Bhanot v Minister for Immigration
[2014] FCCA 864
•29 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHANOT v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 864 |
| Catchwords: MIGRATION – Review by Migration Review Tribunal of decision refusing applicant Skilled (Residence) (Class VB) visa – whether Tribunal made a jurisdictional error by concluding applicant was not employed in a skilled occupation closely related to applicant’s nominated skilled occupation –meaning of “closely related” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(9), 92, 93, 94(3), 95, 96(1), 96(2), 350(1) Schedule 2, cl.885.211(2)(a), 885.211(2)(b), 885.221 Schedule 6B, item 6B41 |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Singh and Anor v Immigration Review Tribunal and Anor (1993) 117 ALR 687 |
| Applicant: | VARUN KUMAR BHANOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 406 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Newman |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 406 of 2013
| VARUN KUMAR BHANOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal issue that arises in this application for judicial review is whether the second respondent (Tribunal) misinterpreted or misapplied to the facts before it the expression “has been employed in . . . a closely related skilled occupation” when assessing whether the applicant had satisfied the criteria for a Skilled (Residence) (Class VB) visa (Skilled Visa).
To understand the grounds on which the applicant contends the Tribunal misinterpreted or misapplied this expression, it will be necessary to say something about the criteria that had to be satisfied for the granting of a Skilled Visa on 20 September 2010 when the applicant applied for the Skilled Visa, and the facts out of which the claim arises.
Skilled Visas
Skilled Visas are a class of visas prescribed by Item 1136 of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations). To have been entitled to a Skilled Visa on 20 September 2010, an applicant had to satisfy the criteria specified under Subclass 885 or Subclass 886 or Subclass 887 of Schedule 2 to the Regulations. The relevant criteria the applicant before me had to satisfy were those identified under Subclass 885.
One of those criteria was that the applicant satisfied the “Australian study requirement” in the period of six months ending immediately before the day on which the application was made.[1] Another was that each degree, diploma or trade qualification on which the applicant relied to satisfy the “Australian study requirement” was “closely related to the applicant’s nominated skilled occupation”.[2] The expression “applicant’s nominated skilled occupation” is a reference to the requirement specified in subparagraph 4(b)(ii) of Item 1136 of the Regulation that an applicant for a Skilled Visa must nominate “a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph”.
[1] Cl.885.211(2)(a)
[2] Cl.885.211(2)(b)
The expression “skilled occupation”, when used in relation to a person, is defined in reg.1.15I(1) of the Regulations to mean an occupation of a kind:
(a)that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b)if a number of points are specified in the instrument as being available – for which the number of points are available; and
(c)that is applicable to the person in accordance with the specification of the occupation.
The mentioning of “a number of points” in paragraph (b) of this definition directs attention to a time of decision criterion specified in Subclass 885: the “applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the” Migration Act 1958 (Cth) (Act).[3] Although the expression “qualifying score” is not defined, it means the qualifying score for which an applicant is assessed by the application of “the “points” system” provided for by Subdivision B of Division 3 of Part 2 of the Act.[4]
[3] Cl.885.221
[4] Section 92 of the Act
That system has the following essential three elements:
a)the prescribing by regulations of:
i)qualifications or other characteristics an applicant for any of the classes of visa to which s.93 applies must possess to entitle the applicant to the award of points; and
ii)the number of points that are to be awarded to the applicant for each qualification or characteristic an applicant possesses;
b)the empowering of the Minister to specify, from time to time, by notice in the Gazette in relation to applications for visas of a particular class, the pass mark for the purposes of the Act and the Regulations;[5]
c)the empowering of the Minister to “make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant”;[6]
[5] Section 96(2) of the Act
[6] Section 93(1) of the Act
An additional element of the system is the power conferred on the Minister by s.94(3) of the Act to place into a “pool” applications for a visa that were not assessed to have satisfied the relevant pass mark but which were assessed to have satisfied the “pool mark” which the Minister may have specified by notice in the Gazette in relation to a class of visas pursuant to s.96(1) of the Act. Once an application has been placed in the pool, the Minister must deal with the application in the manner provided for by s.95 of the Act.
Sub-regulation 2.26AA(3) of the Regulations specifies that the qualifications in Schedule 6B are prescribed as qualifications for the purpose of s.93 of the Act to applications for a points-tested “General Skilled Migration visa” made but not “finally determined” before 1 July 2011.[7] The expression “General Skilled Migration” is defined to mean Subclass 175, 176, 189, 190, 475, 476, 485, 487, 489, 885, 886, or 887 visas granted at any time.[8] And the expression “finally determined” is defined in s.5(9) of the Act to mean a decision which is not, or is no longer, subject to any form of review under Parts 5 or 7 of the Act; or a decision which is liable to be reviewed under Parts 5 or 7 in respect of which no application for review has been made or the period within which such review could be instituted has ended.
[7] Sub-regulation 2.26AA(1)
[8] Reg.1.03 of the Regulations
Given that the applicant in this case applied for a Skilled Visa on 20 September 2010, and it was finally determined when the Tribunal made its decision on 1 February 2013 (that is, not before 1 July 2011), it is the items specified in Schedule 6B that apply to the applicant. And the relevant regulations are contained in Schedule 6B to the Regulations.
Schedule 6B identifies a number of qualifications to each of which it assigns a number of points. Relevant to the application before me is Item 6B41 to which there is assigned 10 points and which is described as follows:
The applicant nominated a skilled occupation for which 60 points are available and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made.
Although there is not in evidence any notice in the Gazette specifying the pass mark in relation to applications for Skilled Visas, the delegate noted that under “the points test in force now” (29 September 2011), the “pool and pass mark for a” Skilled Visa “to enable further consideration of this application is 120 points”. The Tribunal considered that this was the relevant score the applicant had to satisfy, and nothing was submitted to me to suggest that this was not the relevant score. I will therefore consider the application before me on the basis that the relevant pass mark and pool mark the applicant had to satisfy was 120 points.
Although Schedule 6B applies to the application for a Skilled Visa the applicant made, s.350(1) of the Act must be borne in mind:
In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a)the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(c)the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
It has not been suggested by any party that items other than those prescribed by Schedule 6B to which I have referred above apply to the applicant in this case.
Having identified the relevant criteria for the granting of a Skilled Visa that applied to the application for such visa made by the applicant, I will now turn to that application.
The application for a Skilled Visa made by the applicant
The applicant applied for a Skilled Visa by completing and lodging a “General Skilled Migration Applicant Form”. Next to the words “Nominated Occupation”, the applicant recorded “Accountant (General)”. The applicant recorded the word “No” under the following words:[9]
[9] CB11
Applicant specific work experience
You may be eligible for points for specific work experience.
Have you worked in an occupation on the Skilled Occupations List (SOL) for 36 out of the 48 months immediately before lodging the application?
Based on the answers the applicant included in the form, he qualified for 95 points. The answers he gave resulted in his earning zero points for “Australian work experience” and for “English language”.
By email sent to the applicant’s agent on 19 May 2011, a delegate of the first respondent (Minister) requested that the delegate be provided with evidence of “at least competent English Language ability” and evidence “of how [the applicant] meets the relevant Points Test”. The applicant’s agent responded with an email sent on 15 June 2011 to which was attached the applicant’s International English Language Testing System (IELTS) results dated 11 December 2010 for “Competent English”. The agent stated that on 11 June 2011 the applicant had sat for the IELTS and he expected the applicant would score 7/7/7/7. The agent also requested the applicant be given a further four weeks to respond to the delegate’s email of 19 May 2011. It appears the applicant provided no further information to the delegate.
On 29 September 2011, therefore, the delegate refused the application for the Skilled Visa. In his reasons for decision, the delegate assigned an additional 15 points after he received the evidence of the applicant’s IETLS results, but did not assign any other additional points. The delegate noted that the applicant “made no claims and provided no evidence of having eligible Australian employment or of completing a Professional Year and no points are awarded”.[10]
[10] CB46
The application before the Tribunal
On 17 October 2011, the Tribunal received from the applicant an application for review of the delegate’s decision. By letter dated 4 September 2012 to the applicant, the Tribunal invited the applicant to appear before it on 9 October 2012 to give evidence and present arguments in relation to issues arising on the applicant’s case. The Tribunal noted that the application for the visa was made on 20 September 2010 and the applicant had not presented evidence he met the points test for the visa. The Tribunal requested the applicant to provide within fourteen days from the date of the letter “evidence that you satisfy the points test”. The Tribunal also noted that it had considered the material before it “but it is unable to make a favourable decision on this information alone”.[11]
[11] CB71
By letter dated 9 October 2012, the applicant’s migration agent contended that in addition to the 110 points the delegate awarded the applicant, the applicant was entitled to an additional 40 points, including 10 points for “Australian Employment”.[12] In support of this contention, the agent provided to the Tribunal a letter dated 4 October 2012 written by Mr Simon Cowen, the Store Manager of Supabarn Supermarket.[13] At that time, the applicant was employed by Supabarn Supermarket. The purpose of the letter was to set out the duties the applicant performed with Supabarn Supermarket.
[12] CB83
[13] CB86
Mr Cowen stated the applicant had been working with Supabarn Supermarket from 1 September 2006 to 4 October 2012 as a Manager, “leading a group of over 20 employees with various positions to ensure the smooth operation of this business”. Mr Cowen then set out in detail the duties the applicant carried out. Most of the duties listed related to accounting and financial matters. These included cash handling, investigating shortfalls and surplus for the day, assisting in the formulation of budget and accounting-related tasks, preparing day-to-day financial statements for presentation to the management, conducting financial investigation, undertaking audits, preparing reports, and advising on matters such as purchase and sale. After listing additional duties he said the applicant performed, Mr Cowen concluded:
In summary, [the applicant] performs the duties of three occupations: Accountant, Administrative Manager, Retail Customer Services Manager. We are pleased with the exceptional level of service he provides and we wish to keep him as long as he wishes to stay with us. . . .
The applicant also gave evidence to the Tribunal on 9 October 2012. According to the Tribunal’s reasons for decision, the applicant said: he commenced work at Supabarn Supermarket in 2006; until March 2008 he worked 20 hours a week while studying for a Masters in Professional Accounting; during that period the applicant “learnt how to be in charge of the store, administration, auditing, budgeting, stock control and feedback from customers”,[14] and “end of the day procedures including checking the tills”;[15] he also learnt during this period “how to check the budget on a weekly basis and prepare financial statements”;[16] in July 2008 he was promoted and “started doing all the tasks of a manager”;[17] and in 2009 he was put on a 12 month contract as night manager.
[14] CB128, [31]
[15] CB128. [31]
[16] CB128. [31]
[17] CB128, [32]
The applicant further said that his title at the time he appeared before the Tribunal was “Customer Retail Service Manager and also the night manager”;[18] and this position was below the position of a store manager. The tasks he said he carried out in this role were as follows:[19]
He stated that he has always done the night time job since he got his promotion. When asked to describe his duties, he stated that he checks the presentation of the store. He checks rosters and may need to organise employees to be in a certain department. He checks to make sure things are being done properly. He checks to make sure the safe is balanced and the tills do not run out of money. He writes invoices, checks if orders need to be placed and places orders. He meets with suppliers. If there are any deliveries he writes down the invoices. They are processed at night and put into the system. After that he makes sure the store “looks nice” and customers are being serviced. If any stack [sic] needs to be prepared he prepares them. He takes the safe upstairs and makes the sure the security alarms are in place. Someone else does the balances and checks to make sure it is balanced. If there is a shortfall he checks the tills. If the [sic] is excess money he does the drops. A girl in Administration does the banking in the morning.
[18] CB128, [33]
[19] CB129, [36]
The applicant agreed that “his job is not as an Accountant”.[20] In response to the Tribunal’s informing the applicant it had concerns about whether the applicant’s job was closely related to the job of an accountant, the applicant “stated that it is mainly customer service but that he does the task of an Accountant too and it is closely related”.[21] The applicant agreed with the Tribunal’s noting that “it appeared that his primary job was in customer service and he had some accounting jobs”.[22] The Tribunal also records the applicant as having stated:[23]
that he had been working with his employer for 6 years. He does not consider himself to be an Accountant. He does some of the tasks of an Accountant. He is doing the job of a Retail Manager.
[20] CB129, [38]
[21] CB129, [40]
[22] CB129, [40]
[23] CB129, [43]
After the hearing, the applicant, through his agent, provided additional documents. One was a letter dated 16 October 2012 from Strathony Pty Limited, the operator of Supabarn Supermarket, confirming that the applicant:[24]
[24] CB107
has been employed by Strathony Pty Ltd from 09th October 2006 to July 2007 as a Grocery Assistant. From July 2007 to November 2008 he worked as Trainee Duty Manager and from 2008 November until current he is working as The Duty manager at our Five Dock Store.
He currently works 30 hours a week . . . .
Another document was a letter dated 23 October 2012 from the applicant’s migration agent. One of the matters covered in the letter was the applicant’s satisfaction of Item 6B41 of Schedule 6B to the Regulations. The applicant’s agent relied on “PAM3”, being the procedures advice manual used within the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) (DIAC). The applicant’s agent relied on the following extract from PAM3:[25]
A ‘closely related’ occupation would usually be a job in the same industry and in which the occupant exercises substantially the same skills and requires the same level qualifications as would be required in their nominated occupation.
[25] CB101
After quoting additional material from PAM3, the applicant’s migration agent then made the following submissions:[26]
The applicant has been working as Manager in a Large Retail store Supabarn. I have analyzed that the duties are comprised of three occupation [sic], Customer Service Manager, Retail Buyer (Manager) & Accountant. The applicant having nominated an occupation as an Accountant, has performed tasks of an accountant in his current position of a Manager, and it is fair to say that “it is more like in-house Accountant”, however all this is closely relevant to the Nominated Occupation of the applicant and he is eligible for points under this factor.
[26] CB102
Another document the migration agent provided to the Tribunal was a statutory declaration. One of the matters it dealt with was the payslips he had submitted to the Tribunal referring to him as a “grocery assistant”.
Tribunal’s reasons
The Tribunal confirmed that the applicant was entitled to 60 points for “Occupational Qualification”, 30 points for “Age Qualification”, 15 points for “English Language Qualification”, and 5 points for “Australian Educational Qualification”. The Tribunal was not satisfied the applicant was entitled to any other points, including points for “Australian Employment Qualifications”. The Tribunal arrived at this conclusion as follows.
The Tribunal first noted there was no evidence or claim before it that the applicant had been employed in his nominated skilled occupation of “Accountant (General)”.[27] That led the Tribunal to consider whether it would accept the applicant’s evidence of the tasks he carried out at Supabarn Supermarket and, if so, whether those tasks could be properly characterised as being “closely related” to the applicant’s nominated skilled occupation.
[27] CB131, [61]
The Tribunal then referred to the list of tasks for “Accountant (General)” listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) to determine the tasks that persons in the applicant’s nominated skilled occupation carry out.[28] The Tribunal also considered an excerpt from “PAM3 which I set out earlier in these reasons.
[28] CB131, [70]
The Tribunal accepted that in his employment with Supabarn Supermarket the applicant undertook some tasks that were related to accounting. The Tribunal, however, was “of the view that his primary role was that of a Retail Customer Service Manager and any tasks that he performed that were related to accounting were incidental to that role”.[29] The Tribunal further said: [30]
a)the “applicant’s employment as a Retail Customer Service Manager and Night Manager is not in the same industry as an Accountant”;
b)it was not satisfied that in that role the applicant “exercises substantially the same skills and requires the same level qualifications [sic] as would be required in his nominated occupation of Accountant (General)”; and
c)it was not satisfied “the duties that the applicant performed in his role of Retail Customer Service Manager and Night Manager required him to have the skills and qualifications of an Accountant”.
[29] CB133, [71]
[30] CB133, [72]
The claimed jurisdictional error and parties’ submissions
In his application, the applicant states the following ground of review:
The Tribunal in deciding whether the applicant met the requirements for a Skilled (Residence) (Class VB) visa received oral evidence from the applicant that he was employed as an accountant by his employer. At page 9 of the decision the Tribunal said, ‘There is no evidence or claim before the Tribunal that the applicant has been employed in Australia in his nominated skilled occupation of Accountant (General).’ In fact the applicant claimed he was a manager who attend[ed] to accounting matters as part of his work duties and was supported in that claim by evidentiary material from his employer. The Tribunal discounted this evidence of performance of accounting duties saying it was merely incidental to his role of customer service manager. In so doing the Tribunal confused ‘skill’ with the use of that skill which is not pertinent to the issue and thus erred in its jurisdiction and in law.
It is possible to identify in this ground of review a number of claimed jurisdictional errors. From the applicant’s written submissions, however, it is clear that the error the applicant claims the Tribunal made was that the Tribunal “confused ‘skill’ with the use of that skill”. The applicant submits that all that was necessary to satisfy the requirement that an applicant had been employed in the applicant’s nominated skilled occupation or in a “closely related skilled occupation” within the meaning of Item 6B41 of Schedule 6B to the Regulations was that the applicant was in an occupation in which for at least some of the time the applicant used the skills that are required to undertake the applicant’s nominated skilled occupation. The applicant relies on the decision of Wilcox J in Singh and Anor v Immigration Review Tribunal and Anor.[31]
[31] (1993) 117 ALR 687
In his written submissions the applicant appears to make a different claim. He there submits that the error the Tribunal made was to find that the applicant’s “primary role was that of a Retail Customer Service Manager”.[32] The error is said to have consisted in the Tribunal accepting the applicant’s description of what he did, namely, “Retail Customer Service Manager”, without defining what his job amounted to and without considering whether the job could be treated as a “closely related occupation”. Further, the Tribunal erred in finding that the applicant was employed as a “Retail Customer Service Manager” because what the applicant did bore no relationship to the definition of a “customer service manager” extracted “from DIAC’s website”.[33]
[32] Applicant’s written submissions, [3]
[33] Applicant’s written submissions, [7]
The Minister submits that the applicant’s complaint is in truth a complaint that the Tribunal made a factual error because whether or not the applicant was occupied in “a closely related skilled occupation” to the applicant’s nominated skilled occupation is a question of fact. And the conclusion the Tribunal arrived at was open to it. The Minister particularly relied on the decision of Jacobson J in Constantino v Minister for Immigration and Border Protection.[34]
[34] [2013] FCA 1301
The following issues arise:
a)What was the task the Tribunal was required to undertake in determining whether the applicant had satisfied Item 6B41 of Schedule 6B to the Regulations?
b)Did the Tribunal undertake the task it was required to undertake?
The task the Tribunal was required to undertake
To determine the task the Tribunal was required to undertake when determining whether the applicant was entitled to be awarded points under Item 6B41 depends on the proper interpretation of the text of Item 6B41. Before I consider that question, it will be necessary to remind myself of the basic principles of statutory construction I must apply.
Some principles of statutory construction
The issue before the Court concerns the interpretation of delegated legislation. The “general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation”.[35] To “use the words of Dixon J, “subordinate or delegated legislation … [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction””.[36]
[35] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ
[36] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. This quoted passage is taken from the judgment of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195
The purpose of statutory construction is to ascertain the intention of Parliament or the person or body promulgating the relevant piece of delegated legislation. That intention, however, is to be ascertained from the words Parliament or the person or body has chosen to express its or his or her intention, in the context of the Act or delegated legislation in which the words appear. The basic task of statutory construction, therefore, is to ascertain the meaning of the text that is to be construed, in the context of the Act or delegated legislation in which it appears.
These principles were recently reiterated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[37]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[37] (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Keifel JJ), cases referred to omitted.
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority:[38]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[38] (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ)
Item 6B41
Item 6B41 of Schedule 6B to the Regulations identifies one of the matters which, if satisfied, would entitle an applicant to the award of points. Item 6B41 provides:
The applicant nominated a skilled occupation for which 60 points are available and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made.
Item 6B41 requires that an applicant must have been employed for the relevant time either “in that occupation”, namely the skilled occupation the applicant nominated in his or her application for the Skilled Visa, or “in a closely related skilled occupation”. The applicant’s nominated skilled occupation was that of “Accountant (General)”. That is a reference to one of the occupations the Minister specified by notice for the purposes of reg.1.15I of the Regulations.[39] Schedule 3 to that notice defines “Accountant (general)” by reference to “ANZSCO CODE 221111”
[39] Legislative Instrument IMMI 12/068 – Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas. This applies to persons who applied for a Skilled Visa on or after 1 July 2010 but before 1 July 2011.
The applicant, in his written submission, set out what was said to be the definition of “Accountant (General) – ANZSCO 221111”:
Description
Provides services relating to compliance-based financial reporting, auditing, insolvency, and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.
Skill Level 1
The current definition of “Accountant (General)” that appears on the website of the Australian Bureau of Statistics (ABS) is worded differently:[40]
[40] accessed on 17 April 2014
221111 Accountant (General)
Plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements. Registration or licensing is required.
Skill Level: 1
I will assume for the purposes of this application that the relevant definition of “Accountant (General)” is that set out in the applicant’s submissions. In my opinion, however, nothing turns on whether that is the correct definition or whether the definition currently set out on the ABS website is the correct definition.
It is common ground that the applicant was not employed in his nominated skilled occupation of “Accountant (General)”. The question for the Tribunal to determine, therefore, was whether the applicant “has been employed in . . . a closely related skilled occupation”. There are a number of things to note about this expression.
First, the expression cannot be given any meaning by itself. That is so because of the words “closely related”. These words predicate a relation between two things. The first is a “skilled occupation” in which an applicant has been employed (Actual Skilled Occupation). The second is “that skilled occupation”, which is a reference to the skilled occupation an applicant nominated in his application for the Skilled Visa (Nominated Skilled Occupation). The words “has been employed in . . . a closely related skilled occupation”, therefore, can only gain meaning by reference to the Nominated Skilled Occupation.
Second, the meaning the words “has been employed in . . . a closely related skilled occupation” can gain by reference to the Nominated Skilled Occupation depends on the meaning of the words “closely related”. In that regard, the word “related” has a number of meanings. When said of two or more things, “related” may mean “connected or having relation to something else”.[41] And one meaning, or set of meanings, of “relation” is “an attribute denoting or concept expressing a connection, correspondence, or contrast between different things; a particular way in which one thing or idea is connected or associated with another or others; a link, a correlation; the fact of being so connected, associated, etc.; connection, association”.[42]
[41] Oxford Dictionary of English 2014 (online edition)
[42] Oxford Dictionary of English 2014 (online edition)
Bearing in mind these definitions, the word “related”, when said of two things (A and B), means that A and B share at least one characteristic or element that go to define A and B. If “related”, when said of A and B, is qualified by the word “closely”, the combined expression “closely related” means that A and B share a substantial proportion of the characteristics or elements that go to define each of A and B. Thus, when the expression “closely related” is applied to the Actual Skilled Occupation, it requires that the characteristics or elements that define the Actual Skilled Occupation are substantially the same as the characteristics or elements that define the Nominated Skilled Occupation.
Third, the requirement that the characteristics or elements that define the Actual Skilled Occupation must be substantially the same as the characteristics or elements that define the Nominated Skilled Occupation at the very least implies that the Nominated Skilled Occupation is defined or at least capable of definition. As I have noted earlier, the skilled occupations that can be nominated by an applicant for a Skilled Visa are those specified by the Minister. And at least in the case of “Accountant (General)”, the occupation is defined in terms of the services the person pursuing the occupation provides, and the skill levels that such person must possess.
Thus, from the language of Item 6B41, for the Actual Skilled Occupation of an applicant to be “closely related” to the applicant’s Nominated Actual Occupation, it is necessary that it have characteristics or elements that are substantially the same as those by which ANZSCO defines “Accountant (General)”. Given that ANZSCO defines “Accountant (General)” by reference to the services that are provided by the person employed in that occupation, and the skill levels that such persons must possess, it is necessary that an applicant’s Actual Skilled Occupation also be defined by reference to the services that were performed by him or her when carrying out the Actual Skilled Occupation and the applicant’s skill levels, and that those services and skill levels are substantially the same as the services and skills levels by which ANZSCO defines the Nominated Skilled Occupation.
The conclusion this analysis gives rise to may be stated as follows. To properly determine whether the applicant was employed in a closely related skilled occupation to that of his nominated skilled occupation, namely, “Accountant (General)”, the Tribunal was required to determine whether the services the applicant provided while employed by Supabarn Supermarket, were substantially the same as the services ANZSCO stipulated a person must provide in order to be classified as an “Accountant (General)”; and that the skills that the applicant possessed were substantially the same as the skills ANZSCO stipulated an “Accountant (General)” must possess.
This analysis does not take into account Singh and Anor v Immigration Review Tribunal and Anor, a decision on which the applicant relies. Does that decision require me to modify or abandon the analysis I have carried out on the basis of the language of Item 6B41?
Singh and Anor v Immigration Review Tribunal and Anor
The question in Singh was whether a person satisfied a visa requirement that the person occupy a position on a “permanent, full-time basis”, and that the position was “in respect of a highly skilled occupation”. The applicant in that case was a professional dancer, and her position required her to exercise her skills as a dancer. The applicant, however, was only required to do that for a minor portion of each day; the applicant performed other tasks when not exercising her specialised skills. The Immigration Review Tribunal took the view that the applicant was only exercising her skills for a minor portion of the day, and therefore, did not satisfy the relevant criterion.
Wilcox J found that by so concluding, the Immigration Review Tribunal made an error of law. His Honour said:[43]
The question that Mr Karas had to ask himself was whether the position in which the applicant was employed was a "position in respect of a highly skilled occupation"; that is to say, was it a position requiring the engagement of a person having appropriate formal training and employment experience? If that question is answered in the affirmative, reg 51(1)(a)(ii) is satisfied. It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.
[43] (1993) 117 ALR 687 at page 691
In my opinion, the question the Immigration Review Tribunal in Singh was required to ask itself was very different from the question the Tribunal had to consider under Item 6B41. In Singh, the question was whether the position in which the applicant was employed was “a position in respect of a highly skilled occupation”. That required a consideration of the position the applicant there occupied and whether that called for the exercise of specialised skill. The answer to that question did not depend on the time a person devoted to exercising his or her skill in the position. All that mattered was that there was a position, and that position required the exercise of specialised skill.
Under Item 6B41, however, the question is not, or at least not only whether an applicant was employed in an occupation that required the exercise of the skill that is prescribed for an “Accountant (General)”. The question is whether the occupation in which the applicant was employed was closely related to the occupation the applicant nominated to be his or her skilled occupation. There is nothing in the description of “Accountant (General)” in ANZSCO that suggests that the occupation of an “Accountant (General)” consists of anything other than the provision of the services contained in the description by persons with the specified skill level. It must follow that to be closely related to the skilled occupation of an “Accountant (General)”, the occupation in which the applicant was employed could not have consisted in the provision of services, only a small proportion of which were the services an “Accountant (General)” was required to supply under the ANZSCO definition of “Accountant (General)”. Stated another way, to have been closely connected to the skilled occupation of “Accountant (General)”, the occupation in which the applicant was employed must have substantially consisted in the provision of the services that the ANZSCO prescribes “Accountant (General)” provides.
Did the Tribunal ask itself the correct question?
In my opinion, the Tribunal asked itself the correct question when determining whether the occupation in which the applicant claimed he was employed was “closely related” to the applicant’s nominated skilled occupation. As I set out above, the Tribunal concluded that it was not satisfied that, in the occupation the applicant claimed he was employed, the applicant “exercises substantially the same skills and requires the same level qualifications [sic] as would be required in his nominated occupation of Accountant (General)”.[44]
[44] CB133, [72]
Other matters
As I note earlier in these reasons, the applicant, in his written submissions, claimed the Tribunal made an error by finding that the applicant’s “primary role was that of a Retail Customer Service Manager”.[45] Standing alone, this submission does not disclose jurisdictional error. In any event, I am of the opinion that on the material that was before the Tribunal, it was open to it to conclude as it did that the occupation in which the applicant was employed was not closely related to the applicant’s nominated skilled occupation.
[45] Applicant’s written submissions, [3]
Conclusion and disposition
The Tribunal made no jurisdictional error in concluding that it was not satisfied that the applicant had been employed in a skilled occupation that was closely related to his nominated skilled occupation.
Accordingly, I propose to dismiss the application, and order that the applicant pay the Minister’s costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 April 2014
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