Jaravaza v Minister for Immigration
[2013] FCCA 68
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JARAVAZA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 68 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – whether PAM3 inconsistent with Regulations – whether Tribunal erred in applying the policy – jurisdictional error – relief granted on that basis –whether Tribunal discriminated against the applicant – declaration not made. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AB Age Discrimination Act 2004 (Cth), ss.31, 43 Migration Act 1958 (Cth), s. 476 Migration Regulations 1994 (Cth), Sch.1 |
| Cases cited: Applicant S 214 of 2012vAttorney-Generalof Australia [2004] FCA 1635 Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 An v Minster for Immigration and Citizenship (2007) 160 FCR 480 Xiu Zhen v Minister for Immigration & Anor [2009] FMCA 1142 Howard v Minister for Immigration & Anor [2012] FMCA 547 Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 |
| First Applicant: | VENGESAI STEIN JARAVAZA |
| Second Applicant: | GLADYS ELIZABETH JARAVAZA |
| Third Applicant: | FADZAI GWENDOLINE JARAVAZA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 859 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 February 2013 |
| Date of Last Submission: | 26 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Lloyd of senior counsel with Mr J King of counsel. |
| Solicitors for the Applicants: | Fragomen Solicitors |
| Counsel for the Respondents: | Mr G Kennett of senior counsel with Ms A Mitchelmore of counsel. |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent, dated 27 March 2012, to affirm the decision of the delegate of the first respondent to refuse to grant the applicants each an Employer Nomination (Residence) (Class BW) visa.
A writ in the nature of mandamus issue remitting the matter to the Tribunal and requiring it to determine according to law the application made to it by the applicants for review of the delegate’s decision.
The application made on 18 April 2012, and amended on 4 July 2012, is otherwise dismissed
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 859 of 2012
| VENGESAI STEIN JARAVAZA |
First Applicant
| GLADYS ELIZABETH JARAVAZA |
Second Applicant
| FADZAI GWENDOLINE JARAVAZA |
Thirds Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 18 April 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 4 July 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 27 March 2012, to affirm the decision of the respondent Minister’s delegate (“the delegate”) to refuse the grant of Employer Nominated (Residence) (Class BW) visas to the applicants.
Background
The applicants are citizens of Zimbabwe (Court Book – “CB” – CB 4). The first named applicant, Mr V S Jaravaza (“the applicant”), was born on 27 October 1944 and is a medical practitioner who, at the relevant times, practiced (and continues to practice) in rural/regional Queensland (CB 1 and CB 5). The second and third named applicants are his wife and daughter (“the applicant’s wife” and “the applicant’s daughter”) (CB 8 and CB 13).
On 30 September 2008, the applicant applied for an Employer Nominated (Residence) (Class BW) visa (CB 1 to CB 43 including attachments). The applicant’s wife and daughter were included in that application as members of the applicant’s family group (CB 15 to CB 16).
There are two subclasses of that visa (cl.1114(4) of Sch.1 to the Migration Regulations 1994 (Cth)) (“the Regulations”). The applicant applied for subclass 857 (Regional Sponsored Migration Scheme) (CB 3) and, therefore, was required to satisfy the criteria in cl.857.213(b) of Sch.2 of the Regulations.
On 22 October 2009, a delegate of the respondent Minister refused the grant of the visa to the applicant on the basis that the applicant did not satisfy cl.857.213(c) (CB 225 to CB 232). The applicant applied to the Tribunal for review of that decision and, on 8 July 2010, the Tribunal remitted the matter with a direction that the applicant did meet cl.857.213(c) (CB 235 to CB 243)
On 22 July 2011 the delegate refused the application on the basis that the applicant did not satisfy cl.857.213(b) of Sch.2 to the Regulations (CB 387 to CB 393). In particular, that the applicant was over 45 years of age at the time of making his application and the delegate had found that exceptional circumstances for the grant of the visa did not exist as required by that criterion (CB 389.6).
The Tribunal
On 2 August 2011 the applicants applied to the Tribunal for review of the delegate’s decision (CB 394 to CB 400). On 27 February 2012 the applicants, and their representatives, attended a hearing before the Tribunal (CB 557). Written submissions were made by the applicants’ representatives both prior to, and following the conclusion of, that hearing (CB 447 to CB 556 and CB 561 to CB 566).
On 27 March 2012 the Tribunal affirmed the decision of the Minister’s delegate (CB 570). That is, to refuse the grant of visas to the applicants. The applicants were notified of this decision by letter dated 27 March 2012 (CB 567 to CB 569).
The Tribunal noted that the applicant’s case presented “three major issues” ([15] at CB 573). They were said to be ([15](a) – [15](c) at CB 573):
“a. in respect of the first named applicant it is whether exceptional circumstances apply in respect of the requirement that the first named applicant be under 45 at the time of application: cl.857.213(c)(ii)(A)
b. in respect of the second named applicant, who did not meet the health requirement cl.857.322(2) (see PIC 4007), whether it should be waived and if not, then the issue is [the applicant] meets cl.857.225(1AA)(b), on the basis that if one fails the health criteria, then the family does not meet the criteria in cl.857.225
c.in respect of the third named applicant, who is aged 32 and a law graduate from the University of Melbourne, it is whether she is dependent and therefore member of the family unit. Cl.857.311”
In the decision record, the Tribunal set out cl.857.213(b) ([16] at CB 573 to CB 574) and an extract from the Procedures Advice Manual 3, “Departmental Policy on Exceptional circumstances” (“the policy” or “PAM3”). In particular, and of relevance in the current case, the Tribunal quoted the following from the policy in its decision record (see at CB 574 to CB 575):
“Applicants who are 45 to less than 60 years old
Delegates should consider the following:
● the position meets the requirements outlined in section 17 Exceptional circumstances and
● the applicant demonstrating that they are suitable for the nominated appointment despite not satisfying the benchmark age requirement.
Applicants who are over 60 years or older
If the applicant is 60 years or older, exceptional circumstances should not be considered unless the applicant has unusual or highly specialised skills and experience that will provide great economic benefit to Australia, such as the development of major resource projects with potentially significant tax revenue, or enhances Australia’s national interests.
The applicant’s skill set should be uniquely suited to perform the duties of the position, that is, they possess skills and experiences which no, or few, other people possess. An applicant’s knowledge of a product, production process, industry or geographical region is not, in itself, sufficient evidence that the applicant is uniquely suited to perform the duties of the position.
The applicant will need to provide evidence supporting their request for consideration of exceptional circumstances. There should also be letters of support from major stakeholders, including ministerial support from Commonwealth/state/territory governments.
It is also reasonable to expect that the applicant would be paid a salary at a level which reflects their unusual or highly specialised skills. The salary should be comparable to the salaries of senior executives in the private industry, such as chief executive officers. As a guide, the Productivity Commission released a report on 19 December 2009 on executive remuneration in Australia which noted a salary range of $213 000 to $335 000 for chief executive officers in non ASX 300 companies.
17.2 Assessing exceptional circumstances
The assessment of exceptional circumstances has two aspects
● whether the nominated position is critical to the employers operations and or requires specialised skills and
● why the applicant is the most suitable (or only candidate) despite not meeting benchmark requirements for age or English language ability.
Claims that employers may make in the context of the nominated position could include how or why
● the nominated position is important to the strategic and financial direction of the business
● the nominated position is necessary to engage new or existing clients in niche or unconventional markets
● the business will suffer financial hardship because the business is entirely dependent on the income generated by the nominated position
● the work duties require specialised or unusual skills
● the nominated position differs to similar positions elsewhere in Australia and within the industry.
Claims that the applicant/employer may make in the context of the suitability of the applicant for the nominated position may include
● how/why the applicant’s skills/qualifications are particularly suited to the nominated position
● how/why the applicant’s skills/qualifications are unusual or different to skills/qualifications of other persons in the occupation or similar occupations
● why the employer has been unable to find a person with relevant skills/qualifications who also meets the benchmark requirements for age/English language ability (as the case may be).
Where exceptional circumstances are assessed in the context of age, the applicant must demonstrate why they should be considered suitable for the nominated appointment despite not satisfying the benchmark age requirement.
Where exceptional circumstances are assessed in the context of English language ability, the applicant must demonstrate how they are able to perform the functions of the nominated occupation, despite not satisfying the benchmark English language requirements.”
The Tribunal subsequently noted that the policy “…provides guidelines on the consideration of exceptional circumstances with respect to the age requirement” ([87] at CB 590). Further, that while it had “taken these into account” the Tribunal was “mindful” that they were “only a guide” and that it “must consider all of the circumstances of the case” ([87] at CB 590).
While the Tribunal accepted that the applicant worked “in an area of need” ([90] at CB 590), it did not consider that that amounted to an exceptional circumstance “such that the age requirement should not apply” ([90] at CB 590). Further, that the district the applicant worked in was not a “district workforce shortage area” ([91] at CB 590).
The Tribunal did not accept that ([92] at CB 591):
“the locality of the applicant’s position is critical or the difficulties in recruitment generally in the area constitute exceptional circumstances with respect to the applicant’s age”
The Tribunal was also not satisfied that the “applicant’s services are critical, highly valued or that they are highly specialised” ([93] at CB 591).
Ultimately, the Tribunal concluded that it was ([98] at CB 592):
“…not satisfied the circumstances in the applicant’s case with respect to age constitute exceptional circumstances as there is no evidence that the applicant would be able to practice both in terms of his registration as FRAGCP [Fellowship of the Royal Australian College of General Practitioners] or that he would be eligible for a Medicare provider number once he became a permanent resident or even if he could practice, that his skills are highly skilled or critical or unusual or provide great economic benefit to Australia.”
In coming to this conclusion the Tribunal was said to have had “regard” to the fact that ([99] at CB 592):
“…the applicant has spent considerable years practicing as a doctor in Gin Gin, an area of need, and has continued to practice in his 60s and wants to continue into his 80s and employs staff.”
While the Tribunal gave those factors “some weight in assessing whether there are exceptional circumstances” ([99] at CB 592) it concluded that “on balance” it was not satisfied that there were exceptional circumstances. In particular that ([99] at CB 592):
“…the area has above the average for access to medical services, there was no evidence of community support or testimonials and without full unrestricted registration he would not be entitled to a Medicare provider number and therefore he could not practice or make a contribution or even if he could practice, that his skills are highly skilled or critical or unusual or provide great economic benefit to Australia.”
In relation to the two other “major issues” that the Tribunal had noted at the beginning of its decision record ([15] at CB 573), the Tribunal did not give further consideration to the applicant’s wife’s health in light of its finding that the applicant did not satisfy the requirements of cl.857.213 ([101] at CB 593). With respect to the claimed dependency of the applicant’s daughter, the Tribunal did not accept that she was dependent and, therefore, concluded that she was “not a member of the family unit as defined in r.1.12 of the Regulations” ([102] at CB 593 to [103] at CB 594).
The Application to the Court
The grounds of the amended application to the Court that were ultimately pressed by the applicants are as follows:
“1. The Tribunal committed jurisdictional error by having regard to irrelevant considerations and / or impermissibly fettering its discretion by the application of policy, namely the Minister’s Department’s policy (“Departmental Policy”) on clause 857.213(b)(ii)(A) of the schedule 2 to the Migration Regulations 1994 (Cth) (“Clause 857.213(b)(ii)(A)”).
Particulars
a. Visa applicants aged 45 years or more will satisfy Clause 857.213(b)(ii)(A) if ‘exceptional circumstances apply’
b. Department’s Policy regarding assessment of whether ‘exceptional circumstances apply’ provides one set of considerations for visa applicants ‘who are 45 to less than 60 years old’ and another set of considerations for visa applicants ‘who are 60 years or older’.
c. In this way Departmental Policy is unlawful by reason of non-compliance with Clause 857.213(b)(ii)(A).
2. Tribunal committed jurisdictional error by asking itself the wrong question.
Particulars
a. The Tribunal asked itself whether the applicant satisfied the Departmental Policy insofar as it applied to applicants ‘who are 60 years or older’ and did not ask itself whether the applicant’s circumstances were exceptional despite the purported requirements of that part of the Departmental Policy.
3. The Tribunal committed jurisdictional error or, alternatively, acted unlawfully, by discriminating against the first applicant on the ground of his age in the performance of its functions, the exercise of its powers or the fulfilment of its responsibilities, within the meaning of s.31(1) of the Age Discrimination Act 2004 (Cth).”
Relevant Legislation
At the time of application and relevant to the current consideration, the criteria to be satisfied included cl.857.213(b) of the Regulations, which requires that:
“(b) the applicant
(i)in the case of an applicant who is taken, under regulation 2.08CA or 2.08CB, to have applied for an Employer Nomination (Residence) (Class BW) visa:
(A) had not turned 45 at the time of the application for a Skilled — New Zealand Citizen (Residence) (Class DB) or Skilled — Independent Overseas Student (Residence) (Class DD) visa; and
(B) has vocational English; and
(C) has a diploma (within the meaning of subregulation 2.26A (6)), or a higher qualification, that is, unless the appointment is exceptional, relevant to that appointment; or
(ia)if the applicant is mentioned in subparagraph 1114A (2) (a) (iii) or (iv) of Schedule 1:
(A) the applicant was less than 45 at the time of the application for a Skilled (Residence) (Class VB) visa or a Skilled (Migrant) (Class VE) visa; and
(B) the applicant has competent English; and
(C) the applicant has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification that is, unless the appointment is exceptional, relevant to the appointment; or
(ii) in any other case:
(A) unless exceptional circumstances apply, has not turned 45; and
(B) unless exceptional circumstances apply, has functional English; and
(C)unless exceptional circumstances apply, has a diploma (within the meaning of subregulation 2.26A (6)) or a higher qualification, that is relevant to the appointment;”
Further, s.31 of the Age Discrimination Act 2004 (Cth) (“the ADA”) is in the following terms:
“Administration of Commonwealth laws and programs
(1) It is unlawful for a person who:
(a) performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program; or
(b) has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;
to discriminate against another person on the ground of the other person's age in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
Definition
(2) In this section:
"Commonwealth program" means a program conducted by or on behalf of the Commonwealth Government.”
[Emphasis in the original.]
Section 43(1) of the ADA is in the following terms:
“(1) This Part does not make unlawful anything done by a person in relation to the administration of:
(a) the Migration Act 1958 ; or
(b) the Immigration (Guardianship of Children) Act 1946; or
(c) a regulation or any other instrument made under either of those Acts.”
Before the Court
At the final hearing, Mr. S. Lloyd of senior counsel, with Mr. J. King of counsel, appeared for the applicants. Mr. G. Kennett of senior counsel, with Ms. A. Mitchelmore of counsel, appeared for the first respondent.
The Court had before it the Court Book and written submissions filed on behalf of both parties. [I note that subsequent to the filing of written submissions, the applicants’ legal representatives provided an amended copy of the written submissions to the Court. Regard has been had to those submissions.]
In addition, the applicants sought leave to read and rely on:
1)The affidavit of Sarah Suh-Hee Choe, a solicitor in the employment of the applicants’ solicitors, affirmed on 4 July 2012, which annexed a copy of the PAM3 as at the date of the Tribunal’s decision (annexure “A”) and at the date that the applicants’ lodged the visa application (annexure “B”) (the “first affidavit of Ms Choe”).
2)The affidavit of Sarah Suh-Hee Choe, affirmed on 13 February 2013, which annexed a “Notice of Termination” issued by the Australian Human Rights Commission in response to a complaint filed by the applicant against the first and second respondents (the “second affidavit of Ms Choe”).
These were admitted with no objection by the Minister.
Grounds One and Two: The Policy and the Regulations
Submissions: The Applicants
Before the Court the applicants submitted that grounds one and two of the amended application were “closely related”. As a result, in oral submissions, the applicants addressed the grounds together.
The applicants submitted that the policy (as expressed in PAM3) imposed an additional “test” for individuals who are 60 years of age or over. That is, that while cl.857.213(b) simply required that “exceptional circumstances” needed to apply for individuals who had “turned 45” to be granted the visa, the policy imposed an additional, and stricter, requirement on those who were 60 years of age or older. That is, the policy propounded a different “definition” of “exceptional circumstances” for those aged 60 years or over to those aged 45 years to under 60 years.
It is of note that there is no definition of “exceptional circumstances” in the Act or the Regulations. However, under the heading “Defining Exceptional circumstances” ([17.1] of the policy at annexure “A” to Ms Choe’s first affidavit), the policy provided that exceptional circumstances:
“…should relate to the applicant’s personal circumstances that are relevant to the nominated position and which are out of the ordinary, unusual, special or uncommon. Exceptional circumstances do no need to be unique, unprecedented or rare, but it cannot be regularly, routinely or normally encountered.”
Despite that statement, under the heading “Assessing exceptional circumstances for age” ([15.1] of the policy at annexure “A” to Ms Choe’s affidavit), the policy provided that:
“If the applicant is 60 years or older, exceptional circumstances should not be considered unless the applicant has unusual or highly specialised skills and experience that will provide great economic benefit….the applicant’s skill set should be uniquely suited to perform the duties of the position…they possess skills and experience which no, or few other people possess…the applicant is uniquely suited to perform the duties of the position…”
The applicants contended that, from those passages, it was clear that the policy “set up” a different meaning of exceptional circumstances for those who were 60 years or older, to those who were aged 45 to less than 60 years. The applicants submitted that the policy, therefore, was inconsistent with the Regulations and, as a result, the policy was unlawful. Further, because the policy was unlawful, the Tribunal had no “authority to consider it” or, alternatively, the Tribunal “erred in wrongly thinking that it was bound to consider the policy” (ground one of the amended application).
Further the applicants contended that, as a result of having regard to the inconsistent policy, the Tribunal asked itself the wrong question (ground two of the amended application). While the Tribunal had noted that the policy was a “guide”, the applicants submitted that the Tribunal’s decision record did not disclose that the Tribunal had considered whether exceptional circumstances applied to the applicant other than in accordance with the policy. That is, that there was “no independent consideration of the meaning of the words ‘exceptional circumstances’” ([23] of the applicants’ written submissions).
In support of both grounds, before the Court, the applicants referred to the decision of Hely J in Applicant S 214 of 2012vAttorney-Generalof Australia [2004] FCA 1635 (“S124/2012”). In particular, the “applicable legal principles” referred to by his Honour at [15] – [18] and his Honour’s consideration at [28] – [38].
While S214/2012 was concerned with an Administrative Appeal Tribunal (“AAT”) decision in relation to a delegate of the respondent Minister, and the meaning of “hardship”, it was said to be instructive in the current case. In particular, the applicants relied on his Honour’s statement at [16] (with reference to Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 420; Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 at 492-493; Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 506-507) that:
“A decision maker…is entitled to adopt a policy to provide guidance…provided the policy is consistent with the statutory provision, does not truncate or confine the discretion by inflexible policy which prevents the decision-maker from considering the merits of individual cases, or prevents an applicant from putting forward reasons why the policy should be changed or not applied in the circumstances of a particular case…”
The applicants submitted that, in the current case, the “qualifications” set out by his Honour in [16] were not met. In particular, that the policy was inconsistent with the Regulations and “truncate[d] or confine[d]” the Regulations.
Further, the applicants submitted that, as in S214/2012, the Tribunal’s “…decision was so much shaped by the [policy] that relevant matters falling outside the [policy] were not taken into account…” (S214/2012 at [34]). This was said to be revealed by the Tribunal’s use of phrases from the policy in its findings expressed in its decision record. In particular, and for example, the Tribunal’s finding at [93] (at CB 591) that it was “…not satisfied that the applicant’s services are critical, highly valued or that they are highly specialised”. Although the Tribunal had utilised the language of the Regulations in some of its conclusions, with reference to S214/2012 at [35], that was said not to “save” the decision.
Before the Court, note was also made by the applicants that the Tribunal had considered whether each of the factors in the applicants’ case constituted exceptional circumstances, as opposed to considering whether, in their totality, the applicant’s circumstances reached the level of exceptional circumstances.
Submissions: The First Respondent
The Minister’s position was that the policy was not inconsistent with the Act or the Regulations. While “exceptional” means “unusual” or “out of the ordinary” the Minister submitted that it was “necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context” (with reliance on An v Minster for Immigration and Citizenship (2007) (“An”) 160 FCR 480 at [7] per Lindgren J. Noting that Emmett J at [100] and Finkelstein J, who dissented, at [114] also agreed that “exceptional” must be determined in the regulatory context (although Finkelstein J was “hesitant to hold” that it was impermissible to have regard to the characteristics of the applicant)).
In the current case and given the subclass of visa that it qualified, the Minister submitted that “exceptional circumstances” meant “circumstances which justify or are relevant to making an exception” to the age limit of 45 years old. That is, that the visa the applicant had applied for was for skilled workers who were nominated by an employer located in regional, remote or low population areas of Australia and that, if the visa was granted, the individual would be entitled to Medicare and social security payments.
In that context, the Minister submitted that “exceptional circumstances” would involve consideration of the nature of the employer’s business, its location and the availability of alternate employees. Further, the potential for the applicant to make a contribution to the community and the economy beyond the age of 45 years ([14] of the Minister’s written submissions).
In that context, the Minister submitted that there was no reason why the Tribunal, in applying the criterion, should not take the view that more is needed to justify the exception to the age limit for someone who is significantly over the age of 45. Particularly as individuals were eligible to receive aged pensions from the age of 65.
In that way, the policy was said not to be inconsistent as it merely indicated that, for applicants aged 60 years or over, “something more is required” ([16] of the Minister’s written submissions). That is, someone with a limited working life in which they could make a contribution to the community and the economy and who would shortly be eligible for an aged pension.
In answer to why a “line” had been drawn at 60 years, as opposed to having a “sliding scale” in relation to age, the Minister submitted that the policy was a “blunt instrument” and that the “line” was simply a way of administratively implementing a policy that made distinctions based on the age of the applicant.
With respect to the statement in the policy that, where an applicant is aged 60 years or over, “exceptional circumstances should not be considered…”, the Minister submitted that that was “an unhappy piece of language” and should not be read as meaning that “exceptional circumstances should not be accepted as present”. Rather, the guidelines “encouraged” a particular approach to applicants who were 60 years or over.
In light of the above, the Minister submitted that the Tribunal had not erred in having regard to the policy and the policy was not inconsistent with the Regulations.
Further, and in any event, the Minister submitted that the Tribunal had not “simply” applied the policy. Rather, the Tribunal acknowledged that the policy was only a “guide” and proceeded to consider all of the applicant’s circumstances. That is, the Tribunal did not restrict its consideration to only those matters referred to in the policy as being relevant to individuals aged 60 years or over.
In those circumstances, to the extent that the policy could be criticised for drawing an “arbitrary line” at 60 years of age, it could not be said that the Tribunal had applied any such “bright line”.
In relation to ground two of the amended application, the Minister submitted that the ground could not be made out on a fair reading of the Tribunal’s decision record. In particular, that the decision record revealed that the Tribunal had regard to all of the applicant’s circumstances and that it had considered, and weighed, those factors before concluding that there were no exceptional circumstances ([21] of the Minister’s written submissions).
Further, that contrary to the applicants’ submission, the “phraseology” used in the Tribunal’s decision record did not indicate that the Tribunal had applied the wrong test. First, the references to the applicant’s age when the Tribunal was determining whether various circumstances constituted exceptional circumstances was said to simply be the Tribunal “locating the assessment of exceptional circumstances in the correct regulatory context”.
Further, the Minister submitted that, contrary to the applicant’s submissions, the Tribunal’s use of phrases such as “critical”, “highly valued” and “highly specialised” (with reference to [93] at CB 591) did not reveal that the Tribunal was considering the policy document. In particular, that while “highly specialised” was referred to under [15.1] of the policy (that section relating to applicants 60 years and older), “critical” was referred to under [17.1] (which applied to all applicants) and “highly valued” was not present, at least, in [15.1].
In addition, to the extent that the Tribunal “picked up on phrasing” in the policy in relation to “great economic benefit” (with reference to [98] – [99] at CB 592), the Minister submitted that “borrowing a phrase” from the policy document was not enough to show that the Tribunal had merely applied the policy, or limited its consideration to those matters set out in the policy.
With respect to the applicants’ reliance on S214/2012, the Minister simply submitted that that case was an example of the direct application of a principle “in a very different case”.
In response to the applicants’ complaint before the Court that the Tribunal had considered each of the applicant’s circumstances separately, the Minister submitted that that was not a fair characterisation of the process the Tribunal had engaged in. The Tribunal had considered each of the factors separately however, ultimately, the Tribunal weighed all of the factors together and determined that, as a whole, those circumstances did not constitute exceptional circumstances. Further, the Minister submitted that the consideration of each of the applicant’s circumstances on their own, and given that they were ultimately considered as a whole, was not erroneous.
Grounds One and Two: Consideration
Grounds one and two raise two issues. First, is the policy relevant to the criterion for the visa at the core of the Tribunal’s decision and, as expressed in the relevant part of PAM 3, even in part, outside the scope established by the relevant criterion (cl.857.213(b))? Second, notwithstanding the answer to the first issue, did the Tribunal confine its assessment to the parameters established by the Regulations or did it go beyond?
For the reasons that follow, I am of the view, on balance, that the answer to both questions is in the affirmative and that the applicants’ first two grounds are made out.
The relevant regulatory scheme is as follows. To be granted the visa an applicant must, amongst other matters, be under the age of 45 years. If he or she is 45 years or over the visa must be granted if exceptional circumstances apply.
The other matters (for example, whether the applicant has functional English and a diploma or higher qualification) need not concern us in the current proceedings. Importantly, the applicant was over 45 years old at the relevant time. He was aged 63 years at the time of the application for the visa and 67 years of age at the time of the Tribunal’s decision.
In Xiu Zhen v Minister for Immigration & Anor [2009] FMCA 1142, a case also involving a charge of inconsistency between regulatory prescription and policy expression, I referred to the nature of PAM3 and the concept of policy (see [91] – [97], [103] – [104] and
[141] – [143] for the difficulty faced by the relevant Tribunal members (and for that matter, the Minister’s delegates) in relying on the authors of PAM3 to understand the relevant regulatory provisions in respect of which they purport to give “advice”).
A similar difficulty arises in the current case. The Regulations, through the relevant clauses, plainly establish a more favourable regime for those applicants who have not attained 45 years of age than those who have. For an applicant who has “turned” 45 years old to satisfy the relevant criteria for this visa, there is an additional requirement that the applicant must satisfy the decision maker, amongst other things, that exceptional circumstances apply in his or her case.
As the applicant submits, there is no definition of “exceptional circumstances” in the Regulations or the Act. This concept is however described in the PAM3 at [17.1]. Noting that this policy document purports to “define” that phrase (see annexure “F” to the first affidavit of Ms Choe at pg.4: “17.1 Defining Exceptional Circumstances”):
“Exceptional circumstances are not defined in the Act or Regulations, and delegates must therefore consider the term in common usage. Under policy, exceptional circumstances should relate to the applicant’s personal circumstances that are relevant to the nominated position and which are out of the ordinary, unusual, special or uncommon. Exceptional circumstances do not need to be unique, unprecedented or rare, but it cannot be regularly, routinely or normally encountered.”
However, the difficulty for the Minister in these proceedings (and the Tribunal) arises just prior to this part of the policy under the heading “15.1 Assessing exceptional circumstances for age” and in particular the subheading: “Applicants who are 45 to less than 60 years or older” (see at pg.3-4 to annexure “A” to the first affidavit of Ms Choe).
The mere inclusion of these headings creating a distinction between those aged 45 to less than 60 year and those aged 60 years or over is cause for suspicion. There is nothing in the Regulations or the Act to support, let alone give licence, to such a distinction.
The Minister submitted that having regard to the interest, and circumstance, of an age limit being imposed on this class of visa and the nature of the visa (a skilled worker nominated by an employer to work in regional, remote or low population growth areas of Australia), then an applicant’s age was relevant to the assessment of circumstances relating to such matters as the employer’s business, location, the quality of workers, the applicant’s skills and the applicant’s potential to make a contribution to the community. That may be allowed.
However, the distinction in the expression of the policy between those under 60 years and 60 years and over can only serve to distract attention away from the assessment of the actual circumstances relevant in each case (as required by the Regulations), as opposed to creating some different direction and expectation as between two different age groups. A distinction which the regulatory clause makes relevant to under 45 years and 45 years and over, not any other specific age range.
The difficulty with the Minister’s position can also be seen with the submission that it is consistent with the rationale behind the imposition of an age limit (the 45 year age limit), that the matter of “exceptional circumstances” may require more from an applicant aged, say between 60 and 70 years, than one who is aged under 45 years or even 45 years to under 60 years. On this particular point, I agree with the Minister that the assessment of the context of “exceptional circumstance” in any individual case may be informed by the number of years by which an applicant is over the age of 45 years. However, the distinction is that it may inform, not necessarily that it will always be informative. Whether it is or not depends on the individual circumstances presented by each individual case. That is, within the scope of the relevant matters set out in the Regulations (with reference to An, see at [38] above).
The Minister agrees with the applicants that, in the absence of a regulatory definition of that phrase, the ordinary meaning of that phrase should be given a “broad and flexible operation” (with reference to Howard v Minister for Immigration & Anor [2012] FMCA 547 (“Howard”) at [18] per Smith FM).
However, the problem for the Minister in the current case is that the policy prescription in PAM3, with its clear distinction between 45 years to less than 60 years and 60 years and over, militates against that very flexibility that the Minister says should apply.
I do not, respectfully, comprehend what Smith FM said in Howard to give license to excuse anything put in the relevant policy expression (that is, in the current case, PAM3) simply on the basis of flexibility of application and a “broad” approach. Rather, I understand, and agree with the applicants’ reference to Howard, as making the point that the policy expression cannot seek to inflexibly and narrowly explain the Regulations or, in this case, the particular relevant clause in a way not available when plain regard is had to the language of the Regulations.
The clause in the Regulations makes no distinction between under and over 60 years. The Minister’s argument that something more may be required from someone over 60 years may be the case in some circumstances. However, it should not be thought of as having a universal application. There may be some cases where 50, 60, 65 or 70 years of age makes no difference. The regulatory context only distinguishes between under and over 45 years.
It may be that age, with an individual’s greater experience, may be a “positive” rather than “negative” factor in assessing exceptional circumstances in certain cases. For example, teaching with its emphasis on cerebral qualities and experience of a certain type would be different to, say, operating heavy mining equipment where physical endurance may be a factor. Therefore, it is conceivable that in some circumstances, say a general medical practitioner, something more may not be required of a 60 to 70 year old than of a 45 to 60 year old.
The point is that fixing a particular age as the “cut off” point, without regulatory expression for it, leaves the policy beyond the scope of the Regulations.
If what was intended by PAM3 was to say that, in certain circumstances, the greater the age (from the starting point of 45 years) may be a factor that needs to be taken into account in assessing “exceptional circumstances” (the reference to the “sliding scale”) then the policy could have said that. Any plain reading of the relevant part of PAM3 reveals that it does not.
The Minister argued before the Court that the policy was simply a “blunt instrument” drawing attention to the need to consider the gradations of age and its impact on exceptional circumstances. The Minister is correct to say that this is a “blunt instrument”. However, rather than explaining its appropriate use in the policy document it exposes the divergence between the Regulations and the policy statement. If what the drafters of PAM3 meant to say was as the Minister now submits, then the question arises why this language was not used.
In my view, it is not consistent with the rationale behind the imposition of an age limit for at least two reasons. First, once the age “limit” of 45 years is reached, the actual age of the applicant is only relevant to the circumstances of the individual application. For example, as referred to above, the impact of a particular applicant’s age depends on a number of factors set out in the Regulations, including the actual position which is the subject of the nomination and the like.
Second, I do not agree with the first respondent that “all PAM3 does” is to take “alternative or additional” requirements into account the further an applicant is from age 45 years. Although, given the above, even that is problematic as the Regulations give no such license in the way the Minister submits.
It must be said that it is difficult to see the basis for the Minister’s submissions here, let alone accept them, that even in the absence of PAM3 a decision maker who followed the approach expressed in the policy could not be said to have proceeded inconsistently with the Regulations. That would only be the case if the relevant decision maker looked at whatever age the applicant was (at 45 years or older) in the circumstances presented by that case. Not to impose a further limitation at 60 years or older.
If the basis of the submission is that the policy does no more than give guidance to implementing the regulatory regime, then that must be rejected. The policy creates, as the applicant submits, a different test, or “standard”, as to what is relevant to the assessment of exceptional circumstances for two different cohorts of ages from 45 years which does not derive from the Regulations.
While there is plainly a significant overlap in the language used to describe the elements relevant to the assessment of exceptional circumstances for those in the two cohorts (45 years to under 60 years and 60 year or over) set out in the policy, important distinctions remain which render the relevant elements sufficiently different to support the applicant’s contention that two separate “tests” are set out.
For example, while the 45 years to under 60 years cohort is expected to show “specialised or unusual skills” the 60 years or over cohort is said to not be worthy of consideration unless he or she has “highly specialised skills” or is “particularly suited” to the nominated employment. Further, while the 45 years to under 60 years cohort is expected to be the “most suitable (or only) candidate” the 60 years and over cohort has no leeway of being the “most suitable” and must be “uniquely suited”.
The policy also provides for an expectation in relation to those 60 years and over that the salary level offered in relation to the position is “at a level which reflects their unusual or highly specialised skills”. There is no such expectation for those aged 45 years to less than 60 years. Nor is there any mention of needing to look at salary level at all in relation to the 45 years to less than 60 years cohort.
Finally, and importantly, the policy sets a different standard, or burden, in the assessment of exceptional circumstances for the two cohorts. In relation to the 60 years or older, the starting point for consideration is said to be that exceptional circumstances “should not be considered” unless certain stated elements are found to be present. There is no such expectation, or standard, in relation to the 45 years to less than 60 years cohort. I agree with the Minister that this statement is “an unhappy piece of language” (see [44] above). But the “unhappiness” for the Minister is that it plainly directs the decision maker to adopt a different starting point in his or her analysis with the 60 years and over cohort to that said to be relevant to the 45 years to under 60 years cohort.
In making this distinction between the two cohorts, the policy is inconsistent with the scheme of the Regulations. As it stands, the policy “expression” has no license from the Regulations to be expressed in the way that it is. It is, in that sense, that I understood the applicants’ submission that the policy was “unlawful”. That is, it is inconsistent with, or outside the scope of, the Regulations.
The two grounds however also assert error on the part of the Tribunal, not only the assertion as to the inconsistency of the policy with the Regulations. In this sense, regard must be had to what the Tribunal has actually done in relation to the consideration of “exceptional circumstances” under the Regulations.
The applicants’ ground two complains that the Tribunal asked itself the wrong question and therefore fell into jurisdictional error. The Minister understood the complaint to be that the Tribunal’s reasons “did not disclose any consideration of whether exceptional circumstances applied to the first applicant other than according to policy” (first respondent’s submissions at [20] and the applicants’ submissions at [21]).
The Minister says that this is not a fair reading of the Tribunal’s decision record because the Tribunal made reference in its consideration to matters other than those for which the policy (as expressed in PAM3) provided in relation to those aged 60 years and over.
There are a number of elements that arise for immediate consideration from the respective submissions as to the nature of the applicants’ attack.
First, the applicants appear to argue that the Tribunal confined itself to the matters raised in the policy (that is, the entirety of the relevant policy, both over and under 60 years) and did not independently consider the meaning of the words “exceptional circumstances”. It was to this that the Minister responded that the Tribunal did have regard to factors not raised in the policy statement relating to 60 years and over.
However, in oral submissions it became clear that the applicants’ attack derived from the distinction drawn in the policy statement between those aged 60 years or over and those aged 45 years to under 60 years. A distinction not available under the Regulations in the way expressed in the policy (see above). The attack therefore was directed, ultimately, to the Tribunal’s approach in having regard, amongst other things, to what was also said in the policy statement relating only to those aged 60 years and over.
I agree with the applicants that where the Tribunal fell into jurisdictional error was that it took into account parts of the policy statement said to be applicable to those aged 60 years or over in such a way not available under the Regulations. The applicants’ attack that the Tribunal gave no independent consideration to the matter of exceptional circumstances can be understood as that the Tribunal followed, and applied, in part, some aspects of the “60 years and over policy” without questioning whether that was appropriate, or available, in the applicant’s individual circumstances.
It is true that the Tribunal stated in its analysis that the PAM3 guidelines were “a guide only, and the Tribunal is mindful that it must consider all of the circumstances of the case” ([87] at CB 590).
However, the problem for the Tribunal is as follows. First, having regard to the language used, and the matters considered, it did not confine itself to that part of the policy relating to those under 60 years, but considered and applied, in part, the policy as it was said to relate to those aged 60 years and over. Second, it did not consider that, notwithstanding the applicant’s age (over 60 years), whether that part of the policy should be applied to the applicant. In that sense, at least, notwithstanding its protestation to the contrary, the Tribunal did not consider “all of the circumstances of the case” in the way envisaged in the Regulations ([87] at CB 590).
This can particularly be seen in the Tribunal’s analysis as follows. First, the reference to the applicant’s services not being, amongst other things, “highly specialised” ([93] at CB 591). Second, it did not accept that the applicant was “highly skilled or had specialised skills” ([94] at CB 591). This is the language and “test” imposed by the “60 years and over policy” rather than “unusual” or “different skills” or simply “specialised”, expressed in the “45 years to under 60 years policy”.
Third, the Tribunal was not satisfied that the applicant’s skills or experience were “strongly supported, or valued or required by the community” ([93] at CB 591). The notion of support for the applicant’s skills and experience is not found in the part of the policy dealing with the assessment of exceptional circumstances generally. It is to be found however with that part dealing with applicants who are 60 years or older (see annexure “A” to the first affidavit of Ms Choe at pg.4.4). Here the policy provides that applicants “will need to provide evidence supporting their request for consideration of exceptional circumstances”. This support is said to be required in the form of “letters from major stakeholders”. The Tribunal’s analysis at [93] (at CB 591) is concerned with such matters.
On a fair reading of the Tribunal’s analysis, it is, in my view, the case that the Tribunal approached the question of the consideration of exceptional circumstances, at least in part, influenced by, and applying, matters which the policy document said applied only to those aged 60 years and over.
As set out above, the policy created an arbitrary distinction between those aged 45 years to under 60 years and those aged 60 years and over. If the intention was to guide decision makers to take into account matters which may be relevant as an applicant becomes older, then that is not what the policy statement does. Nor, importantly, can it be said that the Tribunal approached its task in this way. Instead of being guided in its consideration by the actual circumstances presented, it applied policy prescriptions in such a way that was beyond what is provided for in the Regulations.
On this basis the applicants’ first and second grounds are made out and I can see no reason to deny them the relief they seek. I will make orders accordingly.
Postscript to Grounds One and Two
In Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J (as he then was, President of the AAT) said that consistency in administrative decision making is a desirable outcome. To the extent that PAM3 is designed to assist in achieving that objective then it serves a worthwhile purpose.
However, its value in this regard can only be measured with the care taken by its authors to ensure consistency with relevant statutory and regulatory prescriptions and requirements. For the relevant administrative decision makers (the Migration Review Tribunal and the Minister’s delegates) the policy cannot have an existence or life of its own beyond that of the Regulations.
The procedures in respect of which it purports to give advice are procedures that flow from, and properly can have meaning only in, the relevant statutory or regulatory context. If, as in this case, the procedures advice, or policy expressed in PAM3 deviates from, or is misleading as to, the scope and meaning of the relevant regulatory scheme then it is of no, or even negative, value to decision makers.
While obviously decision makers can have regard to the policy, the starting and end points in any consideration must be the Act and, as in this case, the relevant Regulations. After all, and ultimately, administrative decision makers are compelled to make lawful decisions, not necessarily decisions consistent with the bidding of the Minister’s policy.
In a real sense, this sits at the core of what is meant by the independence of the Tribunal. That is, as between the Minister’s “guidance”, or statutory or regulatory prescription, it is to the latter that the Tribunal must look. If to the former, where the two are in conflict, then this can only give rise to an apprehension of interference in the integrity of the independent decision making process.
Ground Three: Age Discrimination
Submissions: The Applicants
Section 31 of the ADA makes it unlawful for a person to discriminate against another person on the basis of age in the exercise of any power under a Commonwealth law, such as the Act (see [21] above). However, s.43(1) of the ADA excludes “anything” that is done “in relation to the administration of” the Act or a regulation or instrument made under the Act, such as the Regulations.
The applicants submitted that the policy was not a regulation or an instrument made under the Act. Further, that the term “in relation to the administration of” the Act, needed to be construed narrowly.
With reference to the Explanatory Memorandum to the ADA, the applicants submitted that while it was necessary in the Act to have some age restrictions with respect to skilled migration, that any age discrimination was to be limited to “age discrimination that occurs in compliance with” the Act or the Regulations” ([28] of the applicants’ written submissions). While cl.857.213(b)(ii)(A) authorised age discrimination on the basis of whether an individual was over 45 years of age, it did not (and neither did the Act) authorise any age discrimination based on whether an applicant was aged 60 or older. In these circumstances, the applicants alleged that the age discrimination was occasioned by the Tribunal in contravention of s.31(1) of the ADA.
Submissions: The First Respondent
The Minister’s position was that the phrase “in relation to” in s.43(1) of the ADA was a “broad connecting expression” and that the exception could not be confined to actions “required” by the Act or the Regulations ([22] of the Minister’s written submissions). That is, s.43(1) was broader than the construction advanced by the applicants.
Further, that the Tribunal considered a broad range of matters in considering whether exceptional circumstances exist and, as such, the Tribunal’s conclusion was the product of it acting “in relation to” the administration of the Act and the Regulations (see, for example, [23] of the Minister’s written submissions).
Ground Three: Consideration
There was no argument between the parties that the Tribunal was entitled, given the relevant regulatory provision to the Act, to apply a discriminatory approach in relation to the applicant’s age to the extent that he was over, and not under, 45 years.
However, a distinction must be drawn between the questions of whether the policy discriminated on the basis of age as between those 45 years to under 60 years of age and those aged 60 years or over and whether the Tribunal acted in such a way as to contravene s.31 of the ADA and not fall within the exclusion to be found in s.43(1) of the ADA.
Having regard to the elements in s.43(1) of the ADA there was no submission from the applicants that the Tribunal, as constituted by a Tribunal member, did not come within the description of “person” as referred to in s.31 and s.43(1) of the ADA. Nor is the answer to the issue posed by the applicants to be found by having regard only to the policy. The policy here was not, as the applicants otherwise correctly submit, part of the Act or Regulations or instrument made under the Act such as to fall within the exception from s.31 set out at s.43(1)(a) or (b) or (c) of the ADA.
The dispute therefore reduces as to whether the Tribunal acted in a discriminatory fashion in relation to the applicant’s age and is caught by s.31 of the ADA and not excluded by s.43(1). In this regard, the parties agree that the phrase “in relation to the administration”, as it appears in s.43 of the ADA, is important.
They differ however as to how the relationship of that phrase to what surrounds it, or its impact, is to be understood. The applicants say it must be construed narrowly such that the discriminatory conduct of the Tribunal in relation to the applicant’s age (45 years to under 60 years or 60 years and over – not under 45 years or 45 years and over) was not done in compliance with the relevant Regulations..
I agree with the Minister’s submissions as set out at [104] above, the task set for the Tribunal by the relevant Regulations was to consider whether, in the applicant’s circumstances, exceptional circumstances existed such that he must be granted the relevant visa even though he did not satisfy the age requirement otherwise set by the Regulations.
In that context, the subsequent consideration by the Tribunal falls within the description “anything” as it appears in s.43(1) of the ADA. That is, whatever the Tribunal did, the substance of its consideration, is exempt from the operation of s.31 of the ADA by the mere relationship of its conduct to the administration of the relevant Regulations made under the Act. In my view there is a distinction to be drawn between doing “anything” in the sense of “something” in relation to administration of a Regulation made under the Act (relevantly here), and doing “anything” not arising from a, relevantly, regulatory context.
In that light even if the Tribunal acted in a discriminatory fashion (as it has done here), even in a way not authorised by the Regulation (as here), it was still doing something (“anything”) in relation to the administration of the Regulation. It is not the character of the consideration actually done by the Tribunal but it is the description of the conduct that it was engaged in that brings the exemption in s.43(1) of the ADA into play.
In written submissions the applicants referred to the “Explanatory Memorandum” to argue that the exemption in s.43(1) of the ADA was limited to “age discrimination that occurs in compliance with” the Act or the Regulations. This did not ultimately assist the applicants with this ground.
In statutory or regulatory interpretation, attention must first focus on the actual language of the instrument in question. However, regard can be had to extrinsic material to confirm that the meaning of the provision is the ordinary meaning from the text (s.15AB(1)(a) of the Acts Interpretation Act 1901 (Cth)). Regard can also be had to extrinsic material to determine the meaning of a provision where the provision is ambiguous or obscure (s.15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth)) or the ordinary meaning of the text, taking into account the context and underlying purpose of the Act, leads to a result that is manifestly absurd or unreasonable (s.15AB(1)(b)(ii) of the Acts Interpretation Act 1901 (Cth)).
In my view, the language of s.43(1) of the ADA is not ambiguous or necessitating some explanation such as to construe meaning. The Minister’s view, with which I agree, plainly arises from the actual text of the ADA. In all, the applicants have not therefore made out their third ground. The application for declaratory relief should be refused.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 19 April 2013
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