FEDERAL COURT OF AUSTRALIA

Shi v Minister for Immigration and Border Protection [2015] FCA 131

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

introduction

1    This is an appeal from an order made by the Federal Circuit Court of Australia. The first appellant is Mrs Lei Shi and, on 1 June 2011, she made an application as the primary applicant for an Employer Nomination (Residence) (Class BW) visa. The other three appellants are the first appellant’s partner and her children respectively, and they applied for the same visa as secondary applicants. A delegate of the Minister for Immigration and Citizenship refused the applications, and the Migration Review Tribunal (“the Tribunal”) affirmed that decision on the appellants’ application for review.

2    The appellants brought an application for judicial review in the Federal Circuit Court claiming the Tribunal’s decision was void by reason of jurisdictional error. On 19 June 2014, that Court dismissed the application on the ground that it had not been shown that the Tribunal had committed a jurisdictional error: Lei Shi & Ors v Minister for Immigration & Anor [2014] FCCA 1278. The appellants appeal to this Court against that order. As the issues in this matter concern the first appellant’s eligibility for the visa, it is sufficient to refer to her appeal. I will refer to her as the appellant.

the visa

3    The relevant visa subclass is Subclass 857 Regional Sponsored Migration Scheme (“RSMS”). A primary applicant must satisfy certain criteria at the time of the application (Schedule 2, cl 857.21), and certain criteria at the time of decision (Schedule 2, cl 857.22).

4    The appellant’s nominated employer was Q & S 818 Pty Ltd trading as “Dumpling Jeff Shi Restaurant”. The employer conducted a business of providing food and beverages to patrons and it operated the business from premises in Adelaide (“the restaurant business”). The position for which the appellant was nominated was that of chef (cl 857.213(a)).

5    The criteria which were in issue in the appellant’s case were as follows:

857.213    Each of the following is satisfied:

(a)    ...

(b)    the applicant

(i)    ...

(ia)    ...

(ii)    in any other case:

(A)    unless exceptional circumstances apply, has not turned 45; and

(B)    unless exceptional circumstances apply, has functional English ...

...

6    The appellant was born in Shanghai, China on 12 February 1965. She made her application on 1 June 2011 and, therefore, she did not satisfy cl 857.213(b)(ii)(A) unless exceptional circumstances applied. Furthermore, the appellant conceded that she did not have functional English and, therefore, she did not satisfy cl 857.213(b)(ii)(B) unless exceptional circumstances applied. By way of convenient shorthand, I will refer to these requirements as “the age requirement”, and “the functional English requirement” respectively.

7    The then Department of Immigration and Citizenship, now Department of Immigration and Border Protection, had a policy dealing with the general background to the age requirement and the functional English requirement and the circumstances which may constitute exceptional circumstances for the purposes of the Migration Regulations 1994 (Cth) (“the Regulations”). The policy was contained in a Procedures Advice Manual which was referred to in the Tribunal’s reasons as “PAM3”.

The Delegate’s decision

8    With respect to the age requirement, the appellant’s case was that there were exceptional circumstances and those circumstances were that it was difficult to find a younger person who is suitably qualified and available in a regional area, and that she is essential to the operation of the restaurant business.

9    With respect to the functional English requirement, the appellant’s case was that there were exceptional circumstances, and those circumstances were (as summarised in the Tribunal’s reasons) that since the appellant had come to Adelaide, she had been undertaking English classes and her lack of functional English did not compromise her ability to work in the restaurant business as a chef. In elaboration of this point, she said that the menus at the restaurant are in Chinese and then translated into English with the assistance of the restaurant manager. Suppliers and sales persons all speak Chinese and the appellant communicates in Chinese with the owner of the business. English is not required to monitor the quality of dishes or to estimate food and labour costs. Demonstrating techniques and advising on cooking procedures to co-workers are performed in Chinese. Most, if not all, of the kitchen staff are from non-English backgrounds, and it is not appropriate to provide demonstrations or provide advice in English when the staff are not fluent in English. The training of staff is mostly done by performing practical skills and through observation.

10    The delegate found that exceptional circumstances did not apply, either in the case of the age requirement or in the case of the functional English requirement.

the tribunal’s reasons

11    The Tribunal began by setting out parts of the policy in PAM3. It then summarised the appellant’s evidence and evidence given by the owner of the restaurant business (Mrs Peijun Qian) and her husband (Mr Sun Shi).

12    The Tribunal then instructed itself as to the meaning of “exceptional circumstances” in the Regulations. By reference to the decision of the Full Court of this Court in An and Others v Minister for Immigration and Citizenship and Another (2007) 160 FCR 480 (“An v Minister for Immigration”), the Tribunal said exceptional circumstances meant circumstances which could be described as unusual, atypical or out of the ordinary. The appellant does not complain about this formulation of the relevant test.

13    The Tribunal referred to the policy in PAM3 with respect to exceptional circumstances when assessing a case where an applicant did not comply with the age requirement. It said that the policy indicated that “Australia is seeking young, highly skilled workers ... [and the age requirement] ... reflects the need to balance the economic contribution and benefits made by RSMS [Regional Sponsored Migration Scheme] visa holders, with the future costs that will be incurred by the Australian community in areas such as healthcare and aged pensions. Younger migrants generally contribute more to the economic wellbeing of the Australian community during their working lives than they cost the community in later years”.

14    The Tribunal said that it had regard to the matters referred to in PAM3 which were said to be relevant to whether there were exceptional circumstances in the case of the age requirement. In particular, it considered the following matters:

(1)    whether it is possible to find a suitably qualified person who is younger;

(2)    whether the appellant’s skills are unique such that few younger persons would have the same level of expertise; and

(3)    whether the appellant’s position is critical to the operation of the business.

15    As to the first matter, the Tribunal said that it had considered carefully the evidence of Mrs Qian and Mr Shi. Mr Shi can cook in the Shanghai cooking style. The Tribunal accepted that, as a restaurant in a regional area, the restaurant business has difficulty attracting and retaining skilled staff. Nevertheless, the Tribunal said that it was not satisfied that it would not be possible for the restaurant business to recruit another chef under 45 years of age from China or elsewhere with similar skills and expertise. The Tribunal had regard to the evidence of Mr Shi and noted that good Shanghai chefs could be recruited from Melbourne and Sydney.

16    As to the second matter, the Tribunal accepted that a head chef in a kitchen would necessarily need experience. However, the Tribunal said that it was not satisfied that the level of skill and expertise required to work as a chef in a kitchen would normally require a person with skills and experience acquired over many years such that few people under 45 would have that level of skill.

17    As to the third matter, the Tribunal accepted that the appellant is a skilled and valued employee of the restaurant business. However, the Tribunal said that it was not satisfied that the appellant is critical or essential to the operation of the business. The Tribunal said that Mr Shi is a chef with 20 years’ experience and is able to cook in the traditional Shanghai style, although he may lack modern techniques. Furthermore, the Tribunal noted that there is at least one other sous chef who works in the kitchen and is able to cook in the Shanghai style.

18    The Tribunal concluded its consideration of the age requirement in the Regulations and whether there were exceptional circumstances in relation to that requirement by saying that it did not consider that the appellant’s skills were so unique, or her position so essential to the restaurant business, as to outweigh concerns about her age and the need to balance the economic contributions and benefits made by RSMS visa holders against the future costs incurred by the Australian community in areas such as healthcare and aged pensions.

19    The Tribunal then turned to consider whether there were exceptional circumstances in the case of the functional English requirement. The Tribunal first considered the reasons for the requirement as revealed in the Department’s policy. It noted that the requirement was designed to ensure RSMS visa holders were not only highly skilled, but also able to transfer their skills to the Australian workforce. The Tribunal said that, in addition, there are demonstrably better outcomes for migrants with higher levels of English proficiency.

20    The Tribunal, although acknowledging that the appellant had made some effort to learn English while in Australia, said that it was concerned by her poor level of English. The Tribunal noted that the restaurant business’ past and current staff were Mandarin speaking and that the appellant could train them. However, her lack of functional English precluded her from passing on her skills to English speaking employees in the future. The Tribunal said that it found it unacceptable that non-Cantonese [sic non-Mandarin] speakers could be precluded from the workplace because they could not communicate with the head chef. The Tribunal also said that it had a real concern about the appellant’s ability to notify customers or English speaking staff about the nature of any emergency, or to identify ingredients which may give rise to serious allergic reactions by customers. The Tribunal said that these matters outweighed the sponsor’s evidence of the difficulties in attracting experienced chefs to the area. The Tribunal said that the appellant’s circumstances were not sufficiently unusual or out of the ordinary to constitute exceptional circumstances for the purposes of cl 857.213(b)(ii)(B).

21    The Tribunal concluded that the appellant did not satisfy either cl 857.213(b)(ii)(A) or cl 857.213(b)(ii)(B).

The application for judicial review in the federal circuit court

22    The appellant relied on five grounds in her application for judicial review.

23    The first ground was that the Tribunal committed jurisdictional error “in relation to its test” as to whether exceptional circumstances applied to “waive” the age requirement and the functional English requirement because it considered the exceptional circumstances by reference to a hypothetical employer whose staff were English speakers rather than the actual employer whose staff spoke Mandarin. The ground contains particulars in support of this allegation. However, I do not need to set those particulars out at this stage. The Federal Circuit Court Judge rejected this ground. He said that the Tribunal had regard to the fact that only Mandarin was spoken at the restaurant business, but said that this was insufficient to constitute exceptional circumstances. The Judge said that the appellant had not identified a jurisdictional error in connection with this ground.

24    The second ground of judicial review was that the Tribunal took into account matters that were not relevant to the existence or otherwise of exceptional circumstances. These matters were identified by the appellant as the following:

(1)    the need for the appellant to be able to transfer her skills to non-Chinese staff when there was no evidence that the employer had any non-Chinese staff and a finding of the Tribunal that she could not do so;

(2)    the need for the appellant to explain cooking ingredients in English;

(3)    the need for the appellant to communicate with non-English staff when there was no evidence that there were staff who did not speak Mandarin; and

(4)    the situation of a person without a functional level of English working in an environment where those around her may speak only English when, in fact, the staff employed in the restaurant business spoke Mandarin.

25    As part of this ground, the appellant identified the matters which she contended were relevant to the question of exceptional circumstances in her case and they were the inability of her employer to find a suitably qualified chef specialising in modern Shanghai cooking prepared to work in South Australia, and the fact that her basic, rather than fully functional English, was sufficient for her to work in an environment in which all the staff spoke Mandarin. The Judge said that the Tribunal took into account the matters referred to in this and the previous paragraph and gave them as much weight as they deserved. He said that it was for the Tribunal to balance these and other matters in order to come to a decision.

26    The third ground of judicial review was that the Tribunal committed jurisdictional error in having regard to a matter which was not established on the evidence, namely, that it was possible to find younger persons who had the skills and experience of the appellant. The appellant contended that there was no reason to reject the employer’s evidence because there was no evidence to the contrary. The Judge rejected this ground saying that it was open to the Tribunal to make the challenged finding, and that the Tribunal was under no obligation to accept the evidence of the employer.

27    The fourth ground of judicial review was that the Tribunal had regard to three considerations which were irrelevant in terms of whether there were exceptional circumstances. These matters were as follows:

(1)    the Tribunal considered what the employer had done to ensure that the appellant was aware of her responsibilities under occupational health and safety legislation. That matter was irrelevant to the question of whether there were exceptional circumstances;

(2)    the Tribunal referred to the fact that the appellant’s annual salary was approximately $48,000 and said that that did not appear to differentiate her from other regular kitchen staff. That matter was irrelevant to the question of whether there were exceptional circumstances; and

(3)    the Tribunal said that the appellant should have the responsibility of dealing with emergencies in English. That matter was irrelevant to the question of whether there were exceptional circumstances because it raised questions of the internal management of the business.

As to the first two matters, the Judge explained what the Tribunal had done and said that neither matter formed part of the Tribunal’s reasons. As to the third matter, the Judge said that this was a proper matter for the Tribunal to take into account.

28    The fifth and final ground of judicial review was that the Tribunal committed jurisdictional error by erroneously confining its consideration of what could constitute exceptional circumstances by reference to the policy in PAM3 and not applying the “plain” meaning of the Regulations. The Judge said that the Tribunal was not bound to find exceptional circumstances and he said that it could not be said that the Tribunal’s conclusion could not be sustained. In support of his conclusion, the Judge referred to certain observations made by Lindgren J in An v Minister for Immigration at 486-488 [31], [33]. Those paragraphs are set out below.

the appeal to this court

29    In broad terms, the grounds of appeal to this Court reflect the five grounds in the application for judicial review. Ground 1 in the notice of appeal broadly reflects the fifth ground in the application for judicial review, grounds 2 a. and b. reflect the first ground, ground 2 c. reflects the second ground, ground 2 d. reflects the third ground, and ground 2 e. reflects the fourth ground. The argument will be easier to follow if I deal with the various matters by reference to the ground upon which it is said by the appellant that there has been jurisdictional error. In approaching the matter in that way, I bear in mind that errors said to give rise to jurisdictional error can often be described in more than one way. For example, the error alleged in ground 1 might be described as the unlawful application of a policy, or a misconstruction of the Regulations, or taking into account irrelevant considerations, or failing to take into account relevant considerations.

The alleged unlawful application of PAM3 (ground 1)

30    The first ground of appeal is that the Judge erred in not holding that the Tribunal had committed a jurisdictional error by applying the criteria in the policy in PAM3 in a way that precluded a proper consideration of whether there were exceptional circumstances within the Regulations. As I understood it, the appellant’s argument was not that the Tribunal could not have regard to the policy in PAM3, but that the Tribunal erred in considering itself bound to conclude that matters not considered exceptional circumstances under the policy could not be considered exceptional circumstances under the Regulations.

31    PAM3 does not constitute directions by the Minister under s 499(1) of the Migration Act 1958 (Cth). As Gray J said in El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 142 FCR 43 at 55 [45], PAM3 is not a binding document, and it is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations.

32    In support of her argument, the appellant relied on Zhu & Ors v Minister for Immigration & Anor [2013] FCCA 1490 (“Zhu v Minister for Immigration”) where the Federal Circuit Court held that the Tribunal had erroneously narrowed its consideration of an applicant’s circumstances under the Regulations by reference to the Department’s policy. The Tribunal had excluded from its consideration the circumstance that nobody in the workplace spoke English, “whereas the ordinary definition of ‘exceptional circumstances’ does not preclude that consideration”. I will refer to Zhu v Minister for Immigration again later in these reasons.

33    It is well-recognised that it is permissible for an administrative decision-maker to have a policy and to have regard to it for the purposes of making a decision. The existence of a policy assists in achieving the desirable goal of treating similar cases in a similar fashion. However, the policy cannot be applied too rigidly, or without having regard to the particular facts of the case, or in a way which constrains (or expands) the statutory power in a manner not authorised by the words of the empowering provision (British Oxygen Co Ltd v Minister of Technology [1970] 3 WLR 488; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420 per Bowen CJ and Deane J; (1979) 24 ALR 577 at 590-591; [1978-1980] 2 ALD 60 at 69-71; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206-208 per French J (as his Honour then was) and Drummond J). In his discussion of the relevant principles on the rehearing ordered by the Full Court in the Drake litigation, Brennan J (as his Honour then was) identified the benefits of a policy to good administrative decision-making, but he also emphasised the need for the policy to be consistent with the statute and for the discretion not to be so truncated by the policy as to preclude consideration of the merits of specified classes of case (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] ALD 634 at 640). His Honour said that there is a distinction between “an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power” (at 641).

34    As I have said, a policy may be unlawful because it constrains the exercise of a statutory discretion in a manner not authorised by the words of the statute. An example of this is Applicant S 214 of 2002 v Attorney-General (Cth) (2004) 40 AAR 155 where Hely J held that the relevant policy was unlawful because it purported to restrict the circumstances giving rise to “hardship” within the statutory provision to financial hardship when there was no warrant for restricting the statutory provisions in that way (see also Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150).

35    A policy, or part of a policy, may impermissibly constrain the exercise of a statutory power and be applied by the decision-maker in a way that has that effect. That would give rise to jurisdictional error. However, there would be no jurisdictional error even if the policy was unlawful, unless the decision-maker applied the policy in a way that impermissibly constrained his or her exercise of the statutory power. I mention these matters because in this case it is necessary to consider both of these issues.

36    For completeness, it may be noted that a policy may be lawful in that it does not expressly state that the matters referred to in it are exhaustive, but applied impermissibly by a decision-maker who treats them as exhaustive.

37    I turn now to mention the main cases to which I was referred.

38    In Zhu v Minister for Immigration, the Tribunal had had regard to PAM3 (as it was at the time of the decision) in considering whether there were exceptional circumstances in relation to the age requirement and in relation to the functional English requirement. The Tribunal decided that exceptional circumstances did not apply. On an application for judicial review, the Federal Circuit Court held that the Tribunal had committed jurisdictional error in a number of respects, including the following:

(1)    the Tribunal failed to take into account a relevant consideration in relation to the functional English requirement, namely, whether the employer’s business would suffer if the applicant was not retained ([29]);

(2)    the Tribunal applied the policy in PAM3 (which seems to have been in different terms to the policy in PAM3 in this case) in relation to the functional English requirement and the policy excluded a relevant consideration in relation to exceptional circumstances, namely, the fact that nobody else in the workplace spoke English (at [32]-[34]).

39    In Jia v Minister for Immigration & Anor [2011] FMCA 422, the Federal Magistrates Court held that the Tribunal had committed a jurisdictional error in the course of considering exceptional circumstances under cl 856.213(b)(ii) (the need for the applicant to have vocational English unless exceptional circumstances applied) because, although it had thoroughly considered the applicant’s claim as against the PAM3 guidelines, it had not considered the importance of the applicant to the employer’s business.

40    In Jaravaza & Ors v Minister for Immigration and Citizenship and Anor (2013) 276 FLR 32, the Federal Circuit Court held that the Tribunal had committed a jurisdictional error by applying PAM3 to the issue of exceptional circumstances in the case of the age requirement where the policy was inconsistent with the Regulations (at 46, [81]) in drawing a distinction between those applicants aged between 45 and 60 and those applicants aged over 60 (at 46, [88]).

41    In An v Minister for Immigration, the Full Court of this Court considered the meaning of exceptional circumstances in the case of a requirement for vocational English for a subclass 856 visa (Employer Nomination (Residence) (Class BW) visa). The legislative provisions were not identical to the legislative provisions in issue in this case. One of the questions before the Court was whether the “appointment” (or position) was exceptional. The case is of assistance because the judges comprising the majority (Lindgren and Emmett JJ) made observations about the relevance of the language spoken in the workplace in the case of a vocational English requirement and the question of whether there were exceptional circumstances.

42    Lindgren J said (at 486-487, [29]-[33]):

The broad and general policy to which I referred is one of favouring the English language, whether at the functional or the vocational level. While the position in this particular business is exceptional in respect of language in one sense, in my view it is a sense that is irrelevant to the broad and general policy underlying the vocational English requirement.

There may be many small businesses, such as restaurants, in which the present owners and employees speak, to varying degrees of fluency, a foreign language, such as Italian, Greek, Chinese, and so on. Is it to be said that an employment vacancy in such a business would necessarily be exceptional in respect of the vocational English requirement? I think not. Such a view would tend to facilitate the perpetuation of foreign language workplaces, contrary to the policy underlying the requirement.

In other words, a particular employment position is not necessarily rendered exceptional in relation to that policy simply by past choices made by the employer to employ only persons who can speak a particular foreign language.

There may not be many positions that are exceptional when assessed against that broad policy, but the alternative construction is wrongly based on the linguistic composition of a particular workforce for the time being rather than on something connected with the nature of the position itself.

The exception appears to be directed to situations in which the employee will not be working with others in a conventional workplace situation. Perhaps it was such a consideration that influenced the author of the guidelines to suggest that religious workers, whose job, ex hypothesi, requires them to converse in a particular foreign language, might be within the exception.

43    Emmett J’s observations were to similar effect (summary of the Tribunal’s findings at 494-495, [71]-[74], summary of the appellant’s submissions on the appeal at 497-498, [89]-[91], and his Honour’s conclusion at 499, [98]).

44    Finkelstein J in dissent said that the fact that the ability to speak English in the applicant’s workplace was, for all practical purposes, useless both at the time of the hearing and in the foreseeable future could be an exceptional circumstance (at 504, [116]-[119]).

45    The appellant submitted that parts of the policy in PAM3 were invalid because they impermissibly constrained the meaning of “exceptional circumstances”, and that the Tribunal applied the policy thereby applying a test for exceptional circumstances narrower than that contained in the Regulations.

46    In relation to the age requirement, the Tribunal set out passages in the policy in its reasons. Of present significance are the following:

17.2    Exceptional circumstances on age grounds

In considering whether exceptional circumstances apply to an applicant who is 45 years or older, officers should consider whether:

•    It is not possible to find a suitably qualified person to fill the position who is younger than the applicant.

•    The duties of the position are unique or so specialised that few, if any, persons younger than 45 years old would have the same level of expertise.

...

Other considerations are whether the position is critical to the operation of the nominating employer’s business ...

(Emphasis added).

47    In referring to the possibility of the decision-maker requesting information from an applicant’s employer, the policy speaks of the employer showing that the applicant’s position is essential to the business.

48    The appellant’s submission is that the emphasised words mean that the policy goes too far in terms of what it requires an applicant to show for exceptional circumstances in the case of the age requirement. The appellant argued, by way of example, that the fact that an applicant’s position is important, albeit not critical or essential to his or her employer’s business, might, with other circumstances, constitute exceptional circumstances. In support of her argument that the Tribunal applied the impermissible standard fixed by the policy, the appellant referred to the fact that the Tribunal read certain passages of the policy to her in the course of taking her evidence, and the fact that in identifying the relevant matters, the Tribunal used the language of the policy (see, for example, [14]) above.

49    I reject this submission for the following reasons. First, it is not obvious to me that the policy does unlawfully constrain the meaning of “exceptional circumstances”. For example, the introductory words to paragraph 17.2 refer to what the officers of the Department “should consider”. Secondly, and in any event, I do not think the Tribunal applied the policy in the way the appellant suggested. Early in its reasons, the Tribunal made it clear that it understood that the “Guidelines” in the policy did not have, as the Tribunal put it, “the status of legislative requirements”. Furthermore, the Tribunal instructed itself as to the meaning of “exceptional circumstances” in a manner which makes it clear that it was not rigidly applying the policy (see [12] above). Finally, and most importantly, the Tribunal expressed its conclusions in a way that satisfies me that it conducted a balancing exercise, rather than one involving the mechanical application of the requirements of the policy. I mean by that, that the Tribunal did not exclude from its consideration of whether there were exceptional circumstances, the value of the appellant’s skills, or the extent to which she might be considered important to the business. The Tribunal said (at [49]):

Having regard to all the circumstances the Tribunal considers the applicant’s skills are not so unique and nor is her position essential to the business, such as to outweigh concerns about her age and the need to balance the economic contributions and benefits made by RSMS visa holders against the future costs incurred to the Australian community in areas such as healthcare and aged pensions.

(Emphasis added).

50    In relation to the functional English requirement, the appellant pointed to the following passages in the policy which were set out in the Tribunal’s reasons:

Most, or all, of the following should be considered in any assessments of exceptional circumstances for the English requirement:

...

•    how the applicant might transfer their skills to, or otherwise train, other employees regardless of whether the current staff are from the same, or similar, cultural background as the applicant as this may change due to staff turnover or anti-discrimination concerns

•    the applicant’s ability to understand and comply with OH&S requirements, deal with work emergencies, call for emergency assistance, and communicate with emergency workers when they are alone. A certificate of attendance for an OH&S course should only be considered if it includes an assessment of the applicant’s understanding of the course material, regardless of whether an interpreter was present or not (this means that attendance at a course is not sufficient evidence of the applicant’s level of understanding)

...

Claims that would not be considered acceptable evidence to support requests for

exceptional circumstances for English include:

•    the applicant will be working solely, or mostly, with workers from the same cultural background and therefore does not require Functional English to communicate with work colleagues. Even for people with the same or similar backgrounds, there may be regional language variations or dialects that could cause misunderstandings within the workplace, and the composition of the workforce cannot be guaranteed due to staff turnover

•    OH&S signs and other visual aids are displayed in languages other than English. This does not necessarily demonstrate an understanding of OH&S issues and the applicant’s ability to deal with any problems that may arise

•    The applicant has attended OH&S courses, with or without the presence of an interpreter. Attendance in itself does not demonstrate an understanding of OH&S issues.

...

51    Based on these passages, the appellant advanced two submissions. First, she submitted that the statement or suggestion in the policy that the fact that an applicant and his or her co-workers came from the same cultural background and therefore the applicant does not require functional English to communicate with work colleagues is not an exceptional circumstance unlawfully constrains the meaning of exceptional circumstances. She submitted that there is no reason why that matter could not constitute an exceptional circumstance. Secondly, the appellant submitted that occupational, health and safety requirements were irrelevant to the question of exceptional circumstances and therefore the policy impermissibly identified an irrelevant consideration.

52    I reject the first submission. First, it is not clear to me that the policy unlawfully constrains the meaning of “exceptional circumstances” in the manner alleged in light of the comments of the majority in An v Minister for Immigration. Secondly, and in any event, I do not think the Tribunal applied the policy in an impermissible way. Without repeating them, I refer to the first two matters identified in paragraph 49 above in connection with the submission that the Tribunal had applied the policy in an impermissible way. In addition, the Tribunal’s conclusions are expressed in terms of a balancing exercise, rather than in terms of the mechanical application of the requirements of the policy. The Tribunal said (at [54], [56], [57]):

The applicant claimed her lack of functional English was not an impediment to her work because she only worked with Mandarin staff in the kitchen and had never needed to train staff in English. She conceded she would only be able to train an English speaker through demonstrating the work required. Whilst acknowledging the past and current staff are Mandarin speaking, the Tribunal is concerned that the applicant’s lack of functional English precludes her from passing on skills to English speaking employees in the future. The Tribunal finds it unacceptable that non-Cantonese [sic] speakers could be precluded from the workplace because they could not communicate with the head chef.

...

The Tribunal has taken into account the sponsor’s evidence of the difficulties in attracting experienced chefs to the area. However, it is the Tribunal’s view that this is outweighed by the concerns of the applicant’s ability to transfer her skills and respond to an emergency.

Having considered the matters above, the Tribunal finds that exceptional circumstances do not apply in relation to the English requirements 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 purposes of cl.857(b)(ii)(B) [sic].

(Emphasis added).

53    The Tribunal’s observations in the first of these paragraphs does not support a conclusion that it excluded the language spoken in the workplace as a relevant consideration. The Tribunal took that matter into account, but it also took into account the other matters about which it said it was concerned. The Tribunal was not bound to conclude that the language spoken in the workplace was an exceptional circumstance.

54    I also reject the second submission. For reasons I give below, I do not think that the Tribunal took into account occupational health and safety matters (except to the extent that they overlapped with dealing with emergencies). In any event, in my opinion, it is a matter a decision-maker may take into account, but is not bound to do so.

55    Ground 1 of the notice of appeal must be rejected.

The alleged error of failing to take into account relevant considerations and of taking into account irrelevant considerations (grounds 2 a., b., c. and e.)

56    If the Tribunal had considered the question of whether there were exceptional circumstances by assuming that the employees in the appellant’s workplace spoke English (and not Mandarin) or had ignored the evidence that past and current staff are Mandarin speaking, then that would have been an error. However, the Tribunal did not do that. It expressly acknowledged that past and current staff in the restaurant business spoke Mandarin. I have already set out paragraph 54 of the Tribunal’s reasons (see paragraph 52 above). The Tribunal went on in paragraph 55 of its reasons to say:

The Tribunal has real concern about the ability of the applicant to notify customers or English speaking staff about the nature of any emergency or to identify ingredients which may pose serious allergic reactions to customers. The Tribunal has taken into account the evidence that the applicant is never alone in the workplace so she would never need to deal with an emergency situation or take orders from customers. The Tribunal has difficulty accepting this submission, that as the head chef the applicant should have no responsibility to respond appropriately and raise the alarm, including alerting customers, in the event of a medical emergency or fire at the restaurant, because she can rely on other English speakers around her.

57    It seems to me that, in paragraphs 54 and 55 of its reasons, the Tribunal was acknowledging the matters advanced by the appellant as relevant to whether there are exceptional circumstances, but it was also identifying the limits to, or qualifications on, those matters.

58    At times, the implication of the appellant’s argument seemed to be that the Tribunal was bound to find exceptional circumstances in light of the fact that the appellant’s fellow employees spoke Mandarin. To the extent that that proposition underlies the appellant’s argument, it must be rejected.

59    The appellant next contended that, in considering whether there were exceptional circumstances, the Tribunal should have “focused” on the needs of the appellant’s employer and the appellant’s circumstances but, instead of doing that, the Tribunal focused, or at the very least, took into account a number of irrelevant matters.

60    First, the Tribunal considered that it would be necessary for the appellant to transfer her skills to non-Chinese staff in circumstances where there were no non-Chinese staff. To some extent, this ground overlaps with the previous grounds. In my opinion, it was not irrelevant for the Tribunal to take into account the fact that the appellant’s lack of functional English precluded her from passing on skills to English speaking employees in the future, and to hold the opinion that it was unacceptable that those who did not speak Mandarin could be precluded from the workplace because they could not communicate with the head chef. As part of this ground, the appellant also submitted that the Tribunal erred in concluding that the appellant could not pass on her skills to English speaking employees in the future. She referred to her “basic” English, the fact that she was learning English, and the fact that she could pass on her skills by practical demonstrations and with the help of translators. The Tribunal referred to these matters, and it was aware of the appellant’s circumstances and her attempts to learn English. In my opinion, it was entitled to make the finding it did.

61    Secondly, the appellant said the Tribunal considered that it was essential for her to explain the ingredients in the dishes in English. The Tribunal did ask the appellant about that topic and, particularly, how she would communicate with a customer who had an allergy and was trying to determine particular ingredients. In the result, the Tribunal went no further than saying that it had a real concern about the ability of the appellant to identify ingredients which may pose the threat of a serious allergic reaction from a customer. That was a finding that was open to it.

62    Thirdly, the appellant submitted that the Tribunal erred in finding that she would need to communicate with non-English staff in circumstances where there was no evidence that there were any staff who did not speak Mandarin. I do not think that the Tribunal made a finding in these terms. The point is really a similar one to the point discussed (and rejected) above (at [60]).

63    Finally, the appellant submitted that the Tribunal considered the “situation” of a person without functional English working in an environment where those around her may speak only English. The Tribunal did not make this error and I repeat what I said earlier.

64    The appellant next contended that the Tribunal had regard to three irrelevant considerations in reaching its decision.

65    First, the appellant submitted that the Tribunal took into account the steps that had been taken in relation to occupational health and safety. The appellant submitted that this was the employer’s responsibility, not the appellant’s, and that the matter was irrelevant. It is not clear to me what the appellant is referring to. The Tribunal did ask Mrs Qian what she had done to ensure the appellant was aware of her responsibilities under occupational health and safety legislation. However, the matters it took into account are those identified in paragraph 55 of its reasons (see paragraph 56 above), and none of those matters are irrelevant considerations.

66    Secondly, the appellant submitted that the Tribunal took into account the fact that the appellant’s salary was $48,000 per annum, and that that did not distinguish her from less experienced staff. The Tribunal did mention this in its “Claims and Evidence” section, but it formed no part of its findings which were made on the basis that she was the head chef.

67    Thirdly, the appellant submitted that the Tribunal took into account that the appellant should have the responsibility of dealing with emergencies in English. This raised questions of the internal management of the business, said the appellant, and was irrelevant. The Tribunal dealt with this topic of emergencies in paragraph 55 of its reasons. Nothing it identified in that paragraph was an irrelevant consideration.

The alleged error with respect to recruiting younger staff with similar skills and experience (ground 2 d.)

68    The appellant submitted that the Tribunal committed jurisdictional error by having regard to a matter which was not established by the evidence, being that the Tribunal believed that it was possible for the employer to find young persons who had the skills and experience of the appellant. She submitted that there was no reason to reject the employer’s evidence (referred to below) because there was no evidence to the contrary.

69    It is not immediately apparent what type of jurisdictional error the appellant is alleging in these submissions. The way in which it is expressed in the notice of appeal suggests an affinity with the irrelevant considerations ground of jurisdictional error, but I do not think that that is the true purport of the ground because the consideration of whether younger staff with similar skills and experience can be recruited is clearly a relevant consideration.

70    The true purport of the ground may be that there was no evidence to support a finding that younger staff with similar skills and experience could be recruited. The difficulty the appellant faces in making out this ground lies in the actual finding made by the Tribunal. The Tribunal found that it could not be satisfied that it would not be possible to recruit another chef under 45 years of age from China or elsewhere with similar skills and experience. It is not possible to apply the no evidence ground to a conclusion of this nature: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]-[13]; NAVK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCAFC 124 at [32]-[33]. Even if this conclusion is not correct, or it is possible to characterise the appellant’s claim in a way which may give rise to jurisdictional error (e.g., a failure to address the appellant’s case or a failure to address evidence which was material), I think this ground fails for the reasons which follow.

71    The Tribunal appears to have accepted that the appellant had experience as a chef with senior cooking certificates, and that she can cook in the Shanghai style. It referred to evidence from Mr Shi who said that the only good Shanghai chefs were in Melbourne and Sydney, and that it was difficult to find a good Shanghai chef in South Australia. Having regard to the findings later in its reasons, the Tribunal appears to have accepted that evidence from Mr Shi.

72    The Tribunal found that, as a restaurant business in a regional area, the business has difficulty in attracting and retaining skilled staff. The Tribunal said that it had regard to the evidence of Mr Shi, and that it noted that good Shanghai chefs could be recruited from Melbourne or Sydney. The Tribunal then said, in the context of exceptional circumstances and the age requirement, that it was not satisfied “it would not be possible to recruit another chef under 45 years of age from China or elsewhere with similar skills and experience”. Later in its reasons when dealing with exceptional circumstances and the functional English requirement, the Tribunal said it had taken into account the employer’s evidence of the difficulties in attracting experienced chefs to the area.

73    The appellant submitted that there were two specific errors in the Tribunal’s approach. First, it erroneously inferred from Mr Shi’s evidence that good Shanghai chefs could be recruited from Melbourne and Sydney when all Mr Shi said was that the only good Shanghai chefs were in Melbourne or Sydney. Secondly, and related to the first submission, the appellant submitted that the Tribunal overlooked specific evidence of unsuccessful attempts by the employer to recruit a chef specialising in Shanghainese cuisine.

74    As to the first matter, I think that the Tribunal did find that good Shanghai chefs could be recruited from Melbourne and Sydney. That was an inference drawn by the Tribunal. It could only be a finding at a fairly general level because much would depend on conditions, especially the level of salary offered. There was no evidence about recruiting chefs from China.

75    As to the second matter, the specific evidence to which the appellant referred is not easy to characterise and assess in any precise way from the documents. The evidence was said to establish that an advertisement for the position was placed on an online advertising website on two occasions in 2010. One application was received and the applicant was not considered suitable because he or she had no experience in Shanghainese cuisine. In addition, the position was posted with a local employment agency, Maxima Joblink, in June 2010 and October 2010, and no suitable candidates were found. On 17 May 2011, Maxima Joblink advised that it did not have any chefs on its books at that time.

76    I was not referred to any evidence that might explain the precise weight that might be put on this advertising. For example, there was no evidence to which I was referred as to how widely Maxima Joblink operated.

77    Although the Tribunal did not refer to this evidence in express terms, it said that it had regard to the evidence of Mrs Qian and Mr Shi as to the difficulty the restaurant business has in attracting and retaining staff. As I have said, it made a finding that the restaurant business, as a business in a regional area, had difficulty in attracting and retaining skilled staff, and I think it reasonable to infer that, in so finding, it relied on the oral and documentary evidence. I do not think that the Tribunal was compelled by the evidence to make a broader finding.

78    In my opinion, the conclusion reached by the Tribunal was open to it, and was not contrary to the evidence.

79    Ground 2 of the notice of appeal must be rejected.

conclusion

80    The appeal must be dismissed.

Associate:    

Dated:    27 February 2015