Tran v Minister for Immigration
[2014] FCCA 2095
•9 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2095 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – Tribunal finding that the applicant was not employed at the requisite skill level – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Joshi v Minister for Immigration & Anor [2005] FMCA 1116 Minister for Immigration v CZBP [2014] FCAFC 105 |
| Applicant: | THI DUNG TRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 21 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 September 2014 |
| Delivered at: | Canberra |
| Delivered on: | 9 September 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Cumming Clayton Utz |
ORDERS
The title of the second respondent is to be amended to “Minister for Immigration and Border Protection”.
The application filed on 17 April 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 21 of 2014
| THI DUNG TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 March 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Temporary Business Entry (class UC) visas. There were three visa applicants. The first visa applicant was Mrs Tran and the other visa applicants were her husband and child. Only Mrs Tran is an applicant before the Court.
The following statement of background facts relating to Mrs Tran’s visa application and the decision of the Tribunal on it is derived from the Minister’s outline of written submissions.
On 4 July 2012, Mrs Tran applied for a class 457 visa, together with her husband and son as secondary applicants[1]. Mrs Tran nominated Q T H Pty Ltd t/as Passionail as her sponsoring employer (employer) for a nominated position of Customer Service Manager[2]. Mrs Tran indicated that she had been employed by her employer since 1 February 2012 as Customer Service Manager[3]. As required by regulation 2.72 of the Migration Regulations 1994 (Cth) (Regulations) and IMMI 12/022: Specification of Occupations for Nominations in Relation to Subclass 457 (Business (Long Stay)) and Subclass 442 (Occupational trainee) Visas, Mrs Tran specified Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 149212[4]. Mrs Tran provided a letter of offer from her employer dated 27 June 2012 for the position of Customer Service Manager to commence the same day with a position description and tasks[5]. Mrs Tran provided a curriculum vitae indicating that she had been performing those same tasks since February 2012[6]. Mrs Tran provided a reference from her employer indicating that she had been performing those tasks (amongst others) since July 2011[7].
[1] Court Book (CB) 1-13
[2] CB 10
[3] CB 11
[4] CB 14
[5] CB 21-24
[6] CB 26-27
[7] CB 30
On 5 October 2012, the delegate refused Mrs Tran’s application for a 457 visa[8] on the grounds that, having regard to the description of Customer Service Manager in ANZSCO, the nature of the employer's business (being a small retail operation) and the nature of Mrs Tran’s proposed duties (which the delegate found to be consistent with a Retail Manager or Retail Supervisor and not a Customer Service Manager), the nominated position was inconsistent with the nature of the business and thus not a genuine position. Accordingly, the delegate found that Mrs Tran did not satisfy clause 457.223(4)(d) of Schedule 2 to the Regulations.
[8] CB 47-56
Decision of the Tribunal
On 29 October 2012, Mrs Tran lodged an application for merits review of the delegate's decision with the Tribunal[9].
[9] CB 57-82
On 5 February 2014, the Tribunal invited Mrs Tran to attend a hearing scheduled for 27 February 2014 by videolink from Canberra and present evidence or submissions[10] in accordance with s.360 of the Migration Act. The Tribunal also invited Mrs Tran to provide evidence of an organisational chart for her employer showing all employees and their position titles, an updated statement from her employer setting out the duties of the position, and any additional documents Mrs Tran wished to provide to support the claim that the nominated position was genuine[11].
[10] CB 106-112
[11] CB 109
On 18 February 2014, Mrs Tran’s representative requested an adjournment of the hearing “for a few months” on the basis that the nomination approval in relation to Mrs Tran had expired[12]. The same day, the Tribunal decided not to exercise its s.363(1)(b) discretion to adjourn the hearing[13].
[12] CB 118
[13] CB 121-125
On 25 February 2014, Mrs Tran’s representative provided a nomination application lodged by the employer on 21 February 2014[14], an employment contract between Mrs Tran and her employer for the position of “Customer Service Manager” dated 21 February 2014[15] and written submissions setting out Mrs Tran’s proposed duties as Customer Service Manager[16].
[14] CB 136-151
[15] CB 152-158
[16] CB 159-162
On 27 February 2014, the Tribunal held a hearing at which Mrs Tran appeared and gave evidence[17]. The Tribunal received at the hearing a number of documents[18] which included income tax assessments, tax returns, pay advices, photographs of Mrs Tran with clients, thank you cards, the Passionail price list for manicures, pedicures and gel in-fills, and a further letter from Mrs Tran’s employer stating that Mrs Tran’s duties included providing customers with excellent face to face service, reviewing policies, programs and procedures regarding customer service, maintaining the appointment book, liaising with managers to identify customer needs, advising clients on skincare, performing manicures and pedicures, and taking telephone calls[19]. The Tribunal also received a description of the position “Customer Service Manager” from the website myfuture.edu.au[20]
[17] CB 227
[18] CB 167-226
[19] CB 168-169
[20] CB 223-226
The Tribunal asked Mrs Tran about her duties and Mrs Tran gave evidence that she opens the shop, takes bookings, provides product advice, fosters relationships with customers, trains staff on massage and hygiene techniques, orders stock, serves about 20 special customers a week and keeps customers happy. Mrs Tran gave evidence that she had not developed any specific guidelines or policies in relation to customer service but said that she discussed customer service with the owner[21]. The Tribunal put to Mrs Tran its concern that the customer service aspect of her duties were characteristic of retail operations generally and not at the range and level of the ANZSCO occupation[22].
[21] CB 241 at [17]
[22] CB 242 at [18]
On 20 March 2014, the Tribunal affirmed the decision to refuse to grant Mrs Tran a 457 visa[23] on the basis that the position associated with the nominated position was not genuine[24] and Mrs Tran’s intention to perform the nominated occupation was not genuine[25] as required by clause 457.223(4)(d)(i) and (ii).
[23] CB 237-246
[24] CB 244 at [29]
[25] CB 245 at [32]
The present proceedings
These proceedings began with a show cause application filed on 17 April 2014. Mrs Tran continues to rely up on that application. That application purports to set out nine grounds of review but in reality there is only one. The Minister’s submissions at [13] set out that ground in appropriate terms:
The application claims that:
(a)the Applicant provided relevant evidence proving that her position as Customer Service Manager is genuine and continuing including a letter of support from her employer confirming that she was employed in the role since 2011 and the duties and tasks she has performed, her tax assessments, superannuation summaries and pay advices with the title “Customer Service Manager” and photographs with customers and her employer;
(b)The Tribunal failed to take into account relevant information and evidence supporting the Applicant's case; and
(c)A jurisdictional error has been made and the decision was not made according to law.
As noted there, the applicant asserts that the Tribunal committed a jurisdictional error in overlooking relevant material.
The application is supported by an affidavit by Mrs Tran, which I received subject to relevance. The affidavit, however, simply repeats the asserted grounds in the application.
I received as evidence the court book filed on 6 June 2014.
In oral argument, I invited Mrs Tran to explain to me what material she says the Tribunal overlooked. She was not able to point to anything in particular. As I explained to her in the course of oral argument, her difficulty before the Tribunal was not in proving that she was employed but, rather, that the position she was employed in met the description of a customer service manager.
I am not persuaded that the Tribunal overlooked any relevant material in coming to its decision. The conclusions reached by the Tribunal were open to it on the material before it.
In that regard, I agree with the Minister’s written submissions.
The Minister accepts that there are circumstances in which a failure by the Tribunal to consider a piece of evidence supporting an applicant's case can amount to a jurisdictional error, being a failure to consider an applicant's claims or a failure to undertake the Tribunal's statutory task of reaching the requisite state of satisfaction under s.65 of the Migration Act in respect of the criteria for the visa in issue[26]. However, the Minister submits, and I accept, that this is not a case in which there was any failure by the Tribunal to consider corroborative evidence.
[26] Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS); Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT); Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547; Minister for Immigration v CZBP [2014] FCAFC 105
The Tribunal considered the written position descriptions of Mrs Tran’s position provided to the Department and to the Tribunal[27]. The Tribunal considered the fact that some of the tasks in the written descriptions were closely aligned with the ANZSCO descriptions, such as developing and reviewing customer service policies, but was not satisfied from Mrs Tran’s oral evidence that she was in fact performing such tasks at the higher skill level described in ANZSCO[28].
[27] CB 240 [13]-[15], CB 242-243 [22] and [24], CB 244 [31]
[28] CB 243 [24]
The Tribunal considered the employer's letters in support confirming that Mrs Tran had been employed as a Customer Services Manager since July 2011[29], Mrs Tran’s tax assessments in support[30], and the photographs of Mrs Tran with customers and with her employer[31]. The Tribunal accepted that Mrs Tran had been employed by the employer since July 2011. However, the Tribunal did not accept that Mrs Tran had actually been performing the range of duties and responsibilities and at the skill level of a Customer Service Manager[32].
[29] CB 240 [13]-[15], CB 242 [22], CB 244 [27]
[30] CB 240 [14]
[31] CB 240 [14]
[32] CB 244 [27]-[31]
The Tribunal considered the superannuation summaries and pay advices that had the title “Customer Service Manager”[33] but found that the fact that these documents named Mrs Tran’s title as “Customer Service Manager” did not overcome the Tribunal's concerns that Mrs Tran’s actual duties did not encompass the tasks of the range and skill level of a Customer Service Manager[34].
[33] CB 240 [14], CB 242 [26]
[34] CB 243 [26]
The Tribunal considered Mrs Tran’s oral evidence at the hearing[35], finding that Mrs Tran’s description of her actual duties indicated that Mrs Tran follows the principle of providing and maintaining good customer service and that her role included guiding other staff in relation to providing good customer service, but that these aspects of her role derive from her essential role as a retail supervisor and senior beauty therapist and would be a standard feature of any such retail operation[36].
[35] CB 240-241 [16]-[17], CB 242-243 [22]-[24], CB 244 [27]
[36] CB 242-243 [22]
The Tribunal considered the MyFuture website description of the position “Customer Service Manager”[37]. The Tribunal accepted that the ANZSCO description was a guide rather than an exhaustive list of the duties of a Customer Services Manager and did not place absolute reliance on it but also took into account the MyFuture website description of a Customer Service Manager[38], finding that it was not dissimilar to the ANZSCO description of the role of a Customer Service Manager[39].
[37] CB 240 [14], CB 242 [19]-[20], CB 243 [25]
[38] CB 242 [20]. See Joshi v Minister for Immigration & Anor [2005] FMCA 1116, noting that the Regulations have since been significantly amended and the Minister has specified under regulation 2.72 that ANZSCO codes are to be nominated.
[39] CB 243 [25]
The Minister submits that Mrs Tran has not identified any piece of evidence that supported Mrs Tran’s case that was not considered and that might give rise to any error of the kind identified in SZSRS or SZRKT. I agree.
The Tribunal considered the evidence before it, including the evidence put forward by Mrs Tran, and made findings that were open to it on that evidence. To the extent that Mrs Tran seeks merits review of the Tribunal's findings on the evidence, this is impermissible[40].
[40] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164
The Minister’s submissions raise one other issue; that is that during the course of the review, Mrs Tran’s employer nomination expired and she sought an adjournment of several months in order to obtain a fresh employer nomination.
The Tribunal refused that adjournment but, as it noted in the Tribunal’s reasons, no harm was done because a new nomination application was lodged by the employer on 21 February 2014.
Even if the Tribunal had made an error, the error was not material because the Tribunal decision did not turn on the presence or absence of an employer nomination. The decision turned on the question of whether the job done by Mrs Tran filled the description of a customer service manager. In any event, I see no error in the Tribunal’s approach to that issue.
I find that Mrs Tran has failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.
Mrs Tran referred to recent illness and asked if the amount of costs could be reduced. The issue for the Court is not the applicant’s capacity to pay but whether the costs have been reasonably and properly incurred. I am satisfied in this matter that scale costs have been reasonably and properly incurred on behalf of the Minister. I will not require payment of costs within any particular time.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 September 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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