Le v Minister for Immigration
[2016] FCCA 874
•18 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 874 |
| Catchwords: MIGRATION – Application for review of Tribunal decision – whether Tribunal was arbitrary or unreasonable – whether Tribunal misapplied the test for “exceptional circumstances – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15B, Sch. 2 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581 Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 |
| First Applicant: | THI XUAN THAO LE |
| Second Applicant: | PHU SON HO |
| Third Applicant: | MINH TRUNG HO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2635 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 22 January 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | VietAust Lawyers |
| Solicitor for the Respondents: | Ms S Given of Sparke Helmore |
ORDERS
The application made on 28 October 2013 and ultimately amended on 8 December 2015 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2635 of 2013
| THI XUAN THAO LE |
First Applicant
| PHU SON HO |
Second Applicant
| MINH TRUNG HO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 28 October 2013, and ultimately further amended on 8 December 2015, seeking review of the decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 4 October 2013 which affirmed the decision of the Minister’s delegate not to grant Ms Thi Xuan Thao Le (“the applicant”), Mr Phu Son Ho (“the second applicant”) and Mr Minh Trung Ho (“the third applicant”) Employer Nomination (Residence) (Class BW) visas (“the visas”).
Background
In evidence before the Court is the bundle of relevant documents filed by the Minister (“Court Book” – “CB”). The following background can be ascertained from those documents.
The applicants are citizens of Vietnam. The applicants applied for the visas on 17 October 2011 (CB 46 to CB 77). They were assisted in their application by a registered migration agent. The applicant was the primary visa applicant, and the second and third applicants were her husband and child, respectively, and applied as members of her family unit. The basis of the application for the visa was that the applicant had been nominated for the position as a cook at a business in the Australian Capital Territory (“the ACT”).
The Minister’s department, by letter dated 26 April 2012, requested further information on a number of matters including, relevantly, evidence of the applicant’s “vocational English” (CB 86 to CB 93).
The applicants’ migration agent provided “submissions of the sponsoring business” seeking “exemption with respect to vocational English” of the applicant (CB 95 and see also CB 67 to CB 69). The submissions claimed that “vocational English [was] not an essential element of successful performance of the duties” of the nominated position. Further, the “skills, attributes and qualifications” required for the position “though available individually or in part in the Territory’s labor (sic) market, they are rarely available collectively in one individual”, that the applicant was in a position to meet the requirements, and her language skills were sufficient to understand OH&S requirements (see CB 67 to CB 68).
The delegate refused the grant of the visas on 27 June 2012 (CB 184 to CB 192. The delegate found that the applicant had not provided evidence of “vocational English”, as required for the grant of the visa (cl.856.213 of Schedule 2 to the Regulations). Further, the delegate did not consider the submissions from the sponsoring business could be understood as a proper assertion of “exceptional circumstances”, or accept that vocational English was not essential for the duties of the position (CB 191).
The applicants applied to the Tribunal for review of the delegate’s decision on 12 July 2012 (CB 193 to CB 203). They were again assisted by a registered migration agent (CB 199).
By letter dated 19 July 2013, the applicants were invited to, relevantly, provide information demonstrating that “at the time of application” the applicant “met the English language requirements in cl.856.213(c)(ii)(B), including any information in relation to exceptional circumstances” (CB 211 to CB 215). The applicants’ migration agent provided submissions on 1 August 2013 (CB 216 to CB 234, including annexed documents). The representative submitted that “exceptional circumstances exist for the applicant to be exempted from satisfying the vocational English” (CB 220). Further, the representative submitted that the applicant was consistent in her effort of attaining English language skills, with reference to enrolment in English classes (CB 220).
The applicant appeared at a hearing before the Tribunal on 12 September 2013. Her representative was also present (CB 240). The representative provided further documents to the Tribunal on 13 September 2013, including “evidence of enrolment in a Food Safety course”, and sought further time to allow the “marking of the results of this course” so that they could be made available to the Tribunal (CB 243 to CB 249). Time was also sought to provide the results of an English language test (CB 254). A “Case Note” in evidence before the Court indicates that the representative was notified by telephone that the Tribunal would wait until 30 September 2013 for the results of the tests (CB 255). The applicants’ representative provided the results and an “affidavit” from the applicant on 25 September 2013 (CB 256 to CB 262).
The Tribunal affirmed the delegate’s decision on 4 October 2013. The Tribunal found that for the grant of the visa, as the applicant did not have vocational English, exceptional circumstances must apply. The Tribunal was “concerned” that the applicant’s level of English was not sufficient to “understand the work, health and safety requirements and manage other issues in the workplace” ([17] at CB 270 to CB 271). The Tribunal relied on the applicant’s statement to it that “she needed to use a translator to translate crucial words into Vietnamese when undertaking the Food Safety Supervisor Certificate on line”, to find that such a need for assistance did “not support her submission” that she had sufficient English ([17] at CB 271).
Further the Tribunal stated and found ([18] – [20] at CB 271):
“[18] [The applicant’s] representative asked the tribunal to test [the applicant’s] English reading skills. The tribunal noted that [the applicant’s] own evidence about needing to translate crucial parts of the course was in conflict with the submission about her level of English language skills. The tribunal noted it was not an expert in testing English reading skills and gave [the applicant] time to submit further evidence. [The applicant] has now claimed that her friend translated 3 terms for her, and has submitted she has since successfully completed a Food Safety Course at CIT without needing a translator or interpreter. [The applicant] also told the tribunal that in the restaurant she is able to read the orders in English and is able to give instruction in English to the three others employed.
[19] [The applicant’s] representative has submitted that the lodgement of a complaint with the Fair Work Ombudsman about [the applicant’s] previous employer indicates her ability to deal with her rights in the workforce. However, the tribunal notes that [the applicant] has indicated in the claim form that she needs an interpreter and has not claimed previously that she has the level of English language proficiency to complete such a form without assistance.
[20] The tribunal is remains concerned that the level of [the applicant’s] English skills are basic and are not sufficient for her to fully understand the work, health and safety requirements, to manage other issues in the workplace and to train others as she has claimed. This is particularly so when the tribunal considers the evidence she has submitted from the convener of her Certificate I course at CIT and from her private tutor about her English language skills. The convener confirmed that [the applicant] had achieved a basic level of proficiency in English. Her tutor stated that [the applicant] cannot easily hold a full conversation in English, or have an argument or debate in English, although she can converse among friends at a social level, and could see a doctor and shop for groceries. Whilst the tribunal accepts that [the applicant] has basic English language proficiency, it is not satisfied that it is at the level claimed. The tribunal remains concerned that is insufficient for her to understand the work, health and safety requirements, to manage other issues in the workplace and to train others in the ways she has claimed.”
The Tribunal considered the sponsor’s submissions in relation to the difficulty in getting a “suitably qualified” cook, and that the position required “a combination of particular skills, attributes and experience”. It found ([21] at CB 271 to [23] at CB 272):
“[21] …Whilst the tribunal accepts that the nominating employer may have had some difficulty attracting a suitably qualified person to the position, particularly given the shortage of cooks, as indicated by the occupation of cook having been on the list of occupations in demand in the ACT, it does not accept it was to the extent or for the period claimed. it does not accept that these difficulties have been or would be so unusual or burdensome as to warrant a finding of exceptional circumstances in this case. The tribunal is not satisfied that the nominator would have been unable to find a person with vocational English who was able to undertake the requirements of the position.
[22] Although, [the applicant], the nominating employer and her representative have submitted that the nominated position requires a combination of particular skills, attributes and experience, and that [the applicant] is essential for the success and growth of the business, no particular evidence in support of these claims has been submitted. There is no evidence from the nominating employer as to how the business has been maintained or grown since [the applicant] was employed. There is no evidence in support of the claim that particular skills are needed to maintain or grow the target market for the business.
[23] Having considered all the claims and evidence, the tribunal is not satisfied that the nominated position involves or requires an exceptional level of skill or experience such as to waive the English language requirement in this case. The tribunal is not satisfied that this is a position which can only be filled by a person with [the applicant] experience and skills. The tribunal does not accept that the position is so unique that the employer would be unable to find a suitably qualified person to fill the position who has vocational English. The tribunal is not satisfied that the [the applicant’s] employment in the business has been essential for its success and growth, or in maintaining its target market.”
In all, the Tribunal found that, with regard to the “cumulative effect” of the circumstances in the application, it was not satisfied that exceptional circumstances applied such that the applicant was not required to meet the requirement of vocational English ([24] at CB 272).
Application Before the Court
The applicants sought leave to further amend the application at the hearing before the Court on 8 December 2015. Leave was granted. Leave was also granted for the parties to file further written submissions given this circumstance. The applicant filed the application, as amended before the Court, with the Registry on 11 December 2015. The parties subsequently filed further written submissions on 11 January 2016 (the Minister) and 22 January 2016 (the applicant).
The application before the Court contains the following grounds [I note that ground one was formally abandoned in that application, as was the former wording of particular (a) to ground three]:
“2. The Tribunal decision was arbitrary and unreasonable.
Particulars
(a) The Tribunal's concluded, at CB 271 [20] that it was not satisfied that the applicant's English language skills were at the level claimed, and that it was concerned that she did not have sufficient skills to understand the OH&S requirements of her position, and to manage other issues.
(b) Those conclusions were reached without an evaluative process concerning the applicant's evidence of;
(i) The three terms which the applicant had needed to be translated to her in the online course she completed in food safety.
(ii) The applicant having passed a Canberra Institute of Technology course in food safety without the assistance of an interpreter.
3. The Tribunal erred in its construction of the term ‘exceptional circumstances’ in Cl.856.213 of Schedule 2 of the Migration Regulations.
Particulars
(a) Error in construing the words, ‘exceptional circumstances’ in Migration Regulations, Schedule 2, cl.856.2013(c)(ii) as requiring skills that were so unique that the nominated position could only be filled by a person of the applicant’s skills and experience.
(b) The Tribunal should have construed that term as requiring the circumstances to be such as to form an exception, or to be unusual.”
Relevant Legislation
The legislation relevant to the disposition of the application was in the following terms at the relevant times:
1)Clause 856.213 of Schedule 2 to the Regulations:
“856.213 Each of the following is satisfied:
(a) the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
b) either:
(i) both of the following are met:
(A) an assessing authority specified by the Minister in a Gazette Notice for this sub‑ subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;
(B) unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or
(ii) the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph; or
(iii) the applicant:
(A) holds a Subclass 418, 421, 422, 428, 444, 457 or 461 visa; and
(B) has worked full‑time in the occupation to which the appointment relates in Australia, while holding a visa of a subclass mentioned in sub‑subparagraph (A), for at least the period of 2 years immediately before making the application; and
(C) has worked full‑time for the employer mentioned in paragraph (a), and in the occupation to which the appointment relates, while holding a visa of a subclass mentioned in sub‑subparagraph (A), for at least the period of 1 year immediately before making the application;
(c) either:
(i) in the case of an applicant mentioned in subparagraph 1114A (2) (a) (iii) or (iv) of Schedule 1 ‑ the applicant:
(A) is 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) has competent English; and
(C) has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification; or
(ii) in any other case — unless exceptional circumstances apply, the applicant:
(A) is less than 45; and
(B) has vocational English.
2)Regulation 1.15B of the Regulations:
“1.15B Vocational English
(1) Vocational English, for a person, has the meanings given in subregulations (2), (3), (4) and (5).
(2) If a person applied, before 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person is proficient in English to at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6.
(3) If a person applies, on or after 1 July 1999, for a visa (other than a General Skilled Migration visa) a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:
(a) not more than 12 months before the day on which the application was lodged; or
(b) during the processing of the application.
(4) If a person applies, on or after 1 July 1999, for a visa (other than a General Skilled Migration visa) a criterion for the grant of which is that the person has vocational English, the person has vocational English if:
(a) the person does not have an IELTS test score in a test conducted:
(i) not more than 12 months before the day on which the application was lodged; or
(ii) during the processing of the application; and
(b) the Minister:
(i) determines that it is not reasonably practicable, or not necessary, for the person to be tested using the IELTS test; and
(ii) is satisfied that the person is proficient in English to a standard that is not less than the standard required under subregulation (3).”
3)Regulation 5.19 of the Regulations:
“5.19 Approval of nominated positions (employer nomination)
(1) An employer may apply to the Minister for approval of a nominated position as an approved appointment.
(1A) Application must be:
(a) made in accordance with approved form 785 or 1054; and
(b) accompanied by the fee prescribed in regulation 5.37.
(1B) The Minister may, in writing, approve or reject an application.
(1C) However:
(a) the Minister must approve an application if:
(i) the application is made in accordance with subregulation (1A); and
(ii) the nominated position is the subject of an employer nomination that:
(A) if the application was made using form 785 — meets the requirements of subregulation (2); or
(B) if the application was made using form 1054 — meets the requirements of subregulation (4); and
(iii) the employer is not the subject of an action that is described in section 140L of the Act (as in force immediately before 14 September 2009) or section 140M of the Act; and
(b) the Minister must reject an application if any of the requirements in paragraph (a) is not met.
(1D) As soon as practicable after deciding an application, the Minister must give the employer:
(a) a copy of the written approval or rejection of the application; and
(b) if the application is rejected:
(i) a written statement of the reasons why the application was rejected; and
(ii) a written statement that the decision is an MRT‑reviewable decision.
Note Division 4.1 deals with review of decisions. Paragraph 4.02 (4) (e) provides that a decision under subregulation 5.19 (1B) to reject an application is an MRT‑reviewable decision. MRT‑reviewable decision is defined in Division 2 of Part 5 of the Act.
(2) An employer nomination meets the requirements of this subregulation if:
(a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:
(i) actively and lawfully operating in Australia; and
(ii) operated by that employer; and
(b) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(c) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(d) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business; and
(e) the Minister is satisfied:
(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and
(f) the appointment will:
(i) provide the employee with full‑time employment; and
(ii) be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
(g) the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h) the tasks to be performed in the nominated position:
(i) correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(ii) will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(i) the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.
(4) An employer nomination meets the requirements of this subregulation if:
(a) the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
(i) actively and lawfully operating in regional Australia; and
(ii) operated by that employer; and
(b) either:
(i) the appointment:
(A) will provide the employee with full‑time employment; and
(B) will be for at least 2 years; and
(C) will be located in regional Australia; or
(ii) if the employer nomination relates to a person designated under regulation 2.07AO — the appointment:
(A) will provide the employee with either continuing full-time employment or seasonal employment that will continue; and
(B) is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and
(C) will be located in regional Australia; and
(c) unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification; and
(d) the employee is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and
(e) a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and
(f) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(g) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(h) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business.
(5) In this regulation:
regional Australia means a part of Australia specified by Gazette Notice for this definition.”
Consideration
The applicants’ arguments were focused on, and arose from, the Tribunal’s analysis at [20] (at CB 271) and [23] (at CB 272) of its decision record (see at [11] – [12] above).
The question before the Tribunal, arising from the circumstances presented, was whether the applicant satisfied each of the subclauses in cl.856.213 of the Regulations and, in particular, given the circumstances, cl.856.213(c) of the Regulations.
At the relevant time, the applicant was just under the age of forty five years (CB 46, item 11). However, the Tribunal found that she did not have vocational English as defined in reg.1.15B of the Regulations ([11] at CB 269). In this circumstance, and having regard to cl.856.213(c)(ii) of the Regulations, the issue for the Tribunal was whether “exceptional circumstances” applied to the applicant’s case such that cl.856.213(c)(ii) could be satisfied.
It is important to note, for the purpose of providing context to the applicants’ submissions, that in setting out its analysis the Tribunal relevantly focussed on one of these matters. That is “[d]o exceptional circumstances apply?” (CB 269.3). The matter of language skills appeared to be considered, not as a separate question as is suggested by the structure of cl.856.213(c)(ii) of the Regulations, but as part of the analysis of exceptional circumstances.
In my view, cl.856.213(c)(ii) of the Regulations refers to any other case not caught by cl.856.213(c)(i). In any such case, to meet the relevant criterion for the grant of the visa, the applicant must be less than 45 years of age, and have “vocational English” (as defined by the Regulations). If the applicant does not have both of these attributes then the applicant can still meet the requirements of cl.856.213(c)(ii) of the Regulations where “exceptional circumstances” apply.
The Tribunal’s explanation for its decision to affirm the delegate’s decision essentially begins with the proposition that the applicant does not have “vocational English”. This finding is not explained in the preceding paragraphs.
Further, in my view, it is not directly addressed in the Tribunal’s following analysis. Rather, the question of language skills is addressed tangentially as part of the assessment of “exceptional circumstances”. In particular, whether the applicant had “the claimed level of English to understand the work, health and safety requirements, and to manage other issues in the workplace” ([17] at CB 270).
It may be that the applicant had not undertaken a language test specified by the Minister as required by reg.1.15B(1) of the Regulations or otherwise meet the requirements at reg.1.15B of the Regulations. In any event neither of the applicants’ grounds, or the submissions in explanation, sought to directly attack the Tribunal’s analysis in this way.
Ground two of the further amended application asserts that the Tribunal’s decision revealed jurisdictional error in that it was arbitrary and unreasonable. To make out the ground the applicants point to [20] of the Tribunal’s decision (at CB 271 and see [11] above).
The particulars assert that the Tribunal concluded that the applicant’s language skills were not at the level she claimed (see [17] at CB 270 to CB 271). Further, that she did not have sufficient language skills to understand the health and safety requirements of her job. The particulars explain that the Tribunal reached these “conclusions” without an evaluative process relevant to the applicant’s evidence in relation to a particular course she had successfully completed in food safety in English. A course that she completed without the assistance of an interpreter.
The applicants explained their complaint of arbitrary and unreasonable decision making as follows. The Tribunal found that the applicant’s language capacity was “not sufficient” for various work requirements. In the applicants’ submissions, this finding was derived from the Tribunal’s “mistaken” view (as expressed at [18] at CB 271, see [11] above) that the applicant had required assistance in translating three crucial parts in an online course of study.
Before the Court, the applicants took issue with the Tribunal’s use of the phrase “needing to translate crucial parts of the course” as it appeared at [18] (at CB 271). The complaint was that this was not an accurate description of the evidence before the Tribunal as the Tribunal itself at [17] (at CB 270 to CB 271) recorded that “she needed to use a translator to translate crucial words… when undertaking the Food Safety Supervisor Certificate on line”.
The applicants submitted that there was a difference between “parts” and “words” as they appeared in [18] (at CB 271) and [17] (at CB 270 to CB 271) respectively. This submission cannot be said to arise from the particulars as pleaded. Those particulars make clear that the Tribunal’s decision was arbitrary and unreasonable because the Tribunal’s decision record did not reflect any relevant evaluative process in relation to “those terms”, and that the applicant had passed a subsequent food safety course without the assistance of an interpreter.
Further, it must be said that, despite the opportunity to do so, the applicants did not satisfactorily explain to the Court how the use of these “different” words by the Tribunal was a factor relevant to the ground.
It is the case that the Tribunal did use the phrases “crucial words” (at [17] at CB 270 to CB 271) and “crucial parts” (at [18] at CB 271). However, I agree with the Minister’s submission that when the Tribunal’s use of these phrases is read in context of the entire relevant part of its analysis, no legal error is evident.
That context is as follows. At the hearing, the Tribunal put the applicant on notice that, because she did not have “vocational English”, the Tribunal was required to be satisfied that “exceptional circumstances” existed before it could find that she satisfied that relevant part of the criterion ([16] at CB 270).
The Tribunal also put to the applicant its concerns about some of the claims that she had made as to why “exceptional circumstances” applied to her case ([17] at CB 270 to CB 271). That concern was said to be that the applicant did not have the level of English that she said she had, such as to be able to understand work, health and safety requirements and manage other issues in the workplace ([17] at CB 270 to CB 271).
The Tribunal explained this concern as arising from the applicant’s evidence that she needed a translator to “translate crucial words when undertaking an on line course”. The applicant’s reported evidence was that she needed help “with some crucial words”. The Tribunal found that the applicant’s evidence did not support her submissions that she had a sufficient level of English for work-related purposes ([17] at CB 270 to CB 271).
The applicants have not put any transcript in evidence before the Court as to what occurred at the Tribunal hearing. The only evidence is the Tribunal’s reference in its decision record. That relevantly reveals that the applicants’ representative asked the Tribunal to test the applicant’s English language skills. The Tribunal noted it had no expertise to do so. However, it gave the applicants time to submit further evidence ([18] at CB 271).
On 13 September 2013, in response, the applicants’ representative provided evidence of an enrolment in a food safety course and a request that the Tribunal wait two weeks for the results and an “affidavit” from the applicant (CB 243 to CB 249).
The applicants to have some difficulty in responding. On 17 September 2013, the third applicant contacted the Tribunal. He stated that they had been unable to contact their representative. He sought the outcome of the review because their representative had told them the Tribunal’s decision would not be favourable (CB 251).
Ultimately, the applicants provided the Tribunal with a document headed “affidavit” made by the applicant, which was in the following terms (CB 257):
“[1] On about 10 September 2013 I took an online course in Food Safety. As I was not familiar with all the terminologies in English, I had asked a friend to translate about 3 of the terms in the course. I completed the studies and took the examination without any need for a translator on 11 September 2013 and passed the course. I attach a copy of this certificate as Attachment A.
[2] On 12 September 2013 I enrolled in Food Safety Course at the Canberra Institute of Technology, (‘CIT’). on 19 September 2013 I took the course and subsequently, I undertook the examination of the course and passed the examination.
[3] I studied the course without the aid of a translator or interpreter and I completed the examination without any assistance from a translator or an interpreter. CIT has informed me that the Certificate will not be ready for 3 weeks. I attach a copy of the unofficial transcript from CIT as Attachment B.
[4] On 19 September 2013 I asked the English Language section of CIT to test my English skills. I performed the tests the CIT convenor of the examination directed me to take and I was awarded Certificate 1 in English. I attach a copy of this certificate as Attachment C.
[5] I am now enrolled in Certificate II course in English at CIT, which is due to commence in early October 2013. I attach a copy of the Transcript of the courses I am enrolled as Attachment B.”
[Emphasis added.]
In all these circumstances, which it noted at [18] (at CB 271), the Tribunal found that it remained concerned that the applicant’s English language skills were basic, and not sufficient for her to do a number of elements of her proposed work.
The Tribunal’s concern was said to be particularly based on evidence that the applicant had submitted from the convenor of the English Language Centre, and from her tutor. That evidence included that “she [had] achieved a basic level of proficiency in English” (CB 233). The tutor stated, as reported by the Tribunal ([20] at CB 271):
“…Her tutor stated that [the applicant] cannot easily hold a full conversation in English, or have an argument or debate in English, although she can converse among friends at a social level, and could see a doctor and shop for groceries…”
In light of this, the Tribunal found (at [20] at CB 271):
“…Whilst the tribunal accepts that [the applicant] has basic English language proficiency, it is not satisfied that it is at the level claimed. The tribunal remains concerned that is insufficient for her to understand the work, health and safety requirements, to manage other issues in the workplace and to train others in the ways she has claimed.”
As set out above, before the Court the applicants referred to the different terminology used by the Tribunal in describing the nature of the applicant’s English language difficulties in the test for which she sat. That is, the difference between “crucial words” and “crucial parts”. As also set out above, it is the case that the Tribunal made various references to “crucial words” and “crucial parts”. To that can be added the phrase “3 terms” as referred to at [18] (at CB 271).
However, what is of immediate answer to this aspect of the applicants’ argument is that, in the circumstances set out above, there is no discernible difference, and certainly no difference of substance, between the Tribunal’s use of “words” and “parts”. Further, the reference to “3 words” was a reference to the term used by the applicant herself in her “affidavit” which was put in response to the Tribunal’s concerns.
In all, on this submission, I agree with the Minister that the applicants’ submission really is no more than a request to the Court to read the Tribunal’s decision record with an “eye keenly attuned for error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30]). That is, to engage in impermissible merits review.
As for the remainder of the argument, as it arises from the ground as pleaded, the applicants referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) at [130] per Crennan and Bell JJ:
“In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
The applicants submitted that the terms “unreasonable”, “illogical”, “arbitrary” and “capricious” did not necessarily mean the same things. While there was some commonality they encompass “different circumstances”.
The applicants referred the Court to Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 (“CZBP”), in particular at [86] ‑ [96], for the proposition that there was no analysis or evaluation by the Tribunal of the actual words for which she had required assistance during the online course. The Tribunal’s legal error, therefore, was said to be that the Tribunal made a finding of fact on an arbitrary basis.
There was a dispute between the parties as to the relevance of CZBP to the present case. The Minister’s submission was that the Full Court’s reasoning in CZBP arose from a different set of facts to that in the present case. Further, that CZBP had no work to do in the present case because the height of its relevance was to confirm that the leading authority on irrationality and arbitrariness was SZMDS. Therefore, given what was found by the plurality in that case, the relevant test to be applied was as explained in SZMDS, as set out above.
The applicants’ submissions were that while they agreed that the facts in CZBP are different to the current circumstances, the principles expressed in, and which may be taken from, CZBP, which applied SZMDS, were applicable to the current case. In the present case the absence of analysis leading to the impugned finding, that is the absence of a factual basis for the finding, makes the finding arbitrary and, therefore, renders the Tribunal’s decision as a failure to exercise jurisdiction.
It is clear that the Full Court in CZBP found that jurisdictional error was revealed where a Tribunal’s finding could be characterised as arbitrary, which also meant that the Tribunal had not completed its statutory task (CZBP at [96]).
One finding by the Tribunal in CZBP was that certain documents provided by the applicant to the Tribunal were not genuine. These documents were two subpoenas relevant to Court proceedings in the applicant’s home country and a Court document headed “the verdict” (see CZBP at [8] and [86]).
In CZBP, the Full Court noted that the Tribunal assumed provisionally that the third document was not a forgery so as to take into account its contents, which it then compared with a certain part of the penal code of the relevant country (CZBP at [87]).
In CZBP the Full Court said at [88]:
“However, on this assumption, the difficulty is that the Tribunal did not attempt to deal with what was said in the verdict, that is that the visa applicant was guilty in accordance with article 52 of the Islamic penal rules and also in compliance with article 22 of the Islamic penal rules and calculation of apprehension period and according to virtue 7 of article 10 of the civil and Islamic offences rules. The content of the verdict was an essential part of her claim and the difference between the sentence set out in it and the penalty stated in article 88 of the Penal Code was, as the Tribunal said, a matter of considerable weight in finding that the verdict was a forgery. It must be assumed that the reasoning in [90] discloses the Tribunal’s entire reasoning process on this issue as the Tribunal has an obligation to give its reasons: s 430 of the Act. It is one thing to reason from a comparison of the substance of the sentences and to say that no examples had been found of a punishment of above 100 lashes under article 88 of the Islamic penal rules (compare Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [91]) but there is a missing step which is to form a view, one way or the other, about the three articles of the rules on which the visa applicant relied. This shows, in our opinion, that the Tribunal did not review this distinctive aspect of the visa applicant’s claim and thereby constructively failed to exercise its jurisdiction. We say this not as a matter of a review of the merits but by virtue of a failure of the process by which the Tribunal arrived at its conclusion: see Abebe at [195] per Gummow and Hayne JJ; SZJSS at [36].”
A second finding made by the Tribunal in CZBP related to its “dismissal” of evidence given by the visa applicant’s relatives in that case. The Full Court stated (at [79]):
“The visa applicant submitted that, as the primary judge found at [37]–[38], it was legally impermissible for the Tribunal to dismiss out of hand the evidence of the visa applicant’s relatives. The reasoning was “capricious” and “arbitrary” in the sense identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]. It was not a state of satisfaction that was mandated by the Act. The Tribunal’s decision amounted to an adverse credibility finding based on no more than a witness’ blood or marriage relationship with a party. The witnesses’ oaths were set at nought. Few decisions could be more capricious and inconsistent with the Tribunal’s statutory obligation to actually consider the evidence. As to the Minister’s appeal to history, the visa applicant submitted there were at least two reasons why that submission should be rejected. In the first place, not even the ancient common law went so far as to blacken a person’s credibility simply because they were a relative of a party (a fortiori an in-law). The rule about competence was limited to spouses, and the reason was not credibility. Secondly, the fact that an evidentiary rule or method of proof was once considered rational did not make it rational by modern standards. The defence of compurgation was an example, but many more could easily be identified. The method of reasoning employed by the Tribunal had no place in modern times.”
For current purposes, a number of matters arise from the above. First, the reference in CZBP (at [79]) to SZMDS, and the Full Court’s reliance on the analysis in SZMDS of what is meant by “arbitrary”, provides strength to the Minister’s submission that CZBP, with respect, did no more than “confirm” what was said in SZMDS, and as it applied to the question of arbitrariness in the Tribunal’s fact finding task.
Second, I agree with the Minister that the circumstances in CZBP are factually different, and of such significant difference, that the applicants’ claim in the current case of arbitrary fact finding is not made out simply by the reliance on, and reference to, CZBP.
As set out above, what the Full Court found was arbitrary in the Tribunal’s reasoning in CZBP was, first, the Tribunal’s rejection, without consideration, of the evidence of the applicant’s relatives, simply on the basis that they were relatives. Second, the Tribunal’s failure in CZBP to form a view about a matter on which the applicant relied (that is, parts of the penal code rules of the home country).
These factual matters, and such omissions, are not analogously evident in the current case. In the current case, the applicants rely on the matter of the three “crucial words” or three “terms” translated for the applicant. The contention is that the Tribunal should have considered, and analysed, what these terms were. The arbitrariness was said to arise because the Tribunal subsequently found that the applicant did not have English language skills sufficient for relevant work purposes. The applicants argued that the failure to inquire into the actual nature of the three words, and their character, were the “missing step”, as referred to in CZBP at [88].
In their supplementary written submissions, the applicants complain that the Tribunal did not address, consider or evaluate:
1)the three terms;
2)that the applicant had “passed” a Canberra Institute of Technology (“CIT”) course in food safety without the assistance of an interpreter; or
3)the scope of the restaurant business.
The last item above (at [59](3)) was not particularised in the applicants’ ground of the further amended application. As stated above, the applicants were given the opportunity to further amend their application at the hearing before the Court. The leave for supplementary written submissions was granted because of this late iteration of the applicants’ grounds. The leave was granted in relation to the grounds as ultimately pleaded. This item, therefore, is outside of the scope of the grant of the leave. The applicants were given ample opportunity, even as late as the final hearing of the matter, to plead their grounds. In all these circumstances, I do not propose to consider it. Nor was the relevance of this item to the applicants’ ground, and the Tribunal’s analysis, satisfactorily explained.
In the circumstances of this case, this item is no more than an attempt by the applicants to induce the Court to engage in impermissible merits review. If what was meant by the “scope of the restaurant business” was the restaurant’s employment needs, in what was said to be a limited recruitment pool, then the Tribunal addressed that claim in its analysis of whether exceptional circumstances existed (see [21] at CB 271 to CB 272).
The applicants’ argument is narrowly focussed on the Tribunal’s reference in its decision record to the three words. This matter needs to be considered in the totality of the Tribunal’s reasoning. To draw the analogy with CZBP it is necessary for the applicants to identify a comparable “missing step”.
In the current case there was no dispute that the applicant did not have “vocational English”. Therefore, the issue for the Tribunal to consider was whether, in the current case exceptional circumstances applied such that the visa should be granted.
In this context, the Tribunal considered whether the level of English claimed by the applicant was sufficient to meet the relevant needs of the nominated position. It must not be forgotten that the visa for which the applicant had applied relied on a nomination from an employer for her to “fill the occupation of a cook” with the employer’s restaurant. This required the applicant to be able to conduct and manage all of the necessary requirements of this position ([2] at CB 268).
The gravamen of the Tribunal’s decision, the matter central to the rationale of the decision, was whether her English language skills were sufficient to do her job in the sense of being able to fulfil all of the requirements of the position. The Tribunal’s relevant finding was that her English language skills were basic and not sufficient for the applicant to understand and manage important aspects of the job.
It is to be remembered that ground two concerns a claim of unreasonableness, and arbitrariness, in the Tribunal’s decision making. In that analysis, the Tribunal had regard to the need for translation of “three words” (see further below), and the applicant’s evidence as to her successful completion of the CIT food safety course (see [18] at CB 271).
The Tribunal did not arrive at its conclusion that the applicant’s English was not sufficient for her work purposes simply on the basis of the “three words”. While this was certainly a part of the Tribunal’s analysis, its conclusion was also derived from evidence provided by the applicant from the convenor of her CIT course, and her private English language tutor.
Having regard to the test set out in SZMDS, the Tribunal’s analysis was not unreasonable, or arbitrary. The Tribunal evaluated the evidence before it and assigned weight to the evidence with an explanation as to its relevance to the issue for consideration. This is a case where looking at the evidence as a whole, minds may differ as to the outcome. The Tribunal’s decision is not unreasonable or arbitrary in circumstances where it simply preferred one view open to it over the view urged by the applicants.
Nor does CZBP assist the applicants. In the current case the Tribunal accepted the applicant’s evidence. Her inability to “translate three words” without assistance, was part of the applicant’s own evidence. It can hardly be said to be arbitrary for the Tribunal to rely on an applicant’s own evidence, albeit evidence which ultimately does not assist the applicants’ case.
In CZBP what was found to be “arbitrary” was the Tribunal’s failure in that case to form a view about matters on which the applicant relied, and the reason it gave for rejecting corroborative evidence provided by relatives. In the current case, it was not “arbitrary” of the Tribunal not to itself conduct the test of the applicant’s English language skills. The Tribunal considered this very submission made to it by the applicants’ representative. However, it was reasonably open to the Tribunal to find that it lacked expertise to conduct such a test, and to, therefore, rely on the relevant evidence otherwise before it. Nor is the failure to “investigate” the “three words” analogous to the situation in CZBP. It was reasonably open to the Tribunal to rely on the fact of the applicant’s inability to “translate” those words for the purposes of the online course. In all, ground two is not made out.
After the receipt of further written submissions from the parties in this matter the Full Federal Court handed down two judgments which, in my respectful view, provided further direction and illumination on the question of legal unreasonableness and, in particular, to the approach to be taken by the Court in reviewing an administrative decision on the ground of legal unreasonableness (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (“Eden”)).
I do not, respectfully, understand the Full Court to have altered the understanding of the relevant law, and its application, but to have clarified the approach to be taken by the Court in considering the question of legal unreasonableness. In this light, I did not see it as necessary to require yet further written submissions from the parties. The Full Court’s judgments in Stretton and Eden, with respect, do provide further answers to the disposition of ground two in the Minister’s favour.
First, in the current case, the applicants sought to emphasise the importance of characterising and viewing the Tribunal’s finding as to the “three words” as being arbitrary and seeking to apply the “formula” for arbitrariness said to be derived from CZBP.
In Stretton, Allsop CJ stated at [2]:
“The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the overcategorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.”
[Emphasis Added.]
Second, as stated above, in the current case while ground two pleaded unreasonableness, it appeared that the main thrust and focus of the applicants’ submissions and arguments was specifically on the notion of arbitrariness. In this light, in relation to legal unreasonableness, therefore, the applicants did not satisfactorily address or explain which of the two different contexts within which legal unreasonableness was identified by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied in the current case (and see also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]). This meant that while the factual assertion for the applicants’ arguments was clear (the Tribunal’s claimed failure to itself inquire into the nature of “the three words”) the legal basis was not.
Third, in Stretton at [8], Allsop CJ stated:
“The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].”
What can, respectfully, be added to this is that the concept of unreasonableness does not provide a vehicle for the decision to be remade according to the applicants’ view as to what is unreasonable.
As Chief Justice Allsop also stated in Stretton at [12]:
“Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.”
In this vein, I also respectfully note what was said also in Stretton at [92] per Wigney J:
“The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]- [45]), or if the decision is within the ‘area of decisional freedom’ of the
decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.”
Ultimately, in the current case, the terms, scope and purpose of the relevant legislation was to require focus on whether the applicant for the visa had the appropriate level of English language skills to perform the functions of the position for which she had been nominated. In all the circumstances before it, the Tribunal gave an intelligible and evident justification central to its decision. That a part of that justification is disputed by the applicants (the “failure” to identify and analyse the “three words”) does not make the decision legally unreasonable.
Ground three asserts that the Tribunal erred in its construction of the term “exceptional circumstances” as it appears at cl.856.213 of the Regulations (see above). The particulars explain that the Tribunal construed the words as requiring skills that were “so unique” to the nominated occupational position that it could only be filled by a person with the applicant’s skills and experience. The argument is that it should have construed the term as requiring circumstances to be exceptional or unusual.
The applicants asserted that the word “exceptional” has a
“non-technical” meaning of “unusual” or “out of the ordinary”, and is used in that sense in cl.856.213 of the Regulations. There was no dispute by the Minister that that is the case. For the sake of completeness, I note that the applicants relied on An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 and Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581.
The applicants directed attention to [23] of the Tribunal’s decision (at CB 272):
“Having considered all the claims and evidence, the tribunal is not satisfied that the nominated position involves or requires an exceptional level of skill or experience such as to waive the English language requirement in this case. The tribunal is not satisfied that this is a position which can only be filled by a person with [the applicant] experience and skills. The tribunal does not accept that the position is so unique that the employer would be unable to find a suitably qualified person to fill the position who has vocational English. The tribunal is not satisfied that the [the applicant’s] employment in the business has been essential for its success and growth, or in maintaining its target market.”
[Emphasis by the applicants.]
The applicants argued that, with reference to the words emphasised above, this revealed that the Tribunal put a “gloss” on the test arising from the words of cl.856.213 of the Regulations. That is, the test posited by the Tribunal was to ask whether the applicants had skills which were “so unique” that the employer would be unable to find a suitably qualified person to fill the position.
In essence, the complaint is that the Tribunal’s “test” of “an exceptional level of skill” was used by the Tribunal as “demanding” a high level of skill, rather than meaning “unusual” or “out of the ordinary”. Thus, the Tribunal imposed a higher burden to be met by the applicant in satisfying the relevant criterion for the grant of the visa. The Tribunal, therefore, failed to ask the correct question required by the regulation and fell into jurisdictional error.
The Minister’s response was essentially that the applicants’ ground “selectively” failed to take into account the applicant’s own claims and submissions made to the delegate and the Tribunal, misconstrued the Tribunal’s findings, and asks the Court to read the Tribunal’s decision record, again, with an “eye keenly attuned for error” (Wu Shan Liang at [30]).
It is the case that Tribunal decision records are to be read holistically and contextually. That is, fairly. In this light, although not conclusive of the applicants’ complaint, I note that the Tribunal made reference to its understanding of the relevant test in terms consistent with the applicants’ “exceptional circumstances” as it appears in cl.856.213 of the Regulations (see [12] – [13] at CB 269).
The Tribunal’s reference (at [12] at CB 269) to the term including “factors affecting a person and which set them apart from other persons in a comparable situation” is consistent with relevant Federal Court authority (Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425).
However, this is also not determinative of the applicants’ ground. It is one thing to state the relevant test in the correct terms, and another to apply it. Nonetheless, what can be said is that in this case there is at one part of the decision record an expression of the correct understanding.
The applicants direct attention to [23] (at CB 272) of the Tribunal’s decision record and point to certain phrases used by the Tribunal to base their claim that the Tribunal misunderstood the test. However, regard must be had to the totality of the Tribunal’s analysis and the circumstances to which that analysis was directed.
The applicant made no claim to the Tribunal that she had vocational English. It is clear that the applicant and her representative understood that to meet the requirements of the visa she would need to show that exceptional circumstances applied such that she met the requirements of cl.856 of the Regulations. That is made clear with the submissions made to the delegate accompanying the application for the visa (see “application for exemption from requirement of Vocational English” at CB 67).
On 15 May 2012 the applicants’ representatives provided further submissions to the delegate on the matter of “exemption with respect to vocational English of the Applicant” (item 4 at CB 138.1).
The delegate made clear, in refusing the application for the grant of the visa, the following:
1)At CB 190.6:
“On 19/06/2012 a further request was made for a submission addressing exceptional circumstances for English. A submission from the sponsor was received on the same day asserting that: 1) vocational English was not essential for the successful performance of the duties of the position; 2) the business had been seeking a suitable candidate since January 2008; 3) the business was financially reliant on the applicant; 4) the applicant had made a consistent effort to improve her language skills; 5) the applicant had been able to transfer her skills to others in the business; 6) the applicant had been able to make a successful complaint to the Ombudsman against a former employers breach of employment laws.”
2)At CB 191.2:
“I do not accept other claims listed above by the sponsor as exceptional circumstances. The sponsor has provided no evidence to support or substantiate any of these claims.”
On 19 July 2013, the Tribunal invited the applicants to provide various items of information, including “any information in relation to exceptional circumstances” (CB 213.5).
The applicants’ representative responded by letter dated 1 August 2013 (CB 216 to CB 221). In particular, the representative stated (CB 218.5 to CB 219.1):
“Most, or all, of the following should be considered in any assessments of exceptional circumstances for the English requirement:
- the nature of the work to be performed, and why vocational English is not required to perform all of the duties. For example, a religious worker may be required to work in the language or dialect of the community they are working within
- how the applicant might transfer their skills to, or otherwise train, other employees regardless of whether the current staff are from the same, or similar, cultural background as the applicant as this may change due to staff turnover or anti-discrimination concerns
- the applicant’s ability to understand and comply with OH&S requirements, deal with work emergencies, call for emergency assistance, and communicate with emergency workers when they are alone. A certificate of attendance for an OH&S course should only be considered if it includes an assessment of the applicant’s understanding of the course material, regardless of whether an interpreter was present or not (this means that attendance at a course is not sufficient evidence of the applicant’s level of understanding)
- the applicant’s ability to understand and deal with issues relating to their employment and workplace rights, such as what to do about workplace bulling and harassment)
- whether the employer made any effort to recruit a suitably qualified person with vocational English. For example did the employer consider recruiting workers from countries with high levels of English language proficiency?
- the applicant has worked in the nominated position whilst on a Subclass 457 visa for at least 12 months, and has made a consistent effort to improve their English through a course provider. This can include regular English tuition through educational institutions or private tutors with recognised qualifications in teaching English.”
The applicant and her representative attended a hearing before the Tribunal on 12 September 2013 (CB 240). As stated above, there is no transcript of that hearing before the Court. The only evidence before the Court of what occurred is what is contained variously in the Tribunal’s decision record. From that account it is clear that the applicant was put on notice that the matter of the exceptional circumstances was the relevant live issue in the review ([16] at CB 270).
In the current case, any plain reading of the Tribunal’s relevant analysis on the matter of exceptional circumstances is that it was shaped by, and focussed on, the applicant’s own claims and submissions as to why exceptional circumstances applied in her case. The Tribunal considered these submissions in light of the applicant’s assertions regarding her claimed level of English language skills.
Each of the paragraphs of its analysis at [17] (at CB 270) to [22] (at CB 272) are focussed on the various submissions regarding exceptional circumstances and the applicant’s level of English language skills.
The impugned phrases in [23] of the Tribunal’s decision record (at CB 272) must be understood in the context referred to immediately above. The Tribunal’s references to “exceptional level of skill”, “only filled by a person with [the applicant’s] experience and skills” and “so unique that the employer would be unable to find a suitable qualified person to fill the position with vocational English”, are all directed to claims and submissions made by the applicant and her representative on her behalf, as to why exceptional circumstances apply in the applicant’s case.
In their supplementary written submissions the applicants assert that the Minister “made much of the fact that the applicant was represented throughout the application and review process”. The submission was that while a representative would seek “to present the client’s position” as “best” for the applicant, the fact that an applicant chooses to put a claim in a particular way does not excuse the Tribunal from applying the words of the regulation. That is plainly the case.
However, in my view, the Minister’s reference to the applicants’ representation before the Tribunal was put to provide context for the submissions that were made by the applicants’ representative. I did not understand it to be meant as a complete answer to the ground.
The implication arising from the applicants’ submissions to a “competent migration agent” seeking to present the applicants’ case in the best light is of no assistance to them. The representative made submissions. The Tribunal dealt with them. Had it not done so then the applicants may now have had grounds to attack the Tribunal’s decision on that basis.
The applicants’ argument, when reduced to its essence, is that the Tribunal misdirected itself in the application of the relevant test. The implication arising from this argument is that the migration agent made out the “best” case for the applicant, but did so without reference to the relevant test. In dealing with the submissions, therefore, the Tribunal did not apply the correct test.
I do not accept that a fair reading of the Tribunal’s analysis allows for this argument to succeed. It was the applicant and her representatives who claimed that the nominated position was “so unique” and that only the applicant had the necessary combination of skills to fulfil the requirements of this position, and that this constituted an exceptional circumstance. The Tribunal simply dealt with this claim as it was required to do (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
The Tribunal’s finding that the circumstances were not exceptional, as claimed, was reasonably open to it on what was before it. The applicants’ ground really seeks to cavil with the Tribunal’s conclusion and the factual findings that informed it. In all, no legal error is revealed by ground three.
Conclusion
None of the grounds, as ultimately amended, reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 April 2016
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