FEDERAL COURT OF AUSTRALIA Cai v Minister for Immigration and Border Protection [2018] FCA 782 Appeal from: Cai & Ors v Minister for Immigration & Anor [2017] FCCA 3024 File number: NSD 2276 of 2017 Judge: MORTIMER J Date of judgment: 29 May 2018 Catchwords: MIGRATION – application for review of decision refusing to grant first appellant an Employer Nomination (Residence) Class BW Subclass 857 Visa – employer nomination not granted – first appellant failed to meet criteria for grant of visa in absence of employer nomination – application dismissed Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg 5.19 Cases cited: Cai & Ors v Minister for Immigration & Anor [2017] FCCA 3024 X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2329 Date of hearing: 24 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Appellants: The First Appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Ms N Liang Solicitor for the Respondents: Clayton Utz ORDERS NSD 2276 of 2017 BETWEEN: MR XIONGMIN CAI First Appellant MS SULING HUANG Second Appellant MS SIQI CAI Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MORTIMER J DATE OF ORDER: 29 may 2018 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The first appellant pay the costs of the first respondent, fixed in the sum of $4,509.00 Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 This is an appeal against orders of the Federal Circuit Court made on 7 December 2017, whereby the first appellant's application for judicial review to that court was dismissed. The first appellant had sought review of a decision of the Administrative Appeals Tribunal (then the Migration Review Tribunal) to affirm a decision to refuse to grant him an Employer Nomination (Residence) Class BW Subclass 857 Visa. This was a class of permanent visa which the appellant sought to secure, having been in Australia since January 2009 on a temporary subclass 457 visa, which had been granted on the basis of his proposed employment as a cook at an Asian takeaway restaurant called "Country Noodles" in Ulladulla, New South Wales. The appellant had remained employed by Country Noodles and it was Country Noodles who nominated him for the position of cook at its Ulladulla restaurant and formed the basis of his subclass 857 visa application. Included in his visa application were his wife and daughter as his dependants. They are the second and third appellants in the appeal. For convenience, in these reasons I will refer principally to the first appellant, as "the appellant". 2 The scheme of the Migration Act 1958 (Cth) and the applicable regulations, was such that not only did the appellant have to satisfy a number of criteria relating to his own circumstances, but his employer – Country Noodles – had to be successful in nominating him for what is called in the regulations an "approved" position. It is the fact that Country Noodles had its employer nomination for the appellant refused which is the determining factor in this appeal, as I explain below. 3 The consequence of that fact is that the appeal must be dismissed. Background 4 The circumstances of the appellant's application to the Tribunal, and the application by Country Noodles as his nominated employer, are comprehensively set out in the decision of the Federal Circuit Court: see Cai & Ors v Minister for Immigration & Anor [2017] FCCA 3024. I do not set out all the background to the appellant's case, save where it is necessary to determine the appeal. 5 Chronologically, and critically to the outcome of the appellant's appeal, on 19 April 2011 Country Noodles applied for approval of a nominated position under reg 5.19 of the Migration Regulations 1994 (Cth). That application was refused by a delegate of the Minister in April 2012 and subsequently on review to the Migration Review Tribunal, the Tribunal affirmed the decision of the delegate. Country Noodles, and the appellant, applied for judicial review of that decision to the Federal Circuit Court. The Federal Circuit Court dismissed that judicial review application: see X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2329. This judicial review application was heard and determined by the same Federal Circuit Court judge who subsequently heard and determined the appellant's judicial review application in relation to his subclass 857 visa. His Honour therefore had a high level of familiarity with the appellants' claims and circumstances. 6 As I noted, the delegate's refusal of Country Noodles' employer nomination was made in April 2012. The criteria for employer nomination approval are set out in reg 5.19 of the Migration Regulations. It is unnecessary to set out all of the criteria in reg 5.19, however the criteria which the delegate found were not satisfied in the case of County Noodles were those contained in reg 5.19(4) which provides: (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) actively and lawfully operating in regional Australia; and (ii) operated by that employer; and (b) either: (i) the appointment: (A) will provide the employee with full time employment; and (B) will be for at least 2 years; and (C) will be located in regional Australia; or (ii) if the employer nomination relates to a person designated under regulation 2.07AO — the appointment: (A) will provide the employee with either continuing full time employment or seasonal employment that will continue; and (B) is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and (C) will be located in regional Australia; 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 2.26A (6)) or higher qualification; and (d) the employee 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 by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and (f) the Minister is satisfied that nothing adverse is known to Immigration about the business background of: … (iii) any individual who is a member of a partnership that is 1 of the entities that constitutes the employer; and (g) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and (h) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws … 7 Returning to the chronology, the appellant had applied on the same day (19 April 2011) for his subclass 857 visa. The refusal of Country Noodles' employer nomination was made before the delegate decided the subclass 857 visa application, which is hardly surprising given the criteria for the grant of a subclass 857 visa. The time of application criterion was: 857.21 Criteria to be satisfied at time of application … 857.213 Each of the following is satisfied: (a) the applicant has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer; … 8 The time of decision criterion in cl 857.221: 857.22 Criteria to be satisfied at time of decision 857.221 The appointment mentioned in paragraph 857.213 (a): (a) has been approved; and (b) has not been withdrawn; and (c) continues to satisfy the criteria for approval; and (d) is still available to the applicant. 9 In other words, at the time of a decision on his subclass 857 visa application, the appellant had to satisfy a criterion which required that Country Noodles' employer nomination had been approved. 10 That was not the case, and accordingly the delegate was required to refuse the subclass 857 visa. 11 As I have noted, County Noodles sought review of the refusal of the employer nomination and the appellant sought review of the subclass 857 visa refusal. 12 On 24 October 2014, the Tribunal conducted a combined hearing of the two review applications: see X.W Xu & Z.C Xu & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2329 at [13]. 13 In this appeal, as I set out below, some of the appellant's grounds of appeal relate to the conduct of the review hearing by the Tribunal. Those grounds concern complaints that were made at the time to the Tribunal, and are summarised by the Federal Circuit Court in its decision on Country Noodles' judicial review application at [14]: On 29 October 2014 Country Noodles' representative wrote to the Tribunal asking that the review application be reconstituted to another member. In this regard, the representative referred to comments made by the Tribunal at the hearing about the weight which it would give to the certification issued on 20 December 2010. It was also submitted that the Tribunal had refused to watch a video which showed the nominees working and training local Australians in English. Referring to s.357A of the Act, it was submitted that these matters indicated that Country Noodles' applications would not be assessed by the Tribunal fairly. The representative also enclosed correspondence from Mr Xu, who repeated Country Noodles' request for reconstitution by another Tribunal member. 14 Although the Tribunal had conducted a joint hearing it gave, appropriately, two separate decisions because there were two applications for review. The Tribunal was not satisfied Country Noodles met a number of the criteria set out in reg 5.19(4). These are comprehensively set out in the Federal Circuit Court decision in relation to Country Noodles' judicial review application at [23]-[30]. 15 It is unclear from the evidence on the appeal whether the Tribunal made a decision in relation to Country Noodles' employer nomination approval review on the same day it made a decision about the appellant's subclass 857 visa. The latter decision of the Tribunal was made on 18 December 2014: see Cai & Ors v Minister for Immigration & Anor [2017] FCCA 3024 at [17]. The Minister informed the Court, and I accept, that the Tribunal's employer nomination review decision was handed down on the same day, but prior to the subclass 857 visa decision. 16 This is consistent with the way the Tribunal's reasons are expressed in the subclass 857 visa review decision. That is because, as the Federal Circuit Court stated at [27]: The Tribunal noted that the Regulations did not provide it with any discretion to waive the requirements of cl.857.221. Consequently, as the Tribunal had affirmed the delegate's decision not to approve Country Noodles' employer nomination application, the first applicant did not satisfy cl.857.221(a) or (d) at the time of decision. As a result, his visa application failed on this basis too. 17 In other words, even though the Tribunal had dealt on the merits with all of the matters raised by the appellant about his eligibility for a subclass 857 visa, including whether exceptional circumstances existed, which justified waiving the "functional English" requirements in subclass 857.213(b), it was inevitable that the Tribunal would be required to affirm the decision under review because at the time of its decision there was no approved employer nomination in existence, as required by cl 857.221(a). Resolution of the appeal 18 It will be apparent from the chronology that I have set out that the prospects of the appellant's appeal turn first and foremost on the circumstances surrounding Country Noodles' employer nomination application. As the Tribunal noted, this is not a criterion which the statutory scheme gives either it, or a delegate, any discretion to waive. It is a mandatory requirement. There must be at the time of the decision on a subclass 857 visa application an approved employer nomination in existence in relation to the visa applicant. In the appellant's case there was no such approved nomination in relation to Country Noodles. 19 Country Noodles had not been successful in its judicial review application in relation to the Tribunal's employer nomination decision, and that application had been dismissed as I have set out above. 20 In that application, Country Noodles raised some of the same allegations about the Tribunal member as the appellant had raised in the subclass 857 judicial review application before the Federal Circuit Court. There was indeed a great deal of overlap in the grounds of the two judicial review applications. 21 However, the important point is the Federal Circuit Court had dismissed Country Noodles' judicial review application. On inquiry with the Minister's counsel at the hearing of the appeal, the Court was informed that there was no appeal by Country Noodles to the Full Court from the orders of the Federal Circuit Court. 22 The appellant was unrepresented on this appeal, as he had been before the Federal Circuit Court in his subclass 857 visa judicial review proceeding. He nevertheless made intelligent written submissions about his circumstances and the complaints he had about his subclass 857 visa application refusal. Some of those complaints related to what he contended were comparisons with other workers who had the same background as him, also worked for Country Noodles and had English that was no better than his, and yet "they got English exemption and they got their visa application success". He also submitted: My visa application was refused because my employer nomination application was refused. This is not our fault. We are the victims. We have been living in Australia for about 10 years now, in these years, we work here, we bought a house here, my wife opened a small business here, and my daughter completed her University here. We make our effort to contribute to Australian society. It would be cruel for us leaving Australia and start from zero. 23 It is not difficult to feel sympathy for the appellant's position. There is nothing in the evidence before the Court that would suggest that anything he has said in this paragraph is incorrect. The material on Country Noodles' review application and the material on the appellant's subclass 857 visa refusal review application both suggested the appellant had worked hard in the Ulladulla restaurant for a considerable period of time. The Tribunal's reasons do not suggest otherwise. There were suggestions in the Tribunal's decision that perhaps the Ulladulla business "represented a vehicle for a family member to migrate to Australia", but at a human level this is also an understandable circumstance, even if the Tribunal was entitled to take it into account in determining whether the visa criteria for employer nomination were met. Much of the Tribunal's decision on Country Noodles' employer nomination application appeared to be centred on the financial circumstances of Country Noodles, and in particular its operation at the Ulladulla restaurant. 24 In these circumstances, the appellant's sense of unfairness which he conveyed at the appeal hearing can be understood. He described the situation as "cruel" and it is understandable why he used that description. There was no suggestion in the material before the Tribunal that the the appellant and his family were anything other than well settled, contributing members of the Australian community. 25 However, the law is against the appellant's contentions on the appeal. The appellant is faced with the insurmountable problem of the non-approval of Country Noodles' employer nomination, and the lack of success he and Country Noodles have had in reviewing that decision. At [31] of its reasons the Federal Circuit Court found: Most relevantly, the applicants' allegations did not address the most important aspect of the Tribunal's decision, its finding that it had no discretion to do anything other than to affirm the delegate's decision because Country Noodles' employer nomination application had been unsuccessful. The terms of cl.857.221(a) and (d) were intractable and the Tribunal did not err in so concluding and from consequentially finding that cl.857.221 had not been satisfied. 26 There is no error in the Federal Circuit Court's reasoning in this paragraph: to the contrary it is plainly correct on the evidence and on the law. This means the appellant's appeal must be dismissed. Whatever complaints he may have had about the Tribunal's processes, they could not affect the legal situation that the Tribunal, having decided to affirm the decision under review in relation to Country Noodles' employer nomination application, was required by the terms of cl 857.221(a) to also affirm the decision under review in relation to the subclass 857 visa application. The two decisions went hand in hand and the second decision was inevitable given the terms of the Tribunal's first decision. 27 In the notice of appeal filed on 22 December 2017 in this Court, two apparently new grounds were raised. The first of those grounds concerned an allegation that it was "unfair and unreasonable" for the appellant not to have access to documents relating to other visa applicants also employed by Country Noodles who were, the appellant appeared to contend, treated more favourably by decision-makers under the Migration Act and were (as his submissions suggested), seen to have functional English and were granted visas. The second ground was also one based on an allegation that it was "unfair and unreasonable" for the Tribunal to have adopted a particular questioning style, which it was alleged prevented the appellants from giving full answers to questions asked of them. There was also an allegation that the interpreter used at the Tribunal "left the Tribunal in a hurry to pick up her daughter". 28 The Minister's written submissions on the appeal objected to leave being granted to the appellants to raise these two new grounds, and also suggested that both grounds lacked merit. 29 For the reasons I have set out above it is not necessary to determine the Minister's objection to these two grounds of appeal. As I explained to the appellant at the hearing of the appeal, even if he were permitted to raise these grounds and could persuade the Court that one or both of them should succeed, it could not affect the outcome of the appeal. That is because (adopting the most favourable position for the appellant), irrespective of the view the Tribunal took about other visa applicants and the similarity of their circumstances with those of the appellant, and even if the Tribunal had asked its questions in a different way and not rushed the hearing to allow the interpreter to leave, none of these matters could have affected the outcome of the Tribunal's review. 30 The outcome of the Tribunal's review in relation to the appellant's subclass 857 visa depended first and foremost on the Tribunal's decision in relation to Country Noodles' employer nomination. When the Tribunal decided to affirm the decision under review in relation to that employer nomination, it was inevitable that it must affirm the decision under review in relation to the subclass 857 visa. Conclusion 31 The appeal must be dismissed. There is nothing in the material to suggest that anything other than the usual order as to costs is appropriate. The Minister was granted leave at the hearing of the appeal to read the affidavit of Svetlana Zarucki sworn 23 May 2018, deposing to a range of the costs she considers the Minister would recover on taxation, and deposing to the mid-point of that range, being $4,509. I am satisfied that sum is fair and reasonable and will fix the Minister's costs at that sum. 32 At the hearing of the appeal, after I had explained the legal impediment to the success of his appeal because of the unsuccessful employer nomination, Mr Cai became significantly upset. He explained to the Court how he had worked hard, and been a lawful member of the Australian community, how he, his wife and his 23 year old daughter were well established here, including owning a house. Clearly, the prospect of being forced to leave Australia, and start again elsewhere, was a highly distressing one. Mr Cai impressed me as a steady, responsible and straightforward kind of person, and I accept what he said to me. As I have said, it is not difficult to have considerable sympathy for his circumstances. In my opinion, a case such as this might be one to which the Minister's attention should be drawn, for the purpose of considering whether it may be appropriate for any personal discretions held by the Minister to be exercised. Whether or not that occurs, and what the outcome may be, is of course a matter for the Minister and not the Court. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate: Dated: 29 May 2018