalty and skill as an employee, the nature of the business and its product, the uniqueness of the machinery and required training, and that Mr Huynh had received training in occupational health, but did not consider that these amounted to exceptional circumstances: CB 276 at [25].
It is entirely plausible that a Tribunal member might conclude that issues related to the loyalty and skill of an employee, the nature of the business, the nature of training and the fact of training were not matters such as to amount to exceptional circumstances. Indeed, it is pertinent to observe, that they are plainly circumstances common to most employees and the businesses in which they work by reason of the nature of employment, businesses and the training required, often, statutorily, especially in the case of occupational health.
The Tribunal moved on to consider matters which were of concern to it in relation to whether or not there were exceptional circumstances and which suggested to it that exceptional circumstances were not made out. They included the nature of the recruiting difficulties and level of salary offered for the position, and the nature of the position itself, which the Tribunal observed was the subject of “ambiguous evidence” which caused it to question whether or not the employee was as fundamental to the business as claimed. Further, with respect to the recruiting duties it was observed that because the position was advertised with a lower salary than the salary offered to Mr Huynh that might be the cause of a lack of suitable applicants (the Tribunal uses “appointees”). Again, those justifications are entirely plausible on the part of the Tribunal. See CB 276 at [26]-[27].
The Tribunal also gave consideration to the specialised or unique nature of the machinery and the requirement for overseas training. Training, the Tribunal considered, was a feature of any or most occupations and roles, and the fact that training was overseas, and the machine unique and one of a kind, did not raise exceptional circumstances. Once again, the conclusion reached by the Tribunal is plausible. The mere fact that an employee operates unique machinery and has to train overseas in order to operate it might be the subject of different views by different administrative decision-makers (or Tribunal members in this case), but the view adopted by this Tribunal member is not implausible.
In determining whether exceptional circumstances exist or not, the Tribunal was obliged to consider all of the relevant material, and it is apparent that it has done so. It is also clear that it has placed some, and arguably quite significant, weight upon Mr Huynh’s lack of functional English. His IELTS grading was one which attributed to him “essentially … no ability to use the language beyond possibly a few isolated words”: CB 277 at [32]. That lack of functional English plainly caused the Tribunal member concern about how it was that Mr Huynh was said to adequately manage and supervise staff in view of his limited English speaking skills, and also his knowledge of workplace laws and workplace issues. There can be no criticism of the Tribunal for placing significant weight on an issue such as Mr Huynh’s knowledge of workplace laws and workplace issues when his response when asked about his awareness of such issues was “I keep working. I don’t have any question.” As the Tribunal member observed that “does not support the claim made that the applicant [Mr Huynh] understands workplace and employee rights”: CB 277 at [34].
The matters of concern for the Tribunal were matters which it was proper for it to consider, and in respect of which it gave plausible justifications for its concern as to why those matters did not satisfy it that there were exceptional circumstances warranting the waiver of the English language requirement for Mr Huynh.
In all of the above circumstances, the Court is satisfied that the Tribunal did not err in arriving at a conclusion with respect to whether or not there were exceptional circumstances, and that its conclusion was based upon matters for which there was a plausible justification in each instance.
It was unnecessary, given the approach of the federal courts in Hicks, Nikac and Xu Ren, for the Tribunal to define “exceptional circumstances”, as it is a vague and subjective term which applies differently in every factual circumstance: Nikac at 81 per Wilcox J. Whether or not there are exceptional circumstances is determined by an examination of the particular circumstances of a case to see whether or not they are exceptional in the view of the particular Tribunal member. For reasons set out above, this was not a case in which it could be said that there was no plausible justification for the views reached with respect to the matters considered by the Tribunal. In those circumstances there was no jurisdictional error in relation to ground 1(b).
The first ground of review, ground 1(a), also asserted that the Tribunal failed to take account of a relevant consideration by not specifically considering information specifically provided to the Tribunal as a result of evidentiary gaps in the applicant’s case identified in the Delegate’s Decision.
Under s.348 of the Migration Act the Tribunal is required to “review” the Delegate’s Decision. The Tribunal’s obligation in so doing is to arrive at the correct or preferable decision according to the material before it: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [10] per French CJ and [93] per Gageler J, both referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.
In accordance with the well-established principles in Wu Shan Liang and the many cases which have applied it, the task of sifting, assessing and weighing the evidence, is one for the Tribunal, and one based on all of the relevant material before it. In this case, it is plain that the Tribunal did have regard to all of the material before it, including the material provided by the applicants after the Delegate’s Decision: see the Tribunal Decision at CB 276-277 at [25], [27], [29], [30], [31], [33] and [34].
In all of the above circumstances, ground 1(a) is not able to be made out by the applicants.
For the above reasons, there was no jurisdictional error in the Tribunal Decision as alleged in the ground of review.
Conclusions and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the application must be dismissed. There will be an order accordingly.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Schedule 2.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 September 2015
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