Brennan, P.m. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 651

Re: PAUL MICHAEL BRENNAN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G249 of 1991
FED No. 651
Migration
(1992) 28 ALD 514 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Migration - judicial review - extended eligibility (economic) entry permit - employer nomination visa - reg 51(1) Migration Regulations - whether criteria satisfied - "highly skilled occupation" - decision-maker's reasoning.

Words and Phrases - "highly skilled occupation".

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958: s.37

Migration Regulations: Reg 34A(1), 40(2)(c), 51, 128(1)(a)(iv)(A)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

HEARING

MELBOURNE

#DATE 7:9:1992

Counsel for the applicant: Mr T.V. Hurley

Solicitors for the applicant: Richmond and Bennison

Counsel for the respondent: Mr R. Downing

Solicitor for the respondent: Australian Government Solicitor

ORDER

IT IS ORDERED THAT:

1. The application be dismissed with costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

The applicant is a citizen of the United Kingdom, having been born in that country on 29 August 1962. He seeks review under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) of a decision that he was not entitled to make an application for an extended eligibility (economic) entry permit because he did not satisfy the criteria for an employer nomination visa under reg 51(1) of the Migration Regulations (the Regulations): see Migration Act 1958 (the Act) s.37 and regs 40(2)(c) and 128(1)(a)(iv)(A) of the Regulations.

1. The applicant obtained in the United Kingdom trade qualifications as a motor mechanic, described in his application as "RTITV Cert of Competence National Crafts Certificate, TEC Motor Vehicle Engineering". Between 1978 and 1982 he was an apprentice motor mechanic. Between August 1982 and the end of 1985 he held various jobs in England as a salesman, shop manager, driver and builder's labourer.

2. He first entered Australia on 27 March 1987 on a working holiday with a temporary entry permit valid for twelve months. He departed on 9 March 1988. During that period he worked as a barman, salesman, a "site liaison officer/office worker" for Coles Myer Information Services and as a bank officer for the National Australia Bank.

3. The applicant re-entered Australia on 16 March 1988 with a temporary entry permit which was subsequently extended to 31 December 1989. His temporary residence during this period was on the basis of sponsorship from the Doncaster Rovers Soccer Club. In September 1989 he sought a Grant of Resident Status based on claims relating to his sporting talents. That application was refused on 9 May 1990. On 21 May 1990 he sought to lodge an application for an extended eligibility (economic) entry permit. The decision that he was not entitled to make that application is the subject of the present proceedings. On 1 January 1990 he had become an illegal entrant by virtue of s.14(3) of the Act.

4. After his second entry to Australia he returned to work for a while with the National Australia Bank. On 9 May 1988 he commenced employment with Coles Myer Information Services, with whom he has been employed up to the present time. Until 1 August 1988 his position was that of a trainee service operator. From 1 August 1988 to 30 June 1989 he was a service operator and from 3 July 1989 a network operator. From 1 August 1990 his position was that of network engineer.

5. His application for an entry permit was supported by an employer nomination form lodged by Coles Myer Ltd. In that form, under the heading "Details of employment offered", the following information was given:
   

"6. Occupation or Job Title - Network Engineer

7. Job Description - Primarily to monitor our Australia wide network. To provide effective and efficient availability of all network services.

8. Qualifications and essential skills required - Technical knowledge of data and voice network faults. Sound knowledge of relevant hardware and software tools."

1. The form included a reference to the Trade Certificate mentioned above and also stated "Relevant work experience - on the job and relevant technical training courses".

2. The information provided to the decision-maker did not indicate that the applicant had had any previous experience in the computer field prior to joining Coles Myer.

3. In support of the application the Coles Myer Personnel Manager, Administration wrote a letter dated 16 May 1990 which included the following:
   

"Paul Brennan has been in the employ of Coles Myer Ltd. since May, 1988 at which time he commenced as a Trainee Service Operator. In August, 1988 he was promoted to the position of Service Operator.

In July, 1989 Paul was successful in his application for a position within the Communication Services Group. This group currently supports one of the largest and most complex networks within Australia and is vital in supporting the retail operations of the Coles Myer organisation. Coles Myer promotes on merit and Paul's performance earned him this promotion.

Coles Myer recognises that Communications is an industry of growth and the technicians involved in the support of this area form a highly skilled team. Paul's performance in his role over the past ten months has been in line with our expectations. His knowledge of our organisation and its customised products qualifies him as somewhat of a specialist in his field.

In order to achieve excellence, responsiveness and service to our customers, a restructure of the Communications Services Group will take place effective August 1st, 1990. This new structure will see Paul take up a more senior position as a Network Engineer in the production environment. Coles Myer places heavy emphasis on technical and personal development training and over Paul's period of employment he has attended a number of specialist courses which have developed his skills to a point whereby he is able to work in the skilled area that he does.

Previous recruitment activities in the Communications field have been difficult. Advertising has met with a slow response with heavy competition from other employers of such professionals. The shortage of skilled Information Services staff within Australia, specifically Communications professionals, is much publicised and it has been necessary in the past for our organisation to source candidates from overseas. We understand the Computing Professionals industry to be on the Department of Immigration's "Priority Occupation List".

Coles Myer has identified the Communications field as a diverse arena where highly specialised technicians are required to manage a network that allows flexibility, connectivity, reliability and growth. Our organisation has invested much time and money in developing Paul to a point that he is a productive and competent member of such a field. If past performance is any indicator of future performance, and we believe it is, Paul's future within Coles Myer seems bright. His skills would be a loss to Coles Myer and the Communications field in general, should he not be able to continue his employment. Our organisation has not completed the Employer Nomination Scheme (M785) as we do not see this as appropriate under the circumstances, as Paul is already in Australia and not overseas. We would be happy to provide any further information or clarification you may require in assessment of Paul's application for residency."

1. I infer that the foreshadowed promotion of the applicant to network engineer on 1 August 1990 in fact took place. A number of referees supported the applicant. They included Mr Fred Gillette of Newbridge Networks Corporation, a Canadian company which has done work at Coles Myer. In a letter to the Department dated 8 July 1991 Mr Gillette spoke highly of the applicant's capacity and said that he considered him to be "the equivalent of a Technologist with 2 to 3 years experience" notwithstanding that "he has little formal training". Mr Peter Mason of Datacraft Computer Protocol Pty Ltd was involved in training Coles Myer personnel and he conducted a number of courses which the applicant attended. In a statement dated 13 August 1991 Mr Mason said that:
   

"Mr Brennan works in a highly skilled occupation and his qualifications and experience are suitable for that occupation. By reason of his on the job formal training for at least the last 3 years he has gained the necessary experience to carry out that occupation in an extremely competent manner.

It is my understanding that he has a more than appropriate record of employment in his occupation and I am aware that he is considered by Coles Myer Ltd to be a specialist in his field."

1. Mr Robert Weaver, the Coles Myer General Manager, Communications and Distributor Systems, said of the applicant that:
   

"... through his in depth knowledge of the Coles Myer Ltd organisation and his personal development over the last three years, (he) has become a vital and important member of a highly skilled team and thus qualifies him as a specialist in this field."

The statement was not dated but I infer that it was made about July or August 1991.

The Regulations

1. At all material times reg 51 provides as follows:
   

"Employer Nomination Visa:-

51(1) The additional criteria in relation to an employer nomination visa are the following criteria:

(a) the applicant is nominated, in accordance with the approved form, by an employer operating in Australia, for a specified position, or a position in a group of specified positions, sought to be filled by that employer, being:

(i) a position that is to be filled on a permanent, full-time basis; and

(ii) a position in respect of a highly skilled occupation;

(b) the qualifications and experience of the applicant are suitable for the position;

(c) the employer satisfies the Minister that the employer has an acceptable record in the training of employees and is committed to the further training of local employees;

(d) the employer satisfies the Minister that it has not been possible to find a suitable applicant for the position in Australia;

(e) unless exceptional circumstances apply, the applicant has not turned 55 at the time of the application.

(2) In this regulation:

"highly skilled occupation" means an occupation requiring:

(a) formal training, or equivalent experience, relating to that occupation, for a period of not less than 3 years; and

(b) an appropriate record of employment in that occupation."

1. Also reg 34A(1) provided:
   

"Unless these Regulations otherwise provide, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or entry permits (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time."

The Section 13 Statement

1. The decision having been made on 12 September 1991, solicitors on behalf of the applicant sought a statement under s.13 of the AD(JR) Act. That statement was provided on 2 March 1992 by Ms Sharon Martenstyn of the Box Hill office of the Department. In the statement the decision-maker accepted that the applicant was nominated, in accordance with the approved form, by an employer operating in Australia for a specified position sought to be filled by that employer which was a position to be filled on a permanent, full time basis. However the decision-maker decided that the position was not "in respect of a 'highly skilled occupation'".

2. The decision-maker considered that reg 34A(1) required the criteria to be satisfied as at the date of the application (21 May 1990) by which time the applicant had only had two years experience. I interpolate the comment that this was taking a generous view since in relation to the position sought to be filled, that is "network engineer", the applicant's experience did not commence until 1 August 1990. The decision-maker then said:
   

"I accepted the claims put by and on behalf of the applicant that his qualifications and experience were suitable for the position. By inference, then, I concluded that the occupation did not require 'formal training, or equivalent experience, relating to that occupation, for a period of not less than 3 years' (as required by para (a) of the definition)."

Dates as at which Criteria are to be Considered

1. Before me the applicant's counsel attacked the decision-maker's application of reg 34A(1). In my view the decision-maker was correct. Regulation 51 does not "otherwise provide" as does, by contrast for example, reg 127.
   "Highly Skilled Occupation"

2. The critical step in the decision-maker's reasoning involved the drawing of an inference from undisputed facts. Therefore in determining whether the decision-maker erred in law it is necessary to apply the principle stated by Mason C.J. in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356:
   

"But it is said that '(t)here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. Similarly, Menzies J observed in Reg. v District Court; Ex parte White (1966) 116 CLR 644 at 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.' Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (His Honour's emphasis.)

1. After referring to a perhaps more interventionist approach revealed in the English authorities, his Honour goes on to say (at 357):
   

"The foregoing brief summary of the authorities relating to review for error of law is by no means decisive of the interpretation of the grounds of review in the AD(JR) Act. It does, however, provide part of the context by reference to which one must determine the scope of the relevant grounds of review contained in that Act. Moreover, the content of the 'error of law' ground of review in s.5(1)(f) is necessarily influenced by the scope and purpose of the AD(JR) Act as an element in the statutory scheme of review constituted by that Act and the AAT Act. Two elements of that scheme are significant for present purposes. The first is that the AAT Act alone provides for review on the merits; the second is that the two Acts draw a sharp distinction between errors of fact and errors of law. These two elements provide strong support for the view that, in general, the concept of 'error of law' in s.5(1)(f) is intended to reflect the content of that expression as it was understood at common law in this country before 1977. Of course, unlike the antecedent common law, s.5(1)(f) does not require that the error of law appear on the face of the record."

1. Thus the decision-maker's reasoning might survive judicial review even if it contained some faulty logic. But in the present case I do not find any such defect.

2. The decision-maker correctly posed the question whether the relevant position (network engineer) was "in respect of a 'highly skilled occupation'". The phrase "in respect of" perhaps fits a little awkwardly into this context, but I think the meaning emerges clearly enough. The position is one to be filled by a person who engages in, or has the qualifications for, a "highly skilled occupation", as that term is defined in reg 51(2). The "position" is, in ordinary parlance, the job. The "occupation" is the trade, profession or calling of the person who fills it. There was nothing in the material supplied by or on behalf of the applicant to the decision-maker which suggested that, as at 21 May 1990, he had had formal training relating to the computer field, or equivalent experience, for a period of not less than three years.

3. Accordingly, the position of network engineer at Coles Myer was not one "in respect of a highly skilled occupation" because it was able to be filled, quite satisfactorily it would seem, by the applicant who has never been engaged in, or qualified for, a "highly skilled occupation" as defined.

4. At first blush it might seem a harsh result that the applicant, a worker highly regarded and needed by his employer, should have his application rejected. But reg 51 considered as a whole is plainly concerned with highly skilled jobs which cannot be filled by Australian residents and for which an employer seeks to bring a nominated person with the relevant skills to Australia. The applicant's history however shows that at the time of his second entry to Australia (16 March 1988) he had no relevant qualifications or expertise at all. Such training and experience as he subsequently received was in Australia and was with the employer itself.

5. Some reference was made in argument to the policy guidelines laid down in a Procedures Advice Manual. I do not find it necessary to consider this issue. In my opinion, reg 51 imposed legal criteria which the decision-maker correctly determined were not met by the applicant in at least one respect.

6. The application will be dismissed with costs, including reserved costs.