Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 183
•29 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 183
File number(s): PEG 371 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 29 October 2021 Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Skilled (Provisional) (Class VC) visa – whether the Tribunal misunderstood or misapplied cl 485.222 of the Migration Regulations 1994 – requirement that qualification used to meet Australian study requirement be ‘closely related’ to nominated skilled occupation – whether applicant denied procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 359A, 359AA, 360, 476, 471(1)
Migration Regulations 1994 (Cth), cls 485.221, 285.222
Cases cited: Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567; [2013] FCA 1301
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Singh v Minister for Home Affairs [2020] FCA 203
Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 6 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 371 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASSAN AHMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application filed on 11 December 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By application filed on 11 December 2020 the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 11 November 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (the visa). The application to this Court is brought under s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons outlined below, I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicant is a non-citizen who has completed courses of study in Australia and overseas. He completed a Bachelor of Science degree in Textile Engineering in Pakistan in October 2013. In Australia, the applicant completed a Diploma of Screen and Media on 8 February 2018 and a Diploma of Marketing and Communications on 22 December 2018.
The applicant applied for the visa on 1 January 2019. The applicant recorded his nominated occupation as ‘Engineering Technologist’ and listed his Diploma of Marketing and Communication and Diploma of Screen and Media as the relevant Australian educational qualifications.
On 18 February 2019 a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant failed to satisfy cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that the applicant’s Diploma of Marketing and Communication was not ‘closely related’ to the applicant’s nominated skilled occupation of engineering technologist as required by cl 485.222 of the Regulations.
On 28 February 2019 the applicant applied to the Tribunal for review of the delegate’s decision.
On 27 August 2020 the applicant appeared at a hearing before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother.
The Tribunal affirmed the decision under review on 11 November 2020.
TRIBUNAL DECISION
The Tribunal identified that to be eligible for the visa, the applicant was required to meet the criteria in Part 485 of Schedule 2 to the Regulations, which included cl 485.221 and cl 485.222. Clause 485.221 requires the applicant to have satisfied the ‘Australian study requirement’ in the six months immediately preceding the day on which the visa application was made and cl 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be ‘closely related’ to the applicant’s nominated skilled occupation.
The issue before the Tribunal was whether the applicant had met the requirement in cl 485.222 of the Regulations. To meet this criteria, it was necessary that the applicant’s Diploma of Marketing and Communication, being the course of study completed within the six months immediately preceding the day he made the visa application, was ‘closely related’ to his nominated skilled occupation of engineering technologist.
The Tribunal provided the following explanation of the meaning of the phrase ‘closely related’(footnotes omitted):
11. The words ‘closely related’ are not defined in the legislation. They do not require an exact correspondence. However, the relationship must be more than merely complementary. In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ANZSCO [Australian and New Zealand Standard Classification of Occupations] descriptions. More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO and further, that the ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation, in other words it is necessary to take account not only of the specific tasks generally performed by the relevant unit group, but the more general description of tasks in the higher groupings into which the nominated occupation falls.
12. It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian studies are ‘closely related’ to the nominated skilled occupation. In carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation. The wording of that criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation, or some part of it.
The Tribunal then proceeded to consider the ANZSCO Code. The Tribunal noted that under ANZSCO, engineering technologists analyse and modify new and existing engineering technologies and apply them in the testing and implementation of engineering projects. The Tribunal identified that engineering technologists belong to the larger grouping of other engineering professionals (unit group 2339), and that engineering professionals in unit group 2339 belong to the minor group 233. The Tribunal set out the tasks that may be required of engineering professionals in minor group 233 and then set out the subjects that the applicant’s transcript indicated he had studied.
The Tribunal had regard to the applicant’s submission that he had chosen to study Marketing and Communication because he wished to familiarise himself with the global marketing environment and enhance his communication skills on an international level, and that skills such as communication, business writing and presentation skills were of great importance to engineers.
The Tribunal acknowledged that the applicant’s Diploma of Marketing and Communication may be of some general use to the applicant in his future career. However, the Tribunal found that this qualification related to marketing and advertising in order to promote a business or product and had no real or necessary relevance to the description of the role of an engineering technologist set out in the ANZSCO.
Further, the Tribunal found the relationship between the applicant’s nominated occupation of engineering technologist and the applicant’s qualification was complementary at best.
The Tribunal found that the applicant did not satisfy the requirement set out in cl 485.222 of the Regulations and affirmed the decision under review.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
In his written application, the applicant has raised the following four grounds, numbered grounds 1, 2 , 3 and 5 (reproduced without alteration):
Ground 1
The Administrative Appeals Tribunal erred in its decision to confirm the decision of the Delegate of the Minister of Home Affairs.
Particulars:
I satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. The Diploma of Marketing and Communication satisfied Regulation 485.221 as it was completed in the period 6 months prior to lodgement.
The Administrative Appeal admitted that the Diploma of Marketing and Communication may possibly assist me in my future career plan. I satisfied the Regulation 485.222, and my all education was related to the nominated skilled occupation.
Ground 2:
The Administrative Appeals Tribunal failed to realise that I was not given procedural fairness.
Particulars
The Administrative Appeals Tribunal failed to realise that the department did not take into consideration my complete studies that I satisfied the requirements for Graduate Visa Subclass 485. The Department and the Administrative Appeal Tribunal admitted that my studies would be beneficial for me in my career. However, when making a decision on the requirements just advised me that the studies were close enough but not as per the ANZCO Code full requirements. That the ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation, in other words it is necessary to take account not only of the specific tasks generally performed by the relevant unit group, but the more general description of tasks in the higher groupings into which the nominated occupation falls.
Ground 3:
The Administrative Appeals Tribunal was harsh in its decision and should have afforded me the benefit of the doubt.
Particulars:
When I lodged my application for subclass 485, I provided the department with all my study documents and as per the ANZCO Code I satisfied the visa requirements. However, the Administrative Appeals Tribunal did not take that into account and followed the decision of the department and advised that the
Ground 5:
The Administrative Appeals Tribunal made an error in law and applied the regulations too strict.
Particulars:
I satisfied the Regulation 485.222, and my education was related to nominated skilled occupation.
The applicant did not file any submissions in accordance with the orders of the Court, but he did provide two documents by email the evening before the hearing. One of these was a copy of a submission or statement that he had provided to the Tribunal. This document was included in the Court Book and is therefore already before the Court. The second document does not contain a heading and was not before the Tribunal. I have treated it as a submission made to this Court. The submission addresses reasons why marketing and communication is important and necessary in engineering.
The matter came before me for hearing on 6 October 2021. The applicant was self-represented and the Minister was represented by Ms Cobey Taggart of counsel.
CONSIDERATION
For the most part, the grounds raised by the applicant in his application and his submissions appear to express strong disagreement with the Tribunal’s finding that he did not meet the relevant criteria for the visa, in particular, that his studies in Australia were not closely related to his nominated skilled occupation. Thus, it appears that the applicant is asking the Court to engage in merits review. This was reinforced by the applicant’s very brief oral submissions, where he submitted that his nominated skilled occupation was closely related to his Marketing and Communication qualification, and that marketing and communication is linked to every industry these days.
The Court has no power to engage in merits review. In order to be entitled to relief before this Court, the applicant must show that there is jurisdictional error in the Tribunal’s decision.
The concept of jurisdictional error was neatly explained by Nettle and Gordon JJ in the
High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
In circumstances where the applicant is self-represented, I have interpreted the grounds broadly and considered whether the applicant is raising anything that might allege jurisdictional error.
As there is some overlap in the issues raised by each ground, it is convenient to deal with the grounds thematically.
The Tribunal has not misinterpreted or misapplied the relevant law
The main complaint made by the applicant throughout the grounds is that the Tribunal found that the applicant’s study was not closely related to his nominated skilled occupation for the purposes of cl 485.222 of the Regulations. Grounds 1 and 5, and the particulars of ground 2 of the application, may be read as an assertion that the Tribunal has misinterpreted or misapplied the law in finding that the applicant’s study was not closely related to his nominated skilled occupation for the purposes of cl 485.222 of the Regulations.
Clause 485.222 sets out one of the criteria that the applicant was required to meet in order to be eligible for the visa. That criteria is:
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The term ‘closely related’ is not defined in the Regulations or in the Act, but the Federal Court has, in a number of cases, considered the meaning of that phrase.
In Singh v Minister for Home Affairs [2020] FCA 203 Derrington J conveniently summarised the principles derived from some of the key cases on this issue, including Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157, Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115 (Talha) and Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567; [2013] FCA 1301. Justice Derrington’s summary, set out at [24], reads:
(a) The words “closely related” require a consideration of the connection between two things, being the relevant course of study and the occupation the subject of the visa application.
(b) The comparison does not require a finding of an exact correspondence between the course of study and the occupation but does require that “the whole of the qualification” must be compared with the “whole of the occupation” to determine whether the necessary close relationship exists.
(c) A conclusion that the qualification and the occupation are “closely related” requires more than a conclusion that the two things are complementary, or that the qualification might be applied or utilised in the course of the nominated profession.
For the purpose of understanding the whole of the nominated occupation, the ANZSCO Code needs to be read as a whole. This requires the Tribunal to look not only at the requirements of the nominated occupation, but also to the higher groupings to which the nominated occupation belongs in the ANZSCO Code.[1]
[1] Talha at [53], [55], [56].
The case of Talha, like the present matter, involved a nominated skilled occupation of engineering technologist. The Full Court in that case found jurisdictional error because the Tribunal took into account only the tasks performed by an engineering technologist as described in Unit Group 2339, as well as the information relating to the occupation of engineering technologist (233914), without making any reference to the relevant higher hierarchies or groupings in the ANZSCO Code of which Unit Group 2339 formed part. The Full Court found that the Tribunal should have referred to the information provided in Minor Group 233 relating to engineering professionals and the description therein of the relevant tasks.
In the present case, the Tribunal was clearly cognisant of the applicable law and case authorities because it accurately summarised them in [11]-[12] as extracted above. The Tribunal has avoided the error made in Talha. The Tribunal has set out at [15] the tasks that may be required of engineering professionals in Minor Group 233. These tasks include:
•planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electrical components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects
•drafting and interpreting specifications, drawings and plans, and determining construction methods
•supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant
•organising and managing project labour and the delivery of materials, plant and equipment
•estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
•resolving design and operational problems in the various fields of engineering through the application of engineering technology.
The Tribunal then noted that the applicant’s transcript indicated that he had completed the following courses (at [16]):
•Undertake project work
•Interpret market trends and developments
•Design and develop an integrated marketing communication plan
•Develop an advertising campaign
•Create mass print media advertisements
•Plan social media engagement
•Plan measurement of marketing effectiveness
•Develop a media plan
•Plan direct marketing activities
•Plan e-marketing communications
•Plan market research
•Make a presentation
•Articulate, present and debate ideas
•Apply digital solutions to work processes
•Apply marketing communications across a convergent industry
•Develop and apply knowledge of marketing communication industry.
The Tribunal assessed whether the applicant’s nominated skilled occupation of engineering technologist is closely related to his Diploma of Marketing and Communication in a manner that is consistent with the relevant Federal Court authorities referred to above. In particular, I am satisfied that the Tribunal has compared the whole of the applicant’s Australian studies with the whole of his nomination in the manner described as appropriate in Talha.
The Tribunal ultimately found that, while the skills the applicant acquired in his Diploma of Marketing and Communication may be of some general use in his future career, the applicant’s diploma was not closely related to his nominated skilled occupation. Rather, the relationship between the applicant’s study and his nominated skilled occupation was merely complementary. The Tribunal’s findings were open to it on the evidence before it. It was ultimately a matter for the Tribunal, not the Court, to decide whether the nominated skilled occupation and relevant study were closely related,[2] and the Tribunal’s reasons show no error in the manner in which it approached this task.
[2] Talha at [53].
In reaching its decision, the Tribunal has not misunderstood or misapplied the applicable law. No jurisdictional error arises on this basis.
The applicant was not denied procedural fairness
In ground 2 of the application, the applicant asserts that the Tribunal did not afford him procedural fairness when assessing his qualification of Diploma of Marketing and Communication against the description in the ANZSCO Code. Although the ground is pleaded as a denial of procedural fairness, the particulars suggest that the real complaint is that the Tribunal did not properly apply or interpret the ANZSCO Code. This has already been addressed above.
I am otherwise satisfied that the applicant was afforded procedural fairness by the Tribunal. The Tribunal has complied with its requirements under Division 5 of Part 5 of the Migration Act. In particular, I observe that:
(a)Upon reaching the view that it could not make a decision favourable to the applicant on the basis of the material before it, the Tribunal invited the applicant to appear at a hearing before the Tribunal to give evidence and present arguments. This is consistent with the Tribunal’s obligation under s 360 of the Migration Act.
(b)According to the Tribunal’s record of the hearing, the hearing ran for approximately 30 minutes. Based on the description in the Tribunal decision about the evidence that the applicant provided at that hearing, I am satisfied that the applicant had a real and meaningful opportunity to present arguments and make submissions to the Tribunal. The applicant also provided a written submission to the Tribunal, which the Tribunal considered at [21] of its reasons.
(c)In the present case, there was no information before the Tribunal which engaged the requirement under s 359A or s 359AA of the Migration Act to give to an applicant clear particulars of information that might be the reason, or part of the reason, for affirming the decision under review.
The applicant has not been denied procedural fairness.
The Tribunal decision is not affected by actual or apprehended bias
In his written submissions, the Minister has interpreted the applicant’s grounds as raising an allegation of bias.
In my view, the applicant’s grounds do not clearly raise any allegation of actual or apprehended bias, and the applicant did not assert any bias in his oral submissions at the hearing. An allegation of bias is a serious allegation which must be distinctly made and clearly proved.[3] The applicant’s vague references in ground 3 to the Tribunal not giving him the benefit of the doubt or being too harsh in its decision do not distinctly raise any allegation of bias.
[3] Minister for Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69].
Even if the applicant had raised an allegation of bias, I would not find that it is established. There is no evidence before the Court from which it could be concluded that a reasonable lay observer might think that the Tribunal did not bring a fair and impartial mind to the making of the decision.[4] No jurisdictional error arises on the basis of bias.
[4] Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37].
CONCLUSION
I find that there is no jurisdictional error in the Tribunal decision. Accordingly, the application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 October 2021
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