Kshatry v Minster for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 707
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kshatry v Minster for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 707
File number(s): MLG 141 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 26 August 2022 Catchwords: MIGRATION – skilled visa application – application for judicial review – decision of the Administrative Appeals Tribunal – whether jurisdictional error – whether Administrative Appeals Tribunal adopted correct overall approach – whether the Tribunal erroneously confined itself to ANZSCO information for the purpose of determining whether the Applicant’s nominated qualifications were closely related to the nominated occupation – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) div 5, ss 476, 353, 353B, 357A
Migration Regulations 1994 (Cth) sch 2, regs 1.15F(1), 1.15I(1), 485
Migration Regulations 1994 - Specification of Occupations, a Person or Body, a Country or Countries - IMMI 16/060
Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019
Cases cited: Chawdhury v Minister for Immigration and Citizenship [2010] FMCA 275
Dhimal v Minister for Immigration and Border Protection [2016] FCCA 1094
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43
Kabir v Minister for Immigration and Citizenship [2010] FCA 1164
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v Li [2012] FCAFC 74
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Seema v Minister for Immigration and Citizenship (2012) 203 FCR 537
Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874
Singh v Minister for Immigration and Border Protection [2017] FCA 1108
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Tobon v Minister for Immigration & Anor [2014] FCCA 2208
Vat v Minister for Immigration and Multicultural Affairs [1999] FCA 1762
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 15 July 2022 Date of hearing: 17 June 2022 Place: Hobart Counsel for the Applicant: In person Counsel for the First Respondent: Ms Roscoe Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 141 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUJITA RAUT KSHATRY
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed 18 January 2018 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On the 18 January 2018, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 8 January 2018. The application enlivens this Court’s jurisdiction pursuant to section 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa on 23 December 2015, which was refused by a delegate of the First Respondent on 5 February 2017.
On 8 January 2018, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Applicant a Skilled visa following a hearing on 4 January 2018.
The Application to review the Tribunal’s decision came before me on 17 June 2022 for hearing. The Applicant represented herself and the First Respondent was represented.
JURISDICTIONAL ERROR – RELEVANT PRINCIPLES
For the Applicant to succeed, she needs to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
BASIS OF THE TRIBUNAL DECISION
The Tribunal decided, as disclosed in its reasons dated 8 January 2018, that it affirmed the decision of the delegate to refuse the Applicant a Skilled visa pursuant to subclass 485 on the basis that, while the Applicant’s combined courses of study meets the ‘Australian study requirement’[1] contained in cl 485.221 of Schedule 2 (“the Schedule”) of the Migration Regulations 1994 (Cth)(“the Regulations”),[2] her Advanced Diploma of Management and Diploma of Business Administration are not closely related to her nominated occupation as a Dental Technician and so she does not satisfy cl 485.222 of the Schedule.[3]
[1] As defined in reg 1.15F(1) of the Regulations.
[2] Tribunal’s reasons for decision at [17].
[3] Tribunal’s reasons for decision at [43] and [44].
The Applicant provided evidence to the Tribunal that she had completed three courses, being:[4]
(a)A Diploma of Dental Technology from 3 July 2011 to 3 July 2013;
(b)A Diploma of Business Administration from 27 October 2013 to 2 September 2014; and
(c)An Advanced Diploma of Management from 27 October 2014 to 27 October 2015.
[4] Tribunal’s reasons for decision at [2].
In summary, the Tribunal found that the ‘Australian study requirement’ was satisfied as the Applicant completed multiple registered courses for which the instruction was conducted in English between 2 July 2011 and 27 October 2015,[5] and that the Applicant held an Australian Student visa authorising her to study in Australia for that duration.[6]
[5] Tribunal’s reasons for decision at [13], [15], and [16].
[6] Tribunal’s reasons for decision at [16].
As for the courses of study being closely related to the Applicant’s nominated occupation, the Tribunal accepted that the Diploma of Dental Technology satisfied this requirement.[7]
[7] Tribunal’s reasons for decision at [13] and [23].
The Tribunal identified the applicable Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) classifications for the Applicant’s nominated occupation as Dental Technician ANZSCO 411213 and compared that description to the course content of the Applicant’s studies.[8] The ANZSCO classifications were used as the basis of the assessment preferentially over the Applicant’s own description of her duties and were compared to the content of the Applicant’s courses of study.[9] The Tribunal’s stated:[10]
I considered all five ANZSCO hierarchies for classifying occupations and tasks enlisted under each of the ANZSCO hierarchies. I considered tasks performed and find that none of them list Business Administration, Leadership, or Business Management as tasks undertaken by Dental Technician.
[8] Tribunal’s reasons for decision at [19].
[9] Tribunal’s reasons for decision at [40] and [41].
[10] Tribunal’s reasons for decision at [42].
On this basis, the Tribunal found that the Applicant’s Diploma of Business Administration and Advanced Diploma of Management were not closely related to her nominated occupation of Dental Technician.
APPLICANT’S GROUNDS FOR REVIEW
The application for review relies on four grounds. In summary, they are that the Tribunal:
(a)allegedly failed to act according to substantial justice and merits, contrary to section 353B and 357A(3) of the Act;
(b)concluded that the Applicant’s qualifications were not closely related to her nominated occupation for the purposes of her Visa application in contrast to case law and the general purpose of the ANZSCO, which should be read as a whole;
(c)misunderstood or misapplied applicable law or otherwise failed to find that the qualification is relevant to the nominated occupation and position within a company, and thereby adopted a strict and narrow approach to interpreting ANZSCO;
(d)failed to take into account the evidence of Dr Goldstain and Mr King that the Diploma of Business Administration and Advanced Diploma of Management were closely related to the Applicant’s nominated occupation and position in the company.
Ground One
This ground is general and non-specific, but purports to complain of the Tribunal’s overall approach. The Applicant did not expand on or explain how there may be substance in this complaint.
Grounds Two, Three, and Four
Grounds 2 to 4 fundamentally relate to the similar common contention that the Tribunal erroneously confined itself to ANZSCO information for the purpose of determining whether the Applicant’s nominated qualifications, found to satisfy the requirements of reg 1.15F(1) of the Regulations, were closely related to the nominated occupation of Dental Technician.
It is submitted that the Tribunal either:
·placed sole or too much reliance on the descriptor of a Dental Technician’s skills in ANZSCO; and/or
·too narrowly construed the term “closely related” in cl 485.222 of the Regulations,
and thereby fell into jurisdictional error, including by failing to follow established case law and legal principles. Ground 4 is similar to Grounds 2 and 3, but emphasises the claim that the Tribunal did not consider the evidence of Mr King and Dr Goldstain.
Documents
At the hearing before the Court, in addition to the Application, the applicant relied upon her affidavit filed 2 June 2022. The document consisted of various submissions and statements of belief, and also annexed documents said to be relevant to assessing the relationship between the qualifications and nominated occupation. The First Respondent did not oppose the affidavit being received as partially evidence and partially submissions.
Both parties agreed that the Court Book of relevant documents filed by the First Respondent should be received in evidence, and it was marked as Exhibit A-1 and has been considered to the extent necessary.
The Applicant’s affidavit annexed various documents, some of which were already in the Court Book, and they have been considered. The documents annexed were:
(a)A transcript of the Applicant’s academic record for the Diploma of Dental Technology, as at 3 July 2013;
(b)A certificate of Diploma of Business Administration issued 31 October 2014 with a completion date of 2 September 2014 and a certificate of Advanced Diploma of Management issued 22 February 2016 with completion date of 11 December 2015;
(c)An article from Immigration Daily News concerning a decision of the Federal Circuit Court of Australia in Tobon v Minister for Immigration & Anor [2014] FCCA 2208; and
(d)Internet extracts detailing units required by the National Code for Diploma of Dental Technology along with course information for the same.
The Affidavit also referred to a statement from her employer said to be marked as Annexure “02”, but the document was not attached to the affidavit filed on the electronic court file. Nonetheless, from the Applicant’s submissions at the hearing, it is evident that the statement is that of Mr Peter King which appears in the Court Book at page 132. Mr King also attended the hearing before the Court. In essence, Mr King confirmed that the Applicant’s role as a Dental Technician, in practical reality in the industry, did involve Business Administration and Management skills.
In oral submissions, the Applicant emphasised, by reference to the documents annexed to her affidavit and described at [18(d)] above, that the course units and national competencies for the Diploma of Dental Technology involved considerable business and management content. She asserted that the Tribunal had failed to take into account the whole of the nominated occupation and treated evidence relied upon the by the Applicant is as irrelevant. Instead, she submitted, it improperly confined itself to the information contained in ANZSCO to evaluate whether the Diplomas were closely connected to the nominated occupation of Dental Technician.
FIRST RESPONDENT’S CASE
The First Respondent relied on the written submissions filed on 2 June 2022 and made oral submissions at the hearing consistent with those.
Ground One
The First Respondent submitted that Ground 1 was misconceived because the legislative provisions relied upon are intended to be facultative and not restrictive, enabling the Tribunal to determine matters in accordance with the merits and justice of a case without constraints applicable to courts.[11]
[11] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [77] (regarding the equivalent s 420 in Part 7 of the Act); Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [15]; contra Minister for Immigration and Citizenship v Li [2012] FCAFC 74; Vat v Minister for Immigration and Multicultural Affairs [1999] FCA 1762.
I agree that the provisions sought to be relied upon to demonstrate jurisdictional error in Ground 1 are incapable of giving rise to any substantive right. This is plain from the authorities cited by the First Respondent at [18] of its written submissions.[12]
[12] Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427.
Grounds Two and Three
The First Respondent submitted that Grounds 2 and 3 largely involve the same complaint. It contends that the Applicant’s submissions are contrary to established law and are erroneous. The First Respondent submitted that the Tribunal correctly set out the applicable principles of law at [10] to [21] of the written reasons for decision. In particular, the Tribunal:[13]
(a)Correctly identified the meaning of “closely related”;
(b)Determined that the nature of the nominated occupation is to be determined by reference to ANZSCO, to be read as a whole with a view to identifying and applying information relevant to an understanding of the whole of the nominated occupation; and
(c)Objectively considered the relationship of the Applicant’s qualifications to the ANZSCO definition of the nominated occupation, rather than relying on the Applicant’s own description or view of what the occupation entails or the proximity of the qualifications to the nominated occupation.
[13] Written submissions of the First Respondent at [20].
Ground Four
Concerning Ground 4, the First Respondent submitted that there was no failure on the part of the Tribunal to consider the evidence of Mr King or Dr Goldstain, as is evident from [34] and [37] of the written reasons for decision. Furthermore, the ground simply cavils with the weight the Tribunal gave the evidence the Applicant and her employers. This, the First Respondent says, does not constitute a jurisdictional error.[14]
[14] Written submissions of the First Respondent at [29].
Documents
Counsel for the First Respondent did address in part the Applicant’s affidavit of 2 June 2022. Referring to the Applicant’s submissions about Tobon v the Minister for Immigration Minister for Immigration & Anor [2014] FCCA 2208, counsel submitted that the authority was distinguishable and that it did not have a direct correlation to the issues in the present application for review. The First Respondent highlights that in Tobon the Court was concerned with the use of the Minister’s Procedures Advice Manual for determining if a diploma was “closely related” to a “nominated skilled occupation”,[15] which does not arise in this matter. Accordingly, counsel submitted that the error identified by the Court was not comparable to the error asserted in the present case and the authority is distinguishable.
[15] Tobon v the Minister for Immigration Minister for Immigration & Anor [2014] FCCA 2208 at [35].
QUESTION ARISING
During the course of submissions by counsel for the First Respondent, I raised whether the meaning of “skilled occupation” for the purposes of cl 485.222 of the Regulations permitted and/or required regard to be given to what I described, possibly inelegantly, as subjective/objective evidence about the reality of an occupation in a particular industry, such as that contained in Mr King’s statement.[16]
[16] Statement of 20 December 2017 as contained in the Court Book at page 132.
As this was raised without notice to either party, I made directions permitting the filing of further written submissions confined to this question.
FURTHER WRITTEN SUBMISSIONS
First Respondent
The First Respondent filed further written submissions on 4 July 2022. Those submissions emphasise the distinction in ANZSCO between the meaning of “job” and “occupation”.[17] Further, they highlight the definition of “skilled occupation” in reg 1.15I(1) of the Regulations, being an occupation of the kind that is specified by the relevant Ministerial instrument and in the Skilled Occupation List (“SOL”) within it.
[17] First Respondent’s further written submissions at [4] to [6].
The First Respondent submits that the Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019) (“the instrument”) relevantly applies in this case, and item 194 states “Dental Technician” alongside the ANZSCO code 411213. The instrument also contains a notation to the short-form SOL that the reference to ANZSCO code 411213 is for information only.[18] Nonetheless, the First Respondent submits that it is well-established that the ANZSCO has to be given effect and is intended to import the defining criteria described in the classification.[19] Further, that it is open for a decision maker to inform itself about the nature of the Applicant’s occupation by reference to ANZSCO.[20]
[18] First Respondent’s further written submissions at [7] to [10].
[19] Seema v Minister for Immigration and Citizenship (2012) 203 FCR 537.
[20] Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20].
At [13] and following of the further written submissions, the First Respondent submits that the Tribunal was not required to consider the Applicant’s specific job description for the purpose of assessing whether the study was closely related to the nominated skilled occupation.[21] The First Respondent reiterates that the approach taken by the Tribunal was consistent with applicable law.
[21] Chawdhury v Minister for Immigration and Citizenship [2010] FMCA 275 at [12].
Collectively in the balance of the written submissions, the First Respondent contends that Grounds 2 to 4 amount to the Applicant asserting that the Tribunal should prefer her own evidence and that of her employer about her specific job description rather than the objective definition of the skilled occupation in ANZSCO for determining if the diploma qualifications are closely related to the nominated skilled occupation pursuant to cl 485.222 of the Regulations. Reliance is placed on Kabir v Minister for Immigration and Citizenship [2010] FCA 1164, stating that the approach advanced by the Applicant is not correct as it would cause inconsistency in decision-making. In addition, citing Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874, it is submitted that the Court should not impart a subjective element into the “closely related” test.
The First Respondent submits that the evidence of Mr King about the Applicant’s specific job is subjective and not evidence that ought to have been preferred. In any event, it is said that the Tribunal’s reasoning demonstrates that it took his evidence into account, but ultimately preferred the objective descriptors in ANZSCO.[22]
[22] Tribunal’s reasons for decision at [27] to [29].
However, this submission refers to the principles referred to in Chawdhury and Shafiuzzaman, which did not involve a non-party’s evidence about the nature of the nominated occupation. As a business owner who employs dental technicians, I consider that Mr King’s evidence about the nature of the occupation of dental technician is objective. However, this may not ultimately assist the Applicant’s argument.
Regarding the weight given to the evidence of Mr King, the First Respondent submits this is a matter for the Tribunal and no jurisdictional error is demonstrated in the Tribunal’s reasoning at [34] and [37]. Rather, the Tribunal simply preferred the objective evidence set out in ANZSCO as it was required to do.
Applicant
The Applicant filed further written submissions on 18 July 2022. The Applicant maintains that the Tribunal improperly confined itself to limited information in the ANZSCO task list for the purpose of evaluating whether the whole of the qualification was closely related to the nominated occupation of Dental Technician, and further it dismissed relevant evidence given by her and her employer about business and management tasks involved in the occupation of Dental Technician.[23]
[23] Applicant’s further written submissions at [2] to [3].
The Applicant submits that ANZSCO is not delegated legislation, rather it is a statistical framework and so does not have force of law.[24] Citing Dhimal v Minister for Immigration and Border Protection [2016] FCCA 1094 at [23], she also highlights that ANZSCO itself recognises that it is not a definitive or exhaustive statement of tasks involved in various occupations.[25]
[24] Applicant’s further written submissions at [5].
[25] Applicant’s further written submissions at [6] to [9].
The First Respondent’s reliance on Chawdhury v Minister for Immigration and Citizenship [2010] FMCA 275 as noted at [34] of these reasons is criticised and said to be misplaced.[26]
[26] Applicant’s further written submissions at [10].
Paragraphs [38], [41] and [42] of the Tribunal’s reasons for decision are identified as showing that the Tribunal only took into account the ANZSCO description of tasks for the nominated occupation and purportedly ignored other relevant evidence given about business administration and management tasks which are also involved in the occupation.[27]
[27] Applicant’s further written submissions at [11], [12], [14], [16] to [18], and [24] to [25].
The further written submissions of the Applicant either reiterate or expand upon relevant authorities, most of which were addressed during the hearing.[28]
[28] Applicant’s further written submissions at [13], [15] and [21].
EVALUATION
The Applicant applied for the subclass 485 Visa on 23 December 2015.
No error is asserted about the Tribunal’s findings that the Applicant had met the “Australian study requirement” provided in reg 1.15F(1) and cl 485.221 of Schedule 2 of the Regulations.[29]
[29] Tribunal’s reasons for decision at [17].
Ground One
In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, the High Court considered provisions in the Act relating to Protection visa reviews in Part 7. They are essentially the same in their terms to those referred to in this ground and applicable to Tribunal reviews under Part 5 of the Act. At [77] of the judgment, the Court stated:
Once it is appreciated that s 476(2) does not excuse breach of the rules of natural justice or authorise unreasonable decisions and that s 420 serves to describe the general nature of review proceedings, there is no basis for concluding that the latter section operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. It follows that the Tribunal’s decision is not reviewable, whether in this Court or in the Federal Court, on the ground that the Tribunal failed to observe procedures required by s 420 of the Act.
Directly on point and referring to ss 353 and 357A of the Act is the High Court’s reasoning in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. At [15], the Court stated:
Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) "describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals." Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.
[citations omitted]
The Court’s reasoning at [58] and [59] in Minister for Immigration and Citizenship v Li makes it plain that s 357A of the Act alone does not provide a means of relief grounded on jurisdictional error; more is required. That is, the Applicant must show how not acting in a fair or just manner in some specified way meant the Tribunal failed to carry out its obligations and functions of review.
The Applicant has not particularised what the Tribunal did that was not fair or just or that was contrary to justice and merits. Accordingly there can be no jurisdictional error on the basis of Ground 1 alone.
Grounds 2, 3 and 4
Having considered the authorities referred to by the Applicant and First Respondent, I discern no real or material divergence in the submissions about what the applicable legal principles are. Instead, the parties’ contentions reveal that they are at odds about two issues: first, if the Tribunal considered the whole of the nominated qualifications; and, second, the whole of the relevant evidence about what tasks were involved in the nominated occupation. The second issue raises the question of the how evidence other than that contained in ANZSCO should be treated when determining whether the requirement in cl 485.222 of Schedule 2 of the Regulations is satisfied.
The Tribunal concluded that the Applicant’s Diploma of Business Administration and Advanced Diploma of Management were not closely related to her nominated occupation of Dental Technician,[30] and accordingly the requirements of cl 485.222 of Schedule 2 of the Regulations for grant of the visa were not satisfied.
[30] Tribunal’s reasons for decision at [43].
In arriving at that conclusion, it is self-evident from [18] to [22] of its written reasons for decision that the Tribunal correctly directed itself about the relevant legal principles and case law. The authorities cited and principles expressed therein are those that the parties have cited in their written submissions.
The Tribunal noted that three qualifications were relied upon to meet the Australian study requirement and was satisfied it was met.[31]
[31] Tribunal’s reasons for decision at [17].
Further, it was satisfied that the first nominated qualification, the Diploma of Dental Technology, was closely related to the nominated occupation of Dental Technician.[32]
[32] Tribunal’s reasons for decision at [23].
At [27] of its written reasons, the Tribunal directed itself correctly as to the Full Federal Court decision in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115, which stands for the proposition that the decision maker is required to consider all hierarchy classifications applicable, ie the whole of ANZSCO, to the nominated occupation in order to evaluate whether qualifications are closely related to the nominated occupation.
The Tribunal then proceeded to thoroughly consider each of the hierarchies applicable to the occupation of Dental Technician and made the effort of annexing the relevant task descriptions appearing in the various sub-groups of ANZSCO.[33]
[33] Tribunal’s reasons for decision at [28] to [31].
Having reviewed the Court Book, I consider the Tribunal correctly identified at [34] to [38] of its written reasons the evidence relied upon by the Applicant to establish the requirement that the qualifications are closely related to the occupation of Dental Technician.
At [41] of its reasons, the Tribunal said that it:
…considered the relationship of the applicant’s qualifications to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails…
[emphasis added]
The Applicant says the use of “rather” in the reasons shows the Tribunal excluded consideration of evidence other than ANZSCO information.
The authorities cited by the First Respondent in its further written submissions establish that the assessment of whether the nominated qualification and occupation are closely related must be one undertaken objectively and considering all relevant groups in ANZSCO.[34]
[34] See [24(c)], [33] and [34] of these reasons.
However, in Singh v Minister for Immigration and Border Protection [2017] FCA 1108, Murphy J of the Federal Court held that the assessment is not necessarily exhaustively conducted by reference to ANZSCO and other evidence about the skills entailed in a particular nominated occupation may be relevant. Despite this, he said that the central task of the Tribunal is to apply the information in ANZSCO.[35]
[35] Singh v Minister for Immigration and Border Protection [2017] FCA 1108 at [36].
In addition, I cannot ignore the authorities relied upon by the First Respondent at [13] and [14] of its further written submissions, that information is usually preferred or more reliable because it is objective.
I do not accept the Applicant’s submission that the use of the word “rather” in the reasoning at [41] of the decision conveys that the Tribunal completely discounted other relevant evidence before it for the purpose of assessing whether cl 485.222 was satisfied. The Tribunal has noted the evidence given by the Applicant, Mr King and Dr Goldstain, which reflects consideration of it.
On a fair and complete reading of the Tribunal’s reasons, including the statement at [43] of its reasons that it “considered all the evidence”, the Tribunal’s reasons demonstrate that it preferred the information in ANZSCO to other evidence which was more focussed on the Applicant’s particular job as it was subjective and not as reliable.
The approach described at [61] of these reasons was one entirely open to the Tribunal, because on the authorities and principles referred to at [58] and [59] of these reasons.
Concerning the evidence given by Mr King and Dr Goldstain, it appears that the Tribunal summarised some of this evidence and likely gave it consideration, particularly in light of that stated at [43] of its written reasons that it “considered all the evidence”. Although another decision maker may have given different weight to this evidence, the court does not conduct a merit review and no jurisdictional error arises from how the Tribunal approached the evidence of these witnesses about the job or occupation.[36]
[36] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 297 at [5] per Kiefel, RD Nicholson and Downes JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41] per Mason J.
I reject the submissions that the Tribunal did not consider the fact that the Diploma of Dental Technology required business and management units to be completed, as submitted by the Applicant at [18] and [19] of her further written submissions. It plainly did so, as is apparent from [38] of the written reasons.
The Tribunal was entitled to reject the suggestion that because of the business and management subjects being common in the Diploma of Dental Technology, the other Diplomas were also closely related to the nominated occupation. The required comparison was not of subjects between the qualifications completed but comparison of the whole of the qualifications against the whole of the nominated occupation of Dental Technician. That there was similarity of some subjects across the three diplomas was not relevant to the evaluation the Tribunal was to undertake according to the applicable authorities noted in these reasons.
The Applicant also made a submission about the Minister’s Policy Advice Manual 3 (“PAM”) at [4] of the Applicant’s further written submissions. This was in response to a submission made by the First Respondent at [4] and [8] of the written submissions filed 1 July 2022. No jurisdictional error can apply in connection with the use of PAM by the Tribunal in this case as there is nothing in the written reasons to suggest the Tribunal relied on it, nor does the Applicant submit that the Tribunal did so.
There is no analogy between the nature and use of the PAM and the use of ANZSCO. The reasoning at [45] of El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43 does not assist the Applicant. ANZSCO is expressly adopted to apply by virtue of legislative instrument. The submissions by the Applicant, referred to at [37] of these reasons must be rejected.
For completeness, although the First Respondent submitted that Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019 (“LIN 19/051”) relevantly applied in this case, I do not agree. LIN 19/051 post-dated the Tribunal’s decision and could not have been the operative legislative instrument relevant to this case. Historical review of the various legislative instruments reveal that Migration Regulations 1994 - Specification of Occupations, a Person or Body, a Country or Countries - IMMI 16/060 (“IMMI 16/060”) is applicable in this case. It commenced on 1 July 2016 and remains in effect today according to the Federal Legislation Register. Clause 2 of the instrument expressly provides that it applies “in relation to a person who applies on or after 1 July 2015 but before 1 July 2016 for a Subclass 485 Temporary Graduate visa”.
IMMI16/60, like LIN 19/051, specifies in Schedule 1 that ANZSCO code 411213 applies for the occupation Dental Technician. The relevant ANZSCO version that applied at the time the Applicant applied for her visa was that issued in 2013 and has remained the same, only recently being updated in 2021 after the Tribunal decision. Accordingly, the Tribunal had regard to the correct occupation task descriptors and was obliged to do so by virtue of legislative instrument which does have the force of law.
For all the foregoing reasons, there is no substance in the asserted jurisdictional error and the application for review is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 26 August 2022