Kabir v MIAC
[2010] FMCA 577
•3 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KABIR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 577 |
| MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – review of decision of Migration Review Tribunal – where applicant applied for skilled visa and nominated ‘cook’ as his nominated skilled occupation – where Tribunal determined that applicant’s accounting qualification was not “closely related” to occupation of cook, relying on ASCO definition rather than applicant’s actual duties – whether Tribunal failed to conduct a review as required by Migration Act 1958 (Cth) s.348 – whether Tribunal failed to give a proper genuine and realistic consideration to the application – whether the Tribunal failed to consider the full breadth of the term “skilled occupation” – whether the Tribunal erred in its consideration of the “closely related” requirement in Clause 485.213 of Schedule 2 of the Migration Regulations 1974 (Cth) – whether Tribunal considered departmental policy PAM3 in reaching its finding – whether Tribunal required to look beyond generic ASCO definition and take into account applicant’s particular duties – whether Tribunal must consider Departmental policy – judicial comity – merits review – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.348, 360, 474, 476 Migration Regulations 1974 (Cth) R1.15F, cl.485.213, Sch. 2 |
| Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65; 92 ALR 167; 16 ALD 611; [1988] FCA 400 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; [1994] FCA 1052 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 followed El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 Vishnumolakala v Minister for Immigration [2006] FMCA 1209 followed Pasula v Minister for Immigration & Anor [2010] FMCA 219 Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 |
| Applicant: | HASIBUL KABIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 46 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 May 2010 |
| Date of Last Submission: | 31 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Tynan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 46 of 2010
| HASIBUL KABIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
The Applicant, by his amended application, seeks the following:
a)A writ of certiorari quashing the Tribunal decision;
b)A writ of mandamus remitting the matter to the Tribunal requiring it to determine the matter according to law; and
c)A writ of prohibition to prohibit the Minister from acting upon or giving effect to the Tribunal decision.
The Applicant relies on the following grounds:
a)Ground 1 – the Second Respondent committed jurisdictional error in that it failed to conduct a “review” as was required by s.348 of the Migration Act.
b)Ground 2 – the Second Respondent committed jurisdictional error by failing to give a proper genuine and realistic consideration to the merits of the application.
c)Ground 3 – the Tribunal erred in failing to consider the full breadth of the term “skilled occupation” in the context in which it appears in Regulation 485.213(b).
d)The Tribunal erred in its consideration of the “closely related” requirement in Clause 485.213 of Schedule 2 of the Migration Regulations.
The Minister has filed an amended response, claiming that the amended response does not establish any jurisdictional error in the Tribunal decision.
Background
The Applicant applied for a Skilled (Provisional) (Class VC) visa on 7th March 2008. He provided a statement with his application in which he claimed that his occupation is a cook and that he aspires to managing and owning a restaurant. He stated that he had undertaken a Certificate III in Hospitality – Commercial Cookery and a Diploma in Accounting.
The Applicant gave his reasons for studying accounting, being:
As a restaurant owner, I realise that I must be able to run the business side of a restaurant…Accordingly, I believe, to become a restaurant owner, I should be familiar and capable of accounting principles in order to create or maintain a good control of the restaurant operation.[1]
[1] See Court Book at page 13
A delegate of the Minister refused the application for a visa on 18th February 2009. In the Decision Record, the delegate referred to the relevant section of the Department’s policy manual, PAM3 – Migration Regulations Sch 2 Visa 485 – Skilled – Graduate – The Visa 485 Main Applicant – Section 8, and quoted from paragraph 8.2 of that document:
8.2 Closely Related
Even if an applicant otherwise meets the 2 year study requirement described in 485.213(a), 485.213(b) requires the completed Australian qualification/s to be ‘closely related’ to the applicant’s nominated skilled occupation.
The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
Under policy, circumstances of a qualification not being ‘closely related’ to the nominated occupation include where the qualification is not related to the nominated skilled occupation – for example, an applicant’s nominated occupation is registered nurse but they satisfied the 2 year study requirement on the basis of having completed a Bachelor of Commerce.
Another instance in which policy does not consider qualifications to be ‘closely related’ to the nominated occupation is where the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work.[2]
[2] See Court Book at 66
The delegate gave these reasons for refusing the application:
Although basic accounting skills may be applicable to most occupations, the level of skill gained by completing a Diploma course is inconsistent with the skills that would be useful on a day to day basis as an entry level cook. In a letter dated 22 January 2009 you state that your Diploma of Accounting will assist you in your future career aspiration of owning a restaurant. However, you are required to provide evidence that your skills are suitable and relevant to your nominated skilled occupation of Cook (4513-11) and not a future career path.[3]
[3] Court Book at 67
After his application was refused, the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision.
Application to the Migration Review Tribunal
The Applicant lodged an application for review on 20th February 2009. In that application he appointed Ms Tara Kennedy of PWP Migration Services as his representative for the purposes of the review application.[4]
[4] Court Book at 72
On 9th November 2009 the Tribunal wrote to the Applicant and invited him to attend a hearing on 10th December 2009. His migration agent forwarded a statement by the Applicant dated 27th October 2009 to the Tribunal by fax the following day. In that statement the Applicant made submissions about the close relationship between the subjects of accounting and hospitality management.
The Applicant’s migration agent forwarded a Response to Hearing Invitation to the Tribunal by fax on 7th December 2009 and a written submission on 9th December. In that submission the agent argued that the Applicants’ accounting diploma was relevant to his occupation as a cook and said:
Specific Duties of the Applicant’s Current Position
In addition to the above discussion the applicant is currently working as a cook. To this end, his employer calls on him to assist with the preparation of inventory orders and maintenance, preparation of budgets in relation to such stock flows, compliance with all OH&S issues in relation to the restaurant, handling of customer service issues, leading staff and managing kitchen hands also maintaining business records.
He is asked to do these duties because he has successfully completed his Diploma of Accounting.[5]
[5] Court Book 114
The Applicant attended the hearing on 10th December 2009 accompanied by his representative, Mr Mohammad Ahasan Ali.
The Migration Review Tribunal Decision
The Tribunal made its decision on 16th December 2009, affirming the decision of the delegate not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
In its Decision Record, the Tribunal set out a summary of the Applicant’s claims submitted with his application and his evidence to the Tribunal.
In the “Findings and Reasons” in the Decision Record, the Tribunal noted that the Applicant had provided evidence of the educational qualifications that he had obtained in Australia. The Tribunal referred to the “two year study requirement” as defined in Regulation 1.15F, which requires that the Applicant have qualifications completed in a total of at least 16 calendar months and as a result of a total of at least 2 academic years of study. The Applicant had completed a Diploma of Accounting between November 2005 and May 2007 and a Certificate III in Hospitality (Commercial Cookery) between March 2007 and February 2008.
The Tribunal found that:
the Certificate III in Hospitality, which the applicant undertook between March 2007 and February 2008, was not completed in a total of at least 16 calendar months and the Tribunal is not satisfied that this qualification alone meets the two year study requirement. The Tribunal finds that the applicant must also rely on his Diploma of Accountancy to meet the two year study requirement. Clause 485.213(b) relevantly requires that each of the degrees, diplomas or trade qualifications used to satisfy the two year study requirement must be closely related to the applicant’s skilled occupation.[6]
[6] Court Book 137 at paragraph [29]
The Tribunal noted that the Applicant had nominated the occupation of cook as his skilled occupation and that he argued that the Diploma of Accountancy which he had completed is similar to the Diploma of Hospitality Management offered by the same institution. However, the Tribunal stated that it “did not accept the applicant’s assertion that these subjects he completed in the Diploma of Accounting are closely related to the subjects that are offered in the Diploma of Hospitality Management course merely on the basis of subject titles.[7]
[7] Court Book 137-138 at [31]
The Tribunal found that there must be a close relationship between the course of study undertaken and not merely a benefit of one to the other.[8] The Tribunal stated:
The applicant argues that he has started as a cook but he will progress to become a chef and my own a restaurant and these skills will be instrumental…While the applicant may wish to work as a sous chef or own and manage a restaurant in the future, the Tribunal must consider whether the Diploma of Accountancy is closely related to the nominated occupation of Cook and not to the occupation of restaurant manager, which is a separate and distinct occupation (under ASCO 3321).[9]
[8] Court Book 139 at [37]
[9] Ibid at [38]
The Tribunal was not satisfied that the Applicant’s study for the Diploma of Accounting was closely related to his nominated occupation of Cook. The Tribunal found:
The Tribunal is not satisfied that each of the applicant’s qualifications, being the Certificate III in Hospitality and a Diploma of Accounting are closely related to the applicant’s nominated skilled occupation of a Cook. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl.485.213(b) and cl.485.213 of the Regulations.[10]
[10] Ibid at [40]
The Tribunal was not satisfied that the Applicant met the requirements for the grant of the visa and affirmed the delegate’s decision not to grant him a Skilled (Provisional) (Class VC) visa.
Application to the Federal Magistrates Court
The Applicant filed his application for review on 13th January 2010.
He filed an affidavit of Howard Douglass Murdoch, solicitor,
on 29th March 2010, annexing an extract from the Procedures Advice Manual, known as “PAM 3”, relating to Part 485 of Schedule 2 of the Migration Regulations.
He filed an Outline of Submissions on 17th May 2010. Attached to that document was an amended application, upon which he was granted leave to rely.
The Minister relied on an amended response filed on 2nd February 2010, and Outline of Submissions filed on 21st May 2010.
The Applicant’s Submissions
Counsel for the Applicant, Mr Karp, noted that this case concerned the same legislation that was considered in Chawdhury v Minister for Immigration & Anor[11], a decision of this Court delivered on 23rd April 2010. However, the Tribunal in Chawdhury specifically referred to the applicable policy whilst in the case under review the Tribunal did not refer to it. He submitted that there is no indication that the Tribunal had considered the policy, notwithstanding the fact that it formed part of the delegate’s decision.
[11] [2010] FMCA 275
In respect of the Applicant’s Ground 2, which claims that the Tribunal fell into error by means of a failure to conduct a review as required by s.348 of the Migration Act, Mr Karp submitted that part of the Tribunal’s review function is to consider all submissions and information before it (see Sellamuthu v Minister for Immigration and Multicultural Affairs[12] at 292; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs[13] at [212]).
[12] (1999) 90 FCR 287; [1999] FCA 247
[13] (2005) 147 FCR 51; [2005] FCAFC 134
The submission is that the fact that the Tribunal did not consider the policy document (PAM 3) that was before it constitutes jurisdictional error.
Whilst policy pre se is not legally binding, that does not mean that it can be ignored or need not considered (see Nikac v Minister for Immigration & Ethnic Affairs[14] at 81; Minister for Immigration, Local Government and Ethnic Affairs v Gray[15] at 206).
[14] (1988) 20 FCR 65; 92 ALR 167; 16 ALD 611
[15] (1994) 50 FCR 189; [1994] FCA 1052
In respect of the Applicant’s Ground 3, which claims that the Tribunal failed to consider the full breadth of the term “skilled occupation” in the context in which it appears, Mr Karp submitted that the Tribunal fell into error by its unwillingness to look outside the ASCO definition of a cook and its unwillingness to consider the individual Applicant’s duties as a cook in deciding whether his accountancy qualification was “closely related” to his nominated skilled occupation.
However, in Chawdhury v Minister for Immigration[16], Raphael FM dismissed that submission at [12]:
If the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of a visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. Is should not lightly be replaced by an applicant’s definition based upon his own employment conditions. I am unable to see that the Tribunal fell into jurisdictional error by relying on the ASCO definition and considering the relationship of the applicant’s qualifications to that definition rather than to the position the applicant claimed that he had.[17]
[16] supra
[17] [2010] FMCA 275 at [12]
Mr Karp submits that his Honour’s analysis is wrong for two reasons:
a)Examining what an individual does in his occupation is not inconsistent with the scheme of the Migration Act and is entirely consistent with the wording of cl.485.213(b); and
b)The utility of the ASCO dictionary cannot be used as a reason to restrict consideration of the duties of a particular occupation to those set out in the dictionary, as his Honour conceded in Chawdhury:
The Court accepts that there is nothing in the legislation that restricts the Tribunal’s consideration to the ASCO definition when considering the duties of the skilled occupation.[18]
[18] Ibid
As to the Applicant’s Ground 4, that the Tribunal erred in its consideration of the “closely related” requirement in cl.485.213, it was submitted that, in order to determine whether a qualification is “closely related” to a nominated skilled occupation, the Tribunal has to assess the benefit derived from the qualification, or the skills acquired during the study for the qualification, to the duties of the occupation.
Submissions on behalf of the Minister
Counsel for the Minister, Mr Tynan, submitted that the Applicant’s Ground 1 lacks substance, in that the Tribunal did conduct a review as required by s.348 of the Act. The Applicant attended a hearing and made written submissions and other documents.
A fair reading of the Tribunal decision record shows that the Tribunal understood the nature of the Applicant’s claims. It set out a reasoned analysis of those claims and explored them with the Applicant at the hearing. Further, the Tribunal identified the determinative issues and gave the Applicant sufficient opportunity to give evidence and make submissions.
As to the Applicant’s Ground 2, Mr Tynan submitted that the Court should be slow to draw the inference that the Tribunal did not take PAM3 into account, even though it is not explicitly referred to in the decision. He submitted that:
a)The Tribunal acknowledged in the Decision Record that it had had regard to the material referred to in the delegate’s decision, which included the relevant extracts from PAM3;[19] and
b)In reaching its decision, the Tribunal followed the guidance of PAM3, particularly at clause 8.2.
[19] Court Book 133
Even if the Applicant were able to satisfy the Court that it was appropriate to draw an inference that the Tribunal failed to have regard to PAM3, in order to establish jurisdictional error the Applicant would need to establish that the policy was relevant in the sense that the Tribunal was bound to take it into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited[20], per Mason J at 39-40).
[20] (1986) 162 CLR 24
Mr Tynan referred the Court to the decision of Ryan J in Soegianto v Minister for Immigration and Multicultural Affairs[21], where his Honour held at [15] and [16] that the Tribunal was not bound to apply ministerial policy like that embodied in PAM3 when making its decision. Further, it was held that it is not an error of law for an administrative Tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament (see also El Ess v Minister for Immigration and Multicultural and Indigenous Affairs[22]; Vishnumolakala v Minister for Immigration[23] per Smith FM at [28]; Pasula v Minister for Immigration & Anor per Smith FM at [20]-[22]).
[21] [2001] FCA 1612
[22] [2004] FCA 1038
[23] [2006] FMCA 1209
As to the Applicant’s Ground 3, it was submitted that this argument had been raised in Chawdhury and the decision of Raphael FM should be followed.
Finally, Mr Tynan submitted that Ground 4 of the application was no more than an attempt to obtain merits review of the Applicant’s case and misconceives the proper role of the Court on an application for judicial review. Thus, he submitted, the ground cannot be made out.
Conclusions
The Tribunal was not satisfied that the Applicant’s accounting qualification met the two year study requirement, as accountancy was not closely related to the applicant’s occupation as a cook.
The Applicant’s Ground 1 claims that the Tribunal committed jurisdictional error in that it failed to conduct a review as was required by s.348 of the Act.
The Applicant’s Ground 2 claims that the Tribunal committed jurisdictional error by failing to give a proper, genuine and realistic consideration to the merits of the application.
The Applicant relies on the same particulars for each ground, namely:
In its consideration of the “closely related” requirement in Clause 485.213 of Schedule 2 of the Migration Regulations, the Tribunal failed to consider and take into account applicable DIAC[24] policy as expressed in PAM 3.
[24] Department of Immigration and Citizenship
There are two issues for determination:
a)Whether the Tribunal took into account the policy as expressed in PAM3; and
b)Whether it needed to do so.
In its Decision Record, the Tribunal stated, under the heading Claims and Evidence:
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[25]
[25] Court Book 133 at paragraph [9]
The delegate’s decision record clearly refers to the Procedures Advice Manual (PAM3) which provides guidelines to officers administering migration legislation.[26] In that decision, the delegate quoted from the relevant passages of PAM3 at Section 8, as has been set out earlier.[27]
[26] Court Book 65
[27] Court Book 66
In my view, the Tribunal’s statement that it had the Department’s file before it and had regard to the material referred to in the delegate’s decision leads almost irresistibly to the inference that the Tribunal had regard to the relevant section of PAM3.
In any event, I am satisfied that the Tribunal is not expressly required to take into account Departmental policy as set out in PAM3. This has been made clear in a number of decisions.
In Soegianto v Minister for Immigration and Multicultural Affairs[28], a review of a decision of the Migration Review Tribunal concerning a student visa, Ryan J held at [15]:
Generally speaking, the Tribunal is not strictly bound to apply ministerial policy like that embodies in PAM 3 when making its decision.[29]
[28] supra
[29] [2001] FCA 1612 at [15]
His Honour went on to say:
Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament;[30]
[30] [2001] FCA 1612 at [16]
Nevertheless, Ryan J also referred to a decision by Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2)[31] that the Tribunal should adopt a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.[32]
[31] [1979] 2 ALD 634
[32] [1979] 2 ALD 634 at 645
In Vishnumolakala v Minister for Immigration[33], Smith FM considered whether a failure by the Minister’s delegate to consider the relevant parts of PAM could establish the jurisdictional error of failing to take relevant matters into account, and held that it could not:
…since the legislation did not require, as an incident of jurisdiction, that the Minister and her delegates must take into account or follow the contents of PAM.[34]
[33] supra
[34] [2006] FMCA 1209 at [26]
His Honour went on to hold at [27]:
Although no evidence was presented to me as to the general purposes and role of PAM, it is clear from those parts of PAM which were tendered in evidence that it is no more than an advisory administrative guide to delegates in relation to their application of the legislation.[35]
[35] [2006] FMCA 1209 at [27]
Smith FM accepted and agreed with the opinion of Gray J in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs[36] at [45]:
PAM 3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations…A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error. [37]
[36] supra
[37] Quoted in [2006] FMCA 1209 at [28]
Smith FM held firmly that a failure by the delegate in that case to take into account or to follow a procedure suggested by PAM 3 could not of itself provide jurisdictional error.[38]
[38] [2006] FMCA 1209 at [29]
Smith FM reaffirmed this view in the recent decision of Pasula v Minister for Immigration & Anor[39], delivered on 16th April 2010. The facts in Pasula are not dissimilar to those in the matter under review, as the Applicant was seeking to rely on his successful study and qualification in an Advanced Diploma in E-Business in support of his application for a Skilled-Independent Overseas Student (Residence) (Class DD) visa, where he had nominated his occupation as a cook.
[39] Supra
Counsel in Pasula had argued that the Tribunal had fallen into jurisdictional error because it did not take into account the policy set out in PAM3.[40]
[40] 2010 FMCA 219 at [15]
However, Smith held that:
First, there is a line of authority which I would follow, holding that the contents of PAM3 do not themselves provide ‘relevant considerations’ which the tribunal is bound to consider, as a condition of its valid exercise of its jurisdiction.[41]
[41] [2010] FMCA 219 at [21]
In my view, it is clear that there is a settled line of authority, from Soegianto to Pasula, that the Migration Review Tribunal is not bound to consider the contents of PAM3 in order to make a valid decision, and a failure to apply the guidelines in PAM3 is not of itself a jurisdictional error.
The Applicant’s contention that the Tribunal failed to conduct a review as required by s.348 relies entirely on the contention that the Tribunal failed to consider and take into account DIAC policy as expressed in PAM3. As I have found that the Applicant has not established that the Tribunal did in fact fail to consider the relevant section of PAM3, and it is clear that, even if it had done so, that failure would not have resulted in jurisdictional error, the Applicant’s Ground 1 must fail unless some other failure to review can be established.
The Tribunal complied with the requirements of s.360 of the Act by inviting the Applicant to attend a hearing. He attended, gave evidence and made submissions. A fair reading of the Decision Record shows that the Tribunal considered and summarised his evidence and allowed him adequate opportunity to present his case. The Tribunal appeared not to be under any misapprehension as to what the Applicant’s case was.
There is no failure to conduct a review as required under s.348(1) of the Act. The Applicant’s Ground 1 has not been made out.
The Applicant’s Ground 2 claims that the Tribunal committed jurisdictional error by failing to give a proper genuine and realistic consideration to the merits of the application. The Applicant’s counsel argued that, whilst policy per se is not legally binding and does not have to be followed, it cannot be ignored. I am not satisfied that the Tribunal did ignore the policy, notwithstanding the fact that it did not specifically refer to PAM3 in the Decision Record. The Tribunal decision essentially follows Departmental policy.
The Applicant’s Ground 2 has not been made out.
In Ground 3 of the application, it is claimed that the Tribunal erred in failing to consider the full breadth of the term “skilled occupation” in the context in which it appears in Regulation 485.213(b). The particulars of that ground are:
a)The Tribunal erred in restricting its consideration of the duties of a “cook” to those set out in the ASCO dictionary; and
b)The Tribunal should have considered the duties required by the Applicant in his employment as a cook.
This same ground was argued before Raphael FM in Chawdhury v Minister for Immigration & Anor[42], a case where the facts are strikingly similar. The applicant in Chawdhury had applied for a Skilled (Provisional) (Class VC) visa but the delegate had refused to grant the visa because the delegate was not satisfied that the Applicant had satisfied cl.485.213 of Schedule 2 of the Regulations in meeting the two year study requirement. As his Honour noted:
However, the Tribunal in the course of considering all of the evidence relating to the application concluded that Mr Chawdhury had not met the provisions of cl.485.213 (b) which require that his qualifications must be closely related to his nominated skilled occupation. In this case, the applicant’s qualifications were the holding of a Diploma in Accounting and a Certificate III in Hospitality (Commercial Cookery). The applicant’s nominated skilled occupation was that of cook (ASCO 4513-11). Having come to this conclusion, the Tribunal affirmed the decision under review.[43]
[42] Supra
[43] [2010] FMCA 275 at [2]
In his consideration of what is essentially the same argument on the essentially the same facts, Raphael FM held at [12]:
The Court accepts that there is nothing in the legislation that restricts the Tribunal’s consideration to the ASCO definition when considering the duties of the skilled occupation. The tribunal must have some leeway, if only because the nature of occupations is constantly changing, particularly those that are IT related. But what the applicant was trying to do in this case was to persuade that Tribunal that the qualification that he had obtained was relevant to his position as a chef…Of the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of a visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant’s definition based upon his own employment conditions. I am unable to see that the Tribunal fell into jurisdictional error by relying on the ASCO definition and considering the relationship of the applicant’s qualifications to that definition rather than to the position the applicant claimed that he had.[44]
[44] [2010] FMCA 275 at [12]
Counsel for the Applicant requires me to find that his Honour’s analysis in Chawdhury is wrong for the reasons that:
a)Examining what an individual does in his (or her) occupation is not inconsistent with the scheme of the Migration Act and is entirely consistent with the wording of cl.485.213(b) and the reference contained in it to “the Applicant’s nominated skilled occupation”; and
b)The utility of the ASCO dictionary cannot be used as a reason to restrict consideration of the duties of a particular occupation to those set out in that dictionary.
If I were to accept those arguments, the Tribunal would be obliged to consider the Applicant’s nominated skilled applicant as defined by the applicant, himself or herself. If that were to be the case, the consistency in decision-making as referred to by Raphael FM would be thrown into chaos. There would be no consistency in decision-making.
The decision of Raphael FM in Chawdhury is not binding on this Court, but the doctrine of judicial comity requires that I should follow it, unless I am satisfied that it is plainly wrong. It is not plainly wrong. In my view, with respect, his Honour’s analysis in Chawdhury at [12] is clearly correct and should be followed.
The Applicant’s Ground 3 has not been made out.
The Applicant’s Ground 4 in his amended application claims that the Tribunal erred in its consideration of the “closely related” requirement in Clause 485.213 of Schedule 2 of the Migration Regulations. The particulars of that claim are:
The Tribunal erroneously failed to consider the degree of benefit of the qualification obtained to the applicant’s nominated skilled occupation.
The argument in support of this ground is that there is an error in the interpretation of the law. Counsel for the Applicant submits:
It may be asked how is it to be determined whether a qualification is “closely related” to a nominated skilled occupation other than by assessing the benefit derived from the qualification, or the skills acquired during study for the qualification, to the duties of the occupation? Surely it is necessary to examine the degree of benefit of the qualification (or skills acquired) to the particular occupation to determine the closeness of the relationship between the two.[45]
[45] Applicant’s Outline of Submissions filed 17.5.2010 at paragraph [25]
The Applicant claims that there is an error in the interpretation of clause 485.213, which relevantly states:
(b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.
Whilst the Applicant argues that the Tribunal has made an error of interpretation of the law, what is really being argued, with respect, is a review of the merits of the Tribunal decision. Merits review, of course, is not available or permissible on judicial review.
The Applicant’s Ground 4 fails.
As the Applicant’s Grounds of review have not been made out, it follows that the Tribunal decision is a privative clause decision, as defined by s.474(2) of the Migration Act. A privative clause decision is final and conclusive. It must not be challenged, appealed against, reviewed, quashed or called into question in any Court. A privative clause decision is not subject to writs of prohibition, mandamus or certiorari, which the Applicant seeks (s.474(1)).
It follows that the application must be dismissed.
The question of the First Respondent’s costs will be considered.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 2 August 2010
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