Nauhria v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 193
Federal Circuit and Family Court of Australia
(DIVISION 2)
Nauhria v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 193
File number(s): SYG 2557 of 2018 Judgment of: JUDGE LAING Date of judgment: 14 March 2023 Catchwords: MIGRATION – application for a Skilled (Provisional) (Class VC) (Subclass 485) visa – whether the Tribunal misconstrued or misapplied the required assessment of the nominated occupation or the relevant qualification in determining whether they were closely related – whether the Tribunal erred by asking itself the wrong questions or identifying the wrong issues – whether the Tribunal failed to consider relevant material or considered irrelevant information – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) r 1.15F, Schedule 2, clauses 485.221, 485.222, 485.224 Cases cited: El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 208
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; (2015) 235 FCR 100
Tobon v Minister for Immigration & Anor [2014] FCCA 2208; (2014) 289 FLR 173
Uddin v Minister for Immigration and Citizenship [2010] FCA 1281
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 6 February 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared by video-link. Solicitor for the First Respondent: Ms B. Roscoe (Mills Oakley) appeared by video-link on behalf of the first respondent. Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 2557 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAPIL NAUHRIA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
14 March 2023
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 applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (skilled visa).
background
The applicant applied for a skilled visa on 7 August 2015.
On 6 November 2015, a delegate of the Minister (first delegate) refused the application. This was on the basis that a relevant skills assessment had not been provided. The first delegate therefore found that the applicant did not meet cl 485.224(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal subsequently remitted the application for reconsideration, with a direction that cl 485.224(1) was satisfied.
On 21 April 2017, the Delegate refused to grant the application. The Delegate found that the applicant could not meet the “Australian study requirement” in the 6 months immediately before the date of application, by reference to qualifications that were “closely related to the applicant’s nominated skilled occupation”. The Delegate therefore found that the applicant could not meet cl 485.221 and 485.222 of Schedule 2 to the Regulations.
The applicant sought review by the Tribunal on 12 May 2017. On 25 July 2018, he appeared at a hearing before the Tribunal.
On 30 July 2018, the Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERIA
The criteria in issue before the Tribunal were cl 485.221 and 485.222 of the Regulations, which were as follows:
485.221
The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.
485.222
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
Regulation 1.15F(1) provided:
1.15F Australian study requirement
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a)that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
the tribunal’s decision
The Tribunal set out the background to the matter and the criterion in issue at [1]-[6] of its decision. At [7], it summarised the evidence regarding the applicant’s qualifications. At [8], it noted that the occupation of Chef (ANZSCO 351311) had been nominated in the skilled visa application.
The Tribunal observed that as the application was made in August 2015, the only qualification the applicant had completed within 6 months immediately before that date was a Diploma of Project Management (at [9]). The Tribunal needed to be satisfied that this qualification was “closely related” to the nominated occupation.
At [10]-[12], the Tribunal considered the applicant’s evidence in this regard as follows:
10. In his written submissions to the Tribunal the applicant referred to an Advanced Diploma of Hospitality Management, stating this qualification reflects the role of skilled senior management with a broad range of hospitality skills combined with management experience, skills and knowledge of the industry, and this qualification provides a pathway to work in the hospitality industry. It is unclear to the Tribunal how establishing the usefulness of a Diploma of Hospitality Management to a job in a hospitality industry would assist the applicant in establishing the close relationship between the Diploma of Project Management – which is the qualification at issue here – with his nominated occupation. A Diploma of Hospitality Management may or may not be closely related, but that is not the issue before the Tribunal because that is not the only occupation the applicant relied on to meet the Australian study requirement.
11. The applicant refers to ANZSCO and claims that chefs have to perform leadership and management roles. The applicant provided the ANZSCO description of the occupation, qualification details and qualifications required for the occupation. The applicant refers to some of the units he completed as part of the course stating these are relevant. For example, the applicant referred to subjects such as ‘ensuring a safe workplace’, ‘dealing with conflict situations’, ‘leading and managing people’, ‘manage projects’, etc. The applicant repeated this submission in oral evidence to the Tribunal, stating that several of the subjects he completed as part of his Diploma of Project Management would be relevant to his work as a chef.
12. The Tribunal accepts that the applicant may have found many of the subjects useful and that he would be able to apply the skills acquired through the completion of these subjects in a working environment. However, being useful or helpful is not sufficient. The requirement of being ‘closely related’ requires a stronger link than being merely helpful or useful. Further, there must be a close relationship between the entire course (rather than individual subjects) and the nominated occupation, not merely a benefit of one to the other. The assessment is required in relation to the qualification as a whole and not the individual units within the qualification.
The Tribunal observed that the applicant had relied upon examples given in the Department’s policy guidelines. In this regard, the Tribunal stated (at [13]):
13.The applicant refers to the Departmental policy on the issue of ‘closely related’ stating that the given examples indicate that a management qualification can be closely related to a trade qualification. Putting aside the fact that the qualification here is the more specific Diploma of Project Management rather than a broader management qualification, the Tribunal is of the view that such policy does not reflect the wording of the legislation. The Tribunal is mindful of the reasoning in Pasula v MIAC [2010] FMCA 219. Although that case was also concerned with a different requirement in cl.880.215 of the qualifications being ‘relevant’ to the nominated occupation, the Tribunal is of the view that the principles set out in that case concerning the application of the Departmental policy apply equally in the present case. Relevantly, Smith FM confirmed, at [22]–[23], that the Tribunal was under no obligation to have regard to the Departmental policy in PAM3 as a condition to the Tribunal’s jurisdiction.
The Tribunal observed that the applicant had provided job advertisements that, it had been submitted, demonstrated management qualifications or knowledge was sought in addition to trade qualifications. The Tribunal accepted that there may be jobs that required a combination of such qualifications. However, the Tribunal considered that it was obliged to consider the objective standards for the occupation, such as those set out in the ANZSCO, rather than specific individual jobs (at [14]).
The Tribunal observed that the applicant had submitted that the qualification would be useful for his own hospitality business, which was his aim. The Tribunal acknowledged that, “putting aside the fact that the qualification here is in project management and not the more general management qualification”, the applicant may wish to start his own business in the future. However, the Tribunal considered that the assessment required was of the nominated occupation of Chef, rather than another occupation that the applicant may wish to pursue in the future (at [15]-[16]).
At [17]-[18], the Tribunal considered the applicant’s evidence regarding the ANZSCO:
17.In oral evidence the applicant outlined the duties of a chef according to ANZSCO and stated that as a chef, he would have a management role and would require leadership qualities. The applicant gave examples of chefs working on big functions or weddings and being in charge of a number of activities and this was similar to project management. The Tribunal does not accept that such responsibilities are akin to project management. The Tribunal is mindful that many of the tasks to which the applicant refers, such as discussing menus and delegating responsibilities in the kitchen, do not require project management skills. The Tribunal is also mindful that the Diploma of Project Management is a general qualification and there is nothing to suggest it is designed for the hospitality industry. The Tribunal is not satisfied that the course overall would be related to the tasks to which the applicant refers and which form part of the role of a chef.
18.The applicant claims that the subjects he has done in that course would help him with such tasks as budgeting, ordering supplies, etc. At best, the applicant has established that some of the skills he acquired in the Diploma course are useful for the tasks performed by a chef but as noted elsewhere, being useful is not sufficient.
At [19], the Tribunal set out the Unit Group from the ANZSCO:
UNIT GROUP 3513 CHEFS
CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.
Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
•planning menus, estimating food and labour costs, and ordering food supplies
•monitoring quality of dishes at all stages of preparation and presentation
•discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
•demonstrating techniques and advising on cooking procedures
•preparing and cooking food
•explaining and enforcing hygiene regulations
•may select and train staff
•may freeze and preserve foods
Occupation:
351311 Chef
The Tribunal then reasoned as follows at [20]-[22]:
20. The Tribunal is not satisfied that project management forms part of the tasks performed by a chef.
21. The applicant referred to a number of Tribunal decisions. The Tribunal considers these unhelpful. Firstly, many of these relate to different circumstances, occupations and qualifications and, secondly, the Tribunal decisions have no precedential value and are not binding on the present Tribunal. The Tribunal must consider the circumstances of this particular case.
22. In his post-hearing submission to the Tribunal of 27 July 2018 the applicant claims that project management is part of the skills component for a chef and the skill can be critical to a chef in circumstances where chefs need to render services to large functions. The applicant notes that according to ANZSCO, chefs ‘plan and organise the preparation and cooking of food in dining and catering establishments’ and the planning and organising skills have become necessary to perform the occupation of a chef and these are the skills he acquired through the project management course. The Tribunal is mindful that ANZSCO refers to the planning of menus and preparation of food. These could hardly be considered to be projects or require project management skills, in the Tribunal’s view. Further, even if there was any degree of project management involved in the occupation of a chef (a proposition the Tribunal does not necessarily accept), this would not be a significant part of the occupation but a minor one. The Tribunal must consider the relationship between the whole of the qualification with the whole of the nominated occupation (Talha v MIBP [2015] FCAFC 115 at [53]) and not with an individual task or part of the occupation which the applicant has identified as requiring the skills he acquired in his course.
The Tribunal concluded that the applicant’s Diploma of Project Management was not “closely related” to his nominated occupation of Chef. The Tribunal therefore concluded that the applicant was unable to meet cl 485.222 and affirmed the Delegate’s decision (at [24]-[26]).
PROCEEDINGS BEFORE THE COURT
The applicant relies upon the following grounds of review contained in an amended application filed on 15 November 2018:
Ground 1
The decision of the Tribunal was affected by jurisdictional error because:
(a)The Tribunal misconstrued or misapplied the ANZCO description of the nominated occupation of chef. In that it confined its attention determining the content of the nominated to text under 3513 Chef without reference to the whole of the ANZCO description, which included the content under the heading Minor Group 351 Food Trades Workers. Further, even under the unit group 3513 was not properly construed.
(b)The Tribunal misconstrued or misapplied meaning of “whole qualification” According to the Tribunal the assessment is required in relation to the qualification as a whole and not the individual units within the qualification.
Ground 2
The decision of the Tribunal was affected by jurisdictional error by identifying the “wrong issues” under the basis of erroneous questions itself and without evidence to the legal test in issue whether Diploma of project Management is closely related to the occupation of chef and reaching a mistaken conclusion.
(a)The Tribunal misconstrued or misapplied the cl.485.222 by identifying that the Diploma of Project Management is a “general qualification”
(b)The Tribunal misconstrued or misapplied the cl.485.222 by identifying that the Diploma of Project Management is not “specifically designed for the hospitality industry”.
Ground 3
The decision of the Tribunal was affected by jurisdictional error because the Tribunal either missed or ignored the relevant material”.
a)The course guide of education provider was provided to the Tribunal (namely Brochure of Carrick Institute of Education) on 20 August, 2017. The very close information into that guide was not taken into account before reaching the decision.
b)The information was not taken into account. As this application was refused by different delegate and at first instance department was satisfied that the applicant meet the requirement cl.485.222.
c)Two Tribunal's Decisions were provided to consider in present case. In both cases, issue was closely related and both occupations were in hospitality industry (chef and pastry cook) and quite relevant qualifications. The Tribunal misunderstood or just ignored those decisions by stating that these are different occupations.
d)The Tribunal misunderstood or misapplied the departmental policy in relation to “closely related”, which is ordinarily applied unless it is inconsistent with the legislation, or there are compelling reasons not to do so.
Ground 4
The decision of the Tribunal was affected by jurisdictional error because of mistaken or an improper exercise of power by considering irrelevant information and asking wrong question.
(a)Why do you need Diploma of Project Management to do budgeting or setting up a menu?
(b)How many chefs - and I don't know if you've worked in the industry - how many chefs do you know in the industry with a Diploma of Project Management?
(c)With project management, I imagine you’re not going to find many chefs with a project management qualification. So how do you think they manage in the kitchen and the workplace without that qualification and the skills that you're saying you have acquired through that qualification?
Ground 5
The Tribunal committed a jurisdictional error of law by failing to act in accordance with the requirements of procedural fairness and natural justice.
a)On its discretional power, the Tribunal did not grant enough time to provide more information to support the case. According to the Tribunal the application was lodged three years ago and I am not going to give you another three years to go and see someone. The word three years was repeated 8-12 times. So, the decision was made on based of the visa application lodgement time.
Ground 1
Ground 1(a) contended that the Tribunal fell into a similar species of error to that considered in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; (2015) 235 FCR 100 (Talha). In that case, the Full Court found that the Tribunal erred in only considering the tasks described in the ANZSCO Unit Group, without considering information within the other hierarchical groups related to the occupation. The Tribunal, it was found, was required to consider the whole of the relevant studies against the whole of the nominated occupation. In this regard, the Full Court stated (inter alia):
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).
53.Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J…
55.Although we accept the Minister’s submission that some of the information contained in the higher groupings are not relevant to individual occupations within the grouping, the fact remains that, in the case of Mr Talha’s nominated occupation, there was relevant information in the higher groupings. Mr Talha’s statement, which the Tribunal took into account, highlighted the relevance to his nominated occupation of Engineering Technologist of information contained in the higher groupings relating to management tasks. The Tribunal ought not to have confined its consideration to the relevant information which was contained in the unit group, but should have also referred to the higher groupings.
At the hearing of this matter, I also raised with the Minister’s representative the decision in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 208. In that case, the Court found that the Tribunal had fallen into a similar species of error to that found in Talha in considering whether the applicant’s Diploma of Leadership and Management was “closely related” to the nominated occupation of Chef. This was found despite the Tribunal’s general reference to Talha, and statement that it had considered the “tasks as specified in ANZSCO as a whole”. It was found in circumstances where, whilst there was “no evidence before the Court in relation to relevant information that was ‘not assessed’,” the Tribunal’s reasoning did not reflect any engagement with the tasks from the other classifications (at [63]-[74]).
In response, the Minister relied upon an affidavit placing the other classifications into evidence. The Minister submitted that when the tasks under those groups were considered against the qualification in question and the reasoning of the Tribunal in this case, an inference ought not to be drawn that the other groups were not considered. Even if such an inference were to be drawn, the Minister submitted that materiality had not been demonstrated in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
In Major Group 3, Technicians and Trade Workers are said to “perform a variety of skilled tasks, applying broad or in-depth technical, trade or industry specific knowledge, often in support of scientific, engineering, building and manufacturing activities”. Relevant tasks are stated to include:
•carrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals
•providing technical support to users of computer hardware and software
•fabricating, repairing and maintaining metal, wood, glass and textile products
•repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment
•constructing, repairing, fitting-out and finishing buildings and other structures
•operating printing and binding equipment
•preparing and cooking food
•shearing, caring for, training and grooming animals, and assisting Veterinarians
•propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events
•cutting and styling hair
•operating chemical, gas, petroleum and power generation equipment
•providing technical assistance for the production, recording and broadcasting of artistic performances
The only tasks of apparent relevance to the case that the applicant put before the Tribunal were “preparing and cooking food”.
In Sub-Major Group 35 - Food Trades Workers are said to “bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments”. Relevant tasks are stated to include:
•checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations
•planning menus, estimating food and labour costs, and ordering food supplies
•monitoring quality of food at all stages of preparation and presentation
•preparing meat for sale and baking bread, cakes and pastries
•preparing food and cooking using ovens, hotplates, grills and similar equipment
•portioning food, placing it in dishes, adding gravies, sauces and garnishes
The content of Minor Group 351 - Food Trades Workers is relevantly identical to Sub-Major Group 35 - Food Trades Workers, including the tasks that are there set out. It should be noted that the only relevant task identified under the Major Group (“preparing and cooking food”) is reflected in the Sub-Major and Minor Groups. It is the essence of the last three task descriptions in those categories, each of which deal with preparing or portioning food. Such tasks also appear to be reflected in the Unit Group set out in the Tribunal’s decision, the fifth of which is “preparing and cooking food”.
The task above these in the Sub-Major and Minor Groups (“monitoring quality of food at all stages of preparation and presentation”) is near identical to the second task of the Unit Group set out in the Tribunal’s decision. The only difference is that the word “food” is replaced with the word “dishes” in the Unit Group.
The task above that in the Sub-Major and Minor Groups (“planning menus, estimating food and labour costs, and ordering food supplies”) is identical to the first task of the Unit Group.
That leaves the first task in the Sub-Major and Minor Groups (“checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations”). On balance, I accept the Minister’s submission that this is significantly reflected in the sixth and seventh tasks of the Unit Group, which include “explaining and enforcing hygiene regulations” and “select[ing] and train[ing] staff”. Whilst occupational health and safety regulations may go beyond hygiene regulations, the task description in the Sub-Major and Minor Groups appears to contemplate this task being limited to “checking the cleanliness and operation of equipment and premises”. The selection and training and staff, when considered with the others tasks contained within the Unit Group, appears to contemplate a greater managerial role.
In any event, I am not persuaded that the differences between the Unit Group and the other classifications in this case were so significant as to warrant an inference that the broader groupings were not considered, simply because the Tribunal only set out the Unit Group tasks in full in its decision. The Tribunal’s focus upon the Unit Group appears to reflect the focus, understandably, placed upon this part of the ANZSCO by the applicant in his submissions (at CB 221 and in the evidence summarised at [11], [17]-[18] and [22] of the Tribunal’s decision). Some of the tasks referred to by the Tribunal from the ANZSCO, such as the planning of menus and preparation of food, appear under a number of the classification headings (not only under the Unit Group).
The Tribunal expressly, at [22], acknowledged the need to “consider the relationship between the whole of the qualification with the whole of the nominated occupation”. The Tribunal, correctly, cited [53] of Talha in this regard. Considering these matters together, I am not persuaded that the Tribunal fell into the species of error considered in Talha.
Having regard to the above, the applicant has not explained how the Tribunal could be said to have misapplied the meaning of “whole qualification”. The Tribunal’s understanding at [12] that this required a conclusion to be reached regarding the “entire course (rather than individual subjects)” appears to be consistent with the reasoning in Talha. It does not mean that the subjects comprising the course were not considered in forming a view about the “whole”. Regardless, it has been held that “descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two 'wholes' indicates the test of close relationship would not be satisfied in any event”: Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10 at [21].
Nor has the applicant explained how the Tribunal’s reasoning in this regard could be described as legally unreasonable, as was suggested in the applicant’s written submissions. The Tribunal’s finding that it had not been demonstrated that the applicant’s Project Management qualification was closely related to his nominated occupation of Chef was supported by its reasoning at [10]-[22]. The applicant has not explained how this reasoning could be said to have been closed to the Tribunal, other than by reference to the other matters that he has raised under the ground. For the reasons I have already given, those contentions cannot be accepted.
Even if I had accepted that the Tribunal erred in a similar manner to that considered in Talha, the applicant would still need to establish materiality in order to succeed. Taking into account the matters that I have identified above, I would not have been persuaded that materiality had been established even if I had been persuaded to draw the inference that the applicant sought in this regard.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal identified the “wrong issues” by identifying that the Diploma of Project Management was a “general qualification” that was not “designed for the hospitality industry” (at [17]). In written submissions, the applicant relied upon Tobon v Minister for Immigration & Anor [2014] FCCA 2208; (2014) 289 FLR 173 (Tobon) at [33]. There, it was found that the Tribunal had construed the criterion as “requiring that the skills, or at least a substantial proportion of the skills for which a diploma is awarded are skills that can only be used in the nominated skilled occupation.” This, inter alia, was found to have resulted in error.
However, I accept the Minister’s submission that when the Tribunal’s reasons are read fairly and as a whole, an inference ought not to be drawn that the Tribunal construed the criterion in this manner. The Tribunal’s observation at [17], and questions asked at the hearing, indicate that the Tribunal considered whether the qualification was designed for the hospitality industry. However, the Tribunal made no finding that this was required, in order for it to be “closely related” to the occupation. The Tribunal did not find that it was necessary that the qualification confer skills that were unique to the occupation. The Tribunal therefore appears to have viewed the question of whether the course was designed for the hospitality industry as something that may have counted in the applicant’s favour, had it been the case, but not as a requirement. In the absence of that circumstance, the Tribunal went on to consider whether the qualification, as a whole, was closely related to the applicant’s nominated skilled occupation.
In any event, the Tribunal ultimately found that the relationship between the qualification and the occupation was far more remote than that. The Tribunal found at [17] that it was not satisfied that the “course overall would be related to the tasks to which the applicant refers and which form part of the role of a chef”. At [18], the Tribunal considered that, “[a]t best”, the applicant had “established that some of the skills he acquired in the Diploma course are useful for the tasks performed by a chef”. This was not considered to be sufficient: see Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 at [12].
It follows that ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal “missed or ignored” the following material:
(a)a “Brochure of Carrick Institute of Education” (Carrick Brochure); and
(b)two other decisions of the Tribunal (Other Tribunal Decisions).
I accept that the Tribunal does not appear to have expressly referred to the Carrick Brochure in its reasons. However, it is well established that the Tribunal is not required to refer to every item of evidence before it. Non-reference to a particular item does not necessarily mean that it was not considered: see KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [54]. In the present case, I accept the Minister’s submission that the more likely inference to be drawn is that the Tribunal did not consider the Carrick Brochure to be materially capable of bearing upon its decision. This was in circumstances where the applicant’s Diploma of Project Management was obtained from another institution (namely, Grand Academy). Whilst the applicant submitted that the “education was gained from the same education system and country”, there is no material before the Court indicating that the courses or qualifications were relevantly identical. Regardless, the applicant made detailed submissions to the Tribunal regarding the specific features of the qualification that he did obtain which were relied upon. Those submissions appear to have been considered by the Tribunal.
The Tribunal considered the Other Tribunal Decisions at [21] of its decision. The Tribunal found that the Tribunal decisions that had been referred to by the applicant were “unhelpful”. It considered that many of the Tribunal decisions that had been referred to by the applicant concerned different circumstances, occupations and qualifications. In any event, the Tribunal observed that the decisions had no “precedential value” and were not binding on the Tribunal. The applicant has not demonstrated that this reasoning was relevantly closed to the Tribunal. Whilst one of the decisions concerned the occupation of Chef, this does not render inaccurate the Tribunal’s consideration that amongst the decisions referred to (including those referenced in the decisions before it) were decisions concerning different circumstances, occupations and qualifications. Regardless, as the Tribunal correctly observed at [21], its task was to “consider the circumstances of [the] particular case”. To the extent that the applicant sought to rely upon material that was not before the Tribunal, as I explained at the hearing, such material is not capable of demonstrating that the Tribunal’s reasoning was relevantly closed to it, based upon the material that was before it.
Ground 3 additionally contended that the first delegate “was satisfied that the applicant [met] the requirement cl.485.222” and that the Tribunal “misunderstood or misapplied the departmental policy”.
Whilst the first decision by a delegate of the Minister did not take issue with the applicant’s ability to meet cl 485.222, nor did it find that this criterion was met. Regardless, it is the Tribunal’s assessment that is relevant for the purposes of these proceedings. The applicant was, clearly enough, on notice from the second Delegate’s decision and the proceedings before the Tribunal that this criterion was in issue.
In relation to the applicant’s complaint regarding departmental policy, I accept the Minister’s submission that this is answered by authority to the effect that the Tribunal was not bound to apply such policy: El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] and Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]. The applicant has not demonstrated that the Tribunal relevantly erred in not applying the policy, and instead affording primacy to the wording of the legislation.
It follows that ground 3 is unable to succeed.
Ground 4
Ground 4 contended that the Tribunal considered irrelevant information or asked itself the wrong question. This was said to have occurred by the following questions being asked of the applicant at the hearing:
(a)“Why do you need a Diploma of Project Management to do budgeting or setting up the menu?”;
(b)“How many chefs - and I don't know if you've worked in the industry - how many chefs do you know in the industry with a Diploma of Project Management?”; and
(c)“With project management, I imagine you’re not going to find many chefs with a project management qualification. So how do you think they manage in the kitchen and the workplace without that qualification and the skills that you're saying you have acquired through that qualification?”
I accept the Minister’s submission that the Tribunal was entitled to ask such questions in testing the applicant’s evidence as to why he contended that the qualification was “closely related” to his nominated skilled occupation. The Tribunal’s putting of such questions to the applicant was for the purpose of allowing the applicant an opportunity to respond and to provide any submissions or evidence that he wished to provide. The Tribunal was not obliged to accept the applicant’s contention that the qualification had the relationship to the occupation that he had contended. In any event, the applicant has not demonstrated how the asking of such questions could be said to have resulted in the Tribunal’s decision being affected by jurisdictional error.
Ground 4 is therefore unable to succeed.
Ground 5
Ground 5 contended that the Tribunal denied the applicant procedural fairness by refusing to allow him further time to provide information in support of his case.
The applicant relied upon a number of exchanges at pages 10-13 of the transcript of the Tribunal hearing that is in evidence. There, the applicant requested “some more time to consult with [a] migration agent or legal practitioner”.
The Tribunal put to the applicant its concerns regarding the request. The Tribunal observed that the application had been made in August 2015, with the result that it had been 3 years since the application had been made. The applicant takes issue with this, as he notes that the Delegate’s decision had occurred only around 15 months previously. He submitted that it was “unclear, how the Tribunal found three years”. However, as was observed at hearing, the application for the visa was made in August 2015. The Tribunal hearing occurred in July 2018. This was the period of around 3 years to which the Tribunal referred.
In any event, the Tribunal considered that the applicant had already “had plenty of time to consult with a migration agent”. The Tribunal also observed that the applicant had been on notice of the criterion in issue from the Delegate’s refusal of his application. The Tribunal was therefore not satisfied by the applicant’s explanation that he had been confident that it would be found that the criterion was met. In these circumstances, the Tribunal Member indicated to the applicant that she was not “planning to give [him] more time”. In response, the applicant requested “if not much time, whatever the minimum time” or what “small amount” she could.
The Tribunal Member queried the purpose of the request. The applicant responded generally that he wanted to discuss the matter with an agent, to see if there were “more things [they] could put” in support of his case that his nominated occupation was “closely related” to his qualification. Further discussion then occurred as to why the applicant had not previously consulted anyone, if this was something that he wanted to do. Whilst the Tribunal Member again indicated that she was unwilling to give the applicant additional time in circumstances where she considered that he had already had sufficient opportunity, she then said that she could give him a “couple of days”. The Member added that she didn’t “know why things [were] any different [then]”, compared to previously when the applicant had decided not to consult an agent.
In response, the applicant sought “a couple of weeks”. The Member stated that she was willing to give the applicant until the end of the weekend that week. This was in the context of the hearing being conducted on a Wednesday morning, concluding at 8.50am. The applicant was, therefore, given 3 business days (and the weekend) in which to consult an agent.
On the Friday, at just after 1pm, the applicant’s then representative provided submissions to the Tribunal endeavouring to persuade the Tribunal that the applicant’s qualification was closely related to his nominated occupation.
The applicant has not explained how the Tribunal’s procedural fairness obligations, as limited under Part 5 of the Act, are contended to have been breached on account of how the Tribunal proceeded. The real question in this case is whether the Tribunal’s exercise of discretion, in not allowing the applicant additional time, was unreasonable in the sense considered in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li).
I have some concerns about the Tribunal’s unwillingness to provide the applicant with a limited period of time, in the order of two weeks, within the context of the review that was before it. There was no apparent urgency to the Tribunal proceeding to a decision. The review had been ongoing for more than a year. It is not apparent what difference an additional week and a half would have made.
However, the threshold for legal unreasonableness is a high one. It does not permit the Court to substitute its own exercise of discretion for that of the Tribunal. It is to be recalled that decision makers generally exercise “an area of decisional freedom”: Li at [28] per French J; see also Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (Pandey) at [51]-[55].
From the Tribunal’s exchanges with the applicant at hearing, it is apparent that the Tribunal was not persuaded that the applicant had justified why additional time was needed beyond that which the Tribunal had agreed to afford to him. This was in circumstances where the applicant had been on notice for some time of the criterion in issue and had been given substantial opportunity in which to put forward the evidence and submissions upon which he wished to rely.
I am not persuaded that the Tribunal’s exercise of discretion in this regard was relevantly lacking in an “an evident and intelligible justification”: Li at [68] and [76] per Hayne, Kiefel and Bell JJ; see also Pandey at [53]-[54]. I also note that the Tribunal’s understanding was, to some extent, borne out by subsequent events. The applicant was able to consult with a representative in the time that the Tribunal had afforded. That representative provided a detailed submission to the Tribunal regarding the criterion that was in issue. The representative did not indicate that the applicant, thereafter, sought or required additional time.
It follows that ground 5 is unable to succeed.
conclusion
For the above reasons, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error.
The application must therefore be dismissed. I will hear the parties in relation to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 14 March 2023
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