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 |
| 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…
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Details
- Case
- [2010] FMCA 219
- Decision Date
CaseChat Overview and Summary
In the matter of Pasula v Minister for Immigration & Anor, the applicant, Mr Pasula, challenged the Tribunal’s decision that his Advanced Diploma of E-Business was not relevant to his nominated occupation as a Cook. The Tribunal found that Mr Pasula’s educational qualifications did not meet the requirements of clause 880.215 of the Migration Regulations, which necessitates a positive relationship between the applicant’s study and the nominated skilled occupation. The Tribunal concluded that the Diploma of E-Business did not demonstrate a pertinence or usefulness to the occupation of a Cook.
The central legal issue before the court was whether the Tribunal’s decision was affected by jurisdictional error. Mr Pasula’s counsel argued that the Tribunal failed to consider relevant factors, including the Tribunal’s Recognition of prior assessment (TRA) of his qualifications, the policy outlined in the Procedures Advice Manual 3 (PAM3), and a previous decision of the Tribunal involving the applicant. The court assessed whether the Tribunal’s failure to consider these factors amounted to a jurisdictional error that warranted the quashing of the Tribunal’s decision and a remittal for further consideration.
The court held that it could not make orders quashing the Tribunal’s decision unless it was affected by jurisdictional error. The court found that the Tribunal had not erred in its consideration of the relevance of Mr Pasula’s qualifications to his nominated occupation. The court reasoned that the Tribunal was not bound to follow PAM3 or past decisions in this matter and had correctly applied the law in assessing the relevance of the applicant’s qualifications. The court also noted that the recognition of the applicant’s qualifications by the TRA did not automatically render them relevant to the nominated occupation under the Regulations.
ORDERS:
1. The application is dismissed.
The central legal issue before the court was whether the Tribunal’s decision was affected by jurisdictional error. Mr Pasula’s counsel argued that the Tribunal failed to consider relevant factors, including the Tribunal’s Recognition of prior assessment (TRA) of his qualifications, the policy outlined in the Procedures Advice Manual 3 (PAM3), and a previous decision of the Tribunal involving the applicant. The court assessed whether the Tribunal’s failure to consider these factors amounted to a jurisdictional error that warranted the quashing of the Tribunal’s decision and a remittal for further consideration.
The court held that it could not make orders quashing the Tribunal’s decision unless it was affected by jurisdictional error. The court found that the Tribunal had not erred in its consideration of the relevance of Mr Pasula’s qualifications to his nominated occupation. The court reasoned that the Tribunal was not bound to follow PAM3 or past decisions in this matter and had correctly applied the law in assessing the relevance of the applicant’s qualifications. The court also noted that the recognition of the applicant’s qualifications by the TRA did not automatically render them relevant to the nominated occupation under the Regulations.
ORDERS:
1. The application is dismissed.
Orders
Orders of the court
1.
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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