Tran v Minister for Immigration

[2016] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1984

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal erred in construing cl.457.223 – whether “and” should be read disjunctively in cl.457.223(a)(ec) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2, cl.457.223

Cases cited:

Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Applicant: MINH MAI VI TRAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2483 of 2014

Judgment of: Judge Nicholls

Hearing date: 12 July 2016

Date of Last Submission: 12 July 2016

Delivered at: Sydney

Delivered on: 2 August 2016

REPRESENTATION

Counsel for the Applicant: Mr P Cutler

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 5 September 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2483 of 2014

MINH MAI VI TRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 September 2014 for review of the decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 8 August 2014, which affirmed the decision of the Minister’s delegate to refuse a Temporary Business Entry (Class UC) visa (“the visa”) to Ms Minh Mai Vi Tran (“the applicant”).

2. In evidence before the Court is the relevant bundle of documents filed by the Minister (“the Court Book” – “CB”).

Background

1. The applicant applied for the visa on 30 August 2013 on the basis of her proposed employment with her sponsoring employer, “Therapy in the Home Pty Ltd” (CB 8). She was assisted by a registered migration agent.

2. On 30 September 2013, the Minister’s Department requested that the applicant provide “Evidence of English language ability” (CB 31 to CB 32). By email correspondence on 29 October 2013, the applicant’s representative notified the Department that the applicant had “registered for the IELTS test on 9 November 2013” and asked the Department to “allow her time to complete this test and submit the results” (CB 34).

3. The delegate refused the grant of the visa on 11 December 2013 (CB 39). The delegate found that the applicant did not meet the English language requirements, with reference to cl.457.223(4)(ec) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate noted that the applicant had been contacted by the Department on 6 December 2013 requesting the results of her IELTS test, and that at the time of the decision no response had been received (CB 44).

4. The applicant applied for review of the delegate’s decision to the Tribunal on 19 December 2013 (CB 66). She was again assisted by a registered migration agent.

5. By letter dated 16 April 2014, the applicant was invited to a hearing before the Tribunal and, relevant to the application before the Court, “invited to provide… information to demonstrate that you meet the English language proficiency requirements” (CB 71 to CB 72).

6. The applicant appeared at a hearing before the Tribunal on 28 May 2014 with her representative (CB 83).

7. On 24 June 2014, the applicant’s representative submitted the applicant’s IELTS test results. He noted that she “did not … achieve the required score for one of the bands in the test”, and that she had “applied for a review of that test result”. He requested that the Tribunal “allow her time for the review of the test”, approximately 6 weeks (CB 87). The Tribunal granted the applicant time to provide further evidence until 6 August 2014. No further evidence was provided to the Tribunal (CB 97).

8. The Tribunal affirmed the delegate’s decision on 8 August 2014. The Tribunal found that the issue before it was whether the applicant met cl.457.223(4)(eb) of the Regulations, that is, whether she was “exempt” from the English language requirements for the grant of the visa, as defined in the relevant instrument in writing, “IMMI 14/009”. Relevantly, it was defined as follows:

   “SPECIFY for the purposes of the meaning of “exempt applicant” under subclause 457.223(11) of Schedule 2 to the Regulations, the following classes of applicants to be an exempt applicant:

   (a) applicants who are a citizen of, and who hold a valid passport issued by, the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland;

   (b) applicants who:

   (i) are nominated in an occupation that does not require a level of English language competency for grant (however described) of registration, licence or membership; and

   (ii) have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English;

   (c) applicants who are:

   (i) nominated in relation to an activity or occupation by a standard business sponsor approved under regulation 2.59 or 2.68 of the Regulations; and

   (ii) nominated in relation to activity or occupation that will be performed at a diplomatic or consular mission of another country or an office of the authorities of Taiwan located in Australia;

   (d) applicants who lodged the visa application that this Instrument applies to before

   1 July  2013 and are:

   (i)   the subject of an approved nomination and the application for approval of the nomination was made on or after 1 July 2010 in an occupation that does not require a level of English language competency for grant (however described) of registration, license or membership; and

   (ii) nominated in the application for approval of nomination in an occupation for an approved position in an occupation that is in ANZSCO Major Groups 1, 2, 4,  5, 6, Sub-Major Group 31 or Unit Group 3993;

   (e) applicants who lodged the visa application that this Instrument applies to before

   1 July 2013 and are:

   (i) the subject of an approved nomination and the application for approval of the nomination was made before 1 July 2010 in an occupation that does not require a level of English language competency for grant (however described) of registration, license or membership; and

   (ii) nominated in the application for approval of nomination in an occupation for an approved position in an occupation that is in the ASCO Major Groups 1 – 3, excluding Head Chef 3322-01 and Chef 3322-11, except where an applicant has been nominated for Head Chef or Chef and the visa application that this Instrument applies to was lodged before 14 April 2009.”

9. The Tribunal found that on the evidence before it the applicant did not meet the requirements in IMMI 14/009 to be defined as an “exempt applicant”. As the applicant was not “exempt”, the Tribunal considered whether the applicant achieved the specified score in a specified language test. It found that on the evidence before it she had not ([33] at CB 104 to [40] at CB 105). Therefore, the applicant did not satisfy the requirements for the grant of the visa.

Application Before the Court

1. The application before the Court contained three grounds. The applicant only pressed ground one, which was in the following terms:

   “The Tribunal erred in construing cll 457.223(4)(eb) and (ec).

   Particulars

   The Tribunal found that the Applicant did not satisfy cl 457.223(4)(eb) but did not go on to consider whether she could satisfy 457.223(4)(ec). Despite the use of the word ‘and’ between the two paragraphs, the only meaningful interpretation of the criteria is that the two paragraphs are alternatives, and the Tribunal should have considered whether or not it should require the Applicant to demonstrate her English proficiency in another manner.”

Relevant Legislation

1. Clause 457.223(4) of Schedule 2 to the Regulations was, at the relevant time, in the following terms:

   The applicant meets the requirements of this subclause if:

   (a)  each of the following applies:

   (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)  the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)  the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)  the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and

   (ba)  either:

   (i)  the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)  each of the following applies:

   (A)  the applicant is employed to work in the nominated occupation;

   (B)  if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)  if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)  the Minister is satisfied that:

   (i)  the applicant’s intention to perform the occupation is genuine; and

   (ii)  the position associated with the nominated occupation is genuine; and

   (da)  the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)  if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (ea)  if:

   (i)  the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

   (ii)  in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

   the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

   (eb)  if:

   (i)  the applicant is not an exempt applicant; and

   (ii)  subclause (6) does not apply to the applicant; and

   (iii)  at least 1 of subparagraphs (ea)(i) and (ii) does not apply;

   the applicant:

   (iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)  if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)  either:

   (i)  there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.”

Consideration

1. In essence, the applicant’s case is that the Tribunal fell into jurisdictional error because it erred in its construction of cl.457.223(4)(eb) and (ec) of the Regulations in the following way.

2. The word “and” as it appears between cl.457.223(4) (eb) and (ec) normally has a conjunctive meaning. However, it can have a disjunctive meaning (“or”) in certain circumstances (the applicant referred to DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [2.30] and two cases cited there, Re The Licensing Ordinance (1968) 13 FLR 143 and Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150).

3. In the current case, the “and” between cl.457.223(4)(eb) and (ec) should be read this way. That is, as presenting (eb) and (ec) as alternatives (“or”) not as cumulative requirements (“and”). The applicant sought to illustrate this contention in three ways.

4. First, that if cl.457.223(4)(eb) and (ec) are read conjunctively, even if an applicant were to satisfy the prescribed language requirement in (eb), it would still be open to the decision maker to impose another, different, requirement under (ec). In written submissions, the applicant submitted this was nonsensical and made (ec) superfluous. In oral submissions the applicant asserted that this would provide for an “unfair” outcome.

5. Second, that in circumstances where an applicant did not satisfy (eb), then the decision maker could consider providing the applicant with an opportunity to demonstrate English language proficiency in some other way.

6. Third, cl.457.223(4) of the Regulations was amended on 22 March 2014. It is this form of the regulation that applied to the applicant’s case. The earlier form of cl.457.223(4) allowed an applicant to make multiple attempts at passing the relevant language test. The current version restricts an applicant to one attempt only. By interpreting “and” as “or”, would result in the possibility of a second attempt at meeting the relevant language requirement. The Court should therefore adopt this reading because it may “assist” the applicant, and therefore would be a “fair” way to read the regulation.

7. It must be said that this latter point demonstrates the paucity of the applicant’s case. It is clear on any plain reading of the two “versions” of the regulations (and as helpfully summarised at “Table 1” annexed to the applicant’s written submissions), that the earlier version did allow for multiple attempts at the language test, and the plain wording of the current cl.457.223(eb)(v) restricts an applicant to “a single attempt at the test”.

8. It is trite to say that this Court should be concerned with applying the law as it is, not as an applicant thinks it should be. There is a difference between a regulation that allows an applicant to have multiple attempts at a language test, and reading a regulation contrary to its plain terms, in such a way as to circumvent the plain intention of the regulation.

9. It is helpful to look at cl.457.223(4) of the Regulations as a whole and the context in which it sits. The subclass 457 visa, for which the applicant applied, is directed to providing long term, but temporary (up to four years), entry for persons to have employment in Australia. In my view, this subclass of visa, given the matters set out in the regulations, is directed to assisting businesses in Australia to temporarily employ persons from overseas who have skills that are needed by that business and which are not otherwise readily available in Australia. Hence the need for an approved sponsorship.

10. Clause 457.223(4), which as is made clear in its terms, is relevant to persons who have been sponsored by a “standard business sponsorship”, and sets out some of the requirements that an applicant must meet at the time of decision, so as to be granted the visa.

11. To meet the relevant criteria the applicant must have amongst other things, a nomination, and approval of a nomination, for an occupation. Clause 457.223(4)(a), (aa) and (ab) of the Regulations set out matters relevant to this.

12. Before approving the grant of the visa the decision maker must be satisfied of a number of things.

13. One, that the person has a genuine intention to perform the occupation and the nominated occupation is genuine (cl.457.223(4)(d) of the Regulations). Within this consideration, the decision maker must be satisfied that the applicant has the skills, qualification and employment background, necessary to perform the tasks of the nominated occupation (cl.457.223(4)(da) of the Regulations).

14. Two, in the event (“if”) the decision maker requires the applicant demonstrate those skills, the applicant must demonstrate possession of those skills in the manner specified (cl.457.223(4)(e) of the Regulations).

15. Three, in the context of that demonstration, each of cl.457.223(4)(ea), (eb) and (ec) of the Regulations set out certain matters predicated on particular propositions. All commence with “if”.

16. Clause 457.223(4)(eb) and (ec) are plainly, and unambiguously, directed to two sets of circumstances. Clause 457.223(4)(eb) sets out the circumstances which can lead to satisfaction of the relevant criterion.

17. Clause 457.223(4)(eb) of the Regulations does not apply to every applicant for the 457 visa. It does not apply to an “exempt applicant” (cl.457.223(4)(eb)(i), as defined at cl.457.223(11) of the Regulations), nor to an applicant who meets the terms of cl.457.223(6) (cl.457.223(4)(eb)(ii) of the Regulations). The use of the word “and” as between cl.457.223(4)(eb)(i) and (ii), as is made clear at (iii), means that it does not apply to an applicant who meets both of (i) and (ii), but does apply to an applicant who meets only one, or none, of (i) and (ii).

18. For the applicants, therefore, who are not excluded from the operation of cl.457.223(4)(eb), such applicants, to satisfy cl.457.223(4)(eb), must have undertaken and achieved a specified score in a language test specified by the Minister in a legislative instrument.

19. Clause 457.223(4)(ec) of the Regulations also commences with “if”. To be engaged, cl.457.223(4)(ec) depends on the decision maker requiring the applicant to otherwise demonstrate English language proficiency. If that requirement is imposed, the applicant must demonstrate English language proficiency in the manner specified.

20. The proposition at the core of the applicant’s ground is that cl.457.223(4)(eb) and (ec) are alternatives. That they are part of a “cascading checklist” of items to which the decision maker, in this case Tribunal, must have regard. The basis for this proposition was said to be the use of the word “and”, relevantly as used between cl.457.223(4)(eb) and (ec) of the Regulations, and that it should be read or understood as “or”.

21. I do not agree with the applicant’s central proposition or the submissions in support of it.

22. First, there was no dispute between the parties that in certain circumstances “and” may be read disjunctively. However, those circumstances are “quite limited” (Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 (“Kumaraperu”) per Weinberg J at 395 – “B”).

23. Second, there is nothing in the context as set out above, in which cl.457.223(4)(eb) and (ec) are found to suggest a “cascading checklist” or as described in Kumaraperu at 395, a “gradually descending scale in which minor variations in prescribed qualifications produce minor variations in points allowed”.

24. Third, the language of cl.457.223(4) does not suggest a predetermined formulaic application of items to be met such that the visa must be granted. Rather, the relevant scheme provides for the possible exercise of discretion by the decision maker in various circumstances.

1. The applicant has focussed on the word “and” as it appears between cl.457.223(4)(eb) and (ec) of the Regulations. The applicant’s submissions did not refer to, or take into account, the word “if” as it appears throughout cl.457.223(4) of the Regulations and in particular at the beginning of (ec).

2. The word “if” posits a contingency. For example cl.457.223(4)(ea) of the Regulations only applies to certain circumstances being “if” the applicant is required to hold a licence registration or membership such as to be able to perform the nominated occupation.

3. This illustrates the inadequacy of the applicant’s description of the relevant scheme as one of a “cascading checklist”. If the nominated occupation does not require such licence or registration to be performed, then cl.457.223(4)(ea) of the Regulations is not engaged and does not apply.

4. Similarly, with cl.457.223(4)(ec) of the Regulations. This paragraph is only engaged where the decision maker requires the applicant to otherwise demonstrate their English language proficiency. “If” that is the case, then that demonstration must be in a manner prescribed by the Minister.

5. Fourth, it must be remembered that, as stated above, cl.457.223(4) of the Regulations sits as part of the scheme relevant to the grant of a visa where a person has been nominated (a “standard business sponsorship”) to perform work in a particular occupational position. That nomination, to be approved, requires, amongst other things, that the available population with skills for that position in Australian is limited.

6. Clause 457.223(4) seeks to address a number of variables relevant to ensuring that the person nominated has the relevant skills and capacity to perform the duties of the position. Plainly, the application of those “variables” depends upon the circumstances presented by each case. The “scheme” of cl.457.223(4) of the Regulations is to allow flexibility to the decision maker to address that question as to whether the applicant has the requisite skills and capacity.

7. Proficiency in the English language is clearly recognised by the relevant scheme as expressed at cl.457.223 of the Regulations to be an element in the consideration of that question.

8. I do not agree with the applicant that cl.457.223(4)(ec) of the Regulations has, in effect, no work to do, unless it is read disjunctively with (eb). For example, an applicant may provide evidence of having undertaken the language test and provide evidence of having achieved the relevant score at that test, as envisaged by cl.457.223(4)(eb) of the Regulations. However, the scheme envisages that there may be circumstances where, notwithstanding this, the decision maker considers it appropriate to require an applicant to otherwise demonstrate English language proficiency in the manner specified. For example, such circumstances may include concerns about whether an applicant actually sat for the language test, or errors in the reporting of the test results (cl.457.223(4)(eb) of the Regulations).

9. Further, as the Minister submits, conversely, there is nothing in the language, structure, or context of cl.457.223(4)(ec) of the Regulations to say that the decision maker could not require further demonstration of English language proficiency even if the applicant had satisfied cl.457.223(4)(eb) of the Regulations.

10. Three further things may be said about the applicant’s submissions. One, when the context, within which cl.457.223(4)(eb) and (ec) of the Regulations appear, and the relevant language is properly understood, it does not really matter if “and” is read as “or”, or read as “and”. If nothing else, as set out above, the word “if” makes it clear, in context, that the application of cl.457.223(4)(ec) is contingent on the decision makers requirement.

11. Two, that “requirement” is in my view non-compellable. That is, in the absence of any evidence that the Tribunal required that the applicant meet cl.457.223(4)(ec), it had no relevance or application to the decision. As the Minister submits, there is nothing to indicate that cl.457.223(4)(ec) of the Regulations imposes a duty on the Tribunal. In these circumstances, the Tribunal was not required to consider whether to exercise the power (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [18] – [22] and

    
    

    [75] – [76]).

12. In this case there is no evidence that the applicant, or her representative, asked the Tribunal to consider exercising the power. This is not a case where it can be said the Tribunal unreasonably refused to exercise the power to require another demonstration of English language proficiency (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280, Minister for Immigration and Border Protection v Eden [2016] FCAFC 28).

13. Three, the applicant submitted before the Court that the Tribunal’s failure to, in effect, give the applicant another such opportunity demonstrated unfairness. While it is the case that the Tribunal must act with procedural fairness, this does not mean that it should seek to contrive a situation to generate another opportunity for the applicant to meet a requirement for the grant of the visa that she had previously been unable to meet.

14. The issue here is that the “current” version of cl.457.223(4) differs from the earlier version in at least seeking to limit endless opportunities for an applicant to satisfy English language proficiency (“in a single attempt”). The applicant was given a fair opportunity to satisfy this requirement. She was unable to do so. There is nothing “unfair” about the Tribunal applying the relevant regulation.

Conclusion

1. The sole ground pressed by the applicant is not made out. The application should be dismissed. I will make the order accordingly.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 2 August 2016