Islam & Anor v Minister for Immigration and Citizenship & Anor [2012] HCATrans 188
[2012] HCATrans 188
[2012] HCATrans 188
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S84 of 2012
B e t w e e n -
SHARMA ISLAM
First Applicant
MD. SIRAJUL ISLAM
Second Applicant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal
FRENCH CJ
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 17 AUGUST 2012, AT 11.26 AM
Copyright in the High Court of Australia
____________________
MR N.C. POYNDER: If it please the Court, I appear for the applicant. (instructed by Visa Lawyers Australia)
MR G.R. KENNETT, SC: May it please the Court, I appear for the Minister. (instructed by Sparke Helmore Lawyers)
FRENCH CJ: Yes, Mr Poynder.
MR POYNDER: Your Honour, the issue in this case is the construction of provisions in the Migration Act and regulations which limit access to merits review where an applicant for a long stay visa, a business visa, that is, has not secured sponsorship at the primary level of the decision‑making process. In this case, the applicant was seeking a Subclass 457 Business (Long Stay) visa in the labour agreement stream. That is one of six types of visas available in the 457 visa subclass, the only other one of relevance today being the standard business sponsorship.
FRENCH CJ: The question was whether the relevant clause identified a criterion for the grant of a visa.
MR POYNDER: Yes.
FRENCH CJ: It was a fairly narrow point.
MR POYNDER: It is a narrow point, your Honour, and the issue was the effect of an amendment to the Migration Regulations which came in with effect from September 2009.
BELL J: It is not only a narrow point, but it is one that would only apply in rather limited circumstances, is it not, the complaint that you make?
MR POYNDER: It would only apply to applicants for a 457 visa in the labour agreement stream, your Honour, not to the other streams.
BELL J: In circumstances in which an agreement has not been reached?
MR POYNDER: Yes.
BELL J: So it is a very confined class, Mr Poynder?
MR POYNDER: Yes, I would have to accept that, your Honour. The applicant’s occupation was a family day care worker and she was employed under the standard business sponsorship stream for several years by Woden Community Service Inc but when her time came for renewal of her visa, the standard business sponsorship stream was no longer available in her occupation and so, therefore, she applied under the labour agreement stream. The criteria for 457 visas begins at page 31 of the statutory provisions, your Honours, and the relevant criterion for today’s purposes is at page 33 of the statutory provisions. Your Honours will see two-thirds of the way down the page the heading “Labour agreements” on page 33.
FRENCH CJ: I am sorry?
MR POYNDER: Of the applicant’s authorities, as opposed to the application book.
FRENCH CJ: We have got various tabs here.
MR POYNDER: The statutory provisions should be paginated on the bottom right‑hand corner.
FRENCH CJ: Yes, I have that.
MR POYNDER: Your Honour will see “Labour agreements” two-thirds of the way down and then over the page towards the bottom of page your Honour will see “Labour Agreements” two-thirds of the way down and then over the page towards the bottom of page 34, there are the “Standard business sponsorship” stream just referred to in passing. The requirements that the applicant had to meet under the labour agreement stream can be seen under 457.223(2)(a) on page 33, that is, that:
the occupation specified in the application is the subject of a labour agreement –
then relevantly for today’s purposes the other two criteria which had to be met are over the page on (B):
(ii) a nomination of an occupation in relation to the applicant:
(A) has been approved under section 140GB of the Act –
and then the third one for today’s purposes is paragraph (c):
(c)the applicant is nominated by a party to the labour agreement ‑
turning to, back on page 33, subparagraph (a), the applicant’s occupation as a family day worker was required to be the subject of a labour agreement, so it relates to her occupation, not her individually. A labour agreement is generally defined in regulation 1.03 as a formal agreement entered into between the Minister for Immigration and an employer enabling the recruitment of employees in relation to certain occupations. So in this case the Woden Community Service had been negotiating a labour agreement with the Minister but it had not yet secured a labour agreement by the time of the delegate’s decision, and I am instructed that labour agreements take some time to negotiate.
Because this criterion on page 33 is a time of decision criterion, then that would include the time of decision on any merits review by the Migration Review Tribunal. So, in other words, if the labour agreement could be secured during the review process, it would be in place by the time of decision and the applicant had the potential to meet that criterion.
Then, going back to the second criterion, which is 457.223(2)(b)(ii)(A) on page 34, there was a requirement that the nomination of an occupation in relation to the applicant:
(A) has been approved under section 140GB of the Act –
Now, section 140GB is at page 2 of the bundle of statutory provisions and your Honours will see immediately that there is a reference in 140GB to an approved sponsor being able to nominate an applicant for “a proposed occupation, program or activity”. There is no requirement for an employer who is a party to a labour agreement to go through any process of being approved as a sponsor. There are provisions for the Minister to approve sponsors in section 140E of the Act but they are not relevant for today’s purposes because with a labour agreement the employer simply enters into a formal agreement with the Minister for Immigration authorising the employer to recruit non‑citizens as employees for certain occupations.
An employer party to a labour agreement, however, does become an approved sponsor by reason of the definition of “approved sponsor” in section 5(1) of the Act. Now, conveniently, section 5(1) of the Act is in Justice Robertson’s judgment in application book page 54 at paragraph 24 where your Honours will see the definition of “approved sponsor” involves:
(a) a person:
(i)who has been approved by the Minister under section 140E –
but, relevantly for our purposes:
(b) a person (other than a Minister) who is a party to a work agreement.
Then your Honours will see further down in paragraph 25 of his Honour’s judgment that a work agreement includes:
(b) must be a labour agreement –
So through that process, a person who is an employer party to a labour agreement becomes an approved sponsor for the purposes of section 140GB. If I can take your Honours back then to the criteria, this is back to page 34 of the statutory provisions, once the labour agreement is in place, then the employer as an approved sponsor can then nominate an occupation in relation to the applicant and here it had been proposed that the Woden Community Service would nominate the occupation of family day care worker in relation to the applicant but of course as was said the process never got that far because the labour agreement had not yet been secured.
The final criterion which had to be met by the applicant in this case was subparagraph 457.223(2)(c) which is on page 34 of the statutory provisions. That is that the applicant must be “nominated by a party to the labour agreement” and here the applicant was to have been nominated by Woden Community Service.
FRENCH CJ: Was to have been but had not been?
MR POYNDER: Well, it had not got that far because the labour agreement was not yet in place. If I can turn then to review by the Migration Review Tribunal, noting of course that the application here was correctly refused by the delegate since the labour agreement had not yet been put in place. The right to seek review by the Migration Review Tribunal is in section 338 of the Act and that is on page 4 of the statutory bundle. Your Honours will see under section 338(2) there is no question that the applicant met (a), (b) and (c), but it is (d) that is in issue today. Under (d), in order to have access to review, it must be:
a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor –
They are really the relevant words that we seek to deal with today.
We say that the words “criterion for the grant of the visa” refer to those criteria which are in Schedule 2 to the regulations, relevantly the ones we went to a moment ago, and it is our case that there is no provision in the Act nor the regulations which makes it a criterion for an applicant under the labour agreement stream to be sponsored by an approved sponsor. This is recognised by her Honour Federal Magistrate Barnes in the first level of review of this case. In fact, as her Honour recognised, while the employer who is a party to a labour agreement is taken by section 5(1) to be an approved sponsor, that does not necessarily make it a criterion that the applicant be sponsored, since the process of sponsorship in itself is not part of the labour agreement stream. A labour agreement merely requires the nomination of an occupation in relation to the applicant by a party to the labour agreement. On the other hand ‑ ‑ ‑
BELL J: Justice Robertson tracked through this rather tortuous process to which you have directed our attention.
MR POYNDER: Yes.
BELL J: Where do you identify an error in his Honour’s analysis of the regulatory scheme?
MR POYNDER: His Honour’s judgment – the error would have to be, your Honour, at page 58 of the application book, paragraphs 39 to 43 where his Honour took the view, broadly speaking, that the words in the criterion which I have taken your Honour to, the second criterion which is (2)(b)(ii)(A), that is, “nomination of an occupation in relation to an applicant has been approved”, his Honour had no difficulty in reading that as being the same as sponsored by an approved sponsor. His Honour at paragraph 37 on page 57 of the application book about halfway down paragraph 37 on page 57, did not accept the submission that merely because 457.223(2) does not use the very language which is used in the regulation which was introduced in September 2009, that those words were not engaged. In other words ‑ ‑ ‑
BELL J: But significant to his Honour’s conclusion in relation to the point you made just before the last was the provision regulation 4.02(1AA), was it not?
MR POYNDER: Yes. In fact, it was common ground that prior to that the applicant would have had access to review.
BELL J: Accepting that, you are confronted by the provisions of that regulation. What is wrong with his Honour’s conclusion in light of that?
MR POYNDER: We say, as her Honour Federal Magistrate Barnes found, that the history of the introduction of changes to the Migration Regulations provides a much more ready answer to what, if I can call it the AA provision, was aimed at, that there were a number of amendments to other visa subclasses which contain the precise wording that is replicated in the AA provision and it is our submission that, with respect, his Honour and our opponents, in our submission, engaged in a somewhat tortuous process of reasoning to read in the current visa which the applicant was applying for, that is, the labour agreement stream visa, as fitting within that.
BELL J: Well, I am not so sure it is a tortuous process of reasoning so much as it might be quite a tortuous process tracking through the Act and the regulations, but the argument against you is based on the text in the sense of the words within the regulations and, in particular, the reliance that his Honour placed on regulation 4.02(1AA). Your argument is based on a view that that provision has to be read down as intended to apply to the September 2009 subclass visas apart from the visa that is the subject of your application.
MR POYNDER: That is correct, your Honour, yes. In other words, that the precise wording of the AA provision is in those other visa subclasses and it is not, in our submission, open to apply it to a different set of words in our visa subclass.
BELL J: On its face it would appear to apply, would it not?
MR POYNDER: Well, Federal Magistrate Barnes had no doubt that it did not apply.
BELL J: Justice Robertson and the other two members of the Federal Court had no doubt that it did, Mr Poynder.
MR POYNDER: I am sorry, with respect, it was Justice Robertson sitting alone on that occasion.
BELL J: I am sorry, yes.
MR POYNDER: Which does give us ‑ ‑ ‑
FRENCH CJ: We will not count heads.
MR POYNDER: Which of course numerically is one against one, I suppose, but yes, we accept that Justice Robertson had no difficulty in reading that. Our submission is that “Federal Magistrate Barnes’ analysis, particularly in going into the historical analysis, is more complete and that is something which Justice Robertson found. His Honour found - or took no assistance from the historical reading of the Act and the regulations.
Your Honour has already adverted to the eight visa subclasses which are set out at pages 22 to 30 of the statutory provisions which contain that precise wording and I will not take your Honour through all those other than to perhaps identify at page 22 an example. At the bottom of page 22 your Honour will see for a subclass 411 visa that provision:
the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB –
which is precisely replicated in regulation 4.02(1AA). It is our submission, which has already been covered somewhat that had the intention of that regulation 4.02(1AA) been to bring labour agreement visas within those limitations that apply to the other subclasses, then it would have been easy to insert the identical criteria into the labour agreement stream. As Federal Magistrate Barnes suggested, it would have made the application of that regulation explicit.
Her Honour took the view that if there had been any doubt then one could have recourse to the principle of statutory construction adverted to by Justice Finn in Buck v Comcare (1996) 66 FCR 359 at 364, 365; that is, as an exclusionary provision which narrows the right to seek merits review then that provision in section 338(2)(b) should be construed with particular care and in a manner which favours the safeguard of individual rights, keeping in mind of course that prior to the September 2009 amendments there had been a right for applicants in the labour agreement stream to seek merits review.
One last point, your Honours, going back to section 338 on page 4, your Honours will see that 338(2)(d)(ii) refers to a situation where:
an application for review of a decision not to approve the sponsor has been made –
but it adverts to the fact that a visa applicant who is seeking review of the decision to refuse the grant of sponsorship, in other words, can continue on the MRT. So in other words, if you are refused a standard business sponsorship and you have sought review of that, then you can continue on after the primary decision into the Migration Review Tribunal. There is no equivalent provision for labour agreement visas so, in effect, that means that an applicant who applies for a labour agreement visa might have the visa refused by the Minister the very next day and then have no right of merits review in the MRT. So the Minister’s reading of that provision significantly limits the rights of visa applicants within the same subclass to
seek merits review of the decision and that, in our submission, takes that into the public interest aspect of this application. If it please, your Honours.
FRENCH CJ: Yes, thank you, Mr Poynder. We will not need to trouble you, Mr Kennett.
This application for special leave from a decision of the Federal Court of Australia concerns the construction of a provision of the Migration Act 1958 (Cth) and a provision of the Migration Regulations 1994 (Cth) relating to an application for a Temporary Business Entry (Class UC) visa and the conditions under which refusal of such an application is reviewable in the Migration Review Tribunal.
In our opinion, despite the careful submissions which Mr Poynder put to us, the decision of the Federal Court on the question of construction raises no issue of general principle and is unattended by sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs.
AT 11:49 AM THE MATTER WAS CONCLUDED