Ni v Minister for Immigration

[2017] FCCA 1172

FEDERAL CIRCUIT COURT OF AUSTRALIA

NI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1172

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migrations Regulations 1994 (Cth), reg.1.15B, Schedule 2 – cl.186.222
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

First Applicant: HANWEI NI

Second Applicant: YAN LU

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 597 of 2017

Judgment of: Judge Emmett

Hearing date: 31 May 2017

Date of Last Submission: 31 May 2017

Delivered at: Sydney

Delivered on: 31 May 2017

REPRESENTATION

The Applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondents: Mr Dominic Eberl
Australian Government Solicitor

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 597 of 2017

HANWEI NI

First Applicant

YAN LU

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. On 1 March 2017, the applicants filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 6 February 2017 (“the Tribunal”), refusing to grant the applicants Employer Nomination (Permanent) (Class EN) visas .

2. On 6 April 2017, the applicants attended a directions hearing before a Registrar of the Court. The applicants were given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 17 May 2017.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicants’ application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The first respondent, in written submissions, accurately summarised the background of the applicants’ claims and the Tribunal’s decision, as follows:

   “BACKGROUND

   3. The applicants are nationals of China. On 5 February 2016, the first applicant applied for the visa, on the basis of his employment with Elite Glass Pty Ltd (Elite Glass). The second applicant was included in the application as a member of the first applicant's family unit (Court Book (CB) 1-13).

   4. In his application, the first applicant responded 'no' to the question whether he had undertaken an English language test within the last 36 months (CB 10).

   5. On 4 March 2016 and 11 May 2016, the Department invited the first applicant to provide additional evidence regarding, among other things, his vocational English language ability (CB 17, 70-80). In response, the applicant provided a number of certificates and a statement from his employer which stated (CB 42):

   This statement is to certify Elite Glass Pty Ltd will offer Han Wei Ni a salary of $97,000 in accordance with the English language Skills Exemption Threshold and will honour this salary for the duration of his employment as per employment contract

   6. On 8 July 2016, the delegate refused to grant the applicants the visa on the basis that the first applicant did not satisfy cl 186.222 of the Migration Regulations 1994 (the Regulations) (CB 82-92). Clause 186.222 requires that, at the time of application, the applicant either had vocational English as defined by r 1.15B, or was a person in a class of persons specified by the Minister in an instrument in writing for paragraph 186.222(b): CB 88-90. A copy of cl 186.222, r 1.15B of the Regulations and the relevant instrument, being Instrument 15/083 (Specification of Class of Persons 2015) is attached to these submissions.

   7. On 18 July 2016, the applicants applied to the Tribunal for review (CB 94-104).

   8. On 16 December 2016, the applicants' agent provided the Tribunal with additional material in support of the application, including photographic evidence of the first applicant's work, and a letter of reference from Elite Glass's accountant (CB 126-193).

   9. On 21 December 2016, the applicants attended a Tribunal hearing with his agent (CB 194-196). At the hearing, the applicants' agent submitted that the first applicant was exempt from the English language requirements. The Tribunal asked the applicants' agent to clarify the exemption he relied upon. In response, the applicants' agent submitted that the exemption was based on the first applicant's 'exceptional skills and abilities', accepting that the exemption the applicants relied upon before the delegate, being within Class 1 of persons specified in Instrument 15/083 made for the purposes of cl 186.222(b) of the Regulations, was no longer pressed. The applicants' agent submitted that the first applicant fell within the ANZSCO classification 139999, Specialist manager NEC and therefore within paragraph 9 of Instrument 15/083 for the purposes of r 5.19(4)(h)(ii)(D) of the Regulations (CB216 at [18]-[21]).

   10. On 12 January 2017, the applicants' agent provided the Tribunal with further material, including submissions and a letter of support from the executive manager of Elite Glass (CB 197-2016).

   11. On 6 February 2017, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 207-217).

   DECISION OF THE TRIBUNAL

   12. In its reasons for decision, the Tribunal noted that:

   12.1 the applicants had applied for a Permanent Employer Nominated (Class EN) visa, in which there was one visa subclass, being a Subclass 186 (Employer Nomination Scheme) visa (CB 214 at [2])

   12.2 the criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Regulations and that the primary criteria must be met by at least one applicant (CB 214 at [3])

   12.3 the first applicant was seeking to work in the nominated positon of Production Manager (Manufacturer) (ANSCO classification 13512) (CB 214 at [4])

   12.4 in issue was whether the first applicant met the language proficiency requirements for the grant of the visa (CB 214 at [9])

   12.5 it was not submitted by the applicants' agent that the first applicant met the language criteria required by cl 186.222(a) of the Regulations (CB 215 at [17])

   12.6 the classification relied upon in the agent's submissions (ANZSCO classification 139999, Specialist Manager NEC) was not the classification identified by the first applicant's employer when he nominated the applicant, and was not an “exempt occupation” as submitted by the applicant's agent (CB 216 at [21]).

   13. The Tribunal was satisfied that the first applicant held a responsible position, and worked well and effectively in his position. However, the Tribunal was not satisfied the applicant met the English language requirements (cl 186.222(a)), or was a person in a class specified by the Minister in an instrument in writing (cl 186.222(b)) and did not have the discretion to overlook relevant mandatory visa requirements (CB 217 at [24]-[28]).

   14. The Tribunal noted that the applicants had not sought to satisfy any other visa streams. The Tribunal therefore found that as the requirements for the Temporary Residence Transition stream had not been met, the decision under review must be affirmed (CB 217 at [28]).”

The Proceeding before this Court

1. The applicants were unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

2. The applicants confirmed to the Court this morning that they had not filed any further documents, however, they handed to the Court a document headed ‘Applicant’s Submissions’. Those submissions are as follows:

   “The Court Book contains extensive evidence as to the skills.

   I draw attention to the submission and evidence submitted in Court Book pages 199 onwards.

   The decision of the Tribunal listed in Court Book p.213-217 is affected by error of law.

   The Tribunal member suggested that occupations such as Specialist Manager were exempted occupations for the purpose of 186.222 therefore the Tribunal Member was confused and failed to specifically accept that the exceptional circumstances of the case must be accepted by the Tribunal as the applicant meets the definition.

   The Tribunal had evidence that the applicant, who did not provide IELTS test, on the other hand, he provided evidence about high payment because of lack of English and as a matter of fact English language is not required for the position because the applicant continues to train apprentices as acknowledged by the Tribunal.

   The Tribunal failed to waive the requirement of IELTS based on the exceptional skills provided to it.”

   (Errors in original)

3. The applicants confirmed that they relied on the grounds of the application as reflected in their initiating application filed on 1 March 2017. Those grounds are as follows:

   “1. The Tribunal failed to take into consideration that the nomination was originally approved and there was no mention about the requirement of $180,001 per year.

   2. The Tribunal had evidence about specialist manager occupation and supported by Executive Manager and the information provided to the Tribunal were not considered properly.

   3. The applicant continues to be employed and conducting his duties without any problems as to the lack of English language therefore the Tribunal failed to consider its discretion in this matter.

   4. Further information will be provided upon receiving copies of the documents.”

4. The Grounds of the application were interpreted for the applicants and they were invited to make submissions in support of the grounds.

5. The applicants had nothing to say in support of either Ground 1 or Ground 2. In support of Ground 3, the first applicant said that the English language was not required in the environment in which he worked and that all documents and manuals in his place of employment were in Chinese.

6. The applicants do not appear to understand the criteria they were required to meet for the grant of the visa for which they had applied.  The applicants had applied for a subclass 186 visa in the Temporary Residence Transition visa stream.

7. In the course of completing that application, the first applicant, upon whose claims the second applicant relies, answered ‘no’ to the question “has the applicant undertaken an English language test within the last 36 months.”  In answer to the question “Does the applicant have at least functional English language ability” the applicant answered ‘yes’.

8. The first applicant was required to satisfy cl.186.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), being part of the criteria for the Temporary Residence Transition Scheme visa, as follows:

   “186.222 

   At the time of application, the applicant:

   (a)  had vocational English; or

   (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.”

9. ‘Vocational English’ is defined in reg.1.15B of the Regulations as follows:

   “Vocational English

   (1)  A person has vocational English if:

   (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)  the person is an applicant for a visa; and

   (ba) for a person who was invited by the Minister under these Regulations, in writing, to apply for the visa--the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb)  for a person to whom paragraph (ba) does not apply--the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)  the person achieved a score specified in the instrument.

   (2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.”

10. In particular, pursuant to reg.1.15B(1)(bb) of the Regulations, the first applicant was required to have undertaken an English test in the last three years immediately prior to the day on which his application was made. As stated above, the first applicant stated in his application that he had not undertaken an English test within the three years prior to his application. Accordingly, the first applicant cannot satisfy that he has vocational English.

11. In those circumstances, the first applicant must be a person in a class of persons specified by the Minister in an instrument in writing in order to be granted the employer nomination visa.  The Specification of Class of Persons 2015 (“the Instrument”), being the relevant instrument for the first applicant, relevantly requires the first applicant either to meet Class 1 or Class 3.

12. Under Class 1 the first applicant must be earning at least the equivalent to the current Australian Tax Office top individual income tax rate which the Tribunal found presently to be $180,001.  On the evidence before it, the Tribunal found that the first applicant was earning $97,000 per annum.   

13. Class 3 requires the first applicant to have completed at least five years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English.  Again, there was no evidence in the bundle of relevant documents marked Exhibit 1R and filed on 20 April 2017 to suggest that the first applicant satisfied Class 3. 

14. The Tribunal was not satisfied that the first applicant had vocational English at the time he made his application nor was it satisfied that the first applicant was a person in the relevant class of persons specified by the Minister in the instrument in writing.  The Tribunal noted that it did not have the discretion to overlook the relevant mandatory requirements demanded by the Commonwealth Parliament and stated that it did not have the legal discretion to consider the first applicant’s review on compassionate or other grounds including the importance and uniqueness of the first applicant’s role to the business of his employer.

15. In the circumstances, the Tribunal affirmed the decision under review to refuse the first applicant’s visa.   

16. The first applicant does not appear to satisfy any of the relevant criteria referred to and which were mandatory.  The Tribunal’s conclusions that the first applicant did not meet those requirements would appear to be open to it on the evidence and material before it and for the reasons it gave.

17. The Tribunal did state that it acknowledged that the first applicant may have been left with the impression that the occupations listed in paragraph 9 of the Instrument would enable the first applicant to satisfy cl.186.222(b) of the Regulations. The Tribunal noted that it had indicated to the applicants that it required submissions on the issue. However, the Tribunal, upon reflection, acknowledged that paragraph 9 was not directly relevant to the first applicant’s visa application and that he was required to meet the criteria specified in cl.186.222 of the Regulations.

18. The Tribunal noted that the occupations referred to in paragraph 9 of the Instrument were a class of occupations which must be nominated by an employer in its application to nominate a position for approval by the first respondent. However, the occupations referred to in paragraph 9 of the Instrument do not exempt the first applicant from compliance with the criteria in cl.186.222 of the Regulations.

19. The second applicant rhetorically asked the Court why then did the Tribunal ask for further documents on that issue. The Tribunal acknowledged that perhaps it did so in error. However, the fact that it did so does not appear to demonstrate a jurisdictional error on the part of the Tribunal. 

20. The Tribunal would appear to be correct to find that it was obliged to affirm a decision of a delegate of the first respondent and to find that it had no discretion to waive the mandatory criteria for the grant of the visa for which the first applicant had applied. 

Conclusion

1. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

2. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this court commenced by way of application filed on 1 March 2017 should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  8 June 2017