Minister for Immigration and Multicultural Affairs v Ye Hu
[1997] FCA 1197
•7 Nov 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - appeal - application for independent entry visa - meaning of “usual occupation” - factors to be taken into account in ascertaining “usual occupation” - whether an applicant’s usual occupation is to be determined solely by reference to a catalogue of duties performed for a particular employer within the period specified in the definition in the Migration (1993) Regulations - consideration of alternative descriptions of “usual occupation” - distinction between “usual occupation” and “job” or “position” - whether ascertainment of "usual occupation" is a question of fact or law.
MIGRATION - jurisdiction - application for independent entry visa - classification of “usual occupation” - whether judicially reviewable under s 476 (1)(e) of the Migration Act 1958 (Cth).
Migration Act 1958 (Cth), ss 476 (1)(e), 476 (1)(g).
Migration Act 1958-1994 (Cth), ss 29, 30.
Migration (1993) Regulations, reg 2.4(4), Sch 7, Part 1, item 7102.
Morais v Minister for Immigration and Ethnic Affairs (1995) 54 FCR 498, cited.
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389, cited.
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited.
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47, cited.
MINISTER FOR IMMIGRATION AND MULTI CULTURAL AFFAIRS v YE HU
NG 229 of 1997
VON DOUSSA, MOORE, SACKVILLE JJ
SYDNEY
7 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) General Distribution
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 229 of 1997BETWEEN: MINISTER FOR IMMIGRATION AND
MULTI CULTURAL AFFAIRS
Appellant
AND: YE HU
Respondent
JUDGES: von Doussa, Moore, Sackville JJ
PLACE: Sydney
DATE: 7 November 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
Order 3 of the orders made on 4 March 1997 is varied by deleting the words “these reasons for judgment” and substituting the word “law”.
Subject to order 1, the appeal is dismissed.
The appellant pay the respondent’s costs of the appeal.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) General Distribution
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 229 of 1997
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND
MULTI CULTURAL AFFAIRS
Appellant
AND:YE HU
Respondent
JUDGES: von Doussa, Moore, Sackville JJ
PLACE: Sydney
DATE: 7 November 1997
REASONS FOR JUDGMENT
THE COURT: This is an appeal by the Minister for Immigration and Multicultural Affairs (“the Minister”) from the whole of the judgment of a judge of this Court given on 4 March 1997. The trial judge ordered that a decision of a delegate of the Minister ("the delegate"), made on 31 August 1995, be set aside. The delegate decided to reject an application by Mr Ye Hu (“the applicant”) for a Class 126 (independent entrance) visa. The trial judge made related orders, declaring that the applicant’s application had not been determined according to law and that the application be remitted to the respondents for redetermination according to the Court’s reasons.
The factual background was not contentious and we adopt the account of the trial judge. The applicant is a Chinese citizen living in or near Shanghai. He attended the Fudan University in Shanghai Province as a student enrolled in a Bachelor of Science degree course between September 1979 and July 1983. As a student, he specialised in laser physics within the Physics Department. After four years of study, he was awarded the degree of Bachelor of Science. From July 1983 to October 1992, the applicant worked for the Shanghai Laser Instrument Factory ("Laser Instrument Factory"). In the course of this employment the applicant gained extensive experience in laser research. Thereafter, he was employed by the Shanghai Optical Fibre Communication Engineering Company ("Optical Fibre Company"), until January 1993. At the Optical Fibre Company he was employed as an engineer and in that role undertook research work on a multiple access radio system project. The project required the applicant to carry out research into optic fibres, their uses and applications, and to assist in the implementation of optic fibre communication networks.
From April 1993 until he applied for a Class 126 (independent entrance) visa on 8 July 1994, the applicant worked 30 hours per week as an electric-motor designer for Da Tong Electrical Machinery Company Limited (“Da Tong”), a town-run small workshop with ten staff located in Xian Shan, Zhe Jiang. Da Tong provided a reference in support of the applicant’s application for a visa. The reference explained the applicant’s role as follows:
“Since our dominating product -- generator of YEJ series doesn’t meet the requirements in quality, we employed in April, 1993 two engineers aiming to better our products.
Mr Hu Ye is one of the engineers responsible for the making and designing of the generator. Through tough experiments, Mr Hu redesigned the original direct current generator into the alternative current generator, which after tests, proves to be reliable in quality, prolonged in usage and thus wins our firm consecutive orders.
...
With a good command of technology and devotion in this work, Mr Hu is indeed a highly qualified engineer.”
It was common ground that the application for the visa was to be determined by reference to the Migration (1993) Regulations. It was also common ground that the grant of Class 126 (independent entry) visa depended, in part, on the applicant achieving a qualifying score by applying a system involving the allocation of points: see ss 29 to 32 of the Migration Act 1958 (Cth) (“the Act”) as in force at the relevant time. Central to the operation of that system for present purposes, was Schedule 7 to the Migration (1993) Regulations. We shall explain the operation of Schedule 7 in more detail later. It is enough to note at this stage that the applicant claimed that he satisfied the conditions specified in item 7102, within Part 1 of Schedule 7, and was thus entitled to 70 points by reason of his employment qualifications.
The relevant portions of item 7102 are contained in the following extract from Part 1 of Schedule 7:
“Column 1 Column 2 Column 3 Item No Prescribed qualification Number of points PART 1 - EMPLOYMENT QUALIFICATION 7101 ... 80 7102 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 the applicant has:
(i) a degree, trade certificate or post-trade qualifications that is assessed by the relevant Australian authority as meeting Australian educational or training standards for that occupation; or
(ii) experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation;
(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding an Australian occupational license or registration (or both); and
(e) is an occupation in which the applicant has worked or (on any occasion when not working in the usual occupation) that is closely related to the occupation in which the applicant has worked:(i) for not less than 3 years (except for periods of absence that, in total duration, have not exceeded 12 months) immediately before making the application;
...”
70
The expression “usual occupation” was defined in reg 2.4(4):
“[A]n occupation that the applicant has engaged in for gain or reward for a continuous period of at least six months during the period of two years immediately preceding the relevant application for a visa or entry permit.”
It will be seen that the only employment in which the applicant was engaged for a period of more than six months during the period of two years before his application (8 July 1994) was his employment with Da Tong.
It was common ground between the parties that pars (a), (b) and (c) of item 7102 constituted an alternative to pars (d) and (e) of item 7102. There was no dispute that the applicant satisfied pars (a) and (b), regardless of how his “usual occupation" was identified. The contest centred around whether the delegate had correctly concluded that the applicant had not satisfied par (c) of item 7102.
In his application, the applicant answered two questions in the following way:
“28. Your usual occupation RESEARCH ENGINEER
29. What are the main tasks RESEARCH FOR MANUFACTURING AND
or duties performed in MANAGING TECHNICAL RESEARCH AND
your usual occupation? MANAGEMENT OF LASER INSTRUMNETATION [sic] AND EQUIPMENT INCLUDING CO2 HE** NE GAS LASER. RESEARCH AND MANUFACTURE OF CU VAPOR LASER.”
These answers appeared to be framed by reference to the applicant’s employment with the Laser Instrument Factory. The application was sent under cover of a letter of 24 June 1994, from the applicant’s solicitors, Barlow & Co. The letter read, in part, as follows:
“The applicant’s occupation is as a Research Worker in the field of laser physics. He is currently employed by the Shanghai Medical Laser Instrument Factory where his duties entail:
* Carrying out research into lasers, their development and manufacture;
* Research into different chemical compounds for use in lasers;
* Undertaking various projects to implement lasers in practical applications.We submit that this occupation falls within the ASCO classification 2999-15 Research Workers not elsewhere classified (refer extract at annexure “Q”) which is defined as:
“Undertakes research in a variety of fields for academics, parliamentarians or other professionals.”
The tasks of this occupation include the gathering of information through observation or experimentation, analysis of data and preparation of reports. The skill level for this occupation is a three to four-year degree, obviously in the relevant field.”
The applicant was interviewed by an officer attached to the Australian Consulate-General in Shanghai on 21 October 1994, apparently to discuss the applicant’s usual occupation. A copy of notes of the interview were sent to Barlow & Co. That firm then wrote on 18 January 1995 to the officer who had interviewed the applicant. The letter read, in part:
“In our submission dated 24 June, 1994, we stated Mr Hu’s occupation as Research Worker. This is based upon his extensive experience in laser research at the Shanghai Laser Instrument Factory. From the above information, it appears clear that in the two years preceding the lodgement of this application, Mr Hu had been employed for a period of only three months at that workplace. He was, however, employed as an Engineer and undertook research work on the multiple access radio system project for the Shanghai Optical Fibre Communications Engineering Co. This project required Mr Hu to carry out research into optic fibres, their uses and applications, and he also assisted in the implementation of optic fibre communication networks. We submit that these duties still fall within the occupation of Research Worker as claimed in our original submission.
Further, we also submit that the applicant can be considered to be a Research Worker at the Da Tong Mechanical Electrical Machinery Co even though he was engaged as an ‘Engineer’ according to the attached reference. He was responsible for assisting in the design of machinery and, by necessity, such responsibility must involve carrying out research into aspects such as the equipment’s suitability for the company’s use; the safety standard; the feasibility of manufacturing the equipment, etc.
In the alternative, Mr Hu could be considered to have carried out engineering duties at both the Shanghai Optical Fibre Communications Engineering Co and the Da Tong Electrical Machinery Co Ltd. Both employers had involved him in the design of equipment, which is one of the duties of an Associate Engineer. Although the Da Tong Electrical Machinery Co stated he was engaged as an ‘Engineer’, he did not have supervisory duties that an Engineer would have. Hence, he cannot be considered to be an Engineer.”
It appears that, at some time prior to 24 March 1995, the delegate formed the view that the applicant’s usual occupation was or might be that of an engineer. On that date, the delegate wrote to the applicant and said, in part:
“It is important that persons who hold overseas qualifications be aware that their qualifications may not be recognised in Australia. Non recognition usually occurs when a person’s overseas training and experience fall short of the Australian standard.
Without recognition of your qualifications you may not be able to follow your profession in Australia. While in many instances it is possible to upgrade qualifications by further training and experience in Australia, it should not be assumed that this is possible in every case. Therefore you may be faced with unemployment, or long term and less rewarding employment at a lower semi-skilled level.
It has now been determined that your qualifications need to be assessed in Australia. It is your responsibility to apply for this assessment and you can do so by forwarding the completed “Application for Assessment of Education Qualifications”(Form E2) to the following address in Australia. Enclosed is the form and you should send it by airmail with a copy of this letter to:
The Institute of Engineers, Australia
National Headquarters
11 National Circuit
BARTON ACT 2600
AUSTRALIA”
The Ministerial Procedures Advice Manual (“PAM”), when read with an annexure to it, identifies the relevant Australian authority for assessing overseas educational qualifications for professional engineers as the Institution of Engineers, Australia ("IEA"). Barlow & Co wrote to the IEA on 21 April 1995 on behalf of the applicant as follows:
“We advise that we act on behalf of Mr Hu who is applying for migration to Australia. Mr Hu has now been requested to obtain an assessment of his qualifications from your Institution. We wish to point out that we have made submissions on behalf of Mr Hu in relation to his alternative occupations as an Engineer and also as a Research Worker. The information provided below will more fully explain why we have nominated alternative occupations for Mr Hu.
...
The above description shows that Mr Hu was employed as an Engineer, undertaking engineering duties. At the same time, a substantial proportion of his work duties were also in the research field, related to his qualification. Although we had previously provided submissions to the overseas post that Mr Hu should be considered as a Research Worker, the Consulate has requested that Mr Hu be assessed by your office. If you do not believe that he is an Engineer by profession but instead has another occupation, would you please state so.”
The IEA replied to Barlow & Co by letter dated 13 June 1995 which read:
“I am responding to your application for assessment of your qualifications by The Institution for migration purposes.
The Institution requires applicants for Graduate membership to hold a professional engineering qualification which has been awarded on completion of an engineering course of approved standard in a university or institute of technology.
From the documents you have provided, it appears you are trained as a scientist and not as an engineer, applying your scientific skills in an engineering environment. Your application should therefore be made to the National Office of Overseas Skills Recognition (NOOSR).
I suggest that you contact the Australian Consulate-General in Shanghai concerning the redirection of your application.”
This letter was before the delegate when he made his decision on 31 August 1995.
The decision record of the delegate sets out the reasons for his decision. The delegate referred briefly to the legislative scheme. He noted that, while the applicant had been employed in a number of positions in the years 1991 to mid 1994, it was only his employment with Da Tong that was relevant for the purposes of determining his application for a visa. The delegate then discussed a reference from the employer, Da Tong:
“Based on a reference letter from the employer, Mr Hu was one of two engineers responsible for the making and the designing of a generator. His main duties were:
to redesign an original direct current generator into an alternative current generator, (which after tests, proved to be reliable in quality, prolonged in usage).”
The delegate noted the contention of the applicant’s solicitor that the applicant’s employment with Da Tong was as a research worker and not as an engineer. This contention was based on the proposition that the applicant’s work involved “carrying out research into aspects such as the equipment’s suitability for the company’s use; the safety standards; the feasibility of manufacturing the equipment”.
The delegate set out the main tasks of a research worker identified in the Australian Standard Classification of Occupations (“ASCO”). They included:
“ž gathering information and data through observation, interviewing, searches of documents or experimentation;
ž makes preliminary analysis and evaluation of data;
ž reports finding verbally or in writing.”
The delegate expressed the following conclusion:
“While I agree that Mr HU may have been involved in undertaking some field experiments in research work while redesigning the power generator from direct current to alternative current, it is my view that this research was undertaken in the field and was part of the normal duties that would be performed by a [sic] engineer carrying out the task described in his reference letter.
I do not accept that these duties were performed as a research worker.”
The delegate also said that, after considering the tasks performed by the applicant, he considered that the applicant’s duties equated to that of an electrical engineer. The delegate determined the applicant’s “usual occupation” to be that of electrical engineer
Having expressed that conclusion, the delegate observed that some of the duties identified in ASCO as performed by an electrical engineer were duties performed by the applicant. The delegate referred to PAM and noted that the guidelines for the occupation of electrical engineer indicated that qualifications required to perform this occupation in Australia were a recognised four year degree in engineering from a university or college of advanced education. He noted that the Bachelor Degree of Science majoring in laser physics awarded to the applicant by Fudan University was not accepted by the IEA as a four year degree in engineering. This conclusion was reflected in the following passage in the decision record:
“Mr Hu’s qualifications have been assessed by the Institution of Engineers, Australia and that assessment reveals that Mr HU is trained as a scientist and not as an engineer and mentions that an application for assessment of qualifications should therefore be made to the National Office of Overseas Skills Recognition (NOOSR).”
The delegate then said:
“Given that Mr HU’s qualifications are not formally recognised by the Institution of Engineers, I find that they are not relevant to his “usual occupation”, and that referral to NOOSR would not alter the points applicable to him in this factor.
I have also examined the case to determine if Mr HU has experience which may substitute for a formal qualification. I am not satisfied that Mr HU performs the full range or complexity of duties normally performed by a professional engineer in Australia. I have therefore determined that his experience cannot substitute for the lack of an acceptable formal qualification.”
On 3 October 1995, Barlow & Co wrote to the delegate asking him to “re-visit (his) decision”, reconsider the application on its merits, vacate the decision and “substitute a more favourable outcome.” The letter explained why this course should be followed and said, in part:
“We strongly submit that your findings are both subjective and arbitrary and therefore constitute a fundamental error in the law in the interpretation and application of the Migration Regulations and the relevant policy.
Firstly, as revealed in the decision record, this application was refused simply based on the fact that the applicant’s educational qualifications do not recognised [sic] by IEA. Whilst we agree with this finding, this does not mean that the applicant does not have [sic] entitlement to be assessed as having alternative occupation of Research Worker or a low skills occupation - Associate Engineer. No evidence showed in the assessment process that you have given such consideration to this application.
Secondly, the rejection decision simply relied on PAM, instead of the Act and Regulations constituted by the Parliament, making it invalid.
Thirdly, you failed to take into consideration of [sic] all relevant material circumstance in determining the applicant’s usual occupation (that is the applicant is entitled to have one or more usual occupations concurrently) and made the ultimate decision which is not authorised by the Act and is contrary to Section 476 (1)(a) of the Migration Act.
At the present case, we have submitted, in our submissions of 24 June 1994 and 18 January 1995 respectively, that the applicant be assessed as having usual occupations of Engineer and Research Worker. Whilst it may be correct that the applicant’s qualifications do not formally recognised [sic] by IEA, but he does have a degree which is relevant to this work, and indeed the IEA has assessed that the applicant is trained as [sic] SCIENTIST. The applicant, therefore, satisfies the ASCO requirements for a Research Worker and his application should be assessed accordingly. However, nothing is mentioned in the decision record that the applicant has been assessed under alternative usual occupation of Research Worker.”
The delegate responded by letter dated 4 October 1995, stating that he was not willing to vacate his decision. He made file notes which were tendered without objection by counsel for the Minister in the appeal. These notes, while post-dating the impugned decision, cast some light on how the matter had been approached by the delegate. They read:
“Note for file:
Letter from Barlows of 3 October 1995 asks for vacating of decision and review.
Issues raised by Barlows are:
i) that we should have considered Mr HU’s occupation as either a “Research Worker or a low skills occupation - Associate Engineer”.
Comment: Mr HU is clearly NOT a research worker, and I believe that my decision record answers that point. While he may have done some research (investigation, analysis, checking) to ensure that the work he had carried out was successful, that does not mean that the person is a research worker. Many occupations as part of their normal duties carry out some research to reach conclusions, findings or make decision, but they are not research workers.
I do not accept that Mr HU has carried out all the tasks of an Electrical Engineering Associate (ASCO3201-11) either, and therefore the same points for skill apply. The reference to this issue is in the solicitors submission of 18 January 1995, where they states, “Both employer had involved him in the design of equipment, which is one of the duties of an Associate Engineer”. It is noted that one of the duties of an Engineer is also the design of equipment. In considering ALL the duties performed by the applicant, I am still of the view that the usual occupation assessment we have made is correct.
ii)that the decision relied on PAM only, rather than the Act and Regulations.
Comment: I am entitled to consider PAM, ASCO, MSI’s or any other material relevant to deciding the case.
iii)that I failed to consider all relevant material circumstance in determining the applicant’s usual occupation.
Comment: This is not true. We went to a great deal of trouble to ensure that the information we had to make that assessment was correct and up to date.
iv) that in their submissions the solicitors indicated that applicant should be assessed as an Engineer and a Research Worker, and that IEA has assessed that the applicant was trained as a Scientist and therefore satisfies the requirements for a Research Worker.
Comment: This is also incorrect. At page three of their submission of 18 January 1995, the solicitors state, inter alia: “Although the Da Tong Electrical Machinery Co stated that he was engaged as an ‘Engineer’, he did not have the supervisory duties that an Engineer would have. Hence, he cannot be considered as to be an Engineer”.
The Institute of Engineers has not assessed the applicant as a trained Scientist. They have stated that is appears that the applicant has trained as a scientist, but have suggested that those qualifications be assessed by NOOSR.
However, the same situation applies. Mr HU is not a research worker. On the basis of his usual occupation assessment, he is not a scientist.
In terms of an assessment of his usual occupation (i.e. Electrical Engineer), the relevant Australian authority does not consider his study to be equivalent to the Australian standards (i.e. Institute of Engineers advice).
v) that given the information provided in his application and their submissions, Barlows say that Mr HU should be considered to have two concurrent usual occupations, i.e. Research Engineer and Research Worker.
Comment: While I have no difficulty at all with the concept of having more than one usual occupation, for the reasons outlined above, I do not believe that Mr HU meets the requirements of either occupation. This was also addressed in the decision record.
The rest of the latest request reiterates much of what is discussed above. In summary however the following points are made:
Mr HU is not a Research Worker. To argue that because he does some research work, as part of his normal duties, that we must assess him as a research worker under the provisions of 6102(f) is not correct. There is no evidence in the solicitors submission that indicates that HU is a research worker.
All the evidence shows that the applicant has been involved in engineering tasks and has worked in a small scale enterprise with a very moderate salary (folios 174-5, and 179 refer).
I believe that the decision is correct and notwithstanding the comments raised in the second paragraph of page 8, I am not willing to vacate this decision.”
On 9 October 1995, the applicant made application for judicial review of the decision of the delegate. While the application was said to be based on both the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and the Act, it is now not in issue that there is no right of review under the ADJR Act of a decision of this type.
In his reasons for judgment of 4 March 1997, the trial judge set out the factual background and the relevant legislation. He referred to the judgment of Kiefel J in Morais v Minister for Immigration and Ethnic Affairs (1995) 54 FCR 498, at 500-501, concerning the meaning of the expression “usual occupation”. (We set out Kiefel J’s observations later in this judgment.) His Honour recounted the material referred to by the delegate, concerning the skills and educational qualifications of the applicant. After this analysis, his Honour said this:
“It is apparent that [the delegate] made the determination as to the usual occupation of the applicant on the basis of a factual finding that the duties he performed equated to those listed in the ASCO publication for electrical engineers. Prima facie there is no error of law at that stage.”
He then identified what he viewed as the erroneous approach of the delegate:
“In my view, however, the error that [the delegate] made is that the applicant could never properly have been regarded as an engineer - - he was a physicist. It was made perfectly clear to the decision-maker by the Institution of Engineers that the applicant was not an engineer but a scientist. Rather than pursue this, however, [the delegate] ceased his inquiry at that point and omitted to consider further classifications.”
His Honour continued:
“In my opinion, the delegate fell into error by employing a reverse reasoning process. He started by classifying the applicant as an engineer because some of the duties performed by the applicant happened to coincide with some of the duties listed for an engineer. But he did not consider the applicant against the more sensible classification of being a physicist, having regard to the fact that his qualification was a Bachelor of Science majoring in Physics. Secondly, the delegate ignored alternatives including obvious scientific alternatives. These two factors amount to errors of law.
When an applicant has a science degree and is working as a scientist in an engineering field, the correct process is to at least look at the possibility that the person is in an occupation other than an engineer, for example Research Worker, Physicist or Other Professional within the ASCO criteria.”
His Honour went on to discuss how the ASCO criteria might have been applied. He referred to several decisions of the Immigration Review Tribunal, which indicate an applicant may concurrently have more than one usual occupation.
His Honour then considered the approach adopted by the delegate under the heading “Failure to observe procedure”. He noted that the policy guidelines issued by the department required the delegate to look beyond the title of the occupation and to examine the actual duties performed by the applicant. PAM, decisions of the Immigration Review Tribunal as well as the Migration Regulations contemplated that an applicant may hold more than one usual occupation. He referred to ss 54 and 55 of the Act, which addresses the procedure to be adopted in dealing with visa applications. It is not entirely clear whether the trial judge intended to indicate that the delegate had committed a further error or whether his Honour was simply expanding upon the reasons for the conclusion earlier expressed. In any event, he expressed the following view:
“[The delegate] must not by a process of factual findings on particular elements of the material provided in support of the application, foreclose reasonable speculation upon the likelihood that the applicant is qualified for entry on the basis of another occupation from consideration of the whole of the material presented.
The decision record reveals that the application was refused because the applicant’s educational qualification were [sic] not recognised by the Institution of Engineers. Whilst the applicant may not be considered as an engineer in Australia, there is no evidence that the delegate assessed the applicant as having another occupation such as Research Worker, a physicist, or a lower skills occupation such as Associate Engineer. As I read his decision [the delegate] failed to take into consideration the fact the applicant is entitled to have one or more usual occupations concurrently. It would appear that undue weight has been placed on PAM instead of the Act and regulations.”
The Minister challenged the judgment of the trial judge on several grounds. First, it was submitted that, contrary to the conclusion reached by his Honour, the delegate had not fallen into error by finding that the “usual occupation of the applicant was that of electrical engineer”. That delegate’s finding was one of fact open on the material before him. Secondly, it was submitted that the trial judge was not entitled to find that the applicant “could never properly have been regarded as an engineer - he was a physicist”. Again it was submitted that this issue was one involving a finding on a question of fact entrusted to the delegate. Thirdly, it was said that the trial judge had erred in concluding that the delegate did not consider whether the applicant’s “usual occupation” met other descriptions. The delegate was under no obligation to state reasons and did not need to make what were described as “a whole series of specific negative findings expressly rebutting every other arguable description” of the applicant’s usual occupation. Fourthly, the trial judge had erred by granting relief without identifying an error of law of the kind identified in s 476 of the Act.
As these grounds were developed during the hearing, it emerged that the principal contention of the Minister was that the delegate correctly undertook the task required by the Migration (1993) Regulations. This involved a two stage process. The first involved an inquiry as to the applicant’s usual occupation. That inquiry was to be conducted by reference to the definition in reg 2.4(4) and relevant material which included PAM and ASCO. The delegate had to make the findings of fact necessary to enable a conclusion on this question to be reached. The second stage of the process required the delegate to ascertain, by reference to the applicant’s usual occupation, whether he had the relevant qualifications or experience required by par (c) of item 7102.
In our opinion, the ultimate conclusion of the learned trial judge was correct though we accept, as the Minister submitted, his Honour did not identify the error of law by reference to the terms of s 476. The decision of the delegate was attended by an error of law within s 476(1)(e) of the Act involving an incorrect interpretation of the applicable law. Section 476 relevantly provides:
“(1) ...application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
...
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
(g)that there was no evidence or other material to justify the making of the decision.
...
(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
To explain why we have reached this conclusion it is necessary to consider the legislative framework in a little more detail. The system of assessing applications for visas by reference to points was, at the relevant time, governed in subdivision B of Division 2 of Part II of the Act. Sections 29 and 30 provided as follows:
“29 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.
30(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.”
Regulation 2.4 of the Migration (1993) Regulations provided:
“(1)For the purposes of subsections 30(1) and 41(2) of the Act:
(a)...
(b)each qualification specified in column two of an item in Part 1, 2, or 3 of Schedule 7 is prescribed as a qualification in relation to an applicant for a Class 126 (independent entrant) visa.”
Schedule 7 contained seven parts, each dealing with a characteristic or attribute that an applicant would or might have. For example, Part 1 (including item 7102) concerned the applicant’s employment qualifications; Part 2 dealt with the applicant’s age; and Part 3 concerned the applicant’s language skills. Each part allocated points, depending on the applicant’s characteristics or attributes. Somewhat simplified (and ignoring the other parts of Schedule 7), the scheme awarded a greater number of points to an applicant who was highly skilled, young and fluent in English. An applicant lacking some or all of these characteristics or attributes earned fewer points. In substance, the scheme was designed to provide an objective measure of the suitability of applicants for entry into Australia as permanent residents which can be applied with relative consistency.
The applicant’s claim to come within item 7102, if successful, would have resulted in him receiving 70 points in respect of his employment qualifications. Had he received the 70 points, he would have gained the minimum of 95 points he needed to satisfy the points requirement for the visa for which he had applied.
Item 7102(c)(i) requires the decision-maker to assess whether the applicant’s usual occupation is one "in respect of which" the applicant has:
"a degree, trade certificate or post-trade qualifications that is assessed by the relevant Australian authority as meeting Australian education or training standards for that occupation.”
It is implicit in this provision that the decision-maker must identify the usual occupation of the applicant. As we have noted, this expression is defined to mean:
“[A]n occupation that the applicant has engaged in for gain or reward for a continuous period of at least six months during the period of two years immediately preceding the relevant application for a visa or entry permit.”
As the trial judge noted, this definition of “usual occupation” has been considered by Kiefel J in Morais v Minister. Her Honour said this of the definition, which was then contained in reg 146 (at 500):
“The occupation the regulation is concerned with is clearly not just any undertaking, pursuit or activity which occupies one’s time, but one which has been pursued in the context of employment. An essential feature of such an occupation is the receipt of income or other form of reward, something given or acquired in exchange for the provision of skills or services. A person’s occupation would, I consider, ordinarily be understood to refer to that employment, trade or business in which that person is habitually engaged and by which that person earns a livelihood or receives some form of remuneration.... The practical importance of this, in a regulation concerned, as it is expressed, with a person’s suitability for employment in Australia in the event of migration is relatively clear. The mere holding of qualifications is not considered sufficiently indicative of prospective employment. The fact however that those qualifications and associated skills have been taken up in the market for them for the requisite period, that an employer or other party has been prepared to pay in some way for them, might furnish a more reliable indication. It may also be seen to overcome any need for an individual assessment of a person’s ability to carry out the work, or of their skills.”
In our respectful view, this approach to the construction of the definition is helpful. It will be seen that her Honour, while recognising that the mere holding of qualifications cannot establish a person’s “usual occupation”, accepts that the taking up of those qualifications in the market place furnishes a more reliable indication. It is clear that her Honour regarded a person’s qualifications, while not determinative of that person’s “usual occupation”, as a material factor to take into account in the classification process. In other words, a person’s qualifications, skills and employment history are likely to be relevant in determining that person’s “usual occupation”. That is so even where attention is to be focussed (as the definition of “usual occupation” requires) on an occupation engaged in during a specific period.
In our view, the difficulty with the approach taken by the delegate is that he concentrated exclusively on the tasks performed by the applicant during his employment with Da Tong. As the trial judge observed, the delegate decided that the applicant’s duties equated with those of an electrical engineer because he performed some of the duties listed in ASCO as characteristic of an electrical engineer. The delegate did not consider whether, by reason of the applicant’s qualifications and experience, his usual occupation should be classified in some other way. A person’s usual occupation is not to be determined solely by reference to a catalogue of duties performed for a particular employer within the period referred to in the definition, a comparison then being made between that catalogue and a description of duties for a particular occupation specified in ASCO.
Of course, in any given case, the significance of a person’s qualifications and employment history to the question of classification is likely to depend on such factors as the relationship between his or her training and work experience and the work performed during the relevant period, and the recency of work undertaken with other employers. In this case, it was not suggested that the applicant’s training and his work with his previous employers was so remote from his professional activities during the two year period identified in the definition that they should be ignored for the purpose of classifying his “usual occupation”.
The point we are making can be illustrated this way. Two people may be performing substantially the same duties on behalf of the same employer, yet their qualifications and employment history may lead to the conclusions that they each have a different “usual occupation”. For example, two people may be employed by a hospital to provide counselling to dysfunctional families, and indeed may work together. One is trained as a psychologist and has worked throughout his or her professional life as a psychologist; the other is trained as a social worker and has always been employed in positions designated for social workers. The usual occupation of the first is that of psychologist, while the usual occupation of the second is that of social worker. The examples could be multiplied.
There is another factor which points to the same conclusion. The delegate appears to have read the word “occupation” in the definition of “usual occupation” as referring, in the case of an employed person, to a position or job held with a particular employer (in this case the position with Da Tong). But the word “occupation” does not have the same meaning as “job” or “position”. A person can engage in an occupation for gain or reward for a continuous period of six months with two or more employers. This suggests that the inquiry is to be broader than one that simply focuses on the task performed by the applicant in a particular job or position in which he or she has worked for a period of more than six months.
We have considerable sympathy for the delegate. The applicant, in his application, described his usual occupation as “research engineer”. The applicant’s case, as presented to the delegate, was framed principally by reference to the duties he performed at Da Tong and at the Laser Instrument Factory. These duties were said to warrant his usual occupation being regarded as “research worker”, as well as (or instead of) engineer. It does not appear to have been suggested by the applicant, until after the delegate made his decision, that the applicant’s usual occupation could be anything other than engineer or research worker. While some reference was made to the applicant’s training, it was in the context of suggesting that his usual occupation was as a research worker. Nonetheless, the question of whether the applicant’s usual occupation was that of a scientist was squarely raised in the letter from the IEA. In that letter the IEA pointed out that the applicant had been trained as a scientist and not as an engineer and had been “applying [his] scientific skills in an engineering environment”. This was sufficient to have alerted the delegate to the question of whether the applicant’s usual occupation was that of scientist or perhaps (as the trial judge suggested) physicist.
The boundary between questions of fact and questions of law is not easy to define. In Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389, at 395, the High Court referred to the five general propositions put forward in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, as follows:
"Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions:
'1. The question whether a word or phrase in a statue is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.'
In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact."
[citations omitted]
The Court in Agfa-Geveart said (at 396) that such general propositions are helpful in many circumstances, but lose “a degree of their utility when ... the phrase or term is complex or the inquiry that the decision-maker embarked upon is not clear”. The Court also characterised as “artificial” the distinction implicit in proposition 4, between the “construction” and “meaning” of a term. Agfa-Gevaert suggests that the distinction between an issue of fact and law can prove elusive.
In the present case, however, we think that the delegate made an error of law. The phrase “usual occupation” was not used in Part 1 of Schedule 7 in its ordinary sense. Rather, it was defined in reg 2.4(4) in a manner that modified its ordinary meaning. This is not to say, however, that the ordinary meaning of the expression is to be ignored in construing the definition. As noted in Bennion, Statutory Interpretation (2nd ed), p 414:
“Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. As Richard Robinson said, it is impossible to cancel the ingrained emotion of a word merely by an announcement.”
In our view, the delegate erred by interpreting the definition of “usual occupation” as requiring attention to be focussed exclusively on the tasks performed by the applicant during one particular period of employment. Properly construed, the definition required the delegate to take into account not merely those tasks, but the applicant’s training, qualifications and work experience, although the significance of these matters will depend on the circumstances of the individual case. In consequence of the error of law the delegate failed to direct attention to the qualifications obtained by the applicant in China and the way in which his scientific skills had been applied in the workplace. In turn, this caused the delegate to apply par (c)(i) of item 7102 in a manner that may have involved the incorrect inquiry.
This conclusion is sufficient to dispose of the appeal. However the matter might be approached on an alternative basis, although we acknowledge that there were no detailed submissions made in the appeal concerning the language and structure of s 476(1)(e) upon which this alternative approach depends.
It can be seen that in s 476(1)(e) a distinction is drawn between the process of fact finding undertaken by a decision maker and the process of interpreting and applying the law to the facts as found. Often a decision maker is called upon to apply the provisions of a statute to a factual matrix to be discerned from oral and documentary evidence and other material, although the process is not the same as that undertaken by a court in civil litigation: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282. In the course of making a decision in exercise of a statutory power, a decision maker must ascertain the facts on which the statute might operate and determine what the applicable words in the statute mean. Section 476(1)(e) reflects the notion that the process of finding facts is the preserve of the decision maker and that, consequently, a decision maker is able to make wrong findings of fact which are not amenable to judicial review: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Judicial review of the process of fact finding under the Act is expressly addressed in s 476 (1)(g) and (4).
The expression “incorrect application of the law to the facts as found”, in contradistinction to the expression the “incorrect interpretation of the applicable law”, suggests a process of both ascertaining the meaning of the law and applying it to the found facts. A distinction has been drawn between classes of fact in relation to the process of construing and applying a statute. In Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51, Fullagar J said:
“... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove the ultimate fact). The ‘facts’ referred to by Lord Parker [in Farmer v Cotton's Trustees [1915] AC 922] ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.”
See also Hope v Bathurst City Council (1980) 144 CLR 1.
In Pozzolanic, one of the propositions formulated by the Full Court was that the question of whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law. They went on to indicate, however, that this proposition is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within these words. Where it is open to hold they do, the question whether they do or not is one of fact.
If s 476(1)(e) of the Act is approached on the basis that the determination of whether the accepted facta probantia satisfy the usual meaning of a word or expression in the Act or regulations is itself a question of fact, then the distinction drawn in s 476(1)(e) between the facts as found and the application of the law would be illusory. In our opinion the distinction drawn in s 476(1)(e) was intended to enable the decision maker to determine the facta probantia generally immune from judicial review, subject to the operation of s 476(1)(g), but expose to review the application of the law. The application of the law includes the determining whether the accepted facta probantia satisfy the meaning of a word or expression in the statute whether it has its usual meaning or not. That latter step is comprehended by the expression “application of the law”.
The Minister submitted that the delegate’s conclusion, that the applicant’s usual occupation was that of electrical engineer, was a finding of fact unreviewable under s 476 (1)(e) of the Act. But that conclusion depended on the application of the relevant law, that is the standard contained in reg 2.4(4) and par (c) of item 7102 of the Migration (1993) Regulations. Even if “usual occupation” could be described as simply an ordinary English expression having its usual meaning, the delegate’s conclusion still required the application of the relevant law to the facts as found by him. It did so because, in order to make the finding, the decision maker had to determine whether the accepted facta probantia were sufficient to warrant the conclusion that the applicant’s “usual occupation”, within the meaning of the Migration (1993) Regulations, was that of electrical engineer. As we have already explained, we think that the delegate erred in making the determination, because he adopted an incorrect construction of the expression “usual occupation”. This is an error encompassed by s 476(1)(e) of the Act.
In conclusion we should refer to one matter raised by counsel for the Minister. As we earlier noted, the trial judge said in his reason that “(the applicant) was a physicist” and ultimately ordered that the visa application be remitted to the respondents for redetermination according to the trial judge’s reasons. It was suggested by the Minister that an order in these terms would require the decision maker to proceed on the basis that the applicant’s “usual occupation” was as a physicist. In our opinion the usual occupation of the applicant is a matter to be reconsidered and determined by the primary decision maker and we propose to vary the order made by the trial judge accordingly. We otherwise dismiss the appeal.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 7 November 1997
Counsel for the Appellant: Mr G Johnson
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr T Game
Solicitor for the Respondent: Barlow & Co
Date of Hearing: 9 September 1997
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