Constantino v Minister for Immigration
[2013] FCCA 1178
•23 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTANTINO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1178 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misconstrued cl.485.213(b) of sch.2 to the Migration Regulations 1994. |
| Legislation: Migration Act 1958, s.474 Migration Regulations 1994, regs.1.15F, 1.15I, cl.485.213 of sch.2 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | MYRA FLORES CONSTANTINO |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1946 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 August 2013 |
| Date of Last Submission: | 19 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1946 of 2012
| MYRA FLORES CONSTANTINO |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of the Philippines, applied for a Skilled (Residence) (Class VC) subclass 485 visa on 28 January 2010. On 18 October 2011 her application was refused by a delegate of the first respondent (“Minister”) on the basis that she did not satisfy the requirements of cl.485.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time she lodged her application was cl.485.213 which provided:
(a)the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;
(b)each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. (emphasis added)
“Australian study requirement” has the meaning given to it by reg.1.15F which relevantly provides:
1.15F Australian study requirement
(1)A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c)that were completed as a result of a total of at least 2 academic years study; and
(d)for which all instruction was conducted in English; and
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
“Skilled occupation” has the meaning given to it by reg.1.15I and relevantly provides:
1.15I Skilled occupation
(1)A skilled occupation, in relation to a person, means an occupation of a kind:
(a)that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b)if a number of points are specified in the instrument as being available — for which the number of points are available; and
(c)that is applicable to the person in accordance with the specification of the occupation.
…
The instrument which specified skilled occupations for the purposes of reg.1.15I, and which applied to the applicant, was Instrument IMMI 12/068 (legislative instrument F2012L01314).
Background facts
Primary application
In her application, the applicant stated that she had completed a Bachelor of Commerce with a major in marketing and a Masters in Business Administration at universities in the Philippines and an Advanced Diploma of Hospitality Management at TAFE NSW. The applicant nominated the occupation of marketing specialist and included a copy of a skills assessment issued by Vocational Education Training and Assessment Services on the basis of her Bachelor of Commerce degree.
On 9 September 2011 the delegate wrote to the applicant inviting her to provide evidence that her Advanced Diploma in Hospitality Management was closely related to her nominated occupation of marketing specialist. In a letter dated 11 October 2011, the applicant stated that her bachelor’s degree in marketing and her Masters of Business Administration had introduced her to marketing and she had taken an Advanced Diploma in Hospitality Management because she believed that it was a field where she could maximise her education, skills and training in marketing. The applicant stated that through her diploma she had acquired skills about marketing strategies and operations in the management of hospitality-related businesses. She stated that as a marketing professional in the hospitality management field she believed that she was qualified to be employed as a marketing coordinator, product manager or sales promotion manager. The applicant stated that she planned to open her own hospitality business.
The delegate refused to grant the applicant a visa on the basis that her Advanced Diploma in Hospitality Management was not closely related to her nominated occupation of marketing specialist and, as a result, she did not satisfy cl.485.213(b) of sch.2 to the Regulations.
Review application
The applicant appeared before the Tribunal on 7 August 2012. At the commencement of the hearing the applicant’s migration agent provided written submissions to the Tribunal. The applicant’s migration agent submitted that under the Minister’s department’s policy the critical factor for the “closely related” requirement was whether the skill-set underpinning the qualification was complementary and could be used in the nominated profession. The agent referred to some subjects undertaken by the applicant in her diploma course and to their relationship with the tasks set out in the Australian Standard Classification of Occupations for a marketing specialist. The agent submitted that the applicant’s diploma was closely related to her nominated occupation because it had taught her skills that were directly useful to a marketing specialist and had provided training in relation to various aspects of her nominated profession which would be of great use to her employment in the hospitality industry.
At the hearing the applicant stated that she had undertaken certain subjects in her diploma which had taught her marketing skills and was confident that the knowledge she had gained would help her to be a successful marketing specialist. She stated that she was in the process of creating a marketing plan for her employer and was able to apply the knowledge she had acquired from her diploma in her job. The applicant stated that she wanted to open her own café and that having a background in hospitality and marketing would help to advance her business. She stated that overall her diploma qualification was related to the occupation of marketing specialist.
After the Tribunal hearing the applicant’s migration agent sent the Tribunal a submission dated 10 August 2012. In it the agent submitted that the Tribunal’s indication at the hearing that it was necessary to look at the overall objectives of the course and not individual subjects was incorrect. The agent submitted that it was wrong to state that the overall objective of a degree had to have one occupational goal. She submitted that the applicant’s diploma was compatible with her nominated occupation, that it had assisted her to be job-ready and that the skill-set underpinning her diploma was complimentary and could be used in her nominated occupation. The agent referred to previous decisions of the Tribunal, differently constituted, where an approach different to the one adopted by the Tribunal in relation to this case had been taken.
The Tribunal’s decision and reasons
The Tribunal was not satisfied that the Advanced Diploma in Hospitality Management was closely related to the occupation of marketing specialist. It was therefore not satisfied that the applicant met cl.485.213 of sch.2 to the Regulations. In this connection:
a)the Tribunal found that being complementary or useful was not sufficient to establish that a qualification was “closely related” to the nominated occupation;
b)the Tribunal accepted that the skills acquired by the applicant as part of her qualification had been useful in her employment and that she had been able to use her marketing skills in marketing a café for her employer. However, the Tribunal found that the fact that the applicant had been able to utilise the skills she had acquired as part of her qualification or that she found them useful to her employer was not sufficient to meet the “closely related” criterion;
c)the Tribunal did not consider that the legislation contemplated a comparison of individual subjects within a qualification and an assessment of their close relationship to the nominated occupation. The Tribunal found that cl.485.213 required an assessment of the qualification as a whole, not parts of the qualification, and that it was therefore not sufficient for the applicant to state that several subjects which formed part of her diploma were closely related to marketing. The Tribunal concluded that the applicant’s qualification as a whole was not closely related to her nominated occupation. The Tribunal further found that the hospitality management course was designed primarily for the hospitality industry, while the occupation of marketing specialist was not limited to any one industry and required broad skills not related to any particular field;
d)the Tribunal found the applicant’s approach, that she wanted to work in marketing in the hospitality industry, to be too narrow. It found that the occupation the applicant had nominated was marketing specialist and not marketing specialist specialising in a particular field, such as hospitality management or hospitality, and that the fact that the applicant wished to be employed in that field did not make it a separate and distinct skilled occupation. Noting that there were other professions in the skilled visa scheme which did allow for specialisations, the Tribunal found that the absence of any specialisations in the occupation of marketing specialist indicated no intention to allow that distinction;
e)the Tribunal noted that a marketing specialist dealt with a broad range of tasks and was not limited to a single product or industry whereas the applicant’s diploma was specific to the hospitality industry, which was only one aspect of the work of a marketing specialist and an unjustifiably narrow representation of a marketing specialist’s work. The Tribunal formed the view that the legislation required consideration of the relationship between the qualification as a whole to the nominated occupation as a whole, and not one aspect of the occupation; and
f)while noting the applicant’s wish to work as a marketing specialist in hospitality or to open her own hospitality business, the Tribunal found that the issue was not the applicant’s future or intended employment but her nominated occupation. It found that the “closely related” criterion applied to the nominated occupation as a whole and not to an occupation in which the applicant intended to engage in the future.
In relation to the decisions of the Tribunal as differently constituted to which the applicant’s migration agent referred, the Tribunal was of the view that each case had to be determined on its facts. It found that although the Tribunal as differently constituted might have taken a different view in other cases, that did not mean that the applicant’s case had to be determined in a particular way. The Tribunal stated that it was not bound to follow its previous decisions.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal misconstrued and misapplied the term, “closely related” in Schedule 2, Clause 485.213(b) of the Migration Regulations, 1994.
Particulars
(a)The Tribunal held, erroneously, that Clause 485.213(b) requires consideration of the qualification as a whole to the nominated occupation as a whole, and not to one aspect of the occupation.
Further particulars
(i) The Tribunal should have held that the requirement of being “closely related” could be satisfied by a course that potentially had direct application to the applicant’s nominated skilled occupation, whether or not it was relevant to the whole occupation.
(b)The Tribunal held, erroneously, that the subjects studied in the course of gaining the applicant’s qualification were not relevant to the question of whether that qualification was closely related to her nominated skilled occupation.
Applicant’s submissions
The applicant based her allegation that the Tribunal misconstrued and misapplied cl.485.213(b) principally on the following passages in the Tribunal’s reasons:
… the Tribunal does not consider that the legislation contemplates a comparison of individual subjects within a qualification and the assessment of their close relationship to the nominated occupation. What is required by cl.485.212 [sic] is an assessment of the qualification as a whole …
…
The Tribunal is of the view that the legislation requires consideration of close relationship of the qualification as a whole to the nominated occupation as a whole and not one aspect of that occupation. …
The applicant submitted that cl.485.213 did not refer to matters being considered “as a whole” and that to apply that concept to the clause’s interpretation was not justified by a plain reading of it. She said that by concluding that a given qualification and the nominated occupation were to be considered “as a whole”, the Tribunal placed an impermissible gloss on the proper meaning of cl.485.213(b). The applicant submitted that the proper question was whether there was a relationship between the qualification and the nominated occupation such that they were “closely related”. Further in this regard, the applicant submitted that the Tribunal appeared to have erroneously required an exact correspondence between the qualification and the nominated occupation.
On the basis that a qualification did not have to be considered as a whole, the applicant also submitted that individual subjects she had taken within her hospitality course could have been closely related to her nominated occupation and that these, rather than the title of the qualification, or a description or characterisation of it, could be relevant to whether the qualification met the criterion in question. She submitted that, individually and collectively, the subjects she had studied were relevant to whether her hospitality qualification was closely related to her nominated occupation and that in failing to recognise this, the Tribunal erred.
Consideration
Contrary to the applicant’s submissions, there is no textual basis to conclude that cl.485.213(b) refers to qualifications and nominated occupations other than as entire concepts or to conclude that their component parts or characteristics must, as a matter of law, be considered individually when cl.485.213(b) is applied. In those circumstances it is unnecessary to consider the applicant’s submissions that the intention of cl.485.213(b) is to ensure that the qualification is of substantial assistance or direct application to a visa applicant in his or her nominated occupation, other than to observe that the interpretation I have preferred is consonant with that intention.
Consequently, the Tribunal did not err by comparing the whole of the applicant’s hospitality qualification with the whole of her nominated occupation. Although it does appear that some aspects of the applicant’s hospitality qualification were relevant to her nominated occupation of marketing specialist, it was open to the Tribunal to conclude on the evidence that there was insufficient correlation between the qualification, when considered in its entirety, and the nominated occupation, to find that they were “closely related”.
For those reasons I conclude that the Tribunal’s decision was not affected by jurisdictional error.
Conclusion
As jurisdictional error has not been proved, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 23 August 2013
7
1
4