An v Minister for Immigration and Citizenship [2007] FCAFC 97 (29 June 2007)

Last Updated: 2 July 2007

FEDERAL COURT OF AUSTRALIA

An v Minister for Immigration and Citizenship [2007] FCAFC 97

MIGRATION – Employer Nomination (Residence) (Class BW) visa – requirement of "vocational English" in cl 856.213(c) of Schedule 2 to Migration Regulations 1994 (Cth) – whether position was "exceptional" – purpose of requirement of vocational English – meaning of "exceptional" – position of toy designer and production manager in a business in which all employees spoke Korean.

Held: position not "exceptional" with regard to requirement of vocational English.


WORDS AND PHRASES – "exceptional", "appointment"


Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) reg 5.19, Sch 2 cl 856.213


Brutus v Cozens [1972] UKHL 6; [1973] AC 854 cited
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 cited
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 cited
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 cited









JUNG KUK AN, SOON JIN LEE, JI HYAN AN AND JI SON AN v
MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION
REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

NSD 2185 OF 2006

LINDGREN, EMMETT AND FINKELSTEIN JJ
29 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2185 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JUNG KUK AN First Appellant SOON JIN LEE Second Appellant JI HYAN AN Third Appellant JI SON AN Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGES:	LINDGREN, EMMETT AND FINKELSTEIN JJ
DATE OF ORDER:	29 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to Minister for Immigration and Citizenship.
2. The appeal be dismissed.
3. The first and second appellants pay the first respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2185 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JUNG KUK AN First Appellant SOON JIN LEE Second Appellant JI HYAN AN Third Appellant JI SON AN Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGES:	LINDGREN, EMMETT AND FINKELSTEIN JJ
DATE:	29 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J:

1 I have had the benefit of reading drafts of the separate reasons for judgment of Emmett J and Finkelstein J. Their Honours’ reasons for judgment deal with the background facts, the relevant legislation, Departmental guidelines, the reasons for decision of the Migration Review Tribunal, the reasons of the Federal Magistrates Court of Australia from which the present appeal is brought, and the submissions made on the appeal. I can therefore proceed immediately to address the issues on the appeal.
2 I agree in substance with Emmett J’s reasons and conclusions. However, having drafted the following reasons for judgment that take a different approach in certain respects before reading those of his Honour, I publish them also as my reasons for agreeing with his Honour’s conclusion that the appeal should be dismissed.
3 The first respondent supported the Federal Magistrates Court’s view that the Tribunal’s conclusion that the "appointment" was not "exceptional" was properly a finding of fact. I think that the position is, however, more complex, as the following propositions demonstrate.
4 First, although the ordinary meaning or common understanding that a simple non-technical English word conveys in the community is a matter of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at [35] per McHugh J and cases there cited), indeed, a matter of fact of which judicial notice may be taken, this is often an insufficient proposition on which cases can be decided. The reason is that associated questions of law often arise, such as whether the word is used in its ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395ff. The "statutory context" refers not only to the immediately surrounding text, but also to the piece of legislation as a whole, and its purpose or object. Context provides a sound starting point for construction in all cases, even though the conclusion may ultimately be reached that the word is hardly influenced by context at all.
5 Second, whether facts fully found answer a statutory description or statutory criteria, properly construed, may be exclusively a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]–[27]. In other words, it may be the case that the facts fully found are necessarily (as a matter of law) within or outside the statutory description.
6 Third, minds may, without legal error, differ on the question whether facts that are at law capable of doing so, fall within or outside words that are used in a statute according to their ordinary or common understanding. Whether they do so will be a question of fact: Vetter [2001] HCA 12; 202 CLR 439, at [24]–[26]; Brutus v Cozens [1972] UKHL 6; [1973] AC 854. Prime examples are ordinary English words that betoken evaluation according to current community standards, such as "offensive", "unreasonable", "oppressive", "unfair" and "unjust".
7 The word "exceptional" is a simple non-technical word. It means "unusual" or "out of the ordinary" and is used in that sense in Sch 2, cl 856.213(c) of the Migration Regulations 1994 (Cth) (the Regulations). The word is not, however, of the obviously evaluative kind referred to above. It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the "usual" or "ordinary" case that was in contemplation against which exceptionality is to be measured. As will appear, once this task is completed, it becomes clear that it was open to the Tribunal, if not required of it, to find that the position in question was not exceptional.
8 Under the Migration Act 1958 (Cth) (the Act), a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen, and any other non-citizen in the migration zone is an unlawful non-citizen (ss 13, 14). The Minister may grant a non-citizen permission, known as a visa, either to travel to and enter Australia, to remain in Australia, or to do both of those things (s 29). Section 31 of the Act provides that there are to be prescribed classes of visas, and that the regulations may prescribe the criteria for a visa or visas of a specified class (s 31).
9 The present case turns largely on the Regulations and the Schedules to the Regulations. It is noteworthy at this point that while cl 856.213(c) in Sch 2 to the Regulations refers to "vocational English" (an expression that is defined in reg 1.15B), s 5(2) of the Act and reg 5.17 define a different expression, "functional English". The two expressions must not be confused. Functional English, which does not bespeak as great a knowledge of English as vocational English does, is required for several classes of visas, such as Subclass 134 – Skill Matching (cl 134.212); Subclass 462 – Work and Holiday (cl 462.215); and Subclass 857 – Regional Sponsored Migration Scheme (cl 857.213(b)(ii)(B)).
10 A suggestion was made that the Departmental guidelines contained in the Procedures Advice Manual (III) confused the expressions "functional English" and "vocational English". The guidelines did no such thing. They addressed two situations: the situation "[i]f the nominee does not have vocational English", and the situation "[i]f the applicant does not [even] have functional English". In substance, the former addresses what the employer would be required to demonstrate in order to show that the appointment was exceptional in a case where the visa applicant does not have vocational English, and the latter addresses what the employer would be required to demonstrate in order to show that the appointment was exceptional where the visa applicant does not even have functional English. In the former case it is stated that even if there were otherwise exceptional circumstances, "the applicant would still be expected to have English ability approaching functional".
11 I turn now to the meaning of the expression "exceptional" in cl 856.213(c) in Sch 2 to the Regulations.
12 The starting point is reg 5.19, which provided in subreg (1):

"An employer may apply to the Minister for approval of a nominated position as an approved appointment". (Emphasis in original).

In this subregulation the employer is the applicant and it is a "position" that is an "appointment". The employer nominates a position, and if approval is granted the position nominated becomes an "approved appointment".
13 Subregulation (1C) of reg 5.19 provided, relevantly, that the Minister must approve an application if the nominated position is the subject of an employer nomination that met the requirements of subreg (2). Subregulation (2) of reg 5.19 provided that an employer nomination met the requirements of that subregulation if:

"(a) the employer nomination is made by an employer in respect of a need for a paid employee in a business:

(i) located in Australia; and
(ii) operated by that employer; and

(b) the work to be performed requires the appointment of a highly skilled person (within the meaning of subregulation (3)); and

(c) the appointment will:

(i) provide the employee with full-time employment; and
(ii) be for a fixed term of at least 3 years; and not subject to any express exclusion of the possibility of renewal; and

(d) the Minister is satisfied:

(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

(e) the Minister is satisfied that:

(i) an Australian citizen or Australian permanent resident cannot be found who is suitable for the appointment; or
(ii) in the circumstances of the case, the employer should not be required to seek a suitable employee in Australia; and

(f) 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."

14 In my view reg 5.19 is concerned with the position or job that the employer needs to fill. It is true that in para (2)(b) the expression "the appointment" is used in the sense of "the appointing [of a person]" and that in para (2)(c) the expression could mean either the position itself or the appointing of a person to fill it, but as a whole reg 5.19 is concerned with the position which the employer has nominated.
15 Subregulation 5.19(3) defined "highly skilled person" for the purposes of subreg 5.19(2)(b), and subreg 5.19(3)(b) commenced with the words "unless the approved appointment is exceptional". Subregulation 5.19(4) specified the circumstances in which an employer nomination would satisfy the requirements of reg 5.19, and subreg 5.19(4)(c) commenced with the words "unless the appointment is exceptional". In both cases, the contexts confirm that the appointment referred to is the position or job that the employer has nominated.
16 I turn now to Subclass 856 (Employer Nomination Scheme) itself. Clause 856.21 set out "Criteria to be satisfied at time of application" and cl 856.22 set out "Criteria to be satisfied at time of decision". They contemplated that at the time when the application for the visa was made, there might or might not yet be an employer nominated position that had been approved by the Minister under reg 5.19, that is to say, an "approved appointment". Thus, cl 856.214 requires that "if the appointment" (referring back to the appointment mentioned in the immediately preceding cl 856.213 (see below)) is already an "approved appointment", the period that has elapsed between the time when it became an approved appointment down to the time of the making of the application for the visa must not exceed six months, while cl 856.221 requires that by the time of the decision on the application for the visa, the appointment mentioned in subcl 856.213(a) must be an approved appointment. In both instances, the word "appointment" is being used in the sense of "position". In particular, cl 856.214 makes this plain by indicating that there can be an approved appointment before the application for the visa is made.
17 Clause 856.213 stated:

"The applicant:

(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and

(b) is a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment; and

(c) unless the appointment is exceptional:

(i) has not turned 45; and
(ii) has vocational English."

18 At first blush, it may seem odd that subreg 5.19(2) is invoked by subcl 856.213(a) as something in accordance with which the visa applicant must have been nominated by the employer. It will be recalled that subreg 5.19(2) set out criteria that the nominated position must satisfy if it was to become an approved appointment. Nonetheless, I suggest it is plain that in subcll (a) and (b) of cl 856.213, the word "appointment" means "position". The idea intended to be conveyed by subcl (a) is that the visa applicant must "fit" the criteria of the position set out in reg 5.19(2), and by subcl (b) that the visa applicant must "fit" the description of a "highly skilled person" in subreg 5.19(2)(b) and subreg 5.19(3).
19 The foregoing line of reasoning leads me to conclude that in subcl 856.213(c), the word "appointment" again means "position". Whether the position is exceptional from the viewpoint of the vocational English requirement must be capable of being decided before the visa application is made, whether or not it has in fact been decided by that time: see cl 856.214 referred to at [16] above. It appears that in fact the Departmental practice is to decide whether the position is exceptional in respect of the vocational English requirement at the stage when the visa application is being assessed. It remains true, however, that it is the position to which the requirement and the concept of exceptionality are to be applied.
20 Accordingly, subcl (c) means that unless the position which the visa applicant is to fill is "exceptional", the visa applicant must not have turned 45 and must have vocational English. It is therefore useful to put out of mind the particular visa applicant, when one is considering the question whether the appointment is exceptional for the purposes of subcl 856.213(c).
21 The foregoing analysis leaves open the question how exceptionality of the position in respect of the requirement of vocational English is to be understood. At a certain level of abstraction, and devoid of any particular context, one might reasonably expect that "functional" English would refer to a level of English that equips the person to function satisfactorily in Australian society, and that "vocational English" would refer to a higher level of English that equips the person to function satisfactorily in the workplace.
22 The visa application by the four appellants was lodged on 10 February 2004 and refused by a delegate of the first respondent (the Delegate) on 24 February 2005. As revealed by the relevant English language test, the first appellant’s English was well below "vocational". Indeed, it is interesting that on the visa application form he ticked the "functional" English rather than the "vocational" English box.
23 The Delegate decided that the position should not be approved as an "exceptional appointment" in regard to the requirement of vocational English because it was not exceptional in respect of the policy underlying the requirement, which was that the person appointed be able to transfer his or her high level of skills to the Australian workforce.
24 The Tribunal stated (at [50]):

"The Tribunal is not satisfied that the primary visa applicant has made a concerted attempt to learn English in the 8 years he has been in Australia. It is not satisfied that he is able to pass on his skills as a production supervisor or toy designer to employees who may not speak Korean or that he would be able to undertake all the responsibilities and duties of the nominated position including occupational health and safety training and supervision considerations with less than functional English if the business were to employ people who did not speak Korean. The Tribunal is of the view that the policy intention of the legislation is not that a person should be able to pass on skills and supervise a work place that is confined to people who speak that person’s language. The Tribunal notes the policy guidelines address situations such as congregations of religious workers, or other social situations. The Tribunal considers that a workplace does not fall within this situation. The Tribunal is not satisfied, for these reasons, that the appointment is exceptional and that the applicant and nominee for the position would not be required to have a level of English that is less than vocational."

25 While this passage refers both to the first appellant and to the legislative policy relating to the position, its meaning is plain enough and the Tribunal’s approach as revealed in it is consistent with my view. The Regulations expose a policy that the vocational English requirement must be ordinarily, if not always, maintained in the case of ordinary workplaces. A particular reason, but not the only one, why this is so in the case of the present class of visa is to enable skills to be passed on to English language speakers in the workplace. The appointment or position is not rendered exceptional by the circumstance that at present all other persons in the workplace speak Korean. The first appellant’s linguistic position would not enable the policy underlying the requirement of vocational English to be fulfilled.
26 There is a statement in the reasons of judgment of the Federal Magistrates Court (An v Minister for Immigration [2006] FMCA 157 at [2]) that "[T]he nomination was approved on 24 February 2005 for the position of Industrial Designer (ASCO code 2533-15)", but this appears to be an error. The Tribunal stated (at [42]) that the business was that of Toy Hut Co and that the position named in the nomination was for a "Production Supervisor/Toy Designer (ASCO code 2533–15–Industrial Designer)". The evidence before the Court on the appeal does not disclose that the position nominated by the employer ever became an "approved appointment". The reference to "ASCO" is a reference to the Australian Standard Classification of Occupations.
27 The toys in question are soft toys such as those bought as Australian souvenirs. The kind of skills called for relate to the designing and sketching of the toys, identification of appropriate fabrics and use of appropriate tools and methods of manufacture. It is not suggested, and could not reasonably be suggested, that a position so described is exceptional in relation to the requirement of vocational English. However, the critical question is whether that description is an adequate characterisation of the appointment for present purposes. An alternative formulation that might be suggested by the appellants (but which I reject below) would be something like: "Production Supervisor and Toy Designer in a business in which all employees speak Korean at work, and in which there will not, in the foreseeable future, be any employees who speak English but not Korean".
28 The Tribunal referred, correctly in my view, expressly or implicitly to the following as particular purposes of the vocational English requirement:

• that the person appointed be able to transfer his or her high level of skills to, or otherwise to train, English speaking work colleagues (see the Procedures Advice Manual (III) and reg 5.19(2)(b) and (d) set out at [13] above); and

• that the person be able to undertake, and then to pass on to such colleagues, the benefits of Occupational Health and Safety training.
One might add:

• that the person be able to understand "the standards for wages and working conditions provided for under relevant Australian legislation and awards" (see reg 5.19(2)(f) set out at [13] above).

In my opinion, however, these are only particular aspects of a broad and general policy reflected in the Regulations that a person be able to function satisfactorily in the workplace using the English language.
29 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.
30 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.
31 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.
32 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.
33 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.
34 The Tribunal did not err in finding that the mere fact that the present composition of the workforce was Korean-speaking did not render the particular position of Production Supervisor and Toy Designer an exceptional appointment in relation to the vocational English requirement.
35 For the above reasons, there was no jurisdictional error by the Tribunal and the appeal should be dismissed with costs. The order for costs should be made against only the parents, the first and second appellants.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 29 June 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2185 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JUNG KUK AN First Appellant SOON JIN LEE Second Appellant JI HYUN AN Third Appellant JI SON AN Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGES:	LINDGREN, EMMETT AND FINKELSTEIN JJ
DATE:	29 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EMMETT J:

36 The first appellant is a national of South Korea. The other three appellants are his wife and children, who are also nationals of South Korea. This appeal from orders of the Federal Magistrates Court concerns a decision of the Migration Review Tribunal (the Tribunal) confirming a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), to refuse to grant to each of the appellants an Employer Nomination (Residence) (Class BW) visa (856 Visa) under the Migration Act 1958 (Cth) (the Act). The applications of the second, third and fourth appellants are dependent upon the grant of an 856 Visa to the first appellant. It is convenient, therefore, to refer henceforth only to the first appellant as the Visa Applicant.

37 The Visa Applicant applied for an 856 Visa on 10 February 2004. The Minister’s delegate made a decision to refuse to grant an 856 Visa on 24 February 2005 and an application for review of that decision by the Tribunal was lodged on 20 March 2005. The Tribunal affirmed the decision under review on 8 May 2006. A proceeding was then commenced in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal’s decision. The Federal Magistrates Court ordered that the application be dismissed on 17 October 2006. The appeal to the Federal Court was lodged on 6 November 2006. It has been determined that the appeal be heard by a Full Court.

CRITERIA FOR AN 856 VISA

38 Clause 856.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) relevantly provides that one of the criteria that must be satisfied before the grant of an 856 Visa is that the applicant:

(a) has been nominated in accordance with reg 5.19(2) by an employer in respect of an appointment in the business of that employer; and
(b) is a highly skilled person, within the meaning of reg 5.19, in relation to that appointment; and
(c) unless the appointment is exceptional:

(i) has not turned 45; and
(ii) has vocational English.

The words emphasised are critical.

39 Under reg 1.15B, a person has vocational English if:

• the person satisfies the Minister that the person has, within the previous 12 months, achieved a particular score in the International English Language Testing System (IELTS) test; or
• the Minister determines that it is not reasonably practicable, or not necessary, for the person to be tested using the ELTS test and is satisfied that the person is proficient in English to a standard that is not less than the standard required to achieve that particular score.

A person also has vocational English for the purposes of the Regulations if the person satisfies the Minister that he or she is proficient in English, to at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6 to the Regulations. Part 3 of Schedule 6 specifies five tests that could lead to the award of 15 points or more.

40 Regulation 5.19(1) provides that an employer may apply for approval of a nominated position as an approved appointment. Under reg 5.19(1B), the Minister may approve or reject such an application. The Minister must approve an application if, relevantly, the nominated position is the subject of an employer nomination that meets the requirements of reg 5.19(2).

41 Regulation 5.19(2) provides that an employer nomination meets the requirements of reg 5.19 if:

(a) the employer nomination is made by an employer in respect of a need for a paid employee in a business located in Australia and operated by that employer;
(b) the work to be performed requires the appointment of a highly skilled person;
(c) the appointment will provide the employee with full-time employment and will be for a fixed term of at least 3 years;
(d) the Minister is satisfied, relevantly, that the employer has made adequate provision for training existing employees in work relevant to the business;
(e) the Minister is satisfied that:

(i) an Australian citizen or an Australian permanent resident cannot be found who is suitable for the appointment; or
(ii) in the circumstances of the case, the employer should not be required to seek a suitable employee in Australia; and

(f) the employee is to be employed or engaged in accordance with standards for wages and working conditions provided for under relevant Australian legislation.

42 Regulation 5.19(3)(b) relevantly provides that, unless the approved appointment is exceptional, a person will only be a highly skilled person in relation to a nominated position if, in respect of work of the kind to be performed in that position, the person has been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least three years.

43 Regulation 5.19 and clause 856 of Schedule 2 are part of the Employer Nomination Scheme (the ENS). The Minister has published Procedures Advice Manual III (the Manual) to assist decision makers in connection with the ENS. Part of the Manual deals with the approval of nominated positions under reg 5.19. Another part of the Manual deals with the Schedule 2 provisions dealing with 856 visas. Since the grounds upon which the Visa Applicant seeks to impugn the Tribunal’s decision relate to the application of the provisions of the Manual, it is necessary to say something about the relevant provisions.

44 The first relevant part of the Manual, which deals with reg 5.19, states the policy objectives of the ENS. It says that employer nominations enable Australian employers to recruit, for permanent positions, both highly skilled and skilled workers, either from overseas, or from persons temporarily in Australia, in circumstances where an employer has been unable to fill a vacancy from within the Australian labour market or through the employer’s own training efforts. The policy objectives are said to be:

• to enhance Australia’s ability to compete globally;
• to overcome genuine shortages in the Australian labour market for highly skilled or skilled workers;
• to maintain the integrity of Australia’s migration program while enabling employers to meet genuine needs;
• to enhance opportunities for Australians to acquire new skills and knowledge through a transfer of skills from highly skilled migrants.

45 The Manual states that the assessment process comprises two distinct stages. The first relates to the assessment, in Australia, of the nomination lodged by an employer. The second relates to the assessment of the nominee’s application for, relevantly, an 856 visa. The first relevant part of the Manual relates to the first stage. The second relevant part of the Manual relates to the second stage. Officers are expected to assess nominations and visa applications in accordance with the policy and procedures outlined in both parts of the Manual.

46 The Manual deals with employer nominations, in accordance with the ENS, under several heads as follows:

• ENS Business and Employment Requirements.
• ENS Training Requirements.
• ENS Labour Market Testing.
• ENS Highly Skilled Person Requirement.
• ENS Exceptional Appointments.
• ENS Cases – Decision Making.

The head dealing with "ENS Exceptional Appointments" is specifically relevant to the issues raised in the proceeding. That part comprises three sections as follows:

• Assessing ENS Exceptional Appointments.
• Assessing Exceptional Appointments for ENS Nomination Purposes.
• Assessing Exceptional Appointments for ENS Visa Purposes.

47 Section 26.1 of the Manual states that the "Exceptional Appointment" provisions relate to:

• the three year post training experience component of the highly skilled person definition in relation to a nominated position;
• the exemption from the Schedule 2 age requirement ("has not turned 45"); and
• exemption from the Schedule 2 vocational English requirement.

Exceptional appointments in relation to the training experience component are to be assessed by the decision maker considering the employer nomination. Exceptional appointments based on the nominee’s age or English ability are to be assessed by the visa decision maker.

48 Section 26.5 sets out the steps involved in the assessment process. Step 1 involves the employer providing reasons why an appointment to the nominated position should be an exceptional appointment under reg 5.19(3)(b). Under Step 2, the nomination assessing officer decides whether the nomination is an exceptional appointment within reg 5.19(3)(b) and provides a report to the visa assessing office:

• giving full reasons for the appointment being assessed as exceptional:
• providing comments on whether an exceptional appointment on the grounds of age or English is warranted; and
• providing any comments that may have been received from other agencies.

49 Step 3 involves the nominee, being a visa applicant, lodging a visa application and, if an exceptional appointment on the grounds of age or English is sought, lodging a submission giving reasons why an exceptional appointment should be considered if the employer has not already done so in the nomination stage. Under Step 4, the visa assessing officer decides whether the nominee satisfies the visa criteria under Schedule 2, including age and English language requirements and, if an exceptional appointment on the grounds of age or English is sought, whether the appointment is exceptional for age or language ability.

50 Section 27 of the Manual then deals with assessing exceptional appointments by reference to the requirement of reg 5.19(3)(b). Section 27.2 of the Manual provides that the onus of proof that a position should be approved as an exceptional appointment rests with the employer and that an employer seeking an exceptional appointment will need to demonstrate how the position is exceptional. The employer is required to lodge a separate submission if the employer intends to nominate a person for the position who is 45 years or older or does not have vocational English ability.

51 Section 28 of the Manual deals with the assessing of exceptional appointments for visa purposes. Section 28.1 of the Manual provides that, if an exceptional appointment is approved on "any one of the 3 grounds", a visa applicant is still required to satisfy the other two grounds. For example, if an appointment is approved as exceptional on the grounds of age, the visa applicant would still be required to meet the vocational English and the three year post training experience requirements.

52 Section 28.3 of the Manual deals with "Waiver on age grounds" and section 28.4 deals with "Waiver of the English requirement". Section 28.4 of the Manual provides that the "Schedule 2 vocational level of English required for visa... 856 applicants" is to support the policy intention that ENS applicants are not only highly skilled but are also able to transfer their skills to the Australians they work with. The Manual then provides that a visa applicant might seek waiver of the vocational English requirement on the basis that the appointment is exceptional. In such cases, policy requires the employer to demonstrate:

• that there is a need for an exceptional appointment; and
• what efforts have been made to find a person overseas and in Australia with vocational English.

If it is claimed that it is not necessary for the applicant to have vocational English to do the work, the onus is on the employer to provide sound reasons why the applicant does not need vocational English and how the applicant would be able to transfer skills to the Australians with whom the applicant works.

53 The Manual states that it would normally be expected that appointments be considered exceptional for the English language requirement only if the applicant is to work in an occupation where it is not essential that the applicant has vocational English to transfer skills to the Australian workforce. It states that such situations may occur in special circumstances, where most of the work to be performed is in the language of the applicant, "such as religious workers". However, the Manual says that an Applicant would still be expected to have English ability approaching functional, which is generally required for a person nominated to fill a position "under ENS, reflecting the highly skilled nature of position". The Manual says that functional English is also considered the necessary English level "for a person to have due regard to other issues". That appears to refer to considerations such as occupational health and safety training and supervision considerations.

54 The Manual then goes on to say that, if the applicant does not have functional English, as defined in reg 5.17, policy requires the employer to demonstrate that:

• a suitably qualified person with functional English is not available from the local labour market or overseas; and
• a person with less than functional English is able to undertake all the responsibilities and duties of the nominated position, including occupational health and safety training and supervision considerations; and
• the prospective visa applicant worked in the nominated position in Australia on a temporary residence visa for a reasonable period (at least 12 months) immediately prior to the visa application being made and had during that period undertaken some training in English.

55 Section 5(2) of the Act provides that, for the purposes of the Act, a person has functional English at a particular time if:

• the person passes a test that is approved by the Minister and is conducted by a person or organisation approved by the Minister; or
• the person provides the Minister with prescribed evidence of the person’s English language proficiency.

Regulation 5.17 specifies the evidence that is prescribed evidence of English language proficiency. Functional English involves less knowledge of English than vocational English.

56 The second relevant part of the Manual deals with the Schedule 2 requirements for an 856 Visa. Section 8 of that part of the Manual deals with the question of whether an appointment is exceptional. It states that the Department’s Business Centre officers assess whether the appointment is exceptional when assessing the employer nomination. Those officers are also required to assess separately and decide whether the appointment is exceptional for visa purposes, in all cases where the nominee is 45 or older or there is anything to suggest that the nominee does not have vocational English.

57 Under section 8.2 of the Manual, in assessing the "exceptional appointment" criterion, visa decision makers should, under policy, rely on the assessment provided by the Business Centre. That is to say, they are to consider an approved appointment to be exceptional for the purposes of the criterion in clause 856.213(c) if a favourable assessment to that effect is received from the Business Centre. If relevant, to assist in the decision, the decision maker may send to the Business Centre, a copy of the supporting information submitted by the applicant. However, the Manual emphasises that the onus is on the employer to provide grounds as to why the appointment is exceptional.

NOMINATION OF THE VISA APPLICANT

58 The Visa Applicant was nominated in accordance with reg 5.19(2) by an employer known as "Toy Hut" (the Toy Hut Business). The Toy Hut Business is carried on in partnership by two individuals (the Toy Hut Proprietors). The Toy Hut Business nominated the Visa Applicant in respect of the position of Production Supervisor and Toy Designer in the Toy Hut Business.

59 The Toy Hut Business manufactures soft toys for the souvenir market. At the time of the Tribunal’s decision, the following were employed in the Toy Hut Business:

• the Toy Hut Proprietors,
• three machinists/junior sewing designers,
• approximately 20 subcontractors, and
• a trainee working part-time while studying design.

60 The position of Production Supervisor and Toy Designer with the Toy Hut Business would require a person with at least 10 years experience in production management. The Production Supervisor and Toy Designer:

• would be responsible for all aspects of production supervision, quality control, implementation of safety requirements, control of production reports and directing production activities and training for Toy Hut;
• would be the designer of products, being responsible for preparing sketches and consulting with customers in relation to design;
• would undertake research and development and consider aspects of design and production such as the availability of material, production methods, new technology and marketing; and
• would oversee junior sewing designers and modify designs to meet manufacturing or cost requirements.

61 In a letter of 4 February 2005 to the Minister’s delegate, the Visa Applicant’s migration consultant made the following request in relation to the position of Production Supervisor and Toy Designer with the Toy Hut Business:

"I hereby request for [the position of Production Supervisor/Toy Deisgner] to have exceptional appointment approved for vocational English requirement, as the sponsor was unable to secure any suitable person for the position from the labour market test and the above position having exceptional nature of the appointment for the position of production supervisor and toy designer for the sponsor’s soft toy manufacturing and design business.

Therefore the [Visa Applicant] is required to have the Vocational English and Age requirement exempted ..."

While the syntax of that request is somewhat obscure, its meaning is tolerably clear: it was a request for the position of Production Supervisor and Toy Designer with the Toy Hut Business to be treated as an exceptional appointment within the meaning of reg 816.213(c). That is how the Tribunal construed the request.

62 On 13 January 2006, the Tribunal wrote to the Visa Applicant inviting him:

• to provide evidence that he had vocational English;
• to provide a statement addressing why the position of Production Supervisor and Toy Designer with the Toy Hut Business should be considered as exceptional and why it was essential to the operation of the Toy Hut Business;
• to submit information on current employees of the Toy Hut Business, its training program, how he provided training to English speaking employees, the policy of Toy Hut for occupational health and safety and the Visa Applicant’s role in implementing that policy.

63 The Visa Applicant responded to that invitation and provided the Tribunal with information along the lines identified by the Tribunal in the invitation. He submitted an occupational health and safety manual and a toy design training plan. In addition, a revised organisation structure plan of the Toy Hut Business was provided. He also provided the results of a new IELTS test sat by him, which showed that he had not achieved a score high enough for him to be treated as a person who has vocational English.

64 A submission to the delegate signed by one of the Toy Hut Proprietors stated that the Toy Hut Business urgently needed a Production Supervisor and Toy Designer for its success and outlined the benefit to Australia that would result from the employment of the Visa Applicant. The submission claimed that the Visa Applicant would train the trainees for "design skills, sketches of designed soft toys, identification of fabric characteristics, appropriate use of fabrics and tools...". The submission also claimed that the Toy Hut Business obtained benefit from the Visa Applicant, who had contributed to the development of its business.

THE TRIBUNAL’S DECISION

65 The Tribunal accepted that clause 856.213(a) was satisfied because the Visa Applicant had been nominated in accordance with reg 5.19(2). However, the Tribunal found that the Visa Applicant did not have vocational English as defined in reg 1.15B. The Tribunal concluded, therefore, that it must consider whether the appointment was "exceptional with regard to the requirement that the visa applicant have vocational English".

66 The Tribunal then referred to a number of factors listed in the Manual. The factors referred to by the Tribunal were as follows:

• a suitably qualified person with functional English is not available from the local labour market or overseas;
• a person with less than functional English is able to undertake all the responsibilities and duties of the nominated position including occupational health and safety training and supervision considerations;
• the applicant for a visa worked in the nominated position in Australia on a temporary residence visa for a reasonable period, immediately prior to the visa application being made and had during this period had undertaken some training in English.

67 The Tribunal also quoted the following extract from the Manual:

"It would normally be expected that appointments be considered exceptional for the English language requirement only if the applicant is to work in an occupation where it is not essential they have vocational English to transfer their skills to the Australian workforce. These situations may occur in special circumstances where most of their work to be performed is in their own language, such as religious workers."

68 Thus, the Tribunal considered matters in a slightly different order from that set out in the Manual. It will be necessary to return to that aspect of the Tribunal’s reasoning, which does not make clear the distinction drawn in the Manual between the requirement for vocational English and the requirement for functional English. The Tribunal does not explain the interaction between the requirement in clause 856.213(c) for vocational English and the references in the Manual to the requirement for the lower standard of functional English.

69 The Tribunal noted that the Toy Hut Business had claimed that it had not been possible to find a suitably qualified person with functional English locally. That appears to be an acceptance that the Visa Applicant does not have even functional English. The Tribunal observed that there was no evidence that the Toy Hut Business had tried to recruit overseas, although it presented evidence of "labour market testing" to the delegate.

70 The Tribunal found that the Toy Hut Business does not at present employ people who do not speak Korean, which is the only language spoken in the Toy Hut Business workplace. The Tribunal had evidence of the Visa Applicant speaking Korean to employees of the Toy Hut Business when he was explaining aspects of their work. One of the Toy Hut Proprietors gave evidence that, although non-Korean speaking people had been employed by the Toy Hut Business at times, they did not usually stay very long because of the culture and language barrier.

71 The Tribunal then observed that, while that situation would permit the Visa Applicant to pass his skills on easily to current employees of the Toy Hut Business, non-Korean speaking employees were effectively barred from working with the Toy Hut Business and receiving training from the Visa Applicant. The Tribunal found that, without the assistance of an interpreter, the Visa Applicant is not able to take occupational health and safety training and is not able to implement that training or pass on such measures to non-Korean speaking people.

72 The Tribunal also observed that, although detailed training plans, both for toy design and for occupational health and safety measures, were presented to the Tribunal as programs drawn up for the Toy Hut Business, those programs had not been implemented to any meaningful degree. The Tribunal said that Visa Applicant had only undertaken his occupational health and safety training in March 2006 and, at the time of the hearing before the Tribunal, the toy design training had not been implemented.

73 Finally, the Tribunal observed that, although the Visa Applicant has been in Australia since 1998 and had worked for the Toy Hut Business as a full time employee from January 2004, his exposure to English in his daily life had been limited. He has not undertaken an intensive English course, although he has attended classes from time to time. While he has been able to function in his employment with the Toy Hut Business, that is not due to any improvement in his English skills but to the fact that Korean only is spoken in the workplace. The Tribunal was not satisfied that the Visa Applicant had made a concerted attempt to learn English in the eight years he has been in Australia.

74 The Tribunal was therefore not satisfied that the Visa Applicant is able to pass on his skills as a production supervisor or toy designer to employees who may not speak Korean. The Tribunal was also not satisfied that he would be able to undertake all the responsibilities and duties of the position of Production Supervisor and Toy Designer with the Toy Hut Business, including occupational health and safety training and supervision, if the Toy Hut Business were to employ people who did not speak Korean.

75 The Tribunal expressed the view that the policy intention of the legislation is not that a person should be able to pass on skills and supervise a workplace that is confined to people who speak that person’s language. The Tribunal noted that the policy guidelines in the Manual addressed situations such as "congregations of religious workers, or other social situations". The Tribunal considered that a workplace "does not fall within this situation". The Tribunal was not satisfied "that the appointment is exceptional and that the [Visa Applicant] would not be required to have a level of English that is less than vocational".

76 The Tribunal then said:

"As the Tribunal has found that the appointment is not exceptional on the grounds of age the Tribunal has no option but to find that [the Visa Applicant] does not meet the essential criteria for the visa."

It is common ground that the word "age" in that extract should read "language". Thus, the Tribunal’s conclusion was that "the appointment is not exceptional on the grounds of language".

77 At the relevant time, the Visa Applicant had turned 45 but was not yet 50. Accordingly, the Tribunal also considered a submission that the appointment "should be considered exceptional on the grounds of age as well as English". The Tribunal referred again to the Manual. In particular, the Tribunal referred to provisions in section 28.3 of the Manual to the effect that, if an applicant is over 45 but under 50 years old, the circumstances may be considered exceptional if:

• the position is essential to the operation of the business; and
• it is demonstrated that it is not possible to find a suitably qualified person younger than that applicant for a visa.

The Tribunal accepted that the appointment of a Production Supervisor and Toy Designer is essential for the Toy Hut Business and that "the nomination met labour testing requirements". The Tribunal then referred to the claim by the Toy Hut Business that it had not been successful in finding other possible candidates "for the position" and observed that the staff of the Toy Hut Business are all Korean speaking and that that was the common language of the workplace, which would make it difficult for a non-Korean speaking person to be appointed.

78 Given its findings, the Tribunal found that the Visa Applicant does not meet the criteria in clause 856.213(c), as he does not have vocational English and the Tribunal was not satisfied that the "appointment is exceptional". The Tribunal therefore affirmed the decision of the delegate.

THE FEDERAL MAGISTRATES COURT

79 The grounds of the amended application to the Federal Magistrates Court, in so far as they were pressed in the appeal, were that the Tribunal failed to address itself to the correct legal question, that question being whether the relevant "appointment is exceptional". The grounds were particularised as follows:

• The Tribunal simply addressed the questions of whether the Visa Applicant had made a concerted effort to learn English and would be able to pass on skills to any English and non-Korean speaking employees who may be hired in the future.
• The Tribunal applied a policy that was ultra vires clause 856.213(c) in that:

- the policy narrows the meaning of the words "unless the appointment is exceptional" inconsistently with the plain meaning of those words;

- clause 856.213(c) does not permit labour market testing in circumstances where such testing is required by reg 5.19(2)(e) before approval is granted for an employer nomination.

Other grounds were argued before the Federal Magistrates Court that were not pressed on the appeal.

80 The Federal Magistrates Court dealt with the grounds as they were argued. It is by no means clear, however, that the grounds as relied upon in the appeal are entirely at one with the grounds argued before the Federal Magistrates Court. One question that could arise is whether the argument as it was finally formulated in the Full Court goes beyond the grounds contained in the amended application so as to require leave to amend. Suffice it to say, at present, that the primary judge dealt fairly and fully with the contentions advanced on behalf of the Visa Applicant at the hearing below.

THE APPEAL

81 The grounds in the notice of appeal follow the language of the grounds in the amended application to the Federal Magistrates Court. In substance, the grounds of appeal are that the Federal Magistrates Court erred in so far as it did not conclude, on the grounds of the amended application still pressed, that there was jurisdictional error on the part of the Tribunal.

82 The language of clause 856.213(c) directs attention to an "appointment" and calls for determination as to whether that appointment is "exceptional". It appears to be common ground that the word "exceptional" should be understood as meaning unusual or atypical. A preliminary question is whether appointment refers to a job or position, rather than the act of appointing someone to a job or a position. Both are unexceptionable meanings of the word in ordinary English.

83 The meaning of a word in a statute or statutory instrument is a question of law, to be determined by reference to the context of the word in the statute or instrument and the purpose or object of the provision within the statute or instrument. Ordinarily, of course, a word in a statute or instrument is given its meaning in ordinary English. That is a matter of fact of which judicial notice might be taken by reference to dictionaries and the like. However, once the meaning of a word is determined, the question of whether the particular circumstances of the case fall within that word is one of fact for the relevant decision maker: so long as the finding made by the decision maker is open to it on the material before it, there would be no error of law that could constitute jurisdictional error.

84 No contention appears to have been advanced on behalf of the Visa Applicant to the primary judge that the finding made by the Tribunal was not open to it on the material before it. Further, the construction of the word appointment, as meaning the job or position in the business of Toy Hut, as distinct from the construction meaning the act of appointing the Visa Applicant to that job or position, does not appear to have been advanced in the Federal Magistrates Court.

85 Some assistance may be given to the meaning of the word appointment by the references in reg 5.19. For example, reg 5.19(1) refers to approval of a nominated position as an approved appointment. Further, the applicant in question must be a highly skilled person, within the meaning of reg 5.19, "in relation to [the relevant] appointment". Regulation 5.19(3) provides that a person is a highly skilled person "in relation to a nominated position" if, in respect of work of the kind to be performed in that position, certain prerequisites have been satisfied.

86 Under reg 5.19(4)(b), an employer nomination meets the requirements of the provisions if, relevantly, the appointment will provide the employee with full time employment and will be for at least two years. Under reg 5.19(4)(c), an employer nomination will not meet the requirements if the work to be performed requires the appointment of a person who has a diploma or higher qualification, unless the appointment is exceptional.

87 The references to the word appointment in reg 5.19(3) tend to suggest that appointment means the job or position. The reference to highly skilled person in clause 856.213(b) refers expressly to reg 5.19. That is a compelling reason for reading the word appointment in clause 856.213(b) as meaning the job or position. On the other hand, while the reference in reg 5.19(4)(b) suggests the job or position, the reference in reg 5.19(4)(c) rather suggests that appointment could mean the act of appointing to a job or position.

88 No claim was made on behalf of the Visa Applicant, in the amended application to the Federal Magistrates Court, in the argument before the Federal Magistrates Court or in the notice of appeal to the Federal court, that the Tribunal made any error of law as to the meaning of the word "appointment". The argument, rather, was directed to misinterpretation of the word "exceptional". In his written submissions, the Visa Applicant contended that the appointment referred to in clause 856.213 is a specific position in a specific business of a specific employer. According to that submission, it is the job or position of Production Supervisor and Toy Designer with the Toy Hut Business that must be shown to be exceptional.

89 In the appeal, the Visa Applicant contended, in substance, that the job or position of Production Supervisor and Toy Designer with the Toy Hut Business was exceptional because:

• the job or position calls for supervisory and training skills and qualification as a Production Supervisor and Toy Designer;

• at the present time and in the likely future none of the employees of the Toy Hut Business speaks any language other than Korean and it is therefore essential for the Toy Hut Business to have a suitably qualified person who can speak Korean,

• the Visa Applicant is suitably qualified and can speak Korean and it has not been possible to find locally a suitably qualified person with functional English who can speak Korean.

90 The Visa Applicant contended on the appeal that, while that case was put to the Tribunal, it was not addressed by the Tribunal. He contended that, because there was no call for the use of English in the context of the specific appointment as Production Supervisor and Toy Designer with the Toy Hut Business, the question of his attempts to learn English did not arise. He said that, because there are presently no non-Korean speakers employed in the Toy Hut Business and there are unlikely to be any non-Korean speakers, it is irrelevant that the Visa Applicant is unable to pass on his skills to non-Korean speakers. The Visa Applicant contended that, by taking those matters into account, the Tribunal asked itself the wrong questions.

91 The Visa Applicant contended that, while the Manual may have exhibited an intention to focus on English language skills, the Regulations themselves do not. The Visa Applicant asserted in addition that, in considering the Visa Applicant’s English language skills, the Tribunal went beyond the policy stated in the Manual and, in doing so, the Tribunal interpreted that policy, rather than the Regulations. He said that the policy found in the Manual impermissibly narrows the scope of clause 856.213(c) and that the Tribunal added a gloss to the Regulations: in those circumstances, the Tribunal did not address the question posed by the Regulations.

92 Next, the Visa Applicant contended that the Tribunal erred in considering whether the appointment was exceptional as to the language and the age criteria separately. He said that the Tribunal failed to consider the requirements of the position of Production Supervisor and Toy Designer with the Toy Hut Business and therefore failed to consider whether the industrial, supervisory and lingual skills required by that position made the appointment exceptional in the relevant sense. In that way, the Tribunal also failed to ask itself the correct question.

93 Finally, the Visa Applicant submitted that, since reg 5.19(2)(e) requires consideration of labour market testing at the stage of nomination by the employer, there is nothing in clause 856.213(c) that either requires or permits a decision maker to reach a conclusion as to labour market testing independently of, and possibly inconsistently with, the conclusion reached under reg 5.19(2).

94 The Visa Applicant did not contend that the Tribunal failed to apply the guidelines in the Manual when they should have been applied. Nor did he contend that the Tribunal misapplied the guidelines in the Manual. The thrust of the argument was that the guidelines in the Manual are inconsistent with clause 856.213 and that the Tribunal, by having regard to and applying those guidelines, failed to address the question thrown up by clause 856.213(c), namely, whether "the appointment is exceptional".

95 The Tribunal’s finding was that, while at the present time, vocational English is not essential in order to transfer skills or otherwise train work colleagues at the Toy Hut Business, that will not necessarily continue to be the case in the future. The Tribunal makes clear its understanding that the policy intention of clause 856.213 is that a visa applicant should be able to pass on skills and supervise a workplace that is not confined to people who do not understand English but who speak only the language of a particular visa applicant. The Tribunal found that the mere fact that none of the employees of the Toy Hut Business speaks any language other than Korean at the present time was not sufficient to make the appointment of Production Supervisor and Toy Designer with the Toy Hut Business exceptional within the meaning of clause 856.213(c).

96 The guidelines in the Manual recognise the distinction between vocational English and functional English. The scheme of those guidelines is that an appointment will be regarded as exceptional only if the job or position in question is one in which it is not essential for the person filling it to have a vocational level of English in order to transfer that person’s skills or otherwise train work colleagues. That involves consideration of the nature of the work to be performed and how an applicant for a visa might transfer skills to Australian employees. However, even if exceptional circumstances apply, such that an applicant is not required to have vocational English, an applicant must have at least an English proficiency near to functional. If a visa applicant does not have even functional English, it is necessary to demonstrate that a suitably qualified person who does have functional English is not available from the Australian labour market or from overseas and that a person without functional English is able to undertake all the responsibilities and duties of the relevant position, including occupational health and safety training and supervision.

97 The Tribunal found, in essence, that while at the present time, all employees of the Toy Hut Business speak only Korean, that may not always be so. Accordingly, the Tribunal considered that the fact that all employees at present understand only Korean is not sufficiently exceptional to justify waiving the requirement for the person appointed to the job or position in question to have a minimum requirement of vocational English. That was a finding that was open to the Tribunal on the material before it. That conclusion does not involve a misapprehension of the meaning of the provisions such as might suggest that the Tribunal did not address the question required to be addressed by the language of clause 856.213(c).

98 The language of the Manual calls for an inquiry as to whether the job or position, or the act of appointing a person to the job or position, is unusual or atypical, having regard to the necessity or requirement for a person in the relevant job or position to have a minimum comprehension of English. That language is not inconsistent with the language of clause 856.213. That is to say, the clear intention of clause 856.213(c) is that, unless there is something exceptional, vocational English is a necessity. The Tribunal held that the mere fact that, at a given time, all of the employees of the Toy Hut Business understood only Korean and there was no other suitably qualified person who speaks Korean, was not sufficient to justify waiver of the requirement for a basic knowledge of English. That conclusion was open to it on the material before it.

99 The Tribunal said that it was not satisfied that the Visa Applicant would be able to pass on his skills to employees who may not speak Korean or to undertake all the responsibilities and duties of occupational health and safety training and supervision, with less than functional English, if the Toy Hut Business were to employ people who did not speak Korean. The Tribunal then noted that the policy guidelines in the Manual addressed situations such as "congregations of religious workers, or other social situations". The Tribunal considered that a workplace "does not fall within this situation". For those reasons, the Tribunal was not satisfied that "the appointment is exceptional" and that the Visa Applicant would not be required to have "a level of English that is less than vocational".

100 Clearly enough, the Tribunal was referring to the Manual, where it is said that the vocational English requirement would be waived only if an applicant for a visa has been nominated to work in a position for which it is not essential to have a vocational level of English in order to transfer skills or otherwise train work colleagues. The Manual says that such situations "may occur in special circumstances where most of the work to be performed is in their own language, such as religious workers". The Manual does not, of course, limit the situations that might be regarded as exceptional to "congregations of religious workers or other social situations". The guidelines in the Manual give the example of religious workers, most of whose work is to be performed in their own language. However, the critical guideline is that the requirement for vocational English should only be waived for an appointment where a vocational level of English is not required in order to transfer skills or otherwise train work colleagues. That is the approach adopted by the Tribunal.

101 The Visa Applicant also contended that the Manual called for "labour market testing" and that that was inconsistent with the scheme of the Regulations, having regard to reg 5.19(2)(e). He said that, since it was accepted that clause 856.213(a) had been satisfied, it must follow that reg 5.19(2)(e) had been satisfied. It follows, therefore, that the Tribunal must have been satisfied, in terms of reg 5.19(2)(e), that an Australian citizen or permanent resident could not be found who is suitable for the appointment or that, in the circumstances of the case, the Toy Hut Business should not be required to seek a suitable employee in Australia.

102 However, there is nothing in the relevant part of the Manual that called for "labour market testing". In so far as the Manual requires that a suitably qualified person who does not have functional English is not available from the Australian labour market or from overseas, that is in a context where the relevant applicant not only does not have vocational English but does not even have functional English. That is not inconsistent with the decision maker having been satisfied, in terms of reg 5.19(2)(e), that an Australian citizen or permanent resident could not be found who is suitable for the appointment or that, in the circumstances of the case, a suitable employee in Australia need not be sought.

103 The requirement for vocational English is capable of being perceived as an important matter of policy. The policy intention, as the Manual makes clear, is that an applicant not only be a highly skilled person but also be able to transfer skills to the Australian workforce and be able to comply with occupational health and safety issues. The Tribunal’s conclusion that the relevant appointment is not exceptional is a conclusion that there is no adequate reason why a person appointed to the position of Production Supervisor and Toy Designer with the Toy Hut Business should not be required to have vocational English, so as to be able to transfer skills to Australian employees who speak English and be able to comply with occupational health and safety requirements that call for a comprehension of English. The Tribunal addressed the correct question; its conclusion was one of fact and was not subject to any error that could be characterised as jurisdictional error.

CONCLUSION

104 There was no jurisdictional error on the part of the Tribunal. That is the conclusion reached by the Federal Magistrates Court. It follows that the appeal must be dismissed with costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 29 June 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2185 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JUNG KUK AN First Appellant SOON JIN LEE Second Appellant JI HYAN AN Third Appellant JI SON AN Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGES:	LINDGREN, EMMETT AND FINKELSTEIN JJ
DATE:	29 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FINKELSTEIN J:

105 The first appellant, Jung Kuk An, is from Korea. By profession he is an industrial (toy) designer. He has worked in the toy industry for many years with a long stretch as production supervisor at a toy designer. Mr An applied for an Employee Nomination (Residence) (Class BW) visa so that he could work at Toy Hut Company, a local toy manufacturer. His application was refused by the Minister’s delegate on the basis that he failed to meet the criteria for that class of visa. The delegate’s decision was affirmed by the Migration Review Tribunal and an application to the Federal Magistrates Court to review the tribunal’s decision was unsuccessful. We now have the appeal from the decision of the magistrate.

106 It is a notorious fact that there is in Australia a shortage of skilled workers. The government is making significant efforts to entice young highly skilled workers to come here to work. Skilled workers who meet specified criteria can obtain an Employee Nomination (Residence) (Class BW) Visa that will enable them to remain and work in Australia for five years. Members of the worker’s family unit can accompany them provided they too meet certain criteria.

107 An applicant for an Employee Nomination (Residence) (Class BW) Visa is required to have been nominated by an employer in respect of an appointment in the business of that employer in accordance with reg 5.19 of the Migration Regulations 1994 (Cth): Migration Regulations, sch 2, sub-class 856, cl 856.213(a). In brief, regulation 5.19 provides that an employer may apply for approval of a nominated position as an approved appointment. The approval will be granted if the employer requires the services of a highly skilled person for full time employment for at least three years in a business located in Australia and the Minister is satisfied that "an Australian citizen or an Australian permanent resident cannot be found who is suitable for the appointment or (ii) in the circumstances of the case the employer should not be required to seek a suitable employee in Australia": reg 5.19(2). Reg 5.19 is not, as cl 856.213(a) might suggest, concerned with the nomination of a particular person to an identified position. It is the machinery by which a particular position is identified as one suitable to be filled by a highly skilled worker who is recruited from overseas or from persons temporarily in Australia.

108 A visa applicant that is a highly skilled person within the meaning of regulation 5.19 must satisfy certain other criteria, the only one which is presently relevant being that "unless the appointment [in the business of the employer] is exceptional [the applicant]: (i) has not turned 45; and (ii) has vocational English.": Migration Regulations, sch 2, sub-class 856, cl 856.213(c). It is common ground that Mr An was older than 45 (he was 46) at the time of his application and does not have vocational English, a concept that is defined in reg 1.15B. So the question for the tribunal was whether Mr An’s appointment was "exceptional" in the case of the age and vocational English requirements.

109 The Minister’s department has a "Procedures Advice Manual" which, among other things, gives guidance to administrative decision-makers who are required to assess an application lodged by an employer under reg 5.19 and those who are required to assess whether an appointment is an "exceptional appointment" for the purposes of cl 856.213(c). There is nothing wrong with laying down guidelines for administrative decision-makers. On the contrary, it is a sensible way to proceed when decision-makers are required to deal with a multitude of similar applications. Guidelines will advance the kind of certainty that is, or is often said to be, lacking in government decision-making. But, the decision-maker must take care when applying the guidelines. A decision maker who does not follow the guidelines, or who misconstrues them, can fall into error.

110 For present purposes it is necessary to refer to only that part of the Manual that deals with the "Waiver of the English requirement". Clause 28.4 reads:

"If the nominee does not have vocational English

A visa applicant might seek waiver of the vocational English requirement on the basis that the appointment is exceptional. In such cases, poliy requires the employer to demonstrate:

• that there is a need for an exceptional appointment and

• what efforts they have made to find a person overseas and in Australia with vocational English.

If it is claimed that it is not necessary for the applicant to have vocational English to do the work, the onus is on the employer to provide sound reasons why the applicant does not need vocational English and how the applicant would be able to transfer their skills to the Australians they work with.

It would normally be expected that appointments be considered exceptional for the English language requirement only if the applicant is to work in an occupation where it is not essential they have vocational English to transfer their skills to the Australian workforce. These situations may occur in special circumstances where most of their work to be performed is in their own language, such as religious workers. However, the applicant would still be expected to have English ability approaching functional.

Functional English is generally required for a person nominated to fill the position under ENS, reflecting the highly skilled nature of the position. Functional English is also considered the necessary English level for a person to have due regard to other issues.

If the applicant does not have functional English (as defined in regulation 5.17), policy requires the employer to demonstrate that:

• a suitably qualified person with functional English is not available from the local labour market or overseas and

• a person with less than functional English is able to undertake all the responsibilities and duties of the nominated position including occupational health and safety training and supervision considerations and

• the prospective visa applicant worked in the nominated position in Australia on a temporary residence visa, eg a subclass 457 visa, for a reasonable period (at least 12 months) immediately prior to the visa application being made and had during this period undertaken some training in English."

111 Returning to the facts, those that are critical are in short compass and may be taken from the tribunal’s reasons. Mr Lee, the manager of Toy Hut Company, says that the business urgently needs a production supervisor and toy designer. The business does not have any English speaking employees. All employees speak Korean, as do all subcontractors engaged by the business. In the past the business did from time to time employ English speaking employees but, as Mr Lee explained, they did not stay because of cultural and language barriers. So, if Mr An were to be appointed production manager he could easily pass on his skills to current employees.

112 The tribunal was not satisfied that the appointment was exceptional in relation to vocational English. Its reasons are encapsulated in a single paragraph which reads:

"The Tribunal is not satisfied that the primary visa applicant has made a concerted attempt to learn English in the 8 years he has been in Australia. It is not satisfied that he is able to pass on his skills as a production supervisor or toy designer to employees who may not speak Korean or that he would be able to undertake all the responsibilities and duties of the nominated position including occupational health and safety training and supervision considerations with less than functional English if the business were to employ people who did not speak Korean. The Tribunal is of the view that the policy intention of the legislation is not that a person should be able to pass on skills and supervise a work place that is confined to people who speak that person’s language. The Tribunal notes the policy guidelines address situations such as congregations of religious workers, or other social situations. The Tribunal considers that a workplace does not fall within this situation. The Tribunal is not satisfied, for these reasons, that the appointment is exceptional and that the applicant and nominee for the position would not be required to have a level of English that is less than vocational."

On the other hand, the tribunal seems to have been satisfied that the appointment would be "exceptional" as regards the age requirement. The tribunal said:

"As regards the submission by the primary visa applicant that the appointment should be considered exceptional on the grounds of age as well as English and the Tribunal note that it is policy that if the applicant is over 45 but under 50 years old, as is the case in this application, the appointment may be considered exceptional if the position is essential to the operation of the business and the employer demonstrates that it is not possible to find a suitably qualified person younger than the applicant.

The Tribunal has not taken further evidence from the employer on this point. It accepts that the appointment is essential for the business and notes that the nomination met labour testing requirements. The business claimed it had not been successful in finding other possible candidates for the position. The staff of the business are all Korean speaking and this is the common language of the workplace which would make it difficult for a non Korean speaking person to be appointed."

113 The tribunal’s reasoning on the language requirement reveals several errors. Another results from the application of the Manual. I will explain why I have reached the conclusion that the tribunal fell into error.

114 In the ordinary case a visa applicant must be under 45 and have vocational English. Regulation 856.213 recognises, however, that there will be circumstances that will take a case out of the ordinary. It will be out of the ordinary if there is something about the appointment that is unusual or special. Accordingly, reg 856.213 required the tribunal to carry out several tasks. First, it had to decide what was meant by the phrase "the appointment is exceptional" as regards both the age limit and the need for vocational English. As to the meaning of the word "appointment" in the phrase "the appointment is exceptional", I am in broad agreement with both Lindgren and Emmett JJ that the word "appointment" means "position". But I am hesitant to hold that, in deciding whether a particular "appointment is exceptional", it is in all circumstances impermissible to have regard to the characteristics of the visa applicant. Take the cap on age. This criterion ensures young skilled workers come to Australia. They are more likely to make a contribution to this country. Regulation 856.213 recognises, that it is not always possible to find a young person with the requisite skills. Sometimes the nature of the position will indicate that this is so, especially if it is a highly specialised position. Nevertheless, in deciding whether "the appointment [of a particular visa applicant] is exceptional" it may be appropriate to have regard to the applicant’s actual age, for example, is he (or she) 46 or 60. Whether or not this is permissible is a question that need not be resolved.

115 The second task was to identify the relevant "position". The position is not simply the job the visa applicant is after, in this case the production manager at Toy Hut Company. It is a job that exists in a particular environment and the "position" cannot be divorced from that environment. I would describe the position as follows. It is a workplace in which everyone (employees and contractors) speak the Korean language; where no-one (employees or contractors) speaks English; and is a workplace at which it is unlikely in the foreseeable future that there will be anyone (employees or contractors) who will not speak Korean. The first two characteristics are, in substance, the facts found by the tribunal. The third characteristic is an inference drawn from the facts found by the tribunal.

116 In examining the facts I note the tribunal said that the visa applicant would not be able to carry out his duties "if the business were to employ people who did not speak English". This may be true. But it is irrelevant as on the facts as found there is little prospect of this occurring, at least in the foreseeable future. When I speak of the foreseeable future I mean a period of five years or so from the time of decision as the visa applicant is applying for a visa that only has a life of five years.

117 The third task was to decide whether, having regard to its characteristics, the position of production manager at Toy Hut Company was unusual or, to use the word of the regulation, "exceptional" as regards both the age limit and vocational English.

118 I am of the view that most likely the position is unusual (that is exceptional) as regards the language requirement. There are few workplaces in Australia where, as here, the ability to speak English is, for all practical purposes, useless both at the present time and in the foreseeable future. The tribunal reached the opposite conclusion as a result of jurisdictional error.

119 It is clear from its reasons that the tribunal reached its conclusion by ignoring parts of the Manual and misreading other parts. The Manual correctly notes that exceptional circumstances would exist "where it is not essential [for skilled workers to] have vocational English to transfer their skills to the Australian workforce." The Manual then gives as an example a religious worker who is unlikely to need vocational English to perform his or her duties. The example was not intended to limit the kind of position that may be exceptional. Regrettably, the tribunal seems to have treated the example as creating a rule that the only positions that could be treated as exceptional are "situations such as congregations of religious workers or other social situations" and not workplaces.

120 Moreover, the tribunal proceeded on the false assumption that it is always necessary for a visa applicant to speak at least functional English. Firstly there is no requirement in cl 5.6.213(c) that functional English is a requirement. The only question for the tribunal is whether the position is exceptional as regards vocational English. If the position is exceptional then the visa applicant need not speak any English, whether functional or otherwise. Moreover, if, as Lindgren J says (and in my opinion he may well be correct in deciding whether a position is exceptional) the tribunal is only entitled to have regard to the "position" to which an appointment is to be made and not to the characteristics of the visa applicant, then even more reason to hold that an enquiry as to functional English is irrelevant.

121 Secondly, even if the tribunal was permitted to have regard to whether a visa applicant has functional English, the tribunal overlooked that part of the Manual which provides, correctly in my opinion, that functional English is only "generally required". The Manual specifies that functional English was not required if, for example, a suitably qualified person with functional English is not available, a person with less than functional English is able to undertake all the responsibilities and duties of the nominated position and the visa applicant has temporarily worked in the nominated position for at least 12 months and has during that period undertaken some training in English. The tribunal did not undertake this kind of enquiry.

122 Accordingly, I would allow the appeal from the magistrate who, in broad outline, adopted the same approach as the tribunal and set aside the orders with costs. I would refer the matter to the tribunal for reconsideration.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 29 June 2007

Counsel for the Appellants:	Mr L J Karp
Solicitor for the Appellants:	Christopher Levingston and Associates
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	9 March 2007
Date of Judgment:	29 June 2007