FEDERAL COURT OF AUSTRALIA Celik v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1529 MIGRATION – permanent residence visa – application by one member of family – based on exceptional record of achievement in occupation of wood-fired baking in Turkish restaurant – whether Migration Review Tribunal erred in failing to deal with case of children born after application – whether error in expressing doubt as to an item of evidence without rejecting it – whether finding that there was no evidence to satisfy Tribunal amounted to a finding that there was no evidence at all – whether open to Tribunal to take into account level of salary of primary applicant Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) item 805.212(7) Minister for Immigration & Multicultural Afffairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [82] – considered NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [636] – [639] – followed VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071 at [20] – referred to SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 at [24] – [26] – referred to R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615 – referred to ZEYNAL CELIK, SEVGI CELIK, AHMET CELIK AND MAHMUT CELIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 32 of 2002 GRAY J 10 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 32 of 2002 BETWEEN: ZEYNAL CELIK FIRST APPLICANT SEVGI CELIK SECOND APPLICANT AHMET CELIK THIRD APPLICANT MAHMUT CELIK FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE OF ORDER: 10 DECEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 32 of 2002 BETWEEN: ZEYNAL CELIK FIRST APPLICANT SEVGI CELIK SECOND APPLICANT AHMET CELIK THIRD APPLICANT MAHMUT CELIK FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE: 10 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature of the proceeding 1 This is an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, "the Minister"), and is the respondent in this proceeding. The delegate had decided to refuse to grant to the four applicants in this proceeding visas pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 On 13 January 1999, the first applicant lodged with the Department of Immigration and Multicultural Affairs ("the Department") an application to remain permanently in Australia. The application named the first applicant, his wife (the second applicant) and the two children they then had (the third and fourth applicants). It indicated that they were expecting another child shortly afterwards. The application was on the basis that the first applicant was in a skilled occupation and had been nominated under the Employment Nomination Scheme. 3 At the same time, there was lodged in the Department a form entitled "Employer nomination for a permanent appointment", completed by Ali Korkmaz, owner of a business called the Turkish Kitchen. This form indicated that the first applicant was employed at the Turkish Kitchen to cook Turkish-style food in a wood-fired oven. 4 The employer nomination form was sent for comment by the Department of Employment, Workplace Relations and Small Business, which did not support the nomination. The delegate requested further information relating to the employer nomination. Further information was supplied but, on 20 April 1999, the delegate made a decision not to approve the employer nomination for a permanent appointment. Further, on 23 April 1999, the delegate made a decision to refuse to grant the first applicant a visa, on the basis that he was not the subject of an approved employer nomination and did not show that he was highly skilled. Accordingly, the delegate refused to grant a visa to any member of the family. 5 The first applicant applied for review of this decision by the Migration Internal Review Office. The Migration Act was amended to abolish that office. By a transitional provision, the decision became reviewable by the Tribunal. 6 On 20 December 2001, the Tribunal published its decision and its reasons for decision. It affirmed the decision not to grant visas, finding that the four applicants were not entitled to the grant of the visas they sought. It is that decision of the Tribunal that is the subject of this proceeding. 7 In the original application to the Court, there were six named applicants. The fifth and sixth applicants were children of the first and second applicants, born after the original application for a visa, but before the decision of the Tribunal. At the hearing, counsel for the applicants conceded that those two children could not be parties to the proceeding because they had not been applicants before the Tribunal. See ss 478, 479 and 486C of the Migration Act. I therefore ordered that they cease to be parties to the proceeding. The original application also named as a respondent the Tribunal. The effect of s 479 of the Migration Act is that, in a proceeding in the Court not instituted by the Minister, the Minister is the only correct respondent. Accordingly, without formal order, the parties ceased to include the Tribunal in the title to the proceeding when subsequent documents were filed. In particular, there was no reference to the Tribunal in the amended application filed on 18 April 2002, so I have acted on the footing that the applicants no longer seek relief against the Tribunal. The criteria for the visa 8 Item 1119 in Sch 1 to the Migration Regulations 1994 (Cth) ("the Migration Regulations") provided for a class of visa known as General (Residence) (Class AS). Item 1119(4) provided that this class of visa had six subclasses, one of which was subclass 805 (Skilled). The criteria for a subclass 805 (Skilled) visa were found in item 805 of Sch 2 to the Migration Act. Item 805.2 contained a note to the effect that the primary criteria must be satisfied by at least one member of a family unit and the other members of the family unit need satisfy only the secondary criteria. In item 805.21 were to be found various criteria to be satisfied at the time of application. The Tribunal considered a number of these in relation to the first applicant and found them to be inapplicable. With the exception of item 805.212(7), there is no issue in this proceeding as to the correctness of the application of those criteria. The Tribunal also found that the first applicant could not meet the requirement of item 805.213(3), which relates to nomination by an employer in respect of an appointment in the business of that employer, because the employer nomination had not been approved. 9 The case therefore turned on the question whether the first applicant satisfied item 805.212(7), which, so far as is relevant, provided: "An applicant meets the requirements of this subclause if: (a) the applicant: (i) has an exceptional record of achievement in an occupation, profession or activity; and (ii) would be an asset to the Australian community; and (iii) would have no difficulty obtaining employment or becoming established independently in Australia in that occupation, profession or activity". 10 The Tribunal conducted a hearing on 30 July 2001, using a video-link between Perth, where the first applicant was and Brisbane, where the Tribunal member was. The first applicant gave sworn evidence through an interpreter. 11 In addition, the Tribunal had before it a considerable amount of documentary evidence, including: · a certificate indicating that the first applicant had been employed as a restaurateur's apprentice at a kebab house in Turkey from 7 January 1982 to 10 February 1986. · a certificate indicating that the first applicant had been employed as a chef at a restaurant in Turkey from 10 February 1986 to 26 February 1988. · a certificate indicating that the first applicant had been employed as a baker (wood oven) at a bakery in Turkey from 5 March 1988 to 14 January 1997. · a Certificate of Mastership from the Tradesman and Artisans Confederation of Turkey, dated 10 September 1992, awarded to the first applicant for the branch of occupation "restaurant". · a letter from the first applicant setting out his employment history and the areas in which he is skilled, and a statement that he did not think that the Turkish Kitchen could find a qualified professional, such as himself, in Australia. · a letter from a migration agent, containing information about the training and techniques for wood-oven cooking and attaching a number of newspaper advertisements inserted by the Turkish Kitchen, seeking a wood-oven cook and offering an annual salary of "about $29,000". · a letter of employment from the Turkish Kitchen to the first applicant, confirming his position as the sole wood-oven cook for three years at an annual salary of $28,600. · a letter from the Department of Employment, Workplace Relations and Small Business, commenting that the salary level of $28,600 was well below current average weekly earnings ($38,000) and not indicative of a position which was highly skilled, and that the job description provided by the nominating employer was also not consistent with a highly skilled position. · an annexure to the application to the Tribunal, which included a statement that the actual salary package amounted to $40,000, made up of $28,600 salary, $5,200 accommodation and $5,200 food, in addition to 7 per cent superannuation. · an assessor's report of John Pass of Catering Co-Ordinates, indicating that he had interviewed the first applicant, observed him at work and sampled food prepared by him, and expressing the opinion that the first applicant "is a competent Tradesperson Cook within the scope of the Certificate III in Hospitality (Commercial Cookery) and should be recognised accordingly." · a written statement of the first applicant, setting out his experience and his capabilities. · a written statement of Erdinc Korkmaz, the owner of the Turkish Kitchen from August 1993 to May 2000 as to the first applicant's experience and capacities. · a written statement of Erol Korkmaz, the owner of the Turkish Kitchen from May 2000, as to proposals to expand the business and the importance of the first applicant to those plans. The Tribunal's reasons 12 In its reasons for decision, the Tribunal made reference to the certificates, statements and assessor's report, to which I have referred above. It also summarised the evidence given by the first applicant in the course of the hearing. 13 The Tribunal dealt with the meaning of the word "exceptional" in item 805.212(7)(a). It referred to the synonyms "excellent" and "superior", borrowed from a dictionary definition, and to an earlier decision of the Immigration Review Tribunal suggesting that the requirement was that the record be "unusual, special or out of the ordinary." It said "the fact that an applicant was competent, reliable and industrious is not sufficient to bring him or her within that provision." 14 The reasoning of the Tribunal was contained in the following two paragraphs of its reasons for decision: "The primary visa applicant has supplied evidence that he was awarded a Certificate of Mastership also known as a Chief Foremanship Certificate on 10 September 1992 by the Tradesman and Craftsmen Confederation of Turkey. The visa applicant also supplied work references indicating that he was employed as a cook at a number of restaurants from January 1982 to January 1997. The primary visa applicant claims he has 17 years of experience as a Turkish Apprentice and Cook. However the Tribunal has already mentioned that it doubts the validity of this claim, as the primary visa applicant also states he served in the Armed Forces whilst simultaneously claiming to be employed by a bakery. Whilst the Tribunal does not doubt the primary visa applicant's claim that he is a competent cook/chef/baker specialising in wood fire baking, there is no evidence before the Tribunal to satisfy it that this amounts to an exceptional record of achievement. Furthermore, given the primary visa applicant's annual salary of $28,600.00 as indicated on his visa application form, (albeit that at review the primary visa applicant stated that the 'whole salary package', including accommodation and meals was $40,000.00 per annum), the Tribunal considers that a person with an exceptional record of achievement in their occupation would be offered a higher annual salary. The Tribunal finds the primary visa applicant does not meet the requirements of subclause 805.212(7)(a)(i). The primary visa applicant claims that he would be an asset to the Australian community and bases this on his being a key worker at The Turkish Kitchen, making Turkish bread, kebabs and Shish. He further claimed that 'such a qualified professional as himself can't be found in Australia' and that he has 'introduced genuine and/or specialised Turkish menus in Perth.' Notwithstanding these claims of cultural contribution to the Australian community there is no evidence before the Tribunal to satisfy it that the primary visa applicant would culturally, economically or socially benefit Australia or transfer new skills. The Tribunal finds the primary visa applicant does not meet the requirements of subclause 805.212(7)(a)(ii)." 15 The Tribunal did not find it necessary to decide whether the first applicant met the third criterion in item 805.212(7)(a), because he did not meet the first two. The applicants' case 16 In the initial application to the Court, filed on 17 January 2002, the solicitors for the applicants expressed the grounds for the application in terms that suggested that they were casting the net as widely as possible. The grounds were not particularised. Accordingly, an amended application was filed on 9 April 2002. This application suggested that the Tribunal's decision was made without jurisdiction, was affected by jurisdictional error, constituted a failure to exercise jurisdiction, failed to take into account relevant considerations or took into account an irrelevant consideration, constituted an improper exercise of the power conferred by the Migration Act, was not made by way of a bona fide attempt to exercise its power, and was not reasonably capable of reference to the power vested in the Tribunal. The particulars of those grounds are as follows: "(i) The Tribunal failed to consider and make decisions in relation to the Fifth and Sixth Applicants as required by Regulation 2.08 of the Migration Regulations 1994. (ii) The Tribunal made its decision (both in relation to subclauses 805.212(7)(a)(i) and (ii)) on the basis that there was no evidence to support the applicants' claims whereas, in both cases, there was evidence which was not rejected by the Tribunal. (iii) The Tribunal took into account in determining whether the principal applicant had an exceptional record of achievement an irrelevant consideration being the amount of salary received." 17 These particulars were expanded by written contentions filed at the same time as the amended application. As to the first of the particulars, it was said that the Tribunal was obliged by reg 2.08(1) of the Migration Regulations to deal with notional applications by the children of the first and second applicants born after the lodging of the original application for visas but before the decision of the Tribunal. It was said that the failure of the Tribunal to treat those two children as having applied for visas of the same class at the time each was born, and to have combined those applications with the applications of the four applicants, constituted a failure to exercise jurisdiction and a failure to take a relevant consideration into account. 18 As to the second of the particulars, the applicants submitted that, when the Tribunal expressed doubt as to the period during which the first applicant worked at the bakery in Turkey, because it included a period when the first applicant said he had served in the armed forces, it failed to take into account the first applicant's explanation. The explanation was that there must have been a mistake in the translation. This explanation was not rejected by the Tribunal, so it could not doubt the validity of the claim. The submission went on that the claims the first applicant made as to his experience and his qualifications were more than capable of founding a determination that his record of achievement was exceptional, in the sense of excellent or superior. Not having rejected, but having only doubted, part of the evidence, the Tribunal failed to exercise jurisdiction and failed to take a relevant consideration into account. According to the submission, the Tribunal was saying that there was no evidence of an exceptional record of achievement when, even if it was taken to have rejected the proposition that the first applicant had seventeen years of experience, there was still a considerable body of probative evidence before the Tribunal, which it chose to ignore rather than rule on. It failed to take a relevant consideration into account. 19 Similarly, in relation to the third particular, it was submitted that the Tribunal misunderstood its function and assumed that the evidence of the first applicant himself could not stand alone, but required corroboration. In any event, there was other evidence to support the proposition that the first applicant would be an asset to the Australian community. This included the documentary evidence of the referees and the assessor's report. Again, this was characterised as a failure to exercise jurisdiction and as a jurisdictional error by failing to take a relevant consideration into account. 20 In addition, each of the particulars was characterised as an indication that the Tribunal's decision constituted an improper exercise of the power conferred by the Migration Act and was not a bona fide attempt to exercise its powers. 21 The written contentions referred to the judgment of the High Court in Minister for Immigration & Multicultural Afffairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [82], where McHugh, Gummow and Hayne JJ discussed the concept of jurisdictional error and indicated that it could include a decision-maker falling into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, whereby the decision-maker's exercise or purported exercise of power was effected. The effect of s 474 of the Migration Act 22 At the hearing, counsel for the applicants conceded that reliance on Yusuf to demonstrate that the Tribunal had made a jurisdictional error of one of the kinds described by McHugh, Gummow and Hayne JJ would not enable the applicants to succeed on the current state of the law. The Migration Act has been amended significantly since Yusuf. Section 474 now contains a privative clause, to which the decision of the Tribunal is subject, providing that that decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, the majority of the Full Court of five judges held that s 474 renders a decision to which it applies immune from challenge on the basis of jurisdictional error of the kind described in Yusuf. See von Doussa J at [636] – [639] with whom Black CJ and Beaumont J agreed on that point. See also VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071 at [20] and SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 at [24] – [26]. Counsel for the applicants was therefore compelled to argue that the suggested errors of the Tribunal in the present case caused its decision to fall outside the three provisos referred to in the judgment of Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615, namely that the decision be a bona fide attempt to exercise the power, that it relate to the subject matter of the legislation and that it be reasonably capable of reference to the power given to the Tribunal. The correctness of the Tribunal's approach 23 The issue of the Tribunal's failure to deal with the two youngest children may be dealt with shortly. Even though there may have been error involved (perhaps an unwitting error, because it was not clear that the existence of those children was made known to the Tribunal), such error would not be a ground for setting aside the Tribunal's decision. The Tribunal was dealing with a subclass of visa for which only one member of a family unit had to satisfy the primary criteria. In this case, that member was the first applicant. If he failed, no member of the family would be entitled to a visa of that type. The failure of the Tribunal to advert to the existence of the two additional children could not have made any difference to the outcome of the case. It is so unlikely that the primary criteria could have been satisfied by either of those children that this possibility need not be taken into account. In the exercise of its discretion, the Court would not grant a remedy that would require the application to be re-processed on this basis. Recognition of the status of the two youngest children could have made no difference at all to the outcome of the Tribunal's decision. If there were an error of this kind, it was not an error that vitiated the decision. 24 Before any discussion of the content of the Hickman provisos, it is necessary to determine whether the applicants made out their case that there was error on the part of the Tribunal. Fundamental to this case was that the Tribunal had ignored evidence before it. The reasons for decision of the Tribunal do not suggest that it ignored any evidence. It made a general reference to the documents in the files which were before it. It made specific reference to the certificates relating to the first applicant's qualifications and to his experience. It made specific reference to the assessor's report. It drew attention to the inconsistency between one statement of the first applicant that he served in the armed forces between November 1988 and May 1991 and his further statement that he worked at a bakery in Turkey from 5 March 1988 to 14 January 1997. This was the basis of the doubt expressed by the Tribunal as to the claim of seventeen years of experience as an apprentice and cook. 25 Plainly, it was open to the Tribunal to express doubt as to the length of the first applicant's experience as a baker. The Tribunal had before it inconsistent statements of the first applicant. It was not obliged to refer specifically to the first applicant's explanation of the inconsistency, in order to reach a finding on the matter. It is difficult to imagine that the explanation (an error in translation) could have led the Tribunal to do anything other than to conclude that the error was in the translation of the statement that he worked at a bakery from 1988 to 1997, and that it should take the view that his length of service was shorter, rather than longer. The Tribunal's expression of doubt was clearly intended to indicate that it did not accept that the first applicant had served as a baker for as long as he claimed. In any event, this was a minor aspect of the Tribunal's reasoning. Even if it had concluded that the first applicant had served as a baker from 1988 to 1997, it is hard to see that the Tribunal's ultimate decision would, or could, have been different. 26 Otherwise, the applicants' case appears to be based on a misconstruction of the Tribunal's reasons. When the Tribunal said "there is no evidence before the Tribunal to satisfy it that this amounts to an exceptional record of achievement" and "there is no evidence before the Tribunal to satisfy it that the primary visa applicant would culturally, economically or socially benefit Australia or transfer new skills", it was not saying that there was an absence of evidence probative of those issues. Rather, it was saying that the evidence it had in relation to those issues did not satisfy it that the first applicant met the requirements. The Tribunal was not ignoring evidence that was before it. It was making findings as to the effect of that evidence. This process is at the heart of the function of a fact-finding decision-maker. An examination of the Tribunal's reasons for decision indicates that it did not fall into the error suggested. 27 In oral argument, counsel for the applicants did not contend seriously that the level of salary paid to the first applicant was a consideration irrelevant to the question whether the first applicant had an exceptional record of achievement. Even accepting (as the Tribunal appeared to do) that the first applicant's total remuneration was $40,000 per annum, it was obviously open to the Tribunal to take the view that someone whose record of achievement could properly be described as exceptional would be paid at a higher rate. 28 The real complaint made by the applicants is that the Tribunal reached the wrong conclusions on the evidence. That is not a matter on which the Court can enter. Plainly, the process of fact-finding is a matter for the Tribunal and not for the Court. It may be that a different decision-maker would have reached different conclusions on the evidence, but the applicants cannot succeed on that basis, even if the Court were disposed to think that the evidence pointed to a different conclusion (and I do not suggest that it did). 29 For these reasons, the applicants fall short of establishing that the Tribunal fell into error at all. It is unnecessary to consider whether its decision fell outside the three Hickman provisos. Conclusion 30 The application must therefore be dismissed. The normal rule that costs follow the event should be applied, and the applicants should be ordered to pay the Minister's costs of the proceeding. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 10 December 2002 Counsel for the Applicants: Mr G Gilbert Solicitor for the Applicants: Yildiz and Associates Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 September 2002 Date of Judgment: 10 December 2002