Martinez v Minister for Immigration and Citizenship

THE DELEGATE'S DECISION 13 The delegate noted that the appellant provided an employment reference from "Woods Place Inn" describing his employment and work experience at "Woods Place Hotel" in support of his claim of working in the skilled occupation of cook, an occupation attracting 60 points on the skilled occupations list. The appellant made no claims that he satisfied the requirements of subcl 136.213(2). 14 The delegate set out the findings that the first delegate had put to the appellant in her letter of 27 November 2007 (par [7] above). 15 The delegate identified the evidence she had considered in the following terms: I have considered the following evidence before making a decision, evidence provided at lodgement and during the processing of this application, which also includes the response received by you inviting you to comment on adverse information: • An employment duty Affidavit from the applicant • A restaurant permit • A certificate of registration for the restaurant • Employment payslips and employment references • Statements made by the Owner/Manager of the Restaurant (as depicted in documentation provided by you. • Investigations conducted by Manilla Departmental Officers". I take the reference to the response received from the applicant to be a reference to the letters from the appellant's migration agent dated 5 and 16 December 2006. 16 The delegate then said: "I note that no further third party or further independently verifiable evidence that might give more substantial weight to skilled employment claims made by your client was received. The certificates of registration for the restaurant and the permit of the restaurant pertain to the evidence that the restaurant itself may have been in operation, however do not give weight to the skills performed or the skill level of the applicant himself. As I am not satisfied based on the evidence available that the applicant was employed in a skilled occupation and performing the duties of a COOK equivalent to the level of Australian Standards as per ASCO I have determined that the applicant therefore does not satisfy subclause 136.213(1). As I am not satisfied that this applicant meets the requirements of subclause 136.213(1) or subclause 136.213(2) I have determined that this application does not satisfy subclause 136.213. As the applicant has not met this criterion I have not assessed the application further."

THE FEDERAL MAGISTRATES' DECISION 17 Before the Federal Magistrate the appellant relied on two grounds for review: "1. The decision was affected by jurisdictional error in that the person who made the decision failed to have regard to a relevant consideration. PARTICULARS The delegate who made the decision did not take into account the applicant's occupation as a Cook with duties and responsibilities from employer at the time of his application in the determination of the application to migrate under sub class 136 visa nor did the delegate consider new and correct information on his Affidavit executed on 4 December 2005, forwarded 5 December 2006 as described in folios 128‑130 of the Department of Immigration and Citizenship - CLF2006/038590 relating to new contract of employment or job essentially as Cook with new owner consistent to section 105 of the Migration Act (1958) ('the Act'). 2. Failure to accord procedural fairness. PARTICULARS The delegate who made the decision wrote the principal applicant on 7 April 2008 seeking his comment to what was purported as incorrect information in his application, giving him until 5 May 2008 to provide his response, however prior to giving his explanation on various issues raised the delegate made a decision refusing his application on 11 April 2008." 18 The Federal Magistrate rejected the first ground, noting that the matters relating to the appellant's occupation were taken into account. His Honour was of the view that the finding that the appellant failed to establish he was employed in a skilled occupation as a cook was open to the delegate and was not subject to review. Specifically, his Honour found at [16]: "The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits." 19 The second ground was also rejected because the second letter was withdrawn and no response was made to it. His Honour observed that the delegate was not required to delay reaching her decision to await a response to a withdrawn letter and found that a letter complying with the provisions of s 57 of the Act was not required to be sent because the appellant was offshore and review of the delegate's decision was not available pursuant to s 338 of the Migration Act 1958 (Cth) ("the Act): s 57(3)(b) of the Act. 20 His Honour concluded at [28]: "A s.57 letter was therefore not required to be sent to the applicant (s.57(3)). The question of whether it could be withdrawn once sent does not need to be answered. It is not a denial of natural justice to not consider a response to an invitation that was not required to be sent. The material in the response was not required to be obtained and was not provided. The material was not provided at all and the 2008 Delegate's decision was not made before the cut off date of 5 May 2008 (Court Book 165.1) which was the date of the Delegate's decision." 21 For these reasons his Honour found that the decision was a privative clause decision that had not been infected with jurisdictional error and that there was no jurisdiction for the Court to interfere with the delegate's decision.

THE APPEAL BEFORE THIS COURT 22 The notice of appeal in this Court raised several grounds of appeal, based on the proposition that the Federal Magistrate erred in not finding that the Minister through the Minister's delegate fell into jurisdictional error. The aspects of jurisdictional error relied upon were that the delegate: (a) failed to take into account relevant material considerations namely the period or periods during which the appellant worked in a skilled occupation in the period of 18 months immediately before 30 March 2006; and (b) failed to give natural justice or procedural fairness to the appellant, acted beyond power, made a decision not open on the material and made a decision which no reasonable delegate could have made. This aspect was based on the proposition that the delegate refused the application, without the delegate having received a response from the appellant to the letter sent on 7 April 2008 which was withdrawn and that the contents of the letter (specific dates of employment able to be confirmed) were not taken into account by the delegate. 23 The natural justice or procedural fairness ground, based upon the proposition that the delegate acted beyond power, made a decision not open on the material and made an unreasonable decision, had not been raised or argued before the Federal Magistrate. 24 On the hearing of the appeal the appellant sought leave to add a further particular to the ground that the delegate had made a decision not open to her on the material before her. The particular was that there was no evidence from which it was open to the delegate to conclude that the appellant had not worked at the Woods Place Hotel for at least twelve months in the eighteen months prior to his application for a visa or to conclude that he had not worked there in a skilled occupation such as to satisfy the requirements for the grant of a visa. 25 The appellant's notice of appeal included the following particular of the ground that the delegate fell into jurisdictional error in that she had failed to take into account relevant material considerations: "In determining the appellant's application for Skilled - Independent Migrant (Class BN), subclass 136 visas ('the visas') for himself and his wife and children, the respondent's delegate was required by item 136.213(1)(a) of Schedule 2 to the Migration Regulations 1994 to consider and to determine the following matters: i. For which period or periods the appellant worked in a skilled occupation in the period of 18 months immediately before 30 March 2006, the day on which the appellant's application for a subclass 136 visa was made to the respondent; ii. whether such period or periods totalled at least 12 months. The respondent's delegate did not consider and determine these matters, even though she had a report from staff of the Australian Embassy in Manila that the appellant 'was employed as a cook prior to February 2006 on a non‑continuing basis'". 26 This particular of jurisdictional error was not raised or argued before the Federal Magistrate. The ground or jurisdictional error raised before the Federal Magistrate was particularised on the basis that the delegate did not take into account the appellant's occupation as a cook with duties and responsibilities from his employer at the time of his application in making the delegate's determination of the application. It was implicit in this particular that the delegate did not take into account the appellant's occupation as a cook at the relevant time or times required to be established pursuant to item 136.213(1)(a) of Sch 2 of the Regulations. However, this particular in the Notice of Appeal to this Court was not raised or argued before the Federal Magistrate, in the terms now particularised. Notwithstanding this, I consider that leave should be granted to the appellant to raise and argue it on this appeal. In my opinion it is expedient and in the interests of justice that such leave be granted. 27 The test to be applied in determining whether leave should be granted to advance new grounds of appeal is well known. That test is in short, whether it is expedient and in the interests of justice that such leave be granted. In the present circumstances the relevant facts underlying the decision on review are not controversial. In O'Brien v Komesaroff (1982) 150 CLR 310 Mason J (with whom the other members of the Court agreed) said at 319: "In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh(14);Suttor v. Gundowda Pty Ltd.(15);Green v. Sommerville (16))." In this appeal the relevant facts are not controversial and the particular ground now sought to be raised can be argued by both sides without the need for further factual investigation. 28 In Coulton v Holcombe (1986) 162 CLR 1, the majority of the High Court at 7‑8 following this observation of Mason J drew no distinction between its application before an intermediate court of appeal and an ultimate court of appeal. Nevertheless, the majority of the High Court recognised the limitations which should be placed on raising new arguments on appeal. In that case the majority concluded that the respondents must be bound by the conduct of their case at trial. The majority said at 11: "It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." I do not consider that the present appeal falls into the category of case identified by the majority in Coulton v Holcombe (supra). 29 The principles applicable in determining whether a new ground can be raised on appeal were reiterated by the majority of the High Court in Water Board v Moustakas (1988) 180 CLR 491 at 497: "More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken." 30 In determining whether it is expedient or in the interests of justice to grant leave to raise a new ground, it is accepted that consideration needs to be given to the merits of the ground proposed to determine whether that ground has a reasonable prospect of success: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635 at [35]-[37]; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [5]. 31 For reasons to which I shall refer, I consider this particular has reasonable prospects of success and, indeed, is determinative of the appeal. I note further, that the Minister does not contend that he is prejudiced by granting the appellant leave to raise this ground. The appellant has explained that the new particular in subparagraph (a) under paragraph 1 of the notice of appeal was not raised in the Court below because the ground was then perceived differently and that although the particulars were framed differently the question before the Federal Magistrate was whether the delegate had had regard to those matters that were required to be regarded. Nevertheless, I consider that it is expedient and in the interests of justice that the appellant be granted leave to raise this particular of ground 1 on the appeal. 32 The terms and structure of item 136.213(1)(a) of Sch 2 of the Migration Regulations required the delegate, as an exercise of jurisdiction, to make a determination of the following matters: (a) for which period or periods the appellant worked in a skilled occupation in the period of eighteen months immediately before 30 March 2006 which was the day on which the appellant's application for a subclass 136 visa was made; (b) whether such period or periods totalled at least twelve months. (c) the nature of the work or duties undertaken by the appellant during this period or these periods. The delegate did not address the matters in subpar (a) or (b). 33 It appears that the delegate did not do so because she took the view that because she was: "not satisfied on the evidence available that the applicant was employed in a skilled occupation and performing the duties of a COOK equivalent to the level of Australian Standards as per ASCO", this conclusion was determinative of the matters in respect of which she had to make a finding for the purpose of determining whether the appellant satisfied subcl 136.213(1). 34 The Minister submitted that it was unnecessary for the delegate to consider and make a finding in relation to the period or periods within which the appellant had been employed in a skilled occupation given the delegate's finding that the appellant was not employed in a skilled occupation and performing the duties of a cook equivalent to the level of Australian Standards as per ASCO. The Minister submitted that where the delegate found that the appellant was not employed as a cook equivalent to the level of the Australian Standards, then there was no need to go any further and it was open to the delegate to act on her conclusion that the appellant was not employed in a skilled occupation. 35 I do not accept these submissions. In my opinion, the delegate was obliged to determine the nature of the work which the appellant had undertaken and the duties he had undertaken in the course of his work and also the period or periods during which the appellant claimed to have undertaken that work and performed such duties. These matters were intertwined and both had to be addressed specifically in order for the delegate to determine whether the appellant satisfied subcl 136.213(1). 36 As a matter of legal analysis, in order for the delegate to determine whether she was satisfied as to the nature of the employment of the appellant in the skilled occupation and that he had performed the duties of a cook it was necessary for the delegate to examine, consider and make a finding in respect of the period or periods during which the appellant had been employed in that occupation and performing those duties. If the delegate had turned her mind to identifying, and making a finding in respect of those periods, she may well have reached a different conclusion from the conclusion she reached in respect of her level of non‑satisfaction as to the nature of the occupation undertaken by the appellant and the duties he performed as a cook. 37 This interconnection between the two matters or analyses is highlighted by the matters referred to by the first delegate in the letter dated 27 November 2006 which sought further or additional supporting information from the appellant as to the fact that he was employed as a cook prior to February 2006 on a non‑continuing basis and that the exact dates of that non‑continuing employment were not available at the time of investigation by the Embassy in Manila. The appellant responded to this letter in the manner to which I have referred earlier. 38 In the letter of 7 April 2008 which was withdrawn, the second delegate stated that the Department's investigations noted that the employment of the appellant prior to February 2006 was not on a continuing basis but that "specific dates of employment able to be confirmed". The delegate then said that: "It was advised that the applicant does not plan the menu; he does not teach and train staff and it is not the applicant's duty to check inventory". However, this letter did not state, and it is not known, whether that observation related to the time at which the Department conducted its investigations or whether it related to any and which of the periods of time prior to February 2006. 39 By undertaking this analysis, I am not seeking to review the facts as found by the delegate. Rather, I am identifying the fact that the jurisdictional issue which the delegate was required to address in relation to the period or periods in respect of which the appellant had been employed in a skilled occupation was a critical issue. 40 The decision of the delegate was a privative decision in accordance with s 474 of the Act. Nevertheless, s 474, does not preclude a court from determining that a decision does not fall within the privative provisions of s 474 if it involves a failure to exercise jurisdiction or is in excess of jurisdiction: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. In my opinion, the delegate accordingly fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 41 I do not consider that there is any substance in the remaining grounds of appeal relied upon by the appellant. Ground 2 in the notice of appeal raises the submission that the delegate failed to give natural justice or procedural fairness to the appellant. That ground is based upon the sending by the delegate of the letter on 7 April 2008 and its withdrawal. In essence, the appellant's complaint is that the delegate did not give the appellant the opportunity to respond to the matters raised in the letter. There is a short answer to the appellant's complaint. The matters contained in the letter were not required to be put by the delegate to the appellant for comment, as the appellant was off shore. Section 57(3) of the Act provides: "This section does not apply in relation to an application for a visa unless: (a) the visa can be granted when the applicant is in the migration zone; and (b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa." Even if the complaint made by the appellant could be brought within the purview of common law principles of natural justice or procedural fairness, that is of no assistance to the appellant. Sections 57 and 58 of the Act are found in Subdiv AB of Div 3 of Part 2 of the Act. 42 Section 51A which is contained in that subdivision provides that the subdivision: "…is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with." 43 In Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 the Full Court observed that s 51A was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. The Full Court concluded at [66] that what was intended by the introduction of s 51A and related provisions into the Act was that Subdiv AB "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule." The issues raised by the appellant in ground 2 of the notice of appeal do not identify any particular provision of Subdiv AB of Div 3 of Part 2 of the Act in respect of which there has been a contravention or a failure to comply. 44 There is a curious feature about the letter of 7 April 2008. The case officer who sent it apparently assumed that the subject matter of it had been the subject of earlier comment and response by the appellant. However, the appellant had not been put on notice that there was an issue in relation to the nature of the work undertaken by him as a cook or chef. Nevertheless, in the circumstances, there is no basis for the submission that the delegate failed to give such natural justice or procedural fairness to the appellant as gives a ground for review by this Court. 45 Ground 3 of the notice of appeal, namely that the delegate acted beyond power by sending and withdrawing the letter on 7 April 2008 and proceeding to refuse the appellant's application for a visa without having received any comment or response by the appellant to the matters contained in the 7 April 2008 letter suffers a similar fate. The delegate was not obliged to send the letter pursuant to s 57 of the Act, and to withdraw it and not give the appellant the opportunity to answer it was not beyond power. 46 Ground 4 of the notice of appeal, namely that the delegate made a decision not open on the material before her, is not made out, having regard to the delegate's identification of the evidence which she took into account 47 Ground 5, namely that the delegate made a decision which no reasonable delegate could have made is also not made out. The appellant relies upon the particulars given to the other grounds of appeal but those particulars do not demonstrate any attitude of unreasonableness. Those particulars may disclose that the delegate misunderstood what had been the subject of response in the earlier letter and may have misunderstood the information supplied by the Department. That does not mean that the delegate made a decision which no reasonable delegate could have made. 48 In the circumstances I consider that the appellant has no prospects of success in relation to the grounds raised in paragraphs 3, 4 and 5 of the notice of appeal, including the proposed amended particular to ground 4 and I refuse leave to the appellant to rely on those grounds in this appeal. 49 For the reasons to which I have already referred the appeal should be allowed, the orders of the Federal Magistrate should be set aside and in lieu thereof it should be ordered that the decision of the delegate be quashed, that a writ of certiorari be issued and a writ of mandamus be issued remitting the application for the visa by the appellant to the respondent for further consideration according to law. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Solicitor for the Respondent: Australian Government Solicitor