Jia v Minister for Immigration & Anor - [2011] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JIA v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 422

MIGRATION – Alleged jurisdictional error by Migration Review Tribunal – consideration of “exceptional circumstances” in reg.856.213(c)(ii) of the Migration Regulations 1994 – whether Tribunal addressed particular claim made by applicant – whether failure to address claim led to jurisdictional error.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Hatcher v Cohn [2004] FCA 1548
Gaffar v Minister for Immigration and Multicultural Affairs (2000) FCA 293
Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612
Craig v State of South Australia (1995) 184 CLR 163
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant:

WEN SHU JIA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1226 of 2010

Judgment of:

Burchardt FM

Hearing date:

11 May 2011

Date of Last Submission:

11 May 2011

Delivered at:

Melbourne

Delivered on:

16 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr C. Fairfield

Solicitors for the Applicant:

Cornwall Stodart Lawyers

Counsel for the Respondents:

Mr W. Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 30 July 2010.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs in the amount of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1226 of 2010

WEN SHU JIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 30 July 2010. Putting the matter shortly he says that the Tribunal fell into jurisdictional error because it failed to address the applicant’s case as put to the Tribunal. For the reasons that follow, I think that the applicant is right and that he should have the orders that he seeks.

Facts

The facts in this matter are not contentious and what follows is an amalgam of the written submissions of the parties and the reasons for judgment of the Tribunal.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 1 February 2005. He was the holder of a sub-class 457 visa.
He had previously spent a year in Japan where he had obtained a welder’s qualification, although I note that in his account of his experiences he says this was to do with robotics. Following several transient periods of employment, the applicant obtained a job as a welder with a company called Dimal Metal Works, for whom he still works. The company regards the applicant highly as an employee and wishes to keep him. I will return to the reasons why the company wishes to keep him in due course.
On 30 June 2009 the applicant applied for Employer Nomination (Residence) (class BW) sub-class 856 visa. A delegate refused to grant the visa on 16 July 2009. The matter then went to the Tribunal and subsequently to this Court.

The Case on Appeal

Counsel for the applicant expressly abandoned all grounds of appeal save ground number 2 in the original application. That ground asserts (paraphrasing somewhat) that the Tribunal’s decision exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction because:
“(a) it failed to consider issues going directly to the question whether pursuant to cl 856.213(c)(ii) “exceptional circumstances applied” about which it had to be satisfied for the purposes of s.65 and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the applicant’s claim being:
(i)      the fact that the occupation of Welder was on MODL and there was a shortage of qualified tradesmen like welders affecting industries in Australia including that of the nominating employer;
(ii)    the fact that the sponsoring business would suffer seriously given the key role the Applicant played in the business’s productivity having been employed for 4 years in the business and being responsible for a major part of its output as leading welder (and given his 15 years prior expertise and being highly trained);
(iii)   the fact that the Applicant had worked for 4 years in an Australian industrial work-place (without having Vocational English on the Tribunal’s assessment) satisfactorily with no evidence of any problems, in compliance with his contractual obligations and with the complete support of his employer.”
In fact the way the submissions proceeded, really only (ii) of the above was pressed. The applicant submitted that the following matters were made out by the evidence:
a)that the applicant had worked in Australia since 2005;
b)that the applicant had been employed in his current employment since November 2006;
c)that he had over ten years experience as a welder in China;
d)that the employer had had to diversify because of downturns in the economy;
e)that the employer was engaged in making specialised goods;
f)that the applicant was qualified to assist in such work and to perform such work;
g)that the applicant’s employment had enabled the employer to continue in difficult economic times;
h)that the applicant would be hard to replace;
i)that the applicant was a key worker in the business;
j)that the employer could lose staff if the business, which took years to establish, was unable to maintain the applicant in his employment.
No challenge was made to these assertions by counsel for the first respondent and in my view, correctly so. All of the above matters are indeed made out on the materials as they were before the Tribunal.
What counsel for the applicant submitted was that the case put before the Tribunal was simply not addressed. The case that was allegedly not addressed was the effect that the non-continuation of the applicant’s employment would have upon the business.
The first respondent, by way of response, submitted that:
a)it was not imperative for the Tribunal to consider the sort of matters which the applicant now raised because they were not matters required by law to be considered (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [39]-[40] per Mason J).
b)the Tribunal in fact did consider these matters.
The written facts and contentions of the first respondent state at paragraph 29:
“The Tribunal took account of the claim that there was difficulty in finding suitably qualified and experienced welders, with or without vocational English. It also specifically referred to the written submissions in this regard which made reference to the fact that the occupation of welder was on MODL (at [87] and Attachments A, B and C at CB226 - 231). The Tribunal further took account of the claim that the sponsoring business would suffer if the applicant was not granted the visa (at [87] and Attachments A, B and C at CB226 - 231). Finally the Tribunal took account of the applicant’s work history with the sponsor (at [87] and Attachments A, B, C at CB226 - 231).”

The Legislative Framework

Although the Tribunal dealt with various areas of the legislation, both parties have approached this case on the footing that the only relevant or significant part of the legislation is sub-clause 856.213(c)(ii).

That sub-clause requires that “the applicant… unless exceptional circumstances apply, has vocational English”.
The Tribunal found that the applicant did not have vocational English based upon the applicant’s interaction with the Tribunal. That finding was open to the Tribunal and not the subject of serious challenge. The Tribunal considered in some detail what the phrase “exceptional circumstances” might mean and came to the conclusion that exceptional circumstances, for the purposes of this sub-regulation, means that the relevant question is “Are the circumstances relied upon by the applicant exceptional as between the applicant and persons in a comparable position, that is, sub-class 856 visa applicants seeking dispensation from age or language skill requirements for the visa?” (paragraph 63 of the Tribunal’s reasons CB214).
For my part I am not sure that that is necessarily a correct assumption in every set of circumstances. I note that in Hatcher v Cohn [2004] FCA 1548 Kiefel J held at [49] that:
““Exceptional” circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that “special circumstances” need to be “extraordinary and not factors applicable to all defendants facing extradition”.
In my view Kiefel J’s decision in Hatcher v Cohn went no further than giving some examples to the general proposition that generally exceptional circumstances are those circumstances which are unusual or out of the ordinary. What may be unusual or out of the ordinary may well vary according to the particular circumstances in which an individual finds himself. Indeed this construction appears to accord with the thrust of the decision of French J, as his Honour then was, in Gaffar v Minister for Immigration and Multicultural Affairs (2000) FCA 293 at [20].
In the ultimate, however, I do not think that this aspect of the Tribunal’s decision is determinative.

Jurisdictional Error

The Tribunal falls into jurisdictional error if it fails to address at all a relevant matter it is required to consider.
Here the Tribunal set out upon a very thorough analysis of the applicant’s claim as against the PAM3 guidelines which of course are not binding upon it unless it so decides, (Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 AT [15]-[16]).
Indeed if one looks at the structure of the Tribunal’s decision, it is clear that the Tribunal’s initial approach was to examine the applicant against a number of matters which would be included in the PAM3 guidelines such as his ability to communicate with customers, his efforts to improve English, his awareness of workplace rights and the like.
Having done that, the Tribunal set out the legislation and discussed the question as to what exceptional circumstances means.
The Tribunal, having formulated the narrow test to which I have referred above at paragraph 13, and having also formulated a somewhat wider operation of it which would accept that the PAM factors should be treated as ipso facto constituting exceptional circumstances, went on to examine the applicant against both those possible approaches.
In my opinion no criticism can be made of the conclusions the Tribunal reached in respect of all of those matters. The Tribunal’s findings were clearly open to it on the evidence.
The difficulty, however, is that the Tribunal did not examine in any relevant detail the aspect of the applicant’s claim that the employer’s business would suffer in the event that he was not retained.
If one looks at attachments A, B and C at CB226 – 231 it is apparent that in each of these submissions the employer stated in terms:
“We are very happy that we found our Nominee as his hard work and experience are vital for the successful operation of our business (Attachment A, CB226).
We are very happy that we found our Nominee as his hard work and experience are vital for the successful operation of our business (Attachment B).
Sponsoring Business would suffer greatly if the applicant was not be (sic) allowed to continue working for DIMAL, he is one of the key workers in the business. Staff may lose jobs, business which took years to establish would not be ruined – in our hard economic times small business deserves a chance to survive (Attachment C).”
It is fair to say, as counsel for the first respondent did, that the Tribunal noted that it had received these submissions when it was dealing with the evidence generally (see CB204 – 205). Nonetheless it is not accurate to assert, as the first respondent’s submissions do at paragraph 29, that “The Tribunal further took account of the claim that the sponsoring business would suffer if the applicant was not granted the visa (at [87] and Attachments A, B and C at CB226 to 231)”.
True it is that the Tribunal has attached Attachments A, B and C but it did so without any comment whatever. Paragraph 87 does not address at all the submission that the sponsoring business would suffer if the applicant was not granted a visa. It is solely, and quite unexceptionally, concerned with making findings as to whether or not the business had encountered difficulties in securing apprentices, and the attempts that the employer might have made to obtain other welders.
I have had some difficulty in reaching a concluded opinion in this matter, which in my view is in many ways finely balanced.

The assertion that the applicant’s employer would suffer badly if his employment were not to continue was plainly one made to the Tribunal, but it was not made as a conclusionary point. Attachments A and B end with what is described as “In summary we would like to state the following” or “To Summarise”. Attachment C has no such format. Nonetheless, none of the matters put by way of such summary put the conclusion upon which counsel for the applicant relied in this Court – namely, that the exceptional circumstance was put as being the effect upon his employer of the loss of the applicant. Rather, this was put merely as one matter amongst others.
In the ultimate, and this was not really the way it was presented in oral argument before the Court, the fact is that this matter is asserted as ground 2(a)(ii) of the grounds of application.
Given that the Tribunal dealt comprehensively with all the other matters the applicant raised including, in my view, the matters of ground 2(a)(i) and 2(a)(iii) of the application, the failure to deal with the question of the effect upon the business is striking.
Whether or not the Tribunal would regard, upon consideration, this as being a matter giving rise to an exceptional circumstance is a matter yet to be determined.
However, unlike the other matters to which the Tribunal referred at paragraph 88 of its Reasons for Decision, this is a matter capable, in my view, of being a circumstance that differentiates an applicant from all the other such applicants otherwise in the same or similar circumstances.
In my view, the Tribunal’s failure to consider this matter constituted a failure to consider relevant material placed before it and, thus, it fell into jurisdictional error of the sort identified in Craig v State of South Australia (1995) 184 CLR 163, and the many other subsequent cases that have considered the question of jurisdictional error.
The question as to what constitutes jurisdictional error has been considered likewise many times by the Courts, but is in my respectful view well summarised in the following passage from VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Full Court of the Federal Court stated:
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

Conclusion

In my view, the Tribunal’s failure to deal with the aspect of the applicant’s case that constituted the effects upon his employer’s business in the event of his ceasing to work for it, this clearly being relevant material, does, in the circumstances I have described, constitute jurisdictional error. There will be orders as the applicant seeks.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 16 June 2011