Kishore v Minister for Immigration
[2008] FMCA 316
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KISHORE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 316 |
| MIGRATION – VISA – Employer Nomination (Residence) (Class BW) visa – Review of Migration Review Tribunal decision affirming that the applicant is not entitled to grand of visa – vocational English – functional English – no reviewable error. |
| Migration Act 1958, ss.360(1), 359A, 362B, 360A Migration Regulations 1994, reg.5.17, 1.15B(3) |
| Zhang v Minister for Immigration and Anor [2007] FMCA 1855 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 |
| Applicant: | NAND KISHORE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1147 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 December 2007 |
| Date of Last Submission: | 11 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondent: | Mr Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG114/2007
| NAND KISHORE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for review of a decision of the Migration Review Tribunal. The decision was signed on 22nd February 2007 and handed down on 7th March 2007. The Tribunal affirmed the decision under review finding that the visa applicant was not entitled to the grant of an Employer Nomination (Residence) (Class BW) visa.
Background
The background to this matter is that the applicant is a national of India. He applied for an Employer Nomination (Residence) (Class BW) visa on 19th April 2005 and a delegate of the Minister refused that application for a visa on 23rd February 2006. On 13th March 2006 the applicant applied to the Migration Review Tribunal for a review of the delegate’s decision. The Tribunal affirmed the decision of the delegate. A copy of the Tribunal’s decision record can be found at pages 120 through to 128 of the Court Book.
The Tribunal noted that the applicant entered Australia on
18th December 2001as the holder of a Temporary Business Visa (Class TU) (Subclass 457) (business‑long stay). The visa was valid until
4th December 2005. The applicant applied for a further Subclass 457 visa when he changed his sponsor. That visa was valid until
18th December 2005. When that visa expired, the applicant became the holder of a Bridging A visa on the basis of the application that was the subject of review.
The applicant was first sponsored for a visa to work at Mother India restaurant in Dural, New South Wales. On 18th December 2003 he was sponsored by another employer to work at the Dee Why Indian restaurant. This employer lodged an employer nomination in respect of the position as a chef and named the applicant as the nominee.
That nomination was approved on 12th January 2005.
The applicant submitted evidence that he had been awarded a craft certificate on 4th December 2002 by the New South Wales Department of Education and Training. In September 2004, he applied to Trades Recognition Australia for assessment of his qualifications and skills as a chef. On 23rd December 2004 Trades Recognition Australia, known as TRA, advised him that on the basis of his craft certificate, his qualifications had been accepted.
The applicant’s representative argued to the Tribunal that the position was exceptional in terms of the English language requirement.
The applicant’s representative made further submissions on
10th January 2006to the effect that cooks and chefs are in high demand in Australia because there is a shortage of people with those skills.
The applicant was highly experienced with significant work experience in Australia and over 15 years experience in his field and it would be difficult to find a person with his experience in the Indian labour market. The applicant’s representative claimed that the visa applicant was fluent in spoken English, as he had been working in an English-speaking environment for a number of years, and he was capable of communicating effectively and training people on the job professionally and supervising his subordinates. He was proficient in occupational health and safety.
The delegate was not satisfied and invited the applicant to submit the results of an IELTS test. The applicant failed to submit the results of such a test, and his representative argued that the applicant had functional English and it was not necessary to test him further. He also argued that the appointment should be considered as an exceptional one with regards to the visa requirement for vocational English.
On 23rd February 2006 the delegate refused the visa, noting that the applicant had not, despite requests, submitted the results of an IELTS test. The delegate also noted the claims made by the applicant’s representative regarding the visa applicant’s level of English and the reasons why the appointment should be considered exceptional.
The delegate considered the policy guidelines and found that the trade test that the visa applicant had sat was not a two-year course and did not come within the policy exception. The delegate also noted the applicant’s work experience, but stated that he was not satisfied that English was the language of communication in Indian restaurants where the visa applicant had worked and was not satisfied that the applicant had vocational English, and went on to consider whether the applicant had functional English.
The delegate noted that the applicant had not provided satisfactory evidence that he had functional English, as provided in reg.5.17 of the Migration Regulations 1994 (Cth). The delegate next considered whether the appointment should be considered exceptional. Whilst the delegate accepted that there was a shortage of chefs and cooks in Australia, he found no evidence that a suitably qualified person with a functional level of English was not available for the position either in Australia or overseas. The delegate found that the policy exceptions did not apply and refused to find the appointment was an exceptional one. As the applicant did not have vocational English, the delegate refused the visa.
Application to the Migration Review Tribunal
In a submission to the Tribunal on 4th October 2006 the applicant’s representatives made the point that the PAM guidelines stated that all approved nominations be regarded as exceptional in terms of waiving the requirements for skill, age or English. Further, that the PAM guidelines provided that a person who has worked in Australia for a period of two years is deemed to have functional English. Further, even if the applicant did not have functional English, or near functional English, it was possible to waive the vocational English requirement in circumstances: (a) where the applicant’s occupation was on the occupations-in-demand list, (b) the nominee was able to undertake all the duties and responsibilities, including any OH&S duties, and (c) if the nominee had worked in an English-speaking environment for more than 12 months, and, further, if the applicant had completed the trade test at TAFE in English, or instructional test in English.
The representative submitted that there was a good case for the waiver of the requirement, and the Tribunal invited the applicant to appear to give evidence and present arguments. The hearing was initially scheduled for 5th October 2006. Because the applicant was overseas, the hearing was rescheduled to 20th December 2006. The applicant failed to appear, and neither the representative nor the applicant contacted the Tribunal or requested a further adjournment of the hearing. Consequently, the Tribunal went on to deal with the application.
The Migration Review Tribunal Decision
The Tribunal noted that under sub-s.360(1) of the Migration Act 1958 (Cth) the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues and the decision under review, but under sub-s.362B(1):
“If the applicant fails to appear, the Tribunal may make a decision on a review without taking any further action to enable the applicant to appear before it.”
The Tribunal had done so in that case. The Tribunal found that the issue to determine was whether, if the applicant was not able to satisfy the Tribunal that he has vocational English, that the appointment should be considered exceptional because exceptional circumstances applied. The Tribunal found there was no evidence to satisfy it that the visa applicant had vocational English because he had not submitted the results of an IELTS test showing that he had achieved an IELTS test score of at least five for each of the four test components.
The Tribunal found that the applicant did not have an IELTS test result that had been submitted to the Department and was not satisfied that the applicant was proficient in English to a standard that was not less than the standard required under reg 1.15B(3). The Tribunal went on to consider whether exceptional circumstances applied to a visa applicant who does not have vocational English and noted that the guidelines stated the following considerations should be taken into account:
·The nature of the work to be performed (in particular while vocational English is not essential to perform the full range of required duties).
·How the visa applicant might transfer their skills to Australian employees.
·How they may be able to comply with occupational health and safety (OH&S) issues.
·The efforts made to recruit a suitably qualified person who does have vocational English (see Court Book at p.127).
The Tribunal noted that even if exceptional circumstances apply, the applicant is still expected to have an English proficiency near to functional. The Tribunal noted the requirements of reg.5.17 that refers to the prescribed evidence of English proficiency with regard to whether a person has functional English, as including evidence that a person holds an award, and all instruction for that or orders conducted in English.
The Tribunal accepted that the applicant had worked in Australia for about five years before the application had been made and accepted that the occupation of cook is on the list of migration occupations in demand (MODL) at the time the application was made. However, the Tribunal noted that it had no independent evidence to support the applicant’s claims:
“It has not been able to take evidence from the visa applicant’s employer or the visa applicant himself regarding his work environment since he has been in Australia. The Tribunal has not had the benefit of taking oral evidence from the visa applicant on these matters or on the level of his spoken English. No evidence has been provided about the employer’s attempts to recruit a person who does have vocational English or about the nature of the training that the visa applicant is said to have carried out. The visa applicant’s representative has not argued that most of his work will be carried out in his own language but rather that English is the common language in the workplace.”[1]
[1] Court Book at 128.
The Tribunal noted that even if it were to find that exceptional circumstances applied, the applicant was still expected to have an English proficiency near to functional level. However, the Tribunal, in the absence of evidence, was not able to be satisfied that his English proficiency was near to functional level.
On the basis of the evidence before it, accepting that the applicant may have worked in Australia for five years prior to the application, the Tribunal was not satisfied, in the absence of further evidence about the applicant’s English language proficiency, that exceptional circumstances applied that would justify the waiver of the vocational English requirement for the visa. The Tribunal, therefore, found that the applicant did not have vocational English and that there was insufficient evidence before it to be satisfied that exceptional circumstances did apply. The Tribunal affirmed the decision under review.
Application for Judicial Review
Before me, Mr Kumar of Counsel argued that the Tribunal had breached s.360 of the Act in failing to allow the applicant the opportunity to present arguments on the alternative basis of the decision on which the Tribunal has decided. He referred to the decision of Cameron FM in Zhang v Minister for Immigration and Anor[2] where his Honour said that if relevant issues dispositive before the Tribunal were different to one before the delegate, then s.360 is enlivened. Mr Kumar submitted that s.359A of the Act was also an issue and that the applicant ought to have been given an opportunity to respond to the alternative basis which was not pressed by the applicant. The Tribunal, he submitted, failed to provide the applicant an opportunity to respond in writing. He submitted that the Tribunal, in failing to provide precise particulars to address the breach, the information sought for comment does not comply with s.359A of the Act.
[2] [2007] FMCA 1855 at [18]-[20].
As to the application of policy and interpretation, Mr Kumar referred the Court to the decision in Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs[3], where Allsop J remarks that a “commonsense and realistic approach” ought to be taken in interpreting regulations in another context. The applicant submits that this comment was apposite and applied to a decision in ascertaining whether there was an appropriate English language competency.
He submitted that the applicant had satisfactorily acquired considerable experience in Australia of more than five years. He submitted that the Tribunal had fallen into jurisdictional error.
[3] [2003] FCA 1044 at [14]
For the respondent, Mr Reynolds submitted there was no breach of s.359A of the Act, or of s.360. He submitted that the Tribunal had plainly complied with s.360(1), which required it to do no more than invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising out of the decision under review. The applicant’s failure to take up the invitation did not point to any error on the part of the Tribunal. He also referred the Court to s.362B of the Act, which provides that if the applicant was invited under s.360 of the Act to appear before the Tribunal and did not appear before the Tribunal on the day on which, or at the time and place at which, the applicant was scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
As to the alleged misapplication of policy, Mr Reynolds submitted that the applicant had not identified the policy that he said was misapplied by the Tribunal. He submitted that the Tribunal had appropriately used its discretion.
After the hearing, Mr Kumar faxed to the Court, uninvited, some supplementary submissions and an affidavit of one Bimal Bhattarai.
I declined to consider the affidavit of Mr Bhattarai as it was sought to be filed after the hearing had closed. I indicated that I would consider the supplementary submissions on condition that the respondent Minister have the right of reply to them.
As to the PAM guidelines, Counsel for the applicant submitted that the Minister’s lawyers were requiring the applicant to carry out the mandatory steps in PAM 17.3 and ascertain if exceptional circumstances exist. He submits that information had been provided to the Tribunal as per a letter of the applicant’s employer of
23rd January 2006. He claimed that the Tribunal had misplaced or misfiled that material and erred in stating that there was no evidence from the employer and ignored a relevant consideration. He went on to submit that even if the Tribunal did not find that the applicant had functional English, the Tribunal still had to carry out further mandatory steps where there is less than functional English, and submits that neither the delegate, nor the Tribunal, had addressed the issue of near functional English.
As far as s.360 and s.360A of the Act are concerned, Mr Kumar submitted that the applicant’s representative had advised the Tribunal that the applicant was overseas and would not be in the country before mid-December 2006. He therefore submitted that the Tribunal failed to give the reasonable notice as required by s.360A(4) of the Act to enable the applicant to take the opportunity to attend the hearing.
In the supplementary submissions, Mr Reynolds submitted that the Tribunal had misfiled the letter dated 23rd January 2006 sent by the applicant’s agent, and erred when it stated there was no evidence from the employer and ignored a relevant consideration. He submitted, first, that the assertion did not relate to any ground of review pressed by the applicant and there was no evidence in any event that the applicant’s agent had sent a letter to the Tribunal on 23rd January 2006. He also submitted that the complaint that the Tribunal was obliged to address the issue of near functional English as required by PAM 17.4 does not relate to any ground of review, nor had leave been sought to raise it. He submitted that, in any event, the ground was misconceived because policy, whilst a relevant consideration, cannot fetter the discretion conferred upon the delegate. The Tribunal, in any event, did address the issue of near functional English by stating:
“[I]t is not able to be satisfied that his English proficiency is near to functional level.”[4]
[4] Court Book at 128.
As to the claim that the Tribunal failed to give notice of the hearing, Mr Reynolds submitted that the ground was without merit because the applicant had not particularised how the Tribunal failed to give reasonable notice to the hearing and pointed out that the Tribunal had adjourned the original hearing of 5th October 2006 to a date after mid-December 2006 and notified the applicant of that new hearing date.
It submitted that the applicant did not explain why he was unable to attend the Tribunal hearing on 20th December 2006.
In considering these matters, I am satisfied that the Tribunal did not have the evidence for it to be able to make any finding as to the applicant’s proficiency in English, whether that English was vocational English or functional English or near functional English. The applicant had not provided any evidence of having achieved an IELTS test score for each of the test components of speaking, reading, writing and listening in a test conducted not more than 12 months prior to the date on which the application was lodged. The applicant did not attend the hearing. The Tribunal noted that it had no way of being satisfied as to what the applicant’s ability in English was. The applicant had been overseas, and the Tribunal was aware of that in October 2006, and the Tribunal adjourned the proceedings at the request of the applicant to a date after mid-December 2006. I am satisfied that 20th December 2006 is a date clearly after “mid-December 2006”, and the fact remains that the applicant just did not attend the Tribunal hearing, nor was any explanation given as to why he failed to attend.
I am of the view that the applicant has not demonstrated any jurisdictional error and, consequently, the Tribunal decision is a privative clause decision.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 11 March 2008
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