SHI v Minister for Immigration
[2014] FCCA 1278
•19 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1278 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.857.213(b)(ii) of Schedule 2 |
| Zhu v Minister for Immigration& Border Protection [2013] FCCA 1490 An v Minister for Immigration & Citizenship (2007) 160 FCR 480 |
| First Applicant: | LEI SHI |
| Second Applicant: | YUNSHENG HONG |
| Third Applicant: | HONG HONG |
| Fourth Applicant: | YING HONG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 281 of 2013 |
| Judgment of: | Judge Simpson |
| Hearing date: | 7 February 2014 |
| Date of Last Submission: | 7 February 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 19 June 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr Lazarevich |
| Solicitors for the Applicants: | Fletcher & Lawson |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 30 September 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 281 of 2013
| LEI SHI |
First Applicant
| YUNSHENG HONG |
Second Applicant
| HONG HONG |
Third Applicant
| YING HONG |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Where in these reasons I refer to the “applicant’, I am referring only to the first applicant. Where I refer to “applicants”, I am referring to all four applicants.
The applicants’ application was filed on 30 September 2013. The applicant is the wife of the second applicant and the mother of the third and fourth applicants.
The applicants seek orders in the nature of certiorari and mandamus in relation to a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”) dated 3 June 2013. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants’ Employer Nomination (Residence) (Class BW) visas (“the Visa”).
Applicants’ grounds of review
The applicants’ grounds of the application are as follows:
1.The Tribunal committed jurisdictional error in relation to its test as to whether exceptional circumstances applied to waive the requirements of an Employer Nomination Residence (Class BW visa) relating to the first applicant’s age and the functional English requirements in that:
a. The Tribunal did not consider the exceptional circumstances test by reference as to hypothetical employer where staff were English speakers rather than the actual employer where staff spoke Mandarin.
b. The Tribunal instead considered the exceptional circumstances test by reference to a hypothetical employer where staff were English speakers rather than the actual employer where staff spoke Mandarin.
c. Particulars of these matters are:
i.The applicant was employed as a head chef or sous chef specialising in Shanghi cooking by her sponsoring employer, Q & S 818 Pty Ltd.
ii.The employer ran a Chinese restaurant;
iii.Each of the employees spoke Mandarin, and some spoke English and Mandarin;
iv.The employer was unable to find a younger person who was suitably qualified and available in a regional area;
v.The menu of the restaurant was in Mandarin and translated into English by the manager;
vi.It was not necessary for the applicant to have a functional level of English to undertake her duties as her co-workers and suppliers spoke Mandarin;
vii.The Tribunal considered that it would be necessary for the Applicant to be able to transfer her skills to non Chinese staff [at 28, 54], however there was no evidence that the employer had any non Chinese staff, nor that, given that she was learning English, that she could not pass on her skills as a chef through a mixture of: practical demonstration; her basic English; and through translation by those around her who spoke English and Mandarin.
viii.The Tribunal considered it essential for the Applicant to be able to explain ingredients in English however the Applicant worked in the kitchen cooking, and the persons taking the orders from customers spoke English and Mandarin [at 29, 30, 55];
ix.That the Applicant would need to communicate with non English staff [at 54-55], however there was no evidence that there were any staff who did not speak Mandarin;
x.Accordingly the Tribunal has considered the situation of a person without a functional level of English working in an environment where those around her may speak only English, whereas the particular restaurant in question was one where the staff spoke Mandarin.
2.The Tribunal committed jurisdictional error in taking into account the matters referred to at 1(vii) to (x) inclusive above because they were not relevant to the question of exceptional circumstances, being a test that should have focused on the needs of the employer and the circumstances of the applicant. Here there relevant exceptional circumstances was the inability of the employer restaurant to find a suitably qualified chef specialising in modern Shanghi cooking prepared to work in South Australia, coupled with the fact that the applicant’s basic rather than fully functional English was sufficient for her to work in an environment in which all the staff spoke Mandarin.
3.The Tribunal committed jurisdictional error by having regard to matters not established by evidence being that the Tribunal believed that it was possible to find younger persons who had the skills and experience of the applicant [at 46 – 46]. There was no reason to reject the employer’s evidence because there was no evidence to the contrary.
4.The Tribunal committed jurisdictional error by having regard to irrelevant considerations:
a. The steps that had been taken in relation to Occupational Health and Safety [at 37]. This is an error as this is the employer’s responsibility at law, not the applicant’s, and is irrelevant to the question of whether the requisite exceptional circumstances existed.
b. That the applicant’s salary of $48,000 per annum did not distinguish her from less experiences staff [at 32]. Her salary is not relevant to the question of exceptional circumstances.
c. That the applicant should have the responsibility of dealing with emergencies in English. [at 55] This raises questions of internal management of the business, and is not relevant to the question of exceptional circumstances.
The first respondent filed its material, including an Outline of Submissions on 3 February 2014 and therefore within the time allowed by the orders of the Court made on 8 November 2013. In contravention of those orders, the applicants filed further material and raised an additional ground of review on 3 February 2014. This resulted in the first respondent having to file a second Outline of Submissions. The first respondent seeks costs in relation to the preparation of the first Outline of Submissions irrespective of the outcome of the proceedings. Noting that the applicants have not argued against such an order, and in the circumstances, I am inclined to make the order requested.
The applicants’ additional ground of review was in the following terms:
“The Tribunal fell into jurisdictional error by asking a series of questions based on and reaching a decision consistent with Policy PAM 3 referred to page 6 of 13 of the reasons, paragraph [23] of the reasons, and in Zhu v minister for Immigration and Anor [2013] FCCA 1490, because the said policy set out what would not be ‘exceptional circumstances’ as regards a person from a non English speaking background working in an environment where other staff spoke the language of the applicant, whereas on a plain English reason of the Migration Regulations 1994 there is no reason why such facts could not amount to exceptional circumstances.”
Background
On or about 28 October 2010, the applicant applied for a visa. The visa sought was an onshore permanent visa available under the Regional Sponsored Migration Scheme. This scheme allowed for a visa to issue for persons who meet the requirements for a position nominated by an employer. The visa will only issue however, providing that, in addition, the person meets the requirements of the relevant provisions of the Migration Act 1958 (Cth) (“the Act”).
The applicant listed her occupation as “Chef” and claimed that she had been employed by her sponsoring employer, Q & S 818 Pty Ltd (“the Employer”) since February 2010.
The hearing before the Delegate
In order to be granted the visa sought it was necessary that the applicants satisfy the Delegate, among other things, that the requirements of cl.857.213(b)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) was satisfied. It required the first applicant to demonstrate firstly, that unless “exceptional circumstances applied” she firstly, had not turned 45 (cl.857.213(b)(ii)(A)), secondly, had functional English (cl.857.213(b)(ii)(B)), and finally, had a diploma (within the meaning of sub-reg.2.26A(6)) or a higher qualification that is relevant to the appointment (cl.857.213(b)(ii)(C)).
The applicant acknowledged in her visa application and before the Delegate, that she was over 45 years of age and did not have functional English. She submitted however that there were “exceptional circumstances” which warranted the grant of the visa, namely:
· the difficulties faced by her employer in trying to find a young person who was suitably qualified to come to a regional area (i.e., Adelaide);
· the applicant being an essential addition to the employer’s business;
· the applicant had been undertaking English classes; and
· that functional English was not required for the applicant to perform her duties as Head Chef.
On 17 November 2011, the Delegate refused to grant the first applicant the visa on the basis that she did not meet cls.857.213(b)(ii)(A) and (B), because she was over 45 years of age and did not have functional English, and that she had failed to demonstrate that exceptional circumstances applied to justify the waiver of these requirements.
The hearing before the Tribunal
On 29 November 2011, the applicants filed an Application for Review with the Tribunal. The first applicant was invited to and attended a Tribunal hearing arranged for 28 August 2013.
The only issue for consideration by the Tribunal was whether there were “exceptional circumstances” to justify the waiver of the age limit requirement and the requirement that the first applicant have functional English.
In considering whether there existed such exceptional circumstances, the Tribunal was guided by the Department’s Procedures and Advice Manual (“PAM3”) whilst bearing in mind that the manual was not binding on the decision maker and should not be a source of relevant considerations in the sense of considerations that the decision maker is bound by legislation to take into account.
In determining whether “exceptional circumstances” existed in relation to the first applicant’s age, the Tribunal considered a number of factors including:
· whether it was possible to find a younger suitably qualified person to fill the position;
· whether the duties of the person were unique; and
· whether the position would normally require a person with skills and experience over many years.
The Tribunal also expressly had regard to the oral evidence of the owners of the sponsoring business that they were having difficulty in attracting and retaining staff in a regional area and that the applicant was regarded as a skilled and valued employee.
The Tribunal did not accept however, that the skill level required for the position meant that few people under 45 would have those skills or, alternatively, it would be difficult to recruit someone under 45 for the position.
The Tribunal did not accept that the first applicant was critical or essential to the operation of the business as one of the owners was a chef with 20 years’ experience who could cook in the traditional Shanghi style. Further, there was at least one other Sous chef who worked in the kitchen and was able to cook in the Shanghi style.
As a result, the Tribunal found that the first applicant’s skills were not so unique and her position not so essential to the business as to outweigh its concerns about her age. The Tribunal therefore found that there were no exceptional circumstances that warranted the exercise of its discretion to waive the requirements of the applicable clause.
As mentioned above, the Tribunal also had regard to the matters set out in PAM3 in determining whether “exceptional circumstances” applied so as to justify the waiver of the functional English requirement. These included the following matters:
a)the nature of the work;
b)whether the position required specialised skills or knowledge;
c)how the applicant might transfer her skills to other employers regardless of her background;
d)the first applicant’s ability to understand and comply with occupational health and safety requirements and deal with emergencies when she was alone;
e)the first applicant’s ability to understand her employment rights and obligations;
f)whether the employer had made any effort to recruit suitably qualified persons with functional English; and
g)whether the first applicant had worked in the position for at least 12 months.
Whilst the Tribunal acknowledged that the first applicant had made some effort to learn English in Australia, it found it unacceptable that non Cantonese speaking persons, including English speaking person, could be excluded from the business because they would not be able to communicate with the head chef.
Similarly, the Tribunal also had concerns about the first applicant’s ability to notify customers or English speaking staff in the case of an emergency or, alternatively, to discuss ingredients with customers who might have concerns about allergic reactions to certain foods.
Whilst the Tribunal again took into account the purported difficulties faced by the business in attracting experienced chefs to the area, it found that this did not overcome the concerns that it had identified with the applicant’s English language ability.
Accordingly on 9 September 2013 the Tribunal found that there were no exceptional circumstances that warranted the exercise of its discretion to waive the requirements of the applicable clause and that, accordingly, the applicant did not satisfy an essential criteria for the grant a visa.
The applicants filed their application in this Court on 30 September 2013.
The hearing before the Federal Circuit Court
Applicants’ submissions
The applicants in their Outline of Submissions correctly identify the issue in this case as a determination of whether the Tribunal committed a jurisdictional error in failing to find that exceptional circumstances existed that should have allowed it to depart from the requirements in cls.857.213(b)(ii)(A) and (B). Those requirements provided that firstly, the first applicant was less than 45 years of age and, second, had a functional level of English.
The applicant submits that the Tribunal fell into error because, on the plain English meaning of the words “exceptional circumstances”, broadly defined as set in the authorities, the following matters gave rise to the exceptional circumstances allowing the Tribunal to depart from the age and functional English requirements. These matters are:
·the specialist cuisine in question, being Shanghainese cuisine;
·the difficulties experienced by the employer in finding an English speaking person under the age of 45 who could meet the job requirements;
·that the staff in the restaurant all spoke Mandarin;
·the employer spoke Mandarin;
·the first applicant could transfer her skills to employees through practical demonstration and Mandarin;
·that the applicant was studying English and demonstrating an improvement in her English; and
·the effect on the employer’s business of retaining a person with the experience of the applicant.
It is further submitted by the first applicant that the Tribunal’s approach amounted to jurisdictional error in that the Tribunal had acted contrary to the evidence in finding that the applicant could not pass on her skills to other staff. The Tribunal had taken into account irrelevant considerations (the hypothetical scenarios divorced from the actual employment under consideration, or the suggestion that non-Cantonese speakers could be precluded from the workplace). Further it was submitted that the Tribunal had adopted too narrow an approach to exceptional circumstances by applying the PAM criteria notwithstanding that it purported to adopt a non-technical meaning in its reasons.
The applicants’ submit that the decision should be quashed and the matter remitted to the Tribunal for consideration according to law.
Analysis
There is no dispute that at the time of the filing of the application, the applicant did not meet two of the primary criteria needed to be granted the visa. These were the criteria that the applicant had not turned 45 and that she had evidence of functional English. Functional English is not the same as vocational English and does not suggest as great a knowledge of English as vocational English does.
As the applicant did not satisfy these two criteria, she is only eligible to obtain the visa sought if she can establish that there are exceptional circumstances.
The Tribunal referred to a departmental document containing, inter alia, policy guidance on the question of “exceptional circumstances” when assessing a case where an applicant does not comply with the age limit and/or does not have evidence of functional English. In doing so, the Tribunal acknowledged that the document, the Procedures Advice Manual (“PAM 3”), did not have the status of legislation and that it was open to the Tribunal to find that considerations referred to in PAM 3 did not amount to “exceptional circumstances” within the ordinary meaning of the term, or when viewed against the circumstances of other persons in comparable situations.
The applicant has five grounds of review. Four of the grounds were identified in the Initiating Application filed on 30 September 2013 and one further ground identified in the document filed on 5 February 2014. I propose to address each of the five grounds in turn.
Ground 1
With respect to the applicants, this ground does not make sense. Subparagraph (b) states that the Tribunal considered the exceptional circumstances test by reference to a hypothetical employer where staff were English speakers rather than the actual employer where staff spoke Mandarin but in subparagraph (a) the ground states that the Tribunal did not do what is alleged in subparagraph (b).
Doing the best that I can with this particular ground, I will assume that what the ground is intended to mean is that the Tribunal failed to consider the “exceptional circumstances test” in relation to the specific circumstances that were before it. The first applicant submits that the Tribunal erred in considering the situation of a person without a functional level of English working in an environment where those around her only spoke English, whereas the particular restaurant in question was one where the staff spoke Mandarin.
This ground is without merit. An examination of the Tribunal’s reasons indicates that it had regard to the fact that only Mandarin was spoken at the restaurant in question but the Tribunal nevertheless concluded that it was insufficient to demonstrate the existence of exceptional circumstances. At paragraphs 54 to 57 of the Tribunal’s reasons, it had this to say:
“54.The applicant claimed her lack of functional English was not an impediment to her work because she only worked with Mandarin staff in the kitchen and had never needed to train staff in English. She conceded she would only be able to train an English speaker through demonstrating the work required. Whilst acknowledging the past and current staff are Mandarin speaking, the Tribunal is concerned that the applicant’s lack of functional English precludes her from passing on skills to English speaking employees in the future. The Tribunal finds it unacceptable that non-Cantonese speakers could be precluded from the workplace because they could not communicate with the head chef.
55.The Tribunal has real concern about the ability of the applicant to notify customers or English speaking staff about the nature of any emergency or to identify ingredients which may pose serious allergic reactions to customers. The Tribunal has taken into account the evidence that the applicant is never along in the workplace so she would never need to deal with an emergency situation or take orders from customers. The Tribunal has difficulty accepting this submission, that as the head chef the applicant should have no responsibility to respond appropriately and raise the alarm, including alerting customers, in the event of a medical emergency or fire at the restaurant, because she can rely on other English speakers around her.
56.The Tribunal has taken into account the sponsor’s evidence of the difficulties in attracting experienced chefs to the area. However, it is the Tribunal’s view that this is outweighed by the concerns of the applicant’s ability to transfer her skills and respond to an emergency.
57.Having considered the matters above, the Tribunal finds that exceptional circumstances do not apply in relation to the English requirements in this case. The Tribunal does not accept the applicant’s circumstances are sufficiently unusual or out of the ordinary to constitute exceptional circumstances for the purposes of c.857(b)(ii)(B).”
This ground does not identify jurisdictional error and therefore fails.
Ground 2
In this ground, the first applicant contends that the Tribunal failed to focus on the specific needs of the employer without regard to the need for the applicant to be able to speak English. The applicant says that the Tribunal should have considered the situation where the applicant does not have a functioning level of English but is working in a restaurant where the staff spoke Mandarin. In my view, the Tribunal took into account the matters that have been identified in ground 2 and gave them as much weight as they deserved. It was for the Tribunal to balance these and other matters to come to a decision. It is not appropriate for this to be reviewed in this Court.
Ground 3
In this ground, the first applicant submits that the employer’s evidence that it was not possible to find a younger person who had the skills and experience of the applicant should have been accepted and a finding made in favour of the applicant. This ground fails. It was for the Tribunal to make findings of fact as it thought appropriate. The finding that was made was open to the Tribunal. The Tribunal was under no obligation to simply accept the evidence of the employer.
Ground 4
In this ground, the applicant contends that the Tribunal took into account irrelevant considerations in considering whether exceptional circumstances existed to justify waiver of the “functional English” requirement. The alleged “irrelevant considerations” were firstly, the steps taken in relation to occupational health and safety, secondly, the first applicant’s salary and, thirdly, the first applicant’s responsibility role when dealing with emergencies.
In relation to the alleged irrelevant consideration of the steps taken in relation to occupational health and safety, the Tribunal heard evidence from Ms Peijun Qian who said she was the registered owner of the business that the employer was involved with. The Tribunal asked Ms Qian what she had done to ensure that the applicant was aware of her occupational health and safety obligations and responsibilities. The applicant was asked what she understood were her obligations and responsibilities. The Tribunal did not indicate that it made any findings in relation to this issue. Similarly, in relation to the issue of the applicant’s salary being $48,000 per annum, this was an issue discussed but no findings were made in relation to it. Neither the occupational health and safety, nor the applicant’s salary formed part of the Tribunal’s reasons.
In relation to the allegation in ground (c) that the Tribunal dealt with an irrelevant consideration when asking questions about the applicant having responsibility of dealing with emergencies in English, the Tribunal was entitled to express its concern about the applicant’s ability to notify customers or English speaking staff about the nature of any emergency or to identify ingredients which may pose serious allergic reactions to customers. This was a relevant matter for the Tribunal to take into account in deciding whether exceptional circumstances existed to justify the waiver that the applicant sought. This ground is without merit.
Ground 4 fails.
Ground 5
This ground alleges that the Tribunal fell into jurisdictional error by asking a series of questions and reaching a decision that was consistent with PAM 3. The Tribunal was not bound to find the existence of exceptional circumstances in the present case notwithstanding the case of Zhu v Minister for Immigration & Border Protection [2013] FCCA 1490. The role of the Tribunal was to assess the facts and circumstances so as to arrive at the correct or preferable decision in the case before it according to the material before it.
Further, as Lindgren J noted in An v Minister for Immigration & Citizenship (2007) 160 FCR 480 at [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 [and the] exception appears to be directed to situations in which the employee will not be working with others in a conventional workplace situation”
In light of Lindgren J’s comments in An it can hardly be said that the Tribunal’s conclusion that it was not satisfied of the existence of “exceptional circumstances” that justified waiver of the functional English requirement was not open to the Tribunal on the facts.
In my view, ground 5 fails.
Conclusion
In the circumstances the application should be dismissed.
I make orders in terms of the orders to be found at the beginning of these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 19 June 2014
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