Joshi v MIMIA
[2005] FMCA 1116
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSHI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1116 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to grant temporary business entry visa – whether Regulation applied – whether error by relying on Australian Standard Classification of Occupations (ASCO). |
| Migration Act 1958, s.474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 (18 May 2005) Zeng Guang Wang v Minister for Immigration & Multicultural Affairs (1998) 30 FCA (30 January 1998) Ye Hu v John Rees and Minister for Immigration & Ethnic Affairs (1997) 160 FCA (4 March 1997) Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 |
| Applicant: | RAJEN KISHOR JOSHI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 755 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 12 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Solicitors for the Applicant: | Valerie Da Gama Pereira |
| Counsel for the Respondents: | Dr S. Donaghue |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the Migration Review Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for consideration according to law.
The First Respondent shall pay the Applicant's costs of the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 755 of 2004
| RAJEN KISHOR JOSHI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application leave was granted to the applicant to add as a second respondent the ‘Migration Review Tribunal’. Specifically an order was made that leave be granted to add the Migration Review Tribunal (the MRT) as a second respondent nunc pro tunc. The addition of the MRT as a second respondent is consistent with the recent High Court of Australia decision in the matter of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 (18 May 2005).
By way of background, the applicant is a citizen of India who had arrived in Australia on a student (temporary) (class TU) visa on 10 February 1998. He subsequently held a number of other student visas during the duration of which he obtained a diploma of computer systems from Chisholm Institute. On 29 August 2003 the applicant applied for a temporary business entry (class UC) subclass 457 (business (long stay)) visa (the visa). An associated application to sponsor temporary overseas employees was lodged by the applicant's prospective employer, ‘Track-N-Field Pty Ltd’. On 10 September 2003 the Department wrote to Track-N-Field Pty Ltd to advise that its application for standard business sponsorship had been approved. It is appropriate to set out an extract from correspondence as follows where the Department in part states,
“You may now nominate a business activity (ie, occupation) by completing the nomination part of DIMIA form 1196 with this office if you've not already done so.”
I note further a letter dated 11 September 2003 entitled "Business Nomination Approval". That document, also addressed to the Manager of Track-N-Field Pty Ltd, refers to the applicant as the nominated employee and next to the heading "Occupation" the author of the letter, a delegate of the Minister, states, "computing professional". Further in the same correspondence reference is made to the Australian Standard Classification of Occupations ("ASCO"). The ASCO code in that letter referred to by the delegate is "2231-79". For present purposes the relevant ASCO codes are as follows:-
“2231-79 Computing Professionals nec (‘not elsewhere classified’);
3294-11 Computing Support Technician.”
At the outset it is relevant to note that the skill level for computing professionals refers to the following:-
“The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Occupations in the group include:
Computer Analyst
Computer Scientist
Computing Tester
Database Analyst
Local Area Network (LAN) Controller.”
The skill level for computing support technician in the ASCO code is:
“The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.”
For a computing support technician the tasks include the following:-
·determines software and hardware requirements to provide solutions to problems;
·adapts existing programs to meet users' requirements;
·answers queries on software and hardware problems;
·installs and downloads appropriate software;
·ensures efficient use of applications and equipment.
In the computing support technician code, reference is made to the specialisation of "help desk technician" and "network support technician".
It is common ground that the ASCO codes to which I have referred are the relevant codes referred to by the MRT, though a key issue arising in this application is whether the MRT was in error in simply applying or seeking to apply the relevant codes rather than seeking to ensure that the appropriate requirements were satisfied by the applicant for the purpose of this visa application.
By way of further background, it is noted that after the delegate refused to grant the visa on the grounds that the applicant's background did not reflect the necessary requirements to qualify him as a computing professional, the applicant then applied to the MRT for review of that delegate's decision. The MRT affirmed the delegate's decision.
It is common ground that in order to be eligible for the visa the applicant was required to satisfy one of the subclauses of clause 457.223 of schedule 2 of the Migration Regulations 1994 (the Regulations). It is not in dispute that the only relevant subclause was subclause 457.223(4), which provides in part:-
“The applicant meets the requirements of this subclause if:
(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
...
(d) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(e) the applicant demonstrates, if so required by the minister, that he or she has the skills necessary to perform the activity ...”
The MRT in considering the application under the heading "Findings" refers to subclause 457.223 and it is not in dispute that it has correctly identified the relevant provisions of that subclause. For present purposes it is appropriate to set out the following paragraphs in the findings of the MRT:-
“29.The Tribunal after considering all the material of the position is satisfied that the nominated occupation of ‘E-Commerce Business Developer’ is contained in the Minor Group 223 of The Australian Standard Classification of Occupations (ASCO) Second Edition under the heading Computer Professionals. The skill level for all the positions listed in this category is stated as follows:
The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
30.According to statements from the visa applicant, the business sponsor and a reference dated 28 August 2003 provided by Holmesglen Institute of TAFE, the visa applicant has a Diploma of Computer Systems. This is below the level of bachelor degree with ASCO indicates is the entry requirement for a computing professional. With respect to work experience, the visa applicant has provided a work reference claiming 3 years relevant work experience. Again this is less than the 5 years experience indicated as required in ASCO.
31.The Australian Standard Classification of Occupations (ASCO) states that a Computing Support Technician (ASCO code 3294-11) provides technical advice and support to users of computer software and hardware, and includes the specialisations Help Desk Technician and Network Support Technician. The requirement of the nominated position to ‘write and maintain [a] network system’ appears to the Tribunal to indicate that the position is at a level above that of a computer support technician.
32.It has been submitted, and the Tribunal agrees, that it is bound by reference works such as ASCO when determining an applicant’s usual occupation. The business sponsor has stated in its application that the position was for an ‘E-Commerce Business Developer’ and although there is no position with the same exact title in ASCO, the Tribunal is satisfied that this position falls under the heading of Computing Professional. The Tribunal is satisfied that the position, however named, falls under the heading of Computer Professional and not under the heading of Computer Support Technician, where the skill level requirement is an AQF Diploma or three years relevant experience.
33.Clearly the visa applicant falls short of the skills requirement listed in ASCO for the occupations listed under the heading Computer Professional including Computing Professionals not elsewhere classified. The Tribunal finds that the visa applicant does not have the personal attributes or employment background consistent with the nature of the activity to be performed or the skills necessary to perform the activity. The visa applicant does not satisfy subclause 457.223(4)(d) or (e).
CONCLUSION
34.The Tribunal finds that the visa applicant’s proposed employer has been approved as a business sponsor as required by subclause 457.223(4)(a) but the visa applicant does not have the personal attributes and employment background or skills necessary to perform the activity as required by subclause 457.223(4)(d) or (e). The visa applicant does not meet the criteria for a Subclass 456 visa, or the criteria for a Subclass 457 visa. The Tribunal must affirm the decision under review.”
In the amended application filed on 10 November 2004 the applicant claims that the decision was made without jurisdiction or is affected by jurisdictional error because the MRT had asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material. The applicant provides the following particulars:-
“The tribunal made an error by classifying my position as a computer professional when my nominated position should have been classified as a computing support technician. If the tribunal had used the ASCO code 3294-11, computing support technician, then my qualifications would have fitted the required skill level. Also the nominated position has elements relating to programming and design in it and it also contains all the elements that are relevant to the occupation computing support technician. I was working 20 hours a week and I consider this to be full‑time employment given the general skills booklet 6 states that intending migrants to be considered to be working full‑time must work at least 20 hours a week.”
Error in classifying the position
It is clear to me that the significant issue agitated for and on behalf of the applicant is the claim by the applicant that the decision of the MRT was affected by jurisdictional error in that the MRT had wrongly placed undue emphasis upon the perceived relevant ASCO code, namely, the position of computing professional. In support of the submission counsel for the applicant referred the court to a number of authorities. In particular reference was made to the Federal Court decision in the matter of Zeng Guang Wang v Minister for Immigration & Multicultural Affairs (1998) 30 FCA (30 January 1998). In particular, under the heading "Authorities" the following relevant passages appear:-
“During the course of argument, counsel referred to several cases relating to the points test. I will mention two of them. The first case is Rahman v Minister for Immigration and Multicultural Affairs (6 February 1997, unreported). Davies J held the decision maker had erred in having regard to a document issued by the Department of Immigration and Multicultural Affairs called "Procedures Advice Manual" which contained instructions as to the interpretation and application of ASCO. His Honour said it was "not for the Minister or any member of his department to lay down what is the standard for a relevant occupation" -
"If there is an occupation for which in Australia a trade certificate is required, it is plain that standards for that occupation will be laid down either in a document such as the dictionary or in other documents such as awards or in the publications of educational authorities."
Davies J said that, ultimately, the facts are for those who must determine the application; if it happens that a standard set out in ASCO is obsolete, the case must be determined by reference to a more up-to-date standard.
Ye Hu v Rees (Einfeld J, 4 March 1997, unreported) also concerned a decision made by Mr Rees. Mr Ye was trained as a scientist but had been working in the field of electrical engineering. The issue was the nature of his "usual occupation". It is not necessary to recite the facts of the case but it is relevant to note this observation of his Honour:
"The determination of such an application requires more than a narrow matching process between an applicant's tasks and an Australian Standard Classification of Occupations (ASCO) occupational definition. The sensible and correct approach requires the ascertainment of the skills of an applicant and how those skills are being applied in the workplace for remuneration."
Later, Einfeld J pointed to the problem of reverse reasoning:
"In my opinion, the decision-maker fell into error by employing a reverse reasoning process. He started by classifying the applicant as an engineer because some of the duties performed by the applicant happened to coincide with some of the duties listed for an engineer. But he did not consider the applicant against the more sensible classification of being a physicist, having regard to the fact that his qualification was a Bachelor of Science majoring in physics. Secondly, the decision-maker ignored possible alternatives including obvious scientific alternatives. These two factors amount to errors of law."
The decision of Einfeld J was upheld on appeal: see Minister for Immigration and Multicultural Affairs v Ye Hu (von Doussa, Moore and Sackville JJ, 7 November 1997, not reported). The Full Court cited with approval the observations of Kiefel J in Morais v Minister for Immigration, Local Government and Ethnic Affairs (1995) 54 FCR 498 at 500 concerning the relationship between the qualifications held by a person and that being the person's "usual occupation". Their Honours made the point that two people may be performing substantially the same duties on behalf of an employer, yet their qualifications and employment history may mean they each have a different "usual occupation". It is important to note that, in Ye Hu, the Court regarded the determination of an applicant's "usual employment" as a finding of fact, to be made having regard to the whole of the material before the decision-maker. The Court gave no support for the view that it was appropriate for a decision-maker simply to determine which of the occupations set out in a compendium such as ASCO appeared most nearly to describe an applicant's occupation.”
In the same case under the heading "Conclusions" Wilcox J states the following:-
“The nature of Ms Wang's usual occupation is a matter of fact. It was something to be determined by Mr Rees, as the delegate of the Minister. However, a determination about that matter that reflects an erroneous legal approach is bad in law and liable to be set aside on review.
The reasons given by Mr Rees for determining that Ms Wang's usual occupation was importer and exporter are sparse in the extreme. But it is apparent Mr Rees approached his task by asking himself which ASCO classification her activities seemed most nearly to fit. This approach was incorrect. Item 6102 of Schedule 6 made no reference to ASCO. The item referred to an applicant's "usual occupation". In considering how Ms Wang's mix of duties and experience ought properly to be described, Mr Rees was entitled to consult ASCO or any other relevant reference work. But he was not bound by the classifications contained in ASCO; there must always be a possibility that the usual occupation of an applicant will not aptly be described in ASCO at all.
I have mentioned Mr Robinson's argument that Mr Rees should not himself have determined Ms Wang's usual occupation, but should have referred that question to NOOSR or the Department of Industrial Relations. That is incorrect. Item 6102 of the Regulations requires that the applicant's "usual occupation" be "not a priority occupation (para (a)) but be an occupation for which, in Australia, a degree or trade certificate is required or is a professional-equivalent occupation" (para (b)). In determining whether a particular applicant meets those requirements the departmental decision-maker necessarily has to determine the applicant's "usual occupation". It is only at the next stage, in considering the application of para (c) of the item, that the decision-maker is bound to seek an assessment by the "relevant Australian authority". That division of function is logical; para (c) is concerned with matters needing a degree of expert judgment, whereas paras (a) and (b) involve mere findings of fact.
A decision-maker required to determine the "usual occupation" of an applicant should consider the nature of the duties currently being undertaken by the applicant and his or her training and previous work experience and then determine how this composite of duties, training and experience would be described in Australia. In relation to some occupations, the particular industry in which the person is engaged may be significant; in others it may not. For example, "journalist" may be a sufficient description of the usual occupation of a person trained in journalism and working as such, without reference to whether the person is working in the print or electronic media. Similarly, perhaps, with a human resources officer of a company.
As I have said, in determining an applicant's usual occupation, the decision-maker may gain assistance from reference works such as ASCO, but it is important the decision maker not feel bound by any of them. Once the decision-maker has determined the proper description in Australian parlance of the applicant's usual occupation, he or she must then ascertain whether this is an occupation for which, in Australia, a degree or trade certificate "is required" or is a "professional-equivalent occupation", that is an occupation specified as such in a Gazette notification.
There was some discussion at the hearing about the meaning in para (b) of the phrase "is required". So far as counsel are aware, there is no authority on the matter. Mr Robinson submitted the word "required" does not necessarily refer to a legal requirement; the requirement might be one imposed by the marketplace. If, in practical terms, it is not usually possible to obtain employment in a particular occupation in Australia without a degree or trade certificate, Mr Robinson argued this is an occupation for which a degree or trade certificate "is required".
The Minister accepted this approach. In a written submission forwarded after the hearing, the solicitor for the Minister drew attention to the definition of "require" in the Macquarie Dictionary and suggested the applicability of the first three meanings:
"1. to have need of; need;
2. to call on authoritatively, order, or enjoin (a person etc) to do something;
3. to ask for authoritatively or imperatively; demand;’
I am content to apply the first of these meanings. If a particular qualification is necessary, as a practical matter, in order to obtain employment in a particular occupation, that qualification is "required", even though not by law.
As I have indicated, Mr Rees' error was to approach the determination of Ms Wang's occupation, not as a matter of fact but as a matter of classification in ASCO. This was an error of law. It may have affected his ultimate decision. Accordingly, the decision refusing Ms Wang's application must be set aside and the application remitted to the Minister for a fresh determination in accordance with law.”
It is noted that in his decision Wilcox J refers to the decision of Einfeld J in Ye Hu v John Rees and Minister for Immigration & Ethnic Affairs (1997) 160 FCA (4 March 1997) which had been upheld by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Ye Hu (per von Doussa, Moore and Sackville JJ 7 November 1997).
Essentially the complaint in relation to the MRT decision is that it has, contrary to the authorities to which I have just referred, simply determined which of the occupations were set out in the ASCO classification and then determined the outcome of the visa application accordingly. There is no doubt in the present case that this applicant could not on his current qualifications be able to fulfil the skill level required of a computing professional under the ASCO classification 2231-79. Hence it is argued for and on behalf of the applicant that a proper reading of the MRT decision reveals that it did, contrary to the authorities to which I have referred, simply rely upon the ASCO classification in reaching its conclusion.
The respondent has submitted that in fact the decision of the MRT did not turn upon the ASCO classification that was assigned to the applicant's proposed role with Track-N-Field Pty Ltd. Rather, it was submitted that the classification was used merely as a factual aid in determining whether the applicant possessed the skill level required to perform the tasks identified by the sponsoring employer. That judgment, it was submitted, was required of the MRT pursuant to clause 457.223(4) of the Regulations. The conclusion of the MRT, it was submitted, was based upon the job description provided by the sponsoring employer. A finding as to the skill level required in order to carry out the nominated role, it was argued, was a finding of fact based on the material before the MRT and hence could not be the subject of any criticism or a finding that there had been an error of law even if this court were to conclude that there had been a wrong finding of fact (see McHugh J in Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 481-482 [35]-[38]).
It was further argued for and on behalf of the respondent that the visa could not have been granted even if the MRT had concluded the applicant's role should properly have been classified as "computing support technician". It was submitted the reason for that is that clause 457.223(4)(a) provides that one of the criteria for the grant of the visa is that "the activity" in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer. In the present case it was submitted the activity the subject of the "approved business nomination" was the occupation described as "computing professional". This was referred to earlier in this judgment. It was argued that in the absence of a new business nomination approval, it follows that the applicant was eligible for the visa only if the role that he proposed to perform fell within the existing approved business nomination; that is, only if he was to work as a computing professional. According to the submissions of the respondent, it follows that even if the MRT had accepted the applicant's argument that the role should have been given a lower classification and that he would have complied with that classification and therefore satisfied clauses 457.223(4)(d) and (e), the consequence of the acceptance of that argument would have been that he would have become ineligible for the visa because he would not have satisfied clause 457.223(4)(a).
In considering the substantive argument for and on behalf of the applicant that the MRT had simply relied upon the ASCO classification to determine the outcome of this classification, it is necessary to have regard to the findings of the MRT set out earlier in this judgment. Whilst it is true that the MRT has referred to the correct criterion at issue in the case and indeed has also, as submitted by the respondent, made reference to the ASCO classification and correctly stated that "it is not bound by reference work such as ASCO when determining the applicant's usual application", it is my view that despite that statement the MRT has in fact proceeded to rely simply on the ASCO classification. To that extent I am satisfied that it is in error.
It is clear to me that the MRT has indeed simply considered the skill requirements listed in ASCO classification 2231-79 and on the material this has led it to conclude that the application should fail. Paragraph 32 of the findings set out above in this judgment, whilst leading to a conclusion that the visa applicant does not satisfy subclause 457.223(4)(d) or (e), essentially relies upon the obvious fact that the applicant does not satisfy the ASCO classification for the occupation listed under the heading ‘Computer Professionals’. No attempt in my view has been made to properly consider whether or not the applicant had personal attributes in an employment background that are relevant to and consistent with the nature of the activity to be performed and the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity consistent with subclauses 457.223(4)(d) and (e) of the Regulations. To that extent
I am satisfied that the MRT has erred and I apply in reaching that finding the authorities, to which I have referred earlier in this judgment, relied upon by the applicant.
A further issue raised, however, for and on behalf of the respondent, if correct, may well lead to a conclusion that any error made by the MRT would have no practical consequence in circumstances where if the respondent's submission is correct, the applicant would still fail as the application in this instance is one where the visa could not have been granted even if the MRT had adopted the classification of "computing support technician". In considering the operation of clause 457.223(4)(a) which clearly provides that, as set out above, "the activity in which the applicant proposed to be employed in Australia by a person is the subject of an approved nomination by the employer",
I am not satisfied that that means in the circumstances that where the Department by a delegate, as in the present case, in the correspondence dated 11 September 2003 entitled "Business Nomination Approval" inserts as the occupation "computing professional", that that insertion automatically provides for the appropriate criteria which must then be determined either by a delegate or on review by the MRT.
If it was simply the case that the business nomination approval document inserting the occupation predetermined the ASCO code and in a sense "locked" the applicant into that category, then it is difficult to see how there is any or any adequate or indeed meaningful process to be undertaken by the MRT in applying the relevant subclauses of clause 457.223. That letter merely indicates a nominated occupation but does not in my view prevent a delegate and/or on review the MRT from properly applying the criteria under subclause 457.223(4)(d) and (e). If the insertion of the occupation in the business nomination approval determined finally the outcome of a visa application, then it is difficult to see how any further consideration of the issue can be undertaken by either the delegate or the MRT. In my view, the responsibility of the delegate and the MRT is to properly consider the subclause and not be bound by the delegate's insertion in the business nomination approval of a specific occupation. Consideration must be given to all the material provided by both the applicant and the sponsoring employer. In my view, the respondent's submissions therefore in relation to this issue should fail.
Accordingly, I am satisfied for the reasons given that the MRT has erred in law in the manner in which it approached its task, that is, that by effectively relying on the ASCO classification and not considering the material and then reaching a decision based not simply on the ASCO classification but rather on the criterion set out in the appropriate subclause of the regulations to which I have referred. That error I am satisfied is a jurisdictional error as the MRT has in fact applied the incorrect law in the exercise of its task and accordingly
I am satisfied there is a jurisdictional error committed by the MRT and hence the decision is not protected by s.474 of the Migration Act.
The appropriate order is that the decision of the MRT be set aside and the matter be remitted to a differently constituted tribunal for consideration according to law. The First Respondent shall pay the Applicant's costs of the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 August 2005
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