Xu v Minister for Immigration

[2018] FCCA 2891

FEDERAL CIRCUIT COURT OF AUSTRALIA

XU & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2891

Catchwords:
MIGRATION – Application to review decision of former Migration Review Tribunal affirming a decision not to grant Employer Nomination (Residence) visas – where no approval of nominated position – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.359A
Migration Regulations 1994 (Cth), cls.857.213, 857.221

Cases cited:
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010)
264 ALR 417
Cai v Minister for Immigration and Border Protection [2017] FCCA 3024
Cai v Minister for Immigration and Border Protection [2018] FCA 782
Hossain v Minister for Immigration and Border Protection [2018] HCA 34;
(2018) 92 ALJR 780
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA
17; (2001) 205 CLR 507
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCAFC 328; (2004) 214 ALR 264
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCAFC 361; (2002) 194 ALR 749
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32;
(2016) 241 FCR 121
X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection &
Anor [2017] FCCA 2329
X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection &
Anor [2017] FCCA 2330

First Applicant: ZANQIN XU

Second Applicant: WENPING LUO

Third Applicant: YUXIN LUO

Fourth Applicant: XINJIE XU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 48 of 2015

Judgment of: Judge Barnes

Hearing date: 28 September 2018

Delivered at: Sydney

Delivered on: 28 September 2018

REPRESENTATION

First Applicant: In person

Counsel for the Respondents: Ms Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The First and Second Applicants pay the costs of the First Respondent, fixed in the sum of $10,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 48 of 2015

ZANQIN XU

First Applicant

WENPING LUO

Second Applicant

YUXIN LUO

Third Applicant

XINJIE XU

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), dated 18 December 2014, affirming a decision of the delegate of the First Respondent to refuse to grant the Applicants Employer Nomination (Residence) (Class BW) visas. 

2. The First Applicant was the only applicant who claimed to meet the primary criteria for the visa.  He is referred to for convenience hereafter as the Applicant.  The secondary visa applicants are the Applicant’s spouse and children.  They were included in the application as members of Mr Xu’s family unit.

3. Mr Xu’s employer, X.W. Xu and Z.C. Xu (the employer), unsuccessfully applied for approval of a nominated position.  The employer sought review by the Tribunal and then judicial review of the decision of the Tribunal to affirm the decision not to approve the nomination in relation to the Applicant. 

4. Judicial review applications in relation to the Tribunal decision not to approve this nomination and two other Tribunal decisions in relation to the same employer and another employee seeking a Class BW visa (a Mr Cai) were in the docket of another judge of this court.  As nomination approval was of critical importance in relation to this visa applicant, I adjourned the hearing until the judicial review application in relation to the Tribunal’s nomination decision was determined.  The employer’s judicial review application was dismissed (see X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2330). A potential issue also emerged in relation to one aspect of the Tribunal decision in this case, akin to that considered in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121. The matter was subsequently adjourned to await the decision of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780.

5. When the matter was last before the court, the Applicant, who had not filed written submissions, was offered, and took, the opportunity to make oral submissions.  He was given a further such opportunity today.  The Applicant had nothing to add to what he had said previously.

6. With that background, I turn to the circumstances of the case.  The Applicants applied for the visas in question in May 2011.  As indicated, only the First Applicant, Mr Xu, sought to satisfy the primary criteria.  The application was refused on 17 April 2012.  The Applicants sought review by the Tribunal.  The same Tribunal member made decisions in relation to both employer nominations and both Mr Xu’s and Mr Cai’s visa applications. 

7. The Tribunal affirmed the delegate’s decision.  It had regard to the criteria for the class of visa in issue (in particular, Subclass 857) in circumstances where it had affirmed the decision of the delegate not to approve the application for approval of the nomination of the position by the Applicant’s employer.

8. The Tribunal described in some detail issues relevant to the review of the nomination decision and its consideration of a request that another Tribunal member conduct the case or that there be a transfer to another Tribunal member in another state.  This request was refused (as discussed below). 

9. The Tribunal outlined information that had been provided by the employer as well as the Applicant. It referred to the reasons for affirming the delegate’s decision not to approve the related employer application for approval of a nomination and that it had put this information and matters relevant to its reasoning (in particular having regard to the financial circumstances of the employer) to the Applicant for comment under s.359A of the Migration Act 1958 (Cth) (the Act) and to the response to that letter.

10. The Tribunal addressed issues raised by the Applicant, including those in relation to the employer nomination.  It then turned to the substance of the case as it saw it.  First it considered whether the Applicant met the cl.857.213 time of application criterion that unless exceptional circumstances applied, he had functional English or a diploma level qualification (see cl.857.213(b)(ii) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations)).

11. The Tribunal found that (as the Applicant acknowledged) he did not have functional English or a diploma within the meaning of the Regulations and that he had not undertaken any English language tests in Australia, or completed education in China past secondary school.

12. The Tribunal considered whether Mr Xu had established exceptional circumstances that justified waiver of these requirements.  It acknowledged that he had raised a number of issues in this respect, in essence, asserting that his skills were essential to the sponsoring employer’s takeaway business in Mudgee where he worked as the cook and was appreciated by the customers.

13. The Tribunal had regard to case law and policy guidelines in considering the concept “exceptional circumstances”.  It noted that the requirement for exceptional circumstances was a time of application criterion and stated that it must be satisfied that exceptional circumstances were in existence at the time of the visa application.  However, it considered the possibility that it may have regard to the subsequent history of the matter for the purpose of testing an issue at the time of application.  The Tribunal then discussed the evidence before it in relation to various matters.

14. Under the heading “Duration of Employment” the Tribunal observed that at the time of the decision the Applicant had worked in the business for six years and had become an important part of his employer’s business.  However it found that this did not distinguish him from other visa holders whose circumstances are similar.

15. The Tribunal also considered the evidence put to it, including in relation to the nature of the work to be performed, the Applicant’s skills and any evidence of transfer of his skills to other employees, his ability to understand and comply with occupational health and safety requirements, labour market issues, the impact on the employer, and the Applicant’s efforts to learn English. 

16. In essence, on the evidence before it, the Tribunal considered that the cumulative effect of all of these matters (which it discussed at considerable length), was not such as to satisfy it that exceptional circumstances applied.  It took into account Mr Xu’s qualifications, work experience, salary, immigration history, his familial relationship to the employer, the duration of his employment at Country Noodles Mudgee prior to lodging the application, the limited number of employees there, the limited evidence and context in which he purportedly transferred his skills to others in the workplace, his understanding of his rights in the workplace and OH&S issues, the efforts he had made to learn English, and his willingness to pay a VAC2 charge if granted a visa.  The Tribunal also had regard to the fact that the Applicant was working for an Australian employer whose business had experienced a significant overall financial downturn, despite the Applicant’s presence and skills as a cook in the Mudgee business, and to the labour market conditions applicable to the employer. 

17. In all the circumstances, considered individually and cumulatively, the Tribunal was not satisfied that exceptional circumstances applied for the purposes of cl.857.213.  It found that Mr Xu did not meet this criterion.

18. In this context, the Tribunal considered whether it would be appropriate to have regard to developments after the time of visa application.  While finding the reasoning in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 was not applicable in the particular circumstances of this case, the Tribunal also stated that even if such reasoning was applicable, on balance it was not satisfied having regard to all the evidence and applicable factors considered that exceptional circumstances existed “at the time of decision”.  It concluded that the Applicant did not meet the criterion in cl.857.213.

19. I have spent some time outlining the Tribunal conclusions in relation to cl.857.213 because the Applicant’s submissions focused on this aspect of the decision.  However, of critical importance, the Tribunal also found that there was what it described as a “second obstacle” to the success of the Applicant’s review application, that is, that he did not meet cl.857.221 which required that the “appointment” of the visa applicant mentioned in cl.857.213(a) had been approved, had not been withdrawn, continued to satisfy the criteria for approval, and was still available to the applicant.

20. The difficulty that faced, and continues to face, this Applicant is that on 1 December 2014 the Tribunal had affirmed the delegate’s decision not to approve the application for approval of the nomination that had been lodged by his employer. The Tribunal noted that the Applicant had been invited to comment on this information, but had not directly addressed this issue in his response to the s.359A letter.

21. The Tribunal observed that the Regulations did not provide it with any discretion to waive the requirements of cl.857.221(a) on the basis of the Applicant’s claimed skills and work experience as a cook, the duration of his temporary residence in Australia, his desire to achieve permanent residence, or the existence of any other potentially compassionate circumstances.  The Tribunal stated that it had no legal power to waive the operation of these provisions.  It found that the Applicant did not satisfy this criterion because the appointment had not been approved, and was not still available to him at the time of decision.  Hence the Tribunal concluded that the Applicant did not satisfy the criterion in cl.857.221 in Schedule 2 to the Regulations. 

22. As the Applicant did not meet the criteria for the visa, similarly his wife and children did not meet the criteria for the visa.  The Tribunal affirmed the delegate’s decision. 

23. The Applicants sought review by application filed in this court on 8 January 2015.  The application refers to “grounds” in Mr Xu’s accompanying affidavit (which I note are the same as the grounds raised by Mr Cai which have been considered not only by Judge Cameron in Cai v Minister for Immigration and Border Protection [2017] FCCA 3024 but also on appeal by Mortimer J in Cai v Minister for Immigration and Border Protection [2018] FCA 782). These grounds also reflected those of the employer in its two judicial review applications.

24. In his affidavit the Applicant contended that there were jurisdictional errors and that the Tribunal had breached the rules of procedural fairness.  He referred to the Tribunal’s obligations under s.353 of the Act and submitted that the case was processed by an “incompetent” Tribunal member who had a “fatal misunderstanding” regarding the expiry date of the regional certifying body’s approval.  It was submitted that the whole Tribunal hearing was conducted under the misunderstanding that the approval was only valid for two years.

25. It was also claimed that during the hearing the Applicant “already knew” that the Tribunal member intended to refuse his case.  He stated that he had requested a change of Tribunal member, which the Tribunal refused.  He claimed that the Tribunal did not give “any reasonable grounds” as to why that was so, even after he pointed out the case was unfairly processed by an incompetent Tribunal member.

26. It was also contended that the Tribunal member had said at the hearing that the regional certifying body did not look at financial aspects of the business, and that this was incorrect. 

27. In light of the financial reports for 2011, issue was also taken with what was said to be the Tribunal’s statement that the employer had suffered a reduction of more than 60% in turnover since June 2010.  This was said to indicate that the Tribunal member was incompetent. 

28. It was also suggested that “we” knew the Tribunal intended to refuse “us” as the Tribunal member had spoke “with bias, and sometimes with the careless smile on her face”.  The grounds continued: “[w]e find our cases are unfairly processed.  We deserve a professional member to process our case.”

29. When I gave the Applicant the opportunity to elaborate on his concerns about the Tribunal decision and procedures he did not directly address any of the concerns in his affidavit.  There is no transcript of the Tribunal hearing in evidence before the court.  The Applicant did not file written submissions. 

30. Rather, he stated that he felt that the Tribunal had not been fair in dealing with the case.  He pointed to the fact that four families had come out here to work and that some of the others had been granted permanent residence, but he had failed somehow. I understand he meant four families who were all sponsored by the same employer.

31. The Applicant also referred to the fact that his whole family was here, and that his children were growing up and studying here.  He reiterated that it was not fair because other families had obtained visas and he had been working here for some considerable period of time. 

32. I asked the Applicant about his concerns about the Tribunal member.  He stated that he felt some kind of discrimination or something and hoped for a just judgment.  He did not identify any other concerns with the Tribunal decision or procedures. 

33. For the most part these grounds seek to impugn the findings of the Tribunal in relation to the employer’s application for approval of the nomination.  That separate decision was the subject of a separate application for judicial review, which was unsuccessful (see X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2330).

34. Notwithstanding that many of the grounds take issue with the nomination approval decision, they were addressed in the Minister’s submissions and have been considered in relation to the Tribunal decision before the court.

35. The general contention in the grounds of review that there was a breach of the rules of procedural fairness was not particularised and lacks any substance, except insofar as it was suggested that the Tribunal misunderstood the expiry date of the regional certifying body’s approval.  However the Tribunal understood that the Applicant had concerns in this respect.  In its reasons for decision it addressed this issue.  It observed that in its related decision about the employer nomination application it had explained in detail why it considered arguments regarding the weight to be given to the relevant certification to be misconceived.  The Tribunal accepted that the certification had not technically expired at the relevant time, but found that this did not excuse or preclude it from determining, in the context of the nomination application, whether the applicable requirements of reg.5.19(a), (b) and (c) were met by the employer nomination.  However, while it considered the Applicant’s submissions regarding the validity of the relevant certifying body’s certification, it gave this matter less weight in relation to the Applicant’s case, as it was not one of the criteria for the grant of a Subclass 857 visa.  No jurisdictional error is established in this respect.

36. Insofar as the Applicant raised an issue about whether the Tribunal was correct in relation to the decline in turnover of the employer, the Tribunal noted the Applicant’s claims that sales had increased in the business between 2010 and 2011.  It considered this evidence in the context of considering exceptional circumstances.  However, it was of the view that although sales may fluctuate between years, for detailed reasons which it gave, it perceived a downward trend to 2014.

37. In other words, insofar as the financial evidence about the employer was relevant to the Applicant’s visa application, the Tribunal addressed such evidence in considering whether there were exceptional circumstances to waive the functional English requirement. The Tribunal acknowledged that the total sales went up by some $44,000 in the financial year from 30 June 2010 to 30 June 2011, but also observed that there was no further evidence from the Applicant countering the fact that the evidence also indicated that the business had declined subsequently, despite his presence in the nominated position of cook. It found that, as had been put to the Applicant in the s.359A letter, the evidence pointed to the business experiencing a steady state of financial decline. The Tribunal observed that the Applicant had not responded to this issue. The Tribunal’s conclusions in this respect were reasonably open to it on the material before it. The concerns the Applicant raises in this respect are not indicative of jurisdictional error.

38. As to the contention of bias, this argument was pursued on precisely the same basis in relation to the three other matters dealt with together by the same Tribunal (Cai; X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2329 and X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2330).

39. An allegation of actual bias must be clearly alleged and proven.  It is only in rare and extreme cases that actual bias will be disclosed on the basis of the Tribunal reasons alone (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749). As indicated there is no transcript of the Tribunal hearing in evidence. I have also considered the possibility that the concerns raised by the Applicant may be seen as a claim of apprehended bias.

1. In this context I have considered the Applicant’s request to the Tribunal that the matter be allocated to another Tribunal member.  However, it is apparent from the Tribunal reasons for decision that it gave consideration to this request.  It had regard to delays in processing of the matter and to its obligation to put the Applicant on notice of adverse information.  It considered the opportunities it had given to the various Applicants to provide evidence in support of their submissions.  It understood the Applicants’ concern that their arguments had not been persuasive, but did not accept that the matters raised gave rise to any reasonable apprehension of bias requiring reconstitution of the Tribunal.

2. As submitted for the First Respondent, the Tribunal’s approach in this respect was not legally unreasonable.  There was an evident and intelligible justification for the Tribunal’s exercise of its power in this respect.  On the material before the court the Tribunal’s approach is not such as to establish either actual bias or that the Tribunal’s conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided in the manner discussed by Allsop J (as his Honour then was) in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [14] (and also see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507). There is otherwise nothing in the Tribunal’s decision record to support an allegation of actual or apprehended bias.

3. The grounds raised in the application and affidavit do not establish jurisdictional error. 

4. Nonetheless, as the Applicant is self-represented, I considered whether there was any other possible jurisdictional error. 

5. When the matter first came before me, I raised the possibility that there may have been an error of the nature considered in Waensila, insofar as the Tribunal considered that it should have regard to exceptional circumstances only at the time of application, although I note that it in fact also had regard (at least to some extent) to circumstances at the time of decision. 

6. However, it is not necessary or appropriate, in the present context, to make a finding as to whether Waensila principles would apply to the particular criterion in issue in this case (cl.857.213).  Not only is there no contradictor, but also, as the Minister submitted, there was another independent basis for the Tribunal decision unaffected by any error of law.  That basis was that the Applicant could not meet the requirements of the criterion in cl.857.221(a) because at the time of decision his employer had not successfully applied for approval of the nominated appointment under reg.5.19 of the Regulations.

7. In these circumstances, having regard to the approach taken by the plurality in Hossain, even if there was an error by the Tribunal in relation to the criterion in cl.857.213, for it to be jurisdictional it would have to be material to the decision that was made.  In this case, any such error could have made no difference to the decision which the Tribunal made to affirm the decision of the delegate, in circumstances where the Applicant did not and could not meet the criterion in cl.857.221 that there be approval of the employer nomination.

8. I also note that the absence of employer nomination of another employee of the same employer seeking the same class of visa was considered on appeal by Mortimer J in Cai to which I have referred.  As indicated, one of the criteria for such a visa is that the employer must be successful in nominating the employee for an approved position.  Mr Cai’s employer (who was also Mr Xu’s employer) had not had the application for approval of a nomination approved and had unsuccessfully sought review by the Tribunal and judicial review.  As Mortimer J pointed out at [17], even if Mr Cai met other requirements for the visa, it was inevitable that the Tribunal would be required to affirm the decision under review because at the time of decision there was no approved employer nomination in existence, as required by cl.857.221(a).  The same may be said in this case.  There was no approved nomination.  The employer was unsuccessful in its judicial review application.  This is an insurmountable problem for this Applicant. 

9. Similarly, as Mortimer J also pointed out at [26] in relation to Mr Cai’s identical grounds, whatever complaints the Applicant may have about the Tribunal’s processes, they could not affect the legal situation that the Tribunal, having decided to affirm the decision about the employer nomination, was required to also affirm the decision in relation to the visa application.  The two decisions went “hand in hand” and the visa refusal was inevitable given the refusal of the nomination decision. 

10. Insofar as the Applicant raised concerns about his personal circumstances and humanitarian concerns, I understand his concerns.  Mortimer J addressed similar concerns raised in Cai.

11. However the court has no power in proceedings of this nature to take such matters into account, notwithstanding any sympathy one may have for a family that finds itself in this situation.  As Mortimer J pointed out in Cai at [32], such a case might be one to which the Minister’s attention could be drawn for the purposes of his consideration as to whether to exercise any personal discretions.  It is open to the Applicant to draw his situation to the attention of the Minister, but that is a matter for the Minister and not for the court. 

12. In the circumstances of this case the application must be dismissed.

13. The Applicants have been unsuccessful.  It is appropriate that the adult Applicants (the First and Second Applicants) meet the costs of the First Respondent.

14. In the particular and unusual circumstances of this case there were three hearings to await decisions which, had they gone otherwise, may have assisted the Applicants.  I consider that the amount sought is reasonable and appropriate.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 11 October 2018