Niram v Minister for Immigration, Multicultural Affairs & Citizenship
[2013] FCCA 590
•29 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NIRAM v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR | [2013] FCCA 590 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal misinterpreted the applicable law or misapplied the law to the facts – whether the Migration Review Tribunal made findings that no rational or logical decision maker could make on the same evidence – whether the Migration Review Tribunal failed to comply with section 360 of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal failed to take account the whole of the Procedures Advice Manual 3 relating to exceptional circumstances – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 360, 457 Migration Regulations 1994 (Cth) reg.857. |
| Cases cited: Hatcher v Cohn [2004] FCA 1548 SZMDS v Minister for Immigration and Citizenship & Anor (2010) 240 CLR 611 SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 HNEIDI & Others v Minister for Immigration and Citizenship (2010) 182 FCR 115 |
| Applicant: | SUWIT NIRAM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1781 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 20 March 2013 11 April 2013 14 May 2013 |
| Date of Last Submission: | 3 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1781 of 2012
| SUWIT NIRAM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case involves whether the Migration Review Tribunal in its decision dated 20 July 2012 (“The Tribunal”) erred in failing to find that exceptional circumstances applied such that the Applicant was entitled to an employer sponsored migration visa.
On 29 July 2009, the Applicant lodged an application for an employer sponsored migration visa to Australia. The Applicant at that time was already the holder of a 457 visa due to expire on 12 August 2009.
On 4 July 2009, the Applicant’s employer, Murray River North Pty Limited (“Murray River North”), lodged an employer nomination form under the Regional Sponsored Migration Scheme.
The Applicant is a citizen of Thailand who was born on 21 January 1967. The Applicant is a carpenter by trade and had been employed from 18 January 1991 to September 2005 as a carpenter/ welder/metal form worker, civil construction.
Since 20 September 2005, the Applicant has worked as a carpenter for his employer sponsor, Murray River North, in remote parts of Australia.
Murray River North carries out a wide range of building and infrastructure projects, exclusively in Regional and Western Australia, South Australia and the Northern Territory. Its manufacturing facilities are operative in Pinjarra, Alice Springs and Darwin in the Northern Territory and form the base for much of the work undertaken both in Western Australia, South Australia and the Northern Territory. Murray River North owns and operates its own steel fabrication and cabinet making workshops, capable of producing all relevant building materials within a controlled environment for any given project. Both structural and lightweight steel frame elements are fabricated in Alice Springs, Darwin and Pinjarra.
The Relevant Legislative Framework
Part 857 of the Migration Regulations 1994 (Cth) (“the Regulations”) sets out the criterion that needs to be met for a subclass 857 visa to be granted to an applicant. At the time of the application, the Applicant is required to satisfy the following criteria as set out at reg.857.213:
“857.213
Each of the following is satisfied:
(a) the applicant has been nominated by an employer, in accordance with subregulations 5.19(4) for an appointment in the business of that employer;
(b) the applicant
…
(ii) in any other case:
(A) Unless exceptional circumstances apply, has not turned 45; and
(B) Unless exceptional circumstances apply, has functional English; and
(C) unless exceptional circumstances apply, has a diploma (within the meaning of subregulation 2.26A(6)) or a higher qualification, that is relevant to the appointment.
(c) if it is mandatory in Australia that a person:
(i) hold a licence of a particular kind; or
(ii) hold registration of a particular kind; or
be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.”(emphasis added)
The relevant criterion for this Applicant is cl.857.213(b)(ii)(B). It is conceded on the provided International English Language Test (“IELT”) test question and in the form 47ES Application for Employer Sponsored Migration to Australia (Question 25) and Part C (Question 33) that the Applicant has less than functional English. In the circumstances, the Applicant does not have functional English as required by cl.857.213(b)(ii)(B). As the Applicant cannot satisfy the prescribed English language requirements, the decision maker must consider whether exceptional circumstances existed at the time of application which would warrant the grant of the visa.
The Macquarie Dictionary defines ‘exceptional’ as:
a)forming an exception or unusual instance; unusual; extraordinary.
b)extraordinarily good, as of a performance or product.
c)extraordinary skilled, talented or clever.
That is, in order to be satisfied that exceptional circumstances exist in relation to English the decision maker must be satisfied that unusual or extraordinary circumstances exist in this case.
The Applicant’s visa application
The Applicant had assistance with the preparation of his visa application from Mr Leony Bowey, a migration agent located in the Northern Territory.
In his visa application, the Applicant acknowledged that he had less than functional English, but stated that he wished his application to be considered as “exceptional” for the following reasons:
“The skills required for this position is that of an experienced carpenter, who specialises in metal, steel and civil work. Employer advertises around Australia but unable to fill the position. The nominee has been working with the employer for almost 4 years. The nominee has been working in remote areas of NT, WA and SA and is experienced in his field of work. (Please see submission for exceptional circumstances)”
In his visa application form, the Applicant provided the following details as to why he did not need functional English to perform all the duties of his nominated job, including how he would operate in the Australian work force and transfer skills to the Australian work force. Those details are as follows:
“The nominee performs full range of required duties, is hard working, imparts his knowledge to his co-workers and is able to communicate with his peers. Although not so fluent he understands his role and his rights in the workplace as well as complies with Occupational Health and Safety. (Please see letter of employer re: exceptional circumstances).”
The position that the Applicant was to fill was expressed to be a full time carpenter for a total remuneration package, including mandatory superannuation benefits, of $54,000. The Applicant’s job description and main job description are as follows:
“Responsible for the general carpentry of buildings, residentials from erection of steel structure to all aspects of building from structure to finished product. This includes, cementing, roofing, glazing, tiling, planning, painting as required in conjunction with government requirements and certifying authority. The applicant must be able to work in remote communities of Northern Territory, WA, and SA.”
It was a requirement of the Applicant’s position that he be able to work without close supervision and be able to work in remote communities and have at least five years’ experience as a carpenter/steel erector or related activity.
Murray River North stated that the Applicant’s appointment should be considered as exceptional for the following reasons:
“The position has been filled by the nominee for 4 years from structural work to finished product mainly government, residential buildings, and residentials. Expertise in bldg industry at AS & remote communities, covering Western Australia, South Australia & NT.
The position is exceptional as the person required must have many years of experience in the building industry.”
In relation to the Applicant’s “less than functional English”, Murray River North stated that the Applicant would be able to operate in the Australian workforce for the following reasons:
“The applicant has almost 10 years experience as a carpenter, his job included tiling, cementing, painting, welding, metal formwork, civil construction worker. He has been working in the profession in Singapore, Thailand and Australia. The applicant can communicate with fellow workers. (See enclosed letter of employers)”
Murray River North provided a duty statement for the Applicant’s carpentry position identifying 35 tasks that would be required to be able to be performed by the Applicant.
A director of Murray River North, Mr Ian McLarty, provided the following letter, dated 22 June 2009, in support of the Applicant’s visa application. The contents of that letter are as follows:
“RE : MR SUWIT NIRAM
I provide this reference in respect to Mr Suwit Niram for the purpose of supporting his application for permanent residency in Australia.
I have known Suwit since his arrival in Australia 4 years ago to work with Murray River North Pty Ltd under a 457 visa.
In my role as Director / Works Coordinator of Murray River North Pty Ltd, I have frequent and regular interaction with Suwit. At all times I have found Suwit to be a cooperative and well mannered employee, despite being placed in some very demanding work situations in remote areas of Western Australia, Northern Territory and South Australia.
Suwit has been involved in many and varied areas of the construction industry throughout his time with us. He has an aptitude to learn new skills and is always prepared to partake in any task asked of him and complete them in an efficient and competent manner. He displays a high level work ethic, applies himself to his tasks with enthusiasm, is a very competent tradesman, gets on with people generally and sets an excellent example for younger and less experienced workmates.
Suwit enrolled and completed two semesters of English at Charles Darwin University before being advised that he was ineligible and could no longer attend, as the course was offered only to permanent residents. A private tutor was then arranged and he continued lessons until the tutor departed Alice Springs.
I am of the opinion that Suwit is an asset to Murray River North and one that would not easily be replaced. In closing, I must say that Suwit is a pleasure to have in our employ and I have no hesitation whatsoever in supporting his application for permanent residency.
If you have any queries or should you require further information please do not hesitate to contact me on the number listed below.”
The Applicant’s curriculum vitae stated that the Applicant had limited primary school education but had more than 20 years of experience in the building industry, including on the job training. The Applicant had also completed a construction industry induction course in the Northern Territory.
The Applicant also provided an IELT result, dated 27 June 2009, in support of his application. That test result showed that the Applicant had an overall band score of 2.0. Band 2.0 is stated to have the following qualities:
“INTERMITTENT USER
No real communication is possible except for the most basic information using isolated words or short formulae in familiar situations and to meet immediate needs. Has great difficulty understanding spoken and written English”
On 17 August 2009, the Applicant’s migration agent wrote to the Department enclosing a statement from the General Manager of Murray River North relating to the exceptional circumstances that it wished the Department to consider in respect of the Applicant’s visa application. Relevantly, it stated as follows:
“ EXCEPTIONAL CIRCUMSTANCES FOR SUWIT NIRAM
We work out of a base yard in Alice Springs building transportable buildings for the Australian Government and then travelling to remote areas to install the buildings and complete all related on-site works.
In this line of work Suwit Niram does not need to be highly educated and English is not as much of an issue as work ethic and intelligence is. (We would also point out that within the employee base of the head contractor there are English speaking people who are married to to Thai nationals and who are fluent in the Thai language and are able to translate if the need arises. The Company also has people employed who are from New Zealand, Africa, Japan, England and the Philippines.
Please consider also that Suwit Niram has only attended the equivalent of primary school in his own country but is certainly very intelligent and a highly skilled tradesmen and manual worker with considerable experience. Suwit Niram has considerable experiences in Welding and has assisted with the fabrication of steel frames when required. His work ethic and ability to perform set tasks on a day to day basis as a Carpenter or as a Welder is performed at a high level of workmanship all of which has increased from his last 4 years of work with Murray River North Pty Ltd.
The nature of our work and location is to blame in some respects as Suwit’s English should be more advanced at this stage, however, owing to the location of our site works we are constantly travelling from yard to remote sites and our hours of work do pose problems in trying to include English training courses. We have undertaken this ourselves with limited resources at our disposal over the past twelve months and this is ongoing. Formal courses to assist with the IELTS program are not readily available at this location.
It is also to be noted that four years ago on his arrival in Australia he spoke no English whatsoever and had to start with the basics of conversational English and the alphabet. Note also that the conversational aspects would have first included topics relevant to the workplace, safety and equipment used. Suwit has made a concerted effort and continues to do so to improve his English skills, but it is something that is going to take time and we understand this and are prepared for it. Suwit forms an integral part of the team and has been trained to work efficiently and effectively with all other employees of Murray River North Pty Ltd.
The transfer of skills from one person to another is possible due to the simplicity of showing a task to be performed being shown manually first as we have Thai workers whose English levels are high enough to translate to other workers. This also applies to all O.H.&S requirements. All workers for Murray River North Pty Ltd have attended a Safety Induction Course run by NT Worksafe and Received Induction Cards to that effect.
Our employees all have access to Industrial Awards relating to their Workplace rights which are made available in our Crib Room.
The company has repeatedly advertised around Australia for staff for our remote line of work. All enquiries are met with a negative response which is is the reason the company has chosen to employ 457 Visa Holders. Copies enclosed of the latest advertisements placed in Western Australia and the Northern Territory resulted in one reply – this person is now employed by Murray River North Pty Ltd.
Roger Piggott
General Manager”
Further in support of the Applicant’s visa application is a letter dated 23 June 2009 from Justin Joyner, director of Jays Construction (WA) Pty Ltd. Mr Joyner’s company is a subcontractor and supervisor for Murray River North.
Mr Joyner stated that he had been working with the Applicant for nearly four years and found his skills “invaluable to the organisation”. Mr Joyner stated that it is difficult to engage employees who willingly undertake the sort of work undertaken by the Applicant and endure the conditions both at the sites and the length of the uncomfortable journeys to and from the sites. Mr Joyner stated that, although limited in education, the Applicant is highly intelligent and has not had the opportunities others have had to advance his education. He stated that facilities in Alice Springs did not provide for those wishing to learn for their IELT. He stated that arrangements were made with the local university for several employees to attend an English course. However, the company was advised that the course was not suitable. Mr Joyner said that the company then engaged the services of a retired English teacher who worked with the Applicant and other employees to continue their studies. Mr Joyner then said over the last 12 months he himself had undertaken that training and that the company had purchased various teaching aids, supportive material and activities to assist those employees. Mr Joyner concluded as follows:
“Communication skills and confidence have dramatically improved and [Suwit Niram] is now an extremely valuable member of our team. His experience, work ethic, and knowledge is vital in our commitment to training others.”
In relation to exceptional circumstances, Mr Joyner reiterated the difficulties in travelling to remote areas to install and construct buildings and that it was more necessary for the employees to have intelligence and a work ethic than to be highly educated and speak English.
On 30 July 2009, the Department wrote to the Applicant stating the following in relation to exceptional circumstances and functional English:
“Exceptional circumstances with respect to functional English
You have indicated in your application that you would like to apply under exceptional circumstances for meeting English language requirements. Please provide a submission requesting a waiver of the functional English requirement on the basis of exceptional circumstances. Please note that functional English requirements can be waived under exceptional circumstances only for the main applicant. In such cases, however, it would normally be expected that the functional English requirement would be waived only of the visa applicant has been nominated to work in a position for which it is not essential for them to have a functional level of English in order to transfer their skills to the Australian workforce or otherwise train work colleagues. In such cases, too, the onus is on the visa applicant to demonstrate why they do not need functional English and how they will be able to transfer their skills to Australian employees.
In considering whether exceptional circumstances apply to the main visa applicant, who does not have functional English, under policy the following factors are to be taken into account:
· the nature of the work to be performed and why functional English is not required to perform all of the duties;
· how the visa 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);
· 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. Any certificate of attendance for an OH&S course must include an assessment of the applicant’s understanding of the course material, regardless of whether an interpreter was present or not;
· the applicant’s ability to understand and deal with issues relating to their employment and workplace rights;
· efforts made by the employer to recruit a suitably qualified person with vocational English;
· the applicant has worked in the nominated position whilst on a subclass 457 visa for at least 12 months and has made a consistent effort to improve their English through a course provider.
Please note that under policy, claims that would not be considered acceptable evidence to support requirements 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 vocational English to communicate with work colleagues;
· OH&S signs and other visual aids are displayed in languages other than English;
· The applicant has attended OH&S courses, with or without the presence of an interpreter.”
On 25 November 2009, the Department approved Murray River North’s application for approval of a nominated position for a carpenter. The letter informed Murray River North that its information regarding “exceptional circumstances” would be taken into account in processing the Applicant’s visa application.
The Department’s decision on the Applicant’s visa application
On 25 November 2009, the Department wrote to the Applicant stating that the assessor was not satisfied that exceptional circumstances existed in relation to the Applicant’s application under the Regional Sponsored Migration Scheme “based on the lack of verifiable evidence provided to support your statement/claims.” The letter invited the Applicant to withdraw his application or provide verifiable evidence within 28 days.
In December 2009, the Applicant’s migration agent provided further documents to the Department in relation to the Applicant’s exceptional circumstances and the English requirement. The migration agent’s letter stated that the work undertaken by the Applicant did not require functional English. The migration agent’s submission in relation to exceptional circumstances was confined to the Applicant’s employment history and the fact that he was prepared to travel to and remain in extremely remote areas that would not be tolerated by most Australians as demonstrated by the numerous advertisements and recruitment drives carried out by Murray River North over the past four years. The letter also referred to the various training and assistance that the Applicant was receiving from his employer to improving his English.
The migration agent’s letter also enclosed a statutory declaration from Mr Justin Joyner, declared at Alice Springs on 1 December 2009, stating that, despite advertisements (of which copies were provided), the company had not been able to secure suitably qualified carpenters within Australia owing to the refusal and reluctance of people to work in extreme heat and remote parts of Western Australia, Northern Territory and South Australia. Mr Joyner stated that whilst the Applicant had no written or spoken English when he commenced employment, he had been receiving education and had learnt a great deal. Mr Joyner stated that the skills of the Applicant are “unbelievable”.
On 11 January 2010, the Department wrote to the Applicant informing him that his visa application had been refused and enclosing a copy of the decision records of the Delegate of the Department. The Delegate found that there was “no substantative evidence” to show that the Applicant had made a genuine effort to improve his English. The Delegate noted the evidence of the employer’s efforts to recruit suitably qualified persons with functional English in Australia, however was not satisfied that Murray River North was responsible for the attempts being made by Mr Joyner’s company. The Delegate also stated that the fact that carpenters with functional English may be in short supply in the local area does not automatically confer exceptional status.
In assessing whether exceptional circumstances existed for this Applicant at the time of application, the Delegate stated that he had considered the policy advice in the Department’s Procedures and Advice Manual 3 (“PAM 3”) “in relation to functional English” which the Delegate stated advises officers to consider:
·The nature of the work to be performed for the nominated position and whether functional English is required to perform all of the duties;
·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 backgrounds as the Applicants 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;
·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.
While the Delegate acknowledged that he was not bound by the policy, he could not see a reason why should depart from the policy in this case. The Delegate went on to conclude that the circumstances of the Applicant’s case were not sufficiently exceptional as to outweigh the countervailing considerations as outlined in the policy.
The review conducted by the Migration Review Tribunal
On 28 January 2010, the Applicant lodged an application for a review of the Delegate’s decision with the Tribunal.
In his review application, the Applicant appointed Mr Nigel Dobbie as his migration agent.
On 1 February 2012, the Tribunal wrote to Mr Dobbie inviting the Applicant to appear before the Tribunal and give evidence and present arguments relating to the decision under review. The Tribunal’s letter enclosed a letter addressed to the Applicant, informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the Applicant to send any further material or information that he wished the Tribunal to consider in support of his review application.
Further material was provided by the Applicant‘s migration agent, Mr Dobbie, including a letter, dated 22 February 2012, from the General Manager of Murray River North. That letter stated that the Applicant was involved in building, assembling and repairing transportable and site built units, including residential and commercial fit-out in respect of which the Applicant has a track record as a carpenter of quality workmanship and attention to detail. The letter stated that the Applicant’s job is not a “run of the mill” job of a carpenter working in suburban or semi rural Australia. The letter stated that much of the work involved working in remote indigenous communities with indigenous Australians and the Applicant had demonstrated an ability to live harmoniously with indigenous people and has developed a considerable level of trust within those communities which “is absolutely necessary in order to provide the service” that is provided by Murray River North. The letter went on to identify the loss that will be suffered by Murray River North if the Applicant’s employment was lost to them. The letter concluded that the Applicant is honest, cooperative, well mannered, likeable and extremely cheerful, despite often being placed in some very challenging work environments in remote areas of Western Australia, South Australia and the Northern Territory. The letter stated that the Applicant follows instructions easily and that there have been no problems in relation to his work.
Mr Dobbie’s submissions included a reference to Hatcher v Cohn [2004] FCA 1548 per Kiefel J as providing a helpful approach in determining whether there are exceptional circumstances generally. Kiefel J stated at paras 49-51 as follows:
“49. ‘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. (emphasis added) Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that ‘special circumstances’ need to be ‘extraordinary and not factors applicable to all defendants facing extradition’. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [52]. And in Baker v R (2004) 78 ALJR 1483; [2004] HCA 45 at [13] Gleeson CJ considered the use of ‘special circumstances’ to condition the exercise of judicial discretion. His Honour said:
‘This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.’
50 Although his Honour was speaking of judicial decision-making the observations are apposite here. The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. That is a question which arises here. (emphasis added)
51 The process of construing words in a statute must always begin with an examination of the context of the provision being construed: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, [69]. As was there pointed out, the object of statutory construction is to construe a provision so that it is consistent with the language and the purpose of the provisions of the statute as a whole. It is necessary to give meaning to each word of a provision (at 382, [71]). And words are to be assumed to be used consistently: Craig, Williamson Proprietary Limited v Barrowcliff [1915] VLR 450 at 452, unless a contrary intention appears.”
Mr Dobbie’s submissions also enclosed reports that he submitted showed that indigenous housing is a complex matter and is a core component for the advancement for Aboriginal health, longevity and overall wellbeing. Mr Dobbie submitted that the reports confirm that there is a shortage of tradespersons to work in housing in remote Australia for indigenous housing and that the Applicant had been doing so for years without any problems arising at work and that he has the trust of the communities. Mr Dobbie submitted that these factors set the Applicant apart and that the circumstances were unusual or out of the ordinary. Mr Dobbie submitted that the circumstances are exceptional such that the Applicant does not need functional English.
On 28 February 2012, the Tribunal wrote to the Applicant seeking further information, including copies of his formal qualifications relating to carpentry and welding and evidence of any further English lessons undertaken since the visa application was lodged.
The Tribunal also wrote to Murray River North requesting information about the number and type of projects they have had since early 2009, including the number specifically relating to aboriginal housing; a list of the remote areas that the Applicant had been working in since 2009 with the length of the time spent in each area; an indication of how many other employees were at that site; information about the current number of carpenters and welders that Murray River North employ; and, the composition in terms of local Australians and overseas workers.
The letter also sought from Murray River North further specific details of the attempts made to employ other persons with functional English and formal qualifications for the projects, such as the date of the advertisement, the number of responses, the number of persons employed and the length of the time the person remained with Murray River North.
On 15 March 2012, Murray River North responded to the Tribunal’s letter providing the further evidence sought.
On 26 March 2012, the Applicant’s migration agent, Mr Dobbie, wrote to the Tribunal providing further information. Mr Dobbie’s letter enclosed a letter, dated 26 March 2012, from Murray River North to similar effect as referred to above in relation to the exceptional circumstances.
The Applicant also provided a further statutory declaration declared on 9 March 2012 at Alice Springs relating to his past experience and his intention to continue to study English.
The Tribunal’s decision
On 23 December 2012, the Tribunal wrote to the Applicant enclosing a copy of its decision record, dated 20 July 2012, affirming the decision under review.
The Tribunal summarised the relevant law and summarised accurately the evidence and information before it in some detail. The Tribunal also summarised the exchanges that it had with the Applicant, including exploring with him his present level of English proficiency. The Tribunal noted that in relation to English language study, the Applicant could study three hours a week or three hours over two days and that he would like to continue to study in English.
The Tribunal Member spoke to various witnesses, including Mr McLarty, director of Murray River North, Mr Pratt, Operations Manager of Murray River North and Mr Cruger, an employee with Murray River North. All the witnesses worked closely with the Applicant on projects and have to communicate with him in relation to instructions and directions for work.
The Tribunal then explored with the Director of Murray River North the effect on that business if the Applicant was not granted a visa.
In particular, the Tribunal appeared to accept the following evidence from Mr McLarty, the Director of Murray River North;
“41. In relation to the effect on the business if any one of them was not granted a visa, Mr McLarty stated that their business had been operating for over 30 years in the remote area construction industry. He stated that it was very hard to get Australians to work in the remote areas that they are working. In terms of comfort and living side by side with indigenous people, there are very few who are willing to do this. In his view, the review applicants were irreplaceable. They are prepared to work anywhere, and there has not been a single incident in relation to living and working in an indigenous community. Their skill levels are very high and there is no problem in terms of their abilities to construct architecturally designed building. He stated that they cannot get people to work in these remote areas because of the heat, the humidity and the mosquitoes as well as not being able to have a drink. He referred to the last round of advertising that was undertaken where they had 69 applicants expressing an interest. However, after they found out what as required, none were prepared to do the work. Some might try it for a week or a month or two months and work in a remote area but very few stay on. He does not have any specific details about the most recent advertising as it is up tot the individual supervisors to advertise. There would have been advertising in relation to the detention centre project in November last year although it is not that difficult in the current climate to find workers particularly when it is on the fringe of the city, about 60 or 70 kms outside Perth. The review applicants spend a lot of their time in Darwin and Alice Springs, Mr Akawong in particular was often out with him. He stated that in terms of the composition of their workforce and the number of carpenters and welders they had, he stated that it varied, but they had about 20 odd overseas workers and some local Australians. Mr Pratt indicated that there would be 50 or 60 people out on the field at the moment.”
The Tribunal also referred to the evidence of the operations Manager of the Alice Springs yard who gave evidence of the time and money spent in teaching and enhancing the Applicant’s English skills. The Tribunal stated as follows:
“43. The Tribunal then took evidence from Mr Pratt who is the operations manager of the Alice Springs yard. He said there was also a yard at Darwin and that the review applicants go between these 2 yards and also to remote areas. He said that he had worked closely with all 3 of them since 2005. The applicants were actually the first 457 workers they had in the company and that some others have since been accepted. They have spent a lot of time and money in teaching and enhancing the review applicants’ skills and it would be a sad loss in terms of the money to the company. He stated that they had been doing English classes previously, and the company would allow them to knock off early and do about 3 hours of English and then they would return to work. The company has put a lot of effort to keep them and they have all individual skills that the business relies on. Mr Pratt stated that the review applicants have no problem engaging in conversation as they cannot speak Thai, he also encourages the review applicants to talk in English around the yard. He states that Mr Balee has very good carpentry skills, in particular he could do the finishing on the doors and install the doors well. His finishing was of a particularly high level and he was also good at reading the plans. He can give Mr Balee a list of the frames and the plans and walk away and the building would be constructed. Mr Balee currently is in a supervisory role. In respect of the other two, they all know what they need to do without being told. Most of the time it is not necessary to even communicate with them about the jobs as they know the job so well. Once any of the review applicants have been given a job, they know how to make sure the slabs are a square, put the frames in, sheet the walls inside and out and to install the windows and doors. They are as good as any carpenters that can be found in the city. At the moment Mr Balee is in Darwin and they have brought 2 other people down from Darwin and they will start a teacher’s house in a classroom in a town which is about 120 km south of Alice Springs. The review applicants have worked on clinics, four bedroom houses, police stations and a number of difference buildings. None of the buildings are exactly the same and they are built to architect specifications. All the review applicants speak English on site.”
The Tribunal also heard evidence from Mr Cruger, an indigenous employee of the business, who said that he talks a lot with the Applicant and other employees and has no problem with their English and that they have no problems understanding him. If he talks too fast, he will slow down and explain it to them and that they have no problem working together because they trust each other and are accepted by the community in which they work. Mr Cruger said he enjoys working with the Applicant and fellow Employees and that they understand how Aboriginal people live and if they are not sure about something they go to him and speak to him about it to get an understanding.
The Tribunal noted the Applicant’s submissions that exceptional circumstances apply and that the nominator employer, Murray River North, is operating in remote indigenous Australian communities where it is extremely difficult to find employees who are able to carry out the work done by the Applicant and that a level of trust is required from the indigenous communities which is not easily obtained and has been built up over time.
The Tribunal also noted the letter from Mr Roger Pigott, the General Manager of Murray River North, stating that the Applicant has no issue with reading and understanding plans and has a proven track record for quality workmanship and attention to detail. Mr Pigott stated that the Applicant is multi-skilled and has excellent welding and carpentry skills which have developed even further to include those unique to Murray River North’s remote area construction. Mr Pigott stated that the Applicant’s skills are in short supply in the building and construction industry and are critical in meeting the needs of their clients and customers.
The Tribunal also noted the Applicant’s statutory declaration that he had been working as a welder for more that 20 years in Thailand, Singapore and Australia and has specialised in welding for high rise buildings and construction work. The Tribunal noted that the Applicant had obtained a work safety at heights competency in Australia.
The Tribunal found that at the time of the visa Application, the Applicant did not have functional English within the meaning of s.5(2)(b) the Migration Act 1958 (Cth) (“the Act”) and reg.5.17 of the Regulations. The Tribunal noted that it was indicated on his visa application form that he was relying on exceptional circumstances in relation to not having functional English and not having diploma level or higher qualification relevant to the appointment.
The Tribunal correctly found that in considering whether exceptional circumstances exist, the Tribunal has regard to the ordinary meaning of “exceptional” in the sense of unusual, atypical or out of the ordinary.
The Tribunal found that exceptional circumstances do not apply to the Applicant. In making that finding, the Tribunal stated as follows:
“The Tribunal has considered the circumstances both singularly and cumulatively, but given the applicant’s extremely poor level of English, it is not persuaded that exceptional circumstances apply to the applicant not having functional English.”
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
On 17 August 2012, the Applicant filed an application for judicial review of the Tribunal’s decision. By consent, the Applicant filed an amended application on 15 May 2013. The Applicant now relies on the following grounds;
“1. The Tribunal failed to carry out the review required by misinterpreting the applicable law and or by misapplying the law to the facts
Particulars:
(i) Subclause 857.213(b)(ii)(B) of the Migration Regulations 1994 (Cth) (‘the regulations’) relevantly provided that the Applicant, unless exceptional circumstances apply, has functional English.
(a) The Tribunal unlawfully fettered itself in determining whether exceptional circumstances applied by importing a requirement in subclass 857.213(b)(ii)(B) that the Applicant not have an ‘extremely poor level of English’.
(b) The Tribunal erroneously considered that subclass 857.213(b)(ii)(B) required it to determine whether exceptional circumstances related to the Applicant, rather than just considering whether there were exceptional circumstance such that the Applicant did not need to have functional English.
(c) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by finding that the construction of the subclause was such that if the employer lost the applicant as an employee, that could not constitute exceptional circumstances.
(d) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by finding that the construction of the subclause was such that the time and effort spent by the employer in training the Applicant in its specialised area of construction could not constitute exceptional circumstances.
(e) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by failing to determine whether the specialised are of carpentry that the Applicant worked in constituted exceptional circumstances.(f) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by finding that the construction of the subclause was such that if the Applicant developed special skills in relation to transportable and remote area construction since he was employed by his current employer, those skills could not be accepted as unusual or out of the ordinary for the position of a carpenter with a business that operates in the industry.
(g) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by its understanding that not having the Applicant as an employee could not constitute exceptional circumstances.
(h) The Tribunal misinterpreted or misapplied subclause 857.213(b)(ii)(B) by its understanding that because the nominated position was in regional Australia, the location itself cannot amount to exceptional circumstances.
…
3. The Tribunal failed to carry out the review because the decision to which it came was one that no rational or logical decision maker could arrive on the same evidence
Particulars:
(i) The Tribunal failed to carry out the review because the decision to which it came was one that no rational or logical decision maker could arrive on the same evidence, including as set out in the following subparagraphs:
(a) The evidence before the Tribunal was all one way in that the Applicant understood and applied Occupational Health and Safety requirements and that he had passed courses relating to same.
(b) The Tribunal had concerns that the Applicant does not understand his safety issues and workplace rights because of the results obtained in the ‘listening’ component of an IELTS test he had taken three years before the Tribunal’s decision.
(c) The evidence given, and not rejected by the Tribunal, was that the loss of the Applicant would result in significant financial loss to the business and disruption of its operations because it would be unable to meet its contractual obligations.
(d) The evidence given, and not rejected by the Tribunal, was that the Tribunal worked in a specialised area of carpentry, building customised housing for Aboriginal communities in remote Australia, as opposed to merely working in a position based in regional Australia.
(e) The evidence given, and not rejected by the Tribunal, was that the employer was unable to locate workers locally to carry out the work that the Applicant did.
(f) The evidence given and not rejected by the Tribunal, was that the Applicant had specialised skills (or cultural acumen) in relation to living in Aboriginal communities and being accepted by those communities while he was building housing.
(g) There was no evidence, at the time the Tribunal made its decision, that the Applicant had an extremely poor level of English.
(h) The evidence given, and not rejected by the Tribunal, was that the Applicant was able to work effectively, and to communicate in English effectively, in performing his duties and responsibilities.
(i) The Tribunal accepted that housing construction in Aboriginal communities is a policy priority of the government.
…”
The Applicant was represented by his solicitor, Mr Dobbie, at the hearing. Mr Dobbie withdrew reliance on Ground 1(i)(e), Ground 2, Ground 4 and Ground 5.
All the Grounds relied upon are considered below.
Ground 1(a) and Ground 1(b)
Ground 1(a) contends that the Tribunal unlawfully imported a requirement that the Applicant not have an extremely poor level of English in determining whether “exceptional circumstances” exist. Ground 1(b) contends that the Tribunal unlawfully confined its determination of whether “exceptional circumstances” related to the Applicant, rather than whether there were exceptional circumstances such that the Applicant did not need to have functional English. Both grounds appear to ignore the fact that the visa application was made on the basis that the Applicant did not have functional English. In such circumstances, the Applicant must satisfy the Tribunal that “exceptional circumstances” exist.
The complaints in Grounds 1(a) and (b) occur in context where the Tribunal stated as follows:
“70. The Tribunal has given careful consideration to the submission that construction in Aboriginal communities is a policy priority of government and accepts that the nominating company has undertaken projects of this nature. It has also taken into account the practical nature of the work being undertaken as well as the applicant’s ability to carry our the duties to be performed at a level which is acceptable to the nominating business over a number of years. The Tribunal has considered the circumstances both singularly and cumulatively, but given the applicant’s extremely poor level of English, it is not persuaded that exceptional circumstances apply to the applicant not having functional English.”
The solicitor for the Applicant, Mr Dobbie, submitted that the Applicant had been employed for some six years by Murray River North doing work in remote parts of Australia with indigenous communities in jobs that the company had been unable to fill. Second, that the Applicant had specialised skills achieved over 20 years in practice as a carpenter that addressed a shortage of carpenters in the Northern Territory and a general shortage of labour in the Northern Territory and Western Australia. The evidence before the Tribunal was that the Applicant was able to understand his work instructions and carry out the directions that he was given.
Mr Reilly submitted that read fairly, the Tribunal was simply summarising its reasons for finding that there are no exceptional circumstances in the particular case and is not purporting to import any additional requirement into the language of the criterion.
The Tribunal accepted that the occupation of carpentry is a practical skills based occupation, but did not accept that “this of itself amounts to exceptional circumstances in relation not having functional English”. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood that in circumstances where the Applicant did not have functional English, the Tribunal must be satisfied that exceptional circumstances exist.
The Tribunal also found that the Applicant’s claimed comprehension and ability to carry out his work did not, of itself, amount to exceptional circumstances. The Tribunal did not accept that having the Applicant as an employee and the impact of having the Applicant as an employee for Murray River North amounted to exceptional circumstances. The Tribunal did not accept that the time and effort invested by Murray River North in training the Applicant in the area of construction was exceptional in the relevant sense. The Tribunal also found that because the grant of a visa is not guaranteed, the possible loss of the Applicant would be an anticipated outcome of not being granted a visa and therefore is not an exceptional circumstance.
The Tribunal also found that the difficulty of Murray River North in filling the position held by the Applicant with Australian workers, given that it was in remote areas of Australia, “of itself does not mean that exceptional circumstances apply to a person who does not have functional English.” The Tribunal also found that the location in remote Australia did not of itself amount to an exceptional circumstance.
Clause 857.213(b)(ii)(B) makes clear that the Applicant must have functional English unless exceptional circumstances apply.
I accept the submission of the solicitor for the Applicant that exceptional circumstances are not limited to relating to the Applicant personally and may apply to a variety of circumstances. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not confine its consideration of exceptional circumstances only to the Applicant personally.
The Tribunal in its conclusion, as quoted above, stated:
“The Tribunal has considered the circumstances both singularly and cumulatively, but given the applicant’s extremely poor level of English, it is not persuaded that exceptional circumstances apply to the applicant not having functional English.”
As stated above, it is clear that the Applicant was not basing his review application on any ground other than exceptional circumstances. I do not accept Mr Dobbie’s submission that the Tribunal appeared to have conflated the two distinct notions of exceptional circumstances and functional English.
I am satisfied that on a fair reading of the Tribunal’s decision record, the Tribunal properly interpreted and applied cl.857.213(b)(ii)(B). In the light of its findings, the Tribunal’s conclusion is no more than the Tribunal’s restatement of cl.857.213(b)(ii)B. While minds might differ, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1(a) and Ground 1(b) are not made out.
Ground 1(c) and Ground 1(g)
The Tribunal found that because the grant of a visa is not guaranteed and because the nomination process involved a business wishing to employ the Applicant, the loss of the Applicant to the nominating business is not an exceptional circumstance.
Mr Dobbie submitted that the difficulty with that finding is that such a situation is common to all visa applications where a nominating employer is sponsoring an Applicant.
However, the Tribunal made its finding in the context of accepting that there is a shortage of labour in the Northern Territory and Western Australia and a shortage of carpenters in the Northern Territory. Nevertheless, the Tribunal found that the difficulty in finding a replacement was not sufficient to amount to exceptional circumstances.
Whilst minds might differ, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Ground 1(d)
The Tribunal accepted that Murray River North had invested a certain amount of time and effort in training the Applicant but did not accept that this is exceptional in the relevant sense. Mr Dobbie submitted that this suggests that the Tribunal was confining its consideration of “exceptional circumstances” as applying to the Applicant only and that to do so misinterprets the law.
I do not accept that submission. A fair reading of the Tribunal’s decision record as a whole does not suggest the Tribunal was confining its consideration of exceptional circumstances in the manner contended for by the Applicant. The Tribunal also considered the difficulties that may be faced by the Applicant’s employer, in the event that the Applicant’s visa was not approved, but was not persuaded that they amounted to exceptional circumstances.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Ground 1(e)
As stated above, Ground 1 (e) was not relied upon and was withdrawn.
Ground 1 (f)
The Tribunal found that because the Applicant had developed specialised skills in relation to transportable and remote area construction since he was employed with his current employer, those skills could not be accepted as unusual or out of the ordinary for the position of a carpenter operating in such an industry and therefore cannot amount to exceptional circumstances.
I accept Mr Dobbie’s submission that cl.857.213(b)(ii)(B) does not in any way limit the Applicant’s skills to those which were not developed whilst being employed by Murray River North. However, the Tribunal found that because the Applicant’s skills had been developed in Australia, the skills were not sufficiently unusual or out of the ordinary for the position of a carpenter with a business that operates in that industry. I do not accept that the Tribunal was making a finding that after acquired skills could not be exceptional circumstances. Just that, in this case, they were not.
Again, whilst minds might differ, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Ground 1 (h)
The Tribunal found that the location of the Applicant’s employment did not amount to “exceptional circumstances in the relevant sense.”
Again, I do not accept Mr Dobbie’s submission that the Tribunal was seeking to confine its consideration of whether exceptional circumstances applied only to the Applicant. The Tribunal specifically stated that it had taken into account that Murray River North operates in remote parts of Australia which involves different working conditions. The Tribunal noted that the appointment of a worker was approved as one in regional Australia. However, the Tribunal was not satisfied that the location of itself “amounts to exceptional circumstances in the relevant sense.”
Again, whilst minds might differ, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1 is not made out.
Ground 2, Ground 4 and Ground 5
Ground 2, Ground 4 and Ground 5 of the initiating application filed on 17 August 2012 were not relied upon and were withdrawn.
Ground 3
Ground 3 contends that the Tribunal failed to carry out the review because the decision to which it came was one that no rational or logical decision maker could arrive on the same evidence.
Counsel for the first respondent in written submissions submitted that the particulars in support of Ground 3 cavil with facts found by the Tribunal thereby inviting merits review which this Court cannot undertake. The first respondent submitted that it was for the Applicant to satisfy the Tribunal that there were exceptional circumstances and that it is not apparent why reasonable minds might not differ on this issue such that the Tribunal’s decision could be said to be irrational or illogical (see SZMDS v Minister for Immigration and Citizenship & Anor (2010) 240 CLR 611 at 78 per Haydon J and 130 – 131 per Krennan and Bell JJ; SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1).
I agree with the first respondent’s submissions. I do not accept Mr Dobbie’s written submissions that the Tribunal’s finding that exceptional circumstances did not exist is not a conclusion that any rational or logical decision maker could have arrived at on the evidence before it.
The particulars referred to in Ground 3 relate to findings made by the Tribunal that were open to it on the evidence and material before it and for the reasons it gave.
In relation to Ground 3(g), that there was no evidence that the Applicant had an extremely poor level of English at the time the Tribunal made its decision, in light of the Applicant’s concession that he did not have functional English and relied on exceptional circumstances for the grant of his visa, no evidence was necessary.
Further, the Tribunal, in referring to the Applicant as having “an extremely poor level of English”, was doing no more than referring to the Applicant’s concession that he did not have functional English and that he relied on exceptional circumstances for the grant of his visa. To read the Tribunal’s language otherwise would be to construe the Tribunal’s reasons with an eye too keenly focussed on error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liangand Ors (1996) 185 CLR 259 at 271 and 272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]).
Otherwise, Ground 3 appears to be expressing disagreement with the findings and conclusions made by the Tribunal. Such disagreement invites merits review which this court can not undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Amended Application - Ground 2(iii) and Ground 5(e)
In the Amended Application, filed by consent on 15 May 2013, the Applicant contended that the Tribunal failed to comply with s.360(1) of the Act by failing to raise at the hearing the Department’s policy contained in PAM 3 in relation to whether there were exceptional circumstances; and, failed to take into account the whole of PAM 3 relating to exceptional circumstances. Those Grounds are as follows:
Ground 2(iii)
“The Tribunal failed to comply with s.360(1) of the Act by failing to have a hearing in relationqwert3
to an issue arising in relation to the decision under review.
(a) The delegate and the Tribunal had regard to the departmental policy contained in the Procedures Advice Manual (“the PAM”) in relation to whether there were ‘exceptional circumstances’.
(b) An issue in the delegate’s decision was whether the Applicant met the factors contained din the PAM, including how the Applicant might transfer his skills, or otherwise train other employees (regardless of whether the current staff are from the same, or similar cultural background as the applicant).
(c) The Tribunal did not raise the issue of the application of the PAM and the factors contained therein with the Applicant at the hearing such that he was not accorded the hearing required by law.”
Ground 5 (e)
“The Tribunal failed to take into account the whole of the PAM relating to exceptional circumstances.”
Section 360(1) of the Act is as follows:
“s.360(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. “
As stated above, the Delegate’s decision made clear that the policy was a matter that the decision maker may take into account but was not bound by it.
The Tribunal’s decision record does not refer to the policy and the decision record suggests that neither the Tribunal nor the Applicant regarded the policy as an issue in the review.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered and addressed the Applicant’s arguments. It was not obliged to take the Department policy into account in circumstances where it was not raised by the Applicant. Whilst the PAM 3 may contain factors that may have been relevant in considering whether exceptional circumstances applied, in circumstances where neither the Tribunal nor the Applicant sought to refer to the policy, let alone rely upon it, there can be no error on the part of the Tribunal in failing to either refer or rely on the PAM 3 in terms. In any event, a fair reading of the Tribunal’s decision record makes clear that many of the factors referred to in the PAM 3 were, in fact, considered and addressed by the Tribunal. However, they were only considered and addressed in response to the Applicant’s submissions and arguments.
It is well established that policy is only a guide to the application of legislation and does not have legally binding status (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591).
In El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45] Gray J stated:
“In any event, PAM 3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28] — [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] — [16]. PAM3 does not have the effect of a direction pursuant to s.499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.”
In written submissions in support, Mr Dobbie referred to HNEIDI & Others v Minister for Immigration and Citizenship (2010) 182 FCR 115 at [41] in support of the proposition that the Tribunal can take policy into account. However, for the reasons given above, the Tribunal was not obliged to do so in this case where the policy was neither raised nor relied upon by the Applicant or referred to by the Tribunal.
In the circumstances, Ground 2 (iii) and Ground 5(e) are not made out.
Accordingly, the Tribunal’s decision was not affected by jurisdictional error and the matter should be dismissed with costs.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 July 2013
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