Azam v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 680
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Azam v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 680
File number(s): MLG 3538 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 31 July 2024 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal to affirm refusal of Skilled (Provisional) (Class VC) (Subclass 485) visa – consideration of cl.485.221 and 485.222 criteria, meaning and application of “closely related” and ANZSCO guideline – whether Tribunal’s decision otherwise affected by denial of natural justice – no error of jurisdiction is established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.65
Migration Regulations 1994 (Cth) cl.485.22, 485.222, 485.221.
Cases cited: Chawdhury v Minister for Immigration [2010] FMCA 275
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 3 July 2024 Place: Melbourne Solicitor for the Applicant: HUK Legal Services Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 3538 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASAD ALI AZAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.The application as amended on 7 February 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
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 MANSINI
The applicant is a citizen of Pakistan who sought a temporary graduate visa for the nominated skilled occupation of chef, having most recently studied an advanced leadership and management qualification.
The applicant now seeks judicial review of a tribunal decision to affirm a delegate’s decision to refuse a temporary graduate visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
The applicant, Mr Azam, arrived in Australia in 2011.
On 27 September 2016, Mr Azam applied for the student visa subject of this application. Specifically, he sought the grant of a Temporary Graduate (Graduate Work) (Class VC) (subclass 485) visa (485 visa) by reference to his nominated skilled occupation of Chef (ANZSCO 351311). In completing the application form, Mr Azam attached a successful provisional skills assessment application for the occupation of “Chef [351311]” dated 6 October 2015 issued by the then Department of Education and Training and provided the following qualifications:
(a)From 23 July 2012 to 5 August 2013, a Certificate II in Commercial Cookery from the Victorian Institute of Technology;
(b)From 14 February to 6 October 2014, a Diploma of Hospitality at the Victorian Institute of Technology;
(c)From 15 February to 26 July 2015, a Certificate IV in Commercial Cookery at the Victorian Institute of Technology; and
(d)From 22 March to 13 September 2016, an Advanced Diploma of Leadership and Management at Barkly International College.
On 9 January 2017, Mr Azam was notified by the then Department of Immigration and Border Protection that his application for a 485 visa was refused.
On 30 October 2018, the Tribunal heard the application on review and decided to affirm the delegate’s decision to refuse the grant of the 485 visa because the member was not satisfied that Mr Azam satisfied the criteria at cl.485.22 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
TRIBUNAL’S REASONS
On 31 October 2018, the Tribunal emailed a copy of its decision record dated 30 October 2018 to Mr Azam’s representative. It is those reasons that are subject of this application for review. A short summary of the relevant parts of the Tribunal’s reasons follow.
The Tribunal commenced its consideration by outlining the qualifications and dates of study outlined by Mr Azam on the application form: at [5].
At [6] and [7], the Tribunal made findings that:
(a)as the visa application was made in September 2016, then the only relevant qualification completed in the 6 months prior as to meet the Australian study requirement for purposes of cl.485.221 was that of “Advanced Diploma of Leadership and Management” (studied by Mr Azam, at Barkly, between March and September 2016); and
(b)Mr Azam’s nominated occupation for purposes of cl.485.222 was that of “Chef”.
In the paragraphs that follow, at [8] to [21], the Tribunal embarked on its consideration of the detail of Mr Azam’s written submissions to the delegate, written submissions to the Tribunal and oral evidence about his role and work as a Chef, relevance and close relationship of the subject course of study.
The Tribunal considered Mr Azam’s contentions of the close relationship between the qualification and the nominated occupation and expressly referred to the reasoning of the Federal Court of Australia in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (Talha) and Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 which had been raised by Mr Azam in submissions made to the Tribunal: at [8] and [9].
The Tribunal observed that Mr Azam’s belief about what would be useful in his role did not assist its consideration of the objective requirements of the occupation. Further, that many of the tasks to which Mr Azam referred, including broader leadership tasks, human resource management, marketing of dishes etc, are not part of the occupation of Chef. The Tribunal cited the decision in Chawdhury v Minister for Immigration [2010] FMCA 275 as authority for the objective nature of its task: at [11].
The Tribunal accepted that tasks of a Chef are broader than food and there are some staff supervisory responsibilities but, in reliance on the ANZSCO guidance, found that any management responsibilities do not form a significant aspect of the job: at [12]. Further, that the qualification was “useful” to the nominated skilled occupation did not necessarily (and, in this case, did not) establish a close relationship as required: at [13].
The Tribunal was also “mindful” that the Diploma of Management and Leadership is a broad qualification and not designed for the hospitality industry, reiterated that a supervisory role is not a significant role of a Chef’s responsibilities, and cited Talha as authority for the proposition that the Tribunal is required to consider the relevance of the course of study to the occupation as a whole, as distinct from a single aspect of the occupation which an applicant has identified as requiring the skills acquired in their course – and applied this reasoning to Mr Azam’s specific contentions: at [14].
The Tribunal went on to consider the specific subjects studied by Mr Azam and his evidence about risk management functions of a Chef, but did not consider the subject qualification assisted with risk management in the kitchen such as cleaning equipment and use of knives. It noted again the task as being a holistic assessment of the qualification not limited to individual subjects the applicant may have considered useful. The member also considered Mr Azam’s evidence about marketing and creation of new dishes, but did not accept that there was any relationship between the subject qualification and menu planning and costing of dishes: at [15] and [16].
The Tribunal expressed the view that, if Mr Azam decides to run his own business, then his occupation may be that of restaurant manager and not that of a Chef: at [18].
The Tribunal extracted the ANZSCO guidance for “Unit Group 3513 CHEFS”, “Occupation 351311 Chef”, including the “Indicative Skill Level” and associated “Tasks” set out therein, before concluding that it was not satisfied that leadership and management form part of the tasks performed by a Chef, even if some of the Chef’s responsibilities include staff selection and training: at [19] to [20].
The Tribunal found that, having considered all of the evidence before it, the Tribunal was not satisfied that the Advanced Diploma of Management and Leadership qualification as relied on by Mr Azam is closely related to the nominated occupation of Chef and therefore was not satisfied that each of the qualifications used to satisfy the Australian study requirement was closely related to the nominated occupation as to meet cl.485.222: at [22].
APPLICATION BEFORE THE COURT
On 23 November 2018, this application for judicial review was filed with a short accompanying affidavit.
An amended application was filed on 7 February 2024 which articulated 3 grounds in the following terms:
GROUND 1
The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application. The Tribunal erred by requiring the applicant to show an exact correspondence between his chosen study and the nominated occupation.
GROUND 2
The Tribunal fell into jurisdictional error as Natural Justice was not given to the Applicant as the Second Respondent only investigated one aspect, i.e. nominated occupation, and did not investigate study aspect.
GROUND 3
The Second Respondent just referred ANZSCO for the nominated occupation, but did not refer training guide to see the clear picture.
(sic.)
Various procedural orders were made. The parties filed materials and, at final hearing on 3 July 2024:
(a)The parties relied on the court book filed on 30 September 2020 and supplementary court book filed on 26 June 2024;
(b)Mr Azam sought to rely on the amended application of 7 February 2024, the affidavit that accompanied his original application affirmed 23 November 2018, and an outline of submissions filed by his legal representative on 13 June 2024; and
(c)The First Respondent sought to rely on its response filed on 17 December 2018 and an outline of submissions filed on 26 June 2024.
On 3 July 2024 a hearing was convened before the Court as presently constituted, by Microsoft Teams at request of Mr Azam’s representative. Mr Azam did not attend but was represented by a solicitor and the First Respondent was represented by a solicitor.
STATUTORY FRAMEWORK
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Migration Act 1958 (Cth).
At the relevant time, the criteria for the grant of the relevant visa was set out at clauses 485 of Schedule 2 to the Regulations.
The criteria for the relevant 485 visa are set out at cl.485.221 and 485.222 which provided:
485.221
The applicant, in the period of 6 months immediately before the day the application was made, completed one or more associate degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
485.222
Each associate degree, diploma or trade qualification used to satisfy clause 485.221 is closely related to the applicant’s nominated skilled occupation.
GROUND 2
By the second ground, Mr Azam claimed that the Tribunal erred by denial of natural justice in that the Second Respondent only investigated the nominated occupation aspect, and did not investigate the study aspect. This ground was particularised as follows:
(a)The Qualifications achieved by the Applicant should be considered in a broader spectrum and all the qualifications are in coherence and closely related.
(b)The nominated occupation is very broad, and the interpretation of the occupation is broad, and it leads to larger roles down the track.
To the extent that Mr Azam contended that the Tribunal ought to have considered all of his prior qualifications in its evaluation of the 485 visa application then it can not succeed.
It is at least conceivable that more than one course of study could be relevant to the decision-maker’s assessment. However, cl.485.221 expressly prescribes that the study requirement/s must have been completed in the period of 6 months immediately before the day the application was made. It is only those qualifications used to satisfy cl.485.221 that are to be closely related to the applicant’s nominated skilled occupation for cl.485.222.
In the present case, there was only one qualification of relevance to the Tribunal’s task. The Tribunal did not err in evaluating Mr Azam’s Advanced Diploma of Leadership and Management as against the nominated skilled occupation of Chef (and in declining to evaluate any of Mr Azam’s other qualifications that were not used to satisfy cl.485.221 for the 485 visa application).
To the extent that this ground sought to contend error with regard to the nature and breadth of the nominated occupation, there is considerable overlap with the first and third grounds and this is considered below.
GROUNDS 1 AND 3
There was a degree of overlap between Mr Azam’s first and third grounds of review, by which Mr Azam claimed that the Tribunal had erred by requiring him to show an exact correspondence between his chosen study and the nominated occupation (first ground) and in an overly narrow reliance on the ANZSCO guideline for the nominated occupation (third ground).
The first ground was particularised as follows:
1)The words “closely related” in cl.485.222 are not defined in the Regulations or elsewhere in the relevant legislation. However, the assessment of the term ‘closely related’ has been considered by the Full Court of the Federal Court of Australia in Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015), where it was held that the decision maker is entitled to give substantial weight to the ANZSCO description of the nominated occupation.
2)The Applicant has highlighted the clear correlation between many of the daily tasks performed by a chef, such as monitoring staff, demonstrating cooking techniques, estimating food and labour costs, and ordering stock with the subjects in financial management and people management.
3)It is logical that a qualification in management and/or leadership could be closely related to that occupation. It is beyond doubt, that an Advanced Diploma of Leadership and Management taught by chefs to chefs is closely related to the occupation of Chef.
The third ground was not particularised in the amended application.
The relevant principles of Talha are at [53] therein:
Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it 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”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]….
(emphasis per original)
On the face of the Tribunal’s decision record, the Tribunal approached its task by undertaking an objective assessment of the nominated occupation of Chef against the single qualification that was relevant to its task (being the only qualification that Mr Azam had completed in the period of 6 months immediately before the day the application was made).
The Tribunal’s reasons disclose that, in the course of its evaluation, it carefully engaged with Mr Azam’s contentions, including to accept his claims that the tasks of a Chef are broader than food and entail some staff supervisory responsibilities. It also had regard to the subjects studied in the relevant qualification and the ANZSCO skills as a guide to what the relevant occupation entails.
The Tribunal did not require an exact correlation. To the contrary, the Tribunal evaluated the whole of the qualification compared with the whole of the occupation but did not accept that any management responsibilities form a significant aspect of the job of Chef or that those responsibilities reflect the occupation considered as a whole.
This is not a case like Talha where other relevant tasks in the ANZSCO hierarchy or structure were identified as aligned with Mr Azam’s 485 visa application and were clearly overlooked by the Tribunal. Indeed Mr Azam accepted that, by its very nature, the Advanced Diploma of Leadership and Management was generic and did not automatically lend itself to a natural connection with the daily tasks of a Chef – consistent with the Tribunal’s findings that this is a broad qualification.
To the extent that Mr Azam maintained that there was a clear correlation between many of the units of study and the daily tasks performed by a Chef such as monitoring of staff, demonstrating cooking techniques, estimating food and labour costs and ordering stock with the subjects in financial management and people management – especially to the role of Chef in a commercial kitchen and where the course is taught by Chefs to up-and-coming Chefs, that would appear to be an invitation to engage in impermissible review of the merits of the Tribunal’s decision.
Absent the identification of jurisdictional error, it is not for the Court to substitute the Tribunal’s decision with one it would have made. The Tribunal’s approach in considering the nominated skill occupation of Chef both objectively and as a whole was consistent with the principle that may be derived from the established authorities including Talha. In respect of the Tribunal’s decision that the nominated skilled occupation and relevant qualification were not “closely related” for purposes of cl.485.222 of the Regulations, the Tribunal was entitled to find as it did, which findings were open to it on the evidence before it. The Tribunal did not ask itself the wrong question and its reasons were logical, rational and intelligibly justified.
There is no discernible error in the approach of the Tribunal as alleged by the first or third grounds.
CONCLUSION
For the above reasons, the application is dismissed with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.
Associate:
Dated: 31 July 2024
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