Li v Minister for Immigration
[2010] FMCA 583
•6 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 583 |
| MIGRATION – Migration Review Tribunal – Employer Nomination Visa – whether “exceptional circumstances” to waive the English language requirement – whether policy guidelines to be applied – whether jurisdictional error. |
| Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.857.213(b)(ii)(B) |
| An & Ors v Minister for Immigration and Citizenship & Anor (2007) 160 FCR 480; [2007] FCAFC 97 Cohn & Ors v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038 Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Shun Ning Mok v Minister for Immigration [2008] FMCA 162 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 |
| Applicant: | ZHONGYI LI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 18 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 13 April 2010 |
| Date of Last Submission: | 13 April 2010 |
| Delivered at: | Perth |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Chen |
| Solicitors for the Applicant: | Lily Chen & Associates |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 18 of 2010
| ZHONGYI LI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Zhongyi Li:
a)is a national of the Peoples Republic of China;[1]
b)was born on 12 June 1963;[2] and
c)first arrived in Australia on 16 June 2005 as the holder of a subclass 457 visa.[3]
[1] “China”; Court Book (“CB”) 3 and 50.
[2] CB 50.
[3] CB 130.
This is an application by Mr Li for review of a decision made by the Migration Review Tribunal[4] affirming a decision of a delegate[5] refusing to grant a subclass 857 Employer Nomination (Residence) (Class BW) visa[6] to Mr Li.
[4] “Tribunal”.
[5] “Delegate’s Decision”.
[6] “Visa”.
Delegate’s Decision – refusal of Visa application
Mr Li’s application for the Visa was made on 14 May 2008 and his spouse, Mei Rong Hong, was included in the application.[7] The Visa application was refused on 21 August 2008.[8] The bases for the refusal were that Mr Li did not:
a)have functional English; and
b)did not satisfy the delegate that there were exceptional circumstances,[9]
in accordance with reg.857.213(b)(ii)(B) of the Migration Regulations 1994 (Cth),[10] the applicable regulation in Mr Li’s case.
[7] CB 75-95.
[8] Delegate’s Decision, CB 105-113.
[9] Delegate’s Decision, CB 110-113.
[10] “Migration Regulations”.
Regulation 857.213(b)(ii)(B)
Regulation 857.213(b)(ii)(B) of the Migration Regulations requires that an applicant for a subclass 857 visa “unless exceptional circumstances apply, has functional English”.
Exceptional circumstances
There is no definition of “exceptional circumstances” in the Migration Regulations. Policy guidance is provided to the Tribunal by a Procedures Advice Manual,[11] which with respect to the assessment of “exceptional circumstances” provides as follows:
[11] “PAM”.
If the applicant does not have functional English and there is provision for exceptional circumstances to apply, the visa decision maker can assess whether exceptional circumstances exist. This assessment will generally be made at the request of the applicant, either on form 47ES or in writing after the visa application has been made.
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 for the nominated position and whether functional English is 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.
· The nominated position requires specialised skills or knowledge which are not commonly available in Australia or overseas, and the employer can demonstrate they were unable to recruit workers with the necessary English language skills.
· 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 bullying and harassment.
· Whether the employer made any effort to recruit a suitably qualified person with functional English. For example, did the employer consider recruiting workers from countries or regions with the necessary level of English language skills.
· The applicant has worked full-time in the nominated position for at least 12 months and has made a consistent effort to improve their English through a course provider throughout this period. The course provider can be an educational institution or a private tutor with recognised qualifications in teaching English, and the English language course must provide assessments which can be used to demonstrate improvements in the applicant's English language skills.
Claims that would not be considered acceptable evidence to support requests for exceptional circumstances for English include:
· The applicant will be working solely, or mostly, with workers from the same cultural background and therefore does not require functional English to communicate with work colleagues. Even for people with the same or similar backgrounds, there may be regional language variations or dialects that could cause misunderstanding within the workplace, and the composition of the workforce cannot be guaranteed due to staff turnover.
· OH&S signs and other visual aids are displayed in languages other than English. This does not necessarily demonstrate an understanding of OH&S issues and the applicant's ability to deal with any problems that may arise.
· The applicant has attended OH&S courses, with or without the presence of an interpreter. Attendance in itself does not demonstrate an understanding of OH&S issues.
· The applicant has previously worked in the nominated position while on a temporary work visa such as the subclass 457 visa and no further details have been provided. Temporary work visas assist employers with their short-term needs and the requirements for these visas may not necessarily satisfy the requirements for permanent residence visas. Applicants should not expect exceptional circumstances to apply to their case simply because they currently hold a temporary work visa.[12]
[12] Set out in the Tribunal Statement and Reasons for Decision (“Tribunal Decision”), CB 180-181 at para.38.
Application for review by Tribunal
Mr Li lodged an application for review of the refusal of his Visa application with the Tribunal on 17 September 2008.[13]
[13] CB 115-122.
Before the Tribunal, Mr Li:
a)conceded that he did not have functional English;[14] and
[14] Tribunal Decision, CB 177 at para.22.
b)advanced the following circumstances as exceptional:
i)he read, understood and acted on engineering drawings and plans on a daily basis, prior to his retrenchment;
ii)he scored 4.0 for Reading with an overall average of 3.0 in an IELTS test undertaken in Decemebr 2008 and this evidenced his reading ability;
iii)his ability to effectively liaise with colleagues in the workplace was attested to by his former supervisors;
iv)his employment role had been fulfilled without the need for functional English;
v)his ability to pass on his knowledge and skills as a welder to other workers, in some cases through a bilingual intermediary, but in other cases directly;
vi)his employer, MaxiTrans, was at the relevant time unable to recruit suitably qualified persons;
vii)his efforts to improve his English through:
·attending a workplace English language and literacy programme;
·attending an 8 week IELTS course at the University of Ballarat; and
·studying English at Perth Central TAFE;
viii)he was aware of his rights as a worker;
ix)he had experience of working as a welder in different countries, and knew not to sign anything he didn’t understand and to seek clarification of terms and conditions before signing any contracts;
x)at the ages of 46 and 47, and compounded by a more than four year absence from China, it is unlikely that he and his wife would be able to secure any form of reasonable employment in China;
xi)it had been a year since he applied for the subclass 857 visa and many of his colleagues in the same situation had been granted visas;
xii)welding is a MODL shortlisted skill;[15]
xiii)he was under 45 at the time of application;
xiv)he has had some occupational training whilst employed by MaxiTrans;
xv)he completed 200 hours of English language tuition through Ballarat Council and was granted a certificate;
xvi)he has been in Australia for more than four years;
xvii)he does not own a property and has nowhere to live; and
xviii)he is used to living in Australia.[16]
[15] On 8 February 2010, the Minister for Immigration and Citizenship announced changes to the General Skilled Migration Program. A review of the Migration Occupations in Demand List (“MODL”) found that it needed to be revoked and replaced with a more targeted Skilled Occupation List (“SOL”) to better meet the demands of the Australian Labour market. The occupation of welder is included in the SOL, which came into effect on 1 July 2010: See the Department of Immigration and Citizenship information sheet entitled, “Changes to the General Skilled Migration Program”, available through their website at
[16] Tribunal Decision CB 183-185 at para.48.
Tribunal decision
On 31 December 2009 the Tribunal affirmed the Delegate’s Decision.[17]
[17] Tribunal Decision CB 185 at para.54.
The Tribunal described its task thus:
… not to consider whether this case gives rise to compelling and compassionate circumstances but to consider whether there are exceptional circumstances justifying waiver of the English language requirement for the visa.[18]
[18] Tribunal Decision CB 182 at para.41.
The Tribunal proceeded on the basis that all of the circumstances relied on by Mr Li had been established, although it expressed some difficulty with Mr Li’s claim that he would not be able to secure employment, or find anywhere to live, given he was a highly experienced welder with favourable references.[19]
[19] Tribunal Decision CB 185 at para.49.
The sole issue for determination by the Tribunal was therefore whether there were “exceptional circumstances” for the purposes of reg.857.213(b)(ii)(B) of the Migration Regulations.
The Tribunal noted that many of the matters raised by Mr Li, such as:
a)demand for the welding skills;
b)the capacity to transfer skills;
c)his occupational health and safety training; and
d)his efforts to improve English,
were matters identified in the PAM as relevant to a consideration of whether “exceptional circumstances” had been established.[20]
[20] Tribunal Decision CB 182-183 at para.45.
The Tribunal, however, took the view that the PAM factors were not particularly helpful indicators of whether Mr Li had established exceptional circumstances. The Tribunal stated that evidence of a factor suggested by the PAM as exceptional, such as Mr Li’s understanding of an occupational health and safety awareness course, is not inherently an exceptional circumstance. It is only exceptional if it is beyond what is ordinary for persons in a comparable position.[21] In this, the Tribunal relied on United Mexican States v Cabal[22] and Hatcher v Cohn.[23] In considering the term “exceptional circumstances” the Tribunal had particular regard to the judgment in Hatcher where the Federal Court said:
‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ [in United Mexican States …] have held that ‘special circumstances’ need to be ‘extraordinary and not factors applicable to all defendants facing extradition’.[24]
[21] Tribunal Decision CB 183 at para.46.
[22] (2001) 209 CLR 165; [2001] HCA 60 (“United Mexican States”).
[23] (2004) 139 FCR 425; [2004] FCA 1548 (“Hatcher”).
[24] Tribunal Decision CB 182 at para.42 quoting Hatcher FCR at 439 per Kiefel J; FCA at para.49 per Kiefel J.
The Tribunal found that Mr Li’s circumstances, whilst perhaps deserving of intervention on compassionate grounds, were not exceptional when viewed against the circumstances of other persons in a comparable situation, that is, other subclass 857 visa applicants. The Tribunal found that it was unexceptional, and in fact routine, that subclass 857 visa applicants were skilled, able to follow occupational health and safety drills, passed on skills to other workers, were in Australia for relatively lengthy periods of time, tried to improve their English and felt settled in Australia.[25]
[25] Tribunal Decision CB 185 at para.50.
The Tribunal found that none of the matters raised by Mr Li individually, or in combination, constituted exceptional circumstances when compared with the circumstances of other subclass 857 applicants.[26]
[26] Tribunal Decision CB 185 at para.51.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[27] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[28]
Consideration: is there jurisdictional error in this case?
[27] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[28] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
Grounds one and two
Ground one and two of the amended application[29] are in the following terms:
1. The Migration Review Tribunal failed to accept the fact that the Applicant has established the exceptional circumstances as to the waiver of the functional English.
2. The Migration Review Tribunal did not take into consideration relevant information of the Applicant concerning the request of exceptional circumstances as to waiving functional English requirement.
[29] Filed on 9 April 2010 by leave: see the Court’s Orders of 14 April 2010.
The first ground reveals no jurisdictional error. It is simply a statement of disagreement with the Tribunal’s conclusion on the facts, and a factual finding going to the merits of the application is not capable, in isolation, of being set aside as jurisdictional error.
The Tribunal’s conclusion was reached after an examination, and consideration of, the relevant factors put forward as supporting Mr Li’s application. There is nothing in the Tribunal’s consideration of those factors which indicates that it failed to appreciate its task. The Tribunal’s assessment of those factors against the law applicable to the meaning of “exceptional circumstances” is unexceptional. There was no error in the way in which the Tribunal approached its task. Specifically, there was no failure on its part to appreciate what might constitute “exceptional circumstances”, namely circumstances which are unusual or out of the ordinary, or factors affecting a person and which set them apart from other persons in a comparable situation.[30] The Tribunal’s finding that Mr Li’s circumstances did not constitute “exceptional circumstances” was a finding of fact it was entitled to make within jurisdiction. The second ground therefore reveals no jurisdictional error.
[30] See Hatcher FCR at 439 per Kiefel J; FCA at para.49 per Kiefel J as cited by the Tribunal (from which an appeal was allowed but not on this point: see Cohn & Ors v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199), but see also An & Ors v Minister for Immigration and Citizenship & Anor (2007) 160 FCR 480 at 482 per Lindgren J; [2007] FCAFC 97 at para.7 per Lindgren J, followed in Shun Ning Mok v Minister for Immigration [2008] FMCA 162 at para.14 per Orchiston FM.
Ground three
The third ground is one which was not the subject of the amended application, but one which emerged from Mr Li’s amended affidavit in the following terms:
The Tribunal wrongly considered and interpreted the migration policy including the Procedural Advice Manual ("PAM") as to exceptional circumstances concerning the waver [sic] of the English language requirement. That is so long as you have established policy directed circumstances, then you have established "exceptional circumstances" to waive the English language requirement.[31]
and which was argued accordingly at hearing.
[31] Amended Affidavit of Zhongyi Li, sworn 8 April 2010, para.5.
The third ground takes issue with the fact that the Tribunal did not follow the policy guidelines set out in PAM.
The relevant principles concerning consideration of policy guidelines in administrative decision-making are succinctly stated in Hneidi v Minister for Immigration and Citizenship[32] as follows:
41 For present purposes, four relevant propositions emerge …. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
42 Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
43 Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
44 Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion” [33]
[32] (2010) 182 FCR 115; [2010] FCAFC 20 (“Hneidi”).
[33] Hneidi FCR at 120-121 per Spender, Emmett and Jacobson JJ; FCAFC at paras.41-44 per Spender, Emmett and Jacobson JJ.
Both the Federal Court and this Court have observed that:
a)the policy set out in the PAM in relation to establishing “exceptional circumstances” is not binding and is no more than an advisory administrative guide in relation to the application of the relevant provisions of the legislation;[34] and
b)failure to apply the policy set out in the PAM does not constitute an error of law, and therefore cannot constitute jurisdictional error.[35]
[34] El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at 55 per Gray J; [2004] FCA 1038 at para.45 per Gray J (“El Ess”); Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 at paras.27-28 per Smith FM (“Vishnumolakala”).
[35] El Ess FCR at 55 per Gray J; FCA at para.45 per Gray J; Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at para.36 per Heerey, Stone and Edmonds JJ; Vishnumolakala at para.28 per Smith FM.
Mr Li’s assertion that “so long as you have established policy directed circumstances, then you have established “exceptional circumstances” to waive the English language requirement” is therefore wrong.
In any event, the Tribunal did consider the PAM guidelines and gave cogent and reasonable reasons for not applying the PAM guidelines.[36] The reasons for the Tribunal not applying the PAM guidelines are set out above.[37] The Tribunal found that the circumstances were not “exceptional”, and that the matters referred to in the PAM guidelines were not “exceptional” within the ordinary meaning of that word, or when viewed against the circumstances of other persons in a comparable situation, for the purposes of reg. 857.213(b)(ii)(B) of the Migration Regulations. In the Court’s view the Tribunal’s reasoning in this respect is correct, and the matters listed by the PAM guidelines as matters for consideration in the determination of “exceptional circumstances” are essentially everyday and unexceptional matters, which do not warrant consideration as “exceptional circumstances” for the reasons given by the Tribunal.
[36] Hneidi FCR at 121 per Spender, Emmett and Jacobson JJ; FCAFC at para.48 per Spender, Emmett and Jacobson JJ, citing the Administrative Appeals Tribunal decision in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J (President).
[37] See para.14 above.
Consideration – conclusion re jurisdictional error
The Tribunal correctly set out:
a)the task before it;
b)the relevant law; and
c)Mr Li’s claims and evidence.
Nothing in the Tribunal Decision discloses that it failed to have regard to relevant considerations, or misunderstood its task as requiring a genuine review of the merits of the Delegate’s Decision. There is no error in:
a)the Tribunal’s characterisation of what constitutes an exceptional circumstance;
b)the Tribunal’s assessment of whether there were exceptional circumstances in this case; or
c)the manner in which the Tribunal dealt with the policy set out in the PAM.
The Tribunal Decision does not therefore disclose jurisdictional error.
Conclusion
For the reasons outlined above, the Tribunal Decision does not disclose jurisdictional error. The application must therefore be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 6 August 2010
2
12
2