Sahah Amanath Pty Ltd v Minister for Immigration
[2014] FCCA 2870
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAHAH AMANATH PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2870 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant a Subclass 121 Employer Nominated (Migrant) (Class AN) visa – failure to demonstrate “vocational English” – whether there were “Exceptional Circumstances” – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 360, 363 Migration Regulations 1994 (Cth), rr.1.15B, 2.26, 5.2(c), 5.17, 121.211 of Sch.2, 121.211A of Sch.2 |
| An v Minister for Immigration and Citizenship (2007) 160 FCR 480 Applicant WAEE v Minister for Immigration and Multicultural and IndigenousAffairs (2003) 75 ALD 630 Hatcher v Cohn (2004) 139 FCR 425 SZBEL v Minister for Immigration and Multicultural andIndigenous Affairs & Anor (2006) 228 CLR 152 |
| Applicant: | SAHAH AMANATH PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1443 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 3 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitor for the First Respondent: | Ms S Given of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed 26 June 2013 and amended on 9 September 2013 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1443 of 2013
| SAHAH AMANATH PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The application before this Court was filed on 26 June 2013 and amended on 9 September 2013. On 11 January 2010, Mr Abdul Kalam (the “visa applicant”) applied for a Subclass 121 Employer Nomination (Migrant) (Class AN) visa. The visa applicant was sponsored by Sahah Amanath Pty Ltd (the “applicant”). The applicant seeks judicial review of a decision of the Migration Review Tribunal (the “Tribunal”), made on 4 June 2013 by Tribunal Member, T. Delofski, MRT case number 1103177. The Tribunal affirmed the decision of the delegate not to grant the visa applicant an Employer Nomination (Migrant) (Class AN) visa.
The solicitors for the Minister for Immigration and Border Protection (the “Minister”) (at the time of the Tribunal’s decision the Minister for Immigration and Citizenship), were ordered to file a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material has been provided and is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant also filed an affidavit of Mohammed Nasir Ullah, affirmed 28 March 2014 and filed on 1 April 2014 (the “Ullah Affidavit”), which attaches a transcript of the Tribunal hearing held 30 May 2013. I will make comment on the Ullah Affidavit later in this decision.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
As of 1 July 2012, the Subclass Employer Nomination (Migrant) (Class AN) visa is no longer available to prospective visa applicants. The relevant criteria of cl. 121.211A of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) are as follows:
121.211A For an applicant who has been nominated by an employer for an appointment in the business of that employer and who is taken, under regulation 2.08C, to have applied for an Employer Nomination (Migrant) (Class AN) visa:
a) if the applicant applied for an Independent (Migrant) (Class AT) visa, the applicant:
(i) had not turned 45 at the time of the application for an Independent (Migrant) (Class AT) visa; and
(ii) has functional English; and
(iii) has a diploma (within the meaning of subregulation 2.26 (5)) or higher qualification that is, unless the appointment is exceptional, relevant to the appointment; and
(b) if the applicant applied for a Skilled — Independent (Migrant) (Class BN) visa, the applicant:
(i) had not turned 45 at the time of the application for a Skilled — Independent (Migrant) (Class BN) visa; and
(ii) has vocational English; and
(iii) has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification that is, unless the appointment is exceptional, relevant to the appointment; and
(c) if the applicant applied for a Skilled — Australian‑sponsored (Migrant) (Class BQ) visa, the applicant:
(i) had not turned 45 at the time of the application for a Skilled — Australian‑sponsored (Migrant) (Class BQ) visa; and
(ii) has vocational English; and
(iii) has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification that is, unless the appointment is exceptional, relevant to the appointment; and
(d) if the applicant applied for a Skill Matching (Migrant) (Class BR) visa, the applicant:
(i) had not turned 45 at the time of the application for a Skill Matching (Migrant) (Class BR) visa; and
(ii) has functional English; and
(iii) has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification that is, unless the appointment is exceptional, relevant to the appointment.
The relevant criteria of cl.121.211 of Schedule 2 to the Regulations are as follows:
121.211 If clauses 121.210 and 121.211A do not apply, each of the following is satisfied:
(a) the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
(b) either:
(i) both of the following are met:
(A) an assessing authority specified by the Minister in a Gazette Notice for this sub‑ subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;
(B) unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or
(ii) the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph;
(c) the applicant:
(i) unless exceptional circumstances apply, has not turned 45; and
(ii) unless exceptional circumstances apply, has vocational English.
The term “vocational English” is defined by Reg.1.15B of the Regulations. Regulation 1.15B required that the visa applicant “achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening” in a test conducted either no more than 12 months before the day on which the application was lodged; or during the processing of the application.
On the application form (CB 1-43) the visa applicant specified that he had less than vocational English, but that exceptional circumstances applied on the basis that “the sponsoring company is appertaining Indian Restaurant where most of the kitchen workers are speak Bengali. The sponsor is happy with the applicant’s skills and language skills (sic)” (CB 2).
The visa applicant provided employment references (CB 66-70), a skills assessment for the occupation of Cook from Trades Recognition Australia (“TRA”) (CB 56-59) and an International English Language Testing System (“IELTS”) test report dated 2 September 2009, demonstrating an overall score of 3.5 (CB 75).
On 3 February 2011, a delegate of the Minister refused to grant the visa on the basis that the visa applicant did not satisfy cl.121.211(c) of Schedule 2 to the Regulations, the delegate was not satisfied that exceptional circumstances had been demonstrated in order to waive the vocational English language requirement.
On 4 April 2011, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 122 – 129). On 13 September 2011, the applicant’s representative provided a further IELTS test report indicating that the visa applicant had achieved scores of 4.0 in listening, 3.5 in reading, 4.0 in writing and 5.5 in speaking (CB 132 to 134).
On 5 June 2013 the Tribunal affirmed the decision under review. The Tribunal found that, whilst at the time of his visa application the visa applicant had not turned 45, he did not have vocational English within the meaning of reg.1.15B of the Regulations (CB 166 at [9]).
As the visa applicant had not achieved a score of at least 5.0 in each of the four test components (in either tests), the Tribunal was correct to consider whether exceptional circumstances applied to the present case to justify a waiver of the vocational English requirement. This is not in dispute between the parties.
The Tribunal found that the applicant’s claim that exceptional circumstances existed was based on the assertion that the visa applicant was “a very good cook of Bangladeshi cuisine” and that they had been “unable to obtain any other cooks as good as the visa applicant” (CB 166 at [11]).
The Tribunal was not satisfied that the visa applicant was an “exceptional cook”. This finding was based on the fact that other than the applicant’s skills assessment from TRA, there was no evidence to indicate that the applicant had won any awards or that he was an exceptional cook (CB 166 at [11]).
The Tribunal also found that adequate evidence had not been provided to demonstrate that the applicant had made a serious attempt to obtain an alternative cook, noting that only one advertisement for a cook had been placed and that the business largely relied on word of mouth to obtain a cook (CB 166 at [11]).
The Tribunal concluded that it was not satisfied that there were any exceptional circumstances to justify a waiver of the vocational English requirement and accordingly found that the applicant failed to meet the requirements of cl. 121.211(c).
Current Proceedings
The applicant filed an amended application on 9 September 2013. The orders sought are as follows:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. Costs.
4. Such other or further order the Court deems fit.
The grounds in the Amended Application are as follows:
Ground 1
The Tribunal committed jurisdictional error when it denied the Applicant from having meaningful hearing to appear and present arguments on critical and determinative issues concerning exceptional circumstances and denied procedural fairness when it proceeded to affirm the decision of the delegate.
Particulars
The Tribunal breached s 360 and / or common law hearing rules when the Applicant was not given meaningful opportunity to appear and present arguments regarding the determinative issues in relation to the application.
The Applicant was denied meaning hearing on the issue of exceptional circumstances in relation to English language requirements.
Ground 2
The Tribunal committed jurisdictional error when it failed to take into account all of the relevant considerations and circumstances of the Applicant (and took into account irrelevant considerations) in respect of English language competency for a cook.
Particulars
The Tribunal failed to take into account, inter alia, the following relevant considerations:
(a) That all other staff spoke the same language as the applicant;
(b) Whether the Visa Applicant is expected to deal with the customers or suppliers;
(c) The particular cuisine;
(d) The nature of the work to be carried out;
(e) The visa Applicants extensive work experience in Australia and course undertaken in Australia;
(f) The nature of training and experience;
(g) The occupational listing at the time in MODL;
(h) Subsequent IELTS results and improvements made.
Ground 3
The Tribunal committed jurisdictional error and constructively failed to exercise it jurisdiction when it failed to assess whether the Applicant had functional English and / or whether the Applicant should be given opportunity to attend VAC (the alternative basis on which the Applicant could satisfy the requirements of the regulations).
Particulars
The Tribunal failed to take into account whether the Applicant had functional English and thus satisfied other criteria to qualify for the subclass 121 visa or should be given further opportunity to meet English language requirements.
Ground 4
The Tribunal committed jurisdictional error as it constructively failed to exercise its jurisdiction when it failed to assess the other categories of visa within subclass 121 visa (independent) which did not require the Applicant to demonstrate exceptional circumstances but to assess whether the Applicant had functional English; the Applicant could satisfy the requirements of the regulations in Sub-class 121.211A for classes AT and BR visas.
Particulars
The Tribunal failed to assess all the classes within Subclass 121 visa – there was no exceptional circumstances requirements under Clauses 121.211A(a)(ii) and 121.211A(d)(ii) which was not assessed.
Ground 5
The Tribunal committed jurisdictional error when it misapprehended the legislation (and its time of application criteria) and/or erred by applying the wrong test and / or failing to ask the correct questions and / or misdirecting its enquiries.
Particulars
The Tribunal failed to take into account whether the Applicant had function English and thus satisfied other criteria to qualify for the subclass 121 visa or should be given further opportunity to meet English language requirements and failed to ask correct questions regarding the exception to English language requirements.
At the hearing, Mr Kumar, representing the applicant, indicated that Ground 5 was not pressed.
Ground 1 – Section 360 and “common law hearing rule”
Applicant’s submissions
The applicant submits that the visa application was made on the basis that the visa applicant was a good cook and that English language exception should apply. The visa applicant had a good understanding of Bangladeshi culture which was appropriate to the business model and restaurant.
The applicant submits that the delegate’s decision primarily turned on the fact that the visa applicant did not have the appropriate level of English (CB 119.8) and, subsequently, was the primary issue before the Tribunal. The applicant submits that by the time the matter was before the Tribunal there was evidence of functional English.
Mr Kumar submits that the Tribunal’s focus was otherwise not on the issue of the English language, but whether the visa applicant was an exceptional employee.
The applicant submits that it was denied a meaningful hearing on the issue of exceptional circumstances in relation to English language requirements. The applicant claims that the delegate had not considered the issues surrounding the attempts to recruit a Bangladeshi cook in Australia. The applicant submits that the delegate’s concern was the potential exploitation in the circumstances where the cook did not have a reasonable command of English. The applicant submits that whether the visa applicant was an exceptional cook was not an issue before the delegate, thus for the Tribunal to introduce the issue as a significant basis for the decision is a denial of procedural fairness: Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at [122]-[123] and [227]-[229].
The applicant submits that the Tribunal breached s.360 of the Migration Act and/or the common law hearing rules when the applicant was not given a meaningful opportunity to appear and present arguments regarding the determinative issues in relation to the application. The applicant submits that the Tribunal ought to have put it on notice that the issue had shifted to whether the visa applicant was an “exceptional employee”.
Minister’s submissions
The Minister submits that it is trite law that the effect of s.357A of the Migration Act operates to exclude common law procedural fairness. Unless, as was observed by the majority in Minister for Immigration and Citizenship v Li & Anor (2002) 202 FCR 387 at [30], there has been some failure to discharge a core function, the Tribunal will have exhaustively accorded natural justice by conducting its review in accordance with Part 5 of Division 5 of the Migration Act.
The Minister submits that no breach of s.360 breach can be established. The Tribunal fully complied with its obligations pursuant to s.360(1) of the Migration Act by inviting the applicant to a hearing on 30 May 2013 and identifying at that hearing that one of the “issues on the review” was whether the visa applicant demonstrated exceptional circumstances (CB 166 at [10]).
The applicant was invited to give evidence and present arguments in relation to exceptional circumstances that would apply to the present case to justify waiving the vocational English requirement (CB 166 at [10]). The applicant was represented throughout the proceedings (including at the hearing) (CB 160).
The Minister submits that there was no obligation on the Tribunal to give a running commentary on what it thought of this evidence: SZBEL v Minister for Immigration and Multicultural andIndigenous Affairs & Anor (2006) 228 CLR 152 at [48]; SZJKH v Minister for Immigration & Anor [2007] FMCA 1899 at [20]–[26]; SZLBC v Minister for Immigration [2008] FMCA 181 at [13] and SZLBC v Minister for Immigration and Citizenship [2008] FCA 728 at [10].
Ground 2 - Alleged failure to take into account relevant considerations
Applicant’s Submissions
The applicant submits that it had sponsored the visa applicant on the basis that the visa applicant was a good cook. There is evidence before the Tribunal of the recruitment (CB 76-77).
The applicant was seeking to keep the cook, who had performed a reasonable job in relation to others who did not have particular culinary skills. The Tribunal failed to take into account the following considerations:
a)That all other staff spoke the same language as the visa applicant;
b)Whether the visa applicant is expected to deal with the customers or suppliers;
c)The particular cuisine cooked;
d)The visa applicant’s extensive work experience in Australia and study course undertaken in Australia;
e)The nature of training and experience;
f)The occupational listing at the time in the Migration Occupation in Demand List (“MODL”);
g)The occupational listing at the time in MODL; and
h)Subsequent IELTS results and improvements made.
The applicant submitted that all the relevant considerations ought to be taken into account when determining if there are exceptional circumstances. The applicant may have been able to satisfy the exceptional circumstances requirements had the applicant had submitted evidence that the visa applicant was an exceptional cook. The applicant submits that the Tribunal misapprehended the application and/or failed to take various considerations into account. The Tribunal directed its enquiries to whether the visa applicant was an “exceptional cook” and whether reasonable attempts had been made to secure the services of the visa applicant instead of considering all of the circumstances. The applicant submits that the enquiries ought to have been not to determine whether the visa applicant was an exceptional cook, but considerations of all the circumstances to determine whether the exceptional circumstances applied in the circumstances where the visa applicant did not have vocational English.
The applicant submits that the failure to direct enquiries to all the relevant considerations constitutes jurisdictional error on the part of the Tribunal. The Tribunal failed to address the issue of whether the other candidates of cook would have the particular skills of Bombay curry. The applicant submits that this was a relevant consideration and that the Tribunal had misdirected its inquiries. The applicant submits that the Tribunal committed jurisdictional error when it failed to take into account relevant considerations in respect of English language competency for a cook.
Minister’s Submissions
The application for judicial review also contends that the Tribunal failed to take into account relevant considerations, namely that other staff at the restaurant spoke the same language as the visa applicant, whether the visa applicant would be expected to deal with customers or suppliers and the particular cuisine.
The Minister submits that these “considerations” were not advanced before either the delegate or the Tribunal as constituting “exceptional circumstances” for the purposes of cl.121.211(c).
Instead, the employer submitted that the visa applicant was a “very good cook” and that she had found other cooks in the past through “word of mouth”, but none had been as good as the visa applicant.
The employer’s letter to the Department dated 7 January 2010 accompanying the visa application (CB 1 to 2) stated that:
[T]he kitchen workers in the restaurant speaks Indian/Bengali language and the sponsor grantee that applicant will not handle the customer service and or fresh food orders (sic).
In context, this appears to be an explanation as to why the employer wished to employ him, notwithstanding his poor results on his IELTS test. It was not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons, and the Tribunal did not err by determining whether exceptional circumstances applied, having regard to the claims advanced on behalf of the visa applicant: Applicant WAEE v Minister for Immigration and Multicultural and IndigenousAffairs (2003) 75 ALD 630 at [46] and SZAIX v Minister for Immigration andMulticultural and Indigenous Affairs (2006) 150 FCR 448 at [33]).
Ground 3 - failure to assess functional English
Applicant’s Submissions
The applicant submits that the Tribunal conducted its merits review, considered the entirety of the application, rather than confining it to what the delegate had considered: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at [35]-[37].
The English language skill of the visa applicant was the key consideration as to why the delegate decided that that the applicant did not qualify for the visa. The visa applicant did not have vocational English at the time of the application for subclass 121 visa and when the delegate considered the decision. The applicant submits that the Tribunal was subsequently provided with evidence of functional English (CB 133-134).
The applicant submits that the Tribunal failed to consider all of the circumstances, particularly other considerations relating to exceptional circumstances, in its review. The applicant claims that the Tribunal simply considered that the visa applicant was not an exceptional cook and thus was not satisfied.
The applicant submits that the Tribunal failed to consider the combination of functional English with all of the other circumstances to determine whether exceptional circumstances existed. The Tribunal committed jurisdictional error and constructively failed to exercise its jurisdiction when it failed to assess whether the visa applicant had functional English and/or whether the visa applicant should be given opportunity to attend visa application charge (“VAC”) as the alternative basis on which the visa applicant could satisfy the requirements of the regulations in lieu of vocational English.
The Tribunal failed to take into account whether the visa applicant had functional English and thus satisfied other criteria to qualify for the subclass 121 visa or should be given further opportunity to meet English language requirements.
Minister’s Submissions
The Minister submits that this ground is entirely misguided insofar as it alleges that the Tribunal committed jurisdictional error when it “failed to assess whether the applicant had functional English” and alleges that the applicant should have received an opportunity “to attend VAC”.
This ground appears to be a misconceived reading of Item 1114 of Schedule 1. Item 1114 provides that if an applicant is able to satisfy the primary criteria in Schedule 2 but does not have functional English, a VAC may be paid to receive an exemption.
That provision would apply to those who have demonstrated exceptional circumstances. However, the visa applicant had not demonstrated exceptional circumstances to justify a waiver of the English language requirement in the Schedule 2 criteria. Accordingly, the visa applicant was not entitled to receive that VAC exemption.
Ground 4 – failure to consider other subclasses of the visa
Applicant’s Submissions
The applicant submits that there was evidence before the Tribunal that the visa applicant could satisfy other visa criteria. As the visa applicant had shown evidence of functional English, he could satisfy the requirements of classes AT and BR visas. There was no exceptional circumstances requirements under Clauses 121.211A(a)(ii) and 121.211A(d)(ii) in respect of which the Tribunal did not carry out its task whilst considering cl.121 if the schedule, which is no longer in effect as of 1 July 2013, but was in effect before the delegate.
The applicant submits that it was incumbent on the Tribunal carrying out its task to consider whether the visa applicant was able to satisfy this. The applicant submits that the Tribunal failed to assess all the classes within the class. The Tribunal, in proper exercise of its jurisdiction, should have considered it in any event.
The Tribunal committed jurisdictional error as it constructively failed to exercise its jurisdiction when it failed to assess other categories of visa within subclass 121 visa, which did not require the visa applicant to demonstrate exceptional circumstances but to assess it on the basis whether the applicant had functional English; the visa applicant could satisfy the requirements of the regulations in the subclass 121.211A for classes AT and BR visas.
Minister’s submissions
The Minister submits that Ground 4 and Ground 5 (which is no longer pressed) appear to be a catch-all alleging an array of possible errors, none of which have a basis in the Tribunal’s decision.
The Tribunal did in fact consider whether the visa applicant satisfied the other subclasses of the visa for which the applicant had applied (CB 166 at [13]), however, it was not required to then go on to consider whether the applicant satisfied visas classes for which he had not applied (as is alleged by Ground 4).
The other integers of these grounds all seek to allege constructive failure to address matters which, as set out in response to the foregoing grounds, it is plain were addressed.
There are no jurisdictional errors as alleged by the applicant, or at all. The Tribunal fully undertook the statutory task with which it was charged. It was entirely correct to find that, as a matter of fact, the visa applicant did not satisfy the requisite standard of vocational English and, absent exceptional circumstances (which were also a matter for the Tribunal in its fact finding task), it was not required to consider some lesser language standard that the applicant did meet.
Argument at the hearing
The first issue to arise at the hearing, held on 3 April 2014, was the objection to the Ullah Affidavit and annexed transcript of the Tribunal hearing. Ms Given, representing the Minister, stated that objection to the document was raised on several bases. Ms Given took the Court through a brief history of the proceedings. The applicant has been represented by Counsel throughout the whole proceeding. The Court set down a procedural timetable for the matter specifically that it required the applicant to file and serve any evidence that it wished to rely upon, including any transcript of the Tribunal hearing, on or before 6 September 2013. Ms Given questioned the relevance of the Ullah Affidavit and annexed transcript to the current proceedings, noting that neither the grounds of the application nor submissions relate to the adequacy of interpretation. Ms Given notes that the transcript is of what was said at the Tribunal hearing in English and purports to also be a translation of what the interpreter said and what was translated to the applicant.
Ms Given argues that Mr Kumar has had since June 2013 to plead the adequacy of interpretation and has not done so. Ms Given argues that even allowing for the exigencies of litigation and the fact that Mr Kumar has the matter on a direct access basis, the issue of interpretation should have arisen in the written submissions. Ms Given submits that it is far too late in these proceedings to advance the transcript in circumstances where there has not been a proper opportunity to consider what issues it may go to.
Ms Given argues that the deponent of the transcript, if he did indeed transcribe it, has written the transcription in such poor English that, for example, it is unlikely that the Tribunal Member throughout the hearing would have expressed such poor English and as such, more likely reflects the English of the deponent of the affidavit. Ms Given argued that the document cannot be said to represent an accurate version of what was said.
In reply Mr Kumar argued that the Ullah Affidavit should be allowed in as, firstly, it was a very short hearing and, secondly, for completeness. Mr Kumar conceded that it could have been better translated and that it was not certified by a NAATI accredited translator, but ultimately, for completeness the affidavit was pressed.
The Court noted that there was no reference to the Ullah Affidavit and annexed transcript in the Amended Application or written submissions. As the Court was not able to understand the significance of the translated transcript and noting its lateness and inadequacies in the transcription, it was not read into evidence.
Mr Kumar took the Court to a number of documents in the Court Book. The documents are as follows:
a)CB 5 - “Application for employer sponsored migration to Australia”, specifically to question 30 and 31, which states:
30. What is the position you have been nominated to fill in Australia? Name of nominating business or organisation: Sahah Amanath Pty Ltd
Job title: Cook
Occupation: Indian Cook…
31. In relation to the position that you have been nominated to fill, what will be your:
Total Remuneration Package? (gross per annum): AUD 43,440.00
Base Salary Component? (gross per annum): AUD 47,349.60…
b)CB 32 – “Personal particulars for character assessment” – question 23 – visa applicant’s employment history, dating back to November 2002;
c)CB 52-53 – “Approval of a Nominated Position as an Approved Appointment Employer Nomination Scheme (ENS)”- dated 13 August 2009;
d)CB 54-55 – Offer of Employment dated 9 June 2009;
e)CB 56-57 - Trades Recognition Australia – notification of successful application for skills assessment;
f)CB 61 – Certificate III in Hospitality (Asian Cookery) – dated 28 February 2008;
g)CB 64 – Certificate of Proficiency – dated 10 November 2009;
h)CB 65 – Statement of Attainment- December 2005;
i)66-67 – Letter from applicant, detailing responsibilities and duties of visa applicant dated 27 February 2007, and states;
This is to conform(sic) that Mr. Abdul Kalam has worked in out restaurant in the capacity of Indian Chef since 2nd January 2005- until to the 30th January 2007…
j)CB 68-70 – Work confirmation letter dated 9 March 2007, which states:
…In December 2003, we promoted him to work in our kitchen team as a full time cook.
k)CB 117 – Decision Record of the delegate of the Minister, dated 11 January 2010.
Mr Kumar also handed to the Court a copy of the cl.121 – Employer Nomination. Ms Given queried its relevance as the end date of the Regulation was 26 March 2010. Ms Given argues that as there is no reference as to where the Regulations came from, the Minister was not content to rely on them as they may not be accurate. Ms Given noted that she had set the relevant regulations in her written submissions (reproduced at [5] and [6] above) as well as the Tribunal Member. Mr Kumar argued that Ground 3 and Ground 4 plead that the entirety of the regulation has not been taken into account. Essentially, Mr Kumar argued that the applicant does not agree with the section of the Regulation that the Tribunal Member has referred to.
Mr Kumar argues that the Regulations he refers to are the Regulations at the time of the application. Mr Kumar argues that the Tribunal Member did not take the whole of subclass 121 into account when making the decision. Mr Kumar contends that the Tribunal did not put the visa applicant on notice that it was only going to look at particular sections of the Regulation and not take the whole Regulation into account.
Mr Kumar contends that if the visa applicant did not satisfy cl.121.211A then the Tribunal should have considered that the applicant satisfied cl. 121.211 (see [6] above). Mr Kumar advances this proposition on the basis that the applicant has been employed as a cook for a number of years and more recently as a cook with the sponsors. There is no problem in respect to his age as he is less than 45 years old. Mr Kumar then raised reg.5.2(c), which states:
Prescribed evidence of English language proficiency (Act, s 5(2)(b))
For the purposes of paragraph 5(2)(b) of the Act (dealing with whether a person has functional English), the evidence referred to in each of the following paragraphs is prescribed evidence of the English language proficiency of a person:
(a)…
(b) (repealed)
(c) evidence that:
(i) the person holds an award (being a degree, a higher degree, a diploma or a trade certificate) that required at least 2 years of full-time study or training; and
(ii) all instruction (including instruction received in other courses for which the person was allowed credit) for that award was conducted in English;
Mr Kumar also submits that because the application was made on Form 47ES (CB 3-7), an alternative basis on which the applicant could have been asked to satisfy the English language requirement is found in cl.2.26 (now repealed).
(1A)…
(1)…
(2)…
(3)…
(4) If:
(a) the applicant cannot provide the evidence that is required by an item in Part 3 of Schedule 6; or
(b) the Minister determines that it is not reasonably practicable, or not necessary, for the applicant to sit for an ACCESS test or an IELTS test;
the Minister may determine that the applicant has a level of English proficiency equivalent to that mentioned in an item in that Part.
(5)…
Ms Given, in reply, noted that she intended to rely on her written submissions and address the matters brought to the Court’s attention by Mr Kumar. Ms Given argues that with respect to Grounds 3 and 4, the applicant is attempting to conjure an error based on the “time of application criteria”. Ms Given submits that there is nothing that can be gained from attempting to blur the lines. Ms Given added that this is a very specific case and considers a specific visa.
Ms Given argues that there is no question in this case of the kind which arose in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417. The Tribunal had before it the only two IELTS tests that the visa applicant had completed and neither of those tests satisfied the requirements that the applicant achieve scores of 5 in each of the four test components. Ms Given argues that these were the only two tests that were before the Tribunal at the time of the decision.
Ms Given argues that the issue pleaded by the applicant appears to be an attempt to conflate a level of English that the applicant had satisfied which is sufficient for the other visa classes, but was not sufficient for this visa class, as shown by the relevant legislation set out at [5] above. Ms Given submits that the fact that the applicant may have satisfied functional English, which is a lesser standard in relation to the scores required in an IELTS test for vocational English, is irrelevant for the purposes of these proceedings.
Ms Given argues that the applicant seeks to conflate those two types of English under the Regulations for several purposes, one of which is to suggest that there were somehow exceptional circumstances which were comprised of the fact that he had satisfied a lesser English standard. However, that of itself is not an exceptional circumstance, nor was it put before the Tribunal to be so. The second way that this dealt with is to say that, as a result, the Tribunal failed to consider other visa classes for which this applicant may have been eligible. Ms Given noted that in the present case, as is the case with any visa application whereby there is an employment nomination required, we have two applicants, the visa applicant being the primary applicant and the review applicant, essentially under the auspices of this particular decision.
Ms Given argues that the suggestion that the Tribunal ought to have considered the visa applicant as against the applicant for the visa is a flawed argument because the visa applicant was not the applicant before the Tribunal. Ms Given took the Court to CB 3, question 3 which states: “Type of application – select one only”, with the ticked box being “Employer Nomination Scheme (ENS) – Class AN, subclass 121. You must have been nominated by your employer on form 785.” Ms Given argues that the visa class that the applicant wishes to agitate is next in the list of the visa application, Class AN, subclass 119. This Class requires an employer to nominate the applicant in a completely different form from that of the visa, however by the application filed the applicant was only entitled to apply for one visa type.
Noting the paragraph above, Ms Given took the Court to CB 120, the last page of the delegate’s decision, where the delegate stated:
Although main applicant has not made any claim against other visa subclass in the Employer Nomination (Residence) )Class AN) visa class, I considered main applicant’s application against the requirements of the following visa subclass:
Subclass 119 (Regional Sponsored Migration Scheme) visa
I have determined that does not satisfy the criteria for this subclass as main applicant has not made any claims for, nor produced any evidence towards satisfying the prescribed criteria of this subclass.
(CB 120)
The delegate ultimately determined that the applicant did not satisfy the subclass because there had been no claims made for that visa and he had not produced any of the evidence towards satisfying the prescribed criteria. Ultimately, the visa applicant only applied for one visa, with the applicant only endorsing the visa applicant for that visa.
Ms Given argues this was plainly an issue in the review that would be dispositive and one that the delegate had already dealt with in a particular way. Ms Given argues that by the time the applicant came before the Tribunal, it was aware that that the delegate had already determined the case in a particular way, and if the applicant was concerned, it could have addressed this issue with the Tribunal. Ms Given took the Court to CB 166 at [13] where the Tribunal stated:
13. There are 2 subclasses of visa in the class (AN) of the visa that the visa applicant has applied for: Subclass 121 (Employer Nomination Scheme) and Subclass 119 (Regional Sponsored Migration Scheme). The Tribunal has found that the visa applicant does not meet an essential requirement for a Subclass 121 visa. In the absence of any evidence or any claim that the visa applicant meets the requirements for a Subclass 119 visa, the Tribunal affirms the decision under review.
(CB 166)
Ms Given argues that it would be considered an absurdity if the applicant could have bound a visa applicant by seeking to have them considered for a visa that they had not applied for. Ms Given contends that it is simply a misconception that the visa applicant could have been considered against a standard of English within the meaning of Reg.1.15 that did not apply to this visa subclass.
Consideration
Ground 1
In Ground 1 the applicant argues that the Tribunal committed jurisdictional error when it denied the visa applicant from having meaningful hearing and to appear and present arguments on critical and determinative issues concerning exceptional circumstances. The applicant argues that the Tribunal breached s.360 of the Migration Act and the visa applicant was not given a meaningful opportunity to appear and present arguments regarding the determinative issues. Section 360 relevantly states:
Tribunal must invite applicant to appear
(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.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The power conferred by s.363(1), which identifies the powers of the Tribunal, is expressly conferred on the Tribunal for the purposes of the review it is undertaking. It is to be exercised consistently, and not inconsistently, with the purposes of the review, which include the obligation in s.360 to offer a meaningful hearing to a visa applicant.
At CB 139-142 is the “Invitation to Appear Before the Tribunal”, dated 8 March 2013, notifying the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal and the hearing was set down for 30 May 2013 at 3.00pm (CB 141). At CB 144 -145 is the “Response to hearing invitation”, which under the question “Will you take part in the tribunal hearing scheduled for 30 May 2013?”, nominates Mrs Sofiya Sofiya on behalf of Sahah Amanath Pty Ltd. The next question is “Will your representative be attending?” and it indicates “yes” and nominates Mr Mohammed Nasir Ullah. At CB 160, the MRT Hearing Record cites that in attendance at the hearing were:
a)Ms Sofiya Sofiya for Sahah Amanath Pty Ltd (review applicant);
b)Mr Mohammed Nasir Ullah (solicitor and migration agent); and
c)Mr Mohammed Monir Uddin (who is identified as “husband”, presumably of Ms Sofiya Sofiya).
The hearing record at CB 160 does not identify the length of time of the hearing and without the assistance of transcript of the Tribunal hearing the Court is unable to determine what occurred at the Tribunal hearing, nor the duration of the hearing. I am satisfied that the Tribunal invited the applicant to appear before it. I am further satisfied that the company, Sahah Amanath Pty Ltd, had Ms Sofiya appear on its behalf with the assistance of Mr Ullah, a solicitor and registered migration agent. The Tribunal made findings based on the evidence and material it had before it. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s Decision Record makes clear that the Tribunal reached its conclusions based on the findings made by it and in respect of which it applied the correct law.
Accordingly, for the reasons stated above, the above ground cannot be sustained and must be dismissed.
Ground 2
Ground 2 alleges that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations. Namely, the applicant identifies the considerations that other staff members speak the same language as the visa applicant and whether the visa applicant is expected to deal with customers or suppliers.
The delegate noted that the visa applicant’s application was assessed against cl.121 of the Regulations, particularly in reference to reg. 121.211(c)(ii) which states unless exceptional circumstances apply, has vocational English. The phrase “exceptional circumstances” has been held to have wide operation but in general terms, to be circumstances which are unusual or out of the ordinary: Hatcher v Cohn (2004) 139 FCR 425 per Kiefel J at [49]-[51] where her Honour stated:
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. 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.
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] VicLawRp 66; [1915] VLR 450 at 452, unless a contrary intention appears.
While the decision-maker was obliged to have regard to whether there were exceptional circumstances, the concept of whether exceptional circumstances existed (Reg. 2.26 – prescribed qualification and number of points – Independent (Migrant)(Class AT) and Skilled – Australian Linked (Migrant) (Class AJ) visas- repealed 1 July 2012) is an extremely broad concept, commonly used to give a decision-maker a power to identify circumstances or reasons which are to apply as a qualification on some other statutory provision. What the decision-maker was considering under Reg. 2.26 was not just whether there were exceptional circumstances beyond the applicant’s control, but also whether the decision-maker was positively satisfied that the non-compliance was not due to such circumstances. In such a context, the scope of potentially “irrelevant” considerations are unconfined beyond the facts that what is in question in any suggested circumstances is whether it is an exceptional circumstance beyond the applicant’s control that has caused the non-compliance in issue: Maan v Minister for Immigration and Citizenship & Anor (2009) 179 FCR 581.
In Karmaker v Minister for Immigration & Anor [2011] FMCA 595 per Barnes FM (as she was then), her Honour addressed the issue in respect of irrelevant considerations in the context of Reg.2.43(2) or as to how one determines whether the decision-maker has taken into account an irrelevant consideration in the context of such statutory provisions. Her Honour stated at [60]-[62]:
60. Other than Peko-Wallsend, I was not referred to any authorities in relation to irrelevant considerations in the context of reg.2.43(2) or as to how one determines whether the Tribunal has taken into account an irrelevant consideration in the context of such a statutory provision. There is a helpful elucidation of applicable principles by Smith FM in Kim v Minister for Immigration and Citizenship [2008] FMCA 1577. An appeal from that decision was dismissed in Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161. While Smith FM was considering a provision that involved a dispensation from the normal rule where there were exceptional reasons for the grant of a visa (which is not exactly the same concept or context as here), it is nonetheless relevant that his Honour proceeded on the basis that the Migration Act would allow the making of a regulation that conferred an unconfined discretion in that respect. On that basis the decision-maker could give effect to any rational reasons (at [15]). Further, Kiefel J accepted in Hatcher v Cohn (a case referred to by the Tribunal) at [50] that a formulation such as “exceptional circumstances” (like “special circumstances”) “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” (emphasis added) (Baker v the Queen (2004) 223 CLR 513; [2004] HCA 45 at [13] per Gleeson CJ).
61. In Hatcher v Cohn Kiefel J applied such an approach in relation to the concept of “exceptional circumstances” in the Migration Act, indicating that this concept “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” (at [50]).
62. As a matter of statutory construction there is nothing in the language of reg.2.43(2) or in the context of the legislation to indicate that there is some limitation on factors the Tribunal can take into account in proceeding to consider whether it is satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control, other than the question which it had to ask itself. Reading the Tribunal fairly and as a whole, that it precisely what the Tribunal proceeded to do.
At CB 118 the delegate noted that when considering whether exceptional circumstances apply to a visa applicant who does not have vocational English, the delegate should consider:
• the nature of the work to be performed (in particular why vocational English is not essential to perform the full range of required to perform the full range of required duties)
• how the visa applicant might transfer their skills or train other employees regardless of whether the current staff are from the same, or similar, cultural background as the applicant as this may change due to staff turnover or anti-discrimination concerns.
• how they may be able to comply with occupational health and safety (OH&S) issues
• how they may be able to understand and deal with issues relying to employment and workplace rights, such as workplace bullying and harassment
• the efforts made to recruit a suitably qualified person who does have vocational English
• whether 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.
(CB 118)
The above considerations show that the delegate had an open mind to a number of factors relating to the visa applicant and the applicant, beyond the information that had been provided. Similarly, at [7] of the Tribunal’s Decision Record, the Tribunal identified the policy guidelines that relate to “exceptional circumstances”. At [10] (CB 166) the Tribunal stated:
10. At the hearing, the Tribunal explained to the review applicant that because the visa applicant did not have vocational English at the time of his visa application. Exceptional circumstances must apply for the Tribunal to be satisfied that the visa applicant meets cl.121.211(c). The Tribunal invited the review applicant to cite exceptional circumstances applying to the present case that would justify the Tribunal waiving the vocational English requirement. The review applicant responded that the visa applicant was a very good cook of Bangladeshi cuisine. She said that her husband is also a cook but not as good as the visa applicant. The representative noted that the review applicant had placed an advertisement in a local Bengali newspaper in January 2010… The review applicant indicated that no further advertisements had been placed; she said that other cooks had been obtained through word of mouth but that none had been as good as the visa applicant. The representative passed to the Tribunal the results of an IELTS test (completed by the visa applicant after he had lodged his visa application) in which the visa applicant obtained an overall band score of 4.5.
(CB 166)
Having regard to Mr Kumar’s argument that the Tribunal failed to take into account relevant considerations, in particular (a), (b) and (d) of Ground 2 I refer to the authority of An v Minister for Immigration and Citizenship (2007) 160 FCR 480. His Honour Lindgren J noted therein at [31] and [33]:
31. A particular employment position is not necessarily rendered exceptional in relation to that policy [of favouring the English language] simply by past choices made by the employer to employ only persons who can speak a particular foreign language…
…
33. The exception appears to be directed to situations in which the employee will not be working with others in a conventional workplace situation…
The Procedures Advice Manual 3 (“PAM3”) extracted in the Tribunal’s Decision Record (CB 164 to 165 at [7]) provides guidance to delegates explaining that “exceptional circumstances” “do not need to be unique, unprecedented or rare, but it cannot be regularly, routinely or normally encountered”.
His Honour Wilcox J in Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400 stated at [81]:
81. …The term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? ... Like beauty, “exceptional circumstances” lies in the eye of the beholder.
The Tribunal noted that it considered the evidence and observed the applicant’s case that exceptional circumstances applied was based on the claim that the visa applicant was a very good cook of Bangladeshi cuisine and that the company had been unable to obtain a satisfactory cook. The Tribunal stated that the applicant had not provided adequate evidence that the company had made a serious attempt to obtain a satisfactory cook. The Tribunal noted that the Department’s case file contained evidence that the visa applicant had a Certificate III in Cookery and TRA had provided a positive assessment for the occupation of cook, however, there was no evidence that the visa applicant had won any awards for his cooking or anything else that otherwise indicated that he was an exceptional cook. The Tribunal concluded that the applicant had not established that the visa applicant was an exceptional cook, but merely asserted that he was a very good cook.
The Tribunal has had regard to the evidence that it had before it, the material referred to in the delegate’s decision and other material available to it from a range of sources. As suggested in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (supra), the Tribunal does not need to refer to every piece of evidence and every contention made by the applicant. At [46] therein, their Honours French, Sackville and Hely JJ stated:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
Although no reference was made to this particular example by Mr Kumar in written or oral submissions, Ms Given, in her written submissions, which are reproduced at [36] above, referred to material from the employer’s letter to the Department dated 7 January 2010, which accompanied the visa application (CB 1-2). I agree that this appears to be an explanation as to why the applicant wished to employ the visa applicant, despite his failure to satisfy a requirement of the visa which was to demonstrate vocational English. I am not satisfied that this Ground can be sustained and, accordingly, it should be dismissed.
Ground 3
Ground 3 alleges that the Tribunal failed to assess whether the visa applicant had functional English. As argued by the Minister in the written submissions, the term “functional English”, by reference to s.5 of the Migration Act and Reg. 5.17 of the Migration Regulations is irrelevant to the current proceedings as the operation of cl.121.211(c)(ii) imposes a higher standard of English. Clause 121.211(c)(ii) states: “unless exceptional circumstances apply, has vocational English”. Regulation 1.15B defines vocational English as:
1.15B Vocational English
…
(3) …the person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:
(a) not more than 12 months before the day on which the application was lodged; or
(b) during the processing of the application.
At CB 75 is a copy of the visa applicant’s IELTS test result, dated 2 September 2009, which has an overall band score of 3.5. At CB 133 is the visa applicant’s second IELTS test result, dated 23 August 2011. The copy of this test result is illegible in the Court Book that is before the Court. It is apparent, however, that the visa applicant obtained an overall band score of 4.5. This detail is explained at CB 132 in a letter to the Tribunal from Mr Ullah and also referred to in the Tribunal’s Decision Record at [10] where the Tribunal stated:
10. …The representative passed to the Tribunal the results of an IELTS test (completed by the visa applicant after he had lodged his visa application) in which the visa applicant obtained an overall band score of 4.5.
(CB 166)
It can be clearly seen, by the Regulations set out above, that the visa applicant did not satisfy the criteria of achieving “least 5 for each of the 4 test components of speaking, reading, writing and listening”. Secondly, the second IELTS test was dated 23 August 2011, several months after the visa application was lodged. Notably, cl. 121.21 is titled “Criteria to be satisfied at the time of application.” The Tribunal thus did not have the discretion to accept IELTS test results after the application has been lodged. Evidently, the visa applicant failed to satisfy the test set down by the Regulations, noted above.
The test set out by cl.121.211(c)(ii) sets a higher standard of English, being vocational English. This is one of two criteria that the visa applicant needed to satisfy. Again, the Tribunal did not have the discretion to consider or accept the second IELTS test results. Notably at [12] of the Tribunal’s Decision Record, it stated:
12. The Tribunal finds that at the time of the application the visa applicant was less than 45 but did not have vocational English within the meaning of r.1.15B. For the reasons given above, the Tribunal is not satisfied that exceptional circumstances apply to the present case to justify a waiver of the vocational English requirement. Accordingly, the Tribunal is not satisfied that the visa applicant meets cl.121.211(c).
(CB 166)
Mr Kumar argued that the Tribunal failed to consider all of the circumstances, in light of the evidence of the visa applicant’s functional English, being the IELTS overall band score of 4.5. The Tribunal’s duty to inquire into facts relevant to the matter before it, culminates in the Tribunal determining whether to set aside or affirm the decision under review. It is not the duty of the Tribunal to make out an applicant’s case. The Tribunal was under no obligation to assess whether the visa applicant had functional English and whether the visa applicant should be given the opportunity to receive a VAC exception as the alternative basis on which the visa applicant could satisfy the requirements. The Tribunal was also not under any obligation to give the visa applicant a further opportunity to meet the English language requirements.
In a decision of this Court in Kaur & Ors v Minister for Immigration & Anor [2014] FCCA 2154 in relation to the Tribunal’s duty to inquire, I found:
95. The principal obligation of the Tribunal to make inquiries is imposed by s.348 of the Migration Act and that the Tribunal must “review” the decision which is the subject of the application before it. That is the duty to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. It is noted by the majority in Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39; (2009) 111 ALD 15, however, the extent to which the Tribunal is required to inquire before it can be said that the Tribunal has properly reviewed the decision is qualified. At [18] of SZIAI(supra) their Honours French CJ, Gummow Hayne, Crennan, Kiefel and Bell JJ stated:
18. It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exerciseall the powers and discretions of the primary decision-maker,is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor,” that is to say "one whose official duty it is to inquire, examine or investigate". As applied to the Tribunal “inquisitorial" does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
(footnotes omitted) (emphasis added)
I am not satisfied that this Ground can be sustained and should be dismissed.
Ground 4
Ground 4 alleges that the Tribunal committed jurisdictional error by failing to assess other categories of visa within Subclass 121 – Employer Nomination visa. The Tribunal noted that there were two subclassed of visa in the Class (AN) visa that the visa applicant had applied for, being Subclass 121 (Employer Nomination Scheme) and Subclass 119 (Regional Sponsored Migration Scheme). The Tribunal found that the visa applicant did not meet an essential requirement for a Subclass 121 visa (see CB 166 at [13]). The Tribunal concluded that “[i]n the absence of any evidence or any claim that the visa applicant meets the requirements for a Subclass 119 visa, the Tribunal affirms the decision under review.” (CB 166 at [13]) (emphasis added).
I note the argument of Ms Given at [67]-[71] and agree with the submissions made. It is for the visa applicant to make his case out before the Tribunal. There is nothing in the material before the Court to suggest that the Tribunal had an obligation to investigate further in the same sense considered in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123 or in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. Moreover, it was the delegate of the Minister who, despite no claim having been made, considered the visa applicant’s against the requirements of Subclass 119 and concluded that the visa applicant had not made any claims for, or produced any evidence towards satisfying the prescribed criteria for Subclass 119 (CB 120). The Tribunal bears no obligation to investigate whether the visa applicant could satisfy the requirements of other visa classes in cl.121.211A, as suggested by Mr Kumar, being an Independent (Class AT) visa or a Skill Matching (Migrant) (Class BR) visa.
I am not satisfied that Ground 4 can be sustained and should be dismissed.
Ground 5
The Court notes that Mr Kumar indicated to the Court that it was not his intention to press Ground 5, consequently he sought to make no submissions in respect of that Ground. This application cannot be sustained and should be dismissed with costs.
Oral submissions
I have had extensive regard to the oral submissions made by Mr Kumar at the hearing, however, I am not satisfied, to the extent that any of these oral submissions raise a different ground (or different aspect of a ground of review), that any of these grounds can be sustained. These submissions were made, effectively, in support of the pleaded grounds of review which have been addressed in detail above. There is nothing raised from these submissions that could purport to be a sustainable “new” ground of review.
Conclusion
As none of the grounds of review in the application can be sustained, it should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 December 2014
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