De Ronde v Minister for Immigration
[2004] FMCA 519
•25 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DE RONDE v MINISTER FOR IMMIGRATION | [2004] FMCA 519 |
| MIGRATION – MRT review – entry permits and change of status – visas for non-citizens – special category – skills based visa – meaning of ‘employed’ – meaning of ‘engaged in an occupation’. |
Migration Act 1958 (Cth), s.474, s.65, ss.92-96, regs 2.26A, 136.223, Sched 6A
Migration Regulations 1994 (Cth)
Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs [1994] 34 ALD 557
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Ye Hu [1997] FCA 1197
Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50
Morias v Minister for Immigration, Local Government and Ethnic Affairs (1995) 54 FCR 498
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
| Applicant: | CATHARINA CHRISTINE DE RONDE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 884 of 2003 |
| Delivered on: | 25 August 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 18 August 2004 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The respondent’s costs of and incidental to the application (save for those costs dealt with by the Orders of Federal Magistrate Bennett dated 22 July 2004) be paid by the applicant.
Costs be in such sum as may be agreed between the parties, and failing agreement that costs be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 884 of 2003
| CATHARINA CHRISTINE DE RONDE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This Judgment relates to a decision of a departmental officer documented in a letter to the applicant dated 15 July 2003 affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Department”) to refuse to grant a Class BN subclass 136 Skilled-Independent (Migrant) visa. The matter came before Bennett FM on 22 July 2004 who adjourned the matter for further hearing on 18 August 2004.
The history
The applicant is a citizen of the Netherlands. At the date of the application the applicant was residing in Australia as the holder of a Class TU subclass 574 student visa.
On 7 March 2003 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the decision maker”) refused to grant a Class BN subclass 136 Skilled-Independent (Migrant) visa.
In a decision made by another decision maker on 15 July 2003, that decision maker affirmed the decision of the original decision maker not to grant a Class BN subclass 136 Skilled-Independent (Migrant) visa. The second decision maker first wrote to the applicant on 4 June 2003 confirming that there was no right of review in respect of the original decision to pool the application, but that he was satisfied that the decision was made in accordance with the relevant legislation, policy and procedures.
Whether or not the applicant would be entitled to a visa of the class she sought was determined by reference to a relatively lengthy legislative scheme.
Section 65(1)(a)(ii) of the Migration Act 1958 (Cth) (“the Migration Act”) provides that the Minister may only grant a visa if satisfied that the other criteria prescribed in the Migration Regulations 1994 (Cth) (“the Regulations”) have been satisfied. It is not in dispute that save for this sub-section the applicant satisfied section 65 of the Migration Act.
The relevant sub-class for the visa sought was sub-class 136 in schedule 2 of the Regulations. The relevant part of those Regulations for the purpose of this application is regulation 136.223 which requires the assessment of a qualifying score in relation to the visa application. The points system is implemented by sections 92 to 96 of the Migration Act. The relevant regulation for the purpose of the point system in this case is regulation 2.26A(1)(b).
The only relevant item for the purpose of determining the points that are in dispute in this case is part 4 of schedule 6A, which is referred to in regulation 2.26A(2)(a). Part 4 provides as follows:
Column 1 Item
Column 2
QualificationColumn 3
Number of points6A41
For a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made, the applicant has been employed in the nominated skilled occupation, or a closely related skilled occupation, that is specified by Gazette Notice as a skilled occupation for which 60 points are available
10
6B42
The applicant has been employed in a skilled occupation for a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made
5
The applicant claimed 10 points pursuant to this part (see page 12 of the Court Book) on the basis that she fell within item 6A41. In support of her application in this regard she completed questions 52 and 53 of the application form (page 10 of the Court Book) identifying a nominated occupation of “translator” which has an ASCO code of 2529-15. She set out her employment history as being a “training manager and translator” for a Dutch company from 1998. The applicant set out other employment and also referred to her curriculum vitae which was forwarded with the application. The curriculum vitae provided a better description of her employment from 1998 onwards as being “communications consultant, training manager and translations/editor in chief” at Tracks and Take Off Multitronics from 1998 onwards. In the curriculum vitae the applicant also set out the following information (Court Book page 38):
Position
Company
Country
Period
Evidence
Present position: Full Time M. Ed. Student
RMIT — Degree Course M. Ed. Management and Leadership
Melbourne Australia
Expected to be awarded Dec. 2002
** Part IV-18
The applicant also provided evidence to the decision maker in the form of a written letter from her employer in the following terms (Court Book page 21):
Herewith we confirm that ms Carin de Ronde is our Communications Consultant for many years for all our companies in the Netherlands, Italy, Great Britain and Germany. Since December 1998, in our employment, her position as Training Manager encompasses the design, translation, adaptation and delivery of training material in the area of Personal and Professional Development, meant for integration into staff and management training programs. (sic)
The decision maker, when considering the work experience section of the application stated (Court Book page 54):
The relevant period for the assessment of your work experience is therefore from 13/6/98 to 13/6/2002.
You have provided a work reference stating you were employed as a Training Manager from December 1998 to (reference date) 25 January 2002 (37 months). However, within that period you spent approximately 15 months in Australia studying. I have therefore determined that you have not been employed in a skilled occupation for the 3-year period required to meet the points test.
Following receipt of this determination the applicant’s Migration Agent wrote to the Department making further submissions including the following (Court Book pages 59-60):
For [the decision maker] to point out that she simply spent 15 months in Australia studying is not a reason to determine that she was not employed in a skilled occupation for the 3 year period. This is because the migration regulations clearly state that work is defined as 20 hours per week. Our client had condition 8101 on her student visa class 574. This condition clearly states that a person with this condition on the visa must not engage IN WORK IN AUSTRALIA. [The applicant] had not engaged in work in Australia. The work she was engaged in was work outside Australia that being for the company in the Netherlands as was confirmed in the letter by the employer lodged with the application.
In my opinion this is clearly one such case that you should agree to vacate the decision because [the decision maker] has simply concluded that by studying in Australia for 15 months does not qualify our client for work experience points when work experience can by counted for up to 20 hours per week. There is no breach of her visa conditions as the work was not in Australia, was not for an Australian company and was in the Netherlands.
In my opinion, this application should be reconsidered by another DIMIA officer. The information that I have available to send to is a more detailed description of the delivery of work and the job responsibilities that [the applicant] undertook. At the time of the application our client was working for her employer for 72 months in Training management. From June 1996 to December 1998 she was working as an independent consultant and from December 1998 to the application date as a salaried employee. [The applicant] met her obligations as a student in Australia but at the same time met her obligations under employment with the employer overseas in the Netherlands and at the same time did not work in Australia. IE No wages paid, no pay slips, no group certificates, and as the evidence shows no remuneration paid to her in Australia.
Her monthly salary was paid to her directly into her bank account into the Netherlands. Therefore she continued to work in an employment arrangement with the company Tracks and Take Off Multitronics throughout that period and our client clearly meets the definition of someone who had work experience for more than the 36 months as required by Schedule 6A.
The letter from the Migration Agent on behalf of the applicant was dated 27 May 2003.
It appears that after receipt of an earlier version of this submission the decision maker added a note to the correspondence in the following terms (exhibit “CCDR-17” to the second affidavit of the applicant):
A complaint about my pool decision. I did not accept that PA [the applicant] while in Australia studying was also working for her employer in the Netherlands as a “Training Manager”. (She was still on the payroll but I do not accept that she could perform a full range of duties of a training manager overseas while in Australia).
Pls advise.
Subsequently another officer of the Department wrote to the applicant on 15 July 2003 stating (Court Book page 69):
I have considered the matters you have raised. The decision maker considered the evidence you provided and allocated points accordingly. You achieved insufficient points for the grant of a Skilled Independent visa. I am satisfied that the decision to pool your application was correctly made in accordance with the relevant legislation, policy and procedures.
It is clear from the material that a close examination of the meaning of item 6A41 is required. That item refers to a consideration of whether or not the applicant “has been employed” in a relevant occupation. The term “employed” is defined in the Regulations at Regulation 2.26A(7) and that definition is as follows:
“employed” means engaged in an occupation for remuneration for at least 20 hours weekly.
It is therefore apparent that the decision maker had to determine whether or not the applicant was “engaged in an occupation for remuneration for at least 20 hours weekly” for a period of 3 out of the previous 4 years.
Its apparent from the FOI requests of the applicant that the decision maker not only had regard to the application of the applicant, her employer’s reference and her curriculum vitae but also undertook a review of the applicant’s visa history. This is apparent from a handwritten note on the applicant’s file which was produced annexed to the applicant’s second affidavit as Exhibit “CCDR-15”. This note provides the following information:
(a)5/12/99 to 5/6/00 686 Visitor 6 months;
(b)3/7/00 to 22/8/00 976 Visitor 21½ months; and
(c)30/10/01 to 8/1 979 Visitor 2 months.
Visa classes 686 and 976 are a tourist (long stay) visa and an electronic authority (visitor) visa. Both these visas are tourist visas and both are subject to condition 8101 which is in the following terms:
The holder must not engage in work in Australia.
The term “work” is defined in the Regulations at Regulation 1.03 in the following way:
“work” means an activity that, in Australia, normally attracts remuneration.
The applicant had spent two periods in Australia studying, the first pursuant to a sub class 560 student visa which contained a condition precluding from working, and the second on a class 754 “masters and doctorate sector” visa, which is again essentially a student visa for higher level education.
In order to obtain the student visas the applicant satisfied the Department, at the relevant time, that she had: “the financial ability…to undertake the course without contravening any condition of the visa relating to work” (this is contained in section 560.224 at 574.223 of the Regulations).
The affidavit of the applicant could not confirm that the Department actually held a copy of her contract of employment with the Dutch company. She did obtain through Freedom of Information Legislation a copy of a letter written by her to the Department on 16 August 2000 wherein she encloses the first page of her recent work contract but asked that it be returned to her after the Department uses it. It appears on the material before me that the Department, at the time of considering her visa application for the present visa, did not have on its old visa file the one page work contract that had been forwarded to it on the previous occasion.
In any event, the terms of the employment contract, which are Exhibit “CCDR-16” to the applicant’s affidavit, do not appear to me to take the applicant’s case any further than the letter of the applicant’s employer which is contained in the Court Book. The relevant part of the contract simply states that the primary tasks of the applicant as an employee are “the provision of staff training world wide”, and that “the work will be carried out world wide and from the employee’s own office facilities and from the offices of Hoofddorp”.
The employment contract did contain a clause that the agreed number of working hours was 38 hours per week and that the employee would work at varying times and would satisfy that requirement at her own discretion.
At the hearing the applicant relied upon the grounds contained in her amended application filed on 3 August 2004. It is convenient to deal with each of those grounds as enumerated in the amended application, in a similar manner to which the argument for the applicant was summed up at the conclusion of the hearing.
Grounds (a) and (c)
Grounds (a) and (c) claim that the decision of the decision maker failed to take into account the representations of the Migration Agent following the initial determination. I do not accept this ground for two reasons:
a)it appears clear that the original decision is the one being reviewed and that the subsequent officers considerations were in the nature of the answering of a complaint rather than a reconsideration of the initial decision; and
b)even if I am wrong in respect to (a) there is nothing in the material to indicate that the subsequent officer did not consider the representations of the Migration Agent — indeed it is set out by the subsequent officer that those representations were taken into account, and the freedom of information document “CCDR-17” referred to above makes it clear that these subsequent representations were actively considered.
Ground (b)
Ground (b) argues that the decision maker erred in logic and in the fact finding process. The argument is to the effect that the subsequent comment by the decision maker in the FOI material that “she was still on the pay roll but I do not accept that she could perform a full range of duties of a training manager overseas while in Australia.” should be read literally, and therefore have the meaning that the decision maker simply acted upon the assumption that a person could not perform the duties of a training manager overseas whilst in Australia. I do not accept this ground of review for a number of reasons:
a)The comment referred to must be taken in the context of the comments in the decision by the decision maker, and the previous sentence, for which this is a parenthesis addition. When taken in context it is clear that the decision maker is making a finding of fact to the effect that the decision maker was not satisfied that the applicant was engaged in an occupation for at least 20 hours per week. In the circumstances of the case, namely where the position was that of a training manager in the Netherlands, the applicant was in Australia, and the applicant was undertaking full time studies, I see no defect in this reasoning on the part of the decision maker.
b)To attempt to read the parenthesis comment literally and out of context is an overzealous scrutiny of the reasons, which results in an unfair reading of the reasons of the decision maker. The High Court has made it clear that an over zealous scrutiny of the reasons is not an appropriate course in a review such as this: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271.
There was no evidence before the decision maker at the time to establish with any particularity what work duties the applicant in fact undertook for a minimum of 20 hours a week during the relevant periods. The only evidence was very general evidence that she held a position and was paid by a Dutch company, and that she was studying full time in Australia. In the absence of any further evidence it appears that the decision maker’s conclusions were not only open to her but reasonable.
The applicant in her most recent affidavit material attempts to provide evidence at this hearing as to the nature of her duties during the relevant period. She sets out the following comment at paragraph 32:
I dispute the observation that I could not perform a full range of duties as a training manager overseas while in Australia. My employer is a company which trades by operating duty free stores at airports throughout the world. My duties were to design, constantly improve and translate training material for staff. My duties also included dealing with staff issues. I was able to do this using telecommunications as my employer states in the reference of 25 April 2003 which is exhibit “CCDR-1” to my first affidavit. I did perform the full range of duties as a training manager required of me. For this I received a salary of approximately Euro 4,466.26 or, approximately, $7,000.00 per month until July 2003.
The document referred to Exhibit “CCDR-1” is a letter from the employer stating that:
Ms de Ronde fulfilled her responsibilities while residing in Europe and continued to do so from July 2000, while studying in Australia, utilising telecommunications e.g., fax, telephone, internet, e-mail, tele-conferencing etc., for the delivery of work. During this period she also returned for meetings.
Even if this were now admissible, there continues to be an absence of specific evidence of what work or duties the applicant undertook from week to week, and what part of her time they consumed.
I am not satisfied that this ground is a ground for review of the decision of the decision maker.
Ground (d)
In support of ground (d) the applicant asked that I take into account that the decision maker failed to take into account a relevant matter, being the circumstances of the student visas granted to the applicant. The argument is to the effect that the student visas were granted on the basis that the applicant was employed in the Netherlands and would continue to be employed and paid according to the terms of the contract produced at that time.
This argument requires a conclusion that the respondent ought to have regard to its earlier files with respect to the student visa application at the time that they were considering the applicant’s current visa application.
The applicant relies upon the comments of the High Court in the decision of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The decision in Peko-Wallsend was to the effect that the Minister in that case was deemed to have knowledge of material in the possession of the Department. In Peko-Wallsend the High Court made it clear that the Minister may rely upon his Department to bring his attention to relevant facts, but that his ignorance of those facts would not protect the decision if the Minister ought to have taken those facts into account in a proper decision making process. The Peko-Wallsend decision concerned aboriginal land rights and information provided to the Minister by various companies interested in uranium mining with respect to an area of the land the subject of a land rights claim. Following a change of Minister the information from the companies was not passed on to the new Minister. That case concerned material and submissions directly relevant to the decision then being contemplated by the Minister, which had been forwarded to directly address that issue.
In this case the material referred to is on separate and earlier files of the Department.
Counsel for the respondent submitted that sections 54 through 56 of the Migration Act set out the information that the respondent must take into account, and that these sections do not include the information contained on a previous visa application file.
The respondent also relies upon the decision in Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs [1994] 34 ALD 557, at 576-577 wherein Drummond J distinguished the Peko-Wallsend decision stating:
This notion of constructive possession was utilised in [Peko-Wallsend] to require a ministerial decision-maker to take into account all submissions made on behalf of a person affected by the decision to his predecessor in the office, being submissions on a matter which was identified as one which the minister was bound (and not merely entitled) to consider, in arriving at his decision. However, it goes well beyond the limits of the principle to say that because a document is deemed to be in the possession of the minister if it is held by his department, the minister must consider every document in the department’s possession, whensoever and howsoever obtained, which is relevant to the issue in question. As Deane J stated in Sean Investments Pty Ltd v McKellar [1981] 38 ALR 363 at 375 in the passage quoted above, the decision of what material from the range of relevant material to take into account is generally one for the decision-maker alone. It is only when material which must be taken into account is ignored that the decision is reviewable.
Drummond J went on to conclude that (at page 577):
It can also be readily accepted that there is a myriad of documents and reports in the department’s possession, of varying degrees of reliability and currency, which contain information on China which may have relevance, some of it directly so, other items only remotely so, to whether a Chinese national seeking refugee status may, at a particular time, have a well-founded fear of persecution. The suggestion is that unless each decision-maker, each time he has to make a decision with respect to a particular applicant, trawls through the department’s records and accurately identifies and then considers all such documents, his decision will miscarry. The task would be an impossible one.
In this case the task of the decision maker would not be nearly so large as the previous visa application files for the applicant would be easily and readily identifiable. The files should have been readily available if the Minister is complying with the obligations under the Archives Act 1983 (Cth).
The previous visa applications are not required to be taken into account under the relevant sections of the Migration Act as set out above. It is for the applicant to direct the decision maker to the material that the applicant wishes to have taken into account, and it was open to the applicant to do so. The applicant did not seek to rely upon that material in making the application, nor was there anything done by the decision maker, on the evidence before me, to lead the applicant to reasonably expect that the previous was application would in fact be taken into account. I am therefore of the view that in this case it was not necessary for the decision maker to consider the previous visa application unless referred to it by the applicant. Of course the terms of the Migration Act are such that if the decision maker chose to actively consider previous visa files they could do so. In any event the previous visa file would only have demonstrated to the decision maker that the Dutch company was continuing to pay the applicant, and that the applicant was the subject of a visa condition precluding her from working in Australia.
I accept the argument of the respondent that a visa condition precluding a person from working in Australia would have also precluded the applicant from continuing to carry out duties as an employee whilst she was in Australia, even if those duties were undertaken by way of electronic communication (see the definition of work, supra).
The types of activities that the applicant is suggesting she carried out would normally attract remuneration in Australia. The activities would be work in the sense that the term is used in the Migration Act: it was an ‘activity of the mind or body undertaken in exchange for monetary reward’ that was ‘for the purpose of gaining a livelihood’ (see Minister for Immigration v Montero (1991) 31 FCR 50 at 58).
The argument that the work was really being undertaken overseas, simply that the applicant was present in Australia at the relevant time, is particularly unattractive. The actual activity of the applicant in bringing her skills to bear on the subject matter of the employment was clearly being undertaken within Australia. Such an interpretation would not fit with the general scheme of the Regulations which provide for a large number of different types of visas for persons from overseas to carry out work in Australia for varying periods of time (for example see visa classes 121 through 134).
At the end of the day if any decision maker had consulted the previous visa files they could only have added weight to the conclusion that if the applicant were honouring her previous visa conditions she would not have been undertaking work whilst in Australia, but simply studying. This is not inconsistent with the proposition that she was still technically an employee of the Dutch corporation and being paid. It is not an uncommon scenario for employees of corporations to be allowed to study in another country, on full pay, for the purpose of gaining or improving their skills. However, such study arrangements are not ‘working’ in the sense of carrying out their duties as an employee in the sense understood by the term ‘work’. This is not to say that in particular occupations such activities could not be work or be ‘engaged in an occupation’ (eg a professor undertaking research) but such cases will be rare and require clear evidence of the nature of the activities in Australia and the requirements of the occupation.
Ground (e)
In support of ground (e) the applicant relies upon the proposition that the comment of the decision maker in the comment parenthesis (as set out above) demonstrates that the decision maker concluded that the applicant simply could not, under any circumstances, have been engaged in her employment for 20 hours per week whilst a student in Australia. As indicated above I do not accept that this is a fair reading of the comment in the parenthesis, and even if it is it would be an over zealous scrutinisation of the comment and would require the comment to be read out of context.
The alternative argument under this heading is to the effect that it is sufficient that the applicant was ‘on the pay roll’ of her employer in order to satisfy the requirement that she be engaged in employment for at least 20 hours per week.
Neither party was able to provide me with any authority on the meaning of the term ‘engaged in employment’. The respondent referred to the dictionary definitions in the Macaquarie Dictionary and the Concise Oxford English Dictionary. The definitions contained in the Macquarie Dictionary included both ‘busy or occupied; involved’ and ‘under engagement; pledged’. The two definitions are different and one is consistent with the case of each of the parties. In the Concise Oxford English Dictionary a definition is given in the following terms:
3 (engaged in/with) participate or become involved in. > enter into combat with.> (of fencers or swordsmen) bring (weapons) together preparatory to fighting.
There are numerous cases in other areas (especially income and disability insurance and workers compensation), but I could find none where the person was being paid but not carrying out duties directly related to the occupation.
The term ‘usual occupation’ (as appeared in reg. 146) has been considered by the Federal Court. In Morias v Minister for Immigration, Local Government and Ethnic Affairs (1995) 54 FCR 498 (referred to with approval in Minister for Immigration and Multicultural Affairs v Ye Hu [1997] FCA 1197) Kiefel J said:
The occupation the regulation is concerned with is clearly not just any undertaking, pursuit or activity which occupies one's time, but one which has been pursued in the context of employment. An essential feature of such an occupation is the receipt of income or other form of reward, something given or acquired in exchange for the provision of skills or services. A person's occupation would, I consider, ordinarily be understood to refer to that employment, trade or business in which that person is habitually engaged and by which that person earns a livelihood or receives some form of remuneration.
When one considers the scheme of the legislation the interpretation submitted by the respondent fits far better than that suggested by the applicant. On the interpretation of the applicant, it is sufficient to satisfy the test if the applicant is subject to a contract of employment and being paid, regardless of what she actually did during the relevant periods. Taken to its logical extreme the applicant could have spent fifteen months skiing in Australia or sunbaking if she so chose and still fulfilled the requirements of the relevant visa conditions for a ‘skilled-independent’ visa. It is apparent from reading the legislation as a whole that the nature of the visa she was seeking was a visa provided to persons with a skilled occupation who are less than 45 years of age. The department is required under the Regulations to consider whether or not the person has been engaged in that or a similar occupation for three out of the previous four years. To read the term ‘engaged in an occupation’ as meaning anything less than actively undertaking the duties directly associated with such an occupation would defeat the purpose of such a condition for the type of visa being considered.
I therefore accept that the proper meaning of ‘engaged in an occupation’ is actively participating in or undertaking duties directly connected with the carrying out the occupation concerned.
On this basis the decision maker did not misconstrue the meaning of the relevant provision, and her decision clearly sets out in summary form the two significant pieces of evidence before her on this topic, and her conclusion based upon those two pieces of evidence. That is, the evidence of the work reference, the evidence that the applicant had spent fifteen months in Australia studying full time, and her conclusion that the applicant had not therefore spent three of the last four years in a skilled occupation as required under the points test. The subsequent comments by the decision maker, as contained in the FOI document referred to above simply confirm the reasoning process.
I therefore find no flaw in the decision making process with respect to this ground of review.
Ground (f)
Ground (f) is effectively a restatement of ground (e), but cast in terms that the decision maker erred by relying upon a fact which did not exist: the alleged conclusion that it was ‘not possible for a person to perform a full range of duties as a training manager overseas while in Australia.’ In my view a fair reading of the statements of the decision maker do not disclose that she formed the view that it was ‘not possible’ in the sense suggested by the applicant, rather that on the evidence before her she was not satisfied that the duties had been carried out to the degree required by the Regulations.
Ground (g)
Ground (g) relates to the claim that the applicant had previously applied for student visas, and that the decision maker did not consult the records of the Department concerning these student visas. For the reasons set out above I am not satisfied that the Department was required to consider those unless directed specifically to them by the applicant, but that in any event the nature of those student visas, and in particular the condition precluding the applicant from working in Australia, would have only strengthened the decision maker’s findings of fact on this issue, and not assisted the applicant. Had my determination of the true meaning of ‘engaged in employment’ been as argued by the applicant a different result may have flowed in this regard.
Conclusion
In the circumstances I am not satisfied that any of the grounds argued by the applicant in her amended application has been made out.
I am satisfied that every possible argument that could be put forward on the applicant’s behalf has been agitated before me, with detailed written and oral submissions by the applicant’s counsel. I am not satisfied that any ground for judicial review of the decision of the decision maker has been established.
In the circumstances I therefore refuse the current application.
At the end of argument the parties agreed that costs should follow the event and that the appropriate costs order would be for the costs to be as agreed between the parties and failing agreement to be assessed.
In the circumstances I therefore propose to make orders as set out at the commencement of these Reasons.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the Reasons for Judgment of Riethmuller FM
Associate:
Date:
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