Chen v Minister for Immigration and Multicultural Affairs
[2000] FCA 983
•28 JULY 2000
FEDERAL COURT OF AUSTRALIA
Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 983
MIGRATION - review of decision of Immigration Review Tribunal affirming decision of a delegate of the respondent to refuse to grant the first applicant a Skilled - Australian Linked (Migrant) (Class AJ) Sub - class 105 visa - whether the Immigration Review Tribunal erred in law when assessing the first applicant’s visa application under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) - whether the first applicant satisfies requirements of sub - clause 6104(d) of the Migration Regulations 1994 (Cth) - whether the first applicant’s “usual occupation” is an occupation in respect of which the first applicant has qualifications and/or experience required for the purpose of holding any Australian occupational licence or registration
Migration Act 1958 (Cth) ss31(3), 65, 92, 93, 94, 95, 95A, 96, 350, 476(1)(e)
Migration Regulations 1994 (Cth) Sch 2 cl 105.222, Sch 6 Item 6104
MR LIXIN CHEN and MR MIN FENG CHEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 282 of 1999
MARSHALL J
MELBOURNE
28 JULY 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 282 of 1999
BETWEEN:
MR LIXIN CHEN
FIRST APPLICANTMR MIN FENG CHEN
SECOND APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
28 JULY 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the respondent’s costs, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 282 of 1999
BETWEEN:
MR LIXIN CHEN
FIRST APPLICANTMR MIN FENG CHEN
SECOND APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MARSHALL J
DATE:
28 JULY 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Immigration Review Tribunal (“the IRT”) made on 4 May 1999 affirming the decision of a delegate of the respondent to refuse to grant the first applicant what is now referred to as a Skilled-Australian Linked (Migrant) (Class AJ) Sub-class 105 visa (“the Class AJ visa”).
Factual Background
The first applicant applied for the Class AJ visa on 13 June 1995. The application was refused on 4 October 1995. On 4 March 1996 the primary decision was affirmed by the Migration Internal Review Office. On 2 September 1997 the IRT affirmed the decision to refuse the Class AJ visa. That IRT decision was set aside by consent in this Court by North J on 7 July 1998. On 4 May 1999 a differently constituted IRT affirmed the decision to refuse the Class AJ visa. On 31 May 1999 the applicants applied to the Court to review the IRT decision of 4 May 1999.
The first applicant is a citizen of the Peoples’ Republic of China. He was born on 25 August 1966 and is married with one child. His brother, the second applicant, was at the time that the original application was made to the respondent, a permanent resident of Australia. He has subsequently become an Australian citizen. The first applicant’s child was born after the original application was made for the Class AJ visa.
The second applicant sponsored the application of the first applicant and the first applicant’s spouse to migrate to Australia.
In its reasons for decision, the IRT noted as follows:
· the first applicant was 28 years old and his wife 29 years old when the application for the Class AJ visa was made in 1995;
· the first applicant stated in his application for the Class AJ visa that he had completed 11 years of primary and secondary education in China and five years at the Hubei Economic Administration University where he obtained a Diploma in 1991;
· the first applicant also stated that his usual occupation was that of a “customs broker – supervisor (business director)”.
The Legislative Framework
Section 31(3) of the Act provides that the Migration Regulations 1994 (Cth) (“the Regulations”) may prescribe criteria for a visa or visas of a specified class. Section 65 of the Act provides that, if after considering a valid application for a visa, the respondent is satisfied that certain criteria have been met, the respondent must grant the visa.
Among the criteria prescribed for the Class AJ visa is the criterion in Sch 2 cl 105.222 of the Regulations which requires that at the time of the decision to grant or refuse to grant the Class AJ visa, “(t)he applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act”. That subdivision is headed “The “points” system”. Section 92 of the Act provides that:
“This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.”
Section 93 of the Act provides that:
“(1)The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2)In this section: prescribed means prescribed by regulations in force at the time the assessment is made.”
Section 94 of the Act provides that:
“(1)An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2)An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3)If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a)the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b)if the Minister puts the application aside – the Minister is taken to have put the application into a pool.
(4)Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.”
Section 95 of the Act provides that:
“(1)“When section applies This section applies if the Minister puts an application into a pool.
(2)How applications to be dealt with If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:
(a)the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and
(b)if that score is more than or equal to the applicable pass mark – the applicant is taken to have received the qualifying score; and
(c)if that score is less than the applicable pool mark – the applicant is taken not to have received the qualifying score; and
(d)if that score is more than or equal to the applicable pool mark but less than the applicable pass mark – the application remains in the pool until it is removed from the pool (see subsection (3)).
(3)Removal of applications from pool An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
(a)the end of 12 months after the assessment of the applicant’s assessed score;
(b)the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
(c)the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
(4)Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.
(5)Section to be subject to section 95A This section has effect subject to section 95A.”
Section 95A of the Act provides that:
“(1) This section applies to an application that:
(a)is in the pool at the commencement of this section; or
(b)is put in the pool after that commencement.
(2)Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years.”
Section 96 of the Act provides that:
“(1)The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.
(2)The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
(3)A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4)The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
(5)This Act does not prevent a pool mark and a pass mark from being equal.
(6)This Act does not prevent a pool mark and a pass mark from being varied independently of each other.”
Section 350 of the Act provides for the review of assessments made by the respondent pursuant to the points test. Any review is conducted by the IRT. There is no issue in this proceeding regarding the IRT’s application of s350 of the Act. The points test applied by the IRT was the test which applied at the time of the assessment by the respondent’s delegate i.e. at 4 October 1995.
During the course of its reasons for decision, the IRT said (at p8):
“To achieve a points score the Visa Applicant is allocated a certain number of points in relation to the particular “qualifications” set out in clause 2.26 of the Regulations.
If the Visa Applicant is able to achieve the qualifying points score then the matter will proceed to further processing. In making the points assessment the Tribunal is able to consider the Regulations in force at the date of the primary assessment or at the date of the Tribunal’s assessment whichever is the more advantageous to the Visa Applicant (see section 350 of the Act).
Schedule 6 of the Regulations sets out the qualifications and maximum points that may be allocated for each qualification with respect to an application for a Subclass 105 (Concessional Family) visa. The relevant qualifications at the time of the primary assessment were:
Employment,
Age,
Relationship,
Citizenship,
Settlement of sponsor, and
Location of sponsor.The Act and Regulations do not permit a decision maker to consider other factors such as compassionate or humanitarian grounds, a job offer in Australia, the family’s situation in Australia and other extraneous considerations when determining a Subclass 105 visa application. As regards the relevant qualifications little exercise of discretion is required in order to assess a person’s point score except for the “Employment qualification”.
The points that can be allocated for the “Employment qualification”, are contained in Part 1 of Schedule 6. Basically Part 1 of Schedule 6 of the Regulations comprises a number of paragraphs ranking occupations according to the minimum Australian standards or requirements for entry to the occupation.
Firstly however, a Visa Applicant’s “usual occupation” must be ascertained. “usual occupation” is defined in regulation 2.26(5) as:
… an occupation that the Applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.
Once a person’s usual occupation has been determined, the Australian requirements for that occupation are ascertained. The Australian Standard Classification of Occupations (ASCO), which is published by the Australian Bureau of Statistics is generally referred to in order to ascertain the Australian Standards or requirements for an applicant’s “usual occupation”. Qualifications obtained overseas are variously assessed by the National Office of Overseas Skills Recognition (NOOSR); or another body authorised by NOOSR to carry out such assessments, the Commonwealth Department of Industrial Relations or equivalent Departments in the States. If the circumstances preclude the above bodies from making an assessment, the Minister may then make an assessment. The Visa Applicant's qualifications and/or experience can then be measured against the above referred to standards in Part 1 of Schedule 6 and the appropriate allocation of points determined.”
Sub - clauses 6104(c) and (d) of Sch 6 of the Regulations provide, so far as is material, that:
“The applicant’s usual occupation:
…
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and … .”
The Reasoning of the IRT
The IRT found that the first applicant’s usual occupation was the occupation of a “customs broker – supervisor” and that that was an occupation which in Australia required a formal qualification of at least Diploma level. The IRT also found that the first applicant’s qualifications and experience in China met the Australian standards for his usual occupation but that sub - clause 6104(d) of Sch 6 of the Regulations was not satisfied by the first applicant. This was because the IRT found that sub - clause 6104(d) was not capable of being satisfied by the first applicant unless he undertook further study in Australia to satisfy local licensing or registration requirements for his usual occupation.
The latter finding was made in reliance upon a letter to the second applicant from the Customs Brokers Council of Australia dated 9 July 1997 which stated, inter alia, that:
“… because of the nature of the Australian context in which the technical expertise has to be applied it would be necessary for Lixin to enrol in the customs Diploma Course in Victoria to gain cross-credits and Recognition of Prior Learning for those subjects which have been completed at a higher level should Lixin wish to practice in Australia.
Although Lixin’s actual skills may be of a higher order, to be able to put the working experience into the Australian context and due to the lack of knowledge and application of specific Australian legislation, a need would exist to complete the technical subjects nominated by the Kangan Institute, Victoria prior to attempting the National Examination (conducted by the CBCA) and applying for a customs brokers licence.
It may be possible for Lixin to find employment in the industry at a level that equates the Customs Service Agent award level whilst studying subjects such as language skills. The knowledge of importing requirements and business practices learned in China should be of benefit to Lixin in gaining employment.”
The IRT also relied upon the evidence of a Mr Mack, an expert who gave evidence in support of the first applicant before the IRT. The effect of that evidence was that the first applicant required further study in Australia:
“… to contextualise his knowledge and skills to the Australian environment or to improve his English skills.”
The IRT additionally referred to the evidence of Mr Mack that the “local familiarisation” required may take about one semester to complete.
On this issue, the IRT stated that it appeared to it that:
“… both the council and Mr Mack are indicating that the Visa Applicant would not be entitled to a license as a “customs broker” in Australia without more, for example, further study of at least “one semester”. Therefore it appears on balance that the Visa Applicant is unable to satisfy subclause 6104(d) of the Regulations without further study in Australia for his “usual occupation” to satisfy the Australian licensing or registration requirements for that occupation.”
The IRT concluded this aspect of the matter before it by saying as follows:
“In the circumstances the Tribunal allocates the Visa Applicant 30 points for this qualification pursuant to paragraph 6106 of Part 1 of Schedule 6 of the Regulations at the time of the earlier assessment and at the time of this assessment.”
The Competing Contentions
It was submitted on behalf of the applicants that the IRT’s decision involved errors of law of the kind referred to in s476(1)(e) of the Act. The error was said to arise from the IRT’s failure to properly construe the terms of sub - clause 6104(d). It was contended that sub – clause 6104(d) was read too narrowly and as if the words “grant of” were substituted for the words “purpose of holding”.
In his written contentions, counsel for the applicants noted as follows:
“Had the regulation maker wanted to provide that entitlement to hold an Australian licence or registration was the relevant criterion the sub-clause could easily have so provided. The applicant contends that the reference to the requirement that the visa applicant have the qualification or skill “required for the purpose of holding” does not exclude a visa applicant who may have to undertake further study in the nature of “familiarisation” to actually “hold” the Australian occupational licence or registration.”
It followed, according to that submission, that the IRT erred in concluding that the criterion in sub - clause 6104(d) was not satisfied because the visa applicant could not be licensed, or registered, “without more”.
Counsel for the respondent, Ms Kennedy, disputed the construction of sub - clause 6104(d) favoured by the applicants. She noted that sub – clause 6104(c) requires an assessment of whether certain qualifications or work experience are “equivalent” to Australian standards whereas sub – clause 6104(d) states that an applicant must have qualifications or experience “required” for the purpose of licensing or registration. Given that further study was required by the first applicant before undertaking his usual occupation in this country, the IRT was entitled to not be satisfied that he had the necessary qualifications required for licensing or registration even if it was satisfied that his qualifications were generally “equivalent” to Australian standards for the relevant occupation.
Consideration
Sub - clause 6104(d) contains a requirement that an applicant for a visa has:
(a)qualifications which are those required for the purpose of holding an Australian licence; or
(b)qualifications which are those required for the purpose of obtaining any Australian registration; or
(c)experience of a kind required for the purpose of holding such licence or obtaining such registration; or
(d)qualifications and experience of a kind required for the purpose of holding such licence or obtaining such registration.
In my view, this means that the necessary qualifications or experience or both required for licensing and/or registration in Australia must be possessed by an applicant to satisfy sub - clause 6104(d). The language of sub - clause 6014(d) indicates that a test is being provided which is immediate and current. I refer in particular to the words “has” and “required”. It will be a question of fact for the IRT to determine in each case whether an applicant possesses such qualifications and/or experience. In this matter, the IRT had evidence before it upon which it formed the view that the first applicant did not possess such qualifications and/or experience which were necessary for licensing or registration in Australia and that further study would be required by the first applicant.
The IRT was entitled to rely on that evidence to reach the conclusion it arrived at. In so doing it committed no error of law. In my view, the application should therefore be dismissed with costs.
I certify that the preceding twenty - eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 28 July 2000
Counsel for the Applicants: Mr T Hurley Solicitor for the Applicants: Erskine Rodan & Associates Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 July 2000 Date of Judgment: 28 July 2000
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