Kumaraperu, Mary Suresha v Minister for Immigration and Multicultural Affairs
[1998] FCA 1333
•22 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION LAW – visa application – “points system” – criteria to be satisfied at time of decision – determination of “usual occupation” – determination made according to Australian Standard Classification of Occupations – duty of IRT to ascertain whether applicant’s qualifications considered by relevant Australian authority to be equivalent to Australian Standards for “usual occupation” – whether futile to remit matter to IRT.
WORDS AND PHRASES - “and”, “or” – conjunctive or disjunctive.
Migration Act 1958, ss 92-96, 476(1)
Migration Regulations, reg 2.26, Sch 6.
Rahman v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Davies J, 6 February 1997)
Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Wilcox J, 30 January 1998)
Minister for Immigration and Multicultural Affairs v Ye Hu (1997) 149 ALR 318
Reddy v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Whitlam J, 6 March 1998)
Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291
Re The Licensing Ordinance (1968) 13 FLR 143
R v Oakes [1959] 2 QB 350
Associated Newspapers Ltd v Wavish (1956) 96 CLR 526
Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841
Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
CPH Property Pty Ltd v Commissioner of Taxation (unreported, Federal Court, Hill J, 13 October 1998)
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550
Singh v Bolkus (1996) 42 ALD 239
Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223
Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693
Thompson v Goold & Co [1910] AC 409
Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471
Re Meux; Gilmour v Gilmour [1958] 1 Ch 154
MARY SURESHA KUMARAPERU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 319 of 1997
WEINBERG J
MELBOURNE
22 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 319 of 1997
BETWEEN:
MARY SURESHA KUMARAPERU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
22 OCTOBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application be dismissed, with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 319 of 1997
BETWEEN:
MARY SURESHA KUMARAPERU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
WEINBERG J
DATE:
22 OCTOBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
This application raises for consideration certain of the provisions of the Migration Regulations (“the regulations”). These provisions relate to what is described as the “points” system by which applications for Australian entry visas are determined.
The applicant in the proceedings before the Court, Mary Suresha Kumaraperu, is the sponsor of Shammi Kumar Wickremasinghe. She is also his sister. On 16 October 1995 Mr Wickremasinghe made application for what was then known as a Subclass 105 - Concessional Family (Migrant) (Class AJ) Visa. That class of visa was renamed in 1997. It is now known as Subclass 105 – Skilled Australian Linked Visa. It appears that nothing of consequence turns upon this change of name. Mr Wickremasinghe’s visa application was made also on behalf of his wife, and daughter.
The application was considered initially by a delegate of the Minister. On 11 March 1996, it was refused. The reason given for that refusal was that neither Mr Wickremasinghe, the main applicant, nor his wife, the secondary applicant, had achieved the number of points required to qualify for permanent residence status in this country.
On 22 October 1996 a Review Officer, acting on behalf of the Migration Internal Review Office, conducted an internal review of the delegate’s decision. He affirmed the initial decision by the delegate to refuse Mr Wickremasinghe, his wife and daughter, the visa which they sought.
On 2 June 1997 the Immigration Review Tribunal (“the IRT”) affirmed the decision of the Review Officer.
The present application is brought pursuant to Part 8 of the Migration Act 1958 (“the Act”). It seeks review of the decision of the IRT. Such decisions are “judicially-reviewable” – see s 475(1)(a) of the Act. The grounds upon which they may be reviewed are limited to those set out in s 476(1). In the present case, the applicant relies upon the grounds set out in s 476(1)(a) and s 476(1)(e). In substance, these grounds require the applicant to demonstrate either that procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed, or that the decision involved an error of law.
The factual background to this application
Mr Wickremasinghe was born in Sri Lanka in 1963. He is a Sri Lankan citizen. He currently resides in Melbourne, having arrived in Australia in February 1989, on a student visa. He and his family were, in October 1995, granted temporary residence status.
Mr Wickremasinghe’s employment history since leaving school in Sri Lanka indicates that after completing secondary school, he was employed from 1982 to 1987 by the National Institute of Business Management (“NIBM”) in Colombo as a “computer instructor”. He subsequently found employment with the Computer Business Communication Centre, also located in Colombo. He was employed there from August 1987 to December 1988. In 1988 he undertook studies at NIBM for a Diploma in Computer System Design (equivalent to the first year of a University course). It is not clear whether he completed all the requirements for that Diploma.
In February 1989, upon his arrival in this country, Mr Wickremasinghe enrolled as a student at Swinburne University of Technology. He undertook studies for the degree of Bachelor of Applied Science (Mathematics/Computer Science). He did not, however, complete that degree. Subsequently, he enrolled at the Victoria University of Technology. In May 1994 he graduated from that institution and was admitted to the degree of Bachelor of Business (Computing). Though he at one time contended that this degree had a 100 per cent computing content, it emerged, as will be seen, that this was not so. Its true computing content was approximately 51 per cent.
Between 1989 and 1994, while he engaged in his studies, Mr Wickremasinghe worked part-time, first as a cleaner, and subsequently as a delivery man for a newsagency.
In January 1995, he found employment as an analyst/programmer with a smallgoods manufacturer, All Seasons Smallgoods Pty Ltd. His worked for that company for just under nine months, until September of that year.
The legislative framework
The scheme by which the “points” system is used to determine applications for permanent residence in Australia requires some explanation. Part 2 of the Act deals with control of arrival and presence of non-citizens. Division 3 of Part 2 is headed “Visas for non-citizens”. Contained within Division 3 is Subdivision B. That Subdivision deals with the “points” system. Contained within it are ss 92 to 96 of the Act. They are as follows:
“Operation of Subdivision
92. This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.
Determination of applicant’s score
93. (1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2) In this section:
“prescribed” means prescribed by regulations in force at the time the assessment is made.
Initial application of “points” system
94. (1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the application aside – the Minister is taken to have put the application into a pool.
(4) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.
Applications in pool
When section applies
95. (1) This section applies if the Minister puts an application into a pool.
How applications to be dealt with(2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives notice under section 96 varying the applicable pass mark or the applicable pool mark:
(a) the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and
(b) if that score is more than or equal to the applicable pass mark – the applicant is taken to have received the qualifying score; and
(c) if that score is less than the applicable pool mark – the applicant is taken not to have received the qualifying score; and
(d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark – the application remains in the pool until it is removed from the pool (see subsection (3)).
Removal of applications from pool
(3) An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
(a)the end of 12 months after the assessment of the applicant's assessed score;
(b)the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
(c)the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
Removal from pool after 12 months treated as failure to receive qualifying score
(4) If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.
Minister may set pool mark and pass mark
96. (1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visa, the pool mark for the purposes of this Act and the regulations.
(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
(3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
(5) This Act does not prevent a pool mark and a pass mark from being equal.
(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other.”
Schedule 2 of the regulations contains Subclass 105, formerly known as Concessional Family, but now known as Skilled – Australian Linked. Clause 105.22 sets out the criteria to be satisfied at the time of decision. Clause 105.222 provides that one such criterion is that the applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
Division 2.6 of the regulations deals with “prescribed qualifications” and the application of the “points” system – the matters referred to in s 93 of the Act. It prescribes qualifications for visas and the number of points which are potentially available in relation to each of those qualifications. Regulation 2.26(3) provides that the Minister is not to give an applicant a prescribed number of points for more than one prescribed qualification in each Part of Sch 6 to the regulations. It also requires the Minister to give an applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances, and for which the prescribed number of points is the highest for any such prescribed qualification.
The reference to Sch 6 is of particular importance. That Schedule is divided into a series of Parts. These are:
Part 1 – Employment qualification
Part 2 – Age qualification
Part 3 – Language skill qualification
Part 4 – Relationship qualification
Part 5 – Citizenship qualification
Part 6 – Settlement of sponsor qualification
Part 7 – Location of sponsor qualification.
Each of these qualifications carries with it a number of points which are potentially available to an applicant seeking entry to this country. In the case of employment qualifications under Part 1, a range of points is available, in descending order. It is a feature of the alternative criteria contained within Part 1 that each is predicated upon a determination that the applicant had a “usual occupation”, as defined in reg 2.26(5):
““usual occupation” means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the application for a visa.”
An applicant whose “usual occupation” is a “priority occupation” (a term which is also defined in regulation 2.26(5)) may receive 80 points – see item 6101. An applicant whose educational qualifications are equivalent only to ten years of primary and secondary education in Australia may receive 10 points – see item 6109. There is a host of permutations in between. The number of points which may be allotted as an employment qualification in any given case depends upon which item, within Part 1, is satisfied.
There are three particular items in Part 1 which are relevant to the issues raised by the applicant in the present proceedings. They are items 6102, 6103 and 6107. It is necessary to set out these items, in full.
“Column 1
Item No.
Column 2
Prescribed qualificationColumn 3
Number of
Points6102 The applicant’s usual occupation:
(a) is not a priority occupation; and
(b) is an occupation:
(i) for which, in Australia, a degree or trade certificate is required; or
(ii) that is a professional-equivalent occupation; and
(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f) is an occupation:
(i) in which the applicant has worked or;
(ii) is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.
70 6103 The applicant would meet the qualification specified in item 6102 except that: 60
(a) the applicant did not obtain or complete the qualification referred to in paragraph (c) of that item at least 3 years before the application was made; or
(b) the applicant was not employed in the occupation on the day that is 3 years before the application was made; or
the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made.
60 … 6107 The applicant:
(a) applies to enter Australia:
(i) on the basis of an occupation that is the applicant’s usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and
(ii) as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and
(iii) as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; or
(b) has an occupation:
(i) that is the applicant’s usual occupation; and
(ii) entry to which in Australia requires a degree, diploma, associate diploma or trade certificate; and
in respect of which the applicant has a degree, diploma, associate diploma or trade certificate, or possesses work experience, assessed by the relevant Australian authority as not equivalent to Australian Standards for that occupation.”
25
From its context and its terms the points test for employment set out in Part 1 is intended to provide a rational basis for selecting highly qualified persons to migrate to Australia. The IRT found, as had the Review Officer, and the delegate before him, that Mr Wickremasinghe did not qualify for the 70 points available under item 6102 or the 60 points available under item 6103. He did, however, qualify for the 25 points available under item 6107. When those 25 points were added to the points available to him under Parts 2-7 of Sch 6, Mr Wickremasinghe achieved a total of 80 points.
In 1995, 95 points were required to achieve a “pass mark” or “qualifying score”. The “pool mark” at that time was 90 points. The score required after 1 November 1996 to achieve a “pass mark” is 115 points – see Gaz GN 31 of 7 August 1996. The present “pool mark” is 110 points. Nothing turns on this, however, so far as Mr Wickremasinghe is concerned. He is entitled to be assessed upon the basis of the lower pass and pool marks which applied to him when his application was first assessed in March 1996.
The expression “relevant Australian authority” to which reference is made in item 6102, and which is also therefore applicable (albeit indirectly) to item 6103, is defined in reg 2.26(5) as meaning the National Office of Overseas Skills Recognition within Education (“NOOSR”) or any body authorised by NOOSR to assess educational qualifications or work experience on its behalf.
The issues before the Court
Mr Hurley contended that the IRT had erred in law in affirming the decision by the Review Officer, (and that of the delegate) that the applicant’s brother was entitled to 25 points only, for his employment qualifications under item 6107, rather than 60 points under item 6103.
The arguments relied upon before me differed significantly from those which had been advanced below. It had been contended before the IRT that the delegate had erred in failing to give adequate weight to the views of the relevant Australian authority (ironically, the antithesis of the argument Mr Hurley advanced before me) and that he had erred in applying guidelines which were in conflict with the regulations, and which guidelines were therefore invalid. Mr Hurley accepted that these arguments were without substance. That concession was undoubtedly correct.
In essence, Mr Hurley’s principal arguments before me can be summarised as follows:
The IRT had erred in law in holding that Mr Wickremasinghe failed to satisfy para (c) of Item 6102.
The IRT had erred in law in failing to treat Mr Wickremasinghe as having satisfied the requirements of item 6103. His failure to satisfy paras (e) and (f) of item 6102, (and possibly para (c) as well) meant only that he did not qualify to receive the 70 points potentially available under that item. It did not mean that he was ineligible to receive the 60 points potentially available under item 6103.
Para (c) of item 6102 – the PAM guidelines contention
Mr Hurley developed an interesting argument in support of his contention that the IRT had erred in treating Mr Wickremasinghe as having failed to establish the qualification required in para (c) of item 6102. Mr Wickremasinghe’s occupation was that of computer programmer or, as he described himself, applications programmer. This equated to the “usual occupation” of “computing professional”. Mr Hurley submitted that the IRT had failed to deal properly with the assessment made by the “relevant Australian authority” (as defined in reg 2.26(5)). That authority was a body known as the Australian Computer Society Inc (“the ACS”). The ACS had adopted guidelines for the assessment of computing professionals contained in a document described as the “Procedures Advice Manual” 3, Issue 8, 6 September 1995 (“PAM”). Schedule 6 of PAM, General Points Test Qualifications and Points/Skill Assessment – Computing Professional, contains those guidelines which govern this occupation for the purposes of considering what weight is to be accorded to employment qualifications in migration matters.
The term “Australian standards” to which reference is made in para (c) is not explained in the Act or in the regulations. However, as a matter of policy, the standards for a particular occupation are usually accepted to be those stated in the Australian Standard Classification of Occupations (“ASCO”) Dictionary, or in the PAM guidelines developed for a number of occupations. Where there is an overlap between them, the PAM guidelines generally take precedence over the ASCO Dictionary. This is because those guidelines were developed more recently, and with the regulations specifically in mind – see paras 4.4.1 and 4.4.2 of the instructions issued on 1 June 1995, and the discussion in Rahman v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Davies J, 6 February 1997). In the case of a computing professional, the Australian standards were developed by the ACS which is the generally recognised professional body in this field.
In dealing with a computer programmer the PAM guidelines categorise applicants into one of four groups – A, B, C or D. The relevant skill level required for visa purposes applicable to Mr Wickremasinghe is that contained in Group B. He did not fall within Groups A, C or D. Group B is as follows:
“3.8 Holders of
· an Australian bachelor degree in Computer Science, Information Systems, Electronic Engineering or Computer Systems Engineering; or
· a qualification assessed as comparable to the education level of an Australian bachelor degree in Computer Science, Information Systems, Electronic or Computer Systems Engineering with a relevant computing content of AT LEAST 30%; or
· a qualification assessed as comparable to the educational level of an Australian graduate diploma with a relevant computing content of at least 80%.
3.9In addition to any of the above qualifications, applicants are required to have one year’s relevant, post qualification computing experience. (The only experience counted should be that obtained AFTER completing the relevant tertiary qualifications).” (emphasis added)
The IRT had before it correspondence from the ACS which indicated that it regarded the degree of Bachelor of Business (Computing) which Mr Wickremasinghe had obtained in May 1994 as having a computing content of 51%. He therefore fell within Group B, provided he had “one year’s relevant, post-qualification computing experience”.
The ACS considered that the slightly less than nine months between January and September 1995 which Mr Wickremasinghe had spent working as a computer programmer did not satisfy these PAM guidelines. Accordingly, the ACS concluded that he failed to meet the Australian standards for the occupation “applications programmer”.
The IRT, (as had the Review Officer, and the delegate before him) determined that Mr Wickremasinghe did not meet the requirements of para (c) of item 6102 because his “usual occupation” was not one in respect of which the applicant had a tertiary qualification or work experience assessed by the relevant Australian authority (the ACS) to be equivalent to the Australian standards for that occupation.
Mr Hurley submitted that it had been incumbent upon the IRT to adopt a more flexible approach to the interpretation of the PAM guidelines. In particular, he contended, the IRT should have had regard to the experience which Mr Wickremasinghe had acquired in the field of computer programming before his arrival in Australia. He had been for some years, it was noted, a “computer instructor” in Sri Lanka. This experience should have been taken into account when applying the PAM guidelines. It should have been treated as sufficient, when added to his almost nine months’ post-qualification work experience in Australia, to bring him within Group B of the guidelines.
A major difficulty with this argument is that para (c) of item 6102 has as its underlying premise a recognition that the “relevant Australian authority” is the body responsible for, and best equipped, to determine whether a particular tertiary qualification, or body of work experience, is equivalent to the Australian standards for the particular occupation under consideration. The IRT is, of course, charged with the ultimate responsibility for finding facts. It would not normally be expected, however, to second guess an assessment made by the professional body which is recognised as having the relevant expertise.
The ACS, which Mr Hurley conceded to be the relevant Australian authority, did not recognise a period of just under nine months’ work experience as an analyst/programmer as sufficient to satisfy the Australian standards for computing professionals.
Not only are the PAM guidelines clearly and unambiguously against according such recognition, but so also is the correspondence which passed between the ACS, and the solicitors for Mr Wickremasinghe. That correspondence was before the IRT.
Mr Wickremasinghe’s legal advisors sought information from the ACS in support of their contention that he was entitled to have his tertiary qualifications, together with his work experience, assessed as satisfying the requirements of para (c) of item 6102. In a letter dated 24 June 1996 Mr GB Maynard, a director of the ACS wrote in response to that request, inter alia:
“The applicant has a B.Bus.(Computing) from the Victorian (sic) University of Technology which is Accredited by the Australian Computer Society at Level 1, the top level. As such he was eligible to become an Associate immediately and a full professional member (MACS) after the completion of 4 years of relevant computing experience. He was awarded the degree on 4th May 1994. He has provided evidence of relevant computing experience, supplied by the Managing Director of All Season’s Small Goods and Meat Processing Pty Ltd, which indicates that he worked as an analyst/programmer from 6th January 1995 until 26th September 1995, a period of approximately 9 months.
His work experience gained overseas prior to obtaining his degree, in my view, would not be acceptable as relevant computing experience. The only substantiated experience is that of 9 months …
I am not sure I understand your use of the word “pure” when determining the nature of the degree obtained by the applicant. He has a Bachelor of Business (Computing) from the Victoria University of Technology which has a relevant computing content of 51%. As you are no doubt aware, in accordance with the PAM 3, Issue 8, 6th September 1995 Guidelines, this would attract Group B as “an Australian bachelor degree in Information Systems”. In order to fully satisfy the criterea (sic) for Group B, the applicant would need to have accumulated at least one year’s relevant post-qualification (relevant) computing experience.”
It is difficult to see how this letter from the ACS can be said to be of any assistance to Mr Wickremasinghe. To make the position even clearer, Mr Maynard wrote again on 16 August 1996 to Mr Wickremasinghe’s solicitors, in response to further correspondence from them. He stated:
“Just to make the situation clear in so far as the Australian Computer Society is concerned, your client would not satisfy the requirements for professional membership at Member (MACS) level, nor could he satisfy the requirements for Group B of the PAM 3, Issues 8, relevant post-graduation computing experience.”
It is important to note that Mr Hurley does not challenge the finding by the IRT that Mr Wickremasinghe’s “usual occupation” was that of Computing Professional, ASCO Code 2707. The issue of “usual occupation” is one to be determined by the delegate and, on review, by the Review Officer, and ultimately the IRT. Mr Wickremasinghe himself described his usual occupation as “computer programmer” or “analyst/programmer”. Mr Hurley does not challenge the applicability of the particular PAM guideline adopted by the IRT – only the manner in which that guideline was applied.
In Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Wilcox J, 30 January 1998) his Honour observed:
The reasons given by [the delegate] for determining that Ms Wang’s usual occupation was importer and exporter are sparse in the extreme. But it is apparent [the delegate] approached his task by asking himself which ASCO classification her activities seemed most nearly to fit. This approach was incorrect. Item 6102 of Schedule 6 made no reference to ASCO. The item referred to an applicant’s “usual occupation”. In considering how Ms Wang’s mix of duties and experience ought properly to be described, [the delegate] was entitled to consult ASCO or any other relevant reference work. But he was not bound by the classifications contained in ASCO; there must always be a possibility that the usual occupation of an applicant will not aptly be described in ASCO at all.
I have mentioned Mr Robinson’s argument that [the delegate] should not himself have determined Ms Wang’s usual occupation, but should have referred that question to NOOSR or the Department of Industrial Relations. That is incorrect. Item 6102 of the Regulations requires that the applicant’s “usual occupation” be “not a priority occupation (para (a)) but be an occupation for which, in Australia, a degree or trade certificate is required or is a professional-equivalent occupation” (para (b)). In determining whether a particular applicant meets those requirements the departmental decision-maker necessarily has to determine the applicant’s “usual occupation”. It is only at the next stage, in considering the application of para (c) of the item, that the decision-maker is bound to seek an assessment by the “relevant Australian authority”. That division of function is logical; para (c) is concerned with matters needing a degree of expert judgment, whereas paras (a) and (b) involve mere findings of fact.”
In this passage, Wilcox J recognised the role accorded to the “relevant Australian authority” in providing the expertise which is not ordinarily expected to be found in the hands of the delegate, the Review Officer, or the IRT. Authorities such as Minister for Immigration and Multicultural Affairs v Ye Hu (1997) 149 ALR 318 which deal with erroneous findings by the delegate as to the applicant’s “usual occupation” are not in point when considering not what that “usual occupation” might be, but rather whether the applicant’s background is assessed by the relevant Australian authority to be equivalent to the Australian standards for his particular occupation.
In Choo Ai Lin v Minister for Immigration and Ethnic Affairs (1996) 45 ALD 291 Tamberlin J set aside a decision by the IRT refusing an application for a Class 105 (Concessional Family) visa for permanent entry into Australia. His Honour did so upon the basis that the Tribunal had applied the PAM guidelines as though they had legislative force rather than stating policy. His Honour observed that such guidelines should not be applied without regard to the merits of the case.
It is clear, however, that NOOSR has designated the ACS as the responsible authority for preparing the guidelines for computing professionals to be included in the PAM guidelines which is, of course, the guide prepared for departmental officers when assessing overseas qualifications.
The task which the IRT was required to perform was to ascertain, as an objective fact, what assessment the relevant Australian authority was prepared to make of the qualifications possessed by Mr Wickremasinghe, and whether those qualifications were considered by that authority to be equivalent to the Australian standards for his “usual occupation” – see Reddy v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Whitlam J, 6 March 1998).
In Rahman v Minister for Immigration and Multicultural Affairs (supra) Davies J observed:
“The action taken in the Procedures Advice Manual of specifying, for the purposes of decision-making, criteria for the occupation "waiter/waitress (skilled: silver service)", being the equivalent of ASCO 6505/11, was, in my view, flawed. It is not for the Minister or any member of his department to lay down what is the standard for a relevant occupation. If there is an occupation for which in Australia a trade certificate is required, it is plain that standards for that occupation will be laid down either in a document such as the dictionary or in other documents such as awards or in the publications of educational authorities. That is clear enough from the mere fact that the criteria of a trade certificate refer to an indenture apprenticeship or training contract required by state or territory industrial training legislation or a relevant federal state or territory industrial award. Documents such as that set out the requirements of the occupation and the training required for it, and it is not for the Minister or a member of his staff to determine for himself what is an occupation and what are the standards for that occupation.
It is also to be noted that the test of equivalence is a test which is to be considered in the first place by NOOSR or by the Department of Industrial Relations and, only if the circumstances of a case preclude one of those bodies from determining the matter, then by the Minister. By relying on the Procedures Advice Manual and by putting out of his mind the standard as set out in the dictionary, the decision‑maker made an error of law.”
The ACS was specifically and repeatedly asked by Mr Wickremasinghe’s legal advisors to acknowledge that his credentials were equivalent to the Australian standards for a computing professional. The ACS regarded the material concerning Mr Wickremasinghe’s prior experience as a “computer instructor” in Sri Lanka as being “unsubstantiated”. Moreover, whatever meaning the designation “computer instructor” might have, it was irrelevant when considering whether he had acquired the twelve months’ post-qualification experience which the ACS had written into the guidelines, and upon which it chose to insist .
There may be cases where the approach adopted by the IRT may be characterised as an inflexible application of what is, in substance, a policy rather than a rule with legislative force. This case is not, in my opinion, one of them.
It must be remembered that the basis of any attack upon the decision of the IRT is limited by s 476(1) of the Act. While one may have some sympathy for Mr Hurley’s contention that the requirement imposed by the ACS of one year of post tertiary work experience is arbitrary, that could be said of any period stipulated by any professional body as being the minimum necessary to meet the relevant standards.
I can discern no error of law in the manner in which the IRT approached the question whether the ACS regarded Mr Wickremasinghe’s combination of tertiary qualifications and work experience as being sufficient to establish his entitlement to be recognised as falling within Group B of the PAM guidelines.
I reject the contention that the IRT (or for that matter, the delegate, or the Review Officer) erred in law in holding that Mr Wickremasinghe did not meet the qualifications required under para (c) of item 6102.
Item 6103 – the “and/or” contention
An error by the IRT in its approach to para (c) of item 6102 would not lead to the conclusion that Mr Wickremasinghe was entitled to receive the 70 points potentially available under that item. Plainly, he was not so entitled.
Mr Wickremasinghe’s “usual occupation” as defined in reg 2.26(5), viz an occupation that he had engaged in for gain or reward for at least six months continuously during the period of two years immediately preceding his application for a visa, was not one in which he was engaged on 16 October 1992, three years before the day on which he made his application for a Concessional Family Visa. He was at that time a student, working part-time as a cleaner. He therefore failed to meet the qualification required in para (e) of item 6102.
Moreover, Mr Wickremasinghe’s “usual occupation” was not one in which he had worked for a period of two years, or periods that totalled two years, in the period of three years ending on the day before he made his application for the relevant visa, namely 16 October 1995. He failed also therefore to meet the qualification required in para (f) of item 6102.
In order to make good his contention that Mr Wickremasinghe was entitled to the 60 points potentially available under item 6103, Mr Hurley was obliged to argue that the word “or” in item 6103 should be read as though it encompassed the expression “and/or”.
In effect, his argument was that although item 6102 laid down six separate conditions, each one of which must be met if the 70 points potentially available under that item are to be allotted, item 6103 permitted dispensation from a maximum of three of those conditions. Paras (c), (e) and (f) of item 6102 could all be dispensed with, and the 60 points potentially available under item 6103 allotted to Mr Wickremasinghe because paras (a), (b) and (c) of item 6103 were to be read conjunctively, and not disjunctively.
While the ingenuity of this argument may be acknowledged, it seems to me that it must fail. The fact that under item 6103, 60 points are available to an applicant who fails to meet one of the three conditions required under the earlier item 6102, does not mean that those 60 points are also available where two or more of those conditions are not met. Contrary to Mr Hurley’s submission, the word “or” in item 6103 does not, in my opinion, mean “and/or”.
So much accords with ordinary rules of construction. In ordinary parlance the word “and” is used conjunctively, and the word “or” disjunctively. The circumstances in which the Courts are prepared to read “and “ as “or” or vice versa are quite limited – see generally Re The Licensing Ordinance (1968) 13 FLR 143 at 147 per Blackburn J; R v Oakes [1959] 2 QB 350 where it was held that the word “and” where it appeared in a section of the Official Secrets Act 1920 (UK) providing “Any person who … aids or abets and does any act preparatory to the commission of an offence” was a mistake for “or”; and Associated Newspapers Ltd v Wavish (1956) 96 CLR 526. See generally DC Pearce and RS Geddes, Statutory Interpretation in Australia 4th ed 1996 para 2.15. The choice of the word “or” rather than the word “and” seems to have been deliberate – see for example para (c) of item 6102 where both words are used - the former to signify the disjunctive, and the latter the conjunctive. It also accords with the context in which items 6102 and 6103 are to be found – namely a gradually descending scale in which minor variations in prescribed qualifications produce minor variations in points allotted.
In Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609 Einfeld J dealt with a similar contention to that advanced by Mr Hurley. The applicant in that case submitted that the word “or” between paras (a), (b) and (c) of item 6103 should be interpreted as meaning “and/or” so that an applicant could rely on one, or a combination, of the exceptions contained therein. Einfeld J noted that there are authorities to support the contention that in some instances the words “and” or “or” in legislation can be read disjunctively and conjunctively respectively where the context so requires. This would be so where to do otherwise would lead to absurdity. As his Honour noted at 617:
“In Brown & Co Ltd v Harrison [1927] 43 TLR 633, Atkin LJ said (at 639):
I disagree with the learned judge in his view that the word ‘or’ can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use.”
Einfeld J went on to state:
“In Item 6103, however, the literal reading of the word “or” as disjunctive does not lead to absurdity. Indeed, to read “or” as “and/or” goes against the plain meaning of the regulation. In my belief, treating the alternatives in paras (a), (b) and (c) as mutually exclusive accords with the intention of the legislature to provide that an applicant’s inability to comply with a requirement in item 6102 be partially excused. What was intended was that only visa applicants who, to meet the qualifications specified in item 6102, need to take advantage of just one of the available exceptions in item 6103, are to qualify for 60 points. It is neither repugnant nor nonsensical that by reason of limited experience and a consequent failure to comply with more than one of the requirements in item 6102, an applicant should also fail under item 6103. It is the alternative proposition that would give rise to an anomalous result.”
His Honour also observed:
“The difference of only 10 points between items 6102 and 6103 also suggests that the difference in employment qualifications between applicants who succeed under these items should not be great. Item 6103 can apply for example to a person who has worked for a considerable number of years in an occupation but has only within the last three years completed a degree or some other qualification that meets Australian standards for that occupation. I do not believe that it is intended to apply to a person, such as the applicant, who neither possessed the required tertiary qualifications nor had achieved the required work experience in the three years prior to the date of her visa application.”
It seems to me that this reasoning is cogent and highly persuasive. Prima facie, the words “and” and “or” should be construed conjunctively and disjunctively respectively, and not in any other sense. There is nothing in the context in which these words appear which suggests that the person who drafted the regulations had in mind a different usage. Nor is it repugnant or absurd to use these words just as they are generally used in common parlance. See Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304 per Gibbs CJ, and 319-321 per Mason and Wilson JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 394-6 per Merkel J and CPH Property Pty Ltd v Commissioner of Taxation (unreported, Federal Court, Hill J, 13 October 1998).
It follows that even if I were persuaded by Mr Hurley that the IRT erred in the manner in which it dealt with the PAM guidelines, and that Mr Wickremasinghe should have been treated as having satisfied para (c) of item 6102, I would still disallow this application. Mr Wickremasinghe is no more entitled to receive the 60 points which are potentially available under item 6103 if he fails to satisfy two of the conditions required under item 6102 than if he fails to satisfy three of those conditions.
It follows also that in my opinion it would be futile to remit this matter to the IRT even if I were satisfied it had erred in finding that Mr Wickremasinghe had not satisfied the requirements of para (c) of item 6102. He would still fail to qualify for the points potentially available under item 6103. Futile applications are not remitted for reconsideration – see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 per Sackville J; Singh v Bolkus (1996) 42 ALD 239 at 240 per Beaumont J; Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 per Sackville J and Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693.
Item 6103 – an alternative submission
Mr Hurley endeavoured, in the course of his reply to the respondent’s submissions, to advance an alternative contention, namely that item 6103 should be read as though the word “now” appeared in the first line. It would therefore read “the applicant would now meet the qualifications specified in item 6102”. Acceptance of this contention would, for example, overcome the difficulty associated with Mr Wickremasinghe having failed to satisfy para (c) of item 6102 because the IRT had not determined his case until 2 June 1997. By that time more than three years had elapsed from 4 May 1994, the date he was admitted to his degree. Mr Hurley acknowledged that this alternative argument had occurred to him only after he had put his primary submissions, and while his opponent, Mr Mosley, was on his feet.
I am unable to accept this submission.
In Thompson v Goold & Co [1910] AC 409 Lord Mersey stated at 420:
“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.”
See also Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 475-6 per Northrop and Pincus JJ citing with approval the words of Wynn-Parry J in Re Meux; Gilmour v Gilmour [1958] 1 Ch 154 at 161:
“In this connexion it is to be remembered that the court is always hesitant to read words into a statute ... ‘Words plainly should not be added by implication into a statute unless it is necessary to do so to give the language sense and meaning in its context ...’”
The links between items 6102 and 6103 seem to me to be clear. Paragraphs (c), (e) and (f) of item 6102 correlate with paras (a), (b) and (c) of item 6103. It is impossible to advance any sensible reason why item 6103 should be given a different temporal operation to that which governs item 6102.
Moreover, it makes no sense to interpose the word “now” in the first line of item 6103 having regard to the object which that item was intended to serve. This was to provide a “consolation prize” of 60 points to those who fail namely to establish all of the conditions necessary to come within item 6102. Where one such condition is not met, that failure can be excused, and 60 points allotted. The “consolation prize” was not intended to be awarded to those who fail at the time of their application to enter this country to meet the conditions required under item 6102, but later acquire some of the qualifications or experience previously lacking. Had item 6103 been intended to operate in that manner, it would have been drafted differently.
To interpose the word “now” at the point suggested by Mr Hurley would detract from the plain meaning of item 6103. It would treat past events, which are central to the operation of item 6102, as inconsequential if overcome by later developments. If an applicant must have attained a tertiary qualification of a particular type “at least 3 years before the relevant application is made”, that requirement cannot be overcome by demonstrating that the applicant has acquired that tertiary qualification at a date less than three years before the relevant application is made, but more than three years before it is finally determined. To give item 6103 such an ambulatory effect would lead to strange results. Delay in hearing the application would, of itself, cure what were fundamental difficulties in having failed to meet the conditions required in item 6102. Item 6103 would become available by the mere effluxion of time, and for no other reason.
While Mr Hurley’s submission might be able to be applied to para (a) of item 6103 (on the basis that while the requisite three year period had not passed at the time the application was made, that period had passed by 2 June 1997, the date the IRT determined this application), his suggested interposition of the word “now” could not be given any sensible meaning when applied to paras (b) and (c) of item 6103. The date chosen for the operation of these paras, namely the day the application was made, would have to be rewritten as the day the application was determined. Moreover, there is no justification for interposing the word “now” into item 6103 so that it applies to para (a) of that item, but not paras (b) and (c).
Item 6103 must, in my opinion, operate wholly in tandem with item 6102. The two items cannot be disconnected, and made to operate on a different temporal plane.
Conclusion
Mr Hurley accepted that if Mr Wickremasinghe failed to establish that he fell within item 6103, he would necessarily fall within item 6107. That would entitle him to 25 points only for his employment qualifications, and leave him with a total of 80 points. That total of 80 points falls short of both the “pass mark”, and the “pool mark” in his case.
It was not disputed before me that Mrs Wickremasinghe who, as the secondary applicant, received 55 points, also fell short of the points required for entry.
It follows that the application must be dismissed, with costs.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg
Associate:
Dated:
Counsel for the Applicant: Mr T Hurley Solicitor for the Applicant: Barlow & Co Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 September 1998 Date of Judgment: 22 October 1998
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