DHIMAL v Minister for Immigration
[2016] FCCA 1094
•10 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHIMAL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1094 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – refusal of Regional Employer Nomination (Class RN) subclass 187 visa – whether applicant had required qualification for occupation of Cook – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Part 5, Division 5, s.476 Migration Regulations 1994 (Cth), reg.1.03, Schedule 2, cll.187.111, 187.234 |
| Cases cited: ANR15 v Minister for Immigration & Anor [2016] FCCA 988 El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 Seema v Minister for Immigration & Citizenship [2012] FCA 257; (2012) 203 FCR 537; (2012) 126 ALD 301 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; [2002] FCAFC 3; (2002) 116 FCR 319; (2002) 67 ALD 355 |
| First Applicant: | MONIKA DHIMAL |
| Second Applicant: | LILARAJ SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 273 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 April 2016 |
| Date of Last Submission: | 29 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 10 May 2016 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 29 April 2016 as amended)
The application be dismissed.
The applicants pay the first respondent’s costs in the sum of $6825 by 29 May 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 273 of 2015
| MONIKA DHIMAL |
First Applicant
| LILARAJ SHARMA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Orders made
On 29 April 2016 the Court made the following orders in this matter which, following amendment, are as follows:
1.The application be dismissed.
2.The applicants pay the first respondent’s costs in the sum of $6825 by 29 May 2016.
The Court also indicated at the time of making the orders that it would publish Reasons for Judgment from Chambers at a later time. These are those Reasons for Judgment.
Introduction
On 24 June 2015 the first and second applicants (“first applicant”, “second applicant” and together “the applicants” respectively) lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 3 June 2015 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the first applicant a Regional Employer Nomination (Class RN) subclass 187 visa (“Regional Employer Nomination Visa”).
The Tribunal Decision is at Court Book (“CB”) 196-207.
Background
The background prior to the Tribunal Decision is as follows:
a)on 13 March 2014 the first applicant, a citizen of Nepal, applied for the Regional Employer Nomination Visa: CB 1-12, in the Direct Entry stream, and:
i)the nominated occupation was Cook: CB 7; and
ii)the second applicant (the first applicant’s husband and also a citizen of Nepal), was listed as a migrating family member: CB 3 and 15;
b)on 17 July 2014 the Delegate refused to grant the applicants Regional Employer Nomination Visas: CB 91-95, finding that:
i)the first applicant did not meet any of the criteria in cl.187.234 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”); and
ii)as a consequence of the first applicant’s failure to meet the abovementioned criteria the second applicant did not meet the secondary criteria;
c)the Delegate made a particular finding that the first applicant did not hold the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) as being necessary to perform the tasks of the occupation of Cook: CB 93-94;
d)on 28 July 2014 the Department approved Nullagine Hotel Pty Ltd’s application for approval of a nominated position in respect of the first applicant and the position of Cook, lodged on 12 March 2014: CB 110;
e)on 6 August 2014 the applicants sought review in the Tribunal of the Delegate’s Decision to refuse to grant them the Regional Employer Nomination Visas: CB 118-121;
f)on 16 February 2015 the Tribunal informed the applicants that it could not make a favourable decision on the material before it, and invited them to attend a hearing on 11 March 2015 to give evidence and present arguments: CB 137-140; and
g)on 11 March 2015 the applicants (assisted by a registered migration agent) appeared before the Tribunal: CB 186, and on 27 March 2015 the applicants’ migration agent provided written submissions and supporting material to the Tribunal: CB 153-179.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the first applicant was seeking the Regional Employer Nomination Visa in the Direct Entry stream to work in the nominated position of Cook: CB 197 at [4]; CB 197-198 at [5]-[7], and referred to the findings in the Delegate’s Decision, including that:
i)the first applicant had completed a Certificate III in Hospitality (Commercial Cookery) (“Certificate III”): CB 20, and a Diploma of Hospitality (Diploma): CB 21-22 in Australia: CB 197 at [6];
ii)the first applicant’s Certificate III did not include 2 years on-the-job training, and the first applicant had not demonstrated that she had at least 2 years relevant post-qualification work experience: CB 197 at [6]; and
iii)the first applicant worked as a Cook on a voluntary basis for Salt N’ Pepper Indian Cuisine between 15 June 2011 and 28 February 2014: CB 197-198 at [6], and see also CB 77;
b)referred to the background to the review, and material provided by the applicants: CB 197-198 at [5]-[11];
c)canvassed the applicants’ evidence and submissions at the hearing, including that:
i)the first applicant had been told (it is not apparent by whom) that her Certificate III was sufficient to satisfy the time of application criteria in cl.187.234 of Schedule 2 to the Migration Regulations: CB 198-199 at [12];
ii)the first applicant worked at Salt N’ Pepper Indian Cuisine after completing her Certificate III and her Diploma, and she did not have prior work experience in Australia or Nepal: CB 198-199 at [12];
iii)the first applicant was not paid during her period of work at Salt N’ Pepper Indian Cuisine: CB 198-199 at [12];
iv)there was no Certificate IV course available in 2009, as this course was only introduced in 2012, and at the time the first applicant applied for the Regional Employer Nomination Visa she had the qualifications required to be a Cook, being the Certificate III: CB 199 at [13];
v)the first applicant’s Diploma was focused on commercial cookery and not management or administration: CB 199 at [13];
vi)there was insufficient time for the first applicant to enrol and complete a Certificate IV course prior to expiry of her previous subclass 485 (Skilled Graduate) visa: CB 199 at [13];
vii)the first applicant was able to obtain a Certificate IV in Commercial Cookery in 2014 (“Certificate IV”): CB 183, through Recognition of Prior Learning (“RPL”) and without undertaking any study as her Certificate III and Diploma were assessed as being equivalent to Certificate IV level: CB 199 at [13]-[15];
viii)the first applicant’s Certificate III and Diploma should “be held to be equivalent to a Certificate IV”: CB 199 at [15];
ix)the first applicant was given a combination of payments in cash and food at Salt N’ Pepper Indian Cuisine but nothing was officially recorded: CB 199 at [15]; and
x)the first applicant initially helped the other cooks at Salt N’ Pepper Indian Cuisine before cooking herself after about four months: CB 199-200 at [16];
d)recorded that it put to the applicants its preliminary view that cl.187.234(c) of Schedule 2 to the Migration Regulations appeared to not be satisfied, and that the applicants’ migration agent had provided further submissions and material on 26 March 2015 (see CB 153-184) stating that:
i)at the time the first applicant completed her Certificate III the available Certificate IV course could be achieved by completing 34 core units and 5 electives, and as the first applicant had completed 47 units in her Certificate III and Diploma (including some common courses) she “should be deemed …[to] hold the … Certificate IV … on the date that she completed her Certificate III and Diploma; that is, on 10 July 2011” CB 200-201 at [19];
ii)as 22 of the 29 units in the Diploma were directly related to cookery, the Diploma could be regarded as a higher qualification than the Certificate III, and that “if someone completed the Certificate III and the Diploma, that person would certainly have the level of competency required by the Certificate IV” which was “borne out by the fact that the first named applicant was able to obtain a Certificate IV of Hospitality (Commercial Cookery) solely through RPL without undertaking any new studies, exams or test”: CB 200-201at [19]; and
iii)the first applicant should be found to meet the skills requirements in cl.187.234(c) of Schedule 2 to the Migration Regulations by virtue of her Certificate III and Diploma: CB 200-201 at [19];
e)regarding cl.187.234(a) and (b) of Schedule 2 to the Migration Regulations, found that:
i)the first applicant was not within any of the 3 classes of exempt persons listed in IMMI 12/060 and therefore did not meet cl.187.234(a) of the Schedule 2 to the Migration Regulations: CB 201 at [25]; and
ii)having regarding to IMMI 12/096, cl.187.234(b) of Schedule 2 to the Migration Regulations was not relevant as the first applicant had obtained her relevant qualifications in Australia and had not provided a positive skills assessment: CB 202 at [26];
f)regarding cl.187.234 (c) of Schedule 2 to the Migration Regulations, the Tribunal found that:
i)according to ANZSCO the ‘Indicative Skill Level’ for the occupation of Cook (ANZSCO 351411) was:
In Australia: AQF [Australian Qualifications Framework] Certificate III including at least two years on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3) ...
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant qualifications and/or on-the job training may be required in addition to the formal qualifications.
ii)the relevant qualifications under the Australian Qualifications Framework for a Cook were a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery: CB 202-203 at [30];
iii)the first applicant’s Certificate III did not incorporate at least two years of on-the-job training and did not meet the ANZSCO skill level, and to the extent that the Department’s policy guidelines in its Procedures Advice Manual ("PAM3") contemplated the first applicant meeting this skill level with two years post-qualification work experience PAM3 was inconsistent with the Migration Regulations: CB 203 at [33]-[34];
iv)the first applicant’s claimed employment experience at Salt N’ Pepper Indian Cuisine was less than three years, and according to the ANZSCO dictionary could not count towards the three years of relevant experience requirement as it was unpaid: CB 203-204 at [34];
v)having considered the applicants’ submissions and relevant Department policy, it was not satisfied that a Certificate III in Commercial Cookery which did not incorporate two years of on the job training could ever meet the ANZSCO skill level: CB 204-205 at [36]-[39];
vi)the completion of relevant study in circumstances where the formal qualification required by ANZSCO is not issued does not meet the requirement, as “[t]he issue is not whether the subjects the first applicant studied were relevant to the formal qualification listed in ANZSCO, or closely related to her nominated application, but whether she had that qualification”: CB 205 at [41]; and
vii)as the first applicant did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation, she did not meet the requirements of cl.187.234(c) of Schedule 2 to the Migration Regulations and did not satisfy the requirements of the Regional Employer Nomination Visa Direct Entry stream: CB 205-206 at [42]-[46]; and
g)also affirmed the Delegate’s Decision to refuse to grant the second applicant the Regional Employer Nomination Visa on the basis that he was not a member of the family unit of a person who held a Regional Employer Nomination Visa: CB 206 at [46].
The Judicial Review Application
The Judicial Review Application contains the following grounds:
1. The Tribunal failed to consider that applicant deemed to complete required qualification (Certificate IV Commercial Cookery) prior to the visa application.
2. That a breach of the rules of natural justice occurred in connection with the making of the Decision.
3. That the applicant was denied procedural fairness in connection with the making of the Decision.
4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed.
5. That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.
Orders
On 16 September 2015 a Registrar of the Court ordered that:
a)the name of the second respondent be amended to read “Administrative Appeals Tribunal”
b)the applicants file and serve on or before 11 November 2015 any amended application giving particulars of the grounds of application, and any further affidavits upon which the applicants intend to rely at the hearing of the matter; and
c)the applicants file and serve an outline of submissions not less than 42 days before the final hearing listed at 10.15am on 29 April 2016.
The applicants did not file any amended application, any further affidavits, or an outline of submissions. The applicants did not appear at the hearing, and did not otherwise communicate with the Court.
Consideration
Legislation
At the time that the first applicant applied for a Regional Employer Nomination Visa cl.187.234 of Schedule 2 to the Migration Regulations provided:
At the time of application:
a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or
b) all of the following requirements were met:
i) the applicant's occupation is specified by the Minister in an instrument in writing for this subparagraph;
ii) the applicant did not obtain the necessary qualification in Australia;
iii) the applicant's skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph i) as the assessing authority for the occupation;
iv) the assessment was not for a Subclass 485 Temporary Graduate) visa;
v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment-the period had not ended;
vi) if subparagraph v) did not apply-not more than 3 years had passed since the date of the assessment; or
c) if neither paragraph a) nor b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.
Clause 187.111 of Schedule 2 to the Migration Regulations defines “occupation” to mean “the occupation that would be carried out by a person who is employed in a position”.
Regulation 1.03 of the Migration Regulations provided that:
ANZSCO has the meaning specified by the Minister in an instrument in writing for this definition.
IMMI 13/066 and IMMI 13/067 specify for the purposes of reg.1.03 of the Migration Regulations that the meaning of ANZSCO is the Australian and New Zealand Standard Classification of Occupations as published by the Australian Bureau of Statistics.
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Ground 1
The Tribunal:
a)recorded the applicants' submission that the first applicant should be 'deemed' to have held a Certificate IV as at the date of her Regional Employer Nomination Visa application: CB 199 at [15]; CB 200 at [19]; CB 204 at [36];
b)stated that it had considered these submissions: CB 205 at [40]; and
c)engaged at length with the substance of this argument: CB 204-206 at [36]-[45].
The allegation in ground 1 that the Tribunal failed to consider whether the first applicant was “deemed to complete” a Certificate IV is therefore without basis.
The Tribunal was of the view that “the completion of relevant study in circumstances where the formal qualification itself was not issued does not meet the requirement” of cl.187.234(c) of the Migration Regulations: CB 205 at [41]. This approach was correct in light of the clear requirement in cl.187.234 (c) of the Migration Act that “the [first] applicant had the qualifications” at the time of the making of the Regional Employer Nomination Visa application. As noted by the Tribunal there was no discretion to find that the first applicant met the requirement of cl.187.234(c) of the Migration Act in circumstances where the first applicant did not hold the relevant qualification: CB 206 at [45].
In Seema v Minister for Immigration & Citizenship [2012] FCA 257; (2012) 203 FCR 537; (2012) 126 ALD 301 (“Seema”), the Federal Court in considering the applicant’s submission that work experience prior to obtaining a Certificate III in Hospitality was work at the appropriate skill level for the ASCO occupation of ‘Cook’ (ASCO being the predecessor to ANZSCO), stated that:
[44] In my view, the appellant's contention cannot be accepted. The ASCO Code which is referred to in Sch 1 of the legislative instrument, has to be given effect. By referring in Sch 1, to the specific ASCO Code in relation to each of the named occupations, Parliament intended, in my view, to import the defining criteria described in the applicable ASCO classification, as the means to assess whether the visa applicant's nominated occupation qualified as a “skilled occupation” for the purpose of the application of the Migration Act and the Regulations. One of the defining attributes specified in the applicable ASCO Code for each occupation, was a “skill level” which described the entry level educational qualification and/or experience level for that “skilled occupation.” In the absence of the defining criteria specification for each occupation which is to be found in the ASCO classification document, the description of each of the occupations which appears in Sch 1, would be at such a high level of generality as to be of no utility to decision-makers.
[45] In the case of Minister for Immigration and Citizenship v Kamruzzaman (2009) 112 ALD 550, Greenwood J had regard to the status of the information referred to in the ASCO classification system under the heading “skill level.” At [63]-[64], Greenwood J observed:
The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation. Instead, it contains information as to the qualifications required for entry to that occupation. The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and/or training, and previous experience.
In order to determine whether an applicant's employment fits into a particular ASCO classification, a decision-maker is required to consider all of the details set out in that classification. However, in making such a decision, the skills that are to be considered are those set out in the “Skill Level” section of the classification to which the applicant's position is being compared. That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation.
[46] In my view, Greenwood J's observations are germane to this question. The decision-maker is required, in determining whether the visa applicant has been employed in a specific nominated skilled occupation, to determine whether the visa applicant possessed the “skill level” nominated by the ASCO classification system for that occupation. In some instances, the “skill level” qualifying the applicant for entry into that “skilled occupation”, may be obtained by the possession of a nominated educational qualification, in other circumstances, it may be obtained by having the requisite nominated experience, or, in some circumstances, both.
Seema at [44]-[46] per Siopis J.
Similarly, by referring to the “qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation”, Parliament has intended to import the qualifications listed under the heading “Indicative Skill Level” as the necessary criteria to satisfy cl.187.234(c) of Schedule 2 to the Migration Regulations.
Subject to the discussion below regarding the work experience requirements for the ANZSCO occupation of Cook, the Tribunal was correct to find that the first applicant did not hold any of the qualifications listed in ANZSCO for a Cook at the time of her visa application: CB 205-206 at [42].
Correct approach to ANZSCO
The ANZSCO provides as follows in a section entitled ‘Conceptual Basis of the ANZSCO’:
SCOPE OF THE CLASSIFICATION
The scope of ANZSCO is all occupations and jobs in the Australian and New Zealand labour markets undertaken for pay or profit, including jobs occupied by people working for themselves. ANZSCO is not designed to cover work not undertaken for pay or profit, for example voluntary work. However, this does not preclude ANZSCO from describing such activities.
...
OVERVIEW OF ANZSCO STRUCTURE
The structure of ANZSCO has five hierarchical levels - major group, sub-major group, minor group, unit group and occupation. The categories at the most detailed level of the classification are termed 'occupations'. These are grouped together to form 'unit groups', which in turn are grouped into 'minor groups'. Minor groups are aggregated to form 'submajor groups' which in turn are aggregated at the highest level to form 'major groups'.
...
UNDERLYING CONCEPTS
As noted in Conceptual model, the framework adopted for ANZSCO is based on the concepts of 'job' and 'occupation'. The concept of 'occupation' is based on the concepts of 'skill level' and 'skill specialisation'. Understanding these concepts is fundamental to understanding ANZSCO. These concepts are defined in the following sections.
The concept of job
A 'job' is defined as a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job. Any particular job will typically involve an individual working for a particular employer and undertaking a particular set of tasks. People working for themselves are considered as having a job and belonging to the labour force.
The concept of occupation
The categories at the most detailed level of the ANZSCO structure are called 'occupations'. An 'occupation' is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an 'occupation' is a set of jobs whose main tasks are characterised by a high degree of similarity. The similarity of tasks is defined in ANZSCO as a function of the level and specialisation of skill required to perform those tasks. Skill is defined as the ability to competently perform the tasks associated with an occupation. It follows that ANZSCO classifies occupations according to two criteria - skill level and skill specialisation.
The concept of skill level
In ANZSCO, skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. The greater the range and complexity of the set of tasks, the greater the skill level of an occupation. Skill level is measured operationally by:
• the level or amount of formal education and training
• the amount of previous experience in a related occupation, and
• the amount of on-the-job training
required to competently perform the set of tasks required for that occupation.
In general, the greater the range and complexity of the set of tasks involved, the greater the amount of formal education and training, previous experience and on-the-job training required to competently perform the set of tasks for that occupation. Formal education and training refers to the level and amount of education and training required for competent performance of the tasks required in an occupation. It is measured in terms of educational qualifications as set out in the Australian Qualifications Framework (AQF) and the New Zealand Register of Quality Assured Qualifications (NZ Register). Details of the AQF and the NZ Register, as they were at the time of the development of ANZSCO, can be found at Appendixes B and C, respectively.
Previous experience refers to the time spent gaining work experience in related occupations or activities required for the competent performance of the tasks in an occupation. It is measured in months or years.
On-the-job training refers to the amount of training required after commencing work in an occupation for competent performance of the tasks in that occupation. It is measured in months or years, and may be undertaken at the same time as formal training.
The Tribunal considered whether it should assess, pursuant to Department Policy set out in PAM3, whether the first applicant’s post- qualification work experience met the “two years of on-the-job training” aspect of the “Certificate III including at least two years on-the-job training” skill level listed in ANZSCO for the unit group of Cooks (3514): CB 203 at [34].
The Tribunal found that the ANZSCO skill level for Cook did not contemplate or specify a Certificate III without 2 years of on the job experience, but with 2 years of post-qualification work experience: CB 203 at [34]. This finding was contrary to guidance set out in PAM3, including the passage set out by the Tribunal: CB 204 at [38], relating to the assessment of qualifications for the purposes of cl.187.234(c) of Schedule 2 to the Migration Regulations:
If the Certificate III was obtained without the formal on-the-job training component, to satisfy the skill requirement the applicant must have at least 2 years post-qualification experience, obtained on a full time basis or its part-time equivalent. The 2 years of post-qualification experience is taken to be equal to the on-the-job training component.
PAM3 is not a binding document, and does not set out considerations that the Tribunal is bound to take into account: El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J. The Minister, however, submits that the Tribunal erred in its approach to cl.187.234(c) of Schedule 2 to the Regulations by failing to consider whether the first applicant’s post-qualification work experience could have met the on-the-job training requirements listed in ANZSCO in relation to the Certificate III skill level for the occupation of Cook. In considering whether an applicant “had the qualifications listed in ANZSCO”, the Minister submits that (consistent with the position set out in PAM3) ANZSCO allows for a degree of flexibility in determining whether an applicant had the necessary on-the-job training. This is consistent with the ‘Definitions’ section of ANZSCO which states, under the heading “Interpreting ANZSCO Occupation Definitions”:
ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.
The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.
No jurisdictional error results from the Tribunal’s error because, as noted by the Tribunal, ANZSCO does not contemplate unpaid work counting towards relevant work experience: CB 203-204 at [34]. The first applicant’s only relevant post-qualification work at Salt N’ Pepper Indian Cuisine was voluntary: CB 77. Further, the applicants’ agent’s submissions included his understanding that the first applicant was given payments in cash and food, but that this was not officially recorded: CB 199 at [15]. To the extent, if at all, that the first applicant was paid it is not possible to determine for what period of periods of time, if any, that may have been for. Accordingly, the Tribunal was correct not to recognise any of the first applicant’s work at Salt N’ Pepper Indian Cuisine as relevant work experience.
Consistent with the PAM3 guidance referred to by the Tribunal: CB 203 at [33], the first applicant’s voluntary post-qualification work experience could not have satisfied the relevant requirements of ANZSCO for the purposes of cl.187.234(c) of Schedule 2 to the Migration Regulations, as the first applicant did not have any relevant paid work experience at the time of her Regional Employer Nomination Visa application. Accordingly, any error by the Tribunal in not interpreting cl.187.234(c) in accordance with PAM3 did not amount to jurisdictional error as it could not have affected the Tribunal Decision: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ. Further, the Court should not grant relief in respect of any error in the Tribunal’s approach to cl.187.234(c) of Schedule 2 to the Migration Regulations, as the Tribunal Decision would necessarily be the same on remittal: X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; [2002] FCAFC 3; (2002) 116 FCR 319; (2002) 67 ALD 355 at [45] per O’Loughlin J (and cases there cited).
The Tribunal Decision does not involve jurisdictional error by reason of the Tribunal’s approach to cl.187.234(c) of Schedule 2 to the Migration Regulations. Ground 1 must therefore fail.
Grounds 2, 3, 4 and 5
No particulars
The applicants have not provided particulars in support of the bare allegations set out in grounds 2 to 5. As this Court has recently observed:
8. There are no particulars in support of the applicant’s grounds. The failure to particularise a ground of review is itself sufficient to warrant dismissal of the grounds of review: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM; WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: see WZATH v Minister for Immigration & Border Protection [2014] FCA 969); AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.
ANR15 v Minister for Immigration & Anor [2016] FCCA 988 at [8] per Judge Lucev. On the basis of an absence of particulars alone grounds 2, 3, 4 and 5 must fail.
Natural justice/procedural fairness
No breach of the rules of natural justice, or the Tribunal’s procedural fairness obligations exhaustively set out in Division 5 of Part 5 of the Migration Act, is apparent in the Tribunal Decision or the materials before the Court, and no affidavit evidence was filed by the applicants to support this allegation. The Tribunal invited the applicants to attend a hearing, discussed its concerns with the applicants: CB 200 at [18], and gave the applicants additional time after the hearing to provide further submissions and supporting material which was submitted by the applicants: CB 153-185, and to which the Tribunal had regard: CB 200-201 at [19]-[20], CB 203-204 at [34]-[36] and CB 205-206 at [39]-[43]. In the above circumstances there was no denial of natural justice or want of procedural fairness in the Tribunal’s processes: Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
Improper exercise of power
No failure to comply with “procedures that were required by law” as alleged by the applicants is apparent in the Tribunal Decision, nor is it apparent how the Tribunal Decision can be said to be an improper exercise of the power. In the absence of particulars, or submissions (either oral or written), these allegations are not made out.
Grounds 2, 3, 4 and 5 do not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that the applicants have not established that the Tribunal Decision is affected by jurisdictional error. It follows that the application must be dismissed, and that the applicants must pay the Minister’s costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 May 2016
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