ADEEL v Minister for Immigration

[2017] FCCA 1522

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1522

Catchwords:
MIGRATION – Application for judicial review –skilled residence visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994, Sch.6B, 6C

First Applicant: NOUSHEEN ADEEL

Second Applicant: SHAHID ADEEL

Third Applicant: MUHAMMAD AAYAN ADEEL

Fourth Applicant: ESHAN ADEEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1461 of 2015

Judgment of: Judge Riethmuller

Hearing date: 27 March 2017

Date of Last Submission: 1 May 2017

Delivered at: Melbourne

Delivered on: 6 July 2017

REPRESENTATION

The Applicants appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1461 of 2015

NOUSHEEN ADEEL

First Applicant

SHAHID ADEEL

Second Applicant

MUHAMMAD AAYAN ADEEL

Third Applicant

ESHAN ADEEL

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek a review of a decision by the Migration Review Tribunal (as it was then called) made on 3 June 2015, affirming a decision of a delegate not to grant the applicants Skilled (Residence) (Class VB) subclass 885 (Skilled Independent) visa under the Migration Act 1958. 

2. The residence visa scheme applicable in this case operates on the basis of assigning points for various qualifications and attributes of the primary visa application.  The delegate assessed the first applicant as achieving 110 points with respect to Sch.6B of the Migration Regulations 1994 however the first applicant required 120 points for the issue of the visa. With respect to Sch.6C, the first applicant was assessed as attaining 55 points, however needed 65 points. The second through fourth applicants are the spouse and two children of the first applicant, whose visa applications rise or fall with that of the first applicant.

3. The issues before the Tribunal turned upon whether or not the first applicant had undertaken work as a Management Consultant for more than three years (thus entitling her to 10 points), when she was only awarded five points in the assessment by the delegate. 

4. The Tribunal, at paragraphs [31] and following, carefully assesses each of the categories for which points may be obtained against the facts and circumstances of this particular case.  With respect to the points concerning her employment, the first applicant applied for employment as a “Management Consultant”.  The Tribunal identifies the lengthy description of a Management Consultant from the ANZSCO documents at paragraph [48] of their decision. 

5. In order to fulfil this definition, the first applicant relied upon her employment as a manager at a dry cleaner’s, employment as a manager at a McDonald’s food store, and her employment as a manager at a grocery store selling Indian groceries.  The Tribunal said:

   50.  The Tribunal considers that the duties and responsibilities set out in ANZSCO imply a level of analysis of workplace systems and processes that the Tribunal finds incompatible with managing a dry cleaning establishment, a supermarket, a café and kitchen ware store and working for McDonald’s.  Without intending to be critical of the first named applicant’s competency in her various jobs, the Tribunal does not accept that she was employed as a Management Consultant in any of them.  It considers that her employment with Melbourne City Dry Cleaners and Authentique Foods Pty Ltd is most appropriately classified as that of a Retail Manager (General) (ANZSCO 142211…

6. The Tribunal considered that the first applicant’s employment at McDonald’s was in the category of “Restaurant or Café Manager” as described in the ANZSCO definitions.

7. The Tribunal carefully engaged with the core arguments, stating:

   52.  The fact that the first named applicant may have used some of the skills of a Management Consultant in aspects of her employment does not change the essential character of her employment, and the Tribunal finds that she was not been employed as a Management Consultant for any of the above employers.  In reaching this conclusion, the Tribunal give weight to the following:

   ·   her job title in all 3 jobs incorporated no reference to being a Management Consultant;

   moreover, in the Tribunal’s view, the majority of the duties of each of the jobs were not those of a Management Consultant by a Retail Manager (Melbourne City Dry Cleaners and India at Home/Authentique Foods Pty Ltd) and Café/Restaurant Manager (McDonalds).  In reaching this conclusion, the Tribunal has been mindful to take into account the duties overall and not simply disregarded ones it regarded as incidental (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848; and

   ·   while the Tribunal acknowledges that there may be some cross over in duties between the occupations of Management Consultant, Retail Manager and Restaurant/Café Manager, and that the first named applicant may have used some of the skills she acquired through her studies and previous work as a Management Consultant in Pakistan, it considers that the occupation of Management Consultant (as set out in ANZSCO) is strongly suggestive of the fact that the person carrying out the tasks analyses the operations of businesses in which he or she is not employed; that is, clients of the management consultant.  This is quite different to the situation of the first named applicant who claims to have worked as a Management Consultant within the businesses in which she was directly employed.

   53.  The Tribunal further finds that the occupations of Café or Restaurant Owner and Retail Manager (General) are not listed in the relevant instruments and thus they cannot be counted for the purposes of this part.

   54.  The Tribunal also has some concerns about whether or not the first named applicant worked for at least 20 hours per week at Melbourne City Dry Cleaners, as there was no documentary evidence of this and she held for part of her time there a student visa prohibiting her from working more than 20 hours per week.  However, in light of the Tribunal’s conclusions that the employment was not undertaken in a skilled occupation for the purpose of this part, it is unnecessary for the Tribunal to reach a conclusion on whether or no she worked for 20 hours per week with that employer.

   55.  Given the above, the Tribunal finds that the first named applicant is not entitled to any points under this part.

8. Ultimately, the Tribunal concluded that under sch.6B the applicant was only entitled to 100 points, and under sch.6C that she was only entitled to 50 points. Thus, the Tribunal concluded that the applicant did not satisfy the requirements for the visa.

Grounds of Application

1. The application sets out the following grounds of the application:

   (1) Due to English language requirement

   (2) Due to evidence of employment

   (3) Blood relative permanent resident

Ground One

1. The applicants argued that the English language requirement should be taken to have been fulfilled so as to provide additional points, or at least that they ought to be excused from fulfilling it, as it had altered during the period that they were waiting for temporary visas.

2. As the first applicant was unable to score 7 out of 10 for each of the four language test categories, she received the points for “competent English” rather than “proficient English”.

3. The second applicant developed this argument to be one based on the proposition that due to delays in the time it took from applying for temporary residency to obtain a decision before applying for permanent residency the regulations changed, thus reducing the number of points that were available for the various criteria that were fulfilled. 

4. During the course of the hearing, some efforts were made to identify what criteria had, in fact, changed during the relevant period as alleged by the applicants, but no relevant changes could be identified in the Regulations.  I provided the applicant with an opportunity after the hearing to provide references to or copies of the Regulations that were said to be changed (the Regulations being freely available on the internet) in order to provide a basis for this part of the argument.

5. Ultimately, the only document filed by the applicants after the hearing was a brief affidavit filed on 1 May 2017 which shows an email to the first applicant from May 2011 from what appears to be an agent, listing the documents that are needed for the visa application and included within the list the words “IELTS 6 each”, indicating an IELTS test of at least 6 points for each category.  A later email of 2014 identifies “Basically, we need to show them the 7 each in IELTS”.  Both emails are, in context, correct.  In order to obtain any points for language, the applicant needed at least “competent English” (an IELTS score of 6), which would give her 15 points.  If she wished to obtain 25 points, then she needed the higher score of 7 on the IELTS test.  Clearly, by the time the agent was considering the matter in 2014, having received details with respect to the other matters, the agent appears to have identified that additional points were required and therefore an IELTS score of 7 would be necessary to obtain 10 additional points. 

6. The applicants were not able to identify any change to the regulatory scheme that could be said to have in some way disadvantaged them either through a delay in the decision-making process or delay by an agent.  Even if they had identified such a regulatory change, it is difficult to see that that would have provided a sound foundation for judicial review of the Tribunal’s decision.

7. In this regard, I note that even in the Regulations in the form that they were in as early as 2009, only 15 points were given for “competent English” and 25 for “proficient English”. 

Ground Two

1. The second applicant made submissions on behalf of the applicants and sought to argue that the Tribunal’s decision as to whether or not the first applicant’s employment fell within the meaning of Management Consultant rather than the other definitions should be reviewed.  I see no merit in such argument.  The Tribunal’s decision with respect to the category of employment that the first applicant engaged in appears to me to be plainly correct.  The types of employment that the first applicant had do not fall within either the ANZSCO definition nor, the ordinary understanding of the occupation of “management consultant”. Rather they reflect store or café managers, operating at a relatively low level of business management.

Ground Three

1. The fact that there may be a relative of the applicant who has a visa does not affect this visa application.

2. As the applicants have not established a ground, I must refuse the application. In the circumstances, I therefore dismiss the current application for judicial review.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 6 July 2017