Nauru Air Corporation v Minister for Immigration

[2016] FCCA 13

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAURU AIR CORPORATION v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 13

Catchwords:
MIGRATION – Application for approval of a nomination of position – whether ANZSCO 4-digit occupation unit group code was the same as the occupation being undertaken by the nominee – where tribunal found that the codes were not the same – tribunal’s decision not attended by jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.140GB

Migration Regulations 1994 regs.1.03, 2.72, 2.72(8A), 5.19(3), 5.19(3)(a), 5.19(3)(a)(iii)

Applicant: NAURU AIR CORPORATION

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1097 of 2014

Judgment of: Judge Jarrett

Hearing date: 24 April 2015

Date of Last Submission: 24 April 2015

Delivered at: Brisbane

Delivered on: 11 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Markwell, directly instructed

Solicitor for the First Respondent: Mr Hawker

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Migration Review Tribunal)”.

2. The amended application filed on 12 March, 2015 be dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1097 of 2014

NAURU AIR CORPORATION

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Ms Ellarmaine Detenamo has worked for the applicant, in one form or another, for more than 30 years. She is a citizen of the Republic of Nauru.  She worked for the applicant when it conducted a business known as Air Nauru and had its operations based on the island of Nauru.  In mid-2006 the applicant’s business “collapsed” and Ms Detenamo was retrenched.  However, within a couple of months, the applicant had restructured its business and recommenced its airline operations.  Ms Detenamo was re-employed in her previous role. 

2. In March, 2009 the applicant relocated its head office to Brisbane, Australia.  Ms Detenamo’s employment was transferred to Brisbane as well.  She continues to work for the applicant.  She is a well-respected, trusted and valuable employee of the applicant.  So much was said by Ms Wendy Bowden, the chief financial officer of the applicant when she gave evidence before a migration review tribunal in 2014.  It must be so given her length of service.

3. Thus, Ms Detenamo’s employment has had to contend with the financial trials and tribulations of the applicant.  It has required her to uproot herself and her family from Nauru to come to Australia to continue her employment.  She has met all of these challenges.  But her employment and residential status in Australia is now challenged by the Migration Act 1958 (Cth) and the Migration Regulations 1994. Sadly, I do not think she can withstand that challenge.

4. By this application, the applicant seeks judicial review of a decision of a migration review tribunal given on 18 November, 2014 which affirmed a decision of a delegate of the first respondent to refuse a nomination of a position for which the applicant had applied in support of Ms Detenamo’s proposed application for a subclass 186 Employer Nomination (Permanent) (Class EN) visa.

5. The first respondent opposes the application.  The second respondent enters a submitting appearance.

6. Both parties have filed written submissions to which I have had regard.

Background

1. The relevant factual background commences on 28 September, 2010 when Ms Detenamo applied for a subclass 457 (Business (Long Stay)) Temporary Business Entry (Class UC) visa.  Her application included her three children as members of her family unit.

2. To be successful in that application, amongst other requirements, Ms Detenamo needed to be the subject of a nomination of an occupation that had been approved under s.140GB of the Act.[1]  That nomination needed to have been made by a person who was a standard business sponsor at the time the nomination was approved.[2]

   [1] cl.457.223(4)(a)(ii) of Schedule 2 to the Regulations (in force as at 7 December, 2010)

   [2] cl.457.223(4)(ii)(A) of Schedule 2 to the Regulations (in force as at 7 December, 2010)

3. For that purpose, on 27 August, 2010 the applicant had applied to become a standard business sponsor.   It seems that the applicant was already a standard business sponsor although I infer that the applicant was applying to renew its approval in that respect. At the same time, the applicant applied for the first respondent’s approval of the applicant’s nomination of Ms Detenamo in relation to a proposed occupation with the applicant.[3]  The applicant needed to satisfy the criteria prescribed by reg.2.72(3) – 2.72(12) of the Regulations (in force as at 27 August, 2010).  Regulations 2.72(8) and (8A) are relevant.  Rather than trying to summarise them, I set them out in full:

   [3] The process for making an application for the Minister’s approval was prescribed by reg.2.73 of the Regulations (in force as at 27 August, 2010)

   2.72       Criteria for approval of nomination — Subclass 457 (Business (Long Stay)) visa   

   …

   (8)   If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

   (b) if there is no 6-digit ASCO code for the occupation, and the person is a standard business  sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

   (C)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

   (8A)   If the nomination is made on or after 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6-digit ANZSCO code for the nominated occupation — the name of the occupation and the corresponding 6-digit ANZSCO code;

   (b)if:

   (i)   there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)  the person is a standard business sponsor;

   the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10) (aa);

   (c) if:

   (i)   there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)  the person is a party to a work agreement;

   the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

4. ASCO means the Australian Standard Classification of Occupations, Second Edition, published by the Australian Bureau of Statistics on 31 July 1997[4]. 

   [4] reg.1.03 of the Regulations (as in force at 27 August, 2010)

5. ANZSCO means the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics and as current on 1 July, 2010[5].

   [5] reg.1.03 of the Regulations (as in force at 27 August, 2010)

6. The occupation that the applicant nominated for Ms Detenamo was described in the Form 1196N (Nominating overseas employees to work temporarily Australia) as follows[6]:

   [6] the poor quality of the photocopy of the Form 1196N contained within the Court Book filed by the first respondent prevents me from being certain as to whether a hyphen appears between the words "officer" and "archivist" in that Form.

   5   Occupation

   FLIGHT OPERATIONS ADMIN OFFICER ARCHIVIST

   6   Occupation Code

   224211

7. Because the application for approval of the nomination was made after 1 July, 2010 reg.2.72(8A) applied.  However, there is no occupational classification in the ANZSCO matching the description of “Flight Operations Admin Officer Archivist”.  There is an occupational classification for “Archivist”.  It has the 6-digit code of 224211 – the code specified by the applicant in the Form 1196N.

8. On 7 December, 2010[7] both the application for standard business sponsorship and approval of the nomination of Ms Detenamo’s occupation were seemingly approved.  I say seemingly, because whilst an approval in respect of the occupation nomination was issued approving Ms Detenamo’s nomination, it did not precisely correspond to the application made by the applicant.  In particular the occupation and occupation code was described as:

   [7] the same day as Ms Detenamo’s 457 visa was approved

   Occupation: Flight Operation Administration Officer

   ASCO code: 599518

9. It will be immediately noticed that the word “Archivist” is missing from the occupation description and the code number is different.

10. The parties agree that there is no occupation classification code number 599518 in the ASCO.  Such a code number appears in the ANZSCO but it relates to the occupation classification “Transport Operations Inspector”.  It appears in the unit group[8] entitled “Inspectors and Regulatory Officers”.

    [8] a term used in the ANZSCO to describe groups of similar occupations within a broader categorisation commencing with major groups, sub-major groups and minor groups.

11. How it came to be that the nomination approval was issued in that manner is not explained in the evidence.  It bears little resemblance to the application that had been made by the applicant.  In all probability it is an error, although a simple error might not be sufficient to explain the specification of an occupation code that existed in ANZSCO, but which bore no resemblance to the nominated occupation.  It is plainly an error.  Whatever else the applicant and Ms Detenamo might be entitled to, they are certainly entitled to an explanation for the error.  As will be seen, the error is critical.

12. Ms Detenamo was granted the subclass 457 visa for which she applied.  She was notified of the grant of the visa by mail.  The notification letter does not contain any reference to any particular occupation, or occupation code.  There is nothing in the evidence before me that might constitute the “visa” that was granted to Ms Detenamo.  However, the notification letter provides that the visa was subject to certain conditions, namely “8501” and “8701”.  Although it is not explained in the letter, that must be a reference to the visa conditions prescribed in schedule 8 to the Regulations.

13. There was no visa condition 8701 contained within schedule 8 of the Regulations when Ms Detenamo was granted her visa.  There seems to have been another mistake.  There is reference later in the letter to “Condition 8107”.  I assume that the reference to “8701” was intended to be a reference to “8107”.  Condition 8501 is of no present relevance.  Condition 8107 in effect provided that Ms Detenamo must continue to be employed by the applicant and to work only in the occupation listed in the most recently approved nomination for her.

14. Ms Detenamo’s subclass 457 visa expired on 7 December, 2014.  Well prior to that both she and the applicant undertook preparations for a fresh visa for Ms Detenamo.  Because Ms Detenamo had worked for the applicant for a period in excess of two years (and satisfied some other conditions) she was eligible to apply for a subclass 186 Employer Nomination (Permanent) (Class EN) visa.

15. An applicant seeking to satisfy the primary criteria for a subclass 186 visa must declare in the application that the position to which the application relates is a position nominated under reg.5.19 of the Regulations[9].  For that purpose, on 22 April, 2013 the applicant applied to nominate a position under reg.5.19 of the Regulations for Ms Detenamo.  The position for which Ms Detenamo was nominated was described as:

    Position:Flight Operations Administration Officer – Archive

    [9] reg.1114B(3)(0d) of the Regulations (as in force at 22 April, 2013)

    Occupation (ANZSCO)   Archivist

16. The nomination process provided by reg.5.19 of the Regulations facilitated applications for the approval of nominations pursuant to s.140GB of the Act. At the relevant time s.140GB provided:

    140GB  Minister to approve nominations

    (1)  An approved sponsor may nominate:

    (a)  an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

    (i)  the applicant or proposed applicant’s proposed occupation; or

    (ii)  the program to be undertaken by the applicant or proposed applicant; or

    (iii)  the activity to be carried out by the applicant or proposed applicant; or

    (b)  a proposed occupation, program or activity.

    (2)  The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

    (3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

17. In its reasons for decision, the tribunal explained the scheme of reg.5.19 as follows:

    2.  …The requirements for the approval of the nomination of a position in Australia under r.5.19 of the Regulations contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream.  If the application is made in accordance with r.5.19(2) and meets the requirements of one of the streams, then the application must be approved.  If any of the requirements are not met then the application must be refused: r.5.19(5).

    3.  In this case, the nominating business indicated that the person it wished to nominate for a permanent appointment was a Subclass 457 visa holder. The relevant stream in these circumstances is the Temporary Residence Transition nomination stream which is designed for Subclass 457 Temporary Work (Skilled) visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

18. The applicant was required to nominate the position for which it was seeking approval.  As I have set out above, it nominated the position as Flight Operations Administration Officer – Archive.  Because reg.5.19(3) applied to the Application for Nomination, the application needed to comply with  reg.5.19(3)(a).  That sub-regulation required the application for approval to identify an occupation, in relation to the position, that:

    a)is listed in ANZSCO; and

    b)has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa.

19. For that purpose the applicant identified the ANZSCO occupation of Archivist as a relevant description. There is also no dispute that the 4-digit occupation unit group code for Archivist specified in ANZSCO was 2242.  The code for the occupation was 224211. 

20. Reg.5.10(3)(a)(iii)(b) required that the nominated ANZSCO occupation has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa.  

21. It is here that the application came undone before both the first respondent’s delegate and the tribunal. 

22. The first respondent’s delegate determined that (errors in the original):

    At the time of lodgement, the nominee has held a Subclass UC – 457 Temporary Work (Skilled) visa.  The stated occupation for this Subclass 457 visa was Air Transport Professionals nec, ASCO code 254179.

    The ASCO – ANZSCO correlation of all occupations equates the above position of Air Transport Professionals nec to correlate with ANZSC0 231199 Air Transport Professionals nec.

    Archivist and Air Transport Professionals nec do not share the same 4-digit occupation group code.  As the occupation identified in the application does not have the same 4-digit occupation group code as the occupation carried out by the holder of the Subclass 457 Temporary Work (Skilled) visa.  subregulation 5.19(3)(a)(iii) not met. 

23. The delegate was plainly wrong.  The reference to “The stated occupation for this Subclass 457 visa was Air Transport Professionals nec, ASCO code 254179” is curious.  There was no such reference in the application for approval of a nomination made by the applicant on 27 August, 2010.  As I have pointed out above, that application referred to the ANZSCO code for Archivist.  There was nothing in the Visa notification letter to Ms Detenamo that suggested that it was granted in respect of any particular occupation.  The occupation code that was contained within the business nomination approval issued on 7 December, 2010 to the applicant referred to the occupation of “Flight Operation Administration Officer” and to a non-existent ASCO code.  If the reference in that approval to an ASCO code was intended to be a reference to an ANZSCO code, then the code stated in the business nomination approval referred to an occupation for which Ms Detenamo was neither qualified nor pretended to be qualified and in which, she was not employed. 

24. Moreover, the first respondent’s delegate paid no attention to the requirements of reg.5.19(3)(a)(iii)(B) of the Regulations.  It required that the nominated ANZSCO occupation to have the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa (my emphasis).

25. The specification of an ANZSCO code in the business nomination approval that was given for the purposes of Ms Detenamo’s subclass 457 visa was certainly relevant [10], but it was not determinative of the issue.  The delegate was required to consider the occupation carried out by Ms Detenamo, not simply the 4-digit occupation unit group code or the “stated occupation for this Subclass 457 visa”.  The delegate did not do that.

    [10] especially in light of condition 8107

26. The tribunal recognised the error in the delegate’s approach.  In its reasons for decision given on 18 November, 2014 the tribunal summarised the issue before it and the applicant’s arguments as follows:

    7.  The issue before the tribunal is whether the application for approval identifies an occupation, in relation to the position, that is listed in ANZSCO and has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa (r.5.19(3)(a)(iii)). It was submitted that the nominated person had carried out the duties and responsibilities of the occupation of Archivist, which is the occupation that the nominating business had sought approval for in respect of the Subclass 457 application. In relation to the Department’s view that the Subclass 457 visa had been granted for a different occupation, it was submitted that the refusal of this application was due to an administrative error by the department whereby the nominated person’s position and occupation when the Subclass 457 visa was granted was not correctly recorded.

27. After recounting the factual matters concerning the relevant business nomination approval that I have set out above the tribunal turned its attention to a further matter raised by the applicant as follows:

    8.  …A further complicating factor which was drawn to the tribunal’s attention by the representative is that the occupation of Transport Operations Inspector was not listed in the instrument specifying occupations for Subclass 457 visas, although the instrument referred to in the submissions is incorrect (the instrument in force at the time the nomination for approval was lodged was IMMI 10/032 and not IMMI 09/125). It thus appears that the Department erroneously approved the nomination for the occupation of Transport Operations Inspector (ANZSCO code 599518) which was not a specified occupation.

28. The tribunal then recognised the error made by the delegate the following way:

    9.  Notwithstanding the problem of whether the previous nomination and visa were properly approved and granted, neither occupation referred to by the Department has the same 4-digit occupation unit group code as the occupation identified in the current application for approval under r.5.19 of ‘Archivist’ (ANZSCO code 224211). The question then arises as to whether it can be said that the nomination ‘identifies an occupation, in relation to the position, that… has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa’ as required by r.5.19(3)(a)(iii)(B). On one view, it would appear to require an assessment of whether the occupation identified and nominated under the r.5.19 application and the Subclass 457 visa grant match. However, having regard to the wording of r.5.19(3)(a)(iii)(B), the tribunal has formed the view that it is necessary to consider the occupation that was actually carried out by the Subclass 457 visa against the occupation nominated under r.5.19 and has proceeded on this basis.

    (my emphasis)

1. With respect to the tribunal, on any fair reading of it, the text of reg.5.19(3)(a)(iii)(B) does not require an assessment of whether the occupation identified and nominated under the reg.5.19 application and the Subclass 457 visa grant match.  The text of that subregulation clearly requires a consideration of the occupation that was actually carried out by the Subclass 457 as a holder against the occupation approved under reg.5.19.  That is the basis upon which the tribunal proceeded.  There can be no complaint about that.

2. The balance of the tribunal’s reasons for decision deal with the actual occupation undertaken by Ms Detenamo and the tribunal’s comparison of that to the duties of an archivist as that position is described for the purposes of the ANZSCO.

3. The tribunal’s reasons for decision reveal a thorough and careful analysis of the evidence provided to it by the applicant, both oral and written.  The tribunal considered evidence provided from the applicant and Ms Detenamo regarding her duties and responsibilities in for the applicant.  It considered the duty statement for the position of Flight Operations Administration Assistant and Archivist that was provided by the applicant, as well as evidence from Mrs Bowden and Ms Detenamo.  Having considered those matters, the tribunal considered that those tasks were essentially administrative tasks of a clerical nature which involve the filing of records as required by governing regulations in the airline industry. 

4. The tribunal considered that the information contained in the 2013 Agreement, that indicated Ms Detenamo was employed under the Airline Operations - Ground Staff Award 2010 and was classed as ‘Clerical and Administrative Stream Level 3’ staff, added further weight to its view. The tribunal did not consider that a Level 3 classification was reflective of the occupation of Archivist. The tribunal also considered Ms Detenamo’s employment history and thought that was more consistent with a clerical type job than that of an archivist.

5. The tribunal recorded that Ms Detenamo did not hold any formal qualifications in Archiving.  It considered her practical experience, but found that her work experience was airline specific rather than relevant to archival work generally.  It did not consider that Ms Detenamo’s clerical experience was relevant experience that could be substituted for the formal qualification of an Archivist.

6. The tribunal considered other occupations within the unit group that had the ANZSCO code of 2422.  The only other occupation of any relevance was that of Records Manager.  The tribunal did not think that Ms Detenamo’s occupation was that of a Records Manager.

7. The tribunal found that the occupation that Ms Detenamo carried out was properly described in ANZSCO as coming within the major group ‘Clerical and Administrative Workers’.  Because the 4- digit occupation unit group identified in the nomination for approval of Archivist (ANZSCO unit group code 2242) was not the same as the occupation that was carried out by Ms Detenamo (under ANZSCO major group 5 of General Clerical Workers (unit group code 5311) or experienced Filing and Registry Clerk (unit group code 5613)), the application for approval did not satisfy r 5.19(3)(a)(iii)(B) of the Regulations.

8. Further, the applicant had not sought to satisfy the criteria in Direct Entry nomination stream and as such had not met the requirements in reg.5.19(4) of the Regulations.  Accordingly, the tribunal found that the nomination of the position could not be approved and the tribunal was required to affirm the decision under review.

Grounds of review

1. The applicant’s grounds of review specified in the amended application filed on 12 March, 2015 are twofold. I shall deal with each in turn.

The first ground of review

1. This ground (ground 1 in the amended application filed on 12 March, 2015) is expressed as follows:

   1. The Second Respondent has taken into account an irrelevant consideration and a jurisdictional error has occurred.

   …

   Particulars

   A. In relation to Ground l, the Second Respondent considered in paragraph 14 of the decision that the Primary Visa Applicant, Ms Ellamaine Prudence Detenamo (“The Nominee”) was employed under the Airline Operation- Ground Staff Award 2010 and is classified as “clerical and Administrative Stream, Level 3”, staff as set out in items 6 and 7 of the Schedule of the Employment Agreement dated 23 April 2013. The Applicant is required to meet the criteria of 5.19 of the Migration Regulations 1994 (“The Regulations”). Reg 5.19(3) pertains to Temporary Residence Transition, where the Nominee was previously on a Subclass 457 (Temporary Work (Skilled)) visa (“the 457 visa”) and satisfied the criteria for the 457 visa and where the Nominee had been employed by the Applicant for a period of two (2) years. The Applicant met the criteria of Reg 2.72 of the Regulations in relation to the approval of the 457 Nomination and therefore met the requirements of Reg 2.72(10)(cc)(i)&(ii), where the Temporary Skilled Migration Income Threshold (“TSMIT”) is established. The TSMIT is a market rate and therefore as long as the Nominee is being paid the rate of salary as established by the market, then it is irrelevant what her employment contract may state. The Second Respondent has taken into account an irrelevant consideration and a jurisdictional error has occurred and the First Respondent does not have the protection of the privative clause as set out in section 474 of the Migration Act 1958 (“The Act”).

2. The applicant’s written and oral submissions repeated the particulars of this ground.  The argument appears to be that the tribunal was not entitled to have regard to that part of Ms Detenamo’s employment contract with the applicant that specified the relevant industrial award and her classification under that award for the purposes of determining her occupation.

3. To properly undertake its task with respect to reg.5.19(3)(a)(iii), the tribunal needed to consider and, in relation to the nominated position, make findings about:

   a)whether the application for nomination identified an occupation that is listed in ANZSCO;

   b)the 4-digit ANZSCO occupation unit group code for that occupation;

   c)the occupation carried on by the nominated visa holder;

   d)the 4-digit ANZSCO occupation unit group code for the visa holder’s occupation so found; and

   e)whether the 4-digit ANZSCO occupation unit group code for the identified occupation and the 4-digit ANZSCO occupation unit group code for the visa holder’s occupation so found are the same.

4. Ms Detenamo’s employment contract with the applicant was entirely relevant to that exercise, and in particular the finding that I have identified above that the tribunal had to make about the occupation carried on by the nominated visa holder.  Whilst the tribunal, arguably, may not have been bound to take the employment contract into account, to take it into account was hardly to consider an irrelevant matter. 

5. As the first respondent’s submissions point out, the Award and the Award Classification were not used by the tribunal as determinative of Ms Detenamo’s occupation but were seen to add further weight to the tribunal’s determination in that regard.  After considering the evidence about Ms Detenamo’s duties and her tasks relating to the maintenance of records to meet the requirements of the Civil Aviation and Aircraft Authority, at paragraph 14 of its reasons, the tribunal said:

   14.    …It is not reflective of a Skill Level 1 type of task. The tribunal considers the information contained in the 2013 employment agreement further adds weight to its view. The employment agreement indicates that the nominated person is employed under the Airline Operations – Ground Staff Award 2010 and she is classified as “Clerical and Administrative Stream, Level 3” staff. Under the Airline Operations – Ground Staff Award 2010 there are eight levels under the Clerical and Administrative Stream, with the lowest level being Level 1 and the highest Level 8. The tribunal does not consider that a Level 3 classification is reflective of the occupation of Archivist, which is a skilled and qualified profession.

6. The tribunal was not referring to the Award and the Award classification for the purposes of determining Ms Detenamo’s wage or salary level, as the applicant’s submissions tend to suggest, but as evidence about the nature of her occupation with the applicant.

7. Moreover, the applicant placed the employment contract before the tribunal as part of its case.  The applicant cannot now be heard to complain that the tribunal should only have had regard to parts of that document and disregarded others.  The tribunal was entitled to consider the whole of the document as part of its fact finding function.

8. I agree with the first respondent’s submissions that no jurisdictional error is revealed by this ground of review.

The second ground of review

1. This ground (ground 3 in the amended application filed on 12 March, 2015) is expressed as follows:

   3. The Second Respondent has taken into account a further irrelevant consideration and a jurisdictional error has occurred.

   Particulars

   C. In relation to Ground 3, the Second Respondent has taken into account information well outside the boundaries of the ANZSCO Code in determining the duties and tasks of an Archivist. The Second Respondent has referred to the Australian Society of Archivists at line 4 page 12 of the transcript of the Annexure marked “W AB-2” of the Applicant’s Affidavit. The Applicant also refers to the Australian Society of Archivists at line 32 on page 15 of the Transcript and also at line 25 on page 22. By referring to the Australian Society of Archivists, the Second Respondent has taken into account extraneous information, which is an irrelevant consideration and therefore a jurisdictional error has occurred.

2. The applicant argues that the tribunal took into account an irrelevant consideration because it made reference to the Australian Society of Archivists during the course of the tribunal hearing on 6 November, 2014.  In that respect, what the tribunal member said  was:

   Ms Shum:Okay.  And why – well, one of my concerns is that I don’t – while you referred to it as an archivist position, I have concerns about whether it is an archivist occupation as described in ANZSCO and also according to some other websites that I have looked at, including the Australian Society of Archivists website which describes what an archivist is.  So it seems – I can understand you have been – you manage records and filing for the – for Nauru Air – Airlines, sorry.  But I’m not sure that it necessarily is an archivist occupation.  So do you want to tell me exactly what you do?

   (transcript, page 12 lines 1 – 9)

3. The tribunal member made further statements later during the course of the hearing that tended to confirm that she had reference to material from that website. 

4. The applicant argues that it was impermissible for the tribunal member to have access to material from that website because what was relevant was the occupation of Ms Detenamo for the purposes of the ANZSCO.  The applicant argues that “it is taking into account material that is perhaps extremely precise and very narrow in relation to the profession of Archivist. It is submitted, that the ANZSCO Code is utilised by Department Delegates, for their ease, use and convenience and while it is not an extremely broad document, it does allow for more irregularities and nuances than the exactness of the website for the Australian Society of Archivists, or any occupation website for that matter.”

5. The applicant also submits that:

   It is noted, that the Second Respondent makes no mention of the Australian Society of Archivists in the decision, although made a number of references to the Australian Society of Archivists at the Hearing. In this regard, the Applicant’s legal representative did advise the Second Respondent that it was taking into account an irrelevant consideration. The Second Respondent however continued along the same path.

   (footnotes omitted)

6. However the lack of reference to material from the Australian Society of Archivists website in the tribunal’s reasons for decision tends to suggest that the tribunal member did not take that material into account.  There is no indication on the face of the tribunal’s decision record as to how the alleged ‘irrelevant information’ was taken into account by the tribunal in reaching its ultimate decision.  The tribunal’s decision makes no reference to the Australian Society of Archivists.

7. As the first respondent points out, the tribunal’s reasons for decision clearly identify the tasks listed in ANZSCO for the unit group of occupations, ‘Archivists, Curators and Records Managers’ (ANZSCO unit group 2242). The tribunal’s reasons for decision also identify the skill level of an Archivist, and the other occupations in this unit group, as being ANZSCO Skill Level 1. 

8. The tribunal considered the possibility that rather than Ms Detenamo’s occupation being that of an archivist, she was more aptly described as a records manager as provided for in the ANZSCO unit group in which the occupation of archivist also appears.  In respect of that proposition, the tribunal said:

   17.    …While it accepts that the applicant has developed a specialised knowledge of the types of records which need to be kept by an airline, having regard to the skill level required for the occupation of Archivist, it does not consider that she has been carrying out that occupation. It was also submitted at the second hearing that if the tribunal did not accept that the occupation was of Archivist, then it should consider the occupation of ‘Records manager’. However, this occupation shares the same four-digit unit group as ‘Archivist’ and has the same skill level.  For much the same reasons, the tribunal does not consider that the applicant has been carrying out the  occupation of ‘Records manager’.  Rather, it considers that the job undertaken by the nominated person is properly described in ANZSCO as coming within the major group “Clerical and Administrative Workers” (ANZSCO Major Group 5) being those who “provide support to Managers, Professionals and organisations by organising, storing, manipulating and retrieving information.”

   (my emphasis)

9. The tribunal made findings about Ms Detenamo’s occupation.  In that respect, the tribunal said:

   The tribunal further notes that, according to the statutory declaration of Ms Detenamo which was provided by the representative prior to the second hearing, her tasks and duties have not changed since May 1987 when she was promoted to a higher clerical officer position from her entry position as a Clerical Officer within the Flight Operations Division in February 1984. Prior to that she had been a Flight Attendant with Air Nauru. The tribunal considers that her employment history adds further weight to its finding that the position is not that of an Archivist.  The entry position of Clerical Officer reflects that of Filing and Registry Clerk (ANZSCO 561311, which is ANSZCO unit group code 5613). Her later promotion was to a higher clerical officer position. While she has had further promotions to Flight Operations Duty Coordinator and Administrative Officer Flight Operations, according to Ms Detenamo’s statutory declaration, her duties and responsibilities for “recording and storage of all records and files in relation to all aspects of the employer’s business” have not changed. Having regard to this evidence, the tribunal considers that the occupation carried out by the nominated person might reflect a higher minor group within Major Group 5, such as General Clerical Worker (ANSZCO unit group code 5311) to reflect the years of experience undertaking this clerical and administrative work. However, in the tribunal’s view it is not that of an Archivist, or Records Manager, occupation.

10. Thus, the tribunal found that the occupation that was being carried out by Ms Detenamo did not have the same 4-digit occupation unit group code as that identified in the nomination for approval that had been made by the applicant.

11. It is clear the tribunal was aware of the task it was required to undertake.  As the first respondent points out, during the course of the hearing, the tribunal stated in an exchange with Ms Detenamo:

    ‘An archivist occupation is a high level occupation, and in terms of that, I need to consider your evidence and the evidence of Mrs Bowden in relation to what you’ve actually been doing and whether that fits the ANZCO (sic) description and - so that’s what I will be doing after this hearing closes. I just need to have a think about how – what you’ve been doing, if it actually matches the occupation of archivist..

12. In my view, the tribunal properly understood its task and did not take into account any irrelevant considerations as the applicant contends.  No jurisdictional error is revealed in the tribunal’s decision by this ground of review.

Conclusion

1. The material before me clearly demonstrates that regrettably, the first respondent’s Department made an error in the approval of a nomination of a position that issued to the applicant on 7 December, 2010.  That approval wrongly stated that the relevant occupation code was 599518 instead of that applied for namely ANZSCO Code 224211.

2. I said earlier in these reasons, that the error was critical.  Indeed it was.  One can only wonder at what would have happened to the applicant’s subsequent application for approval of nomination made on 22 April, 2013 had that error not been made.  Given the approach of the delegate it seems tolerably clear that the nomination would have been approved.  The tribunal member expresses the same view in the transcript of the tribunal hearing which took place on 16 November, 2014.

3. Assuming that Ms Detenamo could meet all of the other relevant visa criteria she would then have been entitled to the grant of a Subclass 186 visa to her employment would then have continued, more or less, as it has done for the last thirty years.

4. Moreover, the tribunal’s conclusion that Ms Detenamo’s occupation with the applicant could not be described as having the same 4-digit ANZSCO code as that of the position to which the applicant had applied for approval to nominate her, is a conclusion to which I would not have come.  Had I to decide the matter for myself, I would have been comfortably satisfied on the material that Ms Detenamo’s occupation fell comfortably within the discrepant description of “Records manager” within the unit group of occupations bearing 4-digit ANZSCO code of 2242.

5. But that is not the point.  In my view the tribunal’s decision is without jurisdictional error and so, is a privative clause decision and unable to be reviewed in this court.

6. The amended application filed on 12 March, 2015 must be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.

Associate: 

Date: 11 January 2016