Chawdhury v MIAC
[2010] FMCA 275
•23 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAWDHURY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 275 |
| MIGRATION – Review of MRT decision – applicant applied for skilled visa and nominated ‘cook’ as his nominated skilled occupation – where Tribunal determined that applicant’s accounting qualification was not ‘closely related’ to occupation of cook, relying on ASCO definition rather than applicant’s actual duties – whether Tribunal considered departmental policy PAM3 in reaching this finding – whether Tribunal required to look beyond generic ASCO definition and take into account applicant’s particular duties – whether or not Tribunal must consider departmental policy – authorities noted. |
| Migration Act 1958 (Cth), ss.349, 359, 360 Migration Regulations 1994 |
| SBBR v Minister for Immigration [2002] FCA 842 Minister for Immigration v Gray (1994) 50 FCR 189 El ESS & Anor v Minister for Immigration [2004] FCA 1038 Vishnumolakala v Minister for Immigration [2006] FMCA 1209 Choo Ai Lin v Minister for Immigration (1996) 45 ALD 291 Thongsuk v Minister for Immigration [2007] FMCA 655 |
| Applicant: | MOHAMMAD SHAMIM WAHID CHAWDHURY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 148 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 April 2010 |
| Date of Last Submission: | 19 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA ATSYDNEY |
SYG 148 of 2010
| MOHAMMAD SHAMIM WAHID CHAWDHURY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application Mr Chawdhury seeks a review of a decision of the Migration Review Tribunal dated 6 January 2010 affirming a decision of the delegate not to grant him a skilled (Provisional) (Class VC) visa on 4 March 2008. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 of the Migration Regulations 1994 (the “Regulations”) because the delegate was not satisfied that Mr Chawdhury had met the two year study requirement. Under s.349 of the Migration Act 1958 (Cth) (the “Act”) the Tribunal providing a review of a delegate’s decision is entitled to “exercise all the powers and discretions” that were enjoyed by the delegate. That is, the Tribunal is expected to conduct a hearing de novo. Consistent with this, the Tribunal is permitted to seek additional information for its review (s.359) and must invite the applicant to appear, to give evidence and present arguments (s.360); see SBBR v Minister for Immigration [2002] FCA 842 at [16]. In effect, the Tribunal hears the matter afresh.
In this case, for reasons which are not in issue, the Tribunal concluded that the delegate had wrongly applied the provisions relating to the two year study requirement for the purpose of reg.1.15F and that this requirement had been met by the applicant. However, the Tribunal in the course of considering all the evidence relating to the application concluded that Mr Chawdhury had not met the provisions of cl.485.213(b) which require that his qualifications must be closely related to his nominated skilled occupation. In this case, the applicant’s qualifications were the holding of a Diploma in Accounting and a Certificate III in Hospitality (Commercial Cookery). The applicant’s nominated skilled occupation was that of cook (ASCO 4513-11). Having come to this conclusion, the Tribunal affirmed the decision under review.
On 27 January 2010 the applicant sought review of the Tribunal’s decision and proceeded on the basis of a further amended application which was, by consent, filed after the hearing. There are three grounds of the application:
“1.The second respondent committed jurisdictional error in that it failed to conduct a “review” as was required by s.348 of the Migration Act.
Particulars
In its consideration of the “closely related” requirement for the purpose of Regulation 485.213 of the Migration Regulations, the Tribunal failed to consider and take into account applicable DIAC policy as expressed in “PAM3”.
2.The second respondent committed jurisdictional error by failing to give a proper genuine and realistic consideration to the merits of the application.
Particulars
In its consideration of the closely related requirement for the purpose of Regulation 485.213 the Tribunal failed to consider and take into account applicable DIAC policy as expressed in PAM3.
3.The Tribunal erred in failing to consider the full breadth of the term “skilled occupation” in the context in which it appears in Regulation 485.213(b).”
It will be seen that grounds 1 and 2 both refer to an alleged failure to consider PAM3. It would only be necessary to consider the interesting arguments raised by Mr Karp on behalf of the applicant as to whether the Court should prefer the views expressed by the Full Bench of the Federal Court in Minister for Immigration v Gray (1994) 50 FCR 189 at [205-207] which stated that:
“The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored.”
and
“Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework the existence and content of lawful policy may properly be regarded as a relevant factor which because it is properly contemplated by the legislature must be taken into account by the Tribunal.”
and the views expressed by Gray J in El ESS & Anor v Minister for Immigration [2004] FCA 1038 (“El Ess”) who stated at [45]:
“In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.”
and the decision of Smith FM in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] where his Honour citing El Ess and Choo Ai Lin v Minister for Immigration (1996) 45 ALD 291 at [298] said:
“In my opinion, to any extent that its [PAM’s] procedural or substantive contents go beyond repeating the effect of the Migration Act and Regulations, they are incapable of being elevated into legally necessary or relevant considerations of the type identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42.”
if I can be satisfied that the Tribunal failed to take into consideration the provisions of PAM3. I will deal with that question first.
Clause 485.213(b), which the Tribunal was required to apply, is in the following form:
“(b)each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.”
The relevant part of PAM3 is Part 8 (8.1 to 8.3):
“8 STUDY & NOMINATED OCCUPATION MUST BE CLOSELY RELATED
8.1 Purpose
The intention of the ‘closely related’ criterion in 485.213(b) is to support the policy objective that skilled migrants by “job-ready” for the Australian labour market and make a positive contribution to the Australian economy and society as soon as possible.
8.2 Closely related
Even if an applicant otherwise meets the 2 year study requirement described in 485.213(a), 485.213(b) requires the completed Australian qualification/s to be ‘closely related to’ the applicant’s nominated skilled occupation.
The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
Under policy, circumstances of a qualification not being ‘closely related’ to the nominated occupation include where the qualification is not related to the nominated skilled occupation – for example, an applicant’s nominated occupation is registered nurse but they satisfied the 2 year study requirement on the basis of having completed a Bachelor of Commerce.
Another instance in which policy does not consider qualifications to be ‘closely related’ to the nominated occupation is where the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work:
Example: The applicant met the 2 year study requirement on the basis of having completed a Certificate III in Furniture Making and a Masters of Information Technology. Although basic IT skills are generally applicable to most occupations, the high level skills gained by completing a Masters course is inconsistent with the skills that would be useful on a day to day basis as an entry level tradesperson (for a nominated skilled occupation of cabinet maker, as example).
8.3 Acceptable combinations
The following are examples of acceptable combinations of study and nominated occupation:
· An applicant who nominates Pharmacist as their skilled occupation and completes a Bachelor of Pharmacy in Australia.
· An applicant who nominates Electrical Engineer as their skilled occupation and has completed a Bachelor and Masters of Engineering in Australia.
· An applicant who nominates Pasty Cook as their skilled occupation and has completed a Certificate III in Patisserie and Certificate IV in Commercial Cookery in Australia.
· An applicant who nominates Archivist as their skilled occupation and has completed a Graduate Diploma in Information Management and an Associate Diploma in Computer Science in Australia.
· An applicant who nominates Graphic Designer as their skilled occupation and has completed an Advanced Diploma of Arts in Graphic Design and a Diploma of Business.”
In its findings and reasons commencing at [35] the Tribunal notes that the applicant’s nominated skilled occupation was that of a cook. There was clearly no dispute that the applicant’s qualification obtained in the Certificate III hospitality course was closely related. The question was whether or not the Diploma of Accounting qualification was closely related. The Tribunal set out at [38] [CB 376] the course description for the Diploma of Accounting:
“Description
The Diploma covers areas such as costing, payroll, accounts payable, accounts receivable, taxations, spreadsheet, database and word processing software.
The Diploma of Business Accounting is designed to:
· Prepare students for employment.
· Provide students with general Accounting skills so that they may function effectively in an environment, which needs a support role where knowledge of Management is necessary.
· Provide students with a bridging course into the Advance Diploma of Business Accounting.
Career Opportunities
A graduate of the Diploma of Business Accounting training program could work in the following positions throughout an organisation:
· Junior Accountants
· Junior Auditors
· Bookkeeper.”
And then at [39] the ASCO 4513-11 definition of cook:
“Cook – prepares, seasons and cooks food in catering and dining establishments
· Examines food to ensure quality
· Regulates temperatures of ovens, grills and other cooking equipment
· Prepares and cooks food
· Seasons food during cooking
· Portions food, places it in dishes, adds gravies or sauces, and garnishes
· Stores food in temperature controlled facilities
· May plan menus and estimate food requirements
· May prepare food to meet special dietary requirements
· May train other kitchen staff and apprentices”
The Tribunal noted that in his submissions the applicant had compared the course units in the Diploma of Accounting, which he had completed, with those in a Diploma of Hospitality Management. The applicant had told the Tribunal that more than 75 percent of the subjects that were offered in the Diploma of Accounting were the same or similar to the subjects offered by the Diploma of Hospitality Management.
“The Tribunal considers the applicant’s approach in comparing the two courses to be misguided. The issue before the Tribunal is not whether the course undertaken by the applicant, the Diploma of Accounting, is similar to another course, such as a Diploma of Hospitality Management, which, he argues, would be closely related to the nominated occupation. The issue is whether the course that was undertaken by the applicant, the Diploma of Accounting, is closely related to the applicant’s nominated occupation of a cook. The comparison must occur between the qualification obtained by the applicant and his nominated skilled occupation, not between the applicant’s qualification and another qualification which the applicant believes to be closely related to the nominated skilled occupation.” [37] [CB 375]
As a back up to the applicant’s principal argument, he also suggested that the Diploma of Accounting provided basic generic skills that were readily applicable in any workplace and thus would have the quality of being closely related to the nominated occupation of a cook. Finally, the applicant argued that his qualifications in accounting and as a cook had assisted him in his current employment in which he had graduated to the position of chef where he was able, through that knowledge, to prepare inventory orders and maintenance, prepare budgets in relation to stock flows, calculate the cost of meals and comply with OH&S issues.
“The Tribunal notes, however, that the applicant had nominated the occupation of cook and not that of chef and the Tribunal must consider the relevance of the Diploma of Accountancy to the nominated occupation of cook and not to any other occupation.” [41] [376]
At [43] [CB 377] the Tribunal notes:
“The Court found in Thongsuk v MIAC [2007] FMCA 655 that a broad range of considerations must be taken into account and that it is necessary to assess both the nature of the qualifications acquired and the demands of the nominated occupation. Notably, this case was concerned with the earlier version of the requirement that the qualifications be ‘relevant’ to the nominated skilled occupation, and not ‘closely related’. However, the Tribunal is of the view that the demands of the nominated occupation are reflected in the tasks set out in ASCO and that such tasks relate, primarily, to the handling of food, menu planning and working with kitchen staff. The Tribunal does not accept that many of the matters which the applicant claims he will perform as a cook, including calculating the profits, meal costs and financial management, form part of the tasks and responsibilities of that occupation.”
The Tribunal had before it PAM3 because at [30] [CB 374] it notes that the delegate relied on the Departmental policy when interpreting the two year study requirement. The Tribunal took that policy into account before concluding:
“The Departmental policy requiring an applicant to have completed a course of 92 week duration is not consistent with the legislation and, in such circumstances, considers it appropriate to depart from it.” [32] [CB 375]
This statement gives very strong support to the inference that the Tribunal considered Part 8 of PAM3 when coming to its conclusions about the relationship of the applicant’s course to his nominated skilled occupation. But it is in the Tribunal’s questioning of the applicant set out in the claims and evidence commencing at [21] [CB 372] and the Tribunal’s insistence that the applicant should explain how the course was relevant to his work as a cook that suggests to me that the Tribunal was aware that it had to consider whether “the skill sets underpinning the qualifications can be used in a nominated occupation in terms of both the subject matter and the level at which those skills were obtained.” When the applicant comments that the skills obtained in the accountancy qualification assisted him to obtain the promotion and work as a chef with additional responsibilities, the Tribunal’s response would seem to me to echo the phraseology in PAM3:
“Another instance in which policy does not consider qualifications to be “closely related” to the nominated occupation is where the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work.”
The Tribunal noted at [24] [CB 373] that there was nothing in the skills performed by a cook as set out in ASCO about budgeting and forecasting which the applicant learned in the accounting course and which he considered assisted him to carry out his occupation.
This is not a case where the applicant can argue that PAM3 was not properly applied to him. He concedes that this would not constitute jurisdictional error. It is a much harder task to satisfy a Court that PAM3 was not considered and I am unable to reach that state of satisfaction on a full and proper reading of the Tribunal’s decision record. The Tribunal makes reference to the decision of this Court in Thongsuk v Minister for Immigration [2007] FMCA 655. The Court can infer from that reference that the Tribunal read the decision which makes specific reference to PAM3 in its then form. In that case the applicant sought a visa in the nominated category of a pastry cook and claimed that an MBA was a relevant qualification. His Honour found that the Tribunal had not fallen into jurisdictional error when it rejected that submission stating:
“In my opinion it would be unfortunate and unnecessary for the Court to adopt a particular description of the required proximity or connection between the educational achievement and the occupation. It is enough that I accept that the Minister is intended to evaluate the relationships of the educational studies and achievement to the nominated occupation and to be positively satisfied that the Australian educational achievement is occupationally relevant to the particular demands of the nominated, skilled occupation as indicated in its ASCO definition.”
Given the Tribunal’s reliance on this decision, the Court cannot come to a conclusion that it is satisfied that the Tribunal did not take PAM3 into consideration.
As I am not satisfied that the Tribunal failed to take PAM3 into account, it is not necessary to consider the effect of such failure. Any views expressed by me would be obiter and could not be compared in erudition nor authority with those of the Federal Magistrate and the Judges in the cases cited.
The second ground of application is articulated by the applicant in his counsel’s helpful written submissions as follows:
“17.There is another error, and that leads from the fact that the Tribunal was unwilling to look outside the ASCO definition of the occupation of cook, and its unwillingness to consider the individual applicant’s duties as a cook in deciding whether his accountancy qualification was “closely related” to his nominated skilled occupation.
18. In my submission the reference to, “the applicant’s nominated skilled occupation,” in Cl.485.213(b) looks at the applicant’s individual occupation – it is not restricted to a generic definition. Indeed there is nothing in the Migration Act or Regulations that requires the delegate or the Tribunal to be restricted to consideration of the ASCO definition when considering the duties of a skilled occupation. Work places are not so inflexible so as to conform strictly to ASCO definitions and as the applicant’s evidence demonstrates, a cook may have functions and duties consistent with or complimentary to preparing food for consumption, but which do not themselves involve the preparation of food.”
The Court accepts that there is nothing in the legislation that restricts the Tribunal’s consideration to the ASCO definition when considering the duties of the skilled occupation. The Tribunal must have some leeway, if only because the nature of occupations is constantly changing, particularly those that are IT related. But what the applicant was trying to do in this case was to persuade that Tribunal that the qualification that he had obtained was relevant to his position as a chef. It was he who had nominated that position as being the one he currently held. This was not the skilled occupation that he had nominated in his visa application. It is not difficult to see that any chef who has sole control over a kitchen and is responsible for ordering food, costing menus and supervision of staff would be assisted by the accounting qualification. But the applicant himself accepted that this is not the job he started with and that it was a promotion. If the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of a visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant’s definition based upon his own employment conditions. I am unable to see that the Tribunal fell into jurisdictional error by relying on the ASCO definition and considering the relationship of the applicant’s qualifications to that definition rather than to the position the applicant claimed that he had.
The application must be dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $5,800.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 April 2010
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