Alsheri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 242
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alsheri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 242
File number(s): SYG 2578 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 25 February 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – skilled independent visa – whether the Tribunal erred in its assessment of pt 6D.3 of sch 6D to the Migration Regulations 1994 (Cth) – jurisdictional error established. Legislation: Migration Regulations 1994 (Cth) reg 2.26AC, cl 189.224 of sch 2, pt 6D.3 of sch 6D Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 11 February 2025 Place: Sydney Counsel for the Applicant: Ms F McNeil Solicitor for the First Respondent: Mr M Gao, HWL Ebsworth Lawyers Second Respondent: No appearance save as to costs ORDERS
SYG 2578 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDULRAHMAN ALSHERI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
25 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 28 October 2020.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants’ application for review according to law.
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 MCCABE:
This case requires the Court to consider whether the Administrative Appeals Tribunal (the Tribunal) misdirected itself by failing to clearly articulate the legal test which it was required to apply.
Every Tribunal review involves supplying an answer to a question derived from an enactment. Experience shows the trickiest part of that process will often lie in correctly framing the question. In many cases, the answer comes easily once the question has been clarified. The Tribunal’s fact-finding process has its own challenges, but that process is carried on in service of the core function, which is to ask and answer the question at issue.
The Tribunal commits a jurisdictional error where it misdirects itself by asking the wrong question. That error is likely to be a material jurisdictional error in and of itself, but it will certainly be material where “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. Importantly, if the Tribunal has misdirected itself, it is not open to the Court on appeal to reframe the question as it should have been asked and consider whether the Tribunal might have given the same answer. Except where the question (properly framed) inevitably yields the same answer as the Tribunal supplied to the incorrect question, the Court would ordinarily exercise the discretion to remit the matter to the Tribunal for reconsideration. That is appropriate because it is the Tribunal and not the Court that must go through the intellectual exercise of asking and answering the question.
While I am mindful of the warning that a Court should not read the Tribunal’s reasons with an eye attuned to error, I am not satisfied the Tribunal asked itself the correct question in this case. The first respondent (the minister) agreed at the hearing that an error of that nature would amount to a material jurisdictional error in this case. It is therefore appropriate to issue a writ of certiorari quashing the Tribunal’s decision and a writ of mandamus commanding the Tribunal to decide the matter according to law. I explain my reasons for that conclusion below.
BACKGROUND
The applicant, Mr Abdulrahman Alsheri, is a citizen of Saudi Arabia. He was trained as a medical physicist. He commenced employment with the Saudi Ministry of Health in the medical imaging department of the King Fahad hospital in Al Baha on 26 July 2010. The acting chief of radiology in that hospital made clear in a letter of certification that Mr Alsheri is well-regarded: exhibit one (the court book) at p 21.
Mr Alsheri has been physically present in Australia since 2016. He had come to Australia to undertake further study. He began with a language course. He has since undertaken studies which are relevant to his career as a medical physicist. He was scheduled to commence a PhD course in 2021.
The applicant was invited to apply for a Skilled – Independent (points-tested) (Subclass 189) visa (the visa) on 18 April 2018. He lodged the application in response to the invitation on 3 June 2018. As the name suggests, these visas are available to skilled persons who can establish their suitability for particular work in Australia using a points system. Regulation 2.26AC of the Migration Regulations 1994 (Cth) (the Regulations) requires that the applicant must be allocated points having regard to the attributes in sch 6D to the Regulations. Clause 189.224(2) of sch 2 to the Regulations says the applicant must be allocated the minimum number of points specified in the invitation to apply for the visa.
The applicant’s overseas work experience was one of the attributes which potentially attracted points under pt 6D.3. The outcome of the case in the Tribunal turned on how the Tribunal dealt with the applicant’s work with the Saudi Ministry of Health.
Mr Alsheri provided a certificate from his employer confirming he remained on the payroll of the Ministry of Health as of 24 May 2016 (reproduced at p 21 of the court book). A further document described as a ‘salary certificate letter’ is reproduced at p 141. That document is dated 16 October 2020. It confirms the applicant “is a ministry employee and still on duty” as at that date, and notes he continued to draw a salary. Muddying the waters somewhat, there is a further letter from the Ministry of Health dated 14 February 2020 and signed by an official described as the Director General of Training and Academic Affairs. That letter describes itself as a ‘Scholarship Financial Guarantee’. It says the Ministry “has agreed to sponsor financial support to [the applicant] for the PhD in Science” according to the relevant scholarship policy. Final approval for granting the scholarship was said to lie with someone identified as the ‘Saudi Cultural Mission attaché’: court book at p 139.
The Australian College of Physical Scientists and Engineers in Medicine (the College), a professional body, examined Mr Alsheri’s qualifications and experience. The College’s skills assessment dated 9 April 2018 is reproduced in the court book at pp 19-20. It concluded the applicant’s qualifications and work experience (as described in the applicant’s academic transcript and the letter from his supervisor at King Fahad hospital dated 24 May 2016) were commensurate with “a three-year degree in physics plus 18 months full time experience working as a Medical Physicist”: court book at p 20.
All that material was before the Tribunal.
THE TRIBUNAL’S DECISION
The parties before me agreed the key passages of the Tribunal’s decision are found at [22]-[24]. At the risk of boring the reader, I reproduce those passages below:
22.The Tribunal discussed with the applicant his claim of overseas employment experience. He explained that he has been on scholarships to further his education in Australia while still being an employee of the Ministry of Health. He first did an English course in 2014 and has completed several other courses since, including a Graduate Diploma in Science and a Masters. He has been accepted into a PhD program commencing in 2021 related to nano technology. As documented in the evidence provided, the Saudi Ministry of Health pays his fees, living expenses, insurance and other sundry expenses. He did work in his occupation in Saudi Arabia for 17 or 18 months before coming to Australia. He only returns to Saudi Arabia for holidays. His sister is also in Australia on a scholarship from her Saudi Arabian university employer.
23.The applicant contends that he is still employed overseas, despite primarily being based in Australia, as a student, because his employer is paying him to study and he is still expected to do work and estimates he works one or two hours a day answering emails which seek his opinion. Also, his skills assessment from the Australasian College of Physical Scientists and Engineers in Medicine, was based in part, on his claimed employment as a Medical Physicist at the King Fahad Hospital from 26 July 2010 to 24 May 2016.
24.However, as explained during the hearing, the Tribunal does not consider that, despite him technically being employed by the Ministry of Health, while he pursues further study in Australia, he is, or was up until the time of invitation, employed outside Australia in his nominated skilled occupation or a closely related skilled occupation. This is because the 17 or 18 months when he was employed as a medical physicist does not reach the minimum period of 36 months for which points are available and, by his own evidence, after this he has resided in Australia except for visits back to his home country. The fact that he has been regularly paid during this period does not amount to evidence of his employment but to his continuing scholarship payments. While the Tribunal is prepared to accept the applicant’s oral evidence that he answers emails while in Australia, this appears incidental and does not amount to employment overseas such that points could be awarded.
The Tribunal then concluded (at [25]):
… the applicant does not meet the minimum period of at least 36 months overseas employment experience in the ten years immediately before the invitation to apply for the visa was issued. [emphasis added]
The Tribunal said that meant the applicant was not entitled to an allocation of points under pt 6D.3 in respect of the time he was “technically being employed by the Ministry of Health” after he arrived in Australia. The Tribunal accepted the applicant was entitled to an allocation of points in respect of other attributes, but denying the applicant points in respect of his experience with the Ministry of Health in Saudi Arabia while living in Australia left him short of the total number of points required in the invitation to apply for the visa.
THE APPLICATION FOR JUDICIAL REVIEW
Mr Alsheri filed an application for judicial review which included several grounds. At the hearing, his counsel, Ms McNeil, said there was one live ground of appeal. As I understand that ground, the applicant now contends the Tribunal’s decision misconstrued the ‘overseas employment’ points test in pt 6D.3 of sch 6D to the Regulations to wrongly exclude the period after the applicant arrived in Australia during which the applicant was said to remain on duty with the Ministry of Health in Saudi Arabia.
THE LEGISLATION AND ITS APPLICATION
I have already generally described how the points’ test operates. Two items of detail are required. First, item 6D31 in pt 6D.3 allocates five points to an applicant if, at the time of the invitation to apply for the visa the applicant:
had been employed outside Australia in:
(a) the applicant’s nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 36 months in the 10 years immediately before that time.
Second, reg 2.26AC(6) defines the word employed for the purpose of sch 6D as follows:
employed means engaged in an occupation for remuneration for at least 20 hours a week.
The Tribunal does not directly quote the text of either of these provisions in its reasons for decision. Therein lies the problem, Ms McNeil argues on behalf of the applicant: the Tribunal instead refers (at [24]) to the applicant “technically being employed” by the Ministry for Health but then finds the applicant’s work whilst in Australia does not amount to “employment overseas”. Ms McNeil says that form of words does not accurately capture the statutory test. Indeed, the finding that the applicant was still “technically … employed” invites confusion about the question the Tribunal was asking itself.
Mr Gao, for the minister, argued there was good reason for the Tribunal to be satisfied the applicant was unable to meet the requirement set out in item 6D31 given the way the word ‘employed’ is defined in reg 2.26AC(6). He said the definition in reg 2.26AC(6) emphasised an applicant would only be employed in the relevant sense if he or she were engaged in the occupation, in the sense of actively working in the role and deriving direct experience (as opposed to being merely “technically … employed”). He said the word ‘engaged’ had extra work to do in the definition because the operative provision was directed to an assessment of actual experience obtained through one’s work. On that interpretation, merely establishing one had a contract of employment or its equivalent was not enough if the circumstances of that relationship did not provide the applicant with the experience that equipped them to competently perform the equivalent role in Australia. Mr Gao argued the Tribunal was unlikely to be satisfied the applicant had been “engaged in [the] occupation” of medical physicist in Saudi Arabia while he was actually residing in Australia – and the applicant was certainly not engaged in that occupation for at least 20 hours per week during his stay when the evidence suggests his responsibilities were limited to answering emails for several hours a day.
There is much to be said for Mr Gao’s argument as to how the (correct) statutory question should be answered. But the Court is not here to supply its own answer to the question the Tribunal should have asked itself: asking and answering the correct question is the job of the Tribunal. If the Tribunal asks itself the wrong question, or if it is unclear precisely what question the Tribunal did ask, there is a jurisdictional error because the Tribunal’s statutory function requires that it engage with the relevant test. It does not do its job correctly where its decision proceeds from an incorrect understanding of the relevant law.
The fact the answer the Tribunal provides to a misconceived question might also provide a serviceable answer to the correct question does not address the problem. The Court cannot rely on the facts as found by the Tribunal to supply a plausible answer to the question the Tribunal should have asked. The Tribunal’s fact-finding process does not occur in a vacuum. That forensic process is necessarily directed to finding facts that are relevant to answering the question divined from the statute. Fact-finding is an important part of a review process that cannot be left to anybody other than the decision-maker. If the question the decision-maker asks is misstated or unclear, the integrity of the fact-finding which flows from it must be called into question.
That brings me back to the central issue in this appeal, namely whether the Tribunal asked itself the correct question. That question is derived from the terms of item 6D31 and the definition of ‘employed’ in reg 2.26AC(6).
My task is complicated by the fact the Tribunal’s reasons do not expressly refer to the provisions in question, much less quote or even use the precise words of the provisions in its discussion. The relevant tests are arguably paraphrased at [16] and [25] of the Tribunal’s reasons (with the factual discussion sandwiched in between) when it said:
16.Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.
…
25.Therefore, the applicant does not meet the minimum period of at least 36 months overseas employment experience in the ten years immediately before the invitation to apply for the visa was issued.
To the extent that [16] paraphrases the relevant test, it does not do so accurately because it misses the nuance that reg 2.26AC(6) imports into the concept of being employed. The minister’s case appears to proceed on the basis that an interpretation which requires active engagement in employment would likely support (or at least be consistent with) the Tribunal’s finding. That may yet be right, but the Tribunal’s approach appears to give no space to arguments that the studies the applicant was undertaking in Australia or the queries he was answering by email (for example) could be regarded as evidence of active engagement that provided useful experience which helped equip the applicant to work as a medical physicist in Australia. Much may depend on the nature of the studies and the queries to which he was responding.
I am conscious the Court should not approach a Tribunal’s decision looking for error. It is an executive decision-maker, and decisions made in the migration jurisdiction are made without the benefit of a contradictor. I am also not suggesting the Tribunal should populate its reasons for decision with block quotes from the relevant enactment. Reproducing slabs of legislation can make reasons dense, awkward to read, and difficult to understand. The fact the Tribunal in this case did not expressly state the test it was applying would not be an issue if it was clear from the reasons that the Tribunal had in mind the correct (even if unarticulated) test.
That said, I am satisfied the Tribunal’s statement of reasons falls short in this case. It is not clear the Tribunal asked itself the correct question. That question would be formulated with express reference to the text of the enactment. To be clear, the Tribunal should have squarely addressed whether the applicant was employed in the relevant sense, which required an exploration of whether he was “engaged in an occupation … for remuneration” over the appropriate timeframe. If the Tribunal had approached the case in that way, the factual findings may have been different; they would almost certainly be more detailed. In the circumstances, I am satisfied the failure to articulate the question correctly amounts to a material jurisdictional error.
While such an error is likely material of itself – the minister expressly accepts such an error is material in this case – it is in any event a material error in the sense discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 because “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
CONCLUSION
A writ of certiorari should be issued quashing the Tribunal’s decision, and a writ of mandamus should be directed to the Administrative Review Tribunal (the Tribunal’s successor) requiring that it remake the decision according to law.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 25 February 2025
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