Kamruzzaman v Minister for Immigration

[2008] FMCA 1460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAMRUZZAMAN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1460

MIGRATION – Review of Migration Review Tribunal decision – review of a decision to clarify the Visa Applicant’s occupation as “Bank Worker” or “Credit and Loans Officer”.

Migration Regulations 1994

Kaufusi v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 86
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566
Muslowie v Minister for Immigration and Ethnic Affairs (Hurford)(1986) 13 FCR 179
Parramatta City Council v Pestell (1972) 128 CLR 305
R v Trebilco; Exparte FS Falkner and Sons Ltd (1936) 56 CLR 20
R v War Pensions Entitlement Appeal Tribunal; Exparte Bott (1933) 50 CLR 228
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363

Applicant: MOHAMMED KAMRUZZAMAN

Respondent: MINISTER FOR IMMIGRATION & ANOR

File Number: BRG 292 of 2008

Judgment of: Burnett FM

Hearing date: 24 July 2008

Date of Last Submission: 24 July 2008

Delivered at: Brisbane

Delivered on: 19 November 2008

REPRESENTATION

Solicitors for the Applicant: Sharma Lawyers

Counsel for the Respondent: Ms Wheatley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Tribunal’s decision of 16 April 2008 be annulled and set aside.

2. That the application is remitted to the Tribunal for redetermination in accordance with the law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 292 of 2008

MOHAMMED KAMRUZZAMAN

Applicant

And

MINISTER FOR IMMIGRATION & ANOR

Respondent

REASONS FOR JUDGMENT

1. The applicant Mohammed Kamruzzaman (the review applicant) is an Australian citizen and the brother of Mohammed Jahangir Hossain (the visa applicant).  They are both natives of Bangladesh although the review applicant migrated to Australia some time ago. 

2. The review applicant was a sponsor for the visa applicant’s application for a Skilled (Australian sponsor) (Migrant) (Class BQ) Visa.  The visa applicant applied for that visa on 21 April 2005.  He nominated the occupation of a Business and Information Professional [nec] (ASCO 2299-79).  That occupation was one included in the definition of “skilled occupations” in Regulation 1.03 and relevant assessing authorities for the purpose of Regulation 2.26B of the Migration Regulations1994 extant at the time of his application.

3. The visa applicant was subject to skilled migration assessment by VET ASSESS, an accredited assessing authority and his qualifications were assessed as suitable for migration purposes for the nominated occupation of a Business and Information Professional [nec].  However one of the relevant criteria, criterion 138.21 required that at the time of the application the visa applicant had to have been employed in a skilled occupation for a period of 24 months over the 36 months immediately preceding the date of application; criteria 138.216(1)(b).  A skilled occupation was defined in regulation 1.03 to relevantly include for present purposes, an occupation that satisfied the definition of a Business and Information Professional [nec]. 

4. Significantly the visa applicant did not list the occupations of Bank Worker (ASCO code 6143) or Credit and Loans Officer (ASCO code 5912) in his application.  At the time of the application the visa applicant informed the delegate he was then employed by the Arab Bangladesh Bank in the capacity of assistant officer.  The bank’s assistant Vice President and Manager of the Imanganj Branch confirmed the visa applicant’s employment and his duties.

5. In considering the visa applicant’s application the delegate concluded by reference to the ASCO dictionary that the visa applicant was employed as a Bank Worker or Credit and Loans Officer being occupations that were not occupations on the gazetted skilled occupation list.  Accordingly because of that determination and given the visa applicant had no Australian qualifications the delegate determined to refuse the visa applicant’s application.

6. Review of that determination was sought by the Migration Review Tribunal.  By a decision dated 18 April 2008 it affirmed the delegate’s decision.  The applicant now seeks a review by this court of the Tribunal’s decision.

7. In its application for review by the Court the review applicant raised three grounds:

8. He alleged jurisdictional error by the Tribunal in:

   a)      Failing to correctly apply the relevant regulations concerning the relevant VETASSESS assessment;

   b)      Finding the visa applicant did not satisfy clause 138.216 of Schedule 2 of the Regulations; and

   c)      Failing to take account of relevant material particularly the criteria for Business and Information Professionals [nec] and ignored relevant information.

Ground 1 – Failure to apply the relevant regulations

1. In his written outline the solicitor for the review applicant submitted that the Tribunal only properly considered the tasks required for a Bank Worker or Credit and Loans Officer.  That is to say it did not consider the tasks to be required of a Business and Information Professional.

2. In doing so it did not take into account the differing criteria applicable to the various occupations in terms of qualifications, experience and responsibilities. The visa applicant contended the Tribunal failed to take into account evidence that the duties undertaken by him were more responsible than those of Bank Workers. This included an assertion that the duties extended well beyond the ambit of those relevant to the occupation of Bank Worker.

3. In its decision at pages 6 and 13[1] the Tribunal expressed an appreciation of the visa applicant’s assertion that his duties extended beyond the responsibilities of a Bank Worker and noted his superior, Mr Ahmad acknowledged the visa applicant’s responsibilities were also compatible with that category.

   [1] CB12 and CB19.

4. In its finding the Tribunal found “…the applicant has not been employed in a skilled occupation…”.   The review applicant submitted the Tribunal incorrectly made this finding when the issue to be considered was whether the visa applicant was employed in “the skilled occupation nominated in the application” namely Business and Information Professional [nec].

5. In highlighting this alleged error the review applicant noted that the Tribunal referred in detail to two occupations that were never the subject of submission by the applicant, they being a Bank Worker and Credit and Loans Officer.  It was contended the Tribunal had not given detailed consideration to the visa applicant’s nominated occupation of Business and Information Professional [nec].

6. In its decision at page 10 of 11 the Tribunal listed the tasks relevant to the occupations of Bank Worker and Credit and Loans Officer.  However it did not similarly list the tasks associated with Business and Information Professional [nec].  While the class of occupation, Business and Information Professional [nec], extends to include Business and Information Professionals not elsewhere classified [nec] it did list at least two occupations in that group they being Business Researcher and Liaison Officer.  Those occupations did not have identified tasks provided by ASCO. 

7. Accordingly despite its enquiries of the visa applicant and the review applicant of the matters relevant to the visa applicant’s employment it was not apparent from the record whether the Tribunal considered the tasks that may have been relevant to the visa applicant’s duties at the bank which may have demonstrated the occupation was consistent with that of a Business and Information Professional rather than a mere Bank Worker or Credit Officer.  The impact of this omission is particularly significant given the ASCO description of the occupation Business and Information Professional [nec].  That occupation description does not contain a task list as other occupations such as Bank Worker and Credit and Loans Officer do.  It notes the occupation group includes “Business Researcher” and “Liaison Officer” but those occupations are not listed in the ASCO.  Given the occupation is one intended to cover Business and Information Professionals not elsewhere covered and tasks were not detailed particular consideration was required to be given to the skill level associated with that occupation.

8. Bank Workers or Credit and Loan Officers required only a certificate level training.  It would be expected the requisite skill level required was consistent with that training.  Given the prerequisite levels listed for the nominated occupation and the absence of any detailed tasks, the Tribunal needed to examine the tasks undertaken by the visa applicant and assess whether they required an application of tertiary level skills or certificate level skills before any conclusion could be reached as to whether the visa applicant was a “Bank Worker” or “Credit and Loans Officer” or a “Business and Information Professional” [nec].  The Tribunal failed to do this.  In my view this omission is fatal to the Tribunal’s decision because it bespeaks either the identification of a wrong issue resulting in the Tribunal asking itself the wrong question or of it ignoring relevant material. 

9. I accept the respondent’s submissions that the Tribunal’s findings considering the VETASSESS was not an error.  Although the Tribunal accepted the VETASSESS assessment of the visa applicant’s qualifications, the Tribunal ought to have been more careful to examine the duties undertaken by the visa applicant against the tasks set for higher order employment such as those that would apply to a Business and Information Professional [nec].  This is particularly so given that the visa applicant’s education was to a post graduate standard yet the employment level for a Bank Officer demonstrated that no tertiary standard of education was required.  This obvious disparity in required skill levels was not the subject of expressed consideration by the Tribunal.  Given the significant difference between the prescribed skill level between the relevant occupational groups this matter also required addressing.  In failing to address this matter it appears the Tribunal failed to give consideration to a relevant consideration.

10. The thrust of the respondent’s submission is that the matter said to have been overlooked by the applicant was a factual matter which was subsumed into the Tribunal’s decision and did not properly constitute a failure by the Tribunal to consider a relevant consideration. 

11. As to what is a relevant consideration is a matter to be determined by construction of the legislation conferring the power; Re Trebilco; Exparte FS Falkiner and Sons (1936) 56 CLR 20 at 27, 32 and 33; R v War Pensions Entitlement Appeal Tribunal; Exparte Bott (1933) 50 CLR 228 at 242 – 243; Parramatta City Council v Pestell (1972) 128 CLR 305 at 323, 327 and 332.

12. Where the legislation does not expressly or exhaustively define the matters that are relevant then matters may be inferred from the terms, purpose and subject matter of the legislation, the nature of the power to be exercised, and, the nature of the decision maker.

13. Having said that the decision maker is not required to consider all matters relevant to the exercise of the power; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. However an obligation to consider a matter may arise by implication from the subject matter, scope and purpose of the statute; Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40.

14. An obligation to consider a matter has commonly been applied where a person has made a submission that the exercise of a statutory power would have adverse effect upon them; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 40; Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 at 571 and 575; Muslowie v Minister for Immigration and Ethnic Affairs (Hurford) (1986) 13 FCR 179 at 188; Kaufusi v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 86 at 91.

15. In this case the decision under review was one for the grant of a Skilled Migration Visa.  Critical to the application was the issue of whether or not at the time of the application the visa applicant had been employed in a “skilled occupation”; Criteria 138.128(1)(b).   In particular in this instance a consideration was required of the visa applicant’s employment for a period totalling at least 24 months in the period of 36 months preceding the day on which the application was made because the visa applicant had not been awarded a “degree, diploma or trade qualification” earned in Australia.  The gazetted list of “skilled occupations” defines various occupations including Business and Information Professional [nec]; Bank Worker; and Credit and Loans officer.  In respect of each occupation, including the relevant occupations, they commonly include a brief description of the occupation, a defined skill level and a task list, except for Business and Information Professional [nec]. 

16. Business and Information Professional [nec] does not include a task list but notes other “occupations in this group”.  It is noteworthy that the other occupations listed in that instance are not themselves particularised in the occupation list. 

17. Given the particularity of the definitions of each occupation and description by reference to “skill levels” and “tasks” it can be inferred that those characteristics are significant and set the parameters of relevant matters to be considered by the decision maker.  Further these considerations would not be considered in isolation but in their context require consideration of the relationship between them.

18. The requirement for proper consideration is particularly so in a context where a failure to consider such a characteristic would carry with it the ultimate prospect of deportation. 

19. The Tribunal correctly noted that the possession of a post graduate qualification would not necessarily establish the duties undertaken were of a higher order.  It also noted the visa applicant’s duties may be significantly higher than those performed by clerical staff and that he was often called upon to supervise other Bank Workers.

20. However in determining the visa applicant was a Bank Worker or a Credit and Loan Officer it did not give consideration to the different skill levels associated with the performance of each occupation.  Notwithstanding some mutuality of tasks between the two occupations the clear object of the occupational definitions is to distinguish between the administrative process work undertaken by a Bank Worker or Credit and Loans Officer against the higher order activities of a Business and Information Professional [nec].  The latter occupation requires a consideration of whether skills acquired by tertiary training were necessarily brought to bear in the performance of the tasks associated with that occupation.  The Tribunal failed to do this.  For instance at CB5 while the Tribunal noted,

    “(The visa applicants) responsibilities may be significantly higher than those performed by clerical staff members, which he may also supervise.”

    it did not proceed to consider whether those responsibilities in turn called for the application of the higher order skills.

21. It proceeded to conclude that that fact alone did not mean the applicant was a Business and Information Professional and not a Bank Worker or Credit and Loans Officer.  However the matter requiring consideration was not any particular responsibly but rather the relationship between skill levels and duties and thus whether or not the skill level associated with a Business and Information Professional would be exercised in the performance of the occupation.

22. It did not give that matter consideration.  That issue was critical to determining whether or not the visa applicant was to be classified as a Business and Information Professional.

23. Despite the provisions being a privative clause decision; section 474(1), the decision was one vitiated by jurisdictional error because the Tribunal failed to or ignored relevant material or ultimately asked itself the wrong question; Craig v South Australia (1995) 184 CLR 163. Such a decision is not a privative clause decision; Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 and is amenable to review.

24. In my view the application should succeed on this ground.

Ground 2

1. The second ground advanced by the applicant is that the finding he did not satisfy the Business and Information Professional [nec] occupation category was against the weight of the evidence. 

2. The unchallenged evidence addressed by the visa applicant contained in his manager’s letter of 11 June 2007 was that the duties undertaken by him entailed far more responsibility than those undertaken by a Bank Worker or Credit Officer and that in part his duties would fall within the category of “Business and Information Professional”. 

3. As I have noted above the tasks which assist in classification of Business and Information Professional were never identified and considered by the Tribunal nor were they considered against the requisite skill level for the occupation.  Furthermore the evidence of the visa applicant’s manager was that the duties of the visa applicant exceeded those of the routine kind of tasks consistent with the duties of a Bank Worker.  The clear inference from his unchallenged evidence was that the duties were of a higher order requiring the application of tertiary level skills.

4. The respondent correctly submits that questions of fact and weight attributable to them are not open for review on the hearing of an application of this kind.  However such a conclusion by a Tribunal can be open to review in certain circumstances where there has been an improper consideration of the evidence.  In these circumstances the species of claim by the applicant is more correctly characterised as a claim for judicial review premised upon the respondent’s failure to reasonably reach a conclusion.  That is to say its exercise of the decision making power was improperly used because of the Tribunal’s failure to act upon the unchallenged evidence before it such that its ultimate conclusion was one no reasonable Tribunal would have reached; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 41.

5. In this instance the Tribunal’s approach is puzzling.  The evidence from the visa applicant’s employer is that he is employed in the “officer cadre” to supervise other employees and he has been employed across various of the bank’s departments so he might gain experience in all areas.  It was noted that to be an “effective officer” he required various listed skills suggesting higher level education.  That is a level of education in excess of trade or certificate level.  The duties of an officer were distinguishable from the class noted as “clerical staff”.  Indeed clerical staff appeared to accord with the occupation of “Credit and Loans Officer” or “Bank Worker”.

6. In reaching a conclusion the Tribunal appears to have focussed on “tasks” and not “skill” levels.  Had it given appropriate consideration to the interface of skills to tasks it would not reasonably have reached the view it did. 

7. Upon that basis it follows the Tribunal’s decision was contaminated by error and ought to be reversed.

Ground 3 – The Tribunal asked itself the wrong question

1. On the fourth ground of the amended application the review applicant contended the Tribunal erred by asking itself the wrong question.  He contended the Tribunal asked whether or not the visa applicant was a Bank Worker/Credit and Loan Officer when the question it ought to have asked was whether he was employed as a Business and Information Professional.  He submitted that by failing to ask the correct question the Tribunal did not enquire into the responsibilities of a Business and Information Professional as set out in the ASCO and measure those factors against the visa applicant’s duties.  For reasons that I have addressed earlier I accept the applicant’s submissions on this matter and upon that basis the applicant’s application should succeed.

Conclusion

1. In this application the review applicant seeks review of a decision to clarify the visa applicant’s occupation as “Bank Worker” or “Credit and Loans Officer”.

2. In reaching its conclusion the Tribunal erred by:

   a)      Failure to give proper consideration to the occupation nominated by the visa applicant;

   b)      Reaching a conclusion that was unreasonable in that it was against the weight of the evidence; and

   c)      Failing to ask itself the correct question in addressing a principal issue in the application before it.

3. The application is allowed. 

Orders

1. The Tribunal’s decision of 16 April 2008 be annulled and set aside.

2. The application is remitted to the Tribunal for redetermination in accordance with the law.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:      Beverley Schmidt

Date:              19 November 2008