Nguyen and Vu Publishers Pty Ltd v Minister for Immigration and Anor
[2013] FCCA 1697
•30 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN & VU PUBLISHERS PTY LTD v MINISTER FOR IMMIGRATION & ANOR and NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1697 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether Tribunal misconstrued reg.2.72(10)(aa) by focusing on “tasks” of nominated position rather than applicant’s “skills”. |
| Legislation: Migration Regulations 1994, reg.2.72(10)(aa) |
| Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562 Seema & Ors v Minister for Immigration and Citizenship & Anor (2012) 203 FCR 537 |
| Applicant: | NGUYEN & VU PUBLISHERS PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 417 of 2013 |
| Applicant: | LAN NHU HOANG VU NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 414 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 16 August 2013 |
| Date of Last Submission: | 16 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr Langmead |
| Solicitors for the Applicants: | Messrs Koenig & Simons |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
MLG 417 of 2013
Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The extension of time sought in matter MLG 417 of 2013 be granted.
The application be dismissed.
The Applicant pay the First Respondent’s costs.
MLG 414 of 2013
Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 417 of 2013
| NGUYEN & VU PUBLISHERS PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
MLG 414 of 2013
| LAN NHU HOANG VU NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
These two matters are wholly interrelated. They represent an application by Nguyen & Vu Publishers Pty Ltd to obtain, in effect, a visa for Lan Nhu Hoang Vu Nguyen to work for that company. It is, as I understand it, uncontroversial that the issues raised are such that Ms Nguyen's separate application stands or falls wholly by reference to the outcome in the company's application and accordingly only one judgment is being issued.
The grounds raised in the company's application can be put shortly. It is submitted that the Migration Review Tribunal (“the Tribunal”) fell into error of law, or alternatively reached a decision affected by Wednesbury reasonableness, because the Tribunal “incorrectly focused on the “tasks” level rather than the “skills” level” in considering whether the applicant's proposed employment fitted into the relevant ANZSCO classification. (See applicant's written submissions, paragraphs 27-29).
The position of the first respondent can likewise be put succinctly. The first respondent submits that the task for the Tribunal was to determine whether the applicant's nominated position corresponds to an occupation in IMMI 12/022 within the meaning of reg.2.72(10)(aa) of the Migration Regulations 1994 (“the Regulations”). As the first respondent's written submissions state at paragraph 7, "… Such a judgment must inevitably compare the real duties of the nominated position with that of a specified occupation, as the Tribunal did."
For the reasons that follow, I think that the submissions of the first respondent should be upheld.
The Preliminary Point - Extension of Time
The application for review of the Tribunal's decision in MLG 417 of 2013 was filed on 2 April 2013. The decision of the Tribunal sought to be reviewed was dated 21 December 2012. It is common cause that the application was four months out of time.
The applicants’ application for an extension of time was opposed and Mr Hong Anh Nguyen, the managing director of the company, gave evidence about the reasons for the delay. Mr Nguyen's affidavit affirmed 23 July 2013 relevantly deposes that Mr Oladejo, his migration agent, sent him an email advising of the Tribunal's decision on 14 March 2013 enclosing an email dated 7 March 2013 from the Tribunal Registry.
A copy of the Tribunal's email is annexed to Mr Nguyen's affidavit and suggests that Mr Oladejo telephoned the Tribunal on 7 March 2013 in relation to the application for review and was forwarded a copy of the Tribunal's decision on that date. The email relevantly asserted:
“Our records indicate that the decision notification was posted to you on 2 January 2013 via registered mail. The decision record does not appear to have been returned to the Tribunal as undelivered.”
Mr Nguyen was called to give evidence and was cross-examined. He confirmed that he had attended the Tribunal hearing and that the migration agent told him a decision was likely to occur within one to three months. He said he rang the migration agent approximately two months after the hearing and that he rang him many times thereafter but was always told no decision had been made. Mr Nguyen said he was very upset with his migration agent for not telling him until March 2013 when it would appear he was told of the result in January.
It is sufficient to say that I thought Mr Nguyen's evidence had about it the ring of truth. The proposed employee is a relative of his wife and he had every good reason to have an active interest as to the progress of the matter. There was no reason at all for him to be dilatory, quite the contrary. I believe Mr Nguyen's evidence. I am not able to say why it is that Mr Oladejo did not inform Mr Nguyen earlier than
14 March 2013 of the Tribunal's decision, but I accept that that is what occurred.
I further accept that Mr Nguyen moved promptly thereafter to ensure that the application was filed, as it was, on 2 April 2013.
Not only do I accept the explanation given by Mr Nguyen, I also accept that there is no meaningful prejudice to the respondents in the proposed extension of time. In all the circumstances it is quite clear that the time for the application to be brought should be extended.
The substantive application
The grounds of application contain two substantive grounds but they both point to the same criticism. The first ground of application refers to the Wednesbury unreasonableness point and the particulars appended to it are:
“The Tribunal failed to take account of the qualification of the nominated ANZSCO being an Associate Degree, advanced Diploma or Diploma, the qualification of the person nominated being a degree, and the qualification of ANZSCO Accounts Clerk being Certificate II or III.”
The second relevant ground is:
“There was an error of law by the Tribunal applying the wrong test by failing to take account of the qualification of the nominated ANZSCO being an Associate Degree, advanced Diploma or Diploma, the qualification of the person nominated being a degree, and the qualification of ANZSCO Accounts Clerk being Certificate II or III.”
It is readily apparent that these grounds of application are wholly consistent with the paraphrase that I have set out above.
At this stage it is appropriate to turn to the nature of the application made as identified by the materials in the Court Book (“CB”).
The Court Book
At CB3 the job title/position of the proposed employment is set out. The job title is “FINANCE AND ADMINISTRATION ASSISTANT MANAGER” and the occupation cited was “PROGRAM OR PROJECT ADMINISTRATOR”. The ANZSCO code nominated was “511112 Program or Project Administrator”.
At CB4-5 various responsibilities of the position were set out as follows:
“1. MANAGING ALL ASPECTS OF MANAGERIAL AND ACCOUNTING FUNCTIONS 2. ENSURING CUSTOMERS BILLING IS ACCURATE AND TIMELY 3. LIAISING WITH ADVERTISING CUSTOMERS AND AGENTS 4. ASSISTING WITH DEBT COLLECTIONS 5. PREPARING THE FORTNIGHTLY PAYROLL AND MAINTAINING PERSONNEL RECORD 6. ASSISTING EXTERNAL CPA IN PREPARING QUARTERLY BAS AD (SIC) GST REPORTING 7. ENSURING COMPLIANCE WITH ALL FINANCIL (SIC) STANDARDS 8. GENERAL MANAGEMENT DUTIES”
The qualifications nominated for the position were Bachelor of Business (Accounting) and the essential skills were “Business and Accounting Background”.
At CB7 and following, a job offer to Ms Nguyen is set out and the position is described as Finance & Administration Assistant Manager. At CB41 there is set out “Unit Group 5111 Contract, Program and Project Administrators”, and also a definition of a Program or Project Administrator 511112. Such a person "Plans and undertakes administration of organisational programs, special projects and support services".
At CB79 and following the decision of the delegate is set out. Relevantly the delegate concluded (CB84):
“On assessment of the evidence submitted by the applicant on the above date, I have concluded that the terms and conditions of employment that will be provided to the proposed nominee Lan Nhu Hoang Vu Nguyen, are less favourable than the terms and conditions of an Australian citizen or Australian permanent resident that would be performing equivalent work in the workplace at the same location.”
On this footing the delegate rejected the application.
At CB185 there is set out a further job offer made to Ms Nguyen. This was a revised offer with a higher salary than that earlier indicated in the offer of 2 March 2011. (See CB7).
The Tribunal's Decision
The Tribunal set out the nature of the application for review and the Relevant Law at CB228-234.
Relevantly for these purposes, the Tribunal set out reg.2.72 and in particular, the nomination having been made after 1 July 2010, the relevant sub-regulation, being sub-regulation (10)(aa) which reads:
“if the nomination is made on or after 1 July 2010 - the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph;”
The Tribunal went on to deal with Claims and Evidence at CB234-245. For these purposes the critical extract in my view is at paragraph 36 (CB240). The Tribunal had already discussed the principal tasks and duties performed by the person nominated for the position and Mr Nguyen had already confirmed that she (Ms Nguyen) was a trained accountant.
Paragraph 36 reads as follows:
“The Tribunal indicated to Mr Nguyen that his evidence concerning the nature of the nominated position was consistent with the written information concerning the position provided to the Department and on review to the Tribunal. The Tribunal indicated however that the concern was that the evidence concerning the position named by the applicant as "Finance and Administration Assistant Manager", which it accepted, did not suggest the position was that of Project or Program Administrator, and on the evidence the position appeared to more closely match that of an Accounts Clerk, ANZSCO 551111. The Tribunal stated that very few if any of the tasks and duties stated to be performed for the nominated role corresponded with the tasks and duties listed for the occupations under Contract, Program and Project Administrator, ANZSCO Unit Group 5111, which includes ANZSCO 511112, Project or Program Administrator. The Tribunal provided Mr Nguyen with a copy of ANZSCO 511112 and ANZSCO 551111 for the purposes of the discussion. The Tribunal suggested the applicant go through the tasks and duties listed therein, with his representative during an adjournment, to seek to identify which if any of those duties matched the actual duties of the nominated position. The Tribunal explained the process was not one in determining that every single task or duty corresponded, but simply whether a preponderance could be said to closely match the particular occupation.”
Paragraphs 37 and 38 read:
“37. The representative submitted that on his instructions the nominee had been studying to qualify as an accountant, that the nominator considered she was already an asset to the company in the area of the administration of the business, not limited to administration of the financial aspects. His instructions were that the nominee was not engaged in any way as an accountant or quasi-accountant, and that her importance to the business lay in her skills in administrative work. However, the way the paperwork has been presented the nominee skills in the accountancy area appear to be more emphasised in the written submissions.
38. The Tribunal put to the representative that it was not only the written evidence which suggested the nominated position was closer to accounts clerk was not that of a project administrator. The Tribunal pointed out that the oral evidence just provided by Mr Nguyen when the Tribunal asked a very open question concerning the position's tasks and duties was consistent with the written information and appeared to more closely place the position within the Accounts Clerk definition.”
Further exchanges followed which it is not necessary to review in detail. It should be noted the Tribunal had some reservations about what might be described as late additions to the applicants’ case and evidence. It should be noted that at paragraph 46 (CB242):
“The representative acknowledged that the written evidence did not place the nominated occupation squarely within the ANZSCO designation of Project and Program Administrator but submitted the Tribunal should consider the additional oral evidence and the reasons this had not been provided earlier.”
As the Tribunal recorded at paragraph 48 (CB242):
“At the conclusion of the hearing, the Tribunal indicated it would await the provision of further submissions and evidence concerning the two questions which are considered remained to be satisfied, namely whether the nominated occupation and its corresponding 6-digit code corresponded to the occupation of Project/Program Administrator specified in ANZSCO for the purposes of reg.2.72(10)(aa); and whether the terms and condition of the nominee would be no less favourable than those that would be provided to equivalent Australian position holder, for the purposes of reg.2.72(10)(c).”
Following the hearing further material was provided, including a revised job offer.
The Tribunal set out at CB243-245 the relevant extracts from the ANZSCO classifications, including Unit Group 5511 Accounting Clerks and Unit Group 5111 Contract, Program and Project Administrators.
The Tribunal referred to the decision of the Federal Court in Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562 and went on to say at 77-79:
“77. The Tribunal has accordingly approached its task by assessing the available evidence concerning the position associated with the nominated occupation to determine which ANZSCO designation the position more closely corresponds to or aligns.
78. Having had regard to all of the available evidence, the Tribunal concludes that the nominated occupation does not in fact genuinely correspond to the occupation of Project or Program Administrator. The Tribunal forms this view based upon the consistency of written evidence provided to the Department and to the Tribunal concerning tasks and duties, which did very closely within those defined in the ANZSCO dictionary for the occupation of Accounts Clerk. These descriptions of the occupation did not include any of the tasks and duties which may fall within those for Project or Program Administrator listed in ANZSCO. The Tribunal also gives weight to the oral evidence given spontaneously by Mr Nguyen to the Tribunal when asked to describe the tasks and duties of the nominated position. The Tribunal asked the witness a very open question concerning the nature of the role, and on two separate occasions after putting the initial question the Tribunal asked whether any further tasks and duties were involved. The oral evidence provided was entirely consistent with the written evidence provided previously to the Department and Tribunal, and this evidence in the Tribunal's view squarely described the occupation of Accounts Clerk, ANZSCO 551111. It was only after the Tribunal raised its concerns that the evidence indicated the nominated occupation was not Project or Program Administrator, that additional evidence was provided concerning additional tasks and duties. The Tribunal does not accept that the additional two tasks provided verbally by Mr Nguyen at the hearing genuinely form part of the nominated role. Given the Tribunal asked Mr Nguyen on three separate occasions to describe all aspects of the role during the hearing and these accorded with the written description provided previously, the Tribunal does not accept the explanation that the omission of additional duties was a product of memory failure or of lack of English language comprehension. The Tribunal notes in any case that even if it were to accept the additional duties identified by Mr Nguyen later in the hearing, the Tribunal considers the two tasks to greater or lesser degrees were closer to the occupation of Contract Administrator which was not nominated, as opposed to the specifically nominated occupation of Project or Program Administrator.
79. In addition, the Tribunal rejects the additional tasks and duties provided in the job offer dated 5 October 2012 as being genuinely part of the nominated occupation. The Tribunal finds that these duties, which on their face are closely aligned to duties within the definition of Project or Program Administrator, have been invented for the purpose of the application and do not genuinely reflect the actual position. The (sic) (Tribunal) instead accepts that the position is as it was described in evidence provided to the Department and to the Tribunal prior to the hearing, and as confirmed in the oral evidence provided initially to the Tribunal by Mr Nguyen.”
The Tribunal went on to say at paragraph 82:
“For the reasons outlined above, the Tribunal finds that the nominated occupation and its corresponding 6-digit code does not correspond to an occupation specified in ANZSCO. The Tribunal accordingly finds that the applicant does not satisfy the criteria contained within reg.2.72(10)(aa).”
The Tribunal went on to dismiss the application accordingly.
Consideration
As I understand it, no attack is made as to the findings made by the Tribunal that I have set out immediately above, that is to say that the additional duties propounded in the job offer and at the hearing were rejected by the Tribunal as being, so to speak, not genuine.
The question therefore is whether the Tribunal fell into error of law in the way it went about its task.
Regulation 2.72(10)(aa) requires the nominated occupation and its corresponding 6-digit code to correspond to an occupation and its corresponding 6-digit code specified by the Minister. As I see it, the question is whether the job nominated by the applicant corresponded to the job as set out in the ANZSCO definition of a Program or Project Administrator. The applicants’ reliance on Seema & Ors v Minister for Immigration and Citizenship & Anor (2012) 203 FCR 537 is misplaced. As counsel for the first respondent correctly submitted, that case dealt with a different question.
It seems to me reasonably clear that what the Tribunal was required to do was to assess what the applicant was going to do against a nominated ANZSCO code 511112, Program or Project Administrator.
I think that that is what the Tribunal did. I accept the submission from the first respondent's written submissions at paragraph 6 that:
“… the Tribunal explains why it considered that the nominated occupation in fact was that of “accounts clerk”. At most this is a matter on which reasonable minds could differ, and so cannot be said to be illogical or unreasonable”
In the end the submissions advanced by the applicant, in my view, misconstrue the nature of what the regulation required. While it is clear that Ms Nguyen is qualified and might well have qualifications suitable for the occupation of Program or Project Administrator, the task of the Tribunal was to decide whether the position nominated by the applicants effectively aligned with the ANZSCO classification. The Tribunal found that it did not (and in my view the Tribunal's decision was clearly open to it on the facts as they stood) and in the end that finding determines the matter.
Conclusion
For the above reason I will order that the extension of time sought in the company’s application be granted and that the application be dismissed.
As earlier indicated, Ms Nguyen’s application is entirely dependent on the company’s application and in the circumstances it must also be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 30 October 2013
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