Appasami-Gounder, Alemelu Magamma v Minister for Immigration and Multicultural Affairs
[1998] FCA 186
•5 MARCH 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION LAW - visa application - points system - determination of points to be awarded for visa applicant’s “usual occupation” - determination made by reference to Australian Standard of Classification of Occupations - whether determination exhibited error of law - whether failure to consider more favourable classification of employment qualification - whether remittance to Immigration Review Tribunal futile - appeal allowed.
Migration Act 1958 (Cth), ss 93, 96
Migration Regulations, reg 2.26, Pt 1 Sch 6 items 6107 and 6104
Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (Wilcox J, 30 January 1998, unreported), applied
ALEMELU MAGAMMA APPASAMI-GOUNDER v MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS
SG 84 of 1997
MANSFIELD J
ADELAIDE
5 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 84 of 1997
BETWEEN:
ALEMELU MAGAMMA APPASAMI-GOUNDER
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
5 MARCH 1998
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
Application allowed.
Application be remitted to a differently constituted Immigration Review Tribunal for further hearing and determination in accordance with these reasons.
Respondent pay to the applicant her costs of the application to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 84 of 1997
BETWEEN:
ALEMELU MAGAMMA APPASAMI-GOUNDER
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
5 MARCH 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
BACKGROUND
The applicant is an Australian citizen.
Her nephew Dharmendran Murgesan (“the visa applicant”) was born in Fiji on 12 April 1963. He is a Fijian citizen. He is not married. Both his parents are deceased and he has no siblings resident in Fiji.
On 24 November 1995, the visa applicant applied to migrate to Australia. He was sponsored by the applicant. His application was for a Concessional Family (Migrant) (Class AJ) Subclass 105 (Concessional Family) visa. The Migration Regulations (“the Regulations”) have been amended in some respects subsequent to his application. Since 1 July 1997, the equivalent visa is now called a Skilled — Australian Linked (Migrant) (Class AJ) Subclass 105 — Skilled — Australian Linked visa. It is common ground that the change is of no especial significance in the resolution of this application. I shall therefore refer generally to “the visa” or “the visa application” to encompass both those descriptions. On 4 March 1996, the visa application was refused. Subsequently, following internal review of the visa application under Pt V of the Migration Act 1958 (Cth) (“the Act”), on 20 November 1996 that decision to refuse him a visa was affirmed by the Migration Internal Review Office.
On 31 January 1997, the applicant sought review of that decision. On 30 September 1997, the Immigration Review Tribunal (“the Tribunal”) affirmed the decision under review to refuse the visa applicant the grant of the visa.
This is an appeal from that decision. The appeal lies under s 475 of the Act, but the grounds of review are limited to those identified in s 476 of the Act. Those grounds include that the procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed: s 476(1)(a) - see Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and that the decision involved an error of law: s 476(1)(e). It is principally because of an alleged error of law that this application is brought. It was not contended by the respondent that the ground of review raised did not properly fall within that description.
THE “POINTS” SYSTEM
Section 29 of the Act entitles the Minister to grant a non-citizen a visa to travel to and into Australia, and to remain in Australia. The classes of visa are those prescribed in the Regulations, as well as those provided for in ss 32-38 of the Act. The visa in question is one prescribed by the Regulations. The Regulations also prescribe criteria for the grant of the various classes of visa.
It is contemplated that, for the purposes of some visas, the prescribed criteria may include a criterion that the applicant receives a certain score (“the qualifying score”) when assessed to determine whether that person is eligible for the particular class of visa sought. That “points” system applied to the visa sought by the visa applicant. Section 93 of the Act requires that an assessment be made of “the prescribed number of points” for each prescribed qualification that is satisfied in relation to the visa applicant. Section 96 enables the Minister, from time to time, by notice in the Gazette, to specify in relation to a class of visa the relevant mark which must be achieved to qualify for further consideration of that applicant’s visa application.
The current determination of the Minister effective from 1 July 1997 in relation to the visa which the visa applicant sought is one hundred and fifteen points. At material times prior to that date, the specified qualifying score in relation to the visa applicant was ninety points. Section 350 of the Act, in the present circumstances, obliged the Tribunal to have regard to the Regulations in force at the time of the initial assessment of the visa application, or at the time of the decision made by the Tribunal about the assessment, whichever is the more favourable to the applicant. It is accepted by the respondent, in those circumstances, that the more favourable “pass mark” to the applicant is that which was obtained at the time the visa application was first assessed, namely ninety points.
Regulation 105.22 of the Migration Regulations specifies the criteria to be satisfied at the time of the decision in relation to visas of the kind for which the visa applicant applied. They include, under reg 105.222 that the applicant have the qualifying score when assessed in accordance with the “points” system. Regulation 2.26(1)(a) of the Regulations prescribes, in respect of the visa for which the visa applicant applied, that the seven qualifications in Sch 6 to the Regulations is each a prescribed qualification for the purposes of the “points” system, and reg 2.26(2) directs that the points prescribed in Sch 6 apply. Those qualifications are:
employment qualification,
age qualification,
language skill qualification,
relationship qualification,
citizenship qualification,
settlement of sponsor qualification, and
location of sponsor qualification.
Both the initial decision-maker, on review, and then the Tribunal all approached the quantification of the points to which the visa applicant was entitled in accordance with those provisions. With one exception, which gives rise to the present appeal, there is no dispute as to that process. In each instance the total points to which the visa applicant was found to be entitled was eighty points, so that he did not reach the qualification level which s 93 and reg 2.26 contemplated and as determined by the respondent. His application was therefore refused.
It is only in respect of the employment qualification that there is an issue before the Court.
Under Pt 1 of Sch 6 to the Regulations, there are alternatively nine items for the employment qualification, attracting points ranging from eighty to ten. The relevant items for present purposes are items 6107 and 6104. Item 6107, which the Tribunal found to be the appropriate item, and which attracts twenty-five points, reads as follows:
“The applicant:
(a) applies to enter Australia:
(i)on the basis of an occupation that is the applicant’s usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and
(ii)as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and
(iii)as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; . . .”
The other item which was treated as relevant in the course of submissions is item 6104, which attracts fifty-five points, and which provides:
“The applicant’s usual occupation:
(a) . . .
(b) is an occupation:
(i)for which, in Australia, a diploma or associate diploma is required; or
(ii) that is a technical-equivalent occupation; and
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e) . . .
(f) . . .”
Regulation 2.26(3) relevantly provides:
“For the purposes of subsection 93(1) of the Act (which deals with determination of an applicant’s points score), the Minister:
(a)is not to give an applicant a prescribed number of points for more than one prescribed qualification in each Part of Schedule 6; and
(b)is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; and
. . .”
It was the Tribunal’s decision that, having regard to reg 2.26(3), the points appropriate to be given were under item 6107, namely twenty five points. His total points thereby came to eighty points. He did not reach the qualifying score, so his application was dismissed.
THE TRIBUNAL’S REASONS
As it is about the employment qualification that this appeal turns, I shall record in a little detail the information which the Tribunal recorded in its reasons. I do so in part because it is the submission of the respondent that, even if the applicant succeeds in establishing an error of law on the part of the Tribunal, it would be futile to refer the matter back to the Tribunal for further hearing.
The Tribunal noted the information provided by the visa applicant in his application form and the evidence of the visa applicant and others. The visa applicant completed his primary and secondary schooling in Fiji, and sat the University entrance exam. Despite this exam, the visa applicant did not gain entrance to the University or have any University qualification. He gained employment with licensed accountants after leaving school, and worked with them for approximately five years. He then presented for examinations with the Tax Agents Board in Fiji and was successful. He subsequently became a registered tax agent in Fiji. From 1988 to the present, he has operated his business as a book-keeper/tax agent. The Tribunal noted evidence that there are certified practising accountants in Fiji, and that some of those accountants also act as tax agents. The visa applicant indicated to the Tribunal that he was not an accountant, although he is a registered tax agent.
The Tribunal then discussed the employment qualification. It was first necessary for the Tribunal to identify the visa applicant’s usual occupation. As there is no complaint about its finding as to the applicant’s usual occupation, it is unnecessary to refer to the definition of “usual occupation” in the Regulations. The Tribunal’s finding was that the applicant’s usual occupation is that of book-keeper/tax agent. It concluded:
“The Tribunal notes that the visa applicant in his evidence, stated that he was not an ‘accountant’ and described his usual occupation as ‘book-keeping/tax agent’. The Tribunal finds that the applicant’s usual occupation is that of book-keeper/tax agent. ASCO Code 5301-11 requires a skill level of two year certificate and on-the-job training of 1-2 years. Accordingly, the visa applicant is entitled to 25 points in this qualification pursuant to item 6107 of part 1 of Schedule 6 of the Regulations.”
ASCO refers to the Australian Standard Classification of Occupations (“ASCO”) published by the Australian Government Printing Service and the Australian Bureau of Statistics.
THE CONTENTIONS
The applicant’s contention on this appeal is that the Tribunal was in error in determining that the appropriate points for qualification of the visa applicant under the employment qualification was twenty-five. She contends that the Tribunal was wrong in identifying the relevant item in Pt 1 of Sch 6 of the Regulations as item 6107. She contends that the relevant item in Pt 1 of Sch 6 of the Regulations is item 6104. It attracts in respect of that qualification fifty-five points, so that the visa applicant’s qualification points would then become one hundred and ten, above the qualifying score then required by gazetted determination. If that be correct, as the Tribunal had not addressed the other relevant criteria for the visa, it was said that the appropriate order is for the matter to be remitted to the Tribunal to further consider the visa application on the basis that the visa applicant is entitled to fifty-five points under the employment qualification and therefore would have sufficient points to have his application for a visa further considered in accordance with the Act and the Regulations.
The applicant complains that the Tribunal wrongly treated the visa applicant’s usual occupation as being an occupation entry for which in Australia requires a certificate or advanced certificate. It contends that the applicant’s usual occupation should have been categorised as an occupation for which in Australia a diploma or associate diploma is required under item 6104(b)(i).
The Tribunal’s reasons simply refer to the ASCO Code 5301-11 as requiring a skill level of a two year certificate and on-the-job training of 1-2 years. In fact, extracts from the ASCO publication were provided to me by consent in the course of argument. ASCO occupation 5301-11 is “book-keeper” and the skill level is said to be:
“The entry requirement for some occupations in this group is a 2 year para-professional certificate; previous experience of 2-5 years in clerical or banking work may also be required for some occupations. 12 months on-the-job training is usual.”
Book-keeper in that publication is treated as a sub-occupation of the general group: accounting clerks. It appears in distinction from accountants. In the Dictionary section of that publication against item 5301-11 “Bookkeeper” there appears the work description:
“Keeps records of financial transactions in account books.”
and the skill level required is said to be:
“Education: 2 year certificate.”
It is apparent from its reasons that the Tribunal treated that description of the skill level as pointing towards item 6107 of Pt 1 of Sch 6 of the Regulations, which also uses the term “certificate” in its description.
The applicant contends that it failed to apply the definition of “certificate” in the Regulations in so doing. The respondent, for his part, contended that the expression “certificate” in item 6107 was appropriately applied by the Tribunal, notwithstanding its definition in the Regulations. The respondent also contends that, in any event, the visa applicant on the material before the Tribunal could not have fallen within item 6104 of the employment qualifications for other reasons, so that it would be futile to remit the matter to the Tribunal for further hearing even if the error of law is made out. The best result for the visa applicant, it is contended, is that which he obtained, and the visa applicant must fail in any event.
CONSIDERATION OF ISSUES
The terms “certificate or advanced certificate” and “associate diploma’ are each defined in reg 2.26(5) of the Regulations. It provides:
“In Part 1 of Schedule 6:
“associate diploma” means:
(a)a formal educational qualification awarded by an Australian educational institution as an associate diploma for which:
(i)the entry level to the course leading to the qualification is satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and
(ii)2 years of full-time study, or the equivalent period of part-time study, is required; or
(b)a formal educational qualification that is of an equivalent standard awarded by an educational institution outside Australia;
“certificate or advanced certificate” means:
(a)a formal educational qualification awarded by an Australian educational institution as a certificate or advanced certificate for which:
(i)in the case of a qualification that is an advanced certificate - the entry level to the course leading to the qualification is completion of year 10 in the Australian school system or of equivalent schooling; and
(ii)in any case - for which 1 year of full-time study, or the equivalent period of part-time study, is required; or
(b)a formal educational qualification that is of an equivalent standard awarded by an educational institution outside Australia.
. . .”
The distinctions within Australia between an associate diploma on the one hand, and a certificate or associate certificate on the other, are
the entry level requirement, and
the period of full-time study or equivalent period of part-time study,
and apparently the name ascribed to the qualification by the Australian educational institution.
The brief description in ASCO of the skill level required for a book-keeper is: “2 year certificate”.
The Tribunal has noted that the visa applicant has completed secondary schooling. That is the entry level requirement within Australia for an associate diploma. It has not explicitly found whether the “2 year certificate” referred to in ASCO as the skill level for a book-keeper requires that entry level. More importantly, in my view, the Tribunal has not sought to identify the nature of the “2 year certificate” referred to in ASCO with a view to determining whether in reality it involves a two year period of full-time study leading to the award of an associate diploma. It has apparently taken the word “certificate” in ASCO and simply applied its use to item 6107. It has not, therefore, addressed the difficulty thereby created that the certificate to which item 6107 refers, by reason of the definition, involves a period of one years’ full-time study whereas it has found that the visa applicant’s usual occupation within Australia requires a “2 year certificate”.
It is my conclusion that the Tribunal erred in law by applying to the word “certificate” in item 6107 a meaning derived from ASCO without properly applying the definition of that word, and without properly considering the alternative that the period of full-time study required to work as a book-keeper involved in reality that a person obtain an associate diploma. Regulation 2.26(3)(b) obliged it to allocate to the visa applicant the employment qualification item which attracts the highest number of points and for which the visa applicant is eligible. The approach of the Tribunal has resulted in it apparently failing to address whether the visa applicant is entitled to fifty-five points under item 6104 of the employment qualification categories. I am not to be taken as determining that the usual occupation of the visa applicant is such that he is entitled to fall within item 6104, and so entitled to fifty-five points. There are other criteria for falling into item 6104 which have not been, and need to be, addressed. To an extent, I consider them when considering the futility contention. Nor am I to be taken as determining that necessarily the applicant’s usual occupation is one to which item 6104(b)(i) of Pt 1 of Sch 6 of the Regulations applies. It may do so. That may depend upon further information. It may be that the definition of “associate diploma” may not fully apply to the type of tertiary training required, to the “2 year certificate” to which ASCO refers. Those are matters for the Tribunal. It is sufficient for the present appeal to be satisfied that the Tribunal has fallen into error in the way I have identified.
It follows that I reject the contention of counsel for the respondent that the use of the word “certificate” in item 6107 is not intended to carry the meaning of that word as defined in reg 2.26(5) of the Regulations. In my view, it would be capricious to do otherwise as it is expressly for the purposes of Pt 1 of Sch 6 to the Regulations that reg 2.26(5) definitions are created.
I have not overlooked the decision of Wilcox J in Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (30 January 1998, unreported) also dealing with reg 2.26 and Pt 1 of Sch 6 to the Regulations. In that case it was successfully contended that the Tribunal had erred in identifying the applicant’s “usual occupation” by reference to ASCO rather than by reference to the particular skills possessed and to the particular work performed. His Honour concluded that the nature of the applicant’s usual occupation in any case is a matter of fact, something to be determined by the Minister or his delegate. In relation to item 6102 of the Regulations his Honour added, in respect of comparable but not identical provisions,
“In determining whether a particular applicant meets those requirements the departmental decision-maker necessarily has to determine the applicant’s “usual occupation”. It is only at the next stage, in considering the application of para (c) of the item, that the decision-maker is bound to seek an assessment by the “relevant Australian authority”. That division of function is logical; para (c) is concerned with matters needing a degree of expert judgment, whereas paras (a) and (b) involve mere findings of fact.”
After referring to other decisions in this Court, namely Ye Hu v Rees (Einfeld J, 4 March 1997, unreported) and on appeal: Minister for Immigration and Multicultural Affairs v Ye Hu (Full Court, 7 November 1997, unreported); Rahman v Minister for Immigration and Multicultural Affairs (Davies J, 6 February 1997, unreported), his Honour added:
“. . . in determining an applicant’s usual occupation, the decision-maker may gain assistance from reference works such as ASCO, but it is important the decision maker not feel bound by any of them. Once the decision-maker has determined the proper description in Australian parlance of the applicant’s usual occupation, he or she must then ascertain whether this is an occupation for which, in Australia, a degree or trade certificate “is required” or is a “professional-equivalent occupation”, that is an occupation specified as such in a Gazette notification.”
His Honour added in respect of the phrase “is required” that he adopted the shared submissions that it related to practical, as distinct from legal, requirements. Consequently, if a particular qualification is necessary, as a practical matter, in order to obtain employment in a particular occupation, that qualification is “required” even though not by law.
In my view, that decision provides no basis to support the contention of counsel for the respondent that the expression “certificate” in item 6107 bears a meaning other than as defined. Wilcox J was concerned with the expression “usual occupation”. That, too, is defined. His Honour did not suggest that the decision-maker, or the Tribunal, could overlook or go beyond the definition. His Honour’s reasons indicate that, in applying the evidence to the definition, it is for the decision-maker, or the Tribunal, to determine as a matter of fact what is the “usual occupation” of the visa applicant. It should not approach that task within the constraints of ASCO, or some other person’s description or classification. Such material may be helpful. But it should not direct the conclusion independently of the decision-maker’s, or the Tribunal’s, own finding on the evidence.
It is consistent with that approach that, in the present case, the Tribunal, having determined the “usual occupation” of the visa applicant, should then address the nature of any requirements which, within Australia, apply to entry to that occupation. Once those entry requirements are identified, as a matter of practical substance, then the Tribunal should consider whether, having regard to the definitions in reg 2.26, they amounted to requirements in the nature of a “certificate” or requirements in the nature of a “diploma”. In my view, it does not support the contention that because ASCO uses the word certificate, albeit a two year certificate, item 6107 is necessarily the appropriate item applicable to the visa applicant.
It was contended by the respondent that it is not up to the Tribunal to identify the relevant item or items in Pt 1 of Sch 6 to the Regulations within which the applicant’s usual occupation falls. I accept as the respondent contends, that generally speaking a primary decision-maker, or the Tribunal, is not obliged to look beyond the evidence of the applicant’s usual occupation or the tasks and duties that applicant performs as part of that person’s employment in that occupation to determine what the usual occupation is: Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (Einfeld J, 27 October 1997, unreported). And as Davies J said in Mohammad Arifur Rahman v Minister for Immigration and Multicultural Affairs (6 February 1997, unreported):
“It is for the applicant to put forward a positive case, and that means identifying the relevant occupation . . .”
But it is going further to say that the Tribunal has no responsibility in then applying appropriately the law as prescribed in the Regulations to the material facts as presented and found. That is the more so in the light of reg 2.26(3)(b) referred to above. Here there is no contest or no complaint about the finding, on the evidence, that the visa applicant’s usual occupation is that of book-keeper/tax agent. Nor is there a complaint about its finding, based upon the ASCO code, that such occupation requires a two year certificate. In my view it was appropriate for the Tribunal then to determine which of the items in Pt 1 of Sch 6 of the Regulations applied to the visa applicant’s usual occupation, having regard to the direction contained within reg 2.26(3)(b) of the Regulations. I note that Wilcox J in Zeng Guang Wang (above), in a passage quoted, used the words “bound to seek an assessment” to describe the Tribunal’s responsibilities at this point in its consideration.
The applicant also contended that, in awarding points for the visa applicant’s employment qualification under item 6107 of Pt 1 of Sch 6 of the Regulations, the Tribunal had also erred in failing to consider the extent of any educational requirement within Australia for the “tax agent” component of his usual occupation.
Part VIIA of the Income Tax Assessment Act 1936 (Cth) provides generally for the registration of tax agents, and within that part s 251BC generally prohibits all but registered tax agents from preparing income tax returns or transacting business on behalf of taxpayers in income tax matters. Section 251BC(1)(b)(ii) provides then for prescribed qualifications for persons carrying out that occupation. Regulation 156(1) of the Income Tax Regulations prescribes those qualifications. There are four alternative routes to satisfying those qualifications. Two involve both a university degree with some taxation law study focus and some practical experience. The remaining two are:
“. . .
(c) the person:
(i)shall have completed the academic requirements for the award of a diploma or certificate from a college of technical and further education following a course of study in accountancy of not less than 2 years’ duration of full-time study or 4 years’ duration of part-time study;
(ii) shall have:
(A)been engaged in relevant employment on a full-time basis for not less than a total of 2 years in the preceding 5 years;
(B)otherwise been engaged in relevant employment to an extent that the Board regards as equivalent to that referred to in sub-subparagraph (A); or
(C)been engaged in such other employment and for such time as the Board regards as equivalent to being engaged in relevant employment as referred to in sub-subparagraph (A); and
(iii)shall have, by written examination, successfully completed a course of study in Australian income tax law acceptable to the Board; or
(d) the person:
(i) shall have:
(A)been engaged in relevant employment on a full-time basis for not less than a total of 8 years in the preceding 10 years;
(B)otherwise been engaged in relevant employment to an extent that the Board regards as equivalent to that referred to in sub-subparagraph (A); or
(C)been engaged in such other employment and for such time as the Board regards as equivalent to being engaged in relevant employment as referred to in sub-subparagraph (A); and
(ii) shall:
(A)be a member of and entitled to vote at meetings of the Australian Society of Accountants, the Institute of Chartered Accountants in Australia or the National Institute of Accountants; or
(B)have, by written examination or examinations set by a college of technical and further education (or an examination or examinations of an equivalent or higher standard), successfully completed a course of study in basic accounting principles and have, by written examination, successfully completed a course of study in Australian income tax law acceptable to the Board.”
It was contended that, as a practical matter, those requirements also involved at least educational requirements equivalent to an associate diploma, as defined, so that the Tribunal should have categorised item 6104 as being the appropriate employment qualification for that reason also. It does not appear that the Tribunal, or the primary decision-maker, addressed that aspect of the usual occupation of the visa applicant at all. It is unnecessary for me to fully consider this issue in light of the orders I propose to make based upon the applicant’s primary contention of error of law. However, I am disposed to the view that the Tribunal’s failure to address this issue also amounts to a reviewable error. Although there is a serious issue as to the extent to which the Tribunal is obliged to pursue inquiries itself, or to urge an applicant before it to do so, the provisions of reg 2.26(3)(b) specifically obliged it in the present circumstances to allocate that employment qualification item which - given its findings on the nature of the visa applicant’s usual occupation - carried the highest number of points. The usual occupation was found to have been “book-keeper/tax agent”. The qualifications necessary for employment as a tax agent within Australia are prescribed by law. The Tribunal, in the approach it adopted, may have failed to consider in accordance with reg 2.26(3)(b) what those qualifications were, and so whether some item other than item 6107 of the employment qualifications was available to the visa applicant.
Finally, it was contended by the respondent that, even if error on the part of the Tribunal is made out, it would be futile to refer the matter back to the Tribunal for further hearing. That was for two reasons. Firstly, it was said that because the visa applicant does not have two years post secondary school training, he could not qualify under item 6104 in any event. Secondly, it was said that there was no material before the Tribunal upon which the visa applicant could persuade the Tribunal that he could meet other requirements of item 6104 so as to be eligible to have that item fix his qualifying points for his employment qualification.
I reject the first of those arguments. In my view, the items in Pt 1 of Sch 6 of the Regulations involve at least two steps. The first is to identify that educational training which is required within Australia to be eligible to carry out that occupation. It is against that standard that the second stage arises. It is to determine whether the visa applicant’s qualifications and experience measured against that standard are approximately equivalent to that standard. The equivalence is assessed, as prescribed, by the visa applicant’s own training and experience. In other words, it is necessary first to identify the nature and extent of the skill against which the usual occupation is to be measured, and then to determine whether the visa applicant has or may achieve that level of qualification and skill so as to meet the “usual occupation” standards as they apply within Australia. Consequently, the fact that the visa applicant here did not in fact have a two year certificate, that is an associate diploma as defined, is not the end of the matter. What matters is whether his actual training and experience, having regard to the measures of equivalence prescribed in subclauses (c) and (d) of item 6104, matches that standard which against, in Australia, such usual occupation is required. The regulations prescribe how the question of equivalence is to be determined. I have not referred separately to subclauses (e) and (f) of item 6104, although they too are measures of equivalence applicable to the visa applicant, as it was accepted that the Tribunal could find that he fell within them.
On the second aspect of the futility argument, the respondent asserts that there was simply no evidence upon which the Tribunal could have made a finding in the visa applicant’s favour that his employment qualification fell within item 6104. Subclauses (c) and (d) of item 6104 are set out above.
Subclause (c) contains three alternatives. The Tribunal’s findings do not indicate that the visa applicant’s training was such as to give rise to any prospect of him qualifying for equivalence under subpar (i), although it has not addressed in detail the nature of his study in Fiji to qualify there as a tax agent. The applicant’s counsel, on this appeal, acknowledged however that subpar (i) could not be satisfied. Similar observations apply with respect to subpar (iii).
The remaining alternative is that of work experience: subpar (ii). It was asserted that there was no evidence adduced by the visa applicant upon which the Tribunal could be satisfied of his equivalence under that subparagraph. It might be inferred from the Tribunal’s recording of the evidence that that is the case. I allowed time after the hearing for the applicant to indicate whether any such evidence was presented, or any finding sought on such matters. The Tribunal did have some evidence that the visa applicant was a certified tax agent in Fiji, of having undertaken exams for that qualification, and of his work history. It has not been suggested on behalf of the applicant that any evidence was adduced, beyond that evidence, of the equivalence of that work experience to Australian requirements, or that any finding was expressly sought, on that matter. Furthermore, at least in respect of that part of the usual occupation related to “tax agent”, I am prepared to infer also that no evidence was given, nor any finding sought, that the visa applicant could meet the standards for being licensed as a tax agent in Australia: see subclause (d) of item 6104.
The respondent suggested, indeed, that no evidence could be procured which would enable the visa applicant to show that he could meet the requirements for equivalence which subclause (d) of item 6104 prescribes.
There is ample authority to warrant the Court not remitting a Tribunal decision for further hearing, notwithstanding error in a decision under review, if it would be futile to do so: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100; Barry Rogers & Co Pty Ltd v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 197; Amolak Singh v The Honourable Nick Bolkus, Minister for Immigration and Ethnic Affairs (1996) 42 ALD 239; Lay v Minister for Immigration and Ethnic Affairs (North J, 31 May 1996, unreported), and see the discussion in Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (1996-1997) 68 FCR 463 at 476-479.
However, I am not satisfied that that is an appropriate course of action in the present matter.
The nature of the review conducted by the Tribunal is, of course, controlled by the legislative provisions relating to it. In that regard, I do not think that there are any significant differences for present purposes (cp. ss 361(4) and 362 of the Act) between the nature of review by the Immigration Review Tribunal and the nature of review by the Refugee Review Tribunal. The provisions applying to review by the Immigration Review Tribunal, in particular ss 353, 360, 361 and 363, are substantially in the same terms as ss 420, 425, 426 and 427 respectively applying to review by the Refugee Review Tribunal. Accordingly, in my view, decisions of the Court on provisions relating to review by the Refugee Review Tribunal are of direct relevance to review by the Immigration Review Tribunal.
Thus, in my view, it can be said that certain of the obligations of the Tribunal under s 353 of the Act describe procedures with which it is bound to comply. Thus, in Eshetu (above) at 305-306 Davies J said:
“Section 420 provides that the mechanism of review shall be “fair, just, economical, informal and quick” and shall be directed to arriving at the “substantial justice and the merits of the case”. If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside. It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s 476(2).”
See also Burchett J at 314-323.
It is not necessary to determine whether the Tribunal, on the view of the relevant employment qualification which it took, should have carried out further investigations itself on the question of whether the visa applicant met, or could meet, the requirements of subclauses (c) and (d) of item 6104 of Pt 1 of Sch 6 of the Regulations. The Tribunal did not address the question. Had it done so, it may have caused further inquiries to have been made on those issues. I do not know. Its obligations under s 353 may have led it to seeking further evidence under s 360(1)(b) and perhaps to exercising certain of its powers in that regard under s 363(1)(a) or s 363(3). Even if not asked so to do, and there is no suggestion of a request under s 361 having been made by the visa applicant, there are clearly circumstances where it would be appropriate for it to do so; cp. Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284. I do not think I should pre-empt the Tribunal’s decision in that regard by assuming that, if it had directed its attention to item 6104, it would simply have treated the material then before it as the limit of what it should consider. It is, after all, a significant feature of review under Parts V and VII of the Act that, in each instance, the relevant Tribunal is the controller of the review process including ultimately determining what inquiries are necessary or desirable for it to fulfil its primary obligations under ss 353 and 420 of the Act respectively. That may be reinforced in the present circumstances by reg 2.26(3) referred to above. Those are matters for the Tribunal to consider.
There is a further reason why I am not persuaded that the referral of the application back to the Tribunal would be futile. I have referred above to the conjunctive prescriptions of item 6107(a). Subclause (iii) provides alternatively that the visa applicant must have been assessed as having either an appropriate certificate or work experience assessed by the relevant Australian authority to provide the necessary equivalence. The Tribunal found the visa applicant entitled to twenty-five points for the employment qualification under that item. It is not clear from its reasons which of those two alternatives were found by it to apply, nor the material upon which the decision was made. However, the points were awarded, so some decision was made. It may be that the Tribunal had material available to it to which it has not referred in its reasons, or that its general background information as a specialist Tribunal enabled that decision to be made. Whatever the process, the Tribunal has evidently been satisfied of the matter required to be addressed in subclause (a)(iii) of item 6107. In those circumstances, I am not persuaded that the Tribunal, if it addressed the matters in subclauses (c) and (d) of item 6104, would necessarily conclude that that item could not apply to the visa applicant. It may so conclude, or it may not. That is a matter for it. But I am not persuaded that it would be futile to refer the matter back to the Tribunal for its further consideration in accordance with these reasons.
Accordingly, in my view the appropriate order is that the application is allowed and the matter of the visa applicant’s application is remitted to the Tribunal for further hearing and determination in accordance with these reasons. I will hear the parties as to whether it is appropriate that the matter be remitted to the Tribunal to be differently constituted from the Tribunal as constituted in the decision under review.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated:
Counsel for the Applicant: Mr S Churches Solicitors for the Applicant: Piper Alderman Counsel for the Respondent: Ms S Maharaj Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 6 February 1998 Date of Judgment: 5 March 1998
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