Tian v Minister for Immigration and Citizenship

[2008] FCA 1334

FEDERAL COURT OF AUSTRALIA

Tian v Minister for Immigration and Citizenship [2008] FCA 1334

MIGRATION – Employee Nomination Scheme – subclass 856 visa – definition of “highly skilled person” in r 5.19(3) of the Migration Regulations 1994 (Cth) – meaning of expression “the person has completed, over a period of 3 years, formal training or equivalent experience” found in r 5.19(3)(a) – whether the Migration Review Tribunal was required to consider whether the approved appointment is “exceptional” for the purposes of r 5.19(3)(b)

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), r 5.19, Item 1114A of Schedule 1, and Clause 856 of Schedule 2

An v Minister for Immigration and Citizenship (2007) 160 FCA 480

TIAN and ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ANOR

NSD 652 OF 2008

EMMETT J
29 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 652 OF 2008

BETWEEN:

LI TIAN
First Appellant

JIA JUN YE
Second Appellant

JIA XIN YE
Third Appellant

SONG TAO YE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Federal Magistrates Court of 21 April 2008 be set aside and, in their place, it be ordered that:

(a)The decision of the Migration Review Tribunal be quashed.

(b)The matter be remitted to the Migration Review Tribunal for determination according to law.

(c)The First Respondent pay the Applicants’ costs of the application.

3.The First Respondent pay the Applicants’ costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 652 OF 2008

BETWEEN:

LI TIAN
First Appellant

JIA JUN YE
Second Appellant

JIA XIN YE
Third Appellant

SONG TAO YE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	29 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal concerns the construction of provisions of the Migration Regulations 1994 (Cth) (the Regulations), which were made under the Migration Act 1958 (Cth) (the Act). In particular, the meaning of r 5.19 is in issue in relation to the criteria for the grant of a subclass 856 visa under the Employer Nomination Scheme. Regulation 5.19 deals with approval of nominated positions for the purposes of certain subclasses of visa, including subclass 856 visas.

2. The second appellant is the husband of the first appellant and the third and fourth appellants are children of the first appellant.  The second, third and fourth appellants’ applications are dependent upon the first appellant’s application.  Accordingly, I shall refer to the first appellant as the Visa Applicant. Item 1114A of Part 1 of Schedule 1 to the Regulations deals with Employer Nomination (Residence) (Class BW) visas. Subitem (4) specifies subclasses, which relevantly include subclass 856 (Employer Nomination Scheme) visas. Clauses 856.21 and 856.22 in Schedule 2 to the Regulations specify the criteria that must be satisfied for the grant of a subclass 856 visa. Clause 856.21 specifies the criteria to be satisfied at the time of the application for a visa. Clause 856.22 specifies the criteria that must be satisfied at the time of the decision.

3. At the relevant time, clause 856.213 relevantly provided that one of the criteria that must be satisfied at the time of application was that the applicant had been nominated, in accordance with r 5.19(2), by an employer for an appointment in the business of that employer and that the applicant was a highly skilled person, within the meaning of r 5.19, in relation to that appointment. Under clause 856.214, if the appointment was an approved appointment at the time of application, a further requirement was that the period that had elapsed since the appointment became an approved appointment did not exceed six months.  Under clause 856.221, one of the criteria that must be satisfied at the time of the decision was that the appointment mentioned in clause 856.213 was an approved appointment. 

4. Regulation 5.19 deals with “Approval of Nominated Positions (Employer Nomination)”.  Regulation 5.19 provided that an employer could apply to the first respondent, the Minister for Immigration and Citizenship (the Minister), for approval of a nominated position as an approved appointment.  The Minister could approve or reject such an application.  As soon as practicable after deciding an application, the Minister was required to give the employer a copy of the instrument approving or rejecting the application.  Regulation 4.02(4)(e) provided that a decision to reject an application for approval of a nominated position was an MRT-Reviewable Decision. Divisions 2 and 3 of Part 5 of the Act provided for review of an MRT-Reviewable decision by the second respondent, the Migration Review Tribunal (the Tribunal). 

5. Under r 5.19(2), an employer nomination met the requirements of that regulation if, relevantly:

   ·the employer nomination was made by an employer in respect of a need for a paid employee in a business located in Australia and operated by that employer; and

   ·the work to be performed required the appointment of a highly skilled person within the meaning of r 5.19(3).

6. It is important to set out the terms of r 5.19(3) verbatim. That provision was in the following terms:

   (3)      A person is a highly skilled person in relation to a nominated position if, in respect of work of the kind to be performed in that position:

   (a)the person has completed, over a period of at least 3 years, formal training or equivalent experience; and

   (b)unless the approved appointment is exceptional, the person has been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least 3 years:

   (i)after completing the training or experience referred to in paragraph (a); and

   (ii)       before making the application…

7. Revetec Limited (the Employer) applied to the Minister for approval of the position of sales and marketing manager with the Employer as an approved appointment pursuant to r 5.19(1). The Minister approved the application on 6 July 2005.

8. On 10 March 2005, the appellants applied to the Minister for a subclass 856 visas. On 25 November 2005, a delegate of the Minister refused the grant of visas to the appellants. The delegate concluded that the Visa Applicant failed to meet the definition of highly skilled person in r 5.19(3). Therefore, she did not meet the requirement of clause 856.213. As the Visa Applicant had not met the criteria for the grant of a visa, the other appellants also failed to meet the relevant criteria for the grant of visas.

9. On 12 December 2005 the appellants applied to the Tribunal for review of the delegate’s decision.  On 21 June 2007, the Tribunal affirmed the decision not to grant visas to the appellants.  On 17 July 2007, the appellants commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 21 April 2008, after a hearing on 8 February 2008, the Federal Magistrates Court ordered that the proceeding be dismissed.  The appellant filed a notice of appeal in this Court from those orders on 9 May 2008. 

10. The grounds upon which Constitutional writ relief was claimed may be summarised as follows:

    (1)The Tribunal committed jurisdictional error by wrongly directed itself as to the meaning of the term “equivalent experience” in r 5.19(3)(a), in so far as it took the view that, in order to show experience equivalent to three years of formal training as a sales and marketing manager, an applicant’s experience needed to be five years at the fully trained level for a sales and marketing manager.

    (2)The Tribunal committed jurisdictional error by failing to consider a request by the Visa Applicant that the approved appointment as sales and marketing manager with the Employer be treated as exceptional for the purposes of r 5.19(3)(b).

    The grounds of appeal to the Federal Court are, in essence, that the Federal Magistrates Court erred in rejecting those grounds. 

    THE TRIBUNAL’S DECISION

11. The Tribunal characterised the issue before it as whether the Visa Applicant is a highly skilled person within the meaning of r 5.19(3). That is to say, the Tribunal considered that the question before it was whether the Visa Applicant, at the time of her application, was a highly skilled person in relation to the approved appointment of sales and marketing manager in the business of the Employer.

12. The Tribunal concluded that it had no evidence to demonstrate that the Visa Applicant had completed formal training over a period of at least three years.  The Tribunal therefore considered that, for the Visa Applicant to be a highly skilled person, she must have completed experience equivalent to three years of formal training. 

13. In that regard, the Tribunal had regard to the Australian Standard Classification of Occupations, which is published by the Australian Bureau of Statistics (the ASCO Dictionary).  The ASCO Dictionary states that the entry requirement for a sales and marketing manager is a bachelor degree or higher qualification or at least five years’ relevant experience.  It states that, in some instances, relevant experience is required in addition to the formal qualification.  The ASCO Dictionary also sets out the tasks that would be performed by a sales and marketing manager. 

14. The Tribunal examined the evidence before it as to the qualifications and work experience of the Visa Applicant.  The Tribunal concluded that, in the absence of formal training, the Visa Applicant was required to have completed experience equivalent to three years’ formal training and observed that the ASCO Dictionary, as a guide, indicated that five years’ relevant experience may be comparable to a bachelor degree or higher qualification. 

15. In the light of that finding, the Tribunal found that a period of eight years’ experience was required. This was based on five years’ experience, being the equivalent of three years’ formal training, as provided in r 5.19(3)(a), plus a period of three years’ employment in work of the kind in which she is experienced, after completing that equivalent experience, as provided in r 5.19(3)(b).

16. Accordingly, the Tribunal examined the evidence of employment provided by the Visa Applicant. It considered that, in some respects, the evidence was not credible and that the material provided, particularly in terms of dates relating to the Visa Applicant’s employment history, was contradictory. The Tribunal concluded that, on the evidence before it, it was not satisfied that the Visa Applicant had worked and gained experience as a sales and marketing manager for a period of at least eight years to the date of her application. The Tribunal was not satisfied that the Visa Applicant is a highly skilled person as defined in r 5.19(3) and therefore considered that she did not satisfy clause 856.213.

    THE DECISION OF THE FEDERAL MAGISTRATES COURT

17. I shall deal separately with the two grounds argued before the Federal Magistrates Court.  

    Regulation 5.19(3)(a)

18. The Visa Applicant contended, first, in relation to r 5.19(3)(a) that the Tribunal erred in applying the provisions of the ASCO Dictionary that refer to a period of five years, in the face of what she said was a clear legislative expression requiring only three years’ equivalent experience. The Tribunal, so the argument ran, misdirected itself as to the minimum period of work experience that the Visa Applicant needed to demonstrate as being equivalent to completing formal training over a period of at least three years.

19. The primary judge rejected that submission on the basis that such a construction would leave no role for the legislative expression of the word “equivalent”, in the phrase “equivalent experience”. Her Honour interpreted r 5.19(3)(a) to require the work experience to be equivalent to at least three years of formal training.

20. However, I am of the view that the phrase “over a period of at least 3 years” in r 5.19(3)(a) qualifies both of the expressions that follow, namely, “formal training” and “equivalent experience”. That is to say, the requirement will be satisfied if a person has completed formal training over a period of at least three years. The requirement will also be satisfied if the person has, over a period of at least three years, completed experience that is equivalent to formal training. It is, of course, a matter for the decision maker as to what kind of experience will be equivalent to formal training. In that regard, it would open to the decision maker to have regard to the ASCO Dictionary as a guide. However, it is not necessary for a person to have completed the relevant experience over a period of more than three years.

21. That follows from the syntax of r 5.19(3)(a). Further it does not deprive the word “equivalent” of a role; that expression serves the function of requiring the experience to be equivalent to formal training.

22. It follows that the Tribunal misdirected itself in so far as it construed r 5.19(3)(a) in a way that permitted the Tribunal to treat the requirement as being satisfied only if five years equivalent experience had been completed. It also follows that the primary judge erred in failing to reach that conclusion in relation to the Tribunal’s decision.

23. Secondly, in relation to r 5.19(3)(a), the Visa Applicant also contended before the primary judge that the Tribunal additionally misdirected itself by holding that, to meet the equivalent experience requirement, only employment experience at the level of a sales and marketing manager was comparable to undertaking tertiary study in that field. That contention was directed to the Tribunal’s finding that the Visa Applicant’s work experience before October 2003 did not amount to experience at the level of a sales and marketing manager.

24. The Visa Applicant argued that the Tribunal’s approach implied that, from the first day of the relevant experience, the Visa Applicant should have had skills and abilities of a fully trained sales and marketing manager.  She argued that it was erroneous to fail to consider whether her experience could have amounted to a graded development from unskilled to skilled, that would be equivalent to formal training.  The Visa Applicant said that the Tribunal erred in taking the view that any experience that was not at the level of a fully qualified sales and marketing manager was not comparable to undertaking formal training.  She contended that the Tribunal should have accepted any experience that could be interpreted as equivalent to formal training and not only experience at the level of a fully trained sales and marketing manager. 

25. The primary judge did not consider that the Tribunal was required to assess a graded development from unskilled to skilled in determining equivalence to formal training. That is essentially a matter of fact for the Tribunal. I do not consider that the Tribunal asked itself the wrong question or took into account irrelevant considerations as contended by the Visa Applicant. I do not consider that there was any error on the part of the primary judge in dealing with the second aspect of the Visa Applicant’s contention in relation to r 5.19(3)(a).

    Regulation 5.19(3)(b)

26. The second ground relates to r 5.19(3)(b). In essence, the Visa Applicant contended that the Tribunal failed to discharge its function of assessing and determining whether the approved appointment as marketing and sales manager in the employment of the Employer was exceptional.

27. A requirement of clause 856.213 was that, at the time of the application by the Visa Applicant, the Visa Applicant had been nominated by the Employer in respect of an appointment in the business of the Employer.  It was not necessary that, at the time of the application, that appointment be an approved appointment.  However, clause 856.214 required that, if the appointment was an approved appointment at the time of the application, no more than six months had elapsed since the granting of approval.  In the present case, the appointment as sales and marketing manager in the business of the Employer was not an approved appointment at the time of the Visa Applicant’s application. 

28. On the other hand, the requirement of clause 856.213 was that, at the time of the application, the Visa Applicant be a highly skilled person in relation to the appointment as sales and marketing manager in the business of the Employer. That is to say, it was necessary that the Visa Applicant was a highly skilled person within the meaning of r 5.19(3) as at the time of her application.

29. Prima facie, in order to be a highly skilled person, the Visa Applicant must have been employed in work of the kind in which she was relevantly experienced for at least three years after completing that experience.  It is only if “the approved appointment is exceptional” that that prima facie requirement need not be satisfied.  At the time of the application by the Visa Applicant, there was no approved appointment.  Accordingly, it was not possible to conclude that the approved appointment was exceptional. 

30. It would have been open to the Visa Applicant to wait until the appointment as sales and marketing manager in the employ of the Employer had become an approved appointment. However, in the present case, at the time of her application, it was not an approved appointment and, accordingly, the exception in r 5.19(3)(b) could not arise.

31. It is difficult to see the rationale for drawing such a distinction and there may be a degree of arbitrariness in such a construction. That is to say, it is difficult to see why the exception in r 5.19(3)(b) should be limited to a case where there was an approved appointment prior to the making of an application for a visa.

32. In any event, the question of whether an approved appointment is exceptional is not one for the decision maker in relation to the application for a visa.  The scheme of the provisions indicates that decisions concerning the approval of an appointment, and whether an approved appointment is exceptional, are to be made independently of the decision on an application for a visa (see An v Minister for Immigration & Citizenship (2007) 160 FCR 480). The application for approval of an appointment is made by an employer and there is a separate process and regime for dealing with such an application. Thus, it was not part of the function of the Tribunal, in reviewing the application by the Visa Applicant, to consider whether or not the position of sales and marketing manager in the business of the Employer was exceptional. The regime for that decision is independent of the granting of the relevant visa.

33. Finally, even if it were within the function of the Tribunal to consider whether the approved appointment was exceptional, I do not consider that the Tribunal was fairly requested to consider that question.  Under cover of a letter dated 7 March 2005, the Visa Applicant’s migration agent submitted various documents to the Department in relation to the Visa Applicant’s application.  Nothing in that material addressed the question of whether the proposed appointment as sales and marketing manager in the employ of the Employer should be treated as exceptional.  The Minister’s delegate requested further information from the migration agent and further information was furnished in November 2005.  Once again, no question of the proposed appointment’s being treated as exceptional was raised. 

1. Following the delegate’s decision, the Visa Applicant’s migration agent submitted an application for review by the Tribunal under cover of a letter dated 12 December 2005.  The question of the approved appointment’s being treated as exceptional was not raised in that material. 

2. However, on 15 June 2006, the Tribunal wrote to the Visa Applicant’s migration agent. In that letter, the Tribunal drew attention to the provisions of r 5.19(3) and invited the Visa Applicant to provide additional information, including:

   An explanation with supporting evidence as to why the appointment should be considered exceptional should you wish to be exempt from the requirement of 3 years post training experience.

   In a letter of 13 July 2006 in response to that specific invitation, the migration agent referred to the relevant paragraph of the ASCO Dictionary, which was ultimately relied on by the Tribunal.  The migration agent’s letter went on to say as follows:

   We submit that [the Visa Applicant] has at least 5 years [experience] (September 1997 to 2006) and therefore meets the minimum ASCO requirement.

   If the Tribunal is of the opinion that [the Visa Applicant] does not meet the requirements, then [the Visa Applicant] requests that she should be exempted from the prescribed requirement.  There were sufficient documentations that were previously presented to support her case.

3. Once again, although the response referred to exemption, there was no express request to treat the appointment as sales and marketing manager in the employ of the Employer as exceptional. Further, the response contained no suggestion as to why the approved appointment should be considered exceptional. The migration agent’s response was not a request to the Tribunal to exercise any function of determining whether or not the approved appointment should be treated as exceptional. Thus, even if it were part of the Tribunal’s function to determine that question, there was no effective request for it to do so. In any event, there was no material before the Tribunal upon which it could possibly have made a determination that the approved appointment was exceptional for the purposes of r 5.19(3)(b).

4. The ground involving the operation of r 5.19(3)(b) has not been established. There was no error on the part of the primary judge in relation to that ground.

   CONCLUSION

5. The Tribunal fell into jurisdictional error in asking itself the wrong question in relation to r 5.19(3)(a). The primary judge erred in failing to reach that conclusion. The appeal should therefore be upheld. The orders made by the primary judge should be set aside. In lieu of those orders, there should be orders that the decision of the Tribunal be quashed and that the Tribunal be ordered to complete its review of the delegate’s decision according to law. The Minister should pay the applicants’ costs of the proceeding in the Federal Magistrates Court. The Minister should pay the appellants’ costs of the appeal.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       29 August 2008

Counsel for the Appellants:	Mr M Jones (solicitor)
Solicitor for the Appellants:	Mr M Jones
Counsel for the First Respondent:	Mr D Godwin
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 2008
Date of Judgment:	29 August 2008