MIAC v Kamruzzaman

Case [2009] FCA 1562

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562

MIGRATION – consideration of the requirements of a permanent Skilled – Australian‑sponsored (Migrant) (Class BQ), Schedule 2, sub‑class 138, Migration Regulations 1994 (Cth), visa application – consideration of the criteria applicable to such an application

Migration Regulations 1994, cl. 138-21

Kamruzzaman v Minister for Immigration & Anor [2008] FMCA 1460
Shahid v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1412
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211

MINISTER FOR IMMIGRATION AND CITIZENSHIP v MOHAMMED KAMRUZZAMAN

QUD 414 of 2008

GREENWOOD J
23 DECEMBER 2009
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 414 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
AND:

MOHAMMED KAMRUZZAMAN
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

23 DECEMBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The decision of the Federal Magistrates Court of 19 November 2008 is set aside.

3.The decision of the Migration Review Tribunal of 16 April 2008 is reinstated. 

4.The respondent shall pay the costs of and incidental to the appeal and the hearing before the Magistrates Court of Australia. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using Federal Court search of the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 414 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
AND:

MOHAMMED KAMRUZZAMAN
Respondent

JUDGE:

GREENWOOD J

DATE:

23 DECEMBER 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. This proceeding is an appeal from the decision of the Federal Magistrates Court of Australia (Burnett FM) in Kamruzzaman v Minister for Immigration & Anor [2008] FMCA 1460, made on 19 November 2008 and amended on 3 December 2008, which determined that a decision of the Migration Review Tribunal (the Tribunal) should be annulled. The Tribunal by its decision affirmed the decision of a delegate of the appellant refusing to grant a visa to the visa applicant, who is sponsored by his brother, the respondent.

    Notice of appeal

  2. The appellant, the Minister for Immigration and Citizenship, seeks that the decision of the Federal Magistrates Court be set aside and the decision of the Migration Review Tribunal be allowed to stand. The appellant contends in his notice of appeal that the learned Federal Magistrate erred in his application of clause 138.216 of the Migration Regulations 1994 (Cth), firstly by considering whether the visa applicant had been employed as a Business and Information Professional, which was the subject of a finding of fact by the Tribunal and not open to review; secondly, by finding that the Tribunal asked itself the wrong question or failed to give consideration to a relevant…

Continue reading MIAC v Kamruzzaman

Sign in free to access the full text

Details
AGLC
MIAC v Kamruzzaman [2009] FCA 1562
Case
[2009] FCA 1562
Decision Date

CaseChat Overview and Summary

In the case of MIAC v Kamruzzaman, the appellant challenged the decision of the Federal Magistrates Court which had set aside the Migration Review Tribunal's decision to refuse the respondent's application for a subclass 138 Skilled – Australian-sponsored (Migrant) visa. The respondent, a citizen of Bangladesh, had applied for a permanent visa through his Australian citizen brother, listing his nominated occupation as “Business and Information Professional.” The Tribunal had found that the respondent did not satisfy the requirement of clause 138.216 of Schedule 2 to the Migration Regulations 1994 because he had not been employed in a skilled occupation. The central issue before the court was whether the Tribunal had erred in its application of the relevant regulations, particularly in determining the appropriate skilled occupation classification for the respondent.

The court examined whether the Tribunal had considered the correct issue in determining the respondent's occupation and whether it had failed to take into account relevant evidence. The Tribunal had found that the respondent was employed in a position that was not a skilled occupation, specifically that he was a Bank Worker or Credit and Loans Officer rather than a Business and Information Professional. The court held that the Tribunal had not adequately assessed the relationship between the skill levels and the tasks associated with the occupation of Business and Information Professional, as compared to Bank Workers and Credit and Loans Officers. The definition of Business and Information Professionals is broad and does not include a specific task list, thereby necessitating a closer examination of the skill levels and duties performed by the respondent.

The court concluded that the Tribunal's failure to assess whether the respondent's tasks required the application of tertiary level skills, as opposed to certificate level skills, was a significant oversight. This omission meant that the Tribunal had either asked itself the wrong question or ignored relevant material. Consequently, the court found that the Tribunal's decision was flawed and set aside the Federal Magistrates Court's decision, reinstating the Tribunal's original decision. The respondent was ordered to pay the costs of the appeal and the hearing before the Federal Magistrates Court.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Federal Magistrates Court of 19 November 2008 is set aside.

3. The decision of the Migration Review Tribunal of 16 April 2008 is reinstated.

4. The respondent shall pay the costs of and incidental to the appeal and the hearing before the Magistrates Court of Australia.

Note:

Background

Background to the litigation

The appellant finally says that the learned Federal Magistrate erred in finding that the Tribunal, in asking whether the visa applicant was a Bank Worker / Credit and Loans Officer rather than whether he was a Business and Information Professional, asked itself the wrong question.Background On 19 April 2005, the respondent’s brother, Mohammed Jahangir Hossain, applied for a permanent Skilled – Australian‑sponsored (Migrant) (Class BQ), subclass 138 visa, with the respondent, who is an Australian citizen, as his sponsor. He listed his nominated occupation as “Business and Information Professional”. It should be noted that some of the documents in the proceeding put the application date as 21 April 2005, notwithstanding that it is stamped 19 April 2005 (see p 277 of the Appeal Book). Mr Hossain was born in February 1972. He is a citizen of Bangladesh, where he currently resides. According to his visa application, he holds a Bachelor of Arts and a Master of Social Science from Bangladesh National University and a Diploma in Computer Science and Technology from the Bangladesh National Training and Research Academy. He achieved a score of 5.0 (of a possible 9) under the International English Language Testing System (“IELTS”). Mr Hossain stated on his application that he had been employed since August of 2001 at the Arab Bangladesh Bank (“the Bank”), as an Assistant Officer.Legal framework The primary criteria to be satisfied at the time of application for a subclass 138 Skilled – Australian-sponsored visa are to be found in clause 138.21 of Schedule 2 of the Migration Regulations 1994. The relevant criterion is set out in clause 138.216, which is in these terms:138.21 Criteria to be satisfied at time of application138.216 (1) Subject to subclause (2), the applicant has been employed in a skilled occupation:(a) if 60 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or(b) if 40 or 50 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made. (2) Subclause (1) does not apply to an applicant if:(a) each of the following subparagraphs applies in relation to the applicant:(i)the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of at least 2 years at that institution while the applicant was present in Australia; (ii)the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application; (iii)all instruction for that degree, diploma or trade qualification was conducted in English; or(b) each of the following subparagraphs applies in relation to the applicant:(i)the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of less than 2 years at that institution while the applicant was present in Australia; (ii)before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, as a result of a course of study, while the applicant was present in Australia; (iii)the 2 or more degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) were completed as a result of 1 or more courses of study undertaken over a total of at least 2 years while the applicant was present in Australia; (iv)each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was completed at the institution at which it was commenced; (v)each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) is relevant to the skilled occupation nominated by the applicant in his or her application; (vi)all instruction for each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was conducted in English.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J
The Tribunal affirmed the delegate’s decision on 16 April 2008.Decision of the Federal Magistrates Court Mr Kamruzzaman applied to the Federal Magistrates Court on 13 May 2008 seeking orders quashing the Tribunal’s decision and directing the Tribunal to hear and determine the appellant’s application according to law. It was alleged that the Tribunal had fallen into jurisdictional error by failing to correctly apply the relevant regulations; finding that Mr Hossain did not satisfy clause 138.216; and failing to take account of relevant material, particularly the criteria for Business and Information Professionals. With regard to the first ground, the applicant contended that the Tribunal considered the wrong issue when it found that Mr Hossain “[had] not been employed in a skilled occupation” rather than determining whether he was employed in the skilled occupation nominated in the application. The Tribunal had allegedly considered only the tasks required for Bank Workers and Credit and Loans Officers and failed to take into account the tasks required of Business and Information Professionals. It had also, in the applicant’s view, not taken into account evidence that Mr Hossain’s duties extended beyond those of a Bank Worker. Federal Magistrate Burnett found that the Tribunal had noted the applicant’s assertion that Mr Hossain’s responsibilities were wider than those of a Bank Worker, and also supporting evidence including that of Mr Ahmad. However, the Tribunal did not consider whether those higher responsibilities called for the application of higher-order skills. His Honour noted the particularity of the ASCO definitions and was of the opinion that the “skill levels” and “tasks” are significant and “set the parameters of relevant matters to be considered”. The definition of Business and Information Professionals is essentially a negative one – Business and Information Professionals not elsewhere classified – and, unlike other definitions, it does not contain a task list. Federal Magistrate Burnett held that it was not apparent that the Tribunal considered the tasks of a Business and Information Professional. Given the lack of detail in the definition the Tribunal should have given particular consideration to the skill level associated with that occupation, particularly in comparison with Bank Workers and Credit and Loans Officers. Those two occupations required only certificate-level training; the level of skill required in the occupation could be assumed to be consistent with that training. The Tribunal did not discuss this matter. Federal Magistrate Burnett observed that what the Tribunal was to consider was not any particular responsibility, but rather “the relationship between skill levels and duties and thus whether…the skill level associated with a Business and Information Professional would be exercised in the performance of the occupation.” His Honour came to the following conclusion:[The] Tribunal needed to examine the tasks undertaken by the visa applicant and assess whether they required an application of tertiary level skills or certificate level skills before any conclusion could be reached as to whether the visa applicant was a “Bank Worker” or “Credit and Loans Officer” or a “Business and Information Professional”. The Tribunal failed to do this. In my view this omission is fatal to the Tribunal’s decision because it bespeaks either the identification of a wrong issue resulting in the Tribunal asking itself the wrong question or of it ignoring relevant material.

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

A delegate of the Minister of Immigration and Citizenship made a decision on 23 January 2007 to refuse the visa on the basis that Mr Hossain did not satisfy clause 138.216 of Schedule 2 to the Migration Regulations 1994 because he had not been employed in a skilled occupation. The delegate’s opinion was that Mr Hossain’s position in the Bank was not Business and Information Professional, but Bank Worker or Credit and Loans Officer, which are not skilled occupations.Decision of the Migration Review Tribunal On 13 March 2007, Mr Kamruzzaman applied to the Tribunal for review of the delegate’s decision. On 15 June 2007 Sharma Lawyers wrote to the Tribunal enclosing submissions and Mr Hossain’s previous statutory declaration. Mr Hossain explains in his statutory declaration that the reference letters previously provided by the Bank were in very general terms and did not set out his responsibilities in detail. He attaches a further description of his position. He states that he believes his duties correspond more closely with Business and Information Professional than with Bank Worker, and that the duties of Bank Workers as described are undertaken by clerical staff in the Bank. The correspondence also attaches a letter from Mr Ahmed. Mr Ahmed states that the employees of the Bank are divided into clerical staff, junior officers, senior officers, and management staff. Mr Hossain began employment with the Bank on 20 August 2001 as an internee. He took up a position as an Assistant Officer in May 2002 and was confirmed as a permanent employee in November 2002. He supervises up to three employees. He has worked in a number of departments in the Bank. Mr Ahmed sets out the tasks Mr Hossain regularly undertakes as follows:·Receiving and answering customer enquiries·Opening and closing accounts·Selling bank products and services·Identifying customer needs and referring them to appropriate banking services·Dealing with international finance enquiries and transactions for customers, including documentation for importing / exporting·Conducting foreign currency transactions·Assessing the viability and credit risk of business and consumer loan proposals·Conducting business dealings·Liaising with the local and business community and government agencies·Carrying out duties as issuing bank, clearing bank, and correspondent bank·Researching, developing, and maintaining database information·Maintaining required documents·Engaging in all aspects of business loans, personal loans and debts, equities, and commodities·Acting as a contact point·Conducting public relations activities·Corresponding with customers, other Bank officers, other branches of the Bank, and overseas banks·Conducting foreign-exchange dealings Mr Ahmed lists the skills he believes necessary in the position: good written and verbal communication skills; liaison skills; computing skills; skills in building public relationships; business acumen; knowledge of equities, commodities, and individual, business and corporate loans and debts; and ability to research and identify development of international banking practices. He explains that as officers become more senior, they cease to be required to undertake routine clerical duties. Mr Ahmed opines that the duties Mr Hossain performs fall into the category of Business and Information Professional.