Kumar v Minister for Immigration - [2016] FCCA 3332

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3332

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether applicant’s courses of study were closely related to his nominated profession – whether Tribunal failed to consider relevant parts of ANZSCO code – Tribunal’s decision open on the facts – application dismissed.

Legislation:

Migration Regulations 1994, cl.485.213

Cases cited:
Tobon v Minister for Immigration & Anor [2014] FCCA 2208
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

First Applicant:

NARESH KUMAR

Second Applicant:

GURJINDER KAUR

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1991 of 2014

Judgment of:

Judge Burchardt

Hearing date:

10 November 2016

Date of Last Submission:

10 November 2016

Delivered at:

Melbourne

Delivered on:

22 December 2016

REPRESENTATION

Counsel for the Applicants:

Mr Kumar appearing in person

Counsel for the Respondent:

Ms Tan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 4 March 2016 be dismissed.
That the applicants pay the first respondent’s costs of the proceeding fixed in the sum of 7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1991 of 2014

NARESH KUMAR

First Applicant

GURJINDER KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed on 4 March 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (then the Migration Review Tribunal) dated 12 September 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Skilled (Provisional) (Class VC) visas.
Although the matter has an extensive procedural history which is referred to in the reasons for decision given by the Tribunal, the issue as it ultimately stands is a short one and is well described at paragraph 37 of the Tribunal’s decision, Court Book (“CB”) 165 , as:
The question is whether the Diploma of Business and the Diploma of Management are each closely related to the occupation of Pastry Cook.
The Tribunal found that they were not, and the application failed accordingly. For the reasons that follow, I think that the Tribunal was correct.
The applicants filed written submissions contemporaneously with the amended application. The three grounds of application are not, as the first respondent’s written submissions point out, entirely easy to construe. The first dot point in the grounds of application appears to suggest that the Tribunal misconstrued or misapplied cl.485.213(b) of schedule 2 to the Migration Regulations 1994. The second and third grounds appear to suggest that the Tribunal misunderstood or misconstrued the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”), descriptions either by ignoring evidence advanced by the applicant or by impermissibly confining the parts of the ANZSCO description to which the Tribunal turned its mind.
The written submissions filed essentially seek to refer the Court to the decision of Judge Manousaridis in Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (“Tobon”) and that of the Federal Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (“Talha”).
The Tribunal’s decision is at CB160-167. The Tribunal noted the history of the applicant’s time in Australia (the second applicant is a dependent of the first applicant and nothing turns upon her circumstances). The Tribunal noted at paragraph 18 (CB161) that the main focus of the hearing before it:
…was on the question whether each qualification used to satisfy the Australian Study Requirement was “closely related to the applicant’s nominated skilled occupation”, as required by clause 485.213(b). Prior to the hearing the Tribunal received a submission in writing. At the hearing the applicant confirmed its contents, including the statement that he had been working as a Pastry Cook for many years during which time he had also been involved in the management of the business as his employer had repeatedly asked him to. It was submitted that even though his occupation was Pastry Cook, for the applicant to establish and run a successful bakery business he needed not only pastry and baking skills but also business and management skills and knowledge. As a business owner he would need to know the basics of running a business and managing people, processes and products. The applicant did not want to continue working for someone else but eventually wanted to have his own bakery. His Business and Management qualifications were actually also helping him in his current work and his employer was very happy with him. The applicant added that he gained some management experience during the six months that he worked before he started his present job and that that made him a more attractive prospective employee.
The applicant’s representative referred the Tribunal to a decision by the Tribunal, differently constituted, in 0807011 [2010] MRTA 1555 that he said supported the applicant’s case. The Tribunal noted some decisions that appeared to point the other way and observed that none of these decisions were binding. The representative also highlighted that part of ANZSCO headed “Minor Group 351 Food Trades Workers” where it is stated that the tasks include “planning menus, estimating food and labour costs, and ordering food supplies”.
The Tribunal noted at paragraph 21 (CB162):
The primary criteria for the grant of a Subclass 485 visa include a two pronged requirement that the applicant satisfies the ‘Australian study requirement’, on the basis of qualifications that are closely related to the occupation the applicant has nominated for the visa (cl.485.213).
The Tribunal went on to consider whether the applicant met the Australia study requirement and focused on the three courses referred to in the visa application (paragraph 24, CB163). The Tribunal found at paragraph 27 that the applicant did satisfy the Australian study requirement in the six months immediately before the visa application date and therefore met cl.485.213(a).
The Tribunal then went on to examine the question whether the qualifications were closely related to the nominated occupation. The Tribunal noted that the decision upon which the applicant had sought to rely from the Migration Review Tribunal involved an earlier iteration of departmental policy. The current PAM3 policy was (paragraph 31, CB163):
[T]he 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.
Having noted that PAM3 had changed over time, the Tribunal observed at paragraph 33, CB164 that “PAM3 is, of course, not binding on the Tribunal in any event.”
The gravamen of the decision seems to me to be at paragraphs 36-37 where the Tribunal said:
As the regulation now under consideration states, each qualification must be closely related to the nominated occupation. The words “closely” and “nominated” are especially important. Each qualification must be closely related, not merely related. Each qualification must be closely related to the nominated occupation, not the applicant’s “own employment conditions” or to “some different occupational classification which might later be pursued by” him.
The question is whether the Diploma of Business and the Diploma of Management are each closely related to the occupation of Pastry Cook. A finding that the Diploma of Business course is not closely related to the nominated occupation would be sufficient to produce the result that the applicant does not satisfy cl.485.213(b), but the Tribunal considers that neither that course nor the Diploma of Management are closely related to the nominated occupation.
The Tribunal then set out the relevant part of ANZSCO at paragraph 38 for bakers and pastry cooks and went on at paragraphs 39-40:
The Tribunal accepts that the applicant has acquired business knowledge that has made him more attractive to his employer and probably helped to equip him to operate his own business in future. The Tribunal however does not accept that the Diploma of Business or the Diploma of Management are closely related to his nominated occupation. This is because there is nothing in the ANZSCO definition that involves business or management knowledge or skills. Instead the definition consists of aspects of the practicalities of baking.
As noted, the applicant’s representative drew the Tribunal’s attention to the tasks listed in ANZSCO for “Minor Group 351 Food Trades Workers” that included “planning menus, estimating food and labour costs, and ordering food supplies.” That stands among other, more obvious, practical tasks undertaken by food trades workers. As the Tribunal must consider, whether the qualification is closely related to the nomination of Pastry Cook, it is to the definition of Pastry Cook that the Tribunal has first regard. But in any event, the task highlighted by the applicant’s representative has to be properly considered in its context. The selection of ANZSCO where that appears begins with this statement: “FOOD TRADES WORKERS bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments”. Considered in that context, the task of estimating food and labour costs, while an important one, is a relatively low level one. In the Tribunal’s view, neither the Diploma of Business nor the Diploma of Management is closely related to that. Whatever may be said about that question, for the reasons given, the Tribunal finds that neither the Diploma of Business nor the Diploma of Management is closely related to the applicant’s nominated occupation.
On this footing, the Tribunal found that the applicant did not satisfy cl.485.213(b) and rejected the application.
The written submissions of the first respondent note at paragraph 28, having set out the grounds of review in the amended application:
Due to the unparticularised nature of the applicant’s grounds of review, it is difficult for the Minister to respond to the Application in any detailed way. Nonetheless, a fair reading of the Tribunal’s decision does not suggest that it is affected by jurisdictional error.
The submissions go on to examine the following three questions:
a)whether the Tribunal misconstrued the ANZSCO code;
b)whether the Tribunal made an error of law such that it committed a jurisdictional error; and
c)whether the applicant was afforded procedural fairness.
The first submission made is that, unlike the decision in Talha, in this case the Tribunal did not fail to consider any claim or statement made by the applicants. The Tribunal took into account the tasks performed by a pastry cook from ANZSCO Unit Group 3511 and the Minor Group 351 Food Trades Workers Code. There is nothing in the materials to suggest that the Tribunal impermissibly failed to have regard to the code as a whole.
The written submissions go on to distinguish the decision of Judge Manousaridis in Tobon, in my view, effectively. The submissions note that in this case the Tribunal did not apply PAM3 but used the language of the Migration Regulations themselves.
The submissions assert that the Tribunal had regard to the applicable law and noted that the Tribunal in particular had accepted that the applicant satisfied the Australian Study Requirement but submitted that the Tribunal made a finding open to it that the courses upon which the applicant relied were not closely related to his nominated profession.
Finally, it was submitted that, and in my view there can be no doubt correctly, that the applicant was accorded procedural fairness within the requirements of the legislative scheme.
When the matter came before the Court, the applicant, who was self-represented referred to paragraph 40 of the Tribunal’s decision. This was the finding that his study was not closely related to his work. He asserted that the Member thought that it should be 50 or 70 per cent. He handed up as exhibit A1 documents relating to the study requirements and as A2 a decision of the Tribunal which, however, turned on easily distinguishable facts involving a different version of government departmental policy at that time.
Counsel for the Minister was content to rely upon the written submissions filed. It was submitted that the Tribunal had correctly applied the law, including the decision in Tobon and submitted that the applicant was seeking merits review.
In reply, the applicant asserted that the ANZSCO is not about particular jobs. The code has different levels and different tasks. He referred to his Certificate III which had taken two years during which he had worked, and also to his Certificate IV in Patisserie.
The Tribunal clearly understood what the relevant law to be applied was. The issue in the case was, as the Tribunal correctly observed, whether, first, the applicant met the Australian Study Requirement and, second, whether the courses relied upon in the period prior to the relevant six month period were closely related to his nominated occupation. There is no doubt that the Tribunal was well seized of the task before it and applied itself properly to that task.
There is nothing to suggest that the Tribunal failed to have regard to some aspect of the ANZSCO code that was relevant. The finding the Tribunal made was effectively the Diploma of Management and the Diploma of Business were at a level of superiority (a word I choose as an antonym to the low level described by the Tribunal) in regard to the tasks of estimating food and labour costs such that the courses simply did not accord even with a broader version of the pastry cook’s activities to which the applicant’s advisors had referred.
On any view of the matter, this was an evaluative exercise, and the decision of the Tribunal, in my view, was one that was open to it on those facts.
It follows that the Tribunal has not fallen into jurisdictional error in any way. The application must be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 22 December 2016