Arachchi v Minister for Immigration
[2005] FMCA 710
•27 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARACHCHI v MINISTER FOR IMMIGRATION | [2005] FMCA 710 |
| MIGRATION – Graduate skilled temporary visa – whether jurisdictional error – validity of application – whether valid test of appropriate degree imposed – whether regulation valid. |
| Migration Act 1958 Migration Regulations 1994 |
| Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) FCAFC 329 (22 December 2004) |
| Applicant: | MANOJ KUMAR DANDENIYA ARACHCHI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 387 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 25 January 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr T V Hurley |
| Solicitors for the Applicant: | Phillip Shulman |
| Counsel for the Respondent: | Mr E Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
(1)The decision of the delegate dated 2 April 2003 is invalid.
(2)The application of the Applicant dated 3 March 2003 for a graduate skilled temporary visa be remitted to the Respondent for determination according to law.
(3)The Respondent shall pay the Applicant’s costs.
(4)Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 387 of 2004
| MANOJ KUMAR DANDENIYA ARACHCHI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application the applicant seeks review of a decision of the delegate who decided that a visa application by the applicant was not valid. The applicant is a 32‑year‑old male citizen of Sri Lanka. He is married and has one daughter aged four, and both his wife and daughter are also Sri Lankan citizens. On 3 March 2003 the applicant applied to the respondent for a graduate skilled temporary visa on the basis of his nominated occupation as an interpreter.
The delegate of the respondent by letter dated 2 April 2003 informed the applicant that his visa application was invalid because it did not meet the criteria prescribed in item 12.12A (the clause) of schedule 1 to the Migration Regulations 1994 (the Regulations). It is that decision dated 2 April 2003 which is the subject of an amended application filed by the applicant on 9 November 2004.
The decision of the delegate set out in the letter dated 2 April 2003 appears to be what may be described as a "pro forma" letter. That letter sets out the criteria prescribed in item 12.12A of the regulations and relevantly for the present purposes the author has ticked a box where the following words appear:-
“The applicant seeking to satisfy the primary criteria must submit evidence that they hold a degree, diploma or trade qualification that is appropriate for the nominated skilled occupation. The evidence that you submitted does not demonstrate that you hold a degree, diploma or trade qualification that is appropriate to your nominated skilled occupation, interpreter. Therefore, you do not satisfy this requirement.”
Further in the letter the following appears:-
“As your application was not validly lodged, it is returned together with all the documents included.”
Item 12.12A of Schedule 1 of the Regulations
I accept that the relevant paragraphs of the clause as at the date of the applicant's visa application (3 March 2003) or date of decision (2 April 2003) are sub-paragraphs 12.12A(3)(h) and 12.12A(5) which provide as follows:-
“(3) ...
...
(h)Application by an applicant seeking to satisfy the primary criteria must be accompanied by satisfactory evidence that:
(i) the applicant has, in the six months immediately before the day on which the application is made, completed a degree, diploma or trade qualification that is for award by an Australian educational institution as a result of at least one year of full-time study at that institution while the applicant was present in Australia; and
(ii) all instruction for that award was conducted in English; and
(iii) the applicant holds, or has completed, a degree, diploma or trade qualification that is appropriate for the nominated skilled occupation; and
(iv) the applicant has applied to a relevant assessing authority for an assessment of the suitability of his or her skills for the nominated skilled occupation.
...
(5) In this item:
completed, in relation to a degree, diploma or trade qualification, includes having met the requirements for its award.”
The extract from the delegate's letter referred to earlier in this judgment appears to refer to the relevant criteria under the clause.
The clause in this case required proof that the applicant in the period
3 September 2002 to 3 March 2003, that is, the six-month period before the day on which the application is made, had completed a degree, diploma or trade qualification that is for award by an Australian educational institution as a result of at least one year of full‑time study at that institution while the applicant was present in Australia. The applicant purported to comply with the proof required by sub-paragraph 3(h)(i) by providing evidence of the following qualifications:-
·a certificate of bachelor of business degree in marketing/hospitality management from Victoria University with a letter from that university stating that the applicant "has completed the required components of the bachelor of business degree in marketing/hospitality management and is eligible to apply for graduation. Manoj commenced the course in March 2000 and completed it in December 2002." (Court book 9-11.)
·a certificate dated 22 March 2000 from Chisholm Institute certifying that the applicant had fulfilled the requirements of advanced diploma of business (marketing) (court book page 13);
·a certificate dated 22 March 2000 from Chisholm Institute certifying that the applicant had fulfilled the requirements of a certificate IV in business (sales and marketing) (court book page 14).
In his application the applicant nominated the occupation of "interpreter" with an ASCO Code of 2529-13. He provided further material showing that he had applied to the National Accreditation Authority for Translators and Interpreters Ltd (NAATI) by production of a tax invoice dated 7 February 2003 for what is described as an "initial application fee" of $65. NAATI by letter dated 18 February 2003 addressed to the applicant advised him as follows:-
“Unfortunately the Lao paraprofessional interpreter test is not being offered in our current testing program owing to a low level of demand for the language at that level.
We can, however, provide you with a special 'on demand' test at a time and date to suit you. Alternatively, we will retain your personal details in our database and invite you to sit for NAATI accreditation when the Lao paraprofessional interpreter test is included in NAATI's annual testing program.”
The applicant provided further material including completion of English language courses at the University of Cambridge (court book page 15) and other institutions in Sri Lanka (court book pages 16‑20).
The applicant provided no other evidence relating to NAATI and no evidence that he had completed any course of study provided by that institution to satisfy the clause.
Applicant's submissions
The applicant relied upon an amended application filed 9 November 2004 wherein it was claimed the decision of the delegate was made without jurisdiction or was affected by jurisdictional error. Specifically, the amended application provides as follows:-
“3.The decision is affected by jurisdictional error in that the delegate asked the wrong question, identified the wrong issue, failed to take into account relevant material, and took into account irrelevant material.
PARTICULARS
(a)The delegate failed to take into account of the diploma in the English language in considering item 12.12A(3)(h)(iii) of schedule 1 of the Migration Regulations and whether such overseas qualification satisfied the requirements of this item.
(b)The delegate failed to consider whether the applicant's bachelor degree in business was a degree, diploma or trade qualification appropriate to the nominated skilled occupation of interpreter given that the skill entry level requirement for the occupation of interpreter/translator as set out in the Australian standard classification of occupations is the bachelor degree or higher qualification and is not limited to a specific qualification in interpreting/translating.
(c)Had the delegate asked either of these questions and considered either of these matters, the delegate would have found the application to be a valid application and would have proceeded to issue the visa pursuant to section 65 of the act.
4.The applicant claims a declaration that clause 12.12A(3)(h) of the Migration (1994) Regulations as it appeared on 2 April 2003 is invalid and of no effect.”
In relation to a visa 497, reference was made during the course of submissions to a Procedures Advice Manual (PAM) from the department. In that manual, which it was claimed was then in force though since removed, the following appears:-
“1.ABOUT VISA 497
1.1Regulatory background
This subclass is the only subclass of the graduate-skilled (temporary) (class UQ) visa class (schedule 1 item 12.12A).
1.2Background to this visa
Since 1 July 2000 certain student visa holders who have recently completed a diploma, degree or trade certificate in Australia have been eligible to apply for an onshore (residence) schedule 6A points-tested permanent visa. The schedule 1 threshold requirements for making a valid application for those visas (classes DD and DE) are quite rigorous. ...
...
The graduate-skilled (temporary) (class UQ) visa (subclass 497 is the only subclass) was created specifically for this purpose, allowing eligible overseas students enough time to have their skills assessed and meet all other schedule 1 requirements to validly apply for a points-tested permanent visa. ...
7.3Must have recently completed an Australian qualification.
Schedule 1 Item 12.12A(3)(h)(i)
The applicant must provide satisfactory evidence of having successfully completed (in the last six months) an Australian diploma, degree or trade certificate course that required at least one year full‑time study in Australia.
Note that:
·under overseas student program arrangements, a student could not have been doing their studies part‑time anyway;
·the 'in Australia' requirement precludes distance learning studies and part‑time studies.
Schedule 1 item 12.12A(5) links the qualification requirements to the definitions in the regulations division 2.6. ...
7.4 Course must have been in English.
Schedule 1 Item 12.12A(3)(h)(ii)
The applicant must provide satisfactory evidence that the course was conducted in English.
The evidence of having an Australian qualification itself can be accepted as evidence that the course was in English unless the qualification relates to a foreign language, eg, a diploma/degree with a foreign language major, in which case the academic transcript is required to verify.
7.5 Qualifications must be relevant to skills.
Schedule 1 Item 12.12A(3)(h)(iii)
The applicant must provide satisfactory evidence that the Australian qualification is appropriate to the nominated skilled occupation.
It was submitted on behalf of the applicant that the policies regarding this particular visa class has some bearing in construing the regulations in which it is expressed.
In considering the submissions made for the applicant, it is appropriate to set out the definition that appears for interpreter ASCO Code 2529‑13 as follows:-
“2529-13 Interpreter
verbally renders spoken statements from one language into another.
Skill level
The entry requirement for this occupation is a bachelor degree or higher qualification.
Tasks include:
·provide simultaneous or consecutive verbal renditions of speeches into another language;
·renders the meaning and feeling of what is said in courts, hospitals and schools into another language;
·may provide verbal renditions of written texts;
·may specialise in one or more languages and subject areas.”
The contentions relied upon by the applicant were addressed under the following headings:-
·whether the qualifications are "appropriate" to the skilled occupation nominated;
·the validity of clause 12.12A(3)(h) - "accompanied by satisfactory evidence".
Hence, the applicant submits that there were two errors of law to be raised under those headings and these reflect grounds 3 and 4 of the amended application.
Whether qualifications are "appropriate" to the skilled occupation nominated
The applicant submitted that it had been established that he had undeniably completed a two-year full‑time course at Victoria University and had previous qualifications, including qualifications in the English language. It was submitted that the phrase "is appropriate to" are words encompassing broad association and they do not require the association between the qualification and the skill be direct or absolute. The question of whether the qualification is "appropriate" to the skilled occupation requires consideration of both. The applicant contended that he qualified for the skilled occupation of "interpreter" with ASCO Code 2529-13. It was submitted the court could have regard to the ASCO definition of this skilled occupation and the prerequisites for it. It was submitted that the definition records the occupation of interpreter and the skill level as simply being:
“The entry requirement for this occupation is a bachelor degree or higher qualification.”
It does not require a precise or specified form of tertiary qualification. The qualification relied upon by the applicant was at least his degree from Victoria University in marketing/hospitality. It was submitted that because the nominated profession did not have a specific skill level, there is no reason to conclude the qualification possessed by the applicant was not "appropriate". The position is not one where the skill or occupation calls for a specifically "appropriate" qualification such as medicine or law which requires specific degrees.
It was submitted that the decision‑maker erred in construing the term "appropriate" as requiring a higher degree of association than it does. Reliance was placed upon the Oxford Dictionary definition of the meaning of "appropriate" as "suitable or proper". It was submitted that there is no reason why a person holding any tertiary qualification cannot be an interpreter. The construction of terms such as "appropriate" in different statutory contexts does not assist in the elucidation of its meaning in a specific statutory context. The question for the court is whether the decision‑maker recognises the true intentions of parliament (see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355).
It was submitted on behalf of the applicant the decision‑maker erred in the law in construing the requirement that the qualification be "appropriate" for the skilled occupation as requiring the qualification be directed to the occupation and it was submitted this error is a jurisdictional error which was determinative. It was submitted that the nominated skilled occupation, namely, interpreter, is defined simply to require as the skill level a bachelor degree or higher qualification and that the applicant had completed a course of studies and was eligible for graduation at the level of a bachelor degree. Hence, for the office to have concluded that the evidence did not demonstrate that the applicant held a degree that was appropriate to the nominated skilled occupation of interpreter involved an error of law as the officer either misunderstood the nature of the nominated skill or skilled occupation or had used the word "appropriate" by posing too high or too precise a test. The applicant had a bachelor degree and that degree, it was submitted, is appropriate or, applying the definition, is "suitable or proper".
The respondent submitted that the issue of whether or not the qualifications of the applicant were "appropriate" to the nominated occupation was a decision of fact for the decision‑maker and that that decision was open to the decision‑maker on the evidence. Accordingly, it was argued there is no basis for the applicant's argument the decision‑maker applied a particular meaning to that word which was outside the scope of its ordinary meaning.
An alternative argument was set out in the respondent’s contentions though not pursued namely that remitting the matter back would be futile given the clear evidence that the qualifications were completed well prior to 3 September 2002 meant that the required proof under the clause involving proof that the applicant had completed the relevant degree in the period 3 September 2002 and 3 March 2003 cannot be met.
In my view, the applicant's submissions in relation to this ground appear to be correct. Although the decision‑maker does not refer to a precise definition of "appropriate", it is clear from the conclusion that in the face of the relevant degree and noting the definition of "interpreter" in ASCO Code 2529-13, to simply reject the degree means implicitly at least that the decision‑maker has posed a test which is too high and not consistent with the ordinary meaning of "appropriate".
Given that the respondent has not pursued the alternative argument, in my view the ground relied upon by the applicant should succeed.
It seems clear to me that by introducing the interpretation clearly applied in this case, the decision maker has gone beyond making a mere assessment of objective material which appears to be contemplated by the relevant clause.
I was concerned during the course of submissions that arguments advanced for the respondent effectively gave to the decision maker a power to consider subjective matters and/or assess the nature of the degree held rather than merely acknowledging that the appropriate course had been completed within the time frame specified. To do so in my view effectively would seek to circumvent and/or avoid any prospect of merit review. The requirements of the clause are that the course be conducted in English and that it be a Bachelor degree of higher qualification. To embark upon a vague assessment of what may be “appropriate” having regard to the specific nature of the course and particularly noting that for the task of interpreter the skill level required is referred to as “Bachelor degree or higher qualification” meant that the decision maker has imposed too high a test in making this assessment that the application is invalid. That assessment means that the applicant does not even get over the first hurdle and is denied the opportunity of arguing that the appropriate visa should be at the very least considered on its merit.
I accept that the requirement as defined in ASCO Code 2529-3 is not one which provides for a precise or specified form of tertiary qualification. This is not a nominated profession that has a specific skill level and I accept that there is no reason to conclude that the qualifications possessed by the applicant were not prime facie “appropriate” to the extent that the application should be regarded as valid. I do not regard the clause as requiring any further assessment on the part of the decision-maker in determining the initial validity of the application.
Validity of the clause
The applicant in support of this ground seeks to argue that the clause is not a criteria authorised by the Migration Act 1958 (the Act). The Act contemplates regulations that were both prescribed criteria in four classes of visas (s.31(3)) and also regulations that will define when an application for a visa "is valid" (s.46(1)(a)(b) 3, (4)(a)-(d)).
Reliance was placed upon the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) FCAFC 329 (22 December 2004) which was an appeal from Branson J in Kim v MIMIA (2004) FCA 956. It is relevant to set out the following extracts from the Full Court decision:-
“9 The issue raised before the primary judge was the validity of reg 2.12(2) of the Regulations. Her Honour concluded that reg 2.12(2) of the Regulations was ultra vires. As noted earlier, the only reason given by the Departmental officer for the decision that the respondents applications were not valid, was that the requirements of cl 832.211(3) had not been met. The primary judge quashed the decisions and issued writs of mandamus compelling the Minister to consider the applications.
10 Her Honour began by considering whether the Act disclosed an intention to authorise the making of reg 2.12(2). First, her Honour considered the general regulation-making powers contained in the Act and identified a distinction between the criteria for a visa or visas of a specified class (s 31(3)), criteria that must be satisfied for an application for a visa of a specified class to be a valid application (s 46(3)) and the circumstances that must exist for an application for a visa of a specified class to be a valid application (s 46(4)(a)).
…
18Subregulation 2.12(2) does not, in terms, condition the validity of an application otherwise authorised by s 48. Rather, it creates a qualification or limitation on an application for a particular class of visa by a person to whom s 48 applies. That is, a person who is a non-citizen in the migration zone not holding a substantive visa and who had earlier had a visa cancelled or an application for a visa refused (after last entering Australia). What is not clear is whether the qualification or limitation operates when the validity of the application is being considered or operates when the application is being considered. If the former, reg 2.12(2) is invalid on the approach adopted by the primary judge. If the latter, reg 2.12(2) imposes a criterion (the criterion created by cl 832.211(2)) which must be satisfied by a person making application under s 48 for a Special Eligibility (Residence) (Class AO) visa which is additional to those prescribed by the Regulations for that class of visa (except the subclass to which the criterion in cl 832.211(2) was applicable in any event).
…
21 To this point an assumption has been made that Branson J was correct in concluding that reg 2.12(2) was ultra vires if it created a condition for a valid application. In my opinion, this assumption is correct. It is unnecessary to repeat or endorse all aspects of the reasoning of Branson J. It is sufficient to point to the terms in which the power is conferred by s 46 to make regulations specifying what is a valid application. Section 46(3) appears to confer a power to make regulations concerning criteria referable to the application and not the applicant. On that footing, reg 2.12(2) would not be authorised by s 46(3) as it is a criterion referable to the applicant. However, s 46(4) is in wider terms and would authorise a regulation creating a condition precedent for a valid application which concerned the circumstances of the applicant. Nevertheless, it is relatively clear from the language of s 46(4) (which speaks of circumstances "that must exist") that the regulation authorises the creation of a condition precedent concerning the applicant which exists at the time of the application. In the present case, the condition created by reg 2.12(2) necessarily arises after the application is made because the condition is the formation of a particular opinion about the applicant. The condition is not the circumstances of the applicant at the time of the application in an objective sense.”
It was argued in the present case that the purported decision in question assumes that the requirements of sub-paragraph 12.12A(3)(h) that the applicant "must be accompanied by satisfactory evidence" is a valid requirement for determining whether the applicant had made a valid application for a visa. As I understand the submissions it was argued that it is illogical for the regulations to prescribe as an absolute criteria in the clause a question of “satisfactory evidence” which is determinative of the entire application where the decision made at the threshold is not subject to merits review but it is when determining entitlement to the visa. Although Branson J declared a different regulation invalid, it was argued the reasoning was similar and supports the submission made that the clause is invalid in the present case.
In brief terms it was submitted that paragraph (h)(iii) of the clause which contains a reference to a degree, diploma, or trade qualification that is “appropriate” permits a judgment that is simply objective. Any judgment other than that is one to be made upon the visa criterion in assessing the visa for which the applicant applies.
It was submitted that Kim is authority for the requirement in Schedule 1 as to what is a valid application imposed by s.46 and Regulation 2.07 to meet objective criterion not ones that are wide and “elastic”. The word “appropriate” in (h)(iii) of the clause it was argued must be read down. In this case there is a person with a degree consistent with the definition of a skilled occupation, the instruction is in English and the applicant applies for a skilled occupation as an interpreter from English to his native language. It was argued there should be no further enquiries upon receipt of that material.
In my view the decision of Branson J in Kim does not apply in the present case. However, I do note that in the Full Court of the Federal Court decision in that matter Allsop J states the following at [44]:-
“44 For these reasons, a regulation that suspends the assessment of the validity of an application by reference to an opinion of the Minister which cannot exist until some time after the making of an application is not authorised by s 46 or S 48. The relevant regulations under the Act, as presently drafted, are limited to regulations setting out criteria ascertainable as existing as at the making of the application and thereafter and which therefore provide criteria or circumstances which enable an assessment to be made as to whether an application is valid or invalid at the time of being made and thereafter.”
In the present case in my view the clause simply provides for criteria which is ascertainable and exists as at the date of making the application. The provision requiring satisfactory evidence in my view is a valid requirement which in this case has been fulfilled by the provision of evidence that the applicant held a Bachelor degree or higher qualification. Rather than declare the clause invalid in my view the more appropriate conclusion to draw is that the decision maker has acted beyond jurisdiction by seeking to import into the regulation a power to make an assessment as to what might be appropriate over and above the fundamental requirements of the regulation. In doing that the decision maker has therefore exceeded the jurisdiction by declaring the application invalid.
I am not satisfied that the clause itself is invalid and indeed nor does it seem necessary in this application for the Court to make that declaration having regard to the earlier findings and in particular acceptance of the applicant’s submissions that the decision maker had posed a test which was too high and not consistent with the ordinary meaning of the word “appropriate”.
Conclusion
For the reasons given it is appropriate that the Court makes the orders as set out at the commencement of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 May 2005
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