Mansha v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 57
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 57
File number(s): MLG 901 of 2020 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 January 2025 Catchwords: MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) visa – decision of Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – whether the applicant’s qualifications were closely related to his nominated skilled occupation pursuant to cl 485.222 of the Migration Regulations 1994 (Cth) – whether the Tribunal gave adequate reasons for its decision –– whether the Tribunal failed to exercise its review jurisdiction – application dismissed Legislation: Migration Act 1958 (Cth) ss 368, 430, 476
Migration Regulations 1994 (Cth) regs 1.03,1.15F, cll 485.221, 485.222
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157
Minister for immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Gutierrez (1999) 92 FCR 296; [1999] FCA 990
Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 4 December 2024 Date of hearing: 4 December 2024 Place: Melbourne Counsel for the Applicant: Mr A. Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J. Lessing Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 901 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NOUMAN MANSHA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The applicant’s application for judicial review filed on 16 March 2020 as amended 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 CUTHBERTSON
INTRODUCTION
The applicant, a citizen of Pakistan, applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa on 13 September 2017 to work as a painting trades worker. On 16 November 2017, a delegate of the Minister (the delegate) refused to grant the visa on the basis they were not satisfied the qualification used to satisfy the Australian Study requirement for the visa was closely related to the applicant’s nominated occupation. The applicant applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision on 29 November 2017 (review application). On 10 February 2020, the Tribunal affirmed the delegate’s decision.
On 16 March 2020 the applicant applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) (the application). The Minister opposes the application. The issue arising from the application is whether the Tribunal gave adequate reasons for its conclusion that one of the qualifications relied upon by the applicant in support of his visa application was not closely related to his nominated occupation. For the reasons that follow, the application is dismissed.
BACKGROUND
The information before the delegate and the Tribunal demonstrated the applicant had, prior to applying for the visa, completed the following courses of study in Australia:
(a)Diploma of Building & Construction (Management) – commenced 15 October 2016 and completed 12 September 2017; and
(b)Certificate III in Painting & Decoration – commenced 15 August 2015 and completed 15 October 2016.
On 16 January 2020, the Tribunal wrote to the applicant’s migration agent inviting the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case. The letter also requested that the applicant read, complete and return an enclosed ‘Response to hearing invitation - MR Division’ form. He was also asked to use this form or attach any additional information if he had any requests or new information which he wished the Tribunal to consider.
The applicant’s migration agent returned the form to the Tribunal on 4 February 2020. It requested the Tribunal take oral evidence from two witnesses. The first of those witnesses, Mr Sulic was the applicant’s employer. The form explained Mr Sulic would provide information on how the applicant’s Diploma of Construction Management helped him in the business to work as a painter. The second witness, Mr Usman, was the applicant’s friend and classmate. The form explained Mr Usman studied the same course with the applicant and was granted a 485 visa almost at the same time the applicant applied for the visa.
The applicant also provided a written submission to the Tribunal. In addressing the issue of whether the applicant’s qualifications were closely related to his nominated skilled occupation, it was noted the term “closely related” is not defined in legislation. It was argued the term requires and calls attention to the connection between two things. It was acknowledged that although the words “closely related” do not require an exact correspondence, the relationship must be more than merely complementary. The Tribunal was referred to the decisions in Minister for Immigration and Border Protection v Dhillon(2014) 227 FCR 525; [2014] FCAFC 157 at [20] and Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115 at [56], per Griffiths, Mortimer and Beach JJ.
The submission then set out the ANZSCO defined Painting Trades Worker tasks. It explained how the subjects studied during the Diploma of Building and Construction (Management) related to those tasks. Although it was acknowledged there was no specific mention of tasks relating to management duties in the ANZSCO definition for the nominated occupation, the submission argued the course was more than merely complementary to the role of painter and set out the basis for the applicant’s belief the skills obtained from the qualification would benefit him or be useful in the future.
The Tribunal’s hearing was conducted on 7 February 2020. The applicant attended in person with the assistance of his migration agent and an interpreter in the Urdu language. The hearing record does not indicate any documents were received during the course of the hearing.
On 10 February 2020 the Tribunal affirmed the delegate’s decision not to grant the applicant's visa. The applicant’s migration agent was notified of the decision by email on 13 February 2020.
THE TRIBUNAL’S DECISION
The Tribunal’s statement of decision and reasons noted the criteria set out in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) which the applicant had to satisfy to be eligible for the grant of the visa. It identified the issues in this case were whether the applicant met the Australian study requirement in the 6 months immediately preceding the day the visa application was made pursuant to cl 485.221, and whether each of the qualifications used to satisfy that requirement were closely related to the applicant’s nominated skilled occupation pursuant to cl 485.222: at [6].
In relation to cl 485.221 of the Regulations, the Tribunal noted the applicant had studied and completed the Certificate III and Diploma. The Tribunal found the applicant had completed both courses within the 6 months immediately before the day the visa application was made as the Diploma had been completed on 15 March 2017 and the applicant applied for this visa on 13 September 2017: at [11]-[16]. This was in fact incorrect. The Tribunal erroneously referred to academic transcripts submitted by the applicant relating to his friend and proposed witness, Mr Usman. Nothing, however, turns on this error. The subjects set out in the academic transcripts for Mr Usman and the applicant are relevantly the same. The last of the courses studied and relied upon by the applicant was completed in the required time frame. The Tribunal also found the applicant otherwise met the study requirements under cl 485.221.
The Tribunal, however, was not satisfied the applicant met cl 485.222 of Sch 2 to the Regulations. The Tribunal asked the applicant to respond to the delegate’s concerns as set out in the primary decision record. The Tribunal noted the delegate had looked at the ANZSCO description of Painting Trades Worker and noted it did not contain any building and construction management activities. The Tribunal also noted the delegate stated that although the diploma could be capable of assisting the applicant in a future career plan, this was not enough to satisfy the delegate that it was closely related: [20].
The Tribunal outlined the applicant’s responses as follows:
22. The applicant responded with a summary of his employment in the painting industry and how he sought to work on large-scale commercial projects with bigger companies which led him to his current employment. The applicant submitted that when he applied for this job, his employer told him if he had better qualifications he could be offered more pay and a better position. The applicant submitted that he is the 'Head Painter' for the business and he is in charge of all other painters. He submitted that his diploma has taught him to manage and lead his team and delegate work according to each team member's skill level and strengths. Further, the applicant submitted that when his employer is absent he takes over financial management of the company. The applicant conceded that this was not a painter's job but stated that he wants to 'be on top of the painters.' In addition he stated that his diploma has equipped him with risk management knowledge which he requires as he is responsible for all other painters.
23. The Tribunal considers that the applicant's submissions focussed on how the Diploma has assisted him with his career progression from a painter to more of a managerial or supervisory role.
24. In this regard the Tribunal shares the delegate's concern that although a Diploma of Building and Construction (Management) could be capable of assisting in a future career plan and career progression, this is not enough to satisfy the requirement that it be closely related.
25. The Tribunal acknowledges the applicant's submissions that he wanted a Diploma of Building and Construction (Management) because he wants to progress his career and 'be on top of the painters'. However it considers that the assessment of whether or not it is 'closely related' must be against the nominated occupation itself and not against a managerial or supervisory position.
26. In the Tribunal's view, if the applicant wants to work as a business manager, this goes further than his nominated occupation of Painting Trades Worker. The Tribunal cannot consider the qualification in relation to the applicant's intended occupations, rather than the nominated occupation.
27. The Tribunal considers this a crucial point that carries no favourable weight for the applicant.
The Tribunal also heard evidence from the applicant’s employer. The decision referred to that evidence as follows:
28. The Tribunal heard evidence from Mr Sulic who is the owner of the company that employs the applicant. Mr Sulic told the Tribunal that he has owned and operated his company in various forms since 1999. He said that the applicant began working for him in 2015 as a painter. Mr Sulic stated that due to health problems he has had to take time away from the company and during that time the applicant took over the running of the business and managed it all himself.
29. Mr Sulic went on to confirm that the applicant did not just undertake painting duties but that he did the paperwork of the business and recruited new people as needed.
30. The Tribunal considers that this suggests the applicant has moved beyond the role of his nominated occupation and that although the skills he now uses as the business manager and lead painter may have been obtained in his Diploma, it does not demonstrate that these skills are closely related for the usual position of a regular painter. The Tribunal refers to its reasoning above regarding the assessment having to be against the nominated occupation and not a business manager or supervisor.
The applicant identified several skills he obtained as a result of undertaking the diploma. The Tribunal considered “more of these skills seem to be covered by units on the academic transcript for the applicant’s Certificate III than for his Diploma”: at [31]- [33]. The Tribunal also noted:
36. The Tribunal is not persuaded by the applicant's response and considers that it appears the applicant's Certificate III is much more relevant and closely related to his nominated occupation even based on the particular duties he has identified himself. In the Tribunal's view, the units contained on the applicant's academic transcript for his Diploma, did not appear to be closely related to the specific duties identified by the applicant above.
The Tribunal also stated it was not persuaded by the applicant’s submission in relation to his friend, who completed the same qualifications for the same nominated occupation and had his visa application approved by the then Department of Immigration and Border Protection. The Tribunal noted it can only make a decision with respect to the visa refusal and applicant before it: at [37]-[39].
THE JUDICIAL REVIEW APPLICATION
The application and supporting affidavit were filed on 16 March 2020.
On 11 November 2024, the applicant’s legal representative filed an amended application, which contains the following ground:
1.The Tribunal failed to exercise jurisdiction, or failed to give any lawful reason for its decision.
Particulars
a. The Tribunal was required to compare the material advanced by the applicant about his Diploma with the content of the nominated occupation, and make a judgment as to whether the two were closely related.
b. The Tribunal stated that it did not think they were closely related, but failed to give any reason in support of that conclusion (cf, the “one-liner” at Reasons [36]).
c. This was not sufficient to exercise the jurisdiction invoked.
d. Alternatively, the failure to give a lawful reason for the decision requires an inference that there was no lawful reason in mind.
On the same day, an outline of submissions was filed on behalf of the applicant. On 20 November 2024, the Minister filed an outline of submissions.
The hearing of the application was conducted in this Court on 4 December 2024. Both parties were represented. The court book filed by the Minister on 15 July 2020 was tendered by the applicant and marked A1.
CONSIDERATION
Judicial review
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
The statutory scheme – cl 485.22 of Sch 2 to the Regulations
The criteria required to be satisfied for the visa are set out in Sch 2 to the Regulations. Clause 485.22 sets out the primary criteria for the Graduate work stream, which includes cll 485.221 and 485.222.
Clause 485.221 provides that an applicant must satisfy the Australian study requirement in the period of 6 months immediately before the day the application was made. Regulation 1.03 provides the term “Australian study requirement” has the meaning given by reg 1.15F. Regulation 1.15F, in turn, relevantly provided as follows:
1.15F Australian study requirement
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
In this case, there is no dispute the applicant met the Australian study requirement. The Certificate III and Diploma relied upon by the applicant were registered courses consisting of a trade qualification and a diploma, were completed as a result of at least 2 academic years of study and were also completed in a period in excess of two years. The visa application was made on 13 September 2017, the day after the applicant completed the Diploma. In order to satisfy cl 485.221, the applicant needed to rely on both the Certificate III and the Diploma.
Clause 485.222 was also required to be met. It relevantly requires that each diploma or trade qualification used to satisfy the Australian study requirement “is closely related to the applicant’s nominated skilled occupation” (emphasis added).
In Dhillon, the Full Court of the Federal Court considered the “closely related requirement” in the context of the analogous criteria for a Subclass 886 visa. In that case, the visa applicant relied upon three qualifications to meet the Australian study requirement with the Full Court noting at [19] those qualifications “would not be sufficient” for the visa application “unless they were all closely related… to his nominated skilled occupation of pastry cook” (emphasis added). The Full Court observed at [20] the words “closely related” were not defined in the Regulations or Act “but require, and call attention to, the connection between two things”. The task of evaluating whether a qualification meets the description of being “closely related” to the nominated occupation “does not require the finding of an exact correspondence between the two but does require ‘that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists’”.
The Tribunal in Dhillon had informed itself about the nature of the nominated skilled occupation by considering the Australian Standard Classification of Occupations (ASCO) (the predecessor to the ANZSCO Code) and compared that with the course content submitted for the units undertaken by the visa applicant in the courses relied upon. The Full Court approved of that approach. It also held that the Tribunal did not ask itself an incorrect question when it considered the “closely related” requirement required that the relationship between the skills gained in the qualification be more than merely complementary to the occupation or that they could be used in that occupation: at [20].
In Talha, the Full Court of the Federal Court described the relevant features of the ANZSCO Code as follows:
17. …The ANZSCO Code replaced the previous ASCO directory. All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in the ANZSCO Code. The introductory section of the ANZSCO Code explains the concept of “a job” as meaning:
...a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job.
18. “Occupation” is defined in the ANZSCO Code as “a set of jobs that require the performance of similar or identical sets of tasks”.
19. The introductory section of the ANZSCO Code also explains how occupations are classified. Occupations are classified according to their attributes and are grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The occupations are then organised or classified into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. Details of the various hierarchies or groups are provided. “Occupation” is the most detailed level of classification. Occupations are distinguished from other occupations in the same unit group on the basis of detailed skill specialisation.
20.The notes explain that the classification of occupations is done according to two criteria, namely skill level and skill specialisation. “Skill level” is defined as a function of the range and complexity of the set of tasks performed in the particular occupation and is measured operationally by the level or amount of formal education and training, the amount of previous experience in a related occupation, and the amount of on-the-job training which is required competently to perform a set of tasks required for the occupation. Occupations are divided into five different skill levels. The highest skill level is Skill Level 1, which is defined as a level of skill commensurate with a bachelor degree or higher qualification, however, at least five years of relevant experience may substitute for the formal qualification.
21. The concept of “skill specialisation” is defined in the ANZSCO Code as a function of:
•field of knowledge required;
•tools and equipment used;
•materials worked on; and
•goods or services produced or provided.
22. It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy.
23. It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes:
“This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes.
Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (e.g. business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie).”
The Full Court in Talha held it was “ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether” a visa applicant’s “studies are ‘closely related’ to [their] nominated skilled occupation”. The Full Court, however, further held the necessary evaluative exercise required that the whole of an applicant’s studies be compared with the whole of the nominated occupation: at [53]. The whole of a nominated occupation may require that regard be had to information in higher groupings which is relevant to particular occupations as set out in the ANZSCO Code: see [55]-[61].
In Singh v Minister for Home Affairs [2020] FCA 203, Derrington J held at [25] that when undertaking the task of comparing a course of study and the nominated occupation for the purpose of identifying whether they are “closely related”:
the nature of the nominated occupation is to be determined by reference to the [ANSZCO Code], which needs to read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation…. it is not appropriate to rely upon the applicant’s view or description of what the occupation entails or the applicant’s view of the degree of any relevant connection.
Applicant’s submissions
In his written submissions, the applicant acknowledged that a decision-maker must turn to ANZSCO to identify the content of the nominated skilled occupation in question. As to the content of the qualification in question, the applicant argued there is no equivalent network of provisions or legislative instruments that are taken to be definitive. This leaves the question as being one of fact for the decision-maker, having regard to the case advanced by the applicant. The applicant argues the subject titles in the academic transcript are not definitive, and the applicant may give evidence about what was in fact studied and learned during a course of study.
In this case, the applicant submitted course details in the form of academic transcripts for both the Certificate III and the Diploma, together with a written submission addressing the closely related issue. The written submission identified the ANZSCO content of a Painting Trades Worker and presented arguments about why the content of the Diploma was closely related to the nominated occupation. These submissions were referred to by the Tribunal in its decision. The applicant, however, argues the Tribunal failed to exercise jurisdiction because:
(a)it did not set out in its reasons the content of the Diploma;
(b)it did not explain why the subjects in the Diploma were found not to be closely related to the nominated occupation but simply gave a “one-liner” at [36] of the reasons, expressing itself in conclusory terms;
(c)it was required to set out and compare all of what the applicant said about the Diploma as against the whole of the Painting Trades Worker (as set out at all levels of ANZSCO (citing Talha) and make a judgment about the degree of proximity or closeness of the relationship between the two;
(d)this did not occur. The Tribunal’s “one-liner” was not sufficient to perform the task on review, constituting a failure to exercise jurisdiction; and
(e)it should be inferred from the Tribunal’s failure to give any reason for its decision that there was no lawful reasons in mind.
The applicant also argued the Tribunal appeared to be preoccupied with the differences between the Certificate III and the Diploma and the fact the former was “right on point” for the nominated occupation and the latter less so. The applicant argues this was a distraction because the Tribunal was required to assess each course against the nominated occupation and not the relativities of the two. The closeness of the relationship of the Certificate III to the nominated occupation had no bearing on the task required to be done in comparing the Diploma and the nominated occupation.
During the hearing, the applicant pointed out that the Certificate III included subjects which extended beyond teaching students “the skill of applying paint to surfaces, but teaching them how to do it in a sustainable business way, compliantly with workplace standards, workplace health and safety standards, employment law, accounting etc”. Examples of such subjects included “Investigate Micro Business Opportunities”, “Plan and Organise Work”, “Conduct Workplace Communication” and “Read and Interpret Plans and Specifications”. The applicant noted the Tribunal, in those circumstances, had no difficulty accepting that the Certificate III was closely related. In a similar vein, the applicant argued the units comprising the Diploma are about how to actually manage a business in the building and construction sector which plainly includes the painting trade.
The applicant referred to his evidence before the Tribunal that his employment in the painting industry has involved seeking to work on large scale commercial projects with bigger companies which in turn requires the management skills he learned through the Diploma. Those skills include managing projects and teams. The Tribunal considered the applicant’s submission focussed on how the Diploma had assisted him with his career progression to more of a managerial or supervisory role and his future career plans. The applicant argued this approach was problematic as these matters overlapped. It was submitted that what the applicant was obviously doing, perhaps imperfectly, was saying the painting trade has scale. His work in the commercial field involved additional complexities. The Tribunal, by its approach, failed to give the required attention to the part of the applicant’s case that addressed how the Diploma was closely related to his employment.
The applicant, however, submitted that he did not suggest the Tribunal failed to consider his claim. It was acknowledged that it was not open to suggest the Tribunal did not engage with the claim and give it effort. The applicant’s argument is, however, that in not giving a reason for the outcome, the proper inference is there was no lawful reason in mind. This in turn constitutes a failure to exercise jurisdiction because the jurisdiction may only be exercised for valid or lawful reasons. Rather than seek relief compelling the Tribunal to provide adequate reasons, the applicant argued the Court should infer from the lacuna in the reasons given that the basis for the Tribunal’s decision was not one it was lawfully entitled to deploy. Put another way, the applicant argued that if the Tribunal had a valid reason for its decision, it would have been mentioned in the reasons. Absent it being mentioned, the Court could infer no valid reason existed. The applicant argued this was particularly so in a case where it was not an obvious case for dismissal of the visa application.
The applicant referred to the Tribunal’s reasons at [24] where it stated it shared the delegate’s concern that although the Diploma could be capable of assisting the applicant’s future career plans and progression, this was not enough to satisfy the requirement that it be closely related. The applicant submitted this was “a non-sequitur on the question that was before the Tribunal” because whether the course has an impact on future career progression has no probative value on any relevant question. While the Tribunal identified that any assistance the Diploma might give the applicant in his desired career progression does not help him, the applicant argued the Tribunal did not then go on to identify why the content of the Diploma lacked sufficient closeness to meet the “closely related” criterion.
The applicant accepted the actual work the applicant performed is immaterial to the closely related question. The applicant also acknowledged that by reference only to the titles of the units covered in the Diploma, one might immediately observe it is hard to see precisely where each of the units fit with the tasks of a Painting Trades Worker as set out in ANZSCO. The applicant accepted the degree of proximity is highly contestable and that good arguments can be made as to why they are not sufficiently related, and some arguments can be made as to why they are.
The applicant referred to s 368 of the Act which set out the Tribunal’s obligation to provide reasons. The applicant also referred to the decision in Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Yusuf (2001) 206 CLR 323; [2001] HCA 30, where Gaudron J considered the operation of s 430(1)(c) of the Act which required the Tribunal to prepare a written statement setting out the findings on any material questions of fact. At [35], her Honour stated that “it is to be inferred from the absence of reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material”. The applicant submitted on that basis that “in the face of an obligation to give a statement of reasons of a particular kind, you may infer, from the omission of something that might otherwise have been expected to be included that the relevant thing/matter, was not thought about”.
The applicant also relied on WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 with particular reference to [47], where French, Sackville and Hely JJ stated the following:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. That is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed within findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference it has been overlooked.
The applicant accepted the error identified in WAEE was not the precise error alleged in this case, but sought to adapt that concept. The applicant argues that because the reasons fail to identify why the degree of relationship between the subjects studied in the Diploma and the content of the nominated occupation as set out in ANZSCO did not meet the “closely related” requirement, whatever the Tribunal had in mind was not valid or lawful because were it so it would have been mentioned.
The applicant summarised their submission by stating there is no statement of the reason as to why the applicant’s diploma did not reach the test of close relationship with the content of the nominated occupation as set out in ANZSCO. There is a “dismissal of one strand” of the applicant’s argument, which was misconceived and the Tribunal expressed itself in conclusory terms which provide no reasons as to why the applicant “lost”.
Respondent’s submissions
The Minister’s written submissions addressed the matters raised in the applicant’s written submissions and set out at [33]-[34] above. In respect of the submission that the Tribunal did not set out the content of the Diploma, the Minister submitted it was clear the Tribunal appreciated the content of the course even if it did not undertake the task of reproducing the list of subjects in its reasons. The Tribunal referred to the written submissions including the attachments at [7], the academic transcript at [10] and engaged in a comparative exercise at [33] and [36] between the transcripts of both the Diploma and Certificate III and the skills the applicant identified he had learned as set out in his written submissions.
In respect of the applicant’s assertion the Tribunal’s failed to explain why the subjects in the Diploma were found not to be closely related to the nominated occupation and the alleged insufficiency in its reasoning, the Minister rejected the suggestion the Tribunal’s reasoning was limited to a “one-liner”. The Minister submitted the Tribunal’s reasoning included the following:
(a)it agreed with the delegate that the description of the nominated occupation did not include building and construction management related activities at [20];
(b)it shared the delegate’s concern at [24] that although the Diploma could be capable of assisting the applicant’s future career plan and career progression, this was not enough to satisfy the closely related requirement;
(c)it identified at [25]-[27] the need to consider the Diploma in relation to the nominated occupation rather than the applicant’s intended occupations;
(d)it considered at [22], [25] and [30] the applicant’s evidence at hearing included outlining tasks that were not a painter’s job and his aspirations for being in a management role;
(e)it found at [32]-[33] the additional skills identified by the applicant as being covered by his Diploma were covered by the Certificate III which covered more of those skills than his Diploma; and
(f)it found at [36] the Certificate III was more relevant and closely related to his nominated occupation and the units in the Diploma did not appear to be closely related to the specific duties identified by the applicant.
The Minister rejected the applicant’s assertion the Tribunal was required to “set out” everything the applicant said about the Diploma and compare it against the whole of the content of the nominated occupation as set out in ANZSCO. The Minister submitted that what the Tribunal was required to do was compare the whole of the Diploma with the whole of the nominated occupation to determine whether the necessary close relationship existed. The Tribunal fulfilled this task as it assessed the content of the Diploma, engaged in the reasoning referred to above and considered the material and submissions advanced by the applicant.
As to the applicant’s complaint that the Tribunal was preoccupied with the Certificate III, the Minister argues the Tribunal was required to consider both of the courses relied upon by the applicant for the purposes of assessing the “closely related” criterion. The Minister submits the Tribunal did so concurrently. Its appreciation of the relevant and closely related content of the Certificate III provided a point of contrast to illustrate the lack of a similar relationship in the Diploma and did not reveal any error.
The Minister also submitted that the Full Court of the Federal Court’s decision in Talha does not assist the applicant to demonstrate error in this case. The critical point in Talha was that the Tribunal should have regard to all potentially relevant tasks within the ANZSCO Code, including those of a higher-level group. In this case, there is no evidence that the higher-level groups contained any other relevant activities which may have differently informed the Tribunal’s assessment under cl 485.222 of the Regulations. The Minister noted the applicant acknowledged “there is no specific mention in ANZSCO relating to management duties” in his written submissions before the Tribunal.
The Minister’s written submissions also addressed the issue of materiality. It was conceded if the applicant’s complaint is understood as one that the Tribunal failed to make a finding it was bound to make, materiality might be conceded if that error was established. If the error claimed was that the Tribunal failed to give adequate reasons, the Minister argued this would be insufficient to establish jurisdictional error and justify the grant of relief in the nature of an order for certiorari. In support of the latter submission, the Minister relied on the decisions of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [41]-[49] and Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [70].
The Minister’s oral submissions reiterated the Tribunal gave a valid reason for affirming the delegate’s decision to refuse to grant the visa, namely that the cl 485.222 criterion was not met. It was noted the applicant eschewed reliance on any argument the Tribunal failed to consider a particular matter. The Minister submitted this was not surprising given the fairly comprehensive way in which the Tribunal dealt with the applicant’s submissions that were raised before it. The Minister submitted the Tribunal gave sufficient reasoning for how it got to the point of concluding the criterion was not met when one takes account of the way the case was presented to it and the evidence before it. The Minister noted the various submissions made about the descriptions of the subjects in the academic transcript and how they might be relevant to the nominated occupation but says this verges on inviting the Court to engage in impermissible merits review.
The Minister referred to WAEE, noting the Tribunal is not required to set out or reproduce everything in its written reasons. For this reason, the failure to reproduce the subject names of the Diploma does not take the applicant any further. The Minister argues that a fair reading of the Tribunal’s decision demonstrates it had regard to the Diploma and its content particularly where at [20] it identified the description of the nominated occupation did not contain any building and construction management related activities. This, the Minister submits, must be a reference to the Diploma.
The Minister also addressed the Tribunal’s reference at [20] to the basis upon which the delegate refused the application. The Tribunal summarised the delegate’s decision as follows:
20. The delegate refused this application because they did not consider that a Diploma of Building and Construction (Management) was closely related to the nominated occupation of Painting Trades Worker. The delegate also looked at the ANZSCO description of Painting Trades Worker (and reproduced that description in the decision) and noted it did not contain any building and construction management related activities. The delegate stated that although a Diploma of Building and Construction (Management) could be capable of assisting in a future career plan, this was not enough to satisfy the delegate that it was closely related.
The Minister concedes the last two lines of this paragraph do not in fact emerge from the delegate’s decision. The delegate only considered the Diploma, finding that none of the subjects undertaken appeared to be closely related to the Painting Trades Worker tasks detailed in the ANZSCO. There is no reference in the delegate’s decision to the ANZSCO description not containing any building and construction management related activities nor to the relevance or otherwise of the Diploma to a future career plan. To the extent the Tribunal was in error in recording the reasoning of the delegate, the Minister submits it does not give rise to any jurisdictional error. The Minister submits it is best described as an error within jurisdiction. The Minister also submits the error did not go to the state of satisfaction ultimately reached by the Tribunal. The Minister, however, argues that the “concerns” erroneously attributed to the delegate and later expressed to be shared by the Tribunal at [24] are, therefore, able to be considered those of the Tribunal.
The Minister conceded there was limited express reasoning as to why it concluded the Diploma was not closely related to the nominated occupation. The Minister submits, however, that the clear inference is it referred to and considered the evidence before it, and reached a conclusion on the critical issue. This, it is submitted, is sufficient to discharge the Tribunal’s statutory function.
The statutory requirement to provide reasons for decision
Pursuant to s 368(1) of the Act, where a Tribunal makes a decision on a review other than an oral decision (and subject to exceptions not relevant in this case), the Tribunal is obliged to make a written statement that, relevantly:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based…
As explained by French CJ and Kiefel J in Minister for immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [32], s 430 (the equivalent to s 368 in Pt 7 of the Act):
presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:
1. Identification of the relevant evidence or material upon which findings of fact can be based.
2. Making findings of fact based on the relevant evidence or material.
3. Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
Section 368(1) requires the Tribunal to set out its findings on the questions of fact which it in fact made and which it considered material to the decision it made and the reasons it had for making the decision. This is not to be equated with an obligation to make findings. The requirement to provide such a written statement is directed at ensuring:
…that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the … statement was not considered by the Tribunal to be material.
Yusuf at [68]-[69], per McHugh, Gummow and Hayne JJ.
As explained by the plurality in Liang at 272, it is well settled that “the reasons of an administrative decision-maker are meant to inform” and not to be “construed minutely and finely with an eye keenly attuned to the perception of error” or to seek “to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. A breach of s 368(1) is not of itself proof of any jurisdictional error: Durairajasingham at [70] per McHugh J.
In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108, the Full Court of the Federal Court considered the analogous s 430(1) of the Act in the context of an argument that a conclusory adverse finding made by the Tribunal without identifying evidence or other material on which it was based justified an inference the Tribunal had no evidence or other material before it to make the relevant finding. In that case, the Tribunal had found the primary visa applicant had not practised Falun Gong in China on the basis that his answers to its “questions about basic elements of Falun Gong belief” were not “correct”. The written statement did not set out any particular questions or answers, disclose the source or substance of the Tribunal’s understanding of Falun Gong doctrine (referred to by the Tribunal member as ‘my text’) and did not reveal why the Tribunal considered the answers given to be deficient.
In that context, Kenny J considered the authorities, particularly as they related to the requirement pursuant to s 430(1)(d) to refer to the evidence or any other material on which findings of fact were made. Her Honour first observed at [53] the purpose of the provision is “to arm the reader of the decision with an understanding of the steps by which the Tribunal reached its decision” citing Minister for Immigration and Multicultural Affairs v Gutierrez (1999) 92 FCR 296; [1999] FCA 990 at 300 [13] per North J. After noting the Court’s function is to review decisions for jurisdictional error and not to review reasons, her Honour observed at [54]:
There may be cases where what appears on the face of the Tribunal’s reasons to be a jurisdictional error is shown by the record before the reviewing court to be merely a failure to comply with s 430. Such a failure does not constitute jurisdictional error. In the case of a failure to comply with s 430, the appropriate course for an aggrieved applicant is to seek an order compelling the tribunal to comply with its obligations under s 430. The ensuing written statement may or may not reveal jurisdictional error.
At [55], Kenny J held that “[i]n the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out” the findings, reasons, and evidence and material relied upon as specified in subparagraph (1)(a)-(d) that were in fact made. Where the Tribunal’s written statement did not disclose any material by reference to which a rational decision-maker could have evaluated the visa applicant’s answers, her Honour held at [72] it was “appropriate to infer that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error”. The Minister’s arguments in support of validity in that case relied on speculation “as to the nature and existence of purportedly probative but unidentified and unidentifiable material”.
In a similar vein, Rares J noted at [80] that s 430 “contains an important command to the tribunal to identify particular matters”. Compliance with that command “ensures transparency in the tribunal’s exercise of a power conferred on it by the parliament” and is essential “to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error”: at [86]. His Honour, however, noted at [91] that:
The brevity of the tribunal’s reasons or written statement, in itself, (i.e without more) is not a jurisdictional error… However, its brevity may indicate that the tribunal did not, in fact, perform its function of review according to law. This is because the significance of what the written statement omits from that which s 430(1) mandates, indicates, for example, that it did not have evidence or other material on which its findings of fact were based (citations omitted).
Rares J concluded at [94] that “the brevity of the tribunal’s written statement… and the absence of any identified basis for its findings of material fact about the [visa applicant]’s knowledge and practice of Falun Gong lead to the inference that the tribunal had no evidence or other material referred to in s 430(1)(d)”. Further, his Honour held at [95] it “would be an inversion of the express requirement of the Parliament for this material to be identified, if the Court excused its omission by seeking to glean from the transcript some basis to uphold the decision that the tribunal did not begin to articulate”.
SZLSP deals with a different failure to comply with the statutory requirements to provide a written statement than that contended for by the applicant in this case. What SZLSP makes clear by analogy is that an inference the Tribunal had no valid reason for making its decision and therefore failed to properly exercise its review function according to law does not arise unless the written statement in fact does not satisfy the requirements of s 368(1) of the Act to set out the reasons for the decision. Further, and following Kenny J’s judgment at [54], if the complaint amounts to no more than a failure to comply with s 368(1), that will not constitute jurisdictional error.
Did the Tribunal’s written statement comply with s 368(1) of the Act?
The critical issue for the Tribunal in its review of the delegate’s decision was whether the Diploma was “closely related” to the applicant’s nominated occupation of a Painting Trades Worker. The resolution of that issue required the Tribunal to undertake an exercise of comparing the ANZSCO description of the nominated occupation with the course content of the relevant qualification to identify whether the necessary close relationship between the two existed: see Dhillon at [19]-[20]. It is evident from the Tribunal’s decision at [17]-[20], [25]-[26] at [30] that it understood the task it was required to undertake.
The Tribunal summarised at [22] the applicant’s evidence and submissions which responded to the delegate’s concerns identified by the Tribunal. As noted, the delegate’s decision stated the subjects undertaken by the applicant in his Diploma did not appear to be closely related to the tasks detailed in the ANZSCO for the nominated occupation. The Tribunal, however, identified further issues, namely the absence of reference to building and construction management related activities in the ANZSCO description and that it was not sufficient that a qualification assist in future career plans to establish it was closely related to the nominated occupation. The Tribunal recorded its view at [23] that the applicant’s submissions in response to these issues were focussed on how the Diploma assisted him in his career progression to more of a managerial or supervisory role. It recorded at [30] a similar conclusion in respect of the evidence of the applicant’s employer Mr Sulic. It further expressed its concern at [24] (albeit erroneously saying it was one it shared with the delegate) that although the Diploma could be capable of assisting in a future career plan and progression, this was not enough to satisfy the closely related requirement. The Tribunal then made clear at [25]-[26] that the relevant assessment was whether the Diploma was closely related against the nominated occupation and not against a managerial or supervisory position which went further than that of Painting Trades Worker.
It is clear the Tribunal considered the evidence of the applicant and Mr Sulic did not satisfactorily address these issues. A fair reading of the Tribunal’s written statement in this respect demonstrates the Tribunal considered the subjects undertaken in the Diploma concerned building and construction management activities which were not contained in the ANZSCO description of the nominated occupation and that applicant’s evidence and arguments did not otherwise establish the Diploma was closely related to that occupation.
The Tribunal also at [31]-[36] dealt with the applicant’s written submissions to the Tribunal and his identification of skills he said were obtained as a result of undertaking his Diploma that are used in his nominated occupation. Those identified skills were set out by the Tribunal at [32] as follows:
•Work safely in the construction industry
•Erecting scaffolding and ladders and placing drop sheets to protect adjacent areas from paint splattering
•Plan building and construction work
•Produce labour and material schedules for ordering
•Apply structural principles to residential and commercial building
•Manage personal work priority and professional development.
As to those written submissions, the Court notes the task set out in the second dot point directly referenced one in the ANZSCO description for the nominated occupation. The last dot point reflects the title of one of the units undertaken in the Diploma. The applicant’s written submissions appear to suggest the first, third, fourth and fifth dot points were subjects or units undertaken in the Diploma. This is not reflected in the academic transcript.
The Tribunal highlighted at [33] that the academic transcript provided for the Certificate III showed a significant number of units comprising that course covered the skills identified by the applicant, more so than the subjects covered by the Diploma. It then set out at [34] the correlation between the Certificate III units and the skills cited by the applicant in his submission. The Tribunal then recorded at [36] it was not persuaded by the applicant’s explanation that he learnt these skills in his Diploma as well. It crucially stated it appeared the units in the applicant’s Certificate III were much more closely related to the nominated occupation “even based on the specific duties identified by the applicant”. After a discussion regarding the relevance of the evidence concerning the approval of Mr Usman’s visa application, the Tribunal expressed the conclusion at [40] that the applicant’s qualification was not closely related to the nominated skilled occupation.
It is clear from the Tribunal’s decision that it had before it and had regard to the delegate’s decision: see [10] and [20]. It is also clear the Tribunal had the ANZSCO description for the nominated occupation before it which it observed was reproduced in the delegate’s decision. As noted above, the applicant does not dispute the ANZSCO description reproduced in the delegate’s decision set out the relevant tasks in full. It was also reproduced in the applicant’s written submissions to the Tribunal. The applicant’s written submissions were expressly referred to at [7] and [31]. Although the Tribunal did not comprehensively set out the units studied in either the Certificate III or the Diploma, it made express reference to the academic transcripts at [10] and the units contained in the transcript related to the Diploma at [36]. It is also clear from the comparison drawn between the units studied in the Certificate III and the Diploma set out at [33] of the decision that the subjects studied in the latter were also considered. Further, in my view, a fair reading of the Tribunal’s statement at [36] that the Certificate III was “much more relevant and closely related” to the nominated occupation is a statement of comparison with the relationship between the Diploma and the nominated occupation.
In my view, the Tribunal’s written statement:
(a)sets out in accordance with s 368(1)(a) at [5] and [42] the decision on the review, namely to affirm the delegates decision;
(b)sets out in accordance with s 368(1)(c) a number of findings on material questions of fact relating to the issue on the review as follows:
(i)at [20] the ANZSCO description of the Painting Trades Worker did not contain any building and construction management related activities;
(ii)at [24] that the Diploma could be capable of assisting the applicant in a future career plan and career progression;
(iii)at [30] that the skills used by the applicant as a business manager and lead painter may have been obtained in the Diploma;
(iv)also at [30] that the evidence suggested the applicant in his current employment had moved beyond the role of his nominated occupation;
(v)at [33] more of the skills identified by the applicant in his submissions seemed to be covered by units from the Certificate III rather than for the Diploma;
(vi)at [36] the Certificate III was much more relevant and closely related to his nominated occupation even based on the skills identified by the applicant in his submissions;
(vii)also at [36] the units studied in the Diploma did not appear to be closely related to the duties identified by the applicant in his written submissions;
(c)referred in accordance with s 368(1)(d) to the evidence and other material on which the findings of fact were based throughout the decision, which notably included the ANZSCO description of the nominated occupation at [20], the academic transcripts for the Diploma at [10], the applicant’s oral evidence at [7], [21]-[22], [33], [34]-[35] and written submission at [7] and [31]-[37], the delegate’s decision at [10] and [20], and the evidence given by Mr Sulic at [7] and [28]-[30]; and
(d)sets out in accordance with s 368(1)(b) at [40]-[41] the reason for the decision namely that the applicant’s qualification did not meet cl 484.222 and the criteria for the grant of a Subclass 485 visa.
I do not consider that it was necessary for the Tribunal to set out the units studied in the Diploma in its written statement, just as it was not necessary to set out the ANZSCO description of the nominated occupation. The Tribunal expressly referenced both in the decision; the detail contained in the academic transcript and ANZSCO description are readily identifiable. To the extent the applicant argues it was necessary to set out subjects studied in the Diploma together with what the applicant said about the content of it and then set out the comparison with the ANZSCO description, I do not agree. The decision in WAEE makes it clear this is not necessary. In this case, I consider the Tribunal has amply explained it has engaged in the relevant comparative exercise before reaching its conclusion. There are multiple references in the decision supporting the clear inference the Tribunal engaged in the relevant task. This is most apparent at [36] where the Tribunal concluded the Certificate III was “much more relevant” and closely related to the nominated occupation. Although the Tribunal does not expressly say “much more relevant than the Diploma”, this is clearly what it meant. The Tribunal was evidently comparing the Certificate III with something else.
It is not, therefore, in my view correct to characterise the Tribunal’s crucial finding that the Diploma was not closely related to the applicant’s nominated occupation as a “one-liner”. A fair reading of the Tribunal’s decision makes it tolerably clear it was unable to identify a sufficient connection between the Diploma and the nominated occupation (and not other tasks undertaken by the applicant or his future career plans) that met the description of “closely related” by contrast with the close relationship it identified between the Certificate III and the nominated occupation. This was particularly so where the Tribunal identified the ANZSCO description of the nominated occupation did not contain any building and construction management activities.
In summary, I consider the Tribunal’s reasoning is sufficiently exposed in the written statement. No jurisdictional error is evident in that reasoning. The applicant’s argument that an invalid reason for the decision and jurisdictional error may be inferred from the absence of reasons, therefore, does not arise.
If I am wrong about that, in my view, the complaint goes no further than alleging a failure to comply with s 368(1) of the Act. As has been made clear in the authorities referred to above, this does not in and of itself give rise to jurisdictional error or warrant the granting of relief in the nature of certiorari. Unlike SZLSP, this is not a case where the written statement fails to disclose material and evidence which a rational decision maker could have deployed to evaluate whether the Diploma was closely related to the nominated occupation. Such material is readily identifiable. The error identified in SZLSP does not arise here.
CONCLUSION
For the above reasons, I dismiss the application.
I will hear from the parties as to costs.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 January 2025
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