Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 514
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 514
File number(s): SYG 1247 of 2019 Judgment of: JUDGE LAING Date of judgment: 29 June 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant the applicants Skilled Independent (Permanent) (Subclass 189) visas – whether the first applicant satisfied the ‘points test’ criterion in cl 189.224 of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the correct version of the regulations was applied –application dismissed. Legislation: Migration Act 1958 (Cth) pt II div 3 sub-div B, ss 93, 94, 96, 96(2), 350
Migration Regulations 1994 (Cth) regs 1.15F, 2.26AC, sch 2 cl 189.224, sch 6D pts 6D.1–6D.13Minister for Home Affairs and Minister for Immigration and Border Protection, Migration (IMMI 18/067: Pool and Pass Marks for General Skilled Migration Visas) Instrument (IMMI 18/067 25 June 2018).
Minister for Immigration and Citizenship (Cth), Pass Marks and Pool Marks in Relation to Applications for General Skilled Migration Visas (Classes VE, VC, VF, VB, SI, SN and SP) (IMMI 12/017 12 June 2012).Cases cited: FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 304Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 20 April 2022 Place: Sydney Solicitor for the first Applicant Self-represented Applicant Solicitor for the second Applicant Self-represented Applicant Solicitor for the First Respondent Ms A. Wong (Mills Oakley) appeared in person Solicitor for the Second Respondent Did not participate ORDERS
SYG 1247 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HIDAYATULLAH MOHAMMED
First Applicant
SADDAF LOHIA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.The application be 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 LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Skilled Independent (Permanent) (Subclass 189) visas (Subclass 189 visas).
BACKGROUND
The applicants are nationals of India who applied for the Subclass 189 visas on 24 August 2017. The visas in question were points based visas for applicants who had submitted an expression of interest and been invited to apply. The first applicant in these proceedings (Applicant) had been invited to apply for the visa on 23 August 2017. The second applicant, his wife, was included in the application as a member of the family unit.
On 21 December 2017, the Delegate refused the application for the visas on the basis that the Applicant did not satisfy the ‘points test’ criterion in cl 189.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicants applied to the Tribunal for review of the Delegate’s decision.
The Tribunal affirmed the Delegate’s decision on 8 May 2019.
THE TRIBUNALS’ DECISION
The Tribunal observed that the issue before it was whether the Applicant satisfied the points test criterion. In accordance with cl 189.224 of Schedule 2 to the Regulations, this required the Applicant’s score, when assessed under Subdivision B of Division 3 of Part 2 of the Act to be not less than:
(a)the score stated in the invitation to apply for the visa; or
(b)the ‘qualifying score’: [4].
The Tribunal observed that the applicable qualifications and points were prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant would receive a ‘qualifying score’ if their assessed score met the applicable pass mark pursuant to s 94 of the Migration Act 1958 (Cth) (Act) set from time to time by the Minister under s 96(2) of the Act. The Tribunal was required to consider the pass mark as in force at the time of the Delegate’s assessment and at the time of its assessment, and apply whichever was more favourable to the Applicant (ss 93 and 350 of the Act): [5].
Applying the law in force at the time of the Delegate’s assessment, the Tribunal found that the following points were available to the Applicant:
(a)30 points under Part 6D.1 (Age qualifications), as the Applicant was 28 years old at the time of the invitation to apply for the visa: [7].
(b)10 points under Part 6D.2 (English language qualifications), as the Applicant was found to have had proficient English: [8].
(c)15 points under Part 6D.7 (Educational qualifications), as he held a bachelor degree issued by an Australian educational institution: [29].
(d)5 points under Part 6D.8 (Australian study qualifications), as he had completed a degree, which was a registered course, in a total of at least 16 calendar months and two academic years of study for which instruction was conducted in English and during which he held a visa authorising him to study. He therefore met the Australian study requirement defined in reg 1.15F of the Regulations: [33].
The Tribunal therefore found that the Applicant was entitled to a total of 60 points: [43].
The Tribunal found that the material before it did not support the Applicant being awarded points under the following provisions:
(a)Part 6D.3 (Overseas employment experience qualifications), as no claims in this regard had been made: [10].
(b)Part 6D.4 (Australian employment qualifications). The Tribunal’s reasoning in relation to this is considered further below.
(c)Part 6D.5 (Aggregating points for employment experience qualifications), as no points had been awarded under Part 6D.3 or Part 6D.4, with the combined number of points being awarded under those Parts therefore being less than 20: [26].
(d)Part 6D.6 (Australian professional year qualifications), as no evidence of having completed a ‘professional year’ within the meaning of this Part had been provided: [27].
(e)Part 6D.7A (Specialist educational qualifications), as no evidence of the Applicant meeting the requirements for the award of a masters degree by research or doctoral degree was provided: [31].
(f)Part 6D.9 (Credentialled community language qualifications), as there was no evidence that the Applicant had the requisite language qualifications at the time of invitation: [35].
(g)Part 6D.10 (Study in regional Australia or a low-population grown metropolitan area qualifications), as there was no evidence that the Applicant’s study was undertaken at a relevant campus or postcode: [37].
(h)Part 6D.11 (Partner Skills Qualifications), as there was no evidence that the Applicant’s partner had nominated a skilled occupation and been relevantly assessed as having suitable skills: [39].
(i)Part 6D.12 (State or Territory nomination qualifications), as the Applicant had not been invited to apply for a Subclass 190 (Skilled – Nominated) visa: [40].
(j)Part 6D.13 (Designated area sponsorship qualifications), as the Applicant had not been invited to apply for a Subclass 489 (Skilled-Regional) (Provisional) visa: [41].
In relation to Part 6D.4 (Australian employment qualifications), the Tribunal observed that points may have been available if, at the time of the invitation to apply for the visa (23 August 2017), the Applicant had been employed in the nominated skilled occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately prior. The Applicant had claimed to have worked in Australia at Exon Systems in Computer Networks and System Support from May 2012 to May 2015, and at Python Technologies as a Computer Networks and System Engineer from July 2015 to August 2017. The Applicant had included with his application a skills assessment from the Australian Computer Society (ACS) dated 18 August 2017: [11]-[14].
The Tribunal observed that the Delegate had relied upon an opinion from ACS that the Applicant was assessed as being skilled in his nominated occupation in 2016. The Delegate therefore found that the Applicant had been employed in his nominated skilled occupation from January 2017 to August 2017, which was less than a period of 12 months. In response to this, the Applicant had contended that the ACS policy was amended in August 2018 and that the changes should not apply to his case. The Tribunal found this submission to be misconceived, as the question for the Tribunal was not whether he met the ACS policy but whether his employment was in the nominated occupation or a closely related occupation: [15]-[16].
The Tribunal considered that the ANZSCO set out, in relation to the entry requirements for the occupation of Computer Network and Systems Engineer, that most occupations in that unit group had a skill level commensurate with a bachelor degree or higher qualification, for which at least five years of relevant experience and/or relevant vendor certification may substitute. The Tribunal did not accept that the ACS policy established the entry level for the occupation or that this policy, which was consistent with ANZSCO, was amended after visa application was made: [17]-[18].
Nor did the Tribunal accept the Applicant’s complaint that the ACS ought to have informed him that his work experience would not be counted. The role of the ACS was not to advise about the allocation of points, but to provide skills assessments. Whilst the Tribunal accepted that the Applicant would not have proceeded with the visa application if he had been aware of the legal requirements, this did not absolve him of needing to meet them: [19]-[21].
The Tribunal had regard to the Applicant’s submission that he had been employed for a period of over 5 years and that at the time he had applied for the visa, there was no advice about him having to have completed a degree. The Tribunal accepted that the Applicant had believed that he had the requisite experience, but noted that it was required to consider not only the length of employment but also whether it was in the skilled occupation. In this regard, the advice from ACS was that his Advanced Diploma was assessed as relevant to the nominated occupation and would have required five years of employment to meet the assessment outcome. The Applicant’s bachelor degree was assessed as not closely related to the nominated occupation and required the Applicant to complete four years of work experience, giving him the earlier skilled dated in December 2016: [22]-[23].
Having regard to this advice, the Tribunal found that the Applicant had engaged in a skilled occupation from December 2016. Although the Applicant had worked prior to that date, the Tribunal was not satisfied that this would have been at the appropriately skilled level and therefore found that it was not in the skilled occupation. As the application was made in August 2017, this period of relevant employment was less than 12 months. It followed that the Tribunal awarded no points under Part 6D.4: [24].
The Tribunal observed that at the time of the Delegate’s assessment, the pass mark was 60 points: IMMI 12/017. The Tribunal accordingly accepted that the Applicant had achieved the qualifying score to pass the points test, as required by cl 189.224(2): [43].
However, the Tribunal observed that it was also a requirement of the visa that the Applicant’s score not be less than the score stated in the invitation to apply for the visa: cl. 189.224(1). The primary decision record indicated that the written invitation given to the Applicant stated a score of 75 points. This had not been achieved by the Applicant. As such, the Tribunal found that the Applicant was unable to meet cl 189.224(1). The Applicant’s wife, as a secondary applicant, was therefore unable to meet cl. 189.311 which required her to be a member of the family unit of a person who had satisfied the primary criteria (although reference was made by the Tribunal to cl 189.321 in this regard, this was a typographical error of no material effect): [44]-[45].
For these reasons, the Tribunal affirmed the decision under review: [46].
RELEVANT LAW
Clause 189.224 of Schedule 2 to the Regulations relevantly provided as follows:
189.224
(1) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.
(2) The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the qualifying score for that Subdivision.
Note: Subdivision B of Division 3 of Part 2 of the Act provides for the application of a points system under which applicants for relevant visas are given an assessed score based on a prescribed number of points for particular attributes, assessed against the relevant pool mark and pass mark: see sections 92 to 96 of the Act.
The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6D of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument: see section 96 of the Act.
As explained by the Tribunal, points were available for allocation under Schedule 6D to the Regulations in accordance with reg 2.26AC.
Section 93 of the Act provided:
Determination of applicant's score
(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.
Section 94 provided:
Initial application of "points" system
(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3) If an applicant's assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the application aside--the Minister is taken to have put the application into a pool.
(4) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.
Section 96 provided:
Minister may set pool mark and pass mark
(1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.
(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
(3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
(5) This Act does not prevent a pool mark and a pass mark from being equal.
(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other.
Section 350 provided:
Review of assessments made under section 93
(1) In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
(2) In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are:
(a) in relation to regulations covered by paragraph (1)(a)--the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and
(b) in relation to regulations covered by paragraph (1)(b)--the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the Tribunal about the assessment.
The instrument in force at the time of the visa application was IMMI 12/017. This provided a pass and pool mark of 60 points for a Subclass 189 visa. That instrument was replaced on 1 July 2018 by IMMI 18/067, which also provided for a pool and pass mark of 60 points where an invitation to apply had been sent before 1 July 2018.
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicants in this Court on 21 May 2019 containing the following grounds (capitalisation removed):
1.Section 96(2) of the Act, 2018 law was applied to our case which we applied in August 2017.
2.Subsection 93 and 350 of the Act, we should receive a favourable decision as we followed the law that was available to us at the time of application.
Orders were made on 9 August 2019 requiring the Minister to file and serve a copy of the Court Book upon the applicants. At the hearing, the Applicant informed the Court that they had not received this document.
The Court was informed by the Minister’s representative that an attempt had been made to locate correspondence by which the Court Book was served, but that this had been unsuccessful following the transfer of carriage of the matter from one firm to another. An email was tendered, as Exhibit A, indicating that an electronic copy of the Court Book (inter alia) was sent to the applicants the day before the hearing. The Applicant stated that the Court Book annexure had not been received but, in any event, this only demonstrates service a limited time before the hearing. In the circumstances, I arranged for the Court Book to be printed for the applicants and allowed them some time during the hearing in which to peruse this and identify anything that may have taken them by surprise. Nothing in this regard was identified during the hearing.
I also made orders allowing the applicants a further period of 3 weeks in which to consider the Court Book and make additional submissions by reference to the material therein in support of their application, as well as an order permitting liberty to apply in the event that issues were experienced with the sufficiency of this time. The Minister was allowed a 2-week period in which to file any submissions in response.
The only matter raised by the applicants in post-hearing submissions was a request that a transcript or recording of a phone call between an employee of the Department of Immigration and Border Protection (as it was) and ACS that was referred to in the Court Book be retrieved. In response, the Minister’s representatives put on material confirming that no such recording or transcript existed. Whilst a short, partially redacted file note of the conversation was additionally provided, this was consistent with the evidence in the Court Book and could not materially change the evidentiary picture before the Court.
At the commencement of the hearing of this matter, I identified as an issue with the parties that although the applicants had selected the box on their application form seeking that the decision under review be quashed, they had not selected the box seeking mandamus. There are decisions of this Court to the effect that this may result in an application being incompetent unless remedied: see FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 at [14]-[21] and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 304 at [25] and [33]. At the Court’s invitation, the applicants sought leave to amend their application to address the issue without requiring any further document to be filed. An order to this effect was made without objection.
At the hearing, the Applicant took the Court to page 19 of his affidavit filed on 9 January 2020 (affidavit), which appears at page 417 of the Court Book. That document, which contained ACS guidelines from 2018, indicated that having a qualification comparable to an AQF Bachelor Degree or higher with an ICT major would require 4 years of relevant work experience if assessed as not being closely related to the nominated occupation. This is consistent with what was communicated by ACS to the Department in relation to the Applicant’s bachelor degree (see [15] above).
The Applicant then took the Court to a document at page 11 of his affidavit, which appears at page 41 of the Court Book. That document was a letter from ACS assessing the Applicant’s skills as suitable for migration in relation to the ANZSCO Code relating to a Computer Network and Systems Engineer. The Applicant submitted that this should have been taken into account. However, this submission was considered by the Tribunal at [16]-[20] of its decision. The Tribunal observed that the role of the ACS was to provide skills assessments and not to advise on the allocation of points. Whilst there was no doubt that the Applicant had the skills for the nominated skilled occupation at the time of its decision, the issue regarding points under Part 6D.4 concerned skills held during the Applicant’s employment.
The Applicant submitted that it was unfair for the Tribunal to have based its decision on ACS policy when that policy had changed after the date of application. In this regard, the Court was taken to a document at page 13 of the Applicant’s affidavit, which also appears at page 413 of the Court Book. That document indicates that some updates were made to the policy on 2 August 2018. However, the document does not specifically explain whether the parts of the policy that are relied upon by the applicants were updated, nor how.
The applicant then took the Court to page 14 of his affidavit, which also appears at page 435 of the Court Book. This was said to contain the earlier version of the policy. The document refers to the “Required Level of AQF comparability” in respect of a “Bachelor Degree or higher” with an “ICT Major” not considered to be closely related to the nominated occupation. The “Required Relevant Work Experience” in relation to this qualification is stated to be 4 years, which appears consistent with what was relied upon by the ACS and the Tribunal. Whilst the Applicant submitted at the hearing that the ACS had assessed his bachelor qualification as ‘closely related’, this is not consistent with its written advice to the Department. It follows that even if the Tribunal’s non-acceptance at [18] of its decision that the policy was amended was incorrect, I am not persuaded that this could have been material to its decision given my findings regarding the consistency of the documents to which I have been taken.
In relation to the extract from the earlier ACS policy, the Applicant submitted that the document did not clearly state that a bachelor degree was required in order for his employment to have been considered relevantly skilled. However, the document appears on its face to be consistent with the ACS’s interpretation that the Applicant was only considered to be relevantly skilled by reason of the combined effect of his work experience and bachelor degree from December 2016. It also stated the following above the entries relied upon by the Applicant:
Please Note: The ICT work experience required to meet the suitability criteria is NOT included as “Skilled Employment" and is NOT eligible for points under the skilled migration points test for the following application types.
In any event, even if my interpretation of this document is incorrect, I am not persuaded that the Tribunal was precluded from relying upon ACS advice based upon an updated version of its internal policies. Section 350 of the Act provided that, in reviewing assessments made under s 93, the Tribunal was required to have regard to the regulations that were in force at the time the Minister’s assessment was made if they were more favourable than those in force at the time of the Tribunal’s decision. The ACS policy documents were not regulations in the relevant sense. I accept the Minister’s submission that the Regulations had not changed in any manner that was applied adversely to the Applicant contrary to s 350 of the Act.
CONCLUSION
For the above reasons, the application will be dismissed.
I will hear the parties in relation to costs.
41 I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Associate:
Dated: 29 June 2022
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