Ink Group Pty Ltd v Immigration Review Tribunal

[1995] FCA 260

IN THE FEDERAL COURT OF AUSTRALIA )

)No. NG155 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN:INK GROUP PTY LIMITED and ANOTHER

Applicant

AND:IMMIGRATION REVIEW TRIBUNAL

Respondent

CORAM:WILCOX J

PLACE:    SYDNEY
DATE:     24 FEBRUARY 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   This is an application under the Administrative Decisions Judicial Review Act 1977 for review of a decision of the Immigration Review Tribunal constituted by Mr Steve Karas, Senior Member. The review concerned an application made by the first applicant, the Ink Group Pty Limited, as employer of the second applicant, James Alan Pugsley. It appears that Mr Pugsley is a British citizen. He arrived in Australia in November 1989 and was granted a temporary entry permit allowing him to stay in Australia until 14 October 1990. In about February 1990, he saw and answered an advertisement published by the Ink Group in the Sydney Morning Herald seeking applications for the position of a credit clerk. He was accepted for this position and has worked for the company ever since that date, having been promoted on a number of occasions.
         On 10 October 1990, shortly prior to the expiration of his temporary entry permit, the Ink Group made an employer nomination scheme application for Mr Pugsley to be granted permanent residence in Australia.  That application was refused both at first instance and on internal review.  The matter then went to the Immigration Review Tribunal and Mr Karas heard the matter late in 1993. 

During the hearing before Mr Karas, evidence was given by Mr Pugsley, and apparently also by one of the more senior officers in the company, as to the nature of the work which he undertook.  It is unnecessary to go to the transcript in any detail but it is apparent from the transcript that Mr Karas was clearly informed that Mr Pugsley was doing more than clerical duties.  Reference was made to the necessity for him to be in contact with clients regarding credit arrangements and to negotiate with clients as to payments of accounts, whilst at the same time retaining or attempting to retain their good will and future business.  Reference was also made to his position as a staff supervisor.  The position nominated in the employer nomination application as being the position occupied by Mr Pugsley and for which he was desired to be retained was "senior credit controller".  A salary of $24,000 per annum was mentioned. 

The matter fell to be determined by Mr Karas pursuant to the Migration (1989) Regulations.  Those regulations are no longer in force but they applied to this
case because of the date upon which the application was made.  It is unnecessary to go through the jungle of regulations in order to summarise all of the criteria which had to be satisfied before the grant of an employer nomination visa.  It is sufficient to say that there were two additional criteria which are relevant to the present case: 

"51(1)The additional criteria in relation to an employer nomination visa are the following criteria:

(a)the applicant is nominated, in accordance with the approved form, by an employer operating in Australia, for a specified position, or a position in a group of specified positions, sought to be filled by that employer, being:

(i)a position that is to be filled on a permanent, full-time basis; and

(ii)a position in respect of a highly skilled occupation;

(b)  ...

(c)  ...

(d)the employer satisfies the Minister that it has not been possible to find a suitable applicant for the position in Australia;"

Mr Karas dealt with paragraphs (a) and (d) separately.  In relation to paragraph (a) he said this:

"It is a requirement under regulation 51 that the required position be 'highly skilled'.  It is the 'position' which when viewed objectively that has to be highly skilled as defined in regulation 51(2).  Formal training referred to in regulation 51(2) would include any structured form of training like an apprenticeship as well as post-secondary educational qualifications.  The position of 'Senior Credit Controller' was described in the ENS form as controlling the company's debtor ledger and controlling and maintaining all its clients accounts.  Although it was submitted that other qualities like getting on with people, keeping good relations with clients, use of English, an ability to negotiate with clients and the like were necessary to the position, in order to determine whether the position nominated is a 'highly skilled' one regard has to be given to the Australian standards or requirements for that position.

The position nominated appears to have been a graduation from the Principal's earlier position with the company as a 'credit clerk'.  The Australian Standard Classification of Occupations Dictionary (ASCO) refers to the position of 'accounts clerk (ASCO 530 1-13) as one that 'undertakes routine documentation and general tasks associated with the monitoring of creditor and debtor accounts'.  The skill required for this position in Australia is 'on-the-job training of 1-4 months'.  Even if one were to consider the position in the light of the similar 'credit' type occupations listed in ASCO - Major Group 5 the position of senior credit controller could not be described as a highly skilled one in accordance with regulation 51(2).  It was submitted that the position required an 'amalgam of skills'.  These skills were largely in the 'credit' area referred to, which in Australia are not 'highly skilled' as defined."

On behalf of the applicants, it is submitted that Mr Karas fell into error of law in the way he dealt with the issue arising under paragraph (a).  No complaint is made of the statement in the second sentence of the quoted passage that it is necessary to consider the relevant "position" objectively in order to determine whether it is highly skilled in accordance with the definition in sub-reg. 2.  This definition is as follows:

"'highly skilled occupation' means an occupation requiring

(a)formal training, or equivalent experience, relating to that occupation, for a period of not less than 3 years; and

(b)an appropriate record of employment in that occupation."

Nor is there any complaint about the following sentence, or the statement that the position of senior credit controller was described as controlling the company's debtor ledger and controlling and maintaining all its clients' accounts.  However, counsel for the applicants submits that Mr Karas then fell into error by treating the qualities of getting on with people, keeping good relations with clients, negotiating, etc. as being "other" qualities.  That is to say, qualities that are extraneous to the essential features of the position of senior credit controller.  The case for the applicants is that these qualities were an essential part of the make-up of an effective senior credit controller and that they were therefore essential components of the position. 

It seems to me that the evidence that had been given to Mr Karas is all in favour of that proposition.

In the following paragraph Mr Karas, according to the argument of the applicants, compounded the mistake that he had made by looking only at one aspect of the functions of a senior credit controller - that is to say, the purely clerical functions - and then looking to the Australian Standard Classification of Occupations Dictionary for an equivalent
description.  Mr Karas found a definition of accounts clerk which, it will be noted from the extract above, is defined as a person who "undertakes routine documentation and general tasks associated with the monitoring of creditor and debtor accounts".  He then concluded that this was not a highly skilled occupation in accordance with the definition in regulation 51(2).

Counsel for the applicants say that this was erroneous, because Mr Karas did not address the necessary characteristics of the particular position but stripped it of part of its components and then compared it with something which it was quite unlike.  He then, not surprisingly, concluded that a position containing part only of the relevant skills was not highly skilled.

It seems to me that counsel's submission is correct.  It may be legitimate for a person in Mr Karas' position to have regard to a reference work such as the Australian Standard Classifications of Occupations Dictionary; but it is essential, if such a reference is to be made, that the decision maker continue to concentrate on the features of the particular position under consideration.  The problem of using a reference work such as the ASCO dictionary is that it tends to distract the decision maker from the real question - namely, the essential characteristics of the position which is under discussion - by reference to the characteristics of some other position which may or may not fall into the same category in terms of skills.  It seems to me that it is better in this exercise for a decision maker to identify in his or her own mind, and perhaps set out, what are the elements of the position under consideration and then compare those elements directly with the definition of highly skilled occupation in regulation 51(2).  

I think it is apparent that the course taken by Mr Karas involved legal error and that, in this respect, the applicants make a valid criticism of the decision.

However, it was also necessary for the applicants to persuade the tribunal that para. (d) of regulation 51(1) was satisfied.   This paragraph requires the employer to satisfy the Minister:  "That it has not been possible to find a suitable applicant for the position in Australia".

Mr Karas went on to consider that question.  He did so relatively briefly, but what he said was more than a passing observation.  It amounted to a finding in respect of para. (d).  Mr Karas said this:

"Furthermore the Tribunal has some difficulty accepting that in the circumstances 'it has not been possible to find a suitable applicant for the position in Australia (regulation 51(1)(d)).  This is generally regarded as the 'labour market testing' requirement for the employer nomination visa.  The Tribunal notes that there appears to have been no general advertising at the time of the application for the position of 'senior credit controller' by the company.  The CES listing was for an 'assistant credit manager'.  The advertisements said to have been placed in the Sydney Morning Herald were for the position of a 'credit officer' (see note from the National Credit Controller of the company dated 14 November 1990).  The earlier advertisement in February 1990 furthermore did not reflect the stated requirements for the position like membership of the Australia Institute of Credit Management and the salary.  Material submitted to the Tribunal after the hearing does not alter the Tribunal's conclusion in this area.  Although the letters attached to the adviser's letter to the Tribunal dated 10 October 1993 indicate that advertising for the position of a 'credit controller' took place, in one instance in May 1992 and some candidates were forthcoming, the Tribunal on balance is unable to alter its finding in this regard."

Counsel for the applicants criticises what is said in this paragraph because of the reference in the second sentence to "labour market testing".  It is said that this is to impose a different criterion than that specified in the regulations, that Mr Karas directed himself that it was necessary for the employer to satisfy him that it had carried out some type of general market survey. 

I cannot read the sentence in this way.  It appears that the phrase, "labour market testing", comes from a heading in the form used in employer nominations.  It is a piece of jargon intended to refer to the element embodied in para. (d) of regulation 51(1), and probably in other paragraphs of other regulations as well.  If Mr Karas had allowed himself to be distracted by the title, "labour market testing", then I think counsel would have a point, perhaps much along the same lines as the point in respect of para (a); but he did not.  Mr Karas immediately followed the reference by a series of findings of
fact which are incontrovertible and have not in fact been controverted.

Mr Karas was aware that, at about the time of the application which he was considering, the employer had advertised the position, although under a slightly different title, namely, "assistant credit manager", at the Mascot office of the Commonwealth Employment Service.  It appears that the employer's principal place of business is at Waterloo.  This perhaps explains why Mascot was selected.   Although there were apparently a couple of applicants as a result of the CES listing, neither of them was satisfactory.

Mr Karas was aware of this.  Nonetheless, it was correct for him to refer to there having been no "general advertising" at that time.  There was no newspaper advertising in about October 1990; or indeed, so far as the evidence revealed, at any other relevant time.  I think that all Mr Karas was saying in this paragraph is that, having regard to the paucity of the advertising, he was not satisfied that it would not have been possible for Ink Group to obtain a suitable applicant for the position of senior credit controller.  That was a finding of fact.  I do not see any error in the legal reasoning.  It was a finding which, in my opinion, was well open to Mr Karas, having regard to the incontrovertible facts.  This element of his decision is not vulnerable to attack in this Court.  

The question then arises as to the course that ought to be taken.  Counsel for the applicants submits that, as there has been a legal error, the decision should be set aside and the matter referred back to the Immigration Review Tribunal for further consideration.

If the error was an error in respect of a matter of cumulative significance - that is to say, there was an error in one step of a process which culminated in a particular decision - this approach would undoubtedly be correct.  If there is a false link in the chain of reasoning, then the end is invalidated even though the decision maker might perhaps have reached the same conclusion without legal error in a different way; but that is not this case.  Here there were relevantly two issues, in relation to each of which the applicants bore the onus.   In the view I take, Mr Karas misdirected himself about one of them but he did not misdirect himself about the other.  It would have been quite competent for him to have disposed of the matter totally by reference to para. (d) and in an unexceptional way.  If the matter was returned to the Tribunal, it would be open to the Tribunal, whether constituted by Mr Karas or anybody else, to deal with the matter simply by reference to para. (d).  A decision could be written simply in terms of the reference to para. (d) which I have set out above and it would be invulnerable to attack in this Court.  In that situation there is no utility in the matter being referred to the Tribunal.  The decision was correctly rejected on the basis of the Tribunal's findings of fact open to it in relation to para. (d).  The error made in regard to para. (a) does not affect that conclusion.  Accordingly, I am of the opinion that the application for review should be dismissed.

Perhaps I might say, before parting from the matter, that I come to this conclusion with some regret; from Mr Pugsley's point of view and also from the point of view of the Ink Group.  It appears that he is a young, enthusiastic worker who has served his employer well.  The employer is obviously keen to retain his services and has gone to some effort to do so.  So far as the information before me reveals, it would seem to be in the interests, of both the employer and the Australian community generally if he could stay in Australia and his present employment.  It gives me no pleasure to reach a conclusion contrary to that end.  However, the regulations are in the form they are and I must abide by them.  There may be some other method by which Mr Pugsley can regulate his situation.  From a personal point of view, I hope that will be possible.

However, the order of the Court must be that the application be dismissed, I think with costs, Mr Williams.

[Counsel addressed.]

The order will have to be that the application be dismissed with costs.

I certify that this and the preceding eleven (11) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.

Associate:

Dated:    24 February 1995

APPEARANCES

Counsel for the Applicant:       N J Williams

Solicitors for the Applicant:        Lange & Co

Counsel for the Respondent:      E A Wilkins

Solicitors for the Respondent:    Australian Government Solicitor

Date of hearing:                 24 February 1995