Mulwala Golden Inn Restaurant Pty Ltd and Zhu v Minister for Immigration
[2010] FMCA 228
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MULWALA GOLDEN INN RESTAURANT PTY LTD and ZHU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 228 |
| MIGRATION – MRT considering application for permanent visa – Tribunal allegedly erroneously considering availability of temporary visa class – jurisdictional error found – writ issued. |
| Migration Regulations 1994, reg.5.19 |
| An v Minister for Immigration and Citizenship [2007] FCAFC 97 |
| Applicant: | MULWALA GOLDEN INN RESTAURANT PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 969 of 2009 |
| First Applicant: | JIAQI ZHU |
| Second Applicant: | XIUGUI ZHU |
| Third Applicant: | MIAOHONG ZHU |
| Fourth Applicant: | MIAOSHAN ZHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 970 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 February 2010 |
| Date of Last Submission: | 23 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert |
| Solicitors for the Applicant: | Chua Tan & Associates |
| Counsel for the Respondents: | Ms S. Burchell |
| Solicitors for the Respondents: | DLA Phillips Fox Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 30 June 2009.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicants’ costs fixed in the sum of $7,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 969 of 2009
| MULWALA GOLDEN INN RESTAURANT PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
MLG 970 of 2009
| JIAQI ZHU |
First Applicant
| XIUGUI ZHU |
Second Applicant
| MIAOHONG ZHU |
Third Applicant
| MIAOSHAN ZHU |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
These are two matters which require only one set of Reasons for Judgment. Mulwala Golden Inn Restaurant Pty Ltd (“Mulwala”) seeks review of a decision of the Migration Review Tribunal (“Tribunal”) dated 30 June 2009. It is common cause that Mr Zhu’s application- and the related claims by his wife and children stands or falls solely by reference to the application of Mulwala, which wants to continue to employ him. For that reason, only one set of Reasons for Judgment is being delivered.
Mulwala says that the Tribunal fell into jurisdictional error in the way that it considered whether or not the application made by Mulwala met the test contained in the relevant migration regulation as to being exceptional. It also says that the Tribunal fell into error in the way that it considered some of the evidence before it.
For the reasons that follow, I think that Mulwala is right and should have the relief that it seeks. It follows that Mr Zhu’s application should also succeed.
Background
This background largely reflects the written contentions of the applicant, which are not controversial.
Mulwala runs a Chinese restaurant at a tourist complex known as the Mulwala Water Ski Club in country New South Wales. Mr Zhu had already been employed by the restaurant as the holder of a temporary subclass 457 visa for some years at the time the application with which we are concerned was made.
Mulwala applied for approval of the nominated position of cook for
Mr Zhu on 10 April 2007, at which time Mr Zhu also applied for a permanent subclass 857 sponsored visa, proposing that position for the purposes of his application.
The delegate refused the application on 20 February 2008, indicating that some documents requested from the applicant’s then migration agent had not been forthcoming. That appears, and I gather this is common cause, to have been because of a simple breakdown of communication.
Mulwala and Mr Zhu both applied to the Tribunal for a review of the decision, which led to a hearing conducted on 20 April 2008. Mr Yap, a director of Mulwala, gave evidence by telephone. Mr Zhu attended with his migration agent, and gave evidence to the Tribunal about his own application. Further documentation was forwarded together with a submission by the agent after the hearing.
The Statutory Scheme
The relevant provisions with which the Tribunal and now the Court are concerned are in Regulation 5.19 of the Migration Regulations 1994 (“the Regulations”). These concern the approval of nominated positions where the nomination is by an employer.
By regulation 5.19(4), it is relevantly provided that:
“(4)An employer nomination meets the requirements of this subregulation if:
(a)the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:
(i) actively and lawfully operating in regional Australia; and
(ii) operated by that employer; and
(b) either:
(i) the appointment:
(A)will provide the employer with full-time employment; and
(B) will be for at least two years;
(C) will be located in regional Australia.
…
(c)unless the employment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26A(6)) or a higher qualification.”
The employer nomination application was made under the Regional Sponsored Migration Scheme. Policy in PAM3 provided relevantly that:
“The Regional Sponsored Migration Scheme (RSMS) allows Australian employers in regional and low population growth areas to fill full-time skilled permanent vacancies that had been certified by and gazetted by a Regional Certifying Body (RCB) where the employer cannot find a suitably qualified person from the local labour market.
The scheme aims to increase migration to regional Australia to boost population and increase regional Australia’s share of the economic and social benefits of skilled migration.”
Part of the policy, PAM3, read:
“39.2 Trade Positions (ASCO 4). .
Under policy, trade occupations within ASCO 4 (excluding apprenticeships) are considered, for RSMS purposes, to be positions that require a diploma or higher qualifications and, therefore, will not need to be considered against the exceptional appointment provisions.”
It should be noted that the Tribunal declined to give any effect to that paragraph of PAM3, because it found that it was inconsistent with the Regulation itself.
It should be noted that the employee, Mr Zhu, had been working for some years on a section 457 temporary visa. His application was for a Regulation 857 permanent visa.
It should also be noted that it is common cause that the relevant body specified by gazette notice is required to certify that the employer nomination meets the requirements of regulation 5.19(4)(a), (b) and (c) (regulation 5.19(4)(e)), and this has been done in this instance.
The Decision of the Tribunal
Having set out the statutory background, the Tribunal considered the claims and evidence before it. It should be noted that the proposed employer, Mr Yap (one of the directors of Mulwala), himself asserted that the appointment was not in any way an exceptional one (paragraph 27 Tribunal’s Reasons for Decision at – CB351).
That apparent concession was, however, rapidly qualified during the currency of the hearing. In many ways, much of what the Tribunal decided is foreshadowed at paragraph 28 of the Tribunal’s Reasons for Decision (CB351) in the following terms:
“At this point, the representative stated that there were exceptional circumstances in this case because the business was in a regional centre and was a tourist destination so it was very hard to find cooks specialising in Asian cooking that would work in this part of Australia. The Tribunal stated that the nominated position did not appear to be an exceptional appointment as it was an appointment of an Asian-style or Chinese-style cook. The Tribunal pointed out that such appointments were commonplace in all of Australia and that the business itself had four such cooks working in it. It was also pointed out by the Tribunal that any difficulty in attracting cooks to regional Australia may be overcome by offering higher wages or at least some form of incentive to city-based cooks and that the migration regulations should not simply be seen as a way of reducing wages and therefore business costs. The representative stated that the review applicant would see this as an exceptional appointment in this case.
Mr Yap then stated that he was still finding it hard to find cooks, which was why he could not leave the restaurant to attend the hearing in person. He stated that he understood that there were other processes in the migration system, such as temporary visas, that allowed him to bring in cooks from overseas if he could not find any in Australia and added that he was actually in the process of doing this right now. The representative confirmed that this was the case. The Tribunal stated that the fact that the business was now applying to bring in cooks on temporary visas would indicate strongly that this was not an exceptional appointment. Mr Yap responded that he wanted the primary visa applicant to work for him permanently and did not want him to do it temporarily. He claimed that it was hard to find cooks and that even when he advertised in Melbourne only a few cooks would apply because many did not want to live in a small town.”
In post-hearing correspondence, the Tribunal recorded (paragraph 32, CB352) that:
“The representative stated in the submission that this was an exceptional appointment because the business was in a regional area, was a large restaurant and employed a total of 4 cooks of which 2 were owners and the other two were holders of subclass 457 visas. It was claimed that if the application was not approved then the business would have to reduce staff or else close down if any of the remaining 3 cooks got sick or took time off. It was claimed that finding a cook with experience in Asian cooking and willing to live and work in this area of regional Australia was an exception and was unusual, which satisfied the dictionary definition of “exceptional”.”
At paragraph 42, the Tribunal considered the question as to whether the appointment was exceptional, and said the following:
“42The term “exceptional” is not expressly defined in the Act or in the Regulations, therefore pursuant to findings in
An v Minister for Immigration and Citizenship [2007] FCAFC 97, the Tribunal will have regard to the ordinary meaning of this word.
43The review applicant has submitted that the appointment in exceptional because the review applicant business is based in regional Australia, it has trouble attracting qualified cooks who want to work in the more remote parts of regional Australia and the business may lose profits or close if the appointment is not approved.
44.The tribunal accepts the submissions of the review applicant and the other businesses in Mulwala that have provided written statements to the Tribunal that it is difficult to find qualified cooks to work in regional areas including the town of Mulwala. However, as discussed with the review applicant at the hearing, the migration system has specific provisions that allow a business to bring in cooks to cover such problems and as the review applicant has stated at the hearing and in post-hearing correspondence, it is already utilizing the subclass 457 temporary visa system to cover its business needs and the shortage of cooks available locally. In this context, and having considered the evidence before it, the Tribunal finds that the appointment is not exceptional because the review applicant has other options available to it, and is already utilizing such options, to cover its needs for cooks. In this way, by using the temporary visa system as it is currently doing, it will not lose profits or close down if this appointment is not approved.”
Those extracts, in my view, accurately record the basis upon which the Tribunal disposed of the matter.
The Applicant’s case
The applicant’s primary submissions were directed to the way in which the Tribunal approached the question of deciding what was meant by “exceptional.” Putting the matter shortly, it was submitted that the Tribunal failed to consider what was meant by “exceptional” in the context of an application for a subclass 857 permanent visa. It was submitted that this failure arose, in large part, because the Tribunal both misconstrued the decision in An v Minister for Immigration and Citizenship [2007] FCAFC 97 (“An”), to which it referred, and became distracted, impermissibly, by its attention to the availability of the subclass 457 temporary visa scheme.
The second criticism made was that the way in which the Tribunal dealt with the evidence in relation to the availability of cooks obtained through the subclass 457 visa option amounted to jurisdictional error, because the Tribunal completely misconceived the nature of the evidence.
The first respondent’s submission, put shortly, was that the Tribunal had in fact asked itself the correct question, and was properly seized of what the issue was. It was submitted that one needed to read the whole of the decision fairly to understand its reasoning and that the decision, at paragraph 44 which I have already quoted, merely responded to submissions made by the applicant.
It was submitted that the Tribunal dealt with the matter, first, by reference to the Regulations, and that the additional matters raised only responded, as I have said, to matters raised by the applicant. It was submitted that the Tribunal’s decision was open to it on the facts.
The relevant Law
Both parties made extensive submissions to me about the decision of the Full Court of the Federal Court in An. With the greatest of respect, I would adopt the following propositions advanced from the decisions of Lindgren and Emmett JJ in that case.
Lindgren J said at paragraph [3]:
“The first respondent supported the Federal Magistrates Court’s view that the “appointment” was not “exceptional”, was properly a finding of fact. I think that the position is, however, more complex, as the following propositions demonstrate.
4. First, although the ordinary meaning or common understanding that a simple, non-technical English word conveys in a community is a matter of fact (re. Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 35 [per McHugh J and cases there cited]), indeed, a matter of fact which judicial notice may be taken, this is often an insufficient proposition on which cases can be decided. The reason is that associated questions of law often arise, such as whether the word is used in its ordinary non-technical sense, and, most importantly, whether, and, if so, how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Collector of Customs v AGFA-Gevaert Limited (1996) 186 CLR 389 at 395 tt. The “statutory context” refers not only to the immediately surrounding text, but also to the piece of legislation as a whole, and its purpose or object. Context provides a sound starting point for construction in all cases, even though the conclusion may ultimately be reached that the word is hardly influenced by context at all.”
At paragraph [7], Lindgren J continued:
“The word “exceptional” is a simple non-technical word. It means unusual or out of the ordinary, and is used in that sense in Sch 2, clause 856.213(c) of the Migration Regulations 1994 (Cth) (the regulations). The word is not, however, of the obviously evaluative kind referred to above. It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the “usual” or “ordinary” case that was in contemplation against which exceptionality is to be measured.”
In the same case, Emmett J said at paragraph [83]:
“The meaning of a word in a statute to a statutory instrument is a question of law, to be determined by reference to the context of the word in the statute or instrument and the purpose or object of the provision within the statute or instrument.”
Consideration
Here, having regard to the extracts from PAM3, to which the Tribunal did not take exception, and the terminology of the Regulation itself, it seems clear that the purpose of the subclass 857 visa is to provide permanent residence to employees in rural Australia in certain given circumstances.
If that Regulation is to have work to do, it cannot, so to speak, be read down by reference to the availability conjointly of another visa subclass, namely temporary visa 457.
I accept that one should read the decision of the Tribunal as a whole, and not with an eye-over finely attuned to a search for error.
Nonetheless, the passages I have quoted make it clear in my view that what the Tribunal did here was to conflate the consideration of the two visa subclasses. It was not in my view entitled to do so.
In order to answer the question whether the application made by Mulwala and by Mr Zhu was exceptional, consideration had to be given to what was the usual or ordinary circumstance pursuant to that visa subclass.
It seems clear to me that what the Tribunal actually did was to consider the applications before it essentially by reference to the availability of the alternative subclass. I repeat the following and, in my view, determinative reasoning of the Tribunal at paragraph 44 (CB354):
“The Tribunal accepts the submissions of the review applicant and the other businesses in Mulwala that have provided written statements to the Tribunal that it is difficult to find qualified cooks to work in regional areas including the town of Mulwala. However, as discussed with the review applicant at the hearing, the migration system has specific provisions that allow a business to bring in cooks to cover such problems and as the review applicant has stated at the hearing and in post hearing correspondence, it is already utilising the subclass 457 temporary visa system to cover its business needs and the shortage of cooks available locally. In this context, and having considered the evidence before it, the Tribunal finds that the appointment is not exceptional because the review applicant has other options available to it, and is already utilising those options, to cover its need for cooks.” (emphasis added)
In my view, the Tribunal was required to consider the permanent visa application on its own. By definition, it is a different sort of visa, and must be thought to give rise to differing considerations. I accept the following submission at paragraph 18 of the applicant’s contentions of fact and law:
“Had policy intended that the capacity to access the temporary subclass 457 meant that an appointment could not be exceptional for the purposes of Reg. 5.19(4)(c), it would clearly have said so. Further, the regulation itself could have said so.”
The way the Tribunal treated the matter was to infringe exactly the proposition advanced in the previous paragraph. In doing so, the Tribunal, in my view, asked itself the wrong question and relied on irrelevant evidence and, therefore, fell into jurisdictional error. Accordingly, the applicants should have the relief they seek.
The second matter raised by Mulwala concerns the way in which the Tribunal dealt with the evidence. The submission is made shortly at paragraph 20 of the submissions: “This did not deal with the case put, as at the time of decision.”
I do not think that the Tribunal fell into error in this regard. It was in the nature of the circumstances disclosed by the case that the Tribunal would not have direct or conclusive evidence as to the future employment of temporary cooks under subclass 457. The Tribunal made a decision based, as best it was able, on what was necessarily a hypothetical position. I do not think that the Tribunal fell into error in this regard. Even if it did, it was an error of fact, and would not give rise to jurisdictional error in any event.
Conclusion
For the reasons I have given, the applicants should have the relief they seek. I have prepared draft orders which I will give the parties an opportunity to study before finalising.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 9 April 2010
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