Zhu v Minister for Immigration
[2013] FCCA 1490
•3 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1490 |
| Catchwords: MIGRATION – Judicial review of decision of the Migration Review Tribunal –Regional Sponsored Migration Scheme (Subclass 857) visa – mistranslations by interpreter – claim considered according to policy as set out in the Procedures Advice Manual, PAM 3 – considerations of Tribunal confined more narrowly than required by the Migration Regulations 1994 (Cth) – Tribunal did not address the question required by s.65(1) of the Migration Act 1958 (Cth) – Application allowed – jurisdictional error found – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.65(1) Migration Regulations 1994 (Cth), Sch.2 regs.857.213(b)(ii)(A) 857.213(b)(ii)(B) |
| Jaravaza & Ors v Minister for Immigration & Anor [2013] FCCA 68 Jia v Minister for Immigration & Anor [2011] FMCA 422 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 MZYSU v Minister for Immigration and Citizenship (2012) 132 ALD 341 SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 |
| First Applicant: | JIAQI ZHU |
| Second Applicant: | XIUGIU ZHU |
| Third Applicant: | MIAOHONG ZHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 381 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 10 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2013 |
REPRESENTATION
| Counsel for the Applicants: | Ms Costello |
| Solicitors for the Applicants: | Kabo Lawyers |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
THE COURT ORDERS THAT:
The name of the First Respondent be amended to read ‘Minister for Immigration & Border Protection’.
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 4 March 2013.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the First Respondent’s decision.
The First Respondent pay the applicants’ costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG381 of 2013
| JIAQI ZHU |
First Applicant
| XIUGIU ZHU |
Second Applicant
| MIAOHONG ZHU |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 4 March 2013 (‘the Tribunal’s decision’) wherein the Tribunal affirmed a decision of the First Respondent by his delegate (‘the delegate’) not to grant the applicants a Regional Sponsored Migration Scheme (Subclass 857) visa (‘subclass 857 visa’).
The amended grounds (of which there are five) of the Application filed 25 March 2013 are set out in the Amended Grounds of Application dated 10 September 2013 as follows:-
“Ground 1
1. The Tribunal erred by having regard to irrelevant considerations and/or impermissibly fettering its discretion by the application of policy, namely the Minister’s Department’s Policy (“Department Policy”) on clause 857.213(b)(ii)(A) of Sch 2 to the Migration Regulations 1994 (Cth) (“Clause 857.213(b)(ii)(A))”).
Particulars
a. Visa applicants aged 45 years or more will satisfy Clause 857.213(b)(ii)(A) if “exceptional circumstances apply”.
b. Department Policy regarding assessment of whether “exceptional circumstances apply” are arbitrary and narrower than Clause 857.213(b)(ii)(A) in that it makes distinctions between age groups over 45.
c. Department Policy is unlawful by reason of inconsistency with Clause 857.213(b)(ii)(A).
Ground 2
2. The Tribunal erred by having regard to irrelevant considerations and/or impermissibly fettering its discretion by the application of policy, namely the Department Policy on clause 857.213(b)(ii)(B) of the Sch 2 to the Migration Regulations 1994 (Cth) (“Clause 857.213(b)(ii)(B))”).
Particulars
a. Visa applicants who do not have functional English will satisfy Clause 857.213(b)(ii)(B) if “exceptional circumstances apply”.
b. Department Policy regarding assessment of whether “exceptional circumstances apply” are arbitrary and narrower than Clause 857.213(b)(ii)(B) in that it makes a distinction between “chefs and cooks” as opposed to other kinds of workers and directs decision makers to ignore circumstances where nobody in the workplace speaks English.
c. Department Policy is unlawful by reason of inconsistency with Clause 857.213(b)(ii)(B).
Ground 3
3. The Tribunal asked itself the wrong questions.
Particulars
The Tribunal considered circumstances having regard to Department Policy and did not have regard to the broad discretions in Clause 857.213(b)(ii)(A) and Clause 857.213(b)(ii)(B).
Ground 4
4. In considering under 857.213(b)(ii)(B) whether “exceptional circumstances apply” to waive the functional English requirement, the Tribunal erred in that it failed to consider a relevant consideration/failed to consider a claim that the sponsoring business would suffer seriously if the main applicant were not working there given that the main applicant had worked at the sponsor’s business for several years and had played a great part in its success.
Ground 5
5. The Tribunal erred in law in failing to provide adequate or proper interpreting services as disclosed in the transcript of the hearing, thereby denying the applicants a real and meaningful hearing.
Particulars
The transcript shows errors including in relation to translation of matters concerning the phrase “exceptional circumstances”, Mr Zhu’s role as “head chef” and a health and safety course.”
Following the decision of this Court in Jaravaza & Ors v Minister for Immigration & Anor [2013] FCCA 68 (‘Jaravaza’) the First Respondent conceded that the decision of the Tribunal is affected by jurisdictional error regarding the Tribunal’s consideration of whether there were exceptional circumstances to waive the age limit requirement in respect of the First Applicant (‘the Applicant’). The First Respondent submitted (Submissions filed 3 September 2013) that:-
“45. In Jaravaza, Judge Nicholls determined in relation to the policy that applied at the relevant time concerning ‘exceptional circumstances’ for the purpose of cl.857.213(b)(ii)(A) (the age limit requirement), that insofar as it sought to distinguish between two cohorts, namely those applicants for a visa aged 45 years to less than 60, and those applicants aged 60 years or over, that the policy was inconsistent with the scheme of the Regulations and the policy created an arbitrary distinction between the two groups: at [81] and [94].
46. The Court found that the Tribunal in that case had approached the question of the consideration of exceptional circumstances at least in part, influenced by and applying matters which the policy document said applied only to those aged 60 years or over: at [93].
47. In the present case, the applicant was a member of the first cohort (being aged under 60), nonetheless, the first respondent considers that the Tribunal’s apparent reliance on PAM 3 as it applied to a subset of the first group (those aged 45 to 49), gives rise to the same error as that identified in Jaravaza.”
Notwithstanding the decision in Jaravaza and the concession made by it, the First Respondent argued that the decision of the Tribunal in these proceedings remained defensible and submitted that the application before the Court should be dismissed with costs. The First Respondent argued that the Tribunal had made a separate and independent finding in relation to cl.857.213(b)(ii)(B) of the Migration Regulations 1994 (Cth) (‘the Regulations’), being that the Applicant did not have functional English and that there were no exceptional circumstances to waive that requirement.
History
The applicants are a family and citizens of China. Mr Zhu, the Applicant is the primary applicant.
The Applicant was born on 17 March 1968 and is now aged 55 years. He arrived in Australia from China in January 2005, being in excess of eight years ago. He was then the holder of a Temporary Work (Skilled) Subclass 457 visa. Ever since his arrival in Australia, the Applicant has been employed by his sponsor, Mulwala Golden Inn Restaurant Pty Ltd in Mulwala as head chef of a 300-seat Chinese restaurant at an elite water-skiing club. Mulwala is a country town in New South Wales with a small population. The Tribunal in its Decision Record dated 4 March 2013 accepted that the Applicant was a skilled and valued employee at the restaurant, and that the restaurant, being in a regional area, had difficulty in attracting and retaining skilled staff.
On 24 April 2007, the Applicant applied for a subclass 857 visa (‘the visa application’). At the time he made the visa application, the Applicant was 49 years of age and did not provide any evidence of functional English.
On 20 February 2008, a delegate of the First Respondent refused to grant the visa application and on 30 June 2009, the Tribunal affirmed this decision.
On 9 April 2010, this Court set aside the Tribunal’s decision and remitted the matter back to the Tribunal for reconsideration. On 7 April 2011, the Tribunal remitted the visa application to the delegate of the First Respondent.
On 14 June 2011, the delegate refused to grant the visa application on the basis that the Applicant did not satisfy cl.857.213(b)(ii)(A) of Schedule 2 of the Regulations because he was over 45 years of age when he made the visa application, and there were no exceptional circumstances to waive this requirement.
On 16 June 2011, the applicants applied to the Tribunal for review.
On 10 December 2012, the Tribunal invited the applicants to a hearing.
On 13 December 2012, the applicants’ representative sent the Tribunal a completed ‘Response to Hearing Invitation’. In the form, the Applicant stated that he required a Cantonese interpreter and that his witness, Kenny Yap (the Applicant’s employer/sponsor), did not require an interpreter.
On 15 January 2013, the applicants’ representative sent written submissions to the Tribunal which addressed the issue of exceptional circumstances, as they applied to the age requirement and the requirement of functional English. The correspondence also enclosed a letter from the Applicant’s nominating employer which addressed the same criteria, and letters of support from various members of the regional community where he was employed.
On 1 February 2013, the applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted by video-link with the Tribunal member in Adelaide and the Applicant and his witness in Melbourne. The Applicant was assisted throughout by an interpreter in the Cantonese and English languages. The applicants’ representative also attended the hearing, along with Mr Gilbert of Counsel. The Applicant’s employer, Mr Yap, also gave evidence. At the conclusion of the hearing, the Tribunal granted the Applicant further time, until 22 February 2013, to provide a statutory declaration and any other evidence and submissions.
On 13 February 2013, the applicants’ representative sent supplementary submissions to the Tribunal which addressed the issue of the Applicant’s age and his lack of functional English. The representative maintained that there were exceptional circumstances in respect of each of these requirements.
The Tribunal’s decision
The Tribunal noted that the Applicant was seeking a subclass 857 visa and set out the primary criteria to be assessed at the time of the application for a visa of this class.
Relevantly, under cl.857.213(b)(ii) of Schedule 2 of the Regulations, unless exceptional circumstances apply, the applicant:-
a)must not have turned 45 at the time of the application;
b)must have functional English; and
c)must have a diploma or higher qualification that is relevant to the appointment.
At the time the Applicant lodged the application for a subclass 857 visa on 24 April 2007, he was 49 years old.
The Applicant speaks Chinese and does not have functional English.
The Tribunal’s rationale for its decision to affirm the delegate’s decision not to grant the Applicant an Employer Nominated (Residence Class BW) visa, was the Tribunal’s findings that there were not exceptional circumstances in the Applicant’s case that warranted the waiver of the age limit requirement pursuant to cl.857.213(b)(ii)(A) of Schedule 2 of the Regulations (‘the age requirement’) and the functional English requirement pursuant to cl.857.213(b)(ii)(B) of Schedule 2 of the Regulations (‘the English requirement’).
Consideration
The concession made by the First Respondent altered the matters for consideration by the Court. The applicants argued that the question for the Court became whether there remained an independent and unimpeachable basis for its decision of the type found by Dodds-Streeton J in MZYSU v Minister for Immigration and Citizenship (2012) 132 ALD 341. The applicants also continued to press the ground of jurisdictional error claimed as a consequence of the alleged mistranslations of the interpreter.
The Tribunal purported to make its decision for two main reasons. First, the Tribunal found at paragraph 54 of the Decision Record that there were “not exceptional circumstances to exercise the decision to waive the age requirement”. Second, the Tribunal found at paragraph 61 of the Decision Record that “exceptional circumstances do not apply in relation to the English requirement in this case. The Tribunal does not accept the Applicant’s circumstances are sufficiently unusual or out of the ordinary to constitute exceptional circumstances for the purpose of cl.857.213(b)(ii)(B) [of Schedule 2 of the Regulations]”.
In their first set of submissions to the Court (there being two, the first filed on 2 August 2013 and the second on 9 September 2013) the applicants argued that the standard of interpretation undertaken by the interpreter, as arranged by the Tribunal for its hearing on 1 February 2013, was so incompetent and inaccurate that the Applicant was deprived of a hearing. Further, that the interpreter made errors that materially adversely impacted the Tribunal’s decision.
Errors of interpretation can result in jurisdictional error. Middleton J distilled this test in SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 at paragraph 21 as follows:-
“With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”
The transcript of the hearing is in evidence before the Court as Exhibit KK-1 to the Affidavit of Mr Kabo sworn 1 August 2013.
The Court is satisfied that the standard of translation was so incompetent and inaccurate as to deprive the Applicant of a hearing and furthermore is satisfied that those errors materially impacted the Tribunal’s decision. Such errors pervade the decision.
The transcript of the hearing provides probative evidence that the Applicant’s evidence to the Tribunal, as interpreted, at times was not what he actually said in respect of relevant matters. Furthermore, the translator made errors in interpreting what the Tribunal member, the Applicant, and the employer said. Some of those errors concerned matters crucial to the Tribunal’s determination of the matters before it. I accept that those errors in translation deprived the First Applicant of a fair hearing and rendered the decision unsafe. Relevant examples of this mistranslation which materially adversely impacted the Tribunal’s decision were:-
a)as to the Applicant’s evidence as to his exceptional circumstances. He stated that he has remained working in a regional area for many years, when others who have come to learn the trade and work there, leave after at most, three months. He stated that “not a single one stays”. This discussion between the Tribunal member and the Applicant was not accurately interpreted.
b)Likewise, the interpreter mistranslated the employer Mr Yap’s evidence, as to his efforts to recruit suitably qualified chefs with functional English and under 45 years of age. His evidence, that he has tried over the years and unsuccessfully to recruit such persons, was mistranslated to that he had tried “for one year”. When the Tribunal member asked Mr Yap whether he had tried to recruit from “overseas” again, that question was translated to whether he had tried to recruit from “other places” again. The Tribunal then found that Mr Yap “confirmed they had not tried to recruit from overseas” and concluded the Tribunal was not satisfied that it would not be possible to recruit another cook under 45 years of age from China or elsewhere with similar skills and experience.
c)Further translation errors were made concerning the Applicant’s role as head chef with the Tribunal wrongly concluding there was another head chef in the kitchen. This went to the Tribunal’s adverse finding as to whether the Applicant was crucial to the sponsor’s business.
Turning to the other grounds raised by the applicants, I accept the submissions of Counsel for the applicants that for the English requirement decision to have been independent, the Tribunal would have had to consider all the relevant circumstances regarding whether there were exceptional circumstances. It did not. The Tribunal did not consider in relation to the English requirement whether the employer's business would suffer in the event that the Applicant was not retained. There is no mention of this obviously relevant consideration as to whether the Applicant was essential to the operation of the employer’s business in that part of the Decision Record explaining the English requirement decision. It is a relevant consideration and was considered in relation to the age requirement. That it was considered at that point of the Decision Record is insufficient because the English requirement decision must be independent. This consideration was ignored in this part of the Tribunal’s decision. The same error (failure to consider the impact on the employer's business) was found to be a jurisdictional error by this Court in Jia v Minister for Immigration & Anor [2011] FMCA 422 at paragraphs 23 and 32.
Unlike in its use of the Procedures Advice Manual (‘PAM 3’) in relation to the age requirement, the Tribunal did not disclaim reliance on PAM 3 in relation to the English requirement. It did not explain that it was not bound by Departmental policy and that it would make its own assessment as to whether the circumstances were exceptional. It did not state that the matters in the Department’s policy were not treated by it as essential criteria for the favorable exercise of the discretion. The Tribunal relied on PAM 3 which was inconsistent with the applicable Regulations and wrongly narrowed its consideration of the First Applicant’s relevant circumstances.
In fact, PAM 3 presented a distinction between exceptional circumstances in relation to chefs and cooks as distinct from other kinds of workers. PAM 3 (as at the date of the Tribunal’s Decision) stated at paragraph 16.5 as follows:-
“16.5 English competency for chefs & cooks
There may be circumstances where an applicant has been nominated for a position as a cook or chef, but they do not have functional English and have requested consideration of exceptional circumstances on the following basis:
· the rest of the staff speak the same language as the applicant
· WHS signs have been translated into a language the applicant understands
· the applicant has attended a WHS course with an interpreter (usually evidenced by a certificate of attendance)
· the applicant is not expected to deal with customers or suppliers and
· employer has not been able to find a chef or cook with the required level of English competency.
These reasons are not considered sufficient evidence of exceptional circumstances, and officers should request further details from the employer and/or applicant. In addition to the examples mentioned in section 16.4 If the applicant does not have functional English, officers can also consider the following when assessing whether exceptional circumstances apply:
· if the applicant speaks the same language as the rest of the staff, can the employer and/or applicant demonstrate that they speak the same dialect, or that any regional variations are not likely to cause any misunderstanding in the workplace
· if the applicant is not expected to deal with customers or suppliers, can the employer and/or applicant demonstrate how they would be able to interact within the community outside the workplace, especially in communities where there may not be a large network of people from the same cultural background
· has the employer and/or applicant demonstrated that the cooking style is unusual or specialised, and there was no other suitably qualified applicant with the necessary English language skills.”
"Exceptional circumstances" within the meaning of the text of the Regulations does not have the limited meaning that PAM 3 gives it. PAM 3 (at paragraph 16.4) excluded from consideration the issue that nobody in the workplace speaks English, whereas the ordinary definition of "exceptional circumstances" does not preclude that consideration.
The Tribunal, clearly taking the policy content as its guiding principle, stated at paragraph 58 of the Decision Record that:-
“… The Tribunal finds it unacceptable that non-Cantonese or non-Mandarin speakers could be precluded from the workplace because they could not communicate with the head chef".
The Court accepts the arguments of the applicants and finds the Tribunal’s decision is affected by jurisdictional error and must be remitted to the Tribunal for reconsideration in accordance with law. The English requirement decision is affected by two jurisdictional errors, the first being the translation errors and the second being that the Tribunal, particularly at paragraphs 56 to 58 of the Decision Record, considered the Applicant’s circumstances according to the Departmental policy as set out in PAM 3 for the purposes of cl.857(b)(ii)(B) of Schedule 2 of the Regulations. In referring to the policy, the Tribunal confined its considerations more narrowly than the Regulations obliged it to. In using PAM 3 as it did, the Tribunal erred because it did not address the question which s.65(1) of the Migration Act 1958 (Cth) required it to address (see decision of Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at paragraphs 63 and 64). As the applicants’ application succeeds, the First Respondent will pay their costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 3 October 2013
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