FEDERAL COURT OF AUSTRALIA

Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375

MIGRATION – review of decision of Migration Review Tribunal – refusal to grant visa within subclass 805 – error of law – Tribunal failed to review employer nomination as part of review of visa application.

Migration Act 1958 (Cth):  s 476(1)(e)

Migration Regulations 1994:  reg 5.19, Sch 2 subclass 805

Hu v Minister for Immigration and Multicultural Affairs [2001] FCA 66  distinguished

ALEXANDRE TVARKOVSKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 452 of 2000

GOLDBERG J

4 APRIL 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The decision of the Migration Review Tribunal on 29 May 2000 be set aside.

2.                  The matter be remitted to the Migration Review Tribunal differently constituted to be determined according to law.

3.                  The respondent pay the applicant’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

Introduction

1                     The applicant has sought review of a decision of the Migration Review Tribunal (“the Tribunal”) on 29 May 2000 affirming the decision of a delegate of the respondent (“the Minister”) refusing to grant the applicant a General (Residence) (Class AS) subclass 805 (skilled visa).  The applicant raised one short issue before the Court.  The Tribunal concluded that it could not review as part of its process of review of the decision to refuse the visa what it called “the regulation 5.19 issues”.  Did the Tribunal fall into an error of law in so concluding?  The applicant contended that the Tribunal did, within s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”). 

2                     The applicant, a citizen of Russia, arrived in Australia with his family on a temporary residence class 414 visa on 14 October 1994 which expired on 19 August 1996.  On 6 February 1996, the applicant lodged an application for a General (Residence) (Class AS) subclass 805 (skilled) visa pursuant to the provisions of the Act.  The application was supported by an employer nomination under the employer nomination scheme.  A delegate of the Minister refused the employer nomination and the visa application on 12 February 1998.  The delegate’s refusal of the visa application was affirmed by a review officer of the Migration Internal Review Office on 14 April 1998.  On 12 May 1998, the applicant lodged an application for review of the delegate’s decision with the Immigration Review Tribunal which ceased to exist on 31 May 1999.  The application was transferred to the Tribunal pursuant to the Migration Legislation Amendment Act (No 1) 1998 (Cth).  On 29 May 2000, the Tribunal affirmed the decision of the delegate to refuse the visa application and found that it did not have jurisdiction to review the refusal of the employer nomination.  On 26 June 2000, the applicant applied to the Court for an order of review in respect of the Tribunal’s decision pursuant to Pt 8 of the Act.

Background

3                     The applicant was born in Korsakov, Russia, on 5 January 1960, he was married on 10 March 1989 and has two children.  From September 1979 to June 1985 he attended the Polytechnical Institute of Kubyshev and acquired a diploma as an engineer – hydrotechnician.  In September 1985 he was employed as Production Manager at a gold mining enterprise where he was promoted to General Manager in August 1987.  From October 1988 to September 1994, the applicant worked as Director of Intertechnika, a gold processing and trading company.

4                     After the applicant and his family arrived in Australia in October 1994, the applicant applied for a position which was advertised in the employment section of a newspaper on 18 November 1995 as a Research and Development Manager with Ipex Information Technology Group (“Ipex”).  The position was to research and develop a gold processing plant in far east Russia and a requirement of the position was that the applicant reside in Russia for a period of six to eight months.  Applicants were invited to apply to Australian Migration Program and Investments. 

5                     On 6 February 1996, the applicant lodged an application for a General (Residence) (Class AS) subclass 805 (skilled) visa pursuant to the provisions of the Act.  At the time the visa application was made, the criteria prescribed for the grant of a General (Residence) (Class AS) subclass 805 (skilled) visa were contained in subclass 805 in Sch 2 of the Migration Regulations 1994 (“the Regulations”).  Subclass 805 was repealed with effect from 1 November 1999.  However, because the visa application was made before 1 November 1999, subclass 805 continued to apply to the determination of the applicant’s application pursuant to the transitional provisions:  reg 5 of the Migration Amendment Regulations 1999 (No 11).

6                     At the time of the visa application, the criteria to be satisfied at the time of application were set out in cl 805.21 which read, relevantly:

“805.212         (1)        Subject to subclause (1A), the applicant meets the requirements of subclause (2), (3), (4), (5), (6) or (7).

                        (1A)     …

(2)        An applicant meets the requirements of this subclause if he or she has held:

(a)        1 or more visas of 1 of the following classes:

(i)                 Business (Temporary);

…

(b)        …

valid for an aggregate period of more than 12 months, and currently holds a visa in 1 of those classes.

…

805.213           (1)        If the applicant is not an applicant who meets the requirements of subclause 805.212 (6) or (7), the applicant satisfies the requirements of subclause (2), (3) or (4).

(2)        …

(3)               An applicant meets the requirements of this subclause if:

(a)               the applicant has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and

(b)               the applicant is a highly skilled person within the meaning of regulation 5.19 in relation to that appointment; and

(c)                unless the appointment is exceptional, the applicant has not turned 55.

(4)               …”

The criteria to be satisfied at the time of decision included, relevantly:

“805.222         If the application is based on satisfaction of the criteria in subclause 805.213 (3) or (4):

(a)               the appointment is an approved appointment under regulation 5.19; and

(b)               the Minister is satisfied that the appointment will provide the employment referred to in the relevant employer nomination.”

7                     Regulation 5.19 relates to approved appointments in respect of employer nominations. At the time of the visa application and the decision, it provided, relevantly:

“(1)     A proposed appointment is an approved appointment for the purpose of these Regulations if it is the subject of an employer nomination that meets the requirements of subregulation (2) or (4).

(2)               An employer nomination meets the requirements of this subregulation if:

(a)               the employer nomination is made by an employer in respect of a need for a paid employee in a business:

(i)                 located in Australia; and

(ii)               operated by that employer; and

(b)               the work to be performed requires the appointment of a highly skilled person (within the meaning of subregulation (3)); and

(c)                the appointment will provide the employee with full-time employment and:

(i)                 will be permanent; or

(ii)               in the case of an appointment to an academic or scientific-research position in an academic, or scientific research, institution:

(A)            will be for a fixed term of at least 3 years; and

(B)             will not be subject to an express exclusion of the possibility of renewal of the appointment for a further fixed term of 3 years; and

(d)               the Minister is satisfied:

(i)                 that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

(ii)               if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

(e)                the Minister is satisfied that:

(i)                 an Australian citizen or Australian permanent resident cannot be found who is suitable for the appointment; or

(ii)               in the circumstances of the case, the employer should not be required to seek a suitable employee in Australia; and

(f)                 the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards.

(3)               In subregulation (2):

‘highly skilled person’, in relation to a proposed employment appointment, means a person who has, in respect of work of the kind to be performed under that appointment:

(a)        completed, over a period of at least 3 years, formal training or equivalent experience; and

(b)        unless the approved appointment is exceptional – been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least 3 years;

(i)         after completing the training or experience referred to in paragraph (a); and

(ii)        before making the application; and

(c)        acquired competence assessed by the Minister to be at least average for a person to whom paragraphs (a) and (b) apply.

(4)        An employer nomination meets the requirements of this subregulation if:

(a)        the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:

(i)         located in Australia; and

(iii)             operated by that employer; and

(b)        the appointment:

(i)         will provide the employee with full-time employment; and

(ii)        will be for at least 2 years; and

(c)        unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26 (5)) or higher qualification; and

(d)        the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and

(e)        a body, specified for the purpose of this paragraph by Gazette Notice, certifies that the employer nomination meets the requirements of this subregulation.”

8                     Regulation 5.19 was amended on 1 July 1999 to provide that an employer may apply to the Minister for approval of a nominated position as an approved appointment.  Regulation 4.02 was amended at the same time to allow an employer to apply for review by the Tribunal of a decision under reg 5.19(1B) to reject an application for approval of a nominated position.  However, those amendments are not relevant to the issues in this proceeding as they came into effect subsequent to the applicant’s application for the visa on 6 February 1996 and the delegate’s decision in relation to the employer nomination and the visa application on 12 February 1998.

9                     At the time of his application, the applicant claimed to satisfy the requirements of subclause 805.212(2) as he held a Business (Temporary) visa at the time of the application and had held a visa of this nature for an aggregate period of more than twelve months. The applicant claimed to satisfy the requirements of subclause 805.213(3)(a) as he had been nominated in accordance with reg 5.19(2) and was highly skilled within the meaning of reg 5.19.  The application was supported by an employer nomination dated 12 December 1995 signed by Mr J Schwalb, the Managing Director of Ipex.  The nominated position was described as “To research and develop a gold processing plant”.  The applicant claimed to satisfy cl 805.222 on the basis that the appointment was an approved appointment under reg 5.19 and would provide the employment referred to in the employer nomination.

10                  The Tribunal found that on 11 February 1998, an officer of the Department of Immigration and Multicultural Affairs (“the Department”) contacted the managing director of Ipex and was advised that the applicant had never worked for Ipex, did not have a tax file number, nor was he placed on Ipex’s payroll, although he did come in and provide advice.  The managing director said that a business venture for which the applicant had been nominated by Ipex had not proceeded, and whilst Ipex would have liked to find employment for the applicant, it had nothing suitable for him.

11                  On 12 February 1998, the delegate sent a letter to Mr Schwalb refusing the application for employer nomination.  On the same date, the delegate wrote to the applicant advising him that his visa application had been refused on the basis that the applicant did not satisfy subclause 805.213(3)(a) or 805.222(a) as the employer nomination was refused on 12 February 1998 as the employer had indicated the position was no longer required, and the applicant did not satisfy subclause 805.222(b) as the employer had indicated on 11 February that the position to which the nomination related no longer existed.

12                  The Migration Internal Review office affirmed the decision to refuse the visa as the applicant failed to satisfy subclause 805.213 or subclause 805.212(6) or (7) (not relevant for present purposes). 

Reasoning of the Tribunal

13                  The Tribunal considered that the delegate’s refusal of the employer nomination by Ipex on 12 February 1998 was not reviewable because the refusal was made by the delegate prior to 1 July 1999 and there was no right of review in respect of employer nominations decided before this date.  The Tribunal reasoned:

“On 1 July 1999 regulation 5.19 pertaining to “Approved appointments (employer nomination)” was amended to make it clear that a separate decision making process was involved in the approval of appointments under regulation 5.19.  At the same time, regulation 4.02 pertaining to “Application for internal review” was amended to provide a separate right of review by the Tribunal in relation to the approval of appointments (employer nominations) under regulation 5.19.  Prior to 1 July 1999 the approval of appointments under regulation 5.19 appears to be a separate and distinct process from that of assessing the visa application.  There are clear criteria set out in a separate part of the regulations for the approval of these nominations, and the legislation seems to provide for a distinct 2-stage process given that the nomination need not pertain to any particular visa applicant, and can be approved before the visa application is lodged.  For employer nominations decided by DIMA before 1 July 1999 it would seem that right of review is not available.  In particular, the Tribunal cannot review the regulation 5.19 issues as part of the visa review."

14                  The Tribunal then said that although the decision to refuse the employer nomination was not reviewable, the decision to refuse the grant of the visa was reviewable.  The Tribunal found that the applicant did not meet the criteria of subclause 805.21 of the Regulations which were the criteria to be met at the time of the decision.  The Tribunal said:

“In the absence of an approved employer nomination, the visa applicant is unable to satisfy subclauses 805.213 (2), (3) or (4) of the regulations, and has not made claims that he can meet the alternative requirements of subclauses 805.212 (6) or (7).  It is not necessary for the Tribunal to proceed to consider whether the visa applicant would meet the other criteria in subclause 805.21 as an applicant must meet all of the prescribed criteria for the visa to be granted.  The Tribunal notes that the nominating Australian company had not actually employed the visa applicant, and had withdrawn the nomination.”

Submissions

15                  The applicant submitted that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law within s 476(1)(e) of the Act.  The error was the finding that the Tribunal could not “review the regulation 5.19 issues as part of the visa review”.  The applicant submitted that under the Regulations which were in force at the relevant time, the Tribunal did have power to review employer nominations as part of the visa view. 

16                  The applicant contended that, at the relevant time, reg 5.19 was in the nature of a definition provision which defined certain terms in subclass 805 which set out the requirements for a skilled visa.  The applicant submitted that reg 5.19 did not provide for the making of a separate decision as to the employer nomination, but prescribed various requirements which were to be met by an employer nomination in order for the appointment to which it related to qualify as an “approved appointment” for the purpose of subclause 805.222.  Accordingly, the delegate’s refusal of the employer nomination could be reviewed by the Tribunal as part of its review of the delegate’s decision to refuse the visa.

17                  The Minister submitted that two separate decisions were involved, namely a decision to approve an appointment in accordance with reg 5.19 and a decision to grant a visa in accordance with subclass 805.  The first stage of the decision making process was the decision whether an appointment was an approved appointment pursuant to reg 5.19.  The Minister contended that the separateness of this decision was shown by the fact that it was the employer who applied for an employee nomination, and as the employer was not required to specify a particular applicant at the time of the application, this decision could be made without identifying an individual applicant.  It was said that reg 5.19 dealt with a position of employment, not the subjective characteristics of an individual applicant.  The second stage of the decision making process was whether to grant a visa in accordance with the criteria set out in subclass 805.  The Minister contended that this second stage required a decision to have been made in relation to an approved appointment under reg 5.19 and that the delegate, when deciding whether to grant a visa in accordance with subclass 805, and the Tribunal, when reviewing a decision in respect of a subclass 805 visa application, were not able to go behind the decision making of the person who determined whether or not to approve the appointment pursuant to reg 5.19.

Reasoning

18                  The structure of subclass 805 and its inter‑relationship with reg 5.19 leads me to the conclusion that a review of a decision to refuse a visa under that subclass involves, and requires, a review of the matters provided for in reg 5.19.  What is significant is that recourse to the provisions of that regulation must be made in order to determine whether the criteria provided for in subclass 805 have been satisfied.  The structure of the Regulations at the relevant time indicates that when making a decision in respect of a General (Residence) (Class AS) subclass 805 (skilled) visa application, the decision maker was required to consider the criteria contained in subclass 805 which then referred the decision maker to the provisions of reg 5.19.  There are references to reg 5.19 throughout subclass 805, relevantly, in cl 805.213(3) in relation to criteria to be satisfied at the time of the application, and cl 805.222 in relation to the criteria to be satisfied at the time of the decision.  Regulation 5.19 prescribes requirements which are to be met by an employer nomination in order for the appointment to which it relates to qualify as an approved appointment for the purpose of subclass 805.  Regulation 5.19 cannot stand, and should not be looked at, in isolation.  Regulation 5.19 does not have a life of its own independently of subclass 805.  Recourse is only made to it for the purpose of determining whether particular provisions of subclass 805 have been satisfied.  If a decision is not to be made under subclass 805, reg 5.19 lies dormant. 

19                  The interrelationship between, and interdependence of, the provisions of subclass 805 and reg 5.19 can be demonstrated by a number of provisions in reg 5.19.  In reg 5.19(2)(f) there is a reference to “the applicant”.  The Minister submitted that the content of reg 5.19(2)(f) showed that it was referring to the position to be filled for which the nomination was made.  But sub‑reg 2(f) refers specifically to “the applicant’, not any person filling the position, the subject of the nomination.  The expression “the applicant” is not defined in, or for the purposes of, reg 5.19 and can only mean an applicant for a visa under subclass 805 who is seeking to satisfy that criterion in cl 805.213(3) which requires a nomination in accordance with reg 5.19(2). 

20                  In reg 5.19(3)(b)(ii) there is a reference to a period of at least three years “before making the application”.  Again “the application” is not otherwise defined in, or for the purposes of, reg 5.19.  It can only mean an application for a visa under subclass 805.  In reg 5.19(3)(c) there is provision for the Minister to assess the level of competence acquired by the relevant “highly skilled person”.  This is not a person in the abstract, but rather a particular visa applicant.

21                  If reg 5.19 were to be considered as requiring or authorising a separate decision independently of any visa application, those terms would have no meaning or content.  To give reg 5.19 meaning and context there must be a visa application within subclass 805.

22                  The Regulations do not provide for a separate and distinct process of determining whether an employer nomination should be accepted.  Rather, reg 5.19, in its language, provides a dictionary and definitional provisions for the purposes of subclass 805.  Regulation 5.19(1) states:

“A proposed appointment is an approved appointment for the purpose of those Regulations if …”. 

Reg 5.19(2) states:

“An employer nomination meets the requirements of this subregulation if …”

Reg 5.19(4) states:

“An employer nomination meets the requirements of this subregulation if …”

23                  Although regs 5.19 and 4.02 have been amended to provide for the making of a separate decision by the Minister in relation to the approval of employer nominations and for review of the Minister’s decision, at the relevant time reg 5.19 did not provide for the making of a separate decision by the Minister and there was no provision for separate review of the matters contained in reg 5.19.  At the relevant time, there was only one decision to be made in relation to the grant of the visa, being whether the criteria contained in subclass 805 were satisfied.  The only relevance of an employer nomination was to satisfy one of those criteria.

24                  The Minister submitted that reg 5.19 was concerned with assessing the position of employment and not the visa applicant and that a decision on the matters contained in reg 5.19 was necessary before a decision could be reached in relation to the subclass 805 criteria.  The Minister contended that the matters in reg 5.19 were only within the knowledge and comprehension of the employer and that this indicated the separateness of the decision making process.  The Minister referred to Form 785 which was an administrative form prepared by the Department of Immigration and Ethnic Affairs in relation to nominations under the employer nomination scheme and submitted that each of the questions on the form could be addressed by a potential employer without a particular applicant in mind.  The employer could lodge the nomination with a view to employing someone at a later stage.  Administratively, it was the employer who completed the Form 785 and proposed the position and the employer had to pay a separate fee of $270 at the time of application.  In particular, the Minister referred to the following note on the form under the heading “Details of Nominee”:

“Note: If you have selected someone for the position, please provide the following details.  If you have not selected someone, the details can be provided at a later date after a decision has been made on the nomination.”

25                  The Minister submitted that this note was consistent with the submission that a decision could be made whether to approve an appointment under regs 5.19(1) and (2) without identifying an individual applicant.  I consider that Form 785 and the particular administrative practice of the Department at the time are not determinative of the proper construction of the Regulations.  The fact that the employer nomination was made by the employer and not the applicant and related to a particular position offered does not lead to the conclusion that the nomination required a separate decision from the decision in relation to the visa application.  Although the nomination had to be assessed by reference to the criteria in reg 5.19, that assessment was only required for the purpose of determining whether a particular applicant satisfied the criteria of subclass 815.  It was only when a particular applicant applied for a visa under subclass 805 that the provisions of reg 5.19 were brought into play to see if the relevant expressions and the terms in subclass 805 were satisfied by reference to their definitional criteria in reg 5.19.

26                  The Minister submitted that when the decision maker turned to subclass 805 to determine whether the visa criteria were satisfied, he or she looked at the applicant’s characteristics and whether the applicant could satisfy the criteria for a skilled visa, and that this process was distinct from the assessment of the employer’s application under reg 5.19.  The Minister submitted that a decision to refuse a nomination may not necessarily lead to a decision to refuse a visa, for example, if somebody had been rejected in relation to a nomination, they may still be granted a visa by coming within the terms of subclause 805.212(6) or (7) which, broadly, applied to people with particular distinguished records of achievement or talent. 

27                 If a person were to apply for a subclass 805 visa claiming that he or she met the criteria contained in subclause 805.212(6) or (7) in addition to the criteria contained in subclauses 805.213 and 805.222, that person might be granted the visa if he or she satisfied subclause 805.212(6) or (7) but did not satisfy subclause 805.213 because he or she had not been nominated in accordance with reg 5.19(2).  However, this does not mean that there must have been a separate decision under reg 5.19 in relation to the employer nomination before a decision could be made in relation to the visa.  Rather, the position would be that the employer nomination would not satisfy reg 5.19(2) because it did not meet the six requirements of reg 5.19(2).  No decision would be made that the employer nomination did, or did not meet, the requirements of reg 5.19(2)

28                  The Minister sought to rely on the decision in Hu v Minister for Immigration and Multicultural Affairs [2001] FCA 66 in which the Court upheld the decision of the Tribunal that it did not have jurisdiction to review a decision under reg 1.20H of the Regulations to refuse a nomination of an activity in which an individual was proposed to be employed in Australia by a person who did not operate a business in Australia as part of the Tribunal’s review of the decision to refuse to grant a visa.  The Minister submitted that this decision showed that there can be two separate decisions even where they are made by the same delegate.  That decision is of little relevance to the present case.  It concerned a different regulatory framework under which, in particular, there was a separate process for the approval of nominations of business activities by the Minister by instrument in writing.  Regulation 1.20H provides:

“(1)     Subject to this Regulation, the Minister may, by instrument in writing, approve, or refuse to approve, the nomination of an activity in which an individual is proposed to be employed in Australia.

…”

Unlike reg 5.19, reg 1.20H provides for a decision to be made by the Minister.  Regulation 5.19 rather than providing for a Ministerial decision, requires a number of facts and circumstances to be established.  Under reg 5.19(2), an employer nomination “meets the requirements” of that sub‑regulation if a number of objective criteria are satisfied and if the Minister is satisfied of certain matters (par 7 above).  Under reg 5.19(4), an employer nomination “meets the requirements” of that sub‑regulation if a number of objective criteria are satisfied.  None of these matters are the subject of a specific decision as in reg 1.20H.  The provisions relating to Ministerial satisfaction do not exclude the essential character of reg 5.19 being that of a definitional provision and they form but one link in a chain which determines, in definitional terms, whether criteria in subclass 805 have been satisfied.

29                  The Minister submitted that although the Tribunal determined that it was precluded from reviewing whether the appointment had been approved, it went on to make a finding of fact that the nomination had been withdrawn and, consequently, determined that the applicant did not meet the requirement of subclause 805.213(3)(a).  However, the Tribunal made no reasoned finding on the issue whether there was an appointment in accordance with reg 5.19 for the purposes of cl 805.21 or an approved appointment, within the terms of reg 5.19 for the purposes of cl 805.22.  The Tribunal’s statement that it “notes that the nominating Australian company had not actually employed the visa applicant, and had withdrawn the nomination” was not couched in the language of a finding or a determination of an issue required to be resolved.  Even if it could be so viewed, it was reached after the Tribunal had precluded itself from investigating this issue by finding that it could not review “the regulation 5.19 issues as part of the visa review”.  Put another way, the Tribunal did not address the issue in accordance with the provisions of the Regulations.

30                  It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker’s findings or conclusions which contribute to the final or operative decision:  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 per Mason CJ.  The application of this principle to the Tribunal’s decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant’s visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg 5.19.

31                  I am satisfied that the Tribunal had the power to consider the reg 5.19 issues as part of its review of the decision to refuse the visa application.  The Tribunal fell into an error of law by failing to turn its mind to whether the visa criteria were satisfied by reference to the reg 5.19 definitions.  The Tribunal precluded itself from considering the reg 5.19 issues by misconstruing the regulations and determining that there was no right of review in respect of employment nominations before 1 July 1999. 

32                  The decision of the Tribunal made on 29 May 2000 will be set aside and the matter will be remitted to a differently constituted Tribunal to be determined according to law.  The Minister should pay the applicant’s costs.

Associate:

Dated:              4 April 2001