FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration and Border Protection [2016] FCA 1455

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellants to file and rely on the amended notice of appeal annexed to the affidavit of Cuong Nguyen of 2 August 2016.

2.    Order 1 made by the Federal Circuit Court of Australia on 18 April 2016 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent made on 4 October 2013 be quashed;

(b)    the application for review be remitted to the second respondent to hear and determine according to law.

3.    The first respondent pay the appellants’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellants’ application for Constitutional writ relief in respect of the decision of the Migration Review Tribunal given on 4 October 2013 affirming the decision of the Minister’s delegate not to grant the appellants’ employer nomination (residence) (class BW) visas: Le v Minister for Immigration [2016] FCCA 874.

Background

2    Ms Thi Xuan Thao Le is a cook by profession. She came to Australia from Vietnam in October 2007 as the holder of a subclass 457 visa and, on 17 October 2011, applied to the Minister’s department for the visa to which I have referred. She included her spouse and child in the application as secondary applicants. It is not necessary to consider any issues in relation to Ms Le’s family. Ms Le’s employer, Little Miss Saigon Pty Limited, a Canberra restaurant, supported her application.

3    The Tribunal accepted that cooks, at the relevant time, were an occupation for whom there was a shortage of persons qualified in the Australian Capital Territory to fulfil that occupation. And, for that reason, Ms Le satisfied one element of the requirements for the visa.

4    The criteria that Ms Le had to satisfy for the grant of her visa relevantly included those in subcl 856.213(c) of the Migration Regulations 1994 (Cth). It was common ground before the Tribunal that Ms Le was less than 45 years of age and did not have vocational English. Relevantly, subcl 856.213(c)(ii) (as at 17 October 2011) provided:

856.213    Each of the following is satisfied:

…

(c)    either:

…

(ii)    in any other case – unless exceptional circumstances apply, the applicant:

(A)    is less than 45; and

(B)    has vocational English. (emphasis added)

5    Thus, the critical issue for Ms Le’s application to succeed was whether or not the Tribunal was satisfied that exceptional circumstances applied within the meaning of that provision.

6    The scheme that governed the grant of the visa for which Ms Le had applied appeared in Div 3A of Pt 2 of the Migration Act 1958 (Cth). Under s 140E, the Minister had to approve a person as a sponsor in relation to, relevantly, Ms Le. It was common ground that the Minister had approved Little Miss Saigon as a sponsor of Ms Le. An approved sponsor had the right to nominate a proposed applicant for a visa of a prescribed kind, including that for which Ms Le applied, in relation to her actual or proposed occupation. The Minister had to approve an approved sponsor’s nomination if criteria prescribed under s 140GB were satisfied. It is also common ground that Ms Le’s application met that criteria.

7    An applicant had to achieve a score for vocational English (as defined in reg 1.15B) in particular prescribed tests. It was common ground that Ms Le had not met those tests. Hence, the sole issue before the Tribunal was whether or not it was satisfied that exceptional circumstances applied in her case so that it would meet the criterion in subcl 856.213(c)(ii).

The application to the Tribunal

8    Ms Le said that she had worked in Vietnam as a cook from 1994 to 2007, with multiple employers, and had been employed in Australia from 2007 to 2009, with another employer, before she began working with Little Miss Saigon. Then in 2009, Ms Le had arrived at work one day to find that the business of her previous employer had been shut down. She complained to the Fair Work Ombudsman concerning her previous employer because it had closed its business leaving her and its other staff unpaid. She subsequently found a new sponsor in Little Miss Saigon.

9    The principal and owner of Little Miss Saigon was Allen Vong. In a document entitled “Submissions of the Sponsoring Business regarding special circumstances waiver for English requirement”, dated 10 October 2011, that appears to have formed part of Ms Le’s application for her visa, Mr Vong set out why Little Miss Saigon supported Ms Le’s application for exemption from the requirement of vocational English. He said that the nominated position as cook required a combination of particular skills, attributes and experience, and that the target market for his business was split between the Vietnamese and Chinese communities in Canberra, as well as local non-Asian clients. He said that the cook had to have both a high degree of authenticity in the preparation of traditional fares, as well as a highly tuned palate, in order to satisfy both flavour preferences of the restaurant’s clientele, and that this was an essential element of successful performance of the position of cook to which the visa application related.

10    Mr Vong said that the position required innovation and creativity to make the business move forward, and that vocational English was not an essential element for that to occur. He said that the skills, attributes and qualifications possessed by Ms Le were rarely available collectively in one person, and that her “specific experience in a similar position” was “an essential requirement for the nominee”. He said that his business was convinced that success or failure of a new business was determined in the most part by the style, commitment and expertise of the cook who possessed the particular attributes of Ms Le, who had been working in Australia for over two years. He said that there were minimal available choices for such a candidate in the local market. He said that his business had been looking for the most suitable candidate for the position since January 2008, and had had no success in identifying a suitable employee prior to engaging Ms Le.

11    He said that in the same location as Little Miss Saigon’s restaurant, being what he described as one of Canberra’s liveliest, most popular suburbs, several retailers had to shut their doors in recent years in large part due to their inability to meet the expectations and demands of the clientele, and continued:

The nominee has excellent skills and long experience in the industry, and has proven she is adept at catering to the demands of the clientele. We are confident that without the nominee in this position, the sponsoring business would not be able to compete let alone succeed in the market, and without the position itself the business would have a difficult time to succeed.

12    Mr Vong then explained that Ms Le had been working in the business since May 2009 under a subclass 457 visa, and that she had excellent skills and long experience in preparing Vietnamese and Chinese dishes. He said that his business was confident that it would be extremely difficult to identify someone with equal abilities and skills to her’s, that were required for its successful operation, by going to the local market for replacement candidates. He noted that Ms Le had been trying to improve her English language abilities since commencing employment through private study and communication with other staff. Mr Vong explained that Ms Le had made a major contribution in training the local staff and new employees of the business in her skills, and that, in turn, would address a long-standing shortage in skilled cooks and chefs within the industry in the Australian Capital Territory, and that Ms Le had been able to do so without language being an impediment. He also said that Ms Le, while not being able to satisfy the requirement for full vocational English, had demonstrated from the inception of her employment, her ability to communicate the occupational health and safety rules and requirements for the business. Mr Vong requested that she be granted the exemption from having to satisfy the requirement for vocational English.

13    In her submissions to the Tribunal in support of Ms Le’s application, her solicitor migration agent referred to the Minister’s Department’s relevant Procedures Advice Manual with respect to the assessment of the exceptional circumstances criterion in cl 856.213(c)(ii). These included, in par 17.1, the observation that “exceptional circumstances” were not defined in the Act or Regulations, and that delegates, therefore, had to consider the term in its ordinary usage, namely that the circumstances were:

… out of the ordinary, unusual, special or uncommon. Exceptional circumstances do not need to be unique, unprecedented or rare, but it cannot be regularly, routinely or normally encountered.

14    Guidance as to the assessment of exceptional circumstances appeared in par 17.2 of the Manual. That stated these had two aspects, first, whether the nominated position was critical to the employer’s operations and or required specialised skills, and, secondly, why the applicant was the most suitable (or only) candidate despite not meeting benchmark requirements for, relevantly, English language ability. In the former category, the Manual went on to explain that the nominator could make claims that the nominee or position was important to the strategic and financial direction of its business, and, in the case of the latter, explain how or why the applicant’s skills or qualifications were particularly suited to the nominated position, unusual or different to those of other persons in the occupation or similar occupations, and why the employer had been unable to find a person with those skills or qualifications who met the English language ability requirement.

The Tribunal’s reasons

15    In its reasons, the Tribunal set out the test for exceptional circumstances, which, the parties accepted, correctly stated the position. Among others, it referred to Hatcher v Cohn (2004) 139 FCR 425 where Kiefel J had explained that the term “exceptional circumstances” may have a wide operation and that factors affecting a person that set him or her apart from other persons in a comparable situation could amount to exceptional circumstances.

16    The Tribunal referred to the Manual’s guidance on “exceptional circumstances” to which I have referred, but noted that it was not bound by that. The Tribunal then set out what Ms Le, her solicitor/migration agent and Little Miss Saigon had submitted as to the reasons why exceptional circumstances applied in her case, including summarising what Mr Vong had said in his “submission”.

17    The Tribunal observed that during the hearing, when Ms Le gave evidence, it raised with her its concerns with some of her claims about why her circumstances were exceptional. It found that it was “concerned” that she did not have the level of English she claimed to understand the work, health and safety requirements and to manage other issues in the workplace. It found that, because she needed help to translate some crucial words, when undertaking and obtaining a food safety supervisor’s certificate online, it was not satisfied that she had a sufficient level of English to understand work, health and safety requirements and other issues in the workplace. It expressed the conclusion that it remained “concerned” that the level of Ms Le’s English skills were basic and not sufficient for her to fully understand the work, health and safety requirements, to manage other issues in the workplace and to train others as she had claimed.

18    The Tribunal then turned to considering the circumstances of her employment by Little Miss Saigon. It expressed concerns that, although Ms Le had submitted that Little Miss Saigon had tried, from January 2008, to get a suitably qualified cook, she had only provided evidence of an advertisement run over three weeks in The Canberra Times about a month before she commenced working for her sponsoring employer. The Tribunal said that it had expressed concerns that no other evidence of attempts to recruit that had been put before it. It recorded Ms Le’s representative’s response that most recruitment was done by word of mouth in Canberra but, the Tribunal found, that this did not explain why Little Miss Saigon placed the advertisements in The Canberra Times when it did, particularly in light of its claim that it had been looking for a cook since January 2008.

19    Critically, the Tribunal then found:

[21]     … Whilst the tribunal accepts that the nominating employer may have had some difficulty attracting a suitably qualified person to the position, particularly given the shortage of cooks, as indicated by the occupation of cook having been on the list of occupations in demand in the ACT, it does not accept it was to the extent or for the period claimed. [I]t does not accept that these difficulties have been or would be so unusual or burdensome as to warrant a finding of exceptional circumstances in this case. The tribunal is not satisfied that the nominator would have been unable to find a person with vocational English who was able to undertake the requirements of the position.

[22]    Although, Ms Le, the nominating employer and her representative have submitted that the nominated position requires a combination of particular skills, attributes and experience, and that Ms Le is essential for the success and growth of the business, no particular evidence in support of these claims has been submitted. There is no evidence from the nominating employer as to how the business has been maintained or grown since Ms Le was employed. There is no evidence in support of the claim that particular skills are needed to maintain or grow the target market for the business.

[23]    Having considered all the claims and evidence, the tribunal is not satisfied that the nominated position involves or requires an exceptional level of skill or experience such as to waive the English language requirement in this case. The tribunal is not satisfied that this is a position which can only be filled by a person with Ms Le’s experience and skills. The tribunal does not accept that the position is so unique that the employer would be unable to find a suitably qualified person to fill the position who has vocational English. The tribunal is not satisfied that Ms Le’s employment in the business has been essential for its success and growth, or in maintaining its target market. (emphasis added)

The trial judge’s decision

20    The trial judge dealt with a number of grounds of review, but the only one from which Ms Le sought directly to appeal was his Honour’s finding that the Tribunal had not erred in its construction of the expression, “exceptional circumstances,” in its reasoning in par [23], namely that it did not accept that the position which Ms Le filled was “so unique” that Little Miss Saigon would be unable to find a suitably qualified person to fill it who had vocational English and that it was not satisfied that her employment had been essential for its success and growth or maintaining its target market.

21    In essence, his Honour reasoned that the Tribunal’s use of the expression “so unique”, in [23] of its reasons, was its answer to Ms Le’s assertions as to why her circumstances were exceptional. He dismissed Ms Le’s application with costs.

This appeal

22    When the appeal was first listed for hearing I raised with counsel an issue, after I had been taken to Mr Vong’s “submission”, whether what was said in [22] of the Tribunal’s reasons actually conformed with what was in that document. Ms Le’s counsel then applied to amend the grounds of appeal and ultimately the Minister consented to her filing an amended notice of appeal raising this new point.

23    Ms Le argued that his Honour erred in its conclusion that she did meet the criterion of exceptional circumstances in subcl 856.213(c)(ii). That was, she contended, because the Tribunal had used a much higher standard, namely, “so unique” and “essential” than the natural and ordinary English meaning of “exceptional circumstances” that it had earlier set out in its reasons.

24    The new ground of appeal was that, although it was not argued before his Honour, his Honour had erred in failing to find that the Tribunal had failed to take into account a relevant consideration or relevant considerations, namely, the evidence of Mr Vong that Ms Le’s position required a combination of particular skills, attributes and experience, that she was essential to the growth of the business and that particular skills were needed to maintain or grow the target market of a business.

25    The Minister argued that par [22] of the Tribunal’s reasons, had to be read consistently with the approach that Brennan CJ, Toohey, McHugh and Gummow JJ had explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. He submitted that, so read, the Tribunal had not found that there was no evidence at all from Little Miss Saigon as to how the business had been maintained or grown since Ms Le was employed or in support of the claim that particular skills were needed to maintain or grow the target market for its business. Rather, the Minister argued, that reading par [22] in the context of its reasons as a whole, it was evident that the Tribunal was pointing to the lack of any other, or independent, evidence beyond Mr Vong’s assertions in his submission about those matters.

26    He also argued that its finding, that there was no evidence as to how the business had been maintained or grown since Ms Le’s employment, was open on the material before the Tribunal. That was because, the Minister contended, Mr Vong had done no more than make assertions to that effect without there being any independent evidence, such as financial statements or the like, to show the performance of the business over a period. The Minister also argued that Mr Vong’s self-styled “Submissions”, were just that, namely submissions, not evidence or material that the Tribunal was required to take into account as evidence and amounted to no more than, in effect, claims by Mr Vong in support of Ms Le’s claims.

27    The Minister argued that, if Mr Vong’s self-styled “submissions” could amount to evidence, those did not go beyond being mere assertions as to matters that lacked any independent or corroborative support. He contended that a fair reading of the Tribunal’s reasons showed that in par [21], it demonstrated that it had been looking for independent or other corroborative material before it could be satisfied that the assertions as to the difficulties in finding an employee to fill the position that Ms Le obtained in mid-2009 were as substantial as claimed. The Minister submitted that, although par [22] was expressed differently, the Tribunal proceeded along the same lines, namely, that it was explaining the substratum of its findings that it ultimately made at the end of [23]. There it found it was not satisfied that Ms Le’s position was so unique that Little Miss Saigon would be unable to find a suitably qualified person with vocational English to fill it or that her employment had been essential for the success and growth or maintaining the business in its target market.

Consideration

28    In my opinion, a fair reading of the Tribunal’s reasons does not support Ms Le’s argument that it had set a standard or criterion that she had to satisfy, in order to establish that her circumstances were exceptional, as being “so unique” or that she had been “essential” to the business in a way that created a jurisdictional error. Rather, the Tribunal was, as the trial judge found, addressing the way in which Ms Le had framed her case to be granted the visa. That case was based on Mr Vong’s evidence or submission:

… without the nominee in this position, the sponsoring business would not be able to compete let alone succeed in the market, and without the position itself, the business would have a difficult time to succeed.

29    In other words, the Tribunal made a finding that it was not satisfied that Ms Le met that particular description, nor that Mr Vong’s description bespoke a degree of uniqueness and essentiality for her to fill the position which she had. In Wu Shan Liang 185 CLR at 272, Brennan CJ, Toohey, McHugh and Gummow JJ explained that:

… a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. … “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. (footnotes omitted)

30    The Tribunal had to set out in its decision record, its reasons for its decision and the findings that it made on any material questions of fact, and refer to the evidence or other material on which the findings of fact were based pursuant to s 368(1)(b), (c) and (d) of the Act.

31    That brings me to the second ground, although the heading of the detailed document, that Mr Vong provided, commenced with the word “Submissions”, as the Minister fairly accepted during the course of arguing the appeal, the document was relevantly evidence before the Tribunal of the employer’s justification for sponsoring Ms Le and as to why she should be found to satisfy the criterion that exceptional circumstances applied. Mr Vong’s submission or evidence was material that constituted information that the Tribunal was bound to consider for the purposes of assessing the application: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 and 44. There Mason J said (162 CLR at 40):

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

32    In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that:

jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power. (emphasis added)

33    As Robertson J said in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 130 [111], there is no clear distinction in each case between claims and evidence. He continued:

The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. (emphasis added)

34    In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 80 [56] and [58], Katzmann, Griffiths and Wigney JJ adopted Robertson J’s analysis. They pointed out that in such a case, the Court is not involved in traversing findings of fact about particular corroborative evidence before the Tribunal, because the Tribunal did not deal with it.

35    Here, the Tribunal had a detailed explanation by Mr Vong as to why Little Miss Saigon regarded Ms Le’s employment as being relevant to its commercial viability and its having remained in business (as had continued to be the case at the time of the Tribunal’s hearing for the whole of the period of her employment from 2009 to late 2013). The Tribunal made findings of fact in stating in par [22] that there was “no evidence” from Mr Vong as to how the business had been maintained since Ms Le was employed and that there was “no evidence” in support of the claim that particular skills were needed to maintain or grow the target market for the business.

36    I do not accept the Minister’s argument that one should interpolate in those findings, that there was “no evidence” of a fact, the word “other” or “independent” between the words “no” and “evidence”. The Tribunal’s reasons demonstrated that it drew a distinction between not being satisfied of a particular matter and understanding that material was before it in the form of evidence. True it is that what Mr Vong said may not have been admissible were it tendered in a court proceeding, but that is not the point. Administrative decision-makers proceed on information presented to them about a particular matter. Here, Mr Vong put forward in his document headed “Submissions” the very considerations the subject of cl 17.2 in the Manual.

37    While it may have been open to the Tribunal not to have been satisfied by that material, in my opinion, its reasoning demonstrated that it did not treat that material as evidence or information that it was required to assess and weigh. Mr Vong’s evidence provided material which it was open to the Tribunal either to accept or reject, but it could not ignore the material by characterising it as not being evidence at all. The findings that there was no evidence on the two matters in which the Tribunal made its statements at the end of par [22] of its reasons were findings of fact that ignored relevant material in a way that affected its exercise of its power: SZJSS 243 CLR 175 at [27].

38    As Kenny, Griffiths and Mortimer JJ said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 444 [38], the Tribunal’s task could not lawfully be undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give it an accurate picture of, relevantly here, the employer’s position in relation to the way in which Ms Le, as a visa applicant, might satisfy the exceptional circumstances criterion for the grant of a visa which it was sponsoring.

39    If the Tribunal did not regard what Mr Vong had said as being persuasive it needed to address that in its reasons. But, finding that there was no evidence on the subject matter, when plainly there was, in my opinion, was to ignore relevant material in a way that affected the exercise of the Tribunal’s power to grant the visa: SZJSS 243 CLR at 175 [27]. That is because the Tribunal then reasoned that, on its finding that there was no evidence, it was not satisfied Ms Le’s employment in the business had been “essential for its success or growth or, in maintaining its target market” as it ultimately found in par [23].

40    As I have said, that finding may have been open to the Tribunal, if it had considered Mr Vong’s material as evidence. But it was not entitled to ignore that material by finding that there was no such evidence. Accordingly, its decision miscarried by its jurisdictional error in ignoring relevant material.

Conclusion

41    For these reasons, I am of opinion that the appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to it to be dealt with in accordance with law.

42    The Minister submitted that, in light of the conclusion to which I have come, I should not disturb the order for costs in his favour made by the trial judge. Ms Le argued that his Honour’s order for costs should be set aside and that there be no order for costs below.

43    The point on which the appeal has turned had not been argued below and Ms Le failed to disturb his Honour’s decision on the ground of appeal that his Honour had erred in his consideration of the way in which the Tribunal had applied the test of “exceptional circumstances”. I am of opinion that in those circumstances it would not be appropriate to disturb his Honour’s order for costs. The Minister accepts that costs of the appeal should follow the event. I will order that he pay Ms Le’s costs.

Associate:

Dated:    1 December 2016