Gandhura v Minister for Immigration
[2019] FCCA 1469
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GANDHURA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1469 |
| Catchwords: MIGRATION – Application for temporary graduate visa – nominated occupation that of a chef – failure by applicant to satisfy occupation criteria – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth) r.1.15F, cl. 485.222 Migration Act 1958 (Cth) ss.476 |
| Cases cited: Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 |
| Applicant: | GURWINDER SINGH GANDHURA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 862 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 23 May 2019 |
| Date of Last Submission: | 23 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr. R. Lashand of Sabdia Lashand Lawyers |
| Solicitors for the Respondent: | Mr T. Hillyard of Sparke Helmore |
IT IS ORDERED THAT:
The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
The application for review filed on 21 August 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 862 of 2018
| GURWINDER SINGH GANDHURA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India who arrived in Australia as the holder of a subclass 573 (higher education sector) visa in June 2014. In August 2017, the Applicant applied for a temporary graduate (class VC) (subclass 485) visa. The nominated skilled occupation included in such application was that of a chef. The Applicant indicated that he had completed qualifications by way of a Diploma of Business, a Certificate IV in Business, an Advanced Diploma of Business and a Certificate IV in Commercial Cookery.
On 26 September 2017, a delegate of the Minister refused to grant the visa on the basis that the Applicant did not meet the criteria as set out in clause 485.222 of schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 485.222 provides as follows:
“485.222 Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.”
On 10 October 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 9 May 2018, the Tribunal invited the Applicant to attend a hearing scheduled for 24 May 2018. The Applicant’s representative provided a lengthy submission in support of the application, asserting why the Applicant’s qualifications were “closely related to” the occupation of chef.
On 24 May 2018, the Applicant appeared at the hearing to give evidence and present arguments. He was assisted by a representative at that time.
On 26 July 2018, the Tribunal affirmed the decision of the delegate not to grant the visa to the Applicant.
On 21 August 2018, the Applicant filed an application for review of the decision of the Tribunal pursuant to the provisions of s. 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
At the hearing before the Court today, it was conceded by Mr Lashand on the part of the Applicant that the commercial cookery course undertaken by the Applicant was not a course which satisfied the provisions of Regulation 1.15F of the Regulations. In particular, it was conceded that the commercial cookery course was not a course completed over at least two years of academic study. It was a course completed over one year of academic study. Regulation 1.15F provides as follows:
“1.15F (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.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).”
In circumstances where the commercial cookery course was insufficient to satisfy the course of study requirements, the Applicant was in those circumstances required to rely upon his academic study as constituted by an Advanced Diploma of Business and a Diploma of Business. It was asserted by Mr Lashand on behalf of the Applicant that such courses of study were “closely related to” the Applicant’s nominated skilled occupation of chef, and that in those circumstances, the Tribunal had erred in finding, as it did in [47] of its reasons, that the four subjects undertaken by the Applicant were relevant to only one or two out of the eight listed tasks for a chef.
At [47] of its reasons, the Tribunal found that out of the multiple subjects for both diploma qualifications obtained by the Applicant, when considered the evidence both individually and collectively, those subjects did not amount to qualifications which were closely related to the nominated skilled occupation the subject of the visa application. The Tribunal drew a distinction between the occupation of a chef, as opposed to the occupation of a restaurant owner, when considering the criteria against which the relevant academic qualifications had to be assessed.
During the course of submissions made on behalf of the Applicant, the Court was referred to a Full Court decision in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115. At [53], the Court said as follows:
“53. Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.”
In the above paragraph, it is of note that reference was made to the case of Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 at [26]. Further, reference was made to the fact that the Applicant in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 was a pastry cook whose course content relied on for the purpose of his visa application was a business management course. It is noted that the Court upheld the decision of the Tribunal in that case, in that it found that the Tribunal did not ask itself an incorrect question when determining that the qualifications relied upon by Mr Dhillon were not closely related to his nominated profession of pastry cook. The finding of the Tribunal in that case was said to be open.
In this matter, Mr Lashand has conceded that the facts in Dhillon are almost exactly the same as the facts before this Court. At [49] of its reasons, the Tribunal said as follows:
“49. The Tribunal accepts that many of the subjects undertaken by the applicant as part of the Advanced Diploma of Business and the Diploma of Business are of relevance and/or complementary and useful to some of the duties of a Chef. However, that is insufficient to establish that these qualifications are ‘closely related’ to the occupation of Chef.”
In all of the circumstances, the Tribunal did not err in finding that the course of study undertaken by the Applicant was not closely related to the nominated occupation of chef.
The Tribunal closely examined each of the claims made on behalf of the Applicant. In that regard, the grounds of the application relied upon at the hearing were those as set out in paragraphs 1 and 4 - 1 and 7 of the initiating - originating application. Those grounds are as follows:
“1. The Department of Home Affairs and Migration & Refugee Division erred in determining on the basis that applicant (Mr Gurwinder Singh Gandhura) didn’t satisfy the requirement of cl485.222 of the Schedule 2 to the Regulations for study and stay in Australia.
…
7. Both Department of Home Affairs and MRD failed to judge whether there was any non-compliance from the applicants while holding previous visa. They were unable to determine the compliance for previous visa.”
When addressing the issues before the Tribunal, the Tribunal did not fail to make an obvious inquiry about a critical fact. [1]
[1] Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] per French
CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel, Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
No jurisdictional error has been demonstrated on the part of the Tribunal.
The application for review is without merit and is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan.
Date: 6 June 2019
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