Pasula v Minister for Immigration & Anor
[2010] FMCA 219
•16 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PASULA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 219 |
| MIGRATION – MRT decision – skilled overseas student residence visa – finding that qualification in e-business was not related to nominated occupation of cook – whether failure to consider contents of PAM3 and earlier decisions of Tribunal – whether failure to give genuine, proper and realistic consideration – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), s.499 Procedures Advice Manual 3, cll.1.2, 59.10 |
| Choo Ai Lin v Minister for Immigration & Ethnic Affairs(1996) 45 ALD 291 El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43, [2004] FCA 1038 Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 Parekh v Minister for Immigration [2007] FMCA 633 Re Drake and Minister for Immigration & Ethnic Affairs (No 2)(1979) 2 ALD 634 SZJSS v Minister for Immigration & Citizenship [2009] FCA 1577 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Thongsuk v Minister for Immigration & Anor [2007] FMCA 655 Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 |
| Applicant: | SRIDHAR REDDY PASULA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2911 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 12 March 2010 |
| Date for Last Submission: | 26 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | MAS Law |
| Counsel for the Respondents: | Mr J P Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2911 of 2009
| SRIDHAR REDDY PASULA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Pasula seeks judicial review of a decision of the Tribunal made on 30 October 2009, which affirmed a decision refusing to grant him a subclass 880 permanent residence visa, being a ‘Skilled – Independent Overseas Student (Residence) (Class DD)’ visa.
He entered Australia on a student’s visa in August 2005. From that date and until 20 July 2007, he studied and qualified for an Advanced Diploma of E‑Business. He then enrolled in a cooking course, comprising one week’s training and a practical test, and on 28 August 2007 he was given the qualification of Certificate III in Hospitality (Asian Cookery).
The next day, on 29 August 2007, he applied for the permanent residence visa. He subsequently presented to the Department of Immigration a further cooking qualification, being Certificate IV in Hospitality Supervision, dated 18 December 2007, after a six months course. He also submitted an assessment of a Skills Assessor, Trades Recognition Australia, dated 14 February 2008. This certified that he had the skills of the occupation of ‘cook’ ASCO code 4513‑11, which was the ‘nominated occupation’ in his visa application. The TRA certificate indicated that its assessment was based upon evidence of the AQF Certificate III and of 900 hours or four years directly related work experience, apparently gained in a restaurant in India.
A delegate refused the visa application on 29 October 2008. The delegate found that Mr Pasula did not satisfy the requirements of a ‘time of application’ criterion in Migration Regulations Sch.2 cl.880.215:
The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA (3) (l) (i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.
The qualifications referred to in these provisions of Sch.1 were those required to be shown in the visa application, being qualifications obtained in one or more courses in Australia occupying at least two years, and completed within six months before the visa application. In Mr Pasula’s case, it was clear that he claimed reliance upon his E‑Business diploma as part of his two years’ qualifying study, as well as his Certificate III in Asian cookery. He therefore was required, under cl.880.215 to satisfy the Minister that his E‑Business diploma was ‘relevant to’ his nominated skilled occupation of ‘cook’ ASCO code 4513‑11.
I have in earlier cases, explained how the nomination of a ‘skilled occupation’ identifies a category of employment which is precisely defined in relation to its work and level of responsibility under the ASCO ‘code’ of employment classifications, which is adopted for the purposes of the Migration Regulations (see Parekh v Minister for Immigration [2007] FMCA 633, and Thongsuk v Minister for Immigration & Anor [2007] FMCA 655).
The present delegate said:
After reviewing the list of subjects studied at Culinary Solutions Australia, I am satisfied that the skills and knowledge gained are relevant and would prove beneficial in your nominated occupation of Cook. Such subjects include:
·Prepare salads for Asian Cuisines
·Plan and control menu‑based catering
·Prepare foods according to dietary and cultural needs
·Prepare, cook and serve food for menus
·Present food
The Academic Transcripts you provided from the Australian College of Education and Training state that as part of your Advanced Diploma of E‑Business, you studied the following subjects:
·Implement an E‑business strategy
·Identify new technology models for E‑business
·Trade Online
·Implement e‑correspondence policies
·Complete database backup and recovery
·Develop an E‑business strategy
The tasks and roles of your nominated occupation, Cook (ASCO 4513‑11) are described in ASCO as:
Role:
Prepares, seasons and cooks food in catering and dining establishments.
Tasks Include:
·examines food to ensure quality
·regulates temperatures of ovens, grills and other cooking equipment
·prepares and cooks food
·seasons food during cooking
·portions food, places it in dishes, adds gravies or sauces, and garnishes
·stores food in temperature controlled facilities
·may plan menus and estimate food requirements
·may prepare food to meet special dietary requirements
·may train other kitchen staff and apprentices
Section 59.10 of PAM3 states:
“…the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation.”
I have taken into consideration all of the subjects undertaken at the Australian College of Education and Training. As a result, I am not satisfied that the skill set underpinning the qualification of an Advanced Diploma of E‑business is complementary and can be used in your nominated occupation of Cook.
I am therefore not satisfied that your studies undertaken at the Australian College of Education and Training are relevant to your nominated occupation of Cook (ASCO Code 4513‑11).
On appeal to the Tribunal, Mr Pasula disputed the delegate’s opinion on ‘relevance’, both at a hearing he attended on 21 October 2009 and in a written submission. In his written submission, he argued:
35.I now turn to the question of relevance between my Advance Diploma of E‑Business course and my Cookery courses. I undertook Advance Diploma in E‑Business as its subject will assist me in developing the hospitality business online.
36.Generally, the DIAC accepts that a skilled cook would have studied business management. The Advanced Diploma in E‑Business which I undertook also incorporates these basic management subjects as well as gearing the subjects towards E‑business.
37.There are new businesses opening and operating in Sydney and Melbourne that are web based and may not have dine in customers. For example, there is a popular Indian Take Away web site that caters for vegetarians, being Garma Garam ( The home page of this website allows for an order to be placed online. In fact, the whole marketing strategy of this Indian Restaurant is to receive orders online and then to have them delivered at a very low price.
Below is an abstract from their website
Our meal platters delivered to your office door steps:
Call us at 1300 780 765 to order your meals everyday before 11 AM or order online a day before to have your meal platters delivered to your office door steps free of charge at city CBD, Parramatta, Sydney Olympic Park, Rhodes, North Sydney. Meals are packed in easy disposable containers that are microwave friendly. Remove the cardboard cover and peel the plastic cover off. Remove the roti’s from the aluminium foil and heat the platter at 1 minutes.
Each platter contains a choice of dal, curry, roti, rice all at an affordable price of AUD $6.99 !!!
38.There are many restaurants that offer online service for customers both here in Australia and overseas and like Garma Garam may only deal with customers online rather than face to face at the restaurant. Attached hereto and marked “B” is a schedule of restaurants that operate online.
39.I also seek to rely on a former MRT decision being the matter number 071743266 which presented the same issue of relevance of study to the occupation. In that case, the MRT set aside the decision of the DIAC and stated “The Tribunal was satisfied that the skill set underpinning the qualification of her electronic business degree could be utilized to develop, operate and manage an on‑line pastry business and complemented the applicant’s nominated occupation of Pastry Cook”.
40.I humbly seek that the Tribunal apply consistency in its decision and acknowledge that I could apply the skills gained through the Advance Diploma in E‑Business to supervise and manage across different functions such as production, marketing, stoking/supply, human resources, and accounting in a small sized restaurant/cookery business. Attached hereto and marked “C” is a concise copy of the decision in matter number 071743266.
The enclosed case note of a previous decision of a different member of the Tribunal said:
071743266
22 November 2007, Sydney
Ms S Pinto, Member
SKILLED – INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) VISA – SUBCLASS 880 – CL.880.215 – RELEVANCE TO OCCUPATION – A delegate of the Minister for Immigration and Citizenship refused the applicant’s Subclass 880 Independent Overseas Student (Residence) visa because he was not satisfied that the applicant’s Diploma and Master of Commerce (Electronic Business) were relevant to the occupation of Pastry Cook. The delegate found that the applicant did not meet the requirements of Item 1128CA(3)(l) of Schedule 1 to the Migration Regulations 1994 (the Regulations) for the purposes of cl.880.215 of Schedule 2 to the Regulations. Upon review, the applicant claimed that there was no clear definition of the word ‘relevant’ and it should be interpreted according to Departmental policy. She claimed that her electronic business studies had strong relevance to the occupation of Pastry Cook because they enabled a bakery/pastry shop owner to efficiently manage across different pasty cooking processes through an internet‑enabled online presence. The applicant claimed that she could apply her knowledge to supervise and manage across different functions such as production, marketing, stoking/supply, human resources and accounting in a small to medium sized bakery/pastry business.
Held: Decision under review set aside
The Tribunal considered Departmental policy and found that a broad interpretation of the definition of ‘relevant’ was given in the context of cl.880.215. As it found the legislation to be consistent with Departmental policy, the Tribunal considered that it was appropriate in the circumstances to be guided by policy. The Tribunal was satisfied that the “skill set” underpinning the qualification of her electronic business degree could be utilised to develop, operate and manage an on‑line pastry business and complemented the applicant’s nominated occupation of Pastry Cook. The Tribunal was satisfied that the applicant had established that each of the qualifications mentioned in subparagraph 1128CA(3)(i) or (ii) of Schedule 1 were relevant to the skilled occupation. Accordingly the Tribunal found that the applicant met cl.880.215 for the grant of the visa.
The present Tribunal made a decision on 30 October 2009, affirming the delegate’s decision. It arrived at the same conclusion as the delegate in relation to the application of cl.880.215. In its ‘Findings and Reasons’ it said that it was satisfied that Mr Pasula’s cooking qualifications were ‘relevant to’ his nominated occupation, but it was not so satisfied in relation to his E‑Business diploma. It said:
26.The applicant argues that his qualifications in E‑Business and as a Cook will enable him to manage an online restaurant whereby customers will be able to order meals online. The Tribunal notes, however, that the applicant had nominated the occupation of a Cook and not that of a restaurant manager or business owner. The relevance test applies to the nominated occupation and not to the occupation in which the applicant intends to engage in the future. While the applicant may wish to run an online restaurant in the future, the Tribunal must consider the relevance of the Advanced Diploma course to the nominated occupation of Cook and not to the occupation of a restaurant manager or owner. The applicant argues that he could work as a chef in such a restaurant and deal with online orders. He presented photographs of his employment as a cook. The Tribunal is of the view, however, that if the applicant were to work as a chef or a cook, the manner in which the orders are placed or received, and whether such orders are made online, would not be relevant to his occupation as a cook or a chef.
The Tribunal referred to the ASCO list of ‘tasks’ of a ‘cook’, and concluded that “the demands of the nominated occupation are reflected in the above tasks and that such tasks relate, primarily, to the handling of food, menu planning and working with kitchen staff”.
The Tribunal then extracted parts of my judgment in Thongsuk, where I discussed the concept of ‘relevance’ under cl.880.215, and it attempted to gain assistance from my discussion. No submission is now made that my discussion was erroneous and should not be followed, nor that the Tribunal’s reasons disclose error of law in its application of my judgment.
The Tribunal said:
30.The Tribunal accepts that customers may find online ordering of food to be convenient and also that there are establishments that provide this service. However, this is relevant to the manner in which a business operates, not to the tasks performed by a Cook.
31.It is also not sufficient for the applicant to state that the skills, learning or qualification acquired in his Advanced Diploma course would benefit him in future employment as a Cook if he were to open an online restaurant. Rather, the Court referred to a positive usefulness of the skills acquired in the educational qualifications to the nominated occupation, “a positive ‘pertinence’ and particular ‘usefulness’”. There must be a relationship between the study and the nominated occupation. The Tribunal must be satisfied that the applicant’s educational achievement is occupationally relevant to the nominated skilled occupation. The Tribunal is not satisfied that this is the case.
32.Having considered all the material before it, the Tribunal is not satisfied that there is relevance between the applicant’s study for the Diploma of E‑Business and his nominated occupation of a Cook. The Tribunal is not satisfied that the applicant’s educational achievements in the Diploma course are relevant to the particular demands of the nominated skilled occupation of a Cook, even taking into account the broad range of considerations as suggested in Thongsuk.
33.The Tribunal is not satisfied that the applicant has established that his Diploma of E‑Business is relevant to the nominated skilled occupation of a Cook. The Tribunal is not satisfied that each of the applicant’s qualifications, being a degree and a trade qualification, mentioned in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation of Cook. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl.880.215 of the Regulations.
34.The Tribunal notes the applicant’s reference to other Tribunal decisions that have considered similar circumstances. These have no precedential value to the Tribunal.
CONCLUSIONS
35.For the reasons given above the Tribunal finds the applicant does not satisfy the requirements of cl.880.215.
Mr Pasula seeks orders quashing the Tribunal’s decision, and remitting the matter for further consideration. I can only make these orders, if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide the factual issue posed by cl.880.215, nor to decide whether Mr Pasula should be given this visa or any other permission to stay in Australia.
Mr Pasula’s counsel relied upon the ground set out in an amended application filed at the hearing:
1.The Tribunal’s decision is vitiated by jurisdictional error as a consequence of the Tribunal failing to take into account a relevant consideration, or by failing to give proper, genuine and realistic consideration to matters arising in the review, or by engaging in an arbitrary decision.
Particulars
(a)The Tribunal did not take into account the TRA’s recognition of the Applicant’s qualifications as suitable for the occupation of a cook in determining whether the Applicant’s Advanced Diploma of E‑Business was relevant to the occupation of a cook.
(b)The Tribunal did not take into account the policy of the First Respondent (set out in the Procedures Advice Manual 3 (“PAM3”) concerning what qualification combinations may be regarded as acceptable. PAM3 refers to (i) hairdressing and information policy [sic: technology] as an acceptable combination for the occupation of hairdressing in certain circumstances, and (ii) also refers to information communications technology qualifications being acceptable in combination with other qualifications in certain circumstances. The Tribunal, however, did not take this into account when considering whether the Applicant’s Advanced Diploma of E‑Business was relevant to the occupation of a cook.
(c)The Tribunal did not take into account the decision of the Tribunal (differently constituted) to the Tribunal by the Applicant.
(d)Further and in the alternative, by virtue of any or all of (a) to (c) above, the Tribunal’s decision is affected by jurisdictional error in that it failed to give proper, genuine and realistic consideration to matters arising in the review, or by otherwise engaging in an arbitrary decision.
In his oral submissions, counsel appeared to be presenting two different grounds of jurisdictional error. He agreed that a contention that the Tribunal “failed to give proper, genuine and realistic consideration to matters arising in the review” invoked a different line of judicial authority to that concerning “failure to take into account a relevant consideration”. Counsel did, however, rely upon the particulars (a) to (c) in relation to both contentions. It is convenient to address all of the general contentions in the ground, by reference to each particular.
In relation to particular (a), I have difficulty identifying how the TRA skills assessment could be regarded as a piece of evidence having any bearing on the issue of ‘relevance’ of an E‑Business qualification to the occupation of ‘cook’ under the ASCO code. It is clear that the Tribunal was aware of the assessment, and properly understood that it had been presented to the Department by Mr Pasula so as to address a separate criterion, which was not cl.880.215. As I have noted above, the terms of the assessment showed no reliance upon the E‑Business qualification, and it appears to have relied only upon Mr Pasula’s Certificate III cooking qualification and his claimed work experience as a cook in India and Australia. In my opinion, the assessment provided no relevant evidence to the issue upon which the Tribunal decided the case, or, at least, no evidence capable of advancing Mr Pasula’s case under cl.880.215.
In that situation, the Tribunal’s decision exhibited no jurisdictional error, of any type, by ignoring the TRA skills assessment when addressing the issue raised by cl.880.215.
Turning to particular (b), I note that the delegate cited the general test suggested in the Department’s Procedures Advice Manual (PAM3), of whether qualifications “are complementary and can be used in the nominated occupation”. Counsel for Mr Pasula did not argue that the present Tribunal failed to consider this test, but he relied upon other statements in PAM3 in its terms at the time of the Tribunal’s decision. I extracted these in Thongsuk (supra), but it is convenient to do so again, emphasising the section which is now argued to have been overlooked or not given proper consideration by the Tribunal:
59.10Qualification/s must be relevant to nominated occupation
‘Relevant to’
Where an applicant claims to meet the two year study rule, the completed Australian qualification/s must be ‘relevant to’ the nominated skilled occupation. The ‘relevant to’ requirement is to ensure that applicants have qualifications that are compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation.
Under policy, circumstances of a qualification not being ‘relevant to’ the nominated occupation include where the qualification is not related to the nominated skilled occupation ie being generally in different fields of study eg an applicant who has completed motor mechanic and baker qualifications as a result of 2 years of full time Australian study. These qualifications would not meet the ‘relevant to’ requirement.
Acceptable combinations
Policy envisages that acceptable complementary qualifications may include such combinations as hairdressing and information technology (if nominating hairdressing but not if nominating an IT occupation) where the person has a suitable trades assessment from TRA and can demonstrate that they will be able to use the IT skills in a business environment.
Other complementary courses could include ICT, business, or legal qualifications at diploma level, undertaken to supplement an 18 month generalist masters degree where the person claim 50 points for a generalist occupation. In these cases, the applicant would generally not be able to obtain suitable skills assessment from the 60 point assessing authority. …
(emphasis added)
I accept that the Tribunal did not in its ‘Findings and Reasons’ extract, nor otherwise refer to, the highlighted ‘policy’ statement in PAM3. However, in my opinion, there are three reasons why this omission does not provide evidence of jurisdictional error vitiating its decision.
First, there is a line of authority which I would follow, holding that the contents of PAM3 do not themselves provide ‘relevant considerations’ which the Tribunal is bound to consider, as a condition of its valid exercise of its jurisdiction. I cited and followed this authority in Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209:
27.Although no evidence was presented to me as to the general purposes and role of PAM, it is clear from those parts of PAM which were tendered in evidence that it is no more than an advisory administrative guide to delegates in relation to their application of the legislation. Moreover, as a matter of law, it could have no higher status. It was not contended for the applicant that the relevant parts in evidence amounted to “written directions” given by the Minister under s.499 about “the performance of … functions” or “the exercise of … powers”. In my opinion, to any extent that its procedural or substantive contents go beyond repeating the effect of the Migration Act and Regulations, they are incapable of being elevated into legally necessary or relevant considerations of the type identified by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39‑42.
28.Although reference was made by the applicant’s counsel to Brennan J’s well known discussion of “policy” in Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634, I do not consider that the parts of PAM which are in evidence show any real analogy with a Ministerial policy of the type discussed by Brennan J. I accept, and respectfully agree with the opinion of Gray J in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038 at [45]:
PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … A failure to apply the guidelines may have significance in establishing some error on the part of a decision‑maker, but it is not of itself a jurisdictional error.
Tamberlin J took a similar view in Choo Ai Lin v Minister for Immigration & Ethnic Affairs (1996) 45 ALD 291 at 298.
The cases cited by counsel for Mr Pasula do not call into question this view of the status of PAM3, and in my opinion it provides a complete answer to both wings of the present ground in relation to this particular. If the Tribunal is under no obligation to have regard to a statement of ‘policy’ in PAM3 as a condition of the Tribunal’s jurisdiction, then it is impossible to see how a lesser failing of not having ‘proper, genuine and realistic’ regard to that statement could provide a jurisdictional error (cf. Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [43], and Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at [107], cited in SZJSS v Minister for Immigration & Citizenship [2009] FCA 1577 at [43]).
Secondly, I do not consider that the identified statement in PAM3 could validly have assisted the Tribunal to arrive at a different conclusion as to the ‘relevance’ of Mr Pasula’s E‑Business diploma to his nominated occupation as a cook. If the statement were read as suggesting that hairdressing and information technology qualifications would be ‘relevant’ to each other if they could be used in consecutively pursued occupations, as now appears to be contended by Mr Pasula, then this would overlook the critical point made by me in Thongsuk at [23]‑[25], and which was also made in the ‘critical factor’ test in the opening paragraph of cl.59.10 of PAM3. This is that the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law. If PAM3’s advice relied upon by Mr Pasula was legally erroneous, then the Tribunal could not make a jurisdictional error by not considering whether to follow that advice, nor by failing to give the advice ‘proper, genuine and realistic consideration’.
Moreover, I do not consider that, properly understood, PAM3 intended to suggest that it is enough that a visa applicant would use a qualification in his or her future career after being employed in the nominated occupation. In view of the ‘critical factor’ test formulated in the opening paragraph of cl.59.10, the suggestion that there is an “acceptable complementary combination” where a visa applicant could “demonstrate that they will be able to use the IT skills in a business environment”, must be understood to assume that the ‘business environment’ would be the environment of employment in a nominated occupation of ‘hairdressing’. On this reading, the statement in PAM3 which is now relied upon could not have assisted Mr Pasula, in view of the Tribunal’s findings that his E‑Business diploma would be of no use, and had no relevance in the work of a cook classified under ASCO code 4513‑11.
Thirdly, and in any event, I would not draw an inference from the Tribunal’s reasons that it ignored the contents of PAM3. The statement of ‘policy’ now emphasised by Mr Pasula received no mention in his evidence and submissions to the Tribunal, although the written submission showed input from his migration agent. I do not accept counsel’s submission that oblique reliance upon this section of PAM3 can be deduced from the submission’s reference to the case note for the 2007 Tribunal decision, since that decision’s reference to Departmental policy as giving “a broad interpretation” was, at best, obscure in this respect. There is, therefore, no foundation for the argument that there was a ‘claim’ or substantive submission relying upon this statement in PAM3 made to the Tribunal, upon which the principle formulated in Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 at [42] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] could attach.
PAM3, in its terms, provided administrative guidance which was not directed at the Tribunal, but at the making of first instance decisions by ministerial delegates (see cl.1.2 of PAM3, and compare s.499 of the Migration Act 1958 (Cth)). The Tribunal probably did consider the delegate’s reference to PAM3’s ‘critical’ test of “complementary and can be used in the nominated occupation”, since it certainly read her decision. But it was understandable that the Tribunal sought more assistance from judicial interpretation of the concept of relevance in cl.880.215, than from PAM3’s discussion, or from the opinions of another Tribunal member. The Tribunal may well have concluded that the ‘critical’ test in PAM3 was consistent with the interpretation taken in Thongsuk, and with its own conclusions in the present case. It might then have had doubts about how PAM3’s illustrated combination of hairdressing and information technology could be relied upon, consistently with the interpretation taken in Thongsuk. It was not obliged to address and resolve those doubts.
In all these circumstances, I would not conclude from the absence of any express reference to the now identified statement in PAM3 that the Tribunal was unaware of its contents, and did not give it an appropriate consideration. I therefore would not draw an inference of any failure to consider the contents of PAM3 (cf. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and other similar authorities).
Turning to particular (c) of the grounds of review in the amended application, it is clear that the Tribunal was aware of, and rejected, Mr Pasula’s submission that it should arrive at the same outcome as the 2007 Tribunal decision, as summarised in the case note. The Tribunal referred to that submission in its recitation of the background of the matter:
14.… The applicant also referred to another decision of the Tribunal (differently constituted) which considered similar circumstances and requested the Tribunal to apply consistency in its decisions.
The Tribunal then, at the end of its reasons, said:
34.The Tribunal notes the applicant’s reference to other Tribunal decisions that have considered similar circumstances. These have no precedential value to the Tribunal.
I accept that a longer discussion could have explained more fully why the Tribunal decided not to arrive at the same outcome as the previous decision, which had arrived at a conclusion that a visa applicant’s “Diploma and Master of Commerce (Electronic Business) were relevant to the occupation of Pastry Cook”. However, the Tribunal’s terse explanation that the decision did not have “precedential value”, suggests that the Tribunal understood, correctly, that it was not bound as a matter of law to follow previous decisions of the Tribunal, whether in relation to matters of law or fact. Read fairly, I also consider that its reasons should also be understood as going further than this, and as showing that it had understood Mr Pasula’s argument to be one of ‘consistency’, but was not persuaded by that argument to depart from its own reasoned conclusion which had attempted to apply judicial authority to the case before it. Such reasoning could not, in my opinion, be criticised for error of law, and certainly does not show a failure to exercise its jurisdiction in the matter.
Consistency of factual outcomes is, no doubt, desirable in an administrative agency. However, as far as I am aware, there is no authority suggesting that an administrative tribunal is lawfully entitled to give greater weight, or even a substantial weight, to this objective, if this involves declining to give effect to its own opinions on fact and law in relation to the matter before it. Different obligations to consider the desirability of ‘consistent’ outcomes might apply to the exercise of administrative discretion (c.f. Brennan J in Re Drake and Minister for Immigration & Ethnic Affairs (No 2)(1979) 2 ALD 634 at 644), but the present Tribunal was not exercising a discretion when it applied cl.880.215. It was bound to apply the terms of that regulation to the facts before it, according to law, even if this produced an outcome which might appear inconsistent with an earlier Tribunal decision.
Moreover, the details of the circumstances in the previous decision of the Tribunal were not clear from the case note to which the Tribunal was referred, and it would have been difficult for the Tribunal to engage in a close comparison of the facts in that case with Mr Pasula’s circumstances. In my opinion, it would have been open to the Tribunal to take the view that a further investigation of the facts in other cases was unnecessary, and likely to be a distraction from its statutory duty to review the particular case before it.
In all the above circumstances, I am not persuaded that there was any consideration relating to the earlier Tribunal decision which the present Tribunal was bound to have regard to, and failed to do so. It follows that I am similarly unpersuaded that it made any jurisdictional error involving a failure to give ‘proper, genuine and realistic consideration’ to any such consideration.
Particular (d) attempts to give support for the second wing of the ground of judicial review, by combining all of the preceding particulars. However, I am unpersuaded that those particulars gain any additional strength by being examined together, having been rejected by me severally for the reasons set out above. Essentially all of the characterisations of jurisdictional error made in the formulated ground of review, fail because I am not persuaded that there was anything which the Tribunal was bound to address, and failed to do so – whether at all or imperfectly.
When arriving at my above conclusions, I have assumed that renewed life has been given by the High Court to the error of “failure to give proper, genuine and realistic consideration”, notwithstanding the earlier disapproval of this in the Full Court (compare Anthonypillai (supra) at [66] and NABE (supra) at [51], with NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [9]‑[10], [37], [171]‑[172]). It seems possible that this characterisation of a jurisdictional error might be absorbed within doctrines of unreasonable or irrational reasoning, in relation to which the High Court has yet to provide definitive jurisprudence. However, assuming the widest ambit of these principles, I am unpersuaded in the present case that any of the Tribunal’s reasoning should be characterised as a failure to exercise its jurisdiction according to law, when applying the terms of cl.880.215 to Mr Pasula’s circumstances.
I am therefore unpersuaded that the Tribunal’s decision was affected by any jurisdictional error. The decision is a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 April 2010
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