Masouka, Hiromi v Immigration Review Tribunal
[1995] FCA 1025
•18 Dec 1995
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 455 of 1994
BETWEEN
HIROMI MASUOKA
First Applicant
-and-
CHUJI ISHIZAKI
Second Applicant
-and-
IMMIGRATION REVIEW TRIBUNAL
First Respondent
-and-
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
Coram: Olney J
Place: Melbourne
Date 15 December 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT the application be dismissed with costs.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 455 of 1994
BETWEEN
HIROMI MASUOKA
First Applicant
-and-
CHUJI ISHIZAKI
Second Applicant
-and-
IMMIGRATION REVIEW TRIBUNAL
First Respondent
-and-
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
Coram: Olney J
Place: Melbourne
Date 15 December 1995
REASONS FOR JUDGMENT
THE APPLICATION
This is an application to review the decision and/or conduct of the respondents which has resulted in the first applicant being refused a visa to travel to Australia. The application as amended by leave on 17 November 1995 is said to be made pursuant to the Migration Act1958 and/or section 39B of the Judiciary Act 1901 and/or the Administrative Decisions (Judicial Review) Act 1977 and/or the accrued jurisdiction of the Court. As it is common cause between the parties that the provisions of the Administrative Decisions (Judicial Review) Act have application it is unnecessary to consider
whether, and if so to what extent, the other sources of jurisdiction have any application.
BACKGROUND
The case has a long history.
The first applicant is a Japanese citizen. The second applicant is also of Japanese origin but is an Australian resident. He conducts a restaurant in Melbourne known as Toki's Sushi Bar where traditional Japanese food is served.
On 12 June 1992 the second applicant (the employer) lodged a nomination under the Employer Nominee Scheme whereby he nominated the first applicant for entry to Australia for permanent residence. The purpose of the nomination was to enable him to employ the first respondent as manager of his restaurant. The nomination was refused by a delegate of the second respondent (the Minister) on 29 October 1992. On 27 November 1992 the employer lodged an application for internal review and on 9 June 1993 a review officer affirmed the primary decision. Application was then made to the Immigration Review Tribunal (the Tribunal). A hearing was conducted before the Tribunal constituted by Mr Peter Bruce on 16 May 1994 and on 9 November 1994 the Tribunal affirmed the decision under review. The present application for judicial review was filed on 16 December 1994. It came before the Court for hearing on 17 November 1995.
THE TRIBUNAL'S DECISION
There is no question as to the authority of the Tribunal in the matter nor is there any question that the only issue for determination by the Tribunal was whether the employer nomination was in respect of an "approved appointment" as defined by regulation 7.10 of the Migration (1993) Regulations.
Regulation 7.10 provides as follows:
7.10.(1) A proposed appointment is an approved appointment for the purpose of these Regulations if it is the subject of an employer nomination that meets the requirements of subregulation (2).
(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 in a business:
i) located in Australia; and
ii)operated by that employer; and
(b)the work to be performed requires the appointment of a highly skilled person; and
(c)the appointment will provide the employee with full-time employment and:
i)will be permanent; or
ii)in the case of an appointment to an academic or scientific-research position in an academic, or scientific research, institution:
A)will be for a fixed term of at least 3 years; and
B)will not be subject to an express exclusion of the possibility of renewal of the appointment for a further such term; and
(d)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
(e)the Minister is satisfied that:
i)an Australian citizen or Australian permanent resident cannot be found who is suitable for the appointment; or
ii)in the circumstances of the case, the employer should not be required to seek a suitable employee in Australia; and
(f)the applicant 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.
(3) In this regulation:
"highly skilled person", in relation to a proposed employment appointment, means a person who has, in respect of work of the kind to be performed under that appointment:
(a)completed, over a period of at least 3 years, formal training or equivalent experience; and
(b)unless the approved appointment is exceptional - been employed 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)acquired competence assessed by the Minister to be at least average for a person to whom paragraphs (a) and (b) apply.
A preliminary meeting was held before the Presiding Member of the Tribunal on 19 April 1994. The following report of the preliminary meeting was forwarded to the applicants' representative on 29 April 1994:
File No V93/00987
Name: TOKI'S SUSHI BARREPORT OF PRELIMINARY MEETING
Date Held:19 April 1994
Present: Peter Bruce Presiding Member
Chuji Ishizaki Applicant
Hiromi Masuoka Principal
John Young Representative
Issues Discussed
Tribunal's role and procedures explained.
The application is not successful due to the position in question not being highly skilled and the employer does not have any record of training.
The legislation requires that both the job in question and the principal is highly skilled. Tribunal is satisfied that the principal meets the requirements.
Outcomes
Further information to be provided on the following;
-position and its previous advertising,
-detailed information about record of training,
a)Tribunal wants to know about any training that has taken place e.g. apprenticeships, Govt. training schemes, computer training. The training can be formal or informal.
b)why training has not taken place (if it hasn't)
The applicant was informed that he will have an opportunity to provide further evidence to the Tribunal and that this could be done in writing any time and/or in person at a public hearing.
In the Tribunal's reasons for decision the evidence in relation to the question of training is described in these terms:
EVIDENCE
The Department's file in this matter was provided to the Tribunal pursuant to subsection 122(2) of the Act as in force before 1 September 1994. Mr Ishizaki and the principal gave oral evidence at a hearing in this matter as did Ms Natalie Kunti and Mr Hajing Yokoi. The applicant's adviser made written submissions to the Tribunal.
The application was refused by the primary decision-maker and MIRO review officer on the basis that the employer did not have an adequate record of training and that the nominated position did not require the appointment of a highly skilled person.
The nominated position is described in the Employer Nomination Form (Form 785) as `Manager'. The job description was: `trainning (sic) workers, introducing our food beside managing of our whole restaurant's business as well as casual works'. The qualification and essential skills required were described as 'Fluency in both English and Japanese. Good managing experience and knowlede (sic) of the foods. Plus good personality'.
In response to a letter from the primary decision-maker the applicant stated 'no trainning (sic) program has been provided' (at folio 41). In the reasons for applying for review the applicant stated that `Altough (sic) there is no specific training program provided at Toki's Sushi Bar, the employment of new staff always insists (sic) that they are given extensive training at that time' (at folio 64). The oral evidence by Mr Ishizaki confirmed that no training program existed and that the training of new staff was in the nature of induction only. Mr Ishizaki stated that the applicant had not utilised any government employment schemes nor employed apprentices and that the applicant had no training guide or manual. Finally, Mr Ishizaki gave evidence to the effect that no employee had had enough Japanese language proficiency to be trained up to the occupation of manager.
Mr Yokoi, the proprietor of another Japanese restaurant, gave evidence to the effect that Japanese restaurants are different from others; that training is ongoing; that knowledge of culture was required; and that he had employed four apprentices but that none of them had completed their apprenticeships.
Ms Kunti, a former employee of the applicant, gave evidence to the effect that she had gained knowledge from the job as a waiter in respect of composition of meals, Japanese etiquette and manners, and Japanese language. She also stated that the applicant had assisted her with university studies by providing her with flexible working hours.
The Tribunal found that the employer has not made adequate provision for the training of existing employees in work relevant to the business. Having found that subregulation 7.10 (2)(d) was not satisfied, the Tribunal expressed the view
that it was not necessary to consider any other criteria, but nevertheless offered the following further observations:
Although the Form 785 describes the nominated position as that of manager, various newspaper employment advertisements by the applicant referred to the position as restaurant manager/waiter(ress) or stated that the position of restaurant manager included the duty of `waitressing'. Mr Ishizaki's oral evidence was to the effect that the main aspects of the job were: making bookings, seating customers, taking orders, accepting payment and organising and instructing other waiters. Notwithstanding submissions by the applicant's adviser that the position was primarily one of manager, the Tribunal believes it relates substantially to that of waiter. According to the Australian Standard Classification of Occupations, Occupational Definitions (1990) the occupation of `waiter/waitress (general)' has a skill level requirement of one to six months of on-the-job training. Although the position does contain some management components and a language requirement, these factors are not sufficient for the Tribunal to find that the work to be performed requires the appointment of a highly skilled person (in accordance with subregulation 7.10 (2)(b)).
THE APPLICANTS' CONTENTIONS
The grounds upon which the applicants seek review of the Tribunal's decision as set out in the amended application are as follows:
A. The applicants were denied procedural fairness.
Particulars
a)The applicant was denied an opportunity for proper translation of her witnesses evidence by the respondents from the Japanese to the English language.
b)The conduct of the first respondent in failing to make further inquiries of the second applicant, or put to the applicants for further comment the conclusions that the employer had not made adequate provision for training of existing employees and the conclusions apparently reached that the employer had not trained an existing employee for the position of manager.
B.The applicant was denied natural justice.
Particulars
a)The applicants refer to and repeat sub-paragraph A hereof.
C.There was an improper exercise of power conferred on the respondent in that in the exercise of power by the Respondents there was failure to take into account properly or at all relevant considerations.
Particulars
a)Failure to give any weight or real weight to the evidence of Mr Yokoi
b)Failure to give any weight or real weight to the evidence of Ms Runte (sic, Kunti)
c)The failure to give any weight or real weight to the transfer of Mr Nisiama and the approval of his nomination by the second applicant (sic, second respondent)
d)Failure to give any weight or real weight to the evidence of the applicants.
D.There was an improper exercise of power conferred on the respondents in that the exercise of power by the respondents was so unreasonable that no reasonable person could have exercised the power in such a way.
Particulars
a)The applicant refers to and repeats the particulars annexed to paragraph 3.
b)The conclusion that the second applicant had not made adequate provision for training of existing employees was not open or reasonably open on the evidence or was perverse.
c)The conclusion that the position to be occupied by the first applicant was not highly skilled was not open or reasonably open as the evidence was perverse.
E.The respondents erred at law in the making of the decision.
Particulars
a)The term "highly skilled" in reg 7.10(2)(b) and (3) of the Migration Regulations was misinterpreted by the first respondent.
b)The term "adequate record of training" in reg 7.10(2)(d)(i) of the Migration Regulations was misinterpreted by the first respondent.
c)The respondents erred in classification of the occupation of the first applicant and in interpretation of the ASCO dictionary.
F.There was an improper exercise of power conferred on the respondents in that in the exercise of power by the respondent irrelevant considerations were taken into account.
Particulars
a)The classification of the occupation of the first applicant adopted by the first respondent.
Despite the comprehensive nature of the grounds pleaded in the amended application the case as argued was somewhat more confined. The main burden of the applicants' argument had to do with the construction of regulation 7.10(2)(d)(i) (ground E(b)) and its application in the facts of the case. The secondary argument attacked the actual finding of the Tribunal on the basis of the particulars pleaded in grounds C and D.
No argument was advanced in support of grounds A and B and grounds E(a) and (c) and F arise only if the applicants succeed on the other grounds relied upon.
Pursuant to a direction of the Court, each party filed in advance of the hearing written contentions of fact and law. The applicants' case as argued did not depart from the case as summarised in their written contentions. In paragraphs 5 and 6 of their contentions the applicants assert:
The applicants' primary contention is that the firstnamed respondent misconstrued the provisions of reg 7.10(d)(i). In applying the terms of that regulation to the application made by the secondnamed applicant he paid no regard to the circumstances of the case. In particular, he did not consider the nature and relative small size of the subject restaurant. There is no mention in the reasons for decision of these matters. Rather the firstnamed respondent applied the test in reg 7.10(d)(i) as if the same training standards were applicable to a small specialized restaurant as were applicable to a large general restaurant like McDonalds. The concept of adequacy inherent in reg 7.10(d)(i) requires that close attention be paid to the nature and size of the business concerned, which the firstnamed respondent did not do.
The firstnamed respondent also erred in treating the test in reg 7.10(d)(i) as applying to all of the employees and in relation to the whole of the work of the business. Acting on this erroneous construction, he conducted a wholesale examination of the overall training record of the secondnamed applicant's business. He should have confined his attention to work of the kind in relation to which the employer nomination application was made. Properly interpreted the expression "adequate provision training existing employees in work relevant to the business" in reg 7.10(d)(i) requires that approach and no other.
(The references to reg 7.10(d)(i) are obviously intended to refer to reg 7.10(2)(d)(i)).
The only specific finding made by the Tribunal in relation to the question of training was that the employer had not made adequate provision for the training of existing employees in work relevant to the business. The finding reflects the
words of regulation 7.10(2)(d)(i). Although this finding really represents the Tribunal's ultimate finding, it is obvious from the content of the Tribunal's reasons, and in particular the paragraphs under the heading "Evidence" which are quoted above, that the evidence which is summarised in those paragraphs represents the Tribunal's findings of primary fact upon which it based its conclusion that the criteria in relation to training had not been satisfied. It is also clear from what is recorded in relation to the matters discussed at the preliminary hearing on 19 April 1994 and from the evidence relied upon by the Tribunal in reaching its ultimate conclusion that it did not regard regulation 7.10(2)(d)(i) as requiring it to consider only work of the kind in relation to which the employer nomination application was made.
In my opinion the sub-paragraph 7.10(2)(d)(i) requires that in the case of an existing business attention be directed to the nature of the business in question, and in particular the number and type of employees employed in the business and with those factors in mind it calls for an assessment to be made as to whether the employer has made adequate provision for the training of those employees. The adequacy of the provision for training will depend upon the particular circumstances of the case and will require a subjective assessment to be made
There are several points that can be made about the regulation 7.10(2)(d).
First, when subparagraphs (i) and (ii) are read together, it is clear that the regulation will apply only in a case whether adequate provision for training has been made or is to be made. This assumes that there will be some provision for training. An employer in an existing business who has not made, or an employer in a new business who does not intend to make, any provision at all for the training of existing employees (or future employees in the case of a new business), can never satisfy the criteria of the regulation. No training at all can never be regarded as adequate training for the purposes of the regulation.
Second, regulation 7.10(2)(d)(i) directs attention to the provision of training in work relevant to the business. The plain meaning of the words used does not admit of a construction that would confine the Tribunal to a consideration of whether adequate provision has been made for training in work relevant to the position intended to be filled by the proposed appointee. The policy of regulation 7.10(2)(d) is to promote training in general not just in relation to the position sought to be filled by the nominee. It is directed to all existing employees and to work relevant to the business as a whole. It contemplates that a nominee will be a highly skilled person appointed to fill a full-time permanent position for which a suitable Australian citizen or resident cannot be found. As part of the price to be paid for the concession the employer seeks by resort to the Employer Nominee Scheme, the employer must establish that adequate
provision has been made and will continue to be made (in the case of an existing business) for the training of existing employees in work relevant to the business. Whether or not that training may in the future result in an Australian citizen or resident being available to fill the position requiring the highly skilled person is beside the point. In many cases, and this may well be such a case, the particular qualities required to fill the position in question will be such that no degree of training will be adequate to qualify another person to fill it. For example, the proficiency in language, the managerial experience, the knowledge of Japanese cuisine and culture and the personal characteristics called for in this case would seem to demand a person whose background both culturally and in business has been essentially Japanese and acquired by living and working in Japan. It is hard to imagine how any training program however adequate by ordinary standards could produce skills which cannot be taught.
The Tribunal's decision, when considered in the context of the matters referred to in the report of the preliminary hearing indicates that it adopted a construction of reg 7.10(2)(d)(i) consistent with the view expressed above as to the true meaning of the regulation. In my opinion the decision does not display any error of law in this respect.
The evidence to which the Tribunal adverted in its reasons, insofar as it related specifically to the question of training
existing staff in work relevant to the employer's business, suggests variously that -
a)No training program has been provided;
b)There is no specific training program but new staff are given extensive training at that time (presumably, at the time they are engaged);
c)No training program exists and training of new staff is in the nature of induction only;
c)The employer had not utilised any government employment schemes or employed apprentices;
e)The employer had no training guide or manual;
f)A former employee who had worked as a waiter had gained knowledge in relation to the composition of meals, Japanese etiquette and manners and Japanese language.
On the basis of this uncontested evidence the Tribunal concluded that the employer had not made adequate provision for the training of existing employees in work relevant to the business. The Tribunal made its own assessment of the adequacy, in the facts of the particular case, of the provision made for training and it concluded on the evidence that no adequate provision was made. Such a finding was clearly open to the Tribunal.
The applicants complain that the Tribunal either overlooked or rejected other uncontested evidence and assert that it was not open to the Tribunal to do so. In paragraph 7 of their written contentions the applicants say:
The applicants' subsidiary contention is that it was not open to the firstnamed respondent to reject the evidence of the applicants and their witness and to fail to be satisfied as to the adequacy of the training record of the secondnamed applicant. Evidence was given by the two applicants, Mr Yokoi (the proprietor of another Japanese restaurant) and Ms Kunti (a former employee of the secondnamed applicant). The two applicants also provided information with the applications that they made and in written submission (see exhibits "CLR1" - "CLR11"). All of that evidence was to the effect that it was extremely difficult for relatively small Japanese restaurants to attract, retain and train Australian staff. The evidence explained that the experience of Toki's Sushi Bar was no different to the experience of other such restaurants in this respect. The evidence also set out what attempts at training had been undertaken by the secondnamed respondent, and how some of these at least had been successful. None of this evidence was contradicted, yet all of it was rejected by the firstnamed respondent without explanation. In doing so the firstnamed respondent made a decision that was not open to him, legally unreasonable or made a decision for which there was no evidence at all. It is also contended that the firstnamed respondent denied the applicants natural justice in making a decision of that kind in those circumstances without giving the applicants a further opportunity to be heard.
If the applicants' submission is that the Tribunal acts unreasonably unless it accepts as probative of the facts asserted all uncontested evidence which is adduced in support of a case, then I reject that submission. In this case there was clear evidence from the applicants that no training program has been provided by the employer. Other evidence may have supported the view that there was to some extent "on the job" training. It was for the Tribunal to assess the adequacy of the training (if any) in the context of the particular case and it did so by referring to the aspects of the evidence which led it to the conclusion that the training was not adequate. It referred in its reasons to the departmental files that had been made available to it and to the oral evidence of the second applicant and of Ms Kunti. It was not obliged to recite in every detail all aspects of that evidence. There is no reason to believe that the Tribunal ignored any aspect of the evidence. It was required
to give such weight to the evidence as it considered appropriate and to reach a conclusion based upon its assessment of the evidence as a whole. It clearly formed a view as to the conclusion to which the evidence led, and that conclusion was that no adequate provision for training had been made. To do so was neither erroneous in law nor unreasonable.
CONCLUSION
In my opinion that Tribunal did not err in its construction of regulation 7.10(2)(d)(i). The conclusion it reached as to the failure of the applicants to satisfy the criteria of that regulation was open to it on the evidence before it. Based as it was on findings of fact that were open to it on the evidence, the decision was neither erroneous in law nor was it the product of an unreasonable exercise of power. In the circumstances, no basis for the review of the Tribunal's decision has been made out.
In view of the conclusions I have expressed above, there is no need to consider whether the "observations" made by the Tribunal relating to the question of whether the position to which the employer wishes to appoint the first applicant calls for "a highly skilled person", is a decision susceptible to review.
The application for review is dismissed.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated: 15 December 1995
Heard: 17 November 1995
Place: Melbourne
Judgment: 15 December 1995
Appearances:
Mr K. Bell (instructed by Baker & Armstrong) appeared for the applicants.
Mr N. Mukhtar (instructed by Australian Government Solicitor) appeared for the respondents.
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