Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1838
•10 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1838
File number(s): SYG 2044 of 2017 Judgment of: JUDGE STREET Date of judgment: 10 August 2021 Catchwords: MIGRATION - Administrative Appeals Tribunal – application for Skilled (Provisional) (Class VC) Visas – whether the Tribunal applied an unduly narrow and legally erroneous approach to the assessment of whether the courses undertaken by the applicant were closely related to the nominated skills occupation – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) ss 349, 476
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Regulations 1994 (Cth) cl 485.221, 485.222
Cases cited: Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Number of paragraphs: 34 Date of hearing: 10 August 2021 Solicitors for the applicant: Mr M Jones, Parish Patience Immigration Lawyers Solicitors for the respondent: Ms S Thompson, HWL Ebsworth Lawyers ORDERS
SYG 2044 of 2017 BETWEEN: NAZEER AHMED MOHAMMED
First ApplicantBUSHRA SYEDA
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
2.Leave is granted to the applicants to rely on the amended application raising the two grounds identified in the applicants written submissions filed on 9 June 2021.
3.The applicants file and serve the amended application on or before close of business on 12 August 2021.
4.The amended application is dismissed.
5.The applicants pay the first respondent’s costs fixed in the amount of $7, 206.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 May 2017, affirming the decision of a Delegate of the first respondent (“the delegate”) not to grant the applicants Skilled (Provisional) (Class VC) Visas (“the Visas”).
The applicants are citizens of Egypt and applied for the Visas on 19 July 2015. The second applicant is the partner of the first applicant, who is included as a member of the family unit.
On 30 September 2015, the delegate found that the applicants failed to meet the criteria for the grant of the Visas. On 20 October 2015, the applicants applied to the Tribunal for a review. On 24 February 2017, the applicants were invited to attend a hearing to take place on 9 May 2017. The applicants appeared before the Tribunal on that date to give evidence and present arguments.
The Tribunal identified that the first applicant was seeking to satisfy the primary criteria for a Subclass 485 Visa in the graduate work stream, which included cls 485.221 and 485.222 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal identified the background to the review application. The delegate had refused the grant because the first applicant had not provided evidence that he satisfied the Australian study requirements in the six months immediately before the day the Visa application was made.
The Tribunal correctly identified that this meant that the applicant must satisfy the Australian study requirement in the six months immediately preceding the day of the Visa application, under cl 485.221 of the Regulations. Secondly, the Tribunal identified that each degree, diploma or trade qualification used to satisfy the requirement must be closely related to the applicant's nominated skilled occupation as per cl 485.222 of the Regulations. The Tribunal correctly identified its statutory task in the review, being whether the applicant meets those two requirements under pt 5 div 3 of the Act.
The Tribunal, relevantly, found that the applicant did meet the criteria under cl 485.221 of the Regulations. The Tribunal then turned to the issue of whether each degree, diploma or trade qualification used to satisfy that requirement, was closely related to the applicant's nominated skilled occupation. The Tribunal identified that the applicant had nominated the skilled occupation, ‘Computer network and systems engineer’. The Tribunal identified the courses that the applicant relied upon in that regard, which included an Advanced Diploma of Management and a Master of Information Communications Technology.
The Tribunal squarely raised with the applicant its concern and the issue of whether the applicant met cl 485.222 of the Regulations at the hearing. The Tribunal explained to the applicant that it was considering information from the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”), and that it may form the view that the nominated occupation is highly technical in nature and not related to the management skills the applicant had attained in the management courses.
It is apparent that the applicant had a real and meaningful hearing before the Tribunal, which raised the real issues with the applicant in the course of that hearing.
The Tribunal referred to the applicants' evidence that a systems engineer needs to play a leadership role and manage a team. The Tribunal identified that they may have accepted the skilled occupation Computer Network and Systems Engineer, as described in the ANZSCO descriptions, perform a management role. The Tribunal explained that it may form the view that the skills attained in the management courses are merely complementary and not closely related to the nominated skilled occupation. The Tribunal identified the applicants' evidence in relation to performing management duties and referred to the submissions that were advanced, which claimed that the courses were closely related to the nominated skilled occupation.
The Tribunal identified that, in considering whether the applicant's courses are closely related to the nominated skilled occupation of Computer Network and Systems Engineer, the Tribunal had regard to:
•the ANZSCO descriptions for the nominated occupation,
•other occupations from the Sub-Major Group 26 ‘ICT Professionals’;
•Minor Group 263 ‘ICT Network and Support Professionals’;
•and the unit in which it falls, ‘Computer Networking Professionals.’
The Tribunal made express reference to the Full Court's decision in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (“Talha”) and the proposition that the Tribunal is not confined to the description of the occupation at the lowest level of the ANZSCO code. The Tribunal made express reference to the proposition that it is necessary to have regard to any information which is relevant to the high ANZSCO code with ANZSCO groupings, in which the applicant's nominated occupation falls. The Tribunal also identified relevant provisions of the ANZSCO code, being attached to the reasons and incorporated by pagination.
The Tribunal also identified that it accepted that there does not have to be any exact correspondence, between the applicant’s courses and nominated skill occupation, but that the relationship must be more than merely complementary. The Tribunal expressly referred, again, to the Full Court of the Federal Court’s decision in Talha, that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions. The Tribunal expressed the view that it is appropriate to objectively consider the relationship between the applicant’s qualifications and the ANZSCO definition of the occupation, rather than relying on the applicant's own description and perception of what the occupation entails.
The Tribunal referred to having further regard to the ANZSCO descriptions attached to the Tribunal's reasons. The Tribunal identified its view that the nominated occupation is highly technical and specialised and focuses on: planning, developing, organising, testing and optimising network and system services and managing network systems. The Tribunal identified that the nominated occupation also involves analysing, interpreting and evaluating computer systems, and that the occupation may undertake troubleshooting, assessing and recommending system improvements and installing, configuring, testing, maintaining and administering new and upgraded network software, database applications and supervising workstations.
The Tribunal identified the further matters that the nominated occupation may involve, and accepted that there may be some team leadership required of the nominated skilled occupation, but having regard to the whole of the occupation, the Tribunal was not satisfied that it is was a management role. The Tribunal was not satisfied that the applicant's Diploma and Advanced Diploma of Management courses are closely related to the nominated skills occupation, having regard to the courses and the applicant's skills acquired in the Diploma and Advanced Diploma in Management, which relate to managing people in teams, and considering the matter overall and having regard to the ANZSCO descriptions, which confirmed that the nominated occupation is of a specialised highly technical nature. The Tribunal was not satisfied that the Diploma and Advanced Diploma of Management courses relate to the highly specialised technical duties of the ICT professionals, including ‘Network and Support Professionals’ and the ‘Computer Network and Systems Engineers’.
Considering the whole of the applicant's studies and the whole of the nominated skilled occupation, the Tribunal was not satisfied that the applicant's Diploma and Advanced Diploma of Management are qualifications that are closely related to the nominated skilled occupation of ‘Computer Network and Systems Engineer’. It was in these circumstances that the Tribunal found that the applicant did not meet the criteria in cl 485.222 of the Regulations. It is this decision that is now under review.
THE GROUNDS
The two grounds in the amended application are as follows:
Ground 1
The Tribunal erred by considering a criterion which had not been considered by the Delegate in the decision under review.
Ground 2
The Tribunal erred by applying an unduly narrow and legally erroneous approach to the assessment of whether the courses undertaken by the applicant to make up the Australian study requirement were “closely related” to the nominated skill occupation.
GROUND 1
In relation to Ground 1, Mr Jones, the solicitor for the applicant, in substance, contended that the Tribunal should not have embarked upon a consideration of whether the applicant met the criteria in cl 485.222 of the Regulations. He contended that the Tribunal was confined to considering, on review, the criteria which the delegate had found that the applicant did not meet, being cl 485.221 of the Regulations. That proposition is without merit and without substance.
In its review, the Tribunal, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), relevantly is conducting a fresh review.
Section 43 of the AAT Act relevantly provides as follows:
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 43
Tribunal's decision on review
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 349 of the Act relevantly provides as follows:
MIGRATION ACT 1958 – SECT 349
Tribunal powers on review of Part 5‑reviewable decisions
(1)The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2)The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
(3)If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
The proposition that the review does not include the whole of the statutory task that the delegate was required to undertake is misconceived. Contrary to the submissions advanced by the applicant, it is not supported by the passages identified in the judgment of the learned Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (“CPJ16”).
Mr Jones has sought to place weight, in particular, on paragraph 66 of the reasons in the CPJ16 and the approach the learned Rares J adopted in relation to the character test examination embarked on by the Tribunal. His Honour's reasons, in relation to paragraph 66, must be read in its context as follows:
[66] I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the Delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329-330 [146]-[149].
It is clear that what his Honour was identifying was that the Tribunal's task in determining a review, and what is the correct and preferable decision, must be connected to the grounds of the decision to exercise the statutory power which is the subject of a review. The additional comments in that first sentence should not be taken out of context as implying that His Honour was suggesting that the subject matter of the review was to be confined, regardless of the statutory task being undertaken by the delegate, which is, in substance, the contention being advanced by Mr Jones in the present case. The Tribunal was correct to embark upon the review as it identified, which concerned whether the applicant met the criteria under cls 485.221 and 485.222 of the Regulations. No jurisdictional error is made out by Ground 1.
GROUND 2
In relation to Ground 2, Mr Jones took the Court to the decision in Talha and contended that the Tribunal in the present case had made a similar type of error, and had made reference to the ‘Minor Group 233 Engineer Professionals’, which includes the role description of:
•ensuring projects are undertaken efficiently and in a cost effective manner;
•supervising the construction of particular structures and systems and the manufacturing and installation operation of maintenance of equipment, machines and phones;
•organising and managing project labour and the delivery of materials, appliances and equipment, and cost estimating and resolving operational problems.
It was submitted that the content identified in ‘Minor Group 233 Engineer professionals’ identifies a basis upon which it could be said that the Tribunal's decision, that the Diploma and the Advanced Diploma are not closely related, was legally unreasonable. This contention, as advanced by Mr Jones, shows an alleged failure by the Tribunal to take into account the structure of the ANZSCO code, to have regard to all the potentially relevant tasks and to not confine itself to a relatively narrow statement of tasks in the relevant unit or group or at another level of the specified occupation.
It is patent from the Tribunal's reasons, which referred to the decision of the Full Court of the Federal Court of Australia in Talha , that it was alive to the taking into account of the ANZSCO code and the higher groupings, consistent with the passage identified by Mr Jones at [27] of the Tribunal’s reasons which reads as follows:
[27] The Tribunal has had regard to the skills acquired in the applicant's Diploma and Advanced Diploma of Management. These relate to managing people and teams, document design and development, recruitment, risk, budgets and finances, customer service, projects, organisational change, strategic, business and marketing planning, and knowledge and information. Considered overall, and having regard to the ANZSCO descriptions confirming the nominated occupation is of a specialised, highly technical nature, the Tribunal is not satisfied the applicant's Diploma and Advanced Diploma of Management courses are closely related to the nominated skilled occupation. While the Tribunal appreciates that employers might expect their employees to have some management competencies, the Tribunal is of the view that the skills acquired by the management courses are merely complementary. The Tribunal also accepts the applicant might apply these skills if and when he starts his own IT company. However the Tribunal is focusing on whether the management courses, considered as a whole, are related to the nominated skilled occupation, not the applicant's future plans to run his own business. The Tribunal is not satisfied that the Diploma and Advanced Diploma of Management courses relate to the highly specialised, technical duties of ICT Professionals including network and support professionals, and computer network and systems engineers.
This is consistent with the decision in Talha at [52] in the Full Court of the Federal Court of Australia’s reasons, which reads as follows:
[52] In our view, the Tribunal fell into jurisdictional error by confining its approach to the weighing up of Mr Talha’s Australian studies against the tasks for an Engineering Technologist as set out in Unit Group 2339 and in the occupation of Engineering Technologist. Notably, it made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Engineering Professionals, which included Engineering Technologists. Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation of Engineering Technologist and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation. In particular, the Tribunal ought to have included in the evaluative exercise the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. As is evident from the extract at [26] above, those tasks included many matters which, on their face, had a relationship with many of the courses completed by Mr Talha in his Australian studies. That was the essential point which Mr Talha made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings (which supported Mr Talha’s individual claims). The Tribunal erred in not taking into account the relevant information in those higher groupings. It adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth).
It is apparent from the reasoning of the Tribunal, and its reference to having regard to the ANZSCO descriptions in the first sentence, that the Tribunal had not confined itself erroneously in the way that was identified in Talha. It is apparent that the Tribunal made express reference to other occupations including ‘Sub-Major Group 26 ICT Professionals’, ‘Minor Group 263 ICT Network and Support Professionals’, and the ‘Unit Group 2631 Computer and Network Professionals’.
The Tribunal's compliance with those principles is further reinforced by the Tribunal's reasoning. At paragraph 25 of the Tribunal’s reasons, the Tribunal refers to having regard to the ANZSCO descriptions attached, and the Tribunal set out in its reasons the ‘Sub-Major 26 ICT Professionals’ indicative skill level and tasks included, the ‘Minor Group 263 ICT Network and Support Professionals’ indicative skill level and tasks included, the ‘Unit Group 2631 Computer Network Professionals’ and, materially, the relevant nomination in the present case, ‘263111 Computer Network and Systems Engineer’.
The Tribunal’s reasons identified that the nominated occupation is highly technical and specialised. It is apparent that the Tribunal accepted that some team leadership may be required in the nominated skilled occupation but, having regard to the whole of the occupation, the Tribunal was not satisfied it is a management role. The Tribunal further identified having considered the ANZSCO descriptions and the position overall, as identified at paragraph 27 of its reasons, that the Diploma and Advanced Diploma of Management courses are not closely related to the nominated skill occupation. There is no proper basis to find that the Tribunal engaged in the type of error that was identified in Talha.
The Court does not accept that it should be inferred that the Tribunal did not take into account the relevant parts of the ANZSCO code, including the higher elements. The Court does not accept that the Tribunal failed to consider the relevance of the courses to the whole of the nominated occupation or that the Tribunal gave an artificial distinction between technical skills, at the lowest level of the occupation description, and more general skills at the higher level of the hierarchy. The Court does not accept that the Tribunal confined itself in relation to the ANZSCO code in the task that it identified it undertook at paragraph 22 of the Tribunal’s reasons.
In these circumstances, the Court does not accept that the Tribunal did not take into account the ‘Minor Group 263 Engineering Professionals' content, as identified in the submissions advanced by Mr Jones. The content was not of materiality that required express reference by the Tribunal. The Court does not accept that the Tribunal applied an unduly narrow and legally erroneous approach to the assessment of whether the courses undertaken by the first applicant were closely related to the nominated skills occupation. Accordingly, no jurisdictional error, as alleged in Ground 2, is made out.
The amended application fails to make out any jurisdictional error. Accordingly, the amended application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 August 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 1 October 2021
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