FEDERAL COURT OF AUSTRALIA

Xu v Minister for Immigration and Border Protection [2019] FCA 294

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the respondent’s costs fixed in the sum of $2,700.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This is an application for an extension of time to appeal from a decision of the Federal Circuit Court of Australia. The primary judge dismissed an application for judicial review of a decision of the former Migration Review Tribunal, now the Migration Division of the second respondent, the Administrative Appeals Tribunal, made on 18 December 2014. The Tribunal had affirmed a decision of a delegate of the first respondent, now known as the Minister for Home Affairs. The delegate had, on 17 April 2012, refused to grant to the applicants Employer Nomination (Residence) (Class BW) visas (Employer Nomination visas) pursuant to s 65 of the Migration Act 1958 (Cth).

2    The Minister opposes the grant of leave, and in any event contends that any such appeal should be dismissed. Given that this proceeding was only commenced five days late, the primary basis for opposing leave is the asserted lack of merit in the proposed appeal. In the event that the application is dismissed, the Minister seeks a costs order in a fixed amount, relying upon an affidavit of a solicitor.

3    The criteria for approval of an Employer Nomination visa was set out in Pt 857 of Sch 2 to the Migration Regulations 1994 (Cth). The first applicant, who is the primary applicant, is a citizen of China. He applied for an Employer Nomination visa in order to fill the position of cook at “Country Noodles”, in Mudgee, New South Wales (the Business). The live issues for determination by the Tribunal were whether the applicant satisfied each of cl 857.213 and cl 857.221 of Sch 2 to the Regulations, as follows:

(1)    cl 857.213(b)(ii)(B) and (C), required the applicant to have “functional English” and a diploma level qualification – he conceded that that he did not have either, so had to rely upon establishing “exceptional circumstances” for a waiver of that requirement (waiver issue); and

(2)    cl 857.221 required the employer to have successfully applied for approval of the nominated position under reg 5.19 at the time of the decision (employer nomination issue).

Waiver issue

4    In relation to the waiver issue, the Tribunal had regard to authority and published policy in considering the definition of “exceptional circumstances”. The Tribunal had regard to a number of factors, including:

(1)    the duration of employment in the proposed nominated position and relationship with the Business;

(2)    the nature of the work to be performed, having regard to the applicant’s qualifications and skills;

(3)    the transfer of the applicant’s skills to other employees;

(4)    the applicant’s ability to understand and comply with occupational health and safety requirements;

(5)    labour market issues and the impact upon the applicant's employer; and

(6)    the applicant’s efforts to learn English.

5    The Tribunal was not satisfied (at [147]-[151]), having regard to all the evidence before it, individually and cumulatively, that there were exceptional circumstances to justify waiving the requirements of cl 857.213(b)(ii)(B) and (C) of the Regulations.

Employer nomination issue

6    A prior Tribunal had rejected the Business’s application for approval of the nomination on 1 December 2014. An application for judicial review of that nomination refusal decision was dismissed on 29 September 2017: X.W. Xu & Z.C. Xu & Anor v Minister for Immigration & Anor [2017] FCCA 2330. No appeal was filed against that decision. The present Tribunal therefore found that the visa application also failed on this basis.

Before the primary judge

7    While there were eight grounds of review before the primary judge, her Honour (at [35]) characterised them as essentially raising breaches of the rules of procedural fairness, but without particularisation or any identified substance. The Minister further categorises and identifies those grounds below as alleging that:

(1)    the Tribunal misunderstood the expiry date of the regional certifying body's approval (approval certification);

(2)    the Tribunal was incorrect in its findings about the decline in turnover of the Business; and

(3)    the Tribunal member was biased.

8    After canvassing the Tribunal’s reasons at length and in some considerable detail, the primary judge found that the grounds raised in the application for judicial review did not establish jurisdictional error, making the following findings on the above issues:

(1)    Her Honour observed (at [35]) that the Tribunal accepted that the approval certification had not technically expired at the relevant time, but this did not preclude considering whether the applicant met the relevant criteria for the grant of an Employer Nomination visa. Accordingly, her Honour held that no jurisdictional error could be established upon this basis.

(2)    Her Honour found (at [36]-[37]) that the Tribunal’s conclusions as to the financial evidence about the applicant's employer were reasonably open to it on the material before it.

(3)    Her Honour held (at [41]) that there was nothing in the Tribunal's decision record to support an allegation of actual or apprehended bias.

9    The primary judge also observed that even if there had been an error in relation to the exceptional circumstances aspect of the waiver issue, that could not have had a material bearing on the final outcome because the employer nomination issue was fatal to the grant of the visas.

10    The primary judge (at [45]-[47]) considered this matter to be on all fours with the decision in Cai v Minister for Immigration and Border Protection & Anor [2018] FCA 782, in circumstances where there was no approved nomination at the time of the Tribunal’s decision. In those circumstances, the Tribunal was bound to affirm the delegate’s decision. To the extent that the applicant raised concerns about his personal circumstances, the primary judge held that the Federal Circuit Court had no power to take into account such matters, noting (at [49]-[50]) that Mortimer J addressed similar concerns in Cai.

Proposed grounds of appeal

11    The proposed grounds in the applicants’ draft notice of appeal are as follows (verbatim):

In Paragraph 13 and 16 of the federal circuit court, the Tribunal ignored applicant’s evidence about the exceptional circumstance. The exceptional circumstances existed both at time of application and at time of decision. The evidence should be viewed in a coherent manner.

I was not given a fair process in the decision making process. In Paragraph 35, the court already admitted the tribunal misinterpreted the expiry date of regional certifying body, but denied it as jurisdictional error. Both wrong decision and wrong interpretation of the certificate from regional certifying body and the financial downturn of my employer at the time when tribunal made decision caused the delay of the process and the failure of my case.

The tribunal and the court did not adopt fair process in making their decision. I alleged bias existed in the hearing of the tribunal. I did not know transcript is provided by the applicant and at the cost of the applicant, which is different from statutory law in my country. For a foreign worker from a country of a different rule of law, I think I was not given fairness in the legal process.

The extension of time application

12    It is not in doubt that the three principal considerations for an extension of time application are any explanation for the delay, any prejudice to the respondent and the prospects of success, with the last often being determinative: see, e.g., MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [3]-[6]. The Minister does not suggest any prejudice, but asserts that the explanation for delay, being a need to have more time to consult with a solicitor, was not sufficient. In this case, if there were reasonable prospects, such a short delay would not stand in the way of granting an extension of time. Accordingly, the live issue is prospects.

Proposed ground 1

13    Proposed ground 1, reproduced above, asserts that the Tribunal ignored the applicant’s evidence about exceptional circumstances. The proposed ground asserts that:

(1)    the exceptional circumstances existed both at the time of the application and at the time of the decision; and

(2)    the evidence should be viewed in a coherent manner, which is a fair enough observation.

However, what is lacking from the proposed ground is any identification of any evidence that was ignored by the Tribunal. The Tribunal’s reasons canvassed the material before it, noting that the Tribunal is only required to make findings on material questions of fact on matters that are going to be taken into account in making the decision.

14    In the absence of any identification of what evidence was not taken into account and why any failure to take that evidence into account could have made a difference to the outcome, this ground of appeal is devoid of substance and therefore devoid of merit. As the Minister points out, the Tribunal devoted in excess of 90 paragraphs to the issue of exceptional circumstances. There is simply no foundation for suggesting that the Tribunal ignored any of the applicant’s evidence, noting that not every item of evidence must be referred to in the Tribunal’s reasons. The Minister also points out, and I accept, that the Tribunal also considered whether exceptional circumstances existed at the time that the visa application was lodged and at the time of its decision.

15    In substance, as the Minister submits, this ground appears to do little more than to seek, not just impermissible merits review, but to do so at the appeal stage. This ground, therefore, has insufficient prospects to justify the grant of an extension of time.

Proposed ground 2

16    The second proposed ground of appeal raises the issue of the expiry date of the approval certification. However, as the primary judge observed, this did not preclude considering whether the applicant met the relevant criteria for the grant of an employer nomination visa. The Tribunal acknowledged that the critical issue for determination was whether the applicant satisfied the relevant criteria for the grant of an employer nomination visa. The primary judge dealt with this issue as part of [35] of her Honour’s reasons:

While [the Tribunal] considered the Applicant’s submissions regarding the validity of the relevant certifying body’s certification, it gave this matter less weight in relation to the Applicant’s case, as it was not one of the criteria for the grant of a Subclass 857 visa.

17    Her Honour concluded that no jurisdictional error was established in this respect. The Minister submits, and I accept, that the primary judge’s conclusion was correct. The criteria for the grant of an employer nomination visa relevantly required the employer to have successfully applied for approval of the nominated position under reg 5.19 at the time of the decision. It is beyond question that the application for approval of the nomination was refused on 1 December 2014. In those circumstances, the Tribunal had absolutely no alternative but to affirm the delegate’s decision to refuse the applicant an employer nomination visa. It follows that ground two is also without any merit and an extension of time cannot be granted upon that basis.

Proposed ground 3

18    The third proposed ground of appeal asserts that the Tribunal and the primary judge did not adopt a fair process in making the decision. The proposed ground adverts to the allegation of bias made below. It complains of an absence of knowledge that a transcript is required to be provided by an applicant and at his cost, which he describes as being different from the statutory law in his country. He considers that this was unfair. Whether those assertions be correct or incorrect is really not to the point, although I tend to the view that each is incorrect. What matters is that an allegation of bias is serious and must be clearly stated and properly proven.

19    This simply did not take place before the primary judge and her Honour would have been in error to have done anything other than dismiss this ground of review. In those circumstances, not only is there no error on the part of the primary judge but her Honour was plainly correct. This ground is also without merit and, accordingly, an extension of time must be refused. Given that I have concluded that none of the proposed grounds of appeal have any merit and an extension of time must be refused for each, the application for an extension of time must be refused.

20    The orders of the Court are:

(1)    The application for an extension of time be dismissed.

(2)    The applicant pay the respondent’s costs fixed in the sum of $2,700.

Associate:

Dated:    6 March 2019

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