Kaissar v Minister for Immigration
[2006] FMCA 205
•3 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAISSAR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 205 |
| MIGRATION – Application for review – re–agitation of facts – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.359A, 478, 479 Migration Regulations 1994, reg.103 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24 Minister for Aboriginal Affairs v Peko–Wallsend (1986) 162 CLR 24 |
| Applicant: | SAMIR KAISSAR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG1558 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 10 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 3 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Plum Solicitors |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the Migration Review Tribunal be joined as second respondent.
That Samir Kaissar be named as the applicant and Habid Samir Diab, Chantal Saleh Saade and Samir Habib Diab be removed as named applicants.
That the application for review filed on 30 November 2004 be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1558 of 2004
| SAMIR KAISSAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before me on an application for review filed on 30 November 2004 in which the applicant seeks constitutional writs in respect of, or an order setting aside, the decision of the Migration Review Tribunal (the tribunal) made on 3 November 2004.
That decision affirmed an earlier determination by the first respondent’s delegate to refuse to grant a Skilled–Australian–sponsored (Migration) (Class BQ) visa to the applicant’s nephew (the visa applicant).
It is necessary that the tribunal be added as second respondent.
See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24 at paras [90], [91], [153] and [180].
It is also necessary, having regard to the outcome of this proceeding, to name the review applicant, Mr Samir Kaissar as the only applicant in compliance with ss.478 and 479 of the Migration Act 1958 (the Act).
The grounds set out by the applicant for review are:
“1.In affirming the decision of a delegation (sic) of the Respondent not to grant the Applicant a Skilled-Australian-sponsored (Migrant)(Class BQ) visas (sic) to the Visa Applicant, the Tribunal constructively failed to exercise its jurisdiction or fell into jurisdictional error in making the decision in that the Tribunal erred in interpreting the applicable law.
PARTICULARS
(i)The Tribunal failed to properly construe the Visa Applicant’s role as an Account Executive;
(ii)The Tribunal wrongly construed the requirements of the position of Account Executive;
(iii)The Tribunal failed to properly construe the position of an Account Executive as being one which closely resembled the duties described in ASCO for a Marketing Specialist;
(iv)The Tribunal erred in failing to determine which occupation as described in ASCO guide the Visa Applicant falls within;
(v)The Tribunal erred in determining that the Visa Applicant’s occupation was that of an Account Executive, an occupation not defined in the ASCO guide;
(vi)The Tribunal erred in applying the title of the Visa Applicant’s position as it appears on the website of the employer and not the actual tasks undertaken by the Visa Applicant.
2.The Tribunal fell into jurisdictional error in making the decision in that the Tribunal failed to take account of relevant material or considerations.
PARTICULARS
The Tribunal failed to have regard to letters from Oussama Fanous dated 29th June 2004 and 13th October 2004.”
The second ground was not argued by the applicant in either his written contentions of fact and law, or at the hearing before me. That ground is taken therefore to have been abandoned.
Background
On 5 June 2002, the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs (the department) an application for a Skilled–Australian–sponsored (Migrant) (Class BQ) visa (skilled migrant visa), as well as supporting documents.
The visa application included the visa applicant, Mr Habib Samir Diab, and his wife and son. The applicant, Mr Samir Kaissar sponsored the visa applicant and his family.
In the visa application, it was claimed the visa applicant had been employed in a skilled occupation. He claimed that he was a “marketing specialist”. The Australian Standard Classification of Occupations (2nd edition) (ASCO) code for the occupation of “marketing specialist” was defined in clause 2221–13. The visa applicant stated that, in respect of his nominated occupation of “marketing specialist”, he had obtained a suitable skills assessment from the relevant assessing authority.
On 1 and 7 August 2003, the visa applicant’s representative submitted further supporting documents with the department. The supporting documents included correspondence from the visa applicant’s present and former employers in which his employment duties were described.
In a decision dated 2 October 2003, a delegate of the first respondent refused to grant the visa applicant and his family skilled migrant visas. The delegate relevantly found that, between 1 May 2001 and
5 July 2002, the visa applicant had not been employed in the skilled occupation of “marketing specialist” because:
(a) there was “a very high level concordance between the duties performed by yourself and those described in the 2nd edition of the ASCO dictionary as a ‘Sales Representative (Business Services)’ (ASCO Code 6211–13)”; and
(b) the occupation of “sales representative (business services)” was not “specified by Gazette Notice as a skilled occupation”.
On 17 December 2003, the applicant lodged with the tribunal an application for review of the delegate’s decision.
In correspondence to the applicant’s representative dated 21 June 2004, the tribunal invited the applicant to comment on information adverse to his review application in accordance with s.359A of the Act.
The adverse information was as follows:
“Australian Standard Classification of Occupations, 2 Edition (‘ASCO’) provides that Marketing Specialists (ASCO Code 2221-13) identify market opportunities and advise on the development, coordination and implementation of plans for the pricing and promotion of an organisation’s products or services.
This information is relevant to the review because on the evidence submitted by the visa applicant ..., his duties at Barter Card and Coral Oil in the 18 months and 36 months prior to the date of [visa] application were not those of the skilled occupation of Marketing Specialist as claimed.”
On 9 July 2004, the applicant’s representative lodged written submissions and supporting documents in response to the tribunal’s correspondence dated 21 June 2004. On behalf of the applicant, the applicant’s representative submitted that the visa applicant’s work for his present and former employers fell within the ASCO Code 2221–13 description of “marketing specialist”. The applicant’s representative lodged, among other supporting documents, correspondence from the visa applicant’s present and former employers in support of this submission.
On 11 August 2004, the tribunal conducted a hearing, at which the applicant gave evidence.
In correspondence to the applicant’s representative dated
22 September 2004, the tribunal invited the applicant to comment on further information adverse to his review application. The adverse information was contained on the websites of the applicant’s present employer, Bartercard, and was as follows:
“The Barter Card organisational chart indicates that there are a number of departments within the organisation, including a marketing department which reports directly to the Chief Executive Officer and a trade management department which reports to a National Trading Manager. The marketing department is listed together with the construction and real estate, human resources and information technology departments, all reporting directly to the Chief Executive Officer. The trade management department includes the areas corporate trading, trade support, national/international trading and hospitality. The general information on the website indicates that each corporate client is assigned an Account Manager, whose main role is to source products and services required by the client business to enable the client to spend its trade dollars. Barter Card Lebanon provides free marketing opportunities to corporate clients including regular mail outs listing clients’ products and services listing clients’ products and services, as well as directory listings.
This information is relevant to the review because it is open to the Tribunal to find that the visa applicant is employed in the trade management department and not in the marketing department. It is open to the Tribunal to find that the visa applicant is employed as an Account Manager in the Trade management department and not as a Marketing Specialist as claimed. It is also open to the Tribunal to find that the visa applicant is not responsible for advising clients on marketing and advertising campaigns, as marketing is provided by Barter Card through mail outs and product directories.”
In reply correspondence dated 20 October 2004, the applicant’s representative conceded that the visa applicant’s position title was “Account Executive” and that he worked in the trading department of Bartercard and reported to the “Director of Trading” in that department. It was submitted that, nonetheless, it did not follow that the visa applicant was not employed as a “marketing specialist”.
The applicant’s representative submitted that, although the visa applicant was not responsible for marketing the services of Bartercard itself, he was responsible for marketing the businesses of Bartercard’s clients. The applicant’s representative also lodged with the tribunal a copy of Bartercard’s description of the visa applicant’s employment position.
On 3 November 2004, the tribunal handed down its decision in which it affirmed the delegate’s decision.
Relevant legislation
The skilled migrant visa class contains two visa subclasses: subclass 138 (skilled–Australian sponsored) (subclass 138); and subclass 139 (skilled–designated area sponsored) (subclass 139)
The criteria for the grant of each of these subclasses of visa are set out in Parts 138 and 139 respectively of Schedule 2 to the Migration Regulations 1994 (the regulations).
In Part 138, subclause 138.216(1) relevantly requires that, at the time of the visa application:
“… the applicant [visa applicant]has been employed in a skilled occupation:
(a) …; or
(b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application – for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.”
In Part 139, subclause 139.217(1) relevantly requires that, at the time of the visa application:
“… the applicant [visa applicant] has been employed in a skilled occupation:
(a)…; or
(b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application – for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made.”
Regulation 1.03 of the regulations defines the term “skilled occupation” to mean:
“….an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available.”
The occupation of “marketing specialist” (ASCO Code 2221–13) is specified by Gazette Notice as a skilled occupation for which 50 points are available.
The tribunal decision
At paragraphs 46 and 47 of its decision, the tribunal concluded that the visa applicant could not meet the requirements of clause 138.216 or clause 139.217 of Schedule 2 to the regulations. Accordingly, the visa applicant could not meet the criteria for the grant of any subclass of skilled migrant visa. In the circumstances, the tribunal affirmed the delegate’s decision not to grant the visa applicant a skilled migrant visa
In particular, the tribunal relevantly found that:
(a) any application for a skilled migrant visa must be considered against both subclass 138 and subclass 139;
(b) the criteria in Part 139 were less onerous than those in Part 138 and, therefore, if the visa applicant did not satisfy the subclass 139 criteria, he would not be able to satisfy the subclass 138 criteria;
(c) the visa applicant’s nominated skilled occupation was “marketing specialist” (ASCO Code 2221–13);
(d)according to the relevant Gazette Notice, the occupation of “marketing specialist” is a skilled occupation which attracts 50 points under the general points test;
(e) as a consequence, it was necessary that, in relation to subclass 139, the visa applicant satisfy paragraph 139.217 (1)(b) of Schedule 2 to the regulations;
(f) paragraph 139.217 (1)(b) required that the visa applicant had been employed in the nominated skilled occupation for a total of at least 12 months in the 18-month period prior to the date of his visa application;
(g) accordingly, the relevant period for the purposes of subclass 139 was the period from 4 December 2000 to 4 June 2002;
(h) the visa applicant was employed at Coral Oil between October 1998 and December 2000 and at Bartercard from June 2001 to the date of the visa application;
(i) it was therefore critical to determine whether or not the visa applicant’s employment duties at Bartercard were those of a skilled occupation and, in particular, a marketing specialist;
(j) the visa applicant was an account executive in the trade management department (and not a member of the marketing department) of Bartercard and he reported to the national trading manager;
(k) in his position at Bartercard, the visa applicant’s main responsibility appeared to be to “assist member companies to spend their trade accounts”;
(1)the description of the visa applicant’s role as a “Marketing Trade Consultant” in 2003 “was an attempt … to give his role at Bartercard the appearance of a skilled occupation when he was actually employed as an Account Executive for that business”;
(m) although the visa applicant was involved in assisting his clients to market and promote their products and services, this was not his primary role as an account executive;
(n) although the visa applicant’s duties as an account executive included some of the tasks of a marketing specialist, the tribunal was not satisfied that his duties closely matched the duties described in ASCO Code 2111–13 for a marketing specialist because his main function appeared to be that of an account executive, which was not a gazetted occupation;
(o) the visa applicant’s duties at Bartercard also did not closely match the gazetted occupations of sales and marketing manager (ASCO Code 1231–11), Advertising Specialist (ASCO Code 2221–17) and Market Research Analyst (ASCO Code 2221–15);
(p) the visa applicant was therefore not employed in a skilled occupation at Bartercard between May 2001 and the date of the visa application;
(q) accordingly, at the time of the visa application, the visa applicant did not satisfy clause 139.217 of Schedule 2 to the regulations;
(r) therefore, only the visa applicant’s employment at Coral Oil could be assessed in relation to the criteria of subclass 138, which required him to be employed in a skilled occupation for
24 months in the 36 months prior to the date of the visa application;
(s) the visa applicant was employed at Coral Oil until 31 December 2000;
(t) therefore, to satisfy the requirements of clause 138.216, the visa applicant would need to have been employed in a skilled occupation at Coral Oil for 24 months between 4 June 1999 (that is, 36 months prior to the date of the visa application) and
31 December 2000, which was not possible; and
(u)accordingly, the visa applicant was not employed in a skilled occupation for 24 months of the 36 months preceding the date of the visa application and could not satisfy the requirements of clause 138.216 of Schedule 2 to the regulations.
Contentions
The applicant’s “legal contentions” are set out at paragraphs 19 to 24 of the applicant’s written contentions of fact and law. At the hearing before me counsel for the applicant submitted that the tribunal fell into jurisdictional error in one or more of three ways; namely,
(i)the tribunal misinterpreted the test that it was required to apply, which is manifest by the findings the tribunal made;
(ii)what the tribunal said about the visa applicant’s present employer’s assessment of the visa applicant’s role (i.e. he was a “marketing specialist”) is reflective of the tribunal’s failure to discharge the task given to it; and
(iii)having acknowledged the unusual nature of the visa applicant’s employment with Bartercard, it was incumbent upon the tribunal to adopt a broader and more investigative approach to see whether the description of “marketing specialist” best fits the work undertaken by the visa applicant.
In support of the first contention, counsel provided selective evidentiary documentation that was before the tribunal by which, through a process of cross–referencing, he sought to show how the tribunal had misinterpreted the test to be applied (i.e. whether the duties performed by the visa applicant satisfied the ASCO definition of marketing specialist) and how a different factual finding could, and should, have been made. In short, because the tribunal found as it did, ipso facto, it must have applied the wrong test, for had it applied the methodology suggested by counsel the result would have favoured the applicant. I do not accept this contention. The tribunal’s decision clearly indicates that it understood the test that it was required to apply in terms of the legal test that was applicable. In that regard the tribunal referred to the correct subclasses that are applicable to this case, and referred to the correct ASCO guide to be used as set out at length in paragraph 35 of its reasons. It then went on to apply the evidence before it to that test and in its reasons has made various findings which were directed towards that test. A fair reading of the tribunal’s decision, in my mind, clearly demonstrates the tribunal was mindful of the task required of it, applied the right test and its findings were open to it.
The second contention advanced by counsel centres, in my view, on a criticism of the tribunal for not giving weight to, or sufficient weight to, an assessment by the visa applicant’s present employer that the work undertaken by the visa applicant is best described as that of a “marketing specialist” as described in ASCO Code 2111–13. It was clearly the obligation of the tribunal to form the assessment of whether or not the visa applicant met the description and it would have been a abrogation of that obligation on the part of the tribunal to have allowed that assessment to be, in effect, made by his employer. The applicant, however, sought to avoid that oblivious conclusion by submitting that it was not sufficient for the tribunal to say it would take the employer’s view into account without explaining why it should not be uncritically accepted. There was, in effect, the applicant contended, an obligation to make an ancillary finding as to the credit of the employer should the employer’s assessment not be sufficient to, so to speak, win the day. From my reading of the decision the tribunal clearly had regard to the employer’s assessment and, as the tribunal was entitled to do, gave it such weight as the tribunal considered appropriate against other evidence. In the weighing up of the evidence, the tribunal manifestly did not accept as determinate what the employer asserted. It was open to the tribunal to do so.
The third contention of counsel that the tribunal was obligated to undertake a process not normally undertaken because of the unusual nature of the business in which the visa applicant is employed presupposes the tribunal did not recognise that unusual nature and did not adjust its process and inquiry accordingly. A fair reading of the decision clearly indicates the tribunal was mindful of that unusual nature and pursued an appropriate process to determine whether the visa applicant was a “marketing specialist”.
On the premise that an examination of the tribunal’s fact finding is necessary to expose the tribunal’s jurisdictional error, counsel for the applicant embarked upon a detailed analysis of the evidence before the tribunal and how the tribunal used, or failed to use it in reaching its findings. In doing so, based upon what and how counsel put the applicant’s contentions, I can come to no other conclusion than counsel invited me, in effect, to enter upon an impermissible merits review of the tribunal’s decision. It is trite law that the Court cannot set aside a factual finding of the tribunal simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. There was nothing, in my view, about the process adopted or the findings made that, after the analysis undertaken by the applicant, which was indicative of an error on the part of the tribunal, let alone a jurisdictional error.
For the sake of completeness I shall address the applicant’s written contentions. At paragraph 19, the applicant “takes issue” with the tribunal’s factual findings based on its assessment of the available material. It was plainly open to the tribunal, in my view, to arrive at its assessment of the material before it.
At paragraph 20, the applicant asserts that the tribunal placed “too much weight” on particular items of evidence before it. Short of arguing manifest unreasonableness or bad faith (which the applicant does not assert), such a challenge to the tribunal’s decision is not available in this judicial review (see Minister for Aboriginal Affairs v Peko–Wallsend Ltd (1986) 162 CLR 24 at 41).
In paragraphs 21 and 22, the applicant again simply disputes the tribunal’s assessment of the evidence before it and argues that the tribunal ought to have arrived at different factual findings.
No jurisdictional error is demonstrated by these complaints.
Paragraph 23 contains a bald assertion that, in failing to make a factual finding that the visa applicant was a marketing specialist, the tribunal committed an error of law. Again, the assertion involves no more than an impermissible attempt to re-agitate the merits of the tribunal’s factual findings.
At paragraph 24, it is contended that the visa applicant “satisfies Clause 139.217 and 138.216”. On the basis of its factual findings, which in my view were open to it on the material before it, the tribunal concluded otherwise. There is no basis to suggest that, in doing so, the tribunal misconstrued or misapplied any relevant statutory provisions in the Act or the regulations.
Conclusion
The tribunal’s decision is not affected by jurisdictional error. A fair reading of the tribunal’s decision demonstrates a thorough assessment of the visa applicant’s claims and the making of findings that, on the evidence before it, were open to the tribunal. The applicant has not made out any proper basis for criticism of the process adopted by the tribunal or its decision. The applicant’s case, in my view, never rose above an attempted merits review.
Accordingly, the application for review filed on 30 November 2004 should be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 3 March 2006
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