Li Tian v Minister for Immigration - [2008] FMCA 500

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI TIAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 500

MIGRATION – Review of decision of Migration Review Tribunal – whether jurisdictional error – Employer Nomination (Residence) (Class BW) visa – whether subclass 856.213 of Schedule 2 of the Regulations satisfied – whether applicant is “a highly skilled person” within the meaning of Regulation 5.19 – meaning of “formal training or equivalent experience” in subreg 5.19(3)(a) – meaning of “the approved appointment is exceptional” in subreg 5.19(3)(b) – whether equivalent experience must all be at the level of the nominated position – whether sufficient reasons given by Tribunal for its decision.

Migration Act 1958 (Cth), ss.5, 338, 347, 359, 368

WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALR 630
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
An v Minister for Immigration & Citizenship [2007] FCAFC 97
Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375

First Applicant:

LI TIAN

Second Applicant:

JIA JUN YE

Third Applicant:

JIA XIN YE

Fourth Applicant:

SONG TAO YE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 2209 of 2007

Judgment of:

Orchiston FM

Hearing date:

8 February 2008

Date of last submission:

8 February 2008

Delivered at:

Sydney

Delivered on:

21 April 2008

REPRESENTATION

Solicitor for the Applicant:

Migrant Law

Counsel for the Respondent:

Mr D. Godwin

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The application filed on 17 July 2007 is dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $5,000 payable within four (4) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2209 of 2007

LI TIAN

First Applicant

JIA JUN YE

Second Applicant

JIA XIN YE

Third Applicant

SONG TAO YE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application seeking review of a decision of the Migration Review Tribunal (the Tribunal) handed down on July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant an Employer Nomination (Residence) (Class BW) visa (the visa) to the applicant under the Migration Regulations 1994 (the Regulations).

Background

The first applicant was born on 27 September 1973 and was aged 33 years at the time of her application for the visa. The second applicant is the husband of the first applicant and the third and fourth applicants are her children. Only the first applicant made claims in regard to the visa application. For convenience, the first applicant will therefore be referred to as “the applicant” in these proceedings.
The first applicant claims to be a national of China. She arrived in Australia on 2 April 2003, holding a subclass 457 (Business Long Stay) visa, which was valid until 14 March 2007.
The applicant lodged an application for the visa on 10 March 2005.
On 25 November 2005 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.856.213 because she was unable to demonstrate that she was “a highly skilled parson” in relation to the nominated position.
On 12 December 2005 the applicant applied to the Tribunal for review of the delegate’s decision.

The relevant law

Subclass 856.213 of Subclass 856, Schedule 2 of the Regulations provides that:
856.213 The applicant:
(a) has been nominated in accordance with sub regulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and
(b) is a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment; and
(c) unless the appointment is exceptional:
(i) has not turned 45; and
(ii) has vocational English
A ‘highly skilled person’ is defined in Regulation 5.19(3) as:
(3) a person is a highly skilled person in relation to a nominated position if, in respect of work of the kind to be performed in that position:
(a) the person has completed, over a period of at least three years, formal training or equivalent experience; and
(b) unless the approved appointment is exceptional, the person has been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least 3 years:
(i) after completing the training or experience referred to in paragraph (a); and
(ii) before making the application ; and
(c) if it is mandatory for work of that kind in Australia that a person be the holder of a qualification of a kind specified in sub regulation (3A), the Minister is satisfied that the person is, or is eligible to become, the holder of that qualification.
The term “appointment is exceptional” in subreg (3)(b) is not defined in the Regulations, but according to policy, an appointment is considered to be exceptional because the position is so unusual or highly specialised that it is unlikely that the employer would find a suitable person with 3 years post training experience to fill the vacancy.

The Tribunal proceedings

On 15 June 2006, the Tribunal sent a letter to the applicant inviting her to provide information to the Tribunal (Court Book (CB) 149–150). On 13 July 2006 the applicant’s adviser sent a response with supporting documentation (CB 154-163) and with further documentation forwarded thereafter (CB 176-193).
The applicant appeared before the Tribunal on 21 August 2006 to give evidence and to present arguments.

The Tribunal’s findings and reasons (CB 201–205)

The Tribunal’s findings and reasons are summarised as follows:
·there was no evidence of the applicant holding tertiary qualifications relevant to the position of Sales and Marketing Manager. She had not completed formal training over a period of at least 3 years
·for the applicant to be “a highly skilled person” she must have completed experience equivalent to formal training, which using the ASCO Dictionary for Sales and Marketing Manager is 5 years, and in addition to be employed for a further 3 years before the making of an application
·the Tribunal rejected the applicant’s experience from 1992-1994 as being relevant to Sales and Marketing Manager (whichever of her 2 inconsistent claims as to her employment during this time were true)
·there was conflicting evidence as to where the applicant worked from September 1997 to January 1998 and found the evidence not to be credible
·there was no evidence as to the applicant’s duties at the advertising company in China between December 1996 to January 1998
·the applicant’s various positions overseas may be considered relevant experience comparable to undertaking a bachelor degree or higher qualification. It is reasonable to consider that employment experience at the level of a Sales and Marketing Manager is comparable to undertaking tertiary qualifications in this field
·there was inconsistency about when the applicant’s Chinese employment ended and her Australian employment began
·the material provided, particularly in terms of dates relating to the applicant’s employment history, was contradictory
·the Tribunal was not satisfied, based on the evidence before it, that the applicant had worked and gained experience as a Sales and Marketing Manager for a period of at least 8 years to the date of application
·the Tribunal was not satisfied that the applicant was a “highly skilled person” as defined in Reg 5.19(3) and hence did not satisfy cl 856.213(b).

The proceedings before this Court

The applicant filed the application in this Court on 17 July 2007 setting out 2 grounds for review of the Tribunal’s decision.
At the hearing of the matter before the Court on 8 February 2008, Mr Jones appeared for the applicant. Mr Goodwin of counsel appeared for the first respondent.

Grounds of application

The grounds of the application are:
(1)The Tribunal's decision was affected by jurisdictional error in that it wrongly directed itself as to the meaning of the term “equivalent experience” in Migration Regulation 5.19(3)(a).
Particulars:
The Tribunal took the view that, in order to show “equivalent experience” to three years of formal training, an applicant's experience needed to be five years at the fully-trained level for the occupation in question. To be “equivalent” to formal training, work experience would necessarily commence at an unskilled level or less-skilled level and progress towards the level of a fully trained worker.
(2)The Tribunal committed jurisdictional error of law by failing to consider the applicant's request that the appointment be treated as exceptional.
Particulars:
The applicant requested the Tribunal to consider whether the appointment was exceptional within the meaning of reg 5.19(3), but the Tribunal took no account of that request in its reasoning.

Ground 1 of the application

The applicant asserts that the Tribunal erred in two respects in considering the meaning to be given to the term “equivalent experience” in subreg. 5.19(3)(a), which, for convenience, the parties have referred to as Limbs 1 and 2 of ground 1.

Limb 1: submissions

The applicant submits that the Tribunal has erred in applying the ASCO Dictionary (published by the Australian Bureau of Statistics) period of 5 years in the face of clear legislative expression of a minimum for both formal training and equivalent experience of 3 years, not 5, and hence the Tribunal misdirected itself as to the minimum period of work experience the applicant needed to demonstrate.
The applicant therefore submits that the Tribunal has misconstrued the minimum length of time for a person to have completed either formal training or equivalent experience. It further submits that the Tribunal is therefore closing off the possibility that a person might meet this definition within a period of formal training or equivalent experience of somewhere between 3 and 5 years, notwithstanding that the Regulations say that this is possible. It submits that the Tribunal has therefore not considered whether it might approve the applicant’s case based on a finding of at least 3 years, but less than 5 years work experience.
The first respondent submits that what is “equivalent experience” is a question of fact for the Tribunal and that there is no error in the Tribunal taking into account the ASCO Dictionary as a guide in this regard. It accepts that it seems that the Tribunal has accepted 5 years for the purposes of this case, that it has then looked at the experience that this applicant has put forward as being equivalent experience, and on this basis, has not seen anything in the material before it that would cause it to differ from what ASCO has said.
The first respondent thus concedes that whilst the applicant may be correct on its construction of the Regulation, even on this construction the Tribunal has not said that three years cannot be enough. It has simply said in this case, that it has accepted that the ASCO guide is applicable to these circumstances.
The applicant submits, in reply, that the first respondent seems to be suggesting that the Court should make some assumptions about the Tribunal's reasoning process, but that the Court should not make those assumptions because the Tribunal has a statutory obligation to give its reasons and that the Court should not draw inferences as to how the Tribunal has done its reasoning or that it has thought about other things that it has not put in its reasons for decision.
The applicant submits that there is no reasoning by the Tribunal that it has considered that where the Regulations say at least three years, it has considered whether in this case it should be three rather than five years. The Tribunal has simply quoted ASCO and then gone on to say:
Based on the evidence by it, the Tribunal is not satisfied the applicant has worked and gained experience as a sales and marketing manager for a period of at least eight years.
The applicant submits that the Tribunal has not demonstrated the reasoning upon which it reached this conclusion and that the Court should not infer that the Tribunal has in fact gone through such reasoning process. The applicant submits therefore that the Court should not draw any inferences and do the Tribunal's work for it. Simply put, it is the Tribunal's job to give its reasons.
In conclusion therefore the applicant says that, by holding that the minimum period of work experience required by the definition was 8 years rather than 6, the Tribunal asked itself the wrong questions and took irrelevant considerations into account in deciding that the applicant satisfied the definition of “highly skilled person”.

Consideration of Limb 1

In regard to Limb 1 of ground 1, I do not accept the applicant’s submission that a proper construction of Regulation 5.19(3)(a) requires that the period of ‘equivalent experience’ be at least 3 years, rather than the 5 year period accepted by the Tribunal using the ASCO dictionary. If the applicant is correct that the words “at least 3 years” govern both ‘formal training’ and ‘equivalent experience’ in the subregulation, there would be no role for the legislative expression of the word ‘equivalent’ in the phrase ‘equivalent experience’. The work experience must be equivalent to at least 3 years of formal training.
The terms “formal training” and “equivalent experience” are not defined in the Regulations, as might be expected given the breadth of potential courses and areas of employment. In conducting the review, the Tribunal was thus entitled to “get any information that it considered relevant: s.359(1) of the Migration Act 1958 (Cth) (the Act). In this case, it used as a guide the ASCO Dictionary of comparative formal qualifications and relevant experience. In regard to the required ‘Skill Level’ for a Sales and Marketing Manager, ASCO states that:
The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Contrary to the applicant’s submission, I do not accept therefore that the Tribunal misdirected itself as to the minimum period of work experience which the applicant was required to demonstrate in this case. Indeed, whilst clearly not determinative of the matter, the applicant’s adviser appears to have accepted this proposition in its response submission to the s.359(2) letter inviting the applicant to provide additional information. The response sets out the relevant ASCO Skill Level and then states:
We submit that Mrs Tian has at least 5 years (September 1997 to 2006) and therefore meets the minimum ASCO requirement.
As to whether the Tribunal has provided proper and adequate reasons for its conclusion that it was not satisfied that the applicant has work experience of at least 8 years, whilst it does not spell out the precise mathematical calculation of exactly how far short the applicant fell of the required 8 years work experience, nonetheless, I am satisfied that a fair reading of the Tribunal’s decision demonstrated that it provided sufficient reasons for its decision as required of it under s.368(1)(b) of the Act.
In particular, in this regard, where there was no evidence before the Tribunal that the applicant held tertiary qualifications relevant to the position as a Sales and Marketing Manager, nor that she had completed any formal tertiary training over a period of at least 3 years, the Tribunal was only ever concerned with whether the applicant had experience in such work which totalled at least 8 years in order to come within the definition of “a highly skilled person”.
In approaching the task required of it and in making its findings, the Tribunal accurately set out the relevant law; set out the relevant skill level and tasks of the approved appointment of Sales and Marketing Manager pursuant to ASCO 12311-11; set out the applicant’s claimed qualifications and work experience; stated that the applicant must have 5 years relevant work experience based on ASCO and must then have been employed in such work for a further 3 years; set out clear reasons for discounting certain of the applicant’s claimed work experience, but accepting that some of it was relevant experience; and found that the material provided by the applicant particularly as to dates of employment was “contradictory”.
I do not consider therefore that the Court has been placed in a position of having to draw inferences as to how the Tribunal has done its reasoning as the applicant asserts. As relevantly observed by the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALR 630 at [47]:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality…
Furthermore the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 has made it clear that:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
A fair reading of the Tribunal’s reasons demonstrates that its finding that the applicant had not worked or gained experience as a Sales and Marketing Manager for a period totalling at least 8 years was supported by the evidence and that its reasons for this finding do not indicate any want of logic or irrationality.
I am satisfied overall that the Tribunal’s findings were open to it on the evidence and material before it; that it provided sufficient reasons for its decision; that it applied the correct law to those findings; and reached its conclusions based on the findings made by it. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
In conclusion on Limbs 1, I do not accept the applicant’s assertion that the Tribunal asked itself the wrong questions and took irrelevant considerations into account in deciding that the applicant satisfied the definition of a “highly skilled person” pursuant to subreg 5.19(3)(a).

Limb 2: submissions

The applicant further asserts that the Tribunal misdirected itself by holding that, to meet the equivalent experience requirement, “employment experience at the level of a Sales and Marketing Manager is comparable to undertaking tertiary qualifications in this field”. The Tribunal found that the applicant’s work experience before October 2003 did not amount to experience at that level.
The applicant asserts that the Tribunal’s error was in considering that a period of equivalent experience in substitution for formal training must be experience at the level of a fully qualified professional. It asserts that such an interpretation is untenable since it implies that from the first day of that period of experience the applicant should have had skills and abilities of the fully trained professional. But if the experience is to be equivalent to formal training, then it must be inferred that it will be a period during which the worker commences at a level of nil or minimal skill and progresses to the level of a trained professional.
It asserts therefore that the Tribunal failed to consider the question whether the applicant’s experience could have amounted to a graded development from unskilled to skilled that would be equivalent to formal qualifications. This was because the Tribunal took the erroneous view that any experience that was not “at the level of” a fully qualified Sales and Marketing Manager was not comparable to undertaking tertiary qualifications.

The applicant submits therefore that if the work experience is to be equivalent to formal training, obviously one must draw the inference that that experience cannot be experienced on day one that the person is working at the level of the fully trained professional. Otherwise, the work experience would not be equivalent to formal training at all, and that the person must have received some equivalence of formal training before that time in order to be at that level of skill.
Accordingly, the applicant submits that the Tribunal should not have been looking for only experience at that level, but for any experience which could be interpreted as equivalent to training for the position of a Sales and Marketing Manager and that it has failed to correctly apply the legislative criteria.
In conclusion, therefore on Limb 2, the applicant says that by holding that all of the experience needed to be at the level of a qualified professional, the Tribunal asked itself the wrong questions and took irrelevant considerations into account in deciding that the applicant satisfied the definition of “highly skilled person”.
In response, the first respondent submits that what experience is relevant experience for the purposes of equivalence is again a matter for the Tribunal's assessment based upon the material before it. The Tribunal's factual conclusion, in this case, was that it is reasonable to consider that employment experience at the level of a Sales and Marketing Manager is comparable to undertaking tertiary qualifications in this field. This is a factual finding, and any error in it, if there be one, is one of fact.
The first respondent concedes that whilst the applicant may be correct in saying that in some cases experience at less than the level of Sales and Marketing Manager may be relevant in determining what is equivalent experience in a particular case, it is a factual matter which could have been debated before the Tribunal. It submits that the applicant’s adviser could have submitted to the Tribunal that certain roles performed by the applicant were equivalent experience to a Sales and Marketing Manager but under a different title. It is not the case that the Tribunal is discounting for all purposes other experience, but that in the particular circumstances of this case, it was reasonable to look at experience at that level. The applicant's adviser could have made submissions as to why it was not the case for this particular applicant.
In reply, the applicant submits that a question of interpreting a term in legislation is a question of law, or at least mixed law and fact. It cannot be an entirely factual question as to whether, for example, the term, "period of at least three years" can be interpreted to mean five years and it cannot be an entirely factual question as to whether experience that is equivalent to training has to be experience at the fully trained level. These are questions of law in the interpretation of the meaning of those words in the Regulation and if the Tribunal interprets them wrongly then it is within the power of the Court to find that the Tribunal's decision is in excess of jurisdiction.
As to the first respondent’s submission that the applicant should have foreseen and answered what the Tribunal might have thought about the level at which she was working, the applicant submits that the applicant put her case, gave her history, that the Tribunal approached its task on the basis that it was going to look at periods during which the applicant had worked at the level of a Sales and Marketing Manager and that the Tribunal concluded that she had not worked at that level for the relevant period of time. It is not, it submits, that the Regulation sets up a type of case which the applicant had to prove, or to bring evidence against.

Consideration of Limb 2

In regard to Limb 2 of ground 1, the starting point is the definition of a “highly skilled person” in Reg 5.19(3). Pertinent in this regard is the preamble to Reg 5.19(3) which states that a person is a highly skilled person:
“… in relation to a nominated position … in respect of work of the kind to be performed in that position…” [emphasis added]
The subsequent terms in subreg(3)(a) of “formal training” and “equivalent experience” are thus governed by the preamble to Reg 5.19(3) Likewise, subreg(3)(b) is also governed by this preamble.
In this case, the nominated position was Sales and Marketing Manager. The Tribunal was thus bound to consider both the applicant’s formal training, if any, and her work history against that of the nominated position of Sales and Marketing Manager. I do not consider therefore that the Tribunal was required to assess a graded development from unskilled to skilled in determining equivalence to formal qualifications as the applicant contends.
I consider that the Tribunal has properly interpreted and applied the relevant regulation in this case. I therefore detect no error of law on this basis in the Tribunal's decision.
In conclusion therefore on Limb 2, I do not accept the applicant’s assertion that the Tribunal asked itself the wrong questions and took irrelevant considerations into account in deciding that the applicant satisfied the definition of “highly skilled person” pursuant to subreg 5.19(3)(a) and (b).

Conclusion on ground 1

Accordingly, for the reasons stated above in relation to both Limbs 1 and 2, Ground 1 of the application is rejected.

Ground 2 of the application

To understand the arguments raised by the parties in relation to this ground, given the very extensive scope and nature of their respective written and oral submissions, it is necessary to set out with some particularity those submissions.

The applicant’s submissions

The applicant submits that the definition of “highly skilled person” in subreg 5.19(3)(b) does not apply if the “approved appointment” is “exceptional” and that the Tribunal failed to consider the applicant’s request that the appointment be treated as exceptional. In support of this proposition, the applicant submits that:
·the structure of cl.856 requires that an applicant have been nominated for an appointment with an employer at the time of application. If the appointment has been approved by the Minister at that time, the approval is not to be more than six months old (856.214). However, it is not a time of application requirement that the appointment be an approved appointment at that time.
·although the Tribunal refers in its reasons to the "approved appointment" (eg, CB 202.8), at the time of application for the visa the appointment had not yet been approved (CB 201.6).
·the second limb of the definition of "highly skilled person", in para 5.19(3)(b), does not apply if the "approved appointment" is "exceptional". A question then arises as to how to interpret 856.213(b) in relation to an appointment that is not yet approved. The criterion is that the applicant must be "a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment" [emphasis added]. The only way this requirement can make sense in relation to an appointment that is not yet approved is to infer that the word "approved" in 5.19(3)(b) is to be disregarded.
·were the Tribunal to conclude that the as yet unapproved appointment was exceptional, then the minimum total period of work experience needed by the applicant at the time of the application would be reduced from 6 years to 3 years.
·the Tribunal clearly considered at an early stage of the matter that it had to decide whether the appointment was exceptional in relation to the definition of a highly skilled person. It wrote to the applicant on 16 June 2006 requesting "an explanation with supporting evidence as to why the appointment should be considered exceptional should you wish to be exempt from the requirement of 3 years post training experience" (CB 149.7). The applicant's solicitor replied on 13 July 2006 with a request, based on the "sufficient documentations that were previously presented to support her case", that such an exemption be granted (CB 155-156). However, in its reasons for decision, the Tribunal does not mention that request nor give any consideration to the question whether the exception should be applied.
·by failing to reach a decision whether, at the time of application, the appointment was exceptional, and therefore whether there should be no requirement for post-qualification experience, the Tribunal failed to complete its assessment of the application and ignored a relevant consideration.
In its oral submissions in further support of ground 2, the applicant submits that:
·the Regulations clearly contemplate a situation where there must be a nomination at the time of application but which does not have to have been approved yet. It has to have been approved by the time of decision but you can have a nomination that has been lodged and has not yet gone through the approval process. This raises a difficulty in the interpretation of what is meant in 856.213(b) by a highly skilled person within the meaning of Reg 5.19, because 5.19, paragraph 3(b) starts off by saying “Unless the approved appointment is exceptional…”
·if the appointment has not yet been approved how do you make that leap across from 856.213 to the definition in 5.19. The only way you can interpret both of those provisions and give them a meaning is by saying that where 856.213 says, "Within the meaning of Reg 5.19", it means mutatis mutandis, that is, to the extent that you can apply that definition to the circumstances. And the only way you can apply that definition to the circumstances of a nomination that has not yet been approved is to drop the word "approved" from the definition.
·it is impossible to see how Regulation 856.213 could have any meaning if the appointment has not yet been approved. So that would be an interpretation that leaves the legislation without a meaning. The applicant’s interpretation at least gives it a meaning.
·if the word "approved" is dropped, then the whole question about whether or not it is up to the Tribunal to decide whether the nomination at the time of application is exceptional can also be dropped. That is simply a question that the Tribunal just has not addressed. It has not considered it in its reasons, but interestingly during the preliminary process it did consider it. It obviously saw it as being relevant (CB 149).
·in this regard, the Tribunal asked the applicant for an explanation with supporting evidence as to why the appointment should be considered exceptional should she wish to be exempt from the requirement of three years post-training experience. At some point therefore the Tribunal realised that it was a relevant consideration for it to take into account. The Tribunal received a reply from the applicant's migration agent, (CB 156), but then the matter is completely dropped when the Tribunal made its decision. It just seemed to lose that issue altogether.
·there is no consideration whatsoever of this issue as to whether it might be an exceptional appointment and therefore that the three years might be waived. That is clearly a relevant consideration which the Tribunal has failed to take into account and which is a jurisdictional error.

The first respondent’s submissions

The first respondent asserts in its written submissions in regard to ground 2 that:
·there are two answers to the applicant’s submission that the requirement that the “approved appointment be exceptional” should be read as being that the “appointment” is exceptional, and that the word “approved’ be ignored.
·the first answer is that it is common ground that the Regulation contemplates separate decisions – firstly, as to whether or not the relevant appointment is “approved” for the purposes of the visa category of Employer Nomination, and secondly, if so approved, whether the applicant who is nominated for that position meets the criteria for the visa category.
·the first decision results from an application by the employer to the Minister under reg 5.19(1) and concerns the position or job that the employer needs to fill, rather than the characteristics of the person who is proposing to fill that position: An v Minister for Immigration & Citizenship [2007] FCAFC 97 per Lindgren J at [14] and [18]. The determination of whether the “appointment” was “exceptional” for the purposes of subreg 5.19(3) is to be made as a part of this decision: An per Emmett J at [47].
·the applicant does not suggest that a request was made to have the Minister determine, in the course of consideration of the employer’s subreg 5.19 request, that the position was exceptional. Nor was review sought of the Minister’s determination under subreg 5.19(1B) to approve the appointment, but not as being exceptional.
·the second answer is that the words of the Regulation should be given their ordinary meaning, and there is no warrant to ignore a term used in the Regulation simply because it provides a hurdle to a particular applicant in the peculiar circumstances of his or her application.
·the legislative scheme contemplates that at the time when the application for a visa was made, there might or might not yet be an employer nominated position that had been approved by the Minister under Reg 5.19, that is to say an “approved appointment”: An per Lindgren J at [16].
·the difficulty faced by the applicant is, to an extent, one of her own making in that it arises in part from her actions in applying for the visa before the appointment was approved.
In its oral submissions, in further support of ground 2, the first respondent submits that:
·clause 856.213(b) requires that the person be a “highly skilled person”. To find out whether that is the case one must go to Reg 5.19. The applicant points to the fact that the visa application in this case is made before the nomination for the position has been approved. The applicant could have waited until the appointment was approved and then made her application that it be “exceptional”.
·secondly, she could still have satisfied 3(b) if she had been employed in work of the kind for which she was trained or for which she was experienced for at least three years after completing the relevant experience. The employment does not have to be exceptional for her to meet it; it is only if she does not have that relevant three years’ experience, in addition, that she has to rely on the approved appointment being exceptional. In short, you can be a highly skilled person without being appointed to an exceptional appointment.
·a person can therefore meet 856.213(b) in the form that the legislation stands. Both 856.213(b) and Reg 5.19(3)(b) have work to perform. They can co-exist. There is no inconsistency. In the particular circumstances of the present applicant, unless this position was an approved appointment for a highly skilled person, she could not meet it. That is not a reason for re-construing the Regulations and dropping out words just to meet the particular circumstances of the applicant.
·even if the applicant is right, this Tribunal did not have jurisdiction to determine whether this appointment was exceptional or not anyway, and that arises from the fact that whether or not an appointment is exceptional is decided at the time that the appointment is approved, rather than by the delegate who determines whether or not to grant the visa.
·it is the employer, not the visa applicant who makes the application for approval of a nominated position; and it is the employer who must be advised that it is a Tribunal reviewable decision: (see Reg. 5.19(1), (1B), (1D)(b)(ii), (2), (2)(b)).
·the determination of whether an appointment requires a highly skilled person is to be done at the time that the employer's nomination for the approved appointment is being considered. As a simple matter of construction, subreg 5.19(3) must provide that whether or not an appointment is an exceptional appointment is done at this stage when the decision is being made as to whether an appointment will be an approved appointment. It is the appointment and not the person which must be approved.
·the appropriate applicant for review of the decision of whether or not to approve an appointment as exceptional or not, or to approve the appointment at all, is the employer and not the visa applicant: (see s.338(2), (9) of the Act; Reg.4.02(4)(e); s.347(2)(d) of the Act; and Reg 4.02(5)(d)). The present review application is for review of the grant of the visa, not review of the approval of the appointment and as to whether or not it is exceptional.
·the decision of the Full Federal Court in An lends support to this interpretation. This decision considered the whole operation of Reg 5.19 and the question of whether an appointment was exceptional in the sense that the applicant need not comply with the English requirements in the context of cl.856.213(c). Lindgren J states at [14], and [19]-[20] that:
In my view, reg 5.19 is concerned with the position or job that the employer needs to fill … as a whole, reg 5.19 is concerned with the position which the employer has nominated.
… The foregoing line of reasoning leads me to conclude that in subcl 856.213(c), the word "appointment" again means "position". Whether the position is exceptional from the viewpoint of the vocational English requirement must be capable of being decided before the visa application is made, whether or not it has in fact been decided by that time: see cl 856.214 referred to at [16] above. It appears that in fact the Departmental practice is to decide whether the position is exceptional in respect of the vocational English requirement at the stage when the visa application is being assessed. It remains true, however, that it is the position to which the requirement and the concept of exceptionality are to be applied.
Accordingly, subcl (c) means that unless the position which the visa applicant is to fill is "exceptional", the visa applicant must not have turned 45 and must have vocational English. It is therefore useful to put out of mind the particular visa applicant, when one is considering the question whether the appointment is exceptional for the purposes of subcl 856.213(c).
·according to Lindgren J therefore, at the time of application the nominated position may not be approved, but by the time of decision it must be. On this basis, if the applicant wanted to say she was nominating for a position that was approved as an exceptional appointment, she should have waited till that occurred.
·Emmett J refers in his judgment in An at [45], [47] - [50] to the relevant Departmental Manual dealing with Reg 5.19 and remarks that:
The assessment process comprises two distinct stages. The first relates to the assessment, in Australia, of the nomination lodged by an employer. The second relates to the assessment of the nominee’s application for, relevantly, an 856 visa.
Section 26.1 of the Manual states that the "Exceptional Appointment" provisions relate to:
• the three year post training experience component of the highly skilled person definition in relation to a nominated position;

• the exemption from the Schedule 2 age requirement ("has not turned 45"); and

• exemption from the Schedule 2 vocational English requirement.
Exceptional appointments in relation to the training experience component are to be assessed by the decision maker considering the employer nomination. Exceptional appointments based on the nominee’s age or English ability are to be assessed by the visa decision maker.
Section 26.5 sets out the steps involved in the assessment process. Step 1 involves the employer providing reasons why an appointment to the nominated position should be an exceptional appointment under reg 5.19(3)(b). Under Step 2, the nomination assessing officer decides whether the nomination is an exceptional appointment within reg 5.19(3)(b) and provides a report to the visa assessing office:
• giving full reasons for the appointment being assessed as exceptional:
• providing comments on whether an exceptional appointment on the grounds of age or English is warranted; and
• providing any comments that may have been received from other agencies.
Step 3 involves the nominee, being a visa applicant, lodging a visa application and, if an exceptional appointment on the grounds of age or English is sought, lodging a submission giving reasons why an exceptional appointment should be considered if the employer has not already done so in the nomination stage. Under Step 4, the visa assessing officer decides whether the nominee satisfies the visa criteria under Schedule 2, including age and English language requirements and, if an exceptional appointment on the grounds of age or English is sought, whether the appointment is exceptional for age or language ability.
Section 27 of the Manual then deals with assessing exceptional appointments by reference to the requirement of reg 5.19(3)(b). Section 27.2 of the Manual provides that the onus of proof that a position should be approved as an exceptional appointment rests with the employer and that an employer seeking an exceptional appointment will need to demonstrate how the position is exceptional. The employer is required to lodge a separate submission if the employer intends to nominate a person for the position who is 45 years or older or does not have vocational English ability. [emphases added]

And per Emmett J at [56]:
The second relevant part of the Manual deals with the Schedule 2 requirements for an 856 Visa. Section 8 of that part of the Manual deals with the question of whether an appointment is exceptional. It states that the Department’s Business Centre officers assess whether the appointment is exceptional when assessing the employer nomination. Those officers are also required to assess separately and decide whether the appointment is exceptional for visa purposes, in all cases where the nominee is 45 or older or there is anything to suggest that the nominee does not have vocational English. [emphasis added]
and at [87]:
The references to the word appointment in reg 5.19(3) tend to suggest that appointment means the job or position. The reference to highly skilled person in clause 856.213(b) refers expressly to reg 5.19. That is a compelling reason for reading the word appointment in clause 856.213(b) as meaning the job or position.
·the above reasoning by Lindgren and Emmett JJ in An presents a compelling case for reading the word appointment in 856.213(b) as meaning the job or position, again confirming that the question as to whether the appointment is exceptional has to be determined when you are looking at the job or position and not when the visa should be granted for the visa applicant.
·the question of whether or not the appointment is exceptional has to be decided at the nomination stage and there are separate review rights in relation to the decision as to whether or not the position, or the appointment, should be approved. The person with review rights is the employer, not the visa applicant. This leads to the conclusion that the present Tribunal, reviewing the decision to refuse to grant the visa to the applicant, simply did not have the power to also review the decision as to whether or not the appointment was an exceptional appointment, or to make a decision in the first place as to whether or not the appointment was an exceptional appointment.
·this result may be contrasted with the earlier legislative position where there was no distinction and separate review rights in relation to the approval of the appointment and demonstrated by the case of Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375, relied on by the applicant, which was a decision to the effect that the Tribunal could determine whether their appointment was exceptional. The history of the legislative changes are set out in that decision and it is useful for historical purposes to understand the legislative changes. Goldberg J, at [8] states, in this regard, that:
Regulation 5.19 was amended on 1 July 1999 to provide that an employer may apply to the Minister for approval of a nominated position as an approved appointment.

In conclusion, the first respondent submits that, in essence, there are three answers to ground 2 of the application:
·the first is that when one looks at the natural structure of Reg 5.19 the question of exceptionality is determined at the time of approval of the nominated position.
·the second is that, contrary to the applicant’s submission, it is not necessary to go through the statutory amendment process [that is, to drop the word “approved”] because the difficulty the applicant has with the terms of the Regulation are particular to her case. The Regulations can still operate and have meaning without making the amendments that the applicant suggests. If the appointment had to be approved, the question of exceptionality does not arise because there is no approved appointment.
·the third is that the whole issue is not within the jurisdiction of this Tribunal because it is a different applicant in relation to the question of whether the appointment is exceptional and it is a different decision. This Tribunal simply did not have power to make that decision.

Applicant’s submissions in reply

In reply, the applicant submits that “the excursion” through the various legislative provisions upon which the first respondent has taken the Court was “very instructive but … irrelevant, and it is irrelevant for reasons that have to do both with the legislation and the facts of the case” as follows:
·Reg 5.19(1B) provides that:
The Minister may, by signed instrument, approve or reject an application.
·there are therefore only two options open to the Minister, to approve or reject. There is not a third option to approve as exceptional, or approve as unexceptional. These two options flow on into the employer’s options with regard to review. The only option that the employer has for review is in the case of an application or a nomination that has been rejected.
·the facts of this case are that the nomination was approved, but it was not approved as exceptional. It was nevertheless approved.
·the sponsor cannot come to the Tribunal and say, "This application was approved but the MRT will say sorry, no jurisdiction. We only have jurisdiction in the case of a nomination or an appointment that was rejected." So what does that mean for the further determination procedure? Does it mean that the Tribunal is bound to find that an application where the nomination has been approved, but the Minister's reasoning process perhaps has suggested that it should not be considered exceptional, is binding on the Tribunal. Our answer to that is "No, that is not the case".
·the only thing that the Tribunal is bound by is the finding, the black or white finding of the Minister as to whether to approve or reject the application, and in this case it was approved. In Tvarkovski, the previous legislation had no mechanism for formal approval or rejection of an application and so it was up to the Tribunal. There were later amendments which allowed for a review of a decision to reject, but no mechanism allowing for a review of a decision to approve but not as exceptional.
·the situation is either that the applicant is in a worse situation than they would be if the nomination was completely rejected, (which is suggested is not correct), or the Tribunal simply is not bound by the Minister's reasoning in deciding whether to approve or reject the application. All the Tribunal is bound by is whether the nomination was approved or refused, especially in a case where the Tribunal is looking at the time of application criteria before the application is even approved or rejected and to say that the Tribunal is bound at point (a) by the Minister's subsequent reasoning in coming to a decision at point (b), is totally illogical.
·the legislation says the Minister can approve or reject. The Minister's reasoning for approving or rejecting is not binding on the Tribunal is our argument. It is the Minister's approval or rejection that is binding. The Tribunal can still find it is exceptional.
·the case of An is relevant in a negative way, in that even though Emmett J goes through the Manual and quotes it extensively, there is no ruling by his Honour that the Manual in any way amounts to some binding guideline or correct interpretation of the law.
·there was no decision to reject this nomination, it was simply a decision to approve it. That was all that was binding on the Tribunal. It was only binding on the Tribunal at the time of decision because in this case at the time of application it was not even considered, and therefore the Tribunal was required to look at the question of whether it was exceptional for the highly skilled definition and it did not do so and therefore it failed to properly do its job.

Consideration of Ground 2

Having carefully considered the respective submissions of the parties, I do not accept the applicant’s submissions on this ground. Where a legislative provision, (in this case being the term “unless the approved appointment is exceptional” in Reg 5.19(3)(b)), can be construed with common sense, logic and in accordance with its ordinary meaning, to produce a meaningful result, as has been demonstrated by the first respondent, it cannot be the case that the Court should adopt an interpretation that calls for a key word (in this case “approved”) to be simply expelled from the provision.
In support of this conclusion, it is important to put this term in context. To be eligible for the grant of a 856 visa, the applicant must been nominated by her employer in respect of an appointment in the business of that employer and must be a highly skilled person within the meaning of reg 5.19 in relation to that appointment. The relevant criteria in the present context in the definition of “a highly skilled person” in subreg (3) requires that the applicant, after having completed at least 3 years of formal training or equivalent experience, must also have relevant work experience of at least a further 3 years. The only exemption of this requirement is where “the approved appointment” is assessed as “exceptional”.
The grant of the visa thus contemplates two quite distinct stages of assessment. The first is the assessment of the position for which the applicant has been nominated to fill which must be lodged by the employer. The second is the assessment of the visa application itself. Each assessment is made by a different decision-maker, with the question of an exceptional appointment being made by the same decision-maker who is assessing the employer nomination.
It is the employer and not the visa applicant who makes the application for approval of the nominated position; the employer who must be advised that it is a Tribunal reviewable decision; the employer who has the right of review of the decision of whether the appointment is approved and thus whether it is, in a given case, determined to be “exceptional” (see seriatim, Reg 5.19(1), (1B), (1D)(b)(ii), (2), (2)(b)); s.338(2) and (9) of the Act; Reg 4.02(4)(e); s.347(2)(d) of the Act; and Reg 4.02(5)(d)). I accept that it is the appointment and not the person which must be approved in this context.
As stated by Emmett J in An:
Exceptional appointments in relation to the training experience component are to be assessed by the decision maker considering the employer nomination. [emphasis added]
In this regard, His Honour points to the clearly defined procedure set out in the Departmental Manual for an appointment to be held to be exceptional under Reg 19(3)(b). It provides first that it is the employer who must provide reasons why an appointment to the nominated position should be found to be an exceptional appointment; secondly, the nomination assessing officer must decide whether the nomination is an exceptional appointment and must provide a report to the visa assessing office; thirdly, the visa applicant lodges the visa application, and fourthly, the visa assessing officer must decide whether the visa applicant satisfies the visa criteria.
The Manual further provides that the onus of proof that a position should be approved as an exceptional appointment rests with the employer and that an employer seeking an exceptional appointment will need to demonstrate how the position is exceptional. The Manual states, in regard to the requirements for an 856 visa, that the Department’s Business Centre officers must assess whether the appointment is exceptional when assessing the employer nomination.
Whilst I accept the applicant’s submission that the Departmental Manual cannot be taken as binding in these matters, nonetheless it provides most important guidance where it is consistent with a proper construction of the relevant legislative provisions. Emmett J’s approach in An demonstrates that he was very clearly of this view.
When one looks at Reg 5.19 as a whole, it is evident that the purpose of the provision is to deal with the “approval” of an employer nominated position and it is in the course of that approval process that a decision must be made that the appointment is exceptional, not at the time of the visa application by the decision-maker of the visa application process.
To come within the definition of a “highly skilled person” in Reg 5.19(3), it must be “in relation to “a nominated position”, but if one wishes to obtain the exemption from the further 3 year work requirement, pursuant to subreg.(3)(b), it requires as a precondition that “the appointment” must be approved and have been determined to be exceptional. The reasoning of both Lindgren and Emmett JJ in An makes it clear that “the appointment” is the job or position for which the applicant has been nominated by the employer.
Certainly, as the applicant points out, Reg 5.19(1B) provides that the Minister may “either approve or reject” an application for a nominated position, however I do not accept that this is inconsistent with a determination being made that an application, once approved, can or cannot be determined as exceptional. I do not accept that the provision should be constrained in the way that the applicant suggests.
The applicant in this case, if wishing to rely on the exceptional exemption in subreg (3)(b) in relation to the visa application, would need to have had the appointment approved with this exceptional status confirmed prior to seeking the exemption in the context of the visa application assessment.
It is not for the Tribunal on the visa application to determine the question of exceptional status, rather it must be determined at the time of determining the application for approval of the nominated position. They are quite distinct tasks to be undertaken. I do not therefore accept the submission by the applicant that the Tribunal fell into error by itself failing to consider the applicant’s request that the appointment or position be determined as exceptional.
I accept that the Tribunal invited the applicant (in the s.359(2) letter) to provide:
An explanation with supporting evidence as to why the appointment should be considered exceptional should you wish to be exempt from the requirement of 3 years post training experience. [emphasis added]
Merely because the Tribunal provided this invitation and even if the Tribunal erroneously saw itself, at this point in time, as the arbitrator of this question, there is no doubt that this was no longer the case by the time that it handed down its decision. As the applicant points out, the Tribunal is silent on the matter. Taking the argument at its highest, there is no error of law in the Tribunal wrongly seeking the requisite information but not acting upon it. It is clear from the above analysis that it was not the function of the Tribunal to entertain such a request. It was the role of the nomination assessing officer on the submission of the employer.
The Tribunal thus, when reviewing the delegate’s decision to refuse the visa application, did not have the power itself to determine in the first place whether the approved appointment should be considered exceptional, nor to review whether or not it was an exceptional appointment.
I do not therefore accept the applicant’s submission that by failing to reach a decision whether, at the time of visa application, the appointment was exceptional, the Tribunal failed to complete its assessment of the application, that it ignored a relevant consideration, and thereby fell into jurisdictional error.

Conclusion on ground 2

In conclusion, I consider that the term “unless the approved appointment is exceptional” in subreg 5.19(3)(b), should be construed according to its ordinary meaning, and the word “approved” should not be expunged from the Regulation merely because it provides a hurdle to the applicant in the particular circumstances of her application.
I further consider that it was not the function of the Tribunal to assess and determine the question of whether the approved appointment was “exceptional” in determining whether the applicant met the criteria in the definition of a “highly skilled person” in Reg 5.19(3), and hence whether she satisfied the cl.856.213(b) visa criteria. Contrary to the applicant’s assertion, the Tribunal did not fail to properly do its job in this respect. I detect no jurisdictional error on the part of the Tribunal in this regard.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.476 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 24 April 2008