Choo Ai Lin v Minister for Immigration & Ethnic Affairs

[1996] FCA 188

CATCHWORDS
IMMIGRATION - application to review decision of the Immigration Review Tribunal ("IRT") refusing an application for a class 105 (concessional family) visa - points system - whether respondent applied departmental guidelines without considering merits of the case -  AIM guidelines - effect -whether guidelines are mandatory - whether failure to take relevant consideration into account - whether consideration of relevant matter implicit - meaning and effect of a tabular grid for use in assessing work experience.

ADMINISTRATIVE LAW - application to review decision of the Immigration Review Tribunal ("IRT") refusing an application for a class 105 (concessional family) visa - whether respondent applied departmental guidelines without considering the merits of the case - whether failure to take relevant consideration into account.

Migration Act 1958 (Cth) ss 23, 29, 30, 31, 32

Migration (1993) Regulations (Cth) reg 2.4, Part 1 of Schedule 7, item 7102

Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217, considered

Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Burchett J, Federal Court, 25 November 1993, cited

Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, considered

CHOO AI LIN v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No WAG 80 of 1995

Tamberlin J
Sydney (Heard in Perth)
22 March 1996

IN THE FEDERAL COURT OF AUSTRALIA )                 
WESTERN AUSTRALIA                )
DISTRICT REGISTRY                )    No. WAG 80 of 1995          
GENERAL DIVISION                 )

BETWEEN:          CHOO AI LIN
  Applicant

AND:              MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Respondent

CORAM:            TAMBERLIN J
PLACE of HEARING:  PERTH
JUDGMENT DELIVERED: SYDNEY
DATED:            22 MARCH 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The application be allowed.

2.The decision of the Immigration Review Tribunal be set aside.

3.The matter to be remitted to the Immigration Review Tribunal for reconsideration in accordance with law.

4.The respondent pay the applicant's cost of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA                )
DISTRICT REGISTRY               )    No. WAG 80 of 1995
GENERAL DIVISION                 )

BETWEEN:          CHOO AI LIN
  Applicant

AND:              MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Respondent

CORAM:            TAMBERLIN J
PLACE of HEARING:  PERTH
JUDGMENT DELIVERED: SYDNEY
DATED:            22 MARCH 1996

REASONS FOR JUDGMENT

This application is to review a decision of the Immigration Review Tribunal ("IRT") which affirmed a decision of the Migration Internal Review Office ("MIRO") refusing an application for a Class 105 (Concessional Family) Visa for permanent entry into Australia.

On 5 August 1994, in Singapore, the applicant sought a Concessional Family Visa for permanent entry. The application was assessed by a delegate of the respondent, who refused to grant the visa to the applicant. That decision was made on 15 September 1994.
Application for review was lodged on 17 November 1994 to MIRO. The decision of MIRO affirming the primary decision was made on 19 January 1995.

Grounds for Review

The grounds relied on are:

"(a)the respondent applied a guideline when assessing the Australian Occupational Standards for a sales and marketing manager that specified qualifications in excess of those required to meet the relevant Australian Occupational Standards;

(b)the respondent, ... when applying the guidelines, failed to take into account evidence of the applicant's "substantial impact" on her employer's operation". (Emphasis added)

These grounds are said to constitute errors of law.

Background

In a decision dated 15 September 1994, the Review Officer rejected the application and found that the applicant's experience as a Sales Marketing Manager was not sufficient to meet qualification assessment guidelines based on the requirements of the Australian Institute of Management.

In completing the original application, the applicant stated that her usual occupation was that of a Sales and Marketing Manager. She began employment with Tropical Fish Aquarists
(Pte) Ltd ("Tropical Fish"), in Singapore in 1975 as a clerk, and advanced her career to the position of Sales and Marketing Manager by 1983. Her duties involved the control and direction of complex tasks involved in organising the sales and marketing of tropical fish, along with training and management of subordinate staff. Tropical Fish, at the relevant time, employed nine staff.

The applicant provided details of her present occupation and responsibilities.

The applicant said that her ability in sales and marketing contributed to the growth of the company whereby a turnover of $600,000 per annum, in 1976, was augmented to $3 million per annum by 1994.  The company, is said to be the fifth largest company importing and exporting tropical fish in Singapore. The applicant also states that she established new contacts for the company and was responsible for heading the company's thrust into international marketing activity. She implemented sales and marketing strategies to promote the products and services at competitive prices in overseas markets. She travelled internationally to establish such export contacts. Her work and associated travel was undertaken in the context of a highly competitive market, both within Singapore and from countries in the region such as Thailand and Indonesia. The applicant directed the establishment and maintenance of good customer relations and ensured that feedback statements from clients were monitored to confirm the quality of the products on receipt and the standard of service. She organised the exposure of the company to the public and has arranged entry by Tropical Fish into various international exhibitions and trade fairs. She also initiated and co-ordinated research, which explored likely trends, demands and viable markets for tropical fish. She says that her training and experience demonstrate her qualifications and skills as a Sales and Marketing Manager.

The Relevant Legislation

Sections 23 to 32 of the Migration Act 1958 as at the relevant time related to visas. It particular, ss29-32 provided for what is known as the "points system". Section 30 provided:

"30(1)  The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that he satisfied in relation to the applicant.

(2)In this section:

'prescribed' means prescribed by regulations in force at the time the assessment is made."

Other relevant provisions are:

"31(1)   An applicant whose assessed score [in points] 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." (Bracketed words added)

The regulations referred to are the Migration Regulations 1993 ("the Regulations").

Regulation 2.4 of the  Regulations, relevantly provides:

"2.4(1) For the purposes of subsections 30(1) and ... of the Act: ....

(a)each qualification specified in column 2 of an item in Part 1... of Schedule 7 is prescribed as a qualification in relation to an applicant for a Class 105 (concessional family) visa; and ....

(4) In part 1 of Schedule 7:

....       

'professional-equivalent occupation' means an occupation specified by Gazette Notice as a professional-equivalent occupation;

'priority occupation' means an occupation specified by Gazette Notice as a priority occupation;

'relevant Australian authority' means:

(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; ..."

"NOOSR" is the National Office of Overseas Skills Recognition.

In the present case, it is common ground that NOOSR has appointed the Australian Institute of Management ("AIM") as the authorised body to assess educational qualifications or work experience on its behalf.

"'Usual occupation' means 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..."

Part 1 of Schedule 7 to the Regulations, relevantly reads:

"Item No.      Prescribed Qualification   Number of

points

PART 1 - EMPLOYMENT QUALIFICATION

7102     The applicants usual occupation:  70

(a) is not a priority occupation; and

(b) is an occupation:

(i) for which, in Australia, a degree or trade certificate is required; or

(ii) that is a professional equivalent occupation; and

(c) is an occupation in respect of which the applicant has:

(i) a degree, trade certificate, or post- trade qualification that is assessed by the relevant Australian Authority as meeting Australian Education or training standards for that occupation; or

(ii) experience assessed by the relevant Australian Authority to be equivalent to the Australian standards for that occupation;"  (Emphasis added)"

The points system operates so that if the applicant comes within Item 7102 set out above, she is given 70 points and she would qualify for the visa after taking into account her other entitlements to points. If she does not come within that category, then she gets a lesser number and fails to qualify.

The relevant exercise, for the purpose of this review, calls for an assessment as to whether the applicant's usual occupation is an occupation for which she has experience, assessed by AIM, to be equivalent to the Australian standards for that occupation.

The Department of Immigration uses guidelines, set out in a Procedures Advice Manual ("PAM"). These guidelines, for relevant purposes, deal with the assessment of skills and qualifications of visa applicants. The relevant assessment guidelines in PAM, Update, number 132 amended to 7 April 1993, provide:

"2.7.1For a number of occupations, NOOSR and other assessing authorities authorised in writing by NOOSR have provided occupational assessment guidelines (see Attachments to this PAM Topic) to enable officers at overseas posts/DILGEA offices in Australia to assess skills and qualifications for migration purposes..."

The relevant attachment is Attachment 12 which provides:

"ATTACHMENT 12

MANAGER

Occupational Classifications

These guidelines cover professionally qualified managers in the following ASCO Minor Groups:
            ....

Specialist Manager (ASCO 13), including

....

Sales and Marketing Managers  (ASCO 1303)

.           ....

1.          Job Description

1.1.A manager is generally defined as a person who has responsibility for planning, organising, controlling and decision making, including the direction and control of supervisory and operative staff, in industry, commerce and government.

......

2.2For the purposes of assessment against Part 1 of Schedule 7 of the Migration (1993) Regulations, the professional managers covered by these guidelines are classified as a professional occupation, ie equivalent to occupations with a Bachelor degree as a formal entry requirement.

2.3The minimum requirement for this classification is eligibility for admission to membership of the Australian Institute of Management (AIM) in the grade of Associate Fellow (AFAIM) ....

4.AIM Membership Guidelines

4.1AIM membership criteria have been used as a guide in establishing guidelines for the assessment of qualifications for the purpose of migration. The AIM has several grades of membership. Managers are graded according to the level of their position/management responsibility, the size and complexity of the management task involved, and the length of their work experience in a position with management responsibility.

4.2The membership grades of the AIM are:

i) Member (AIMM)

A manager at this level would be responsible for planning, organisation, decision making, staffing and control of a business operation requiring the delegation of work to several other positions of a supervisory or technical or skilled nature.

A table detailing the type of positions, business enterprise size and structure, for which this grade of membership is relevant, is given in Attachment A.

ii) Associate Fellow (AFAIM)

A manager at this level would hold a senior management position such as chief executive, general manager or senior functional manager who delegates authority to several persons holding positions which require management skills of at least Member level, or alternatively holds a specialist position requiring management and entrepreneurial skills, the exercise of which have substantial impact on the overall operations of the organisation.

A table detailing the type of positions, business enterprise size and structure, for which this grade of membership is relevant, is given in Attachment A.

To be eligible for Associate Fellowship of the Aim the applicant must have a record of proven management achievement over a period of 5 years in a position of management responsibility as defined above. This work experience is reduced for applicants with relevant formal qualifications.

....

5.Required qualifications/experience for migration

5.1Acceptable

i) Group A

...

OR

ii) Group B

without formal qualifications or with formal qualifications which are not relevant to the field in which the manager is working;

Applicants in this group must have at least five years work experience in a management position at the Associate Fellow level as described in 4.2 above. ....

5.3Guidelines on Assessing Work Experience

.....

For all applicants, officers should refer to the Table in Attachment A when assessing whether the applicant's current position and previous work experience is at an appropriate level to be classified as a manager at the Associate Fellow level.

..." (Emphasis added)

"ATTACHMENT A

Australian Institute of Management Assessment Criteria
  Management Level Grid

In assessing whether applicants have work experience at an acceptable level, assessing officers are to use the following AIM management experience grid.

AIM Membership Grades: Member (AIMM); Associate Fellow (AFAIM); Fellow (FAIM)
Affiliate category applied for applicants who do not qualify for entry at Member (AIMM)

Sole      Owner	Very      Small     Business	Very      Small     Business	Medium     Sized    Organ.	Large       Sized     Organ.	Very    Large      Organ.
EMPLOYEES	1-9	10-20	21-200	201-600	601-1200	1200+
Chief Executive	AIMM	AIMM/     AFAIM	AFAIM/      FAIM	FAIM	FAIM	FAIM
Group/Chief General Manager	*	*	*	*	*	FAIM
General Manager Div/State/Region	*	*	AIMM/     AFAIM	AFAIM	FAIM	FAIM
Owner/Manager #	AIMM	AFAIM	FAIM	FAIM	FAIM	FAIM
Senior Functional Manager   Manager/Professional   managing other   managers/professionals   eg Senior/Chief   production or   Marketing Manager,   Chief Chemist	*	*	AIMM/     AFAIM	AFAIM	AFAIM	AFAIM
Manager/Professional in own discipline eg Production Manager, Sales Manager	*	AIMM	AIMM	AIMM	AIMM	AIMM
Supervisor/Coordinator/ Technicians/Forepersons/ Superintendents	Affil	Affil	Affil	Affil	Affil	Affil
Trade/Clerical non-supervisory	Affil	Affil	Affil	Affil	Affil	Affil

NOTES:             1)        * indicates this position may not exist in an organisation of such size.

2)# special requirements apply for AFAIM and FAIM in that the person concerned must themselves have 'initiated, established and developed a successful business, recognised in the community as a leader in its particular field'.

3)Grids in which two grades have been included with a / as a separator indicate that flexibility is required; however, the lower grade would normally apply." (Emphasis added)

The IRT requested AIM, (as authorised by NOOSR, the relevant Australian authority within Item 7102), to provide an assessment of the applicant's management qualifications. On 7 June 1995, IRT received an assessment dated 29 May 1995, from the National Secretary of AIM, which reads:

"Dear Ms Smith

Re: Madam Choo Ai Lin - Your file W9500378.

We are in receipt of the material forwarded with respect to providing an assessment of the applicant's management qualifications and advise that the applicant does not satisfy the minimum requirements for a professional manager as set out in the Manager Assessment guidelines of the Department of Immigration and Ethnic Affairs' Procedures Advice Manual. To satsfy (sic) these requirements applicants must hold a senior management position at the level of an Associate Fellow of AIM and for your information the criteria used is as follows.

A record of proven management achievement over a period of five years or more in a senior management position such as chief executive, general manager or senior functional manager who delegates authority to several other managers who hold positions requiring the delegation of work to several other positions of a supervisory, or technical, or skilled nature.

A senior management position would cover full responsibility for a function where the size and complexity of the job requires delegation of its various aspects to other managers.  Whilst Madam Choo may well be a very successful Sales & Marketing Manager an expert in a particular area would not be regarded as necessarily having a complex task in terms of management skills.  In an organisation of only nine employees, four of which are Directors, we do not believe a person would have the responsibility for the range of management functions required of a senior manager at the Associate Fellow level.

In terms of AIM membership grading we believe that Madam Choo would meet the requirements as a Member.

If you require any further advice  please do not hesitate to contact me.

Your sincerely

Barbara Kerambrun
  National Secretary"

The Appellant's Submissions

The first submission is that the respondent erred because it exercised its discretionary power in accordance with the guideline, without regard to the merits of the case and applied the wrong level of qualification by requiring qualification as an associate fellow level of AIM rather than simply at membership level.

It is common ground that the relevant Australian Standards and Guidelines are set out in PAM Update 132 referred to above and that the applicant is qualified at the member level.

The applicant says that the Minister is bound to refer to Attachment A to the PAM. This attachment is in the form of a table with columns which refer, it is said, to the requisite AIM membership grades for various positions in various sized organisations.  This table, it is said, specifies that the requisite membership level for a Sales Manager, would be that of a Member, regardless of the size of organisation for which the applicant worked. However, para 5 of the PAM, headed "Required qualification/experience for migration", requires that a migrant must have either a formal qualification at the associate fellow level, or alternatively, five years' work experience in a management position, at the associate fellow grade. The associate fellow level is a significantly more stringent requirement than member. Nowhere, it is said, in the table, which is Attachment A, is a Sales Manager required to have qualifications or experience at the higher associate fellow level.

It is then said that the IRT erred in applying the policy guideline in para 5 of the PAM, without regard to the fact that the applicant had experience equivalent to the Australian standard for the occupation of a Sales Manager as set out in the table, namely, at membership level.

Paragraph 5 of the guidelines of the PAM, it is submitted, is not consistent with the legislation because it requires a standard higher than that required by the Regulations. The Regulations require experience assessed to be equivalent to Australian standards for that occupation. See Schedule 7, Item 7102(c)(ii). Qualification at the AIM member level is said to constitute such equivalence. Therefore the guidelines, have not been correctly applied and the decision-maker has applied the wrong standard and has been misled by the policy set out in the PAM and has made its decision without regard to the requirements of the statute and the merits of the case.

Reasons on First Submission - (Only Membership Level of AIM is Required)

There is no doubt about the relevant general principle which has been expressed as follows:

"... a statement of policy may not be applied in the same manner as a statutory list of disqualifying events without regard to the Act or merits of the case."

See Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217 at 222 per Lee J, and Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Burchett J, Federal Court, 25 November 1993, at 12.

At the outset it is important to note that the PAM requirements are "guidelines for assessment of managers". This, of course, includes the relevant attachments, which are Attachment 12 and Attachment A to Attachment 12.  They do not purport to have legislative force in the sense of legally binding criteria or rules. Cf Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 301 where Hill J, (with whom Wilcox and Burchett JJ agreed) characterised the "guidelines" as mandatory rules and not simply as general indications to help the Minister or review bodies in the exercise of a discretion or power.

The non-mandatory force of the guidelines in the present case was recognised by the IRT at page 7 of the reasons for decision when it stated:

"In recognising that holders of managerial positions may have a mix of qualifications and experience, and in some cases, experience without any formal qualification, NOOSR, has prepared guidelines which are included in the .... ('PAM') a guide prepared for Departmental officers when assessing overseas qualifications. NOOSR has authorised the Australian Institute of Management ('AIM') as the 'relevant assessing authority' for managers. The guidelines provide a basis for assessment dependant on the various levels of membership awarded by AIM who grade members into four groups, being affiliate, member, associate fellow and fellow." (Emphasis added)

There then follows an analysis of the structure of the PAM guidelines. This, in turn, is followed by quotations from the letter of 29 May 1995, from AIM providing its assessment in its capacity as the relevant authority.

The finding of the Tribunal at page 9 was:

"...that the usual occupation of the Principal is that of Sales and Marketing Manager. As the Principal [the applicant] has been assessed by AIM to be eligible for admission as a member, she falls into group C of the PAM guidelines as set out earlier and is thus entitled to be awarded 25 points under sub-item 7107(b) of Schedule 7," (Bracketed material added)

The applicant claims entitlement to 70 points.

Attachment A, on which the applicant relies is headed "Australian Institute of Management Assessment Criteria Management Level Grid."

The attachment is for use "in assessing whether applicants have work experience at an acceptable level, assessing officers are to use the following AIM management experience grid".

Sales Managers are shown in this grid as having the equivalent work experience to membership level of the AIM guidelines. Attachment A does not purport to set the minimum membership levels required in order to be equivalent to the Australian standards in Schedule 7, Item 7102(c)(ii). Rather, it is designed to provide a broad indication of the level at which the level of work experience of particular types of applicants employed with various sized organisations might be assessed. Accordingly, a Sales Manager, on the basis of the grid guidelines in Attachment A, would not attain the minimum level of associate fellow as required by cl 2.3 of Attachment 12 and would only be assessed as having work experience equivalent to that of membership level.

Clause 4, which appears in the body of Attachment 12 is headed "AIM Membership Guidelines".

Paragraph 4.1 states that AIM membership criteria are to be used as a guide in establishing guidelines for the assessment of qualifications for the purpose of migration.  Clause 4.2 refers to the table comprising Attachment A as follows:

"A table detailing the type of positions, business enterprise size and structure, for which this grade of membership is relevant, is given in Attachment A." (Emphasis added)

The table which sets out a grid of qualifications is no more than indicative of certain "types" of positions and the business enterprise size and structure which, inter alia, would warrant membership or associate fellow levels of qualification. 

As the applicant does not have formal qualifications relevant to the field in which she was working, she was required to have at least 5 years work experience in a management position at the associate fellow level, by reason of para 5.1(ii) of Attachment 12.  This sub-paragraph makes it quite clear that qualification at the member level is not sufficient. See also para 2.3 which refers to a minimum level of associate fellow to qualify as a Specialist Manager.

There is further reference to Attachment A in para 5.3, which is entitled "Guidelines on Assessing Work Experience". The relevant paragraph reads:

"For all applicants, officers should refer to the Table in Attachment A when assessing whether the applicant's current position and previous work experience is at an appropriate level to be classified as a manager at the Associate Fellow level." (Emphasis added)

This makes it clear that the table is a point of reference and not a mandate.

The language uses the expressions "guidelines" and "refer to"  which do not suggest that the table was intended to prevail over the body of the text in Attachment 12. It is rather a convenient reference point for assessment purposes and does not prescribe definitive criteria.  In my opinion, on a reasonable reading of Attachment 12, as a whole, in relation to the applicant's skills and experience, it was open to the IRT to reach the conclusions: (i) the work experience required was for membership of AIM at the associate fellow level and (ii) that membership level was not sufficient.

In my opinion, the IRT has not made any error of law or principle in reaching its decision on this aspect of the review.

Second Submission - Substantial Impact Not Considered.

The second submission is that the respondent erred in applying the guidelines when deciding the applicant was not qualified at the associate level because it failed to advert to or take into account, a relevant consideration, namely the substantial "impact" the applicant had on her employer's operation.

This is a reference to the second and alternative leg of the definition of associate fellow in para 4.2(ii) to Attachment 12 which reads:

"... or alternatively, holds a specialist position requiring management and entrepreneurial skills, the exercise of which have substantial impact on the overall operation of the organisation."

Reasons on Second Submission

It should be noted that the reference in the paragraph is not to the applicant herself having a substantial impact on the overall operations of the organisation, but rather to holding a position which requires skills, the exercise of which have a substantial impact on the overall operations. This is an important  distinction.

This alternative leg of the description of associate fellow is not mentioned in the decision under review nor is it discussed or referred to in the letter from AIM of 29 May 1995.

The respondent submits that it is implicit in the letter of 29 May 1995, that the alternative was taken into account, because there is express reference in that letter to the applicant in her present employment, not necessarily having a complex task in terms of management skills.  There is then reference to an organisation of only nine employees, four of whom are directors, and the conclusion is reached that a person holding her position would not have the responsibility for the range of management functions required of a Senior Manager at the associate fellow level. This, it is said, is in substance, a finding that her experience and skills were not of such an order that their exercise could or would have a substantial effect on the overall operation of Tropical Fish.

While it may be possible, allowing considerable latitude in approach, to derive from the letter a line of reasoning to the effect that the management skills called for were not complex; the organisation was relatively small, and the range of management functions was not great, there is nevertheless no reference to, or consideration, in the decision, or in the letter, as to whether the skills that the applicant possessed, were such as to have substantial impact on the overall operations of the organisation, if exercised by the applicant.

The guidelines in Attachment 12 include "Sales and Marketing Managers" under the heading "Specialist Manager".  Therefore, the matter must be approached on the basis that the applicant held a "specialist position" within the meaning of para 4.2(ii).

I consider that the alternative leg of the description of associate fellow, expressed in cl 4.(2) requires consideration to be given to the question whether the management and entrepreneurial skills of the applicant would, if exercised, have a substantial impact on Tropical Fish. As there is no consideration given in the decision to this matter, I consider that the IRT failed to take into account this important and relevant consideration.

I therefore conclude that the matter ought be remitted to the IRT for reconsideration in accordance with law.

Accordingly, I grant the application for review, set aside the decision of the IRT, and remit the proceeding to the IRT for further consideration in accordance with law.

I order that the respondent pay the applicant's costs of this application.

I certify that this and
the preceding twenty (20)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  22 March 1996  

Counsel for Applicant:      Mr S R Sirett  

Solicitors for Applicant:     Wojtowicz Kelly

Counsel for Respondent:     Mr J D Allanson  

Solicitors for Respondent:    Australian Government Solicitor

Date of Hearing (Perth):         24 November 1995  

Date Judgment Delivered:         22 March 1996