Pham v Minister for Immigration
[2005] FMCA 1354
•19 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHAM v MINISTER FOR IMMIGRATION | [2005] FMCA 1354 |
| MIGRATION – Migration Review Tribunal – skilled Australian-linked migrant visa – whether jurisdictional error – whether error – finding of ‘usual occupation’ relevance of classification by Trades Recognition Australia (TRA) – whether same Tribunal member can rely on own earlier finding of fact. |
| Migration Act 1958, ss.31(1), 65, 65(1)(v), 93, 94(1), 94(2), 95, 96, 474 Migration Regulations 1994, Sch 6 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | HUU THANH PHAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1428 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 23 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hamilton |
| Solicitors for the Applicant: | Koenig & Simons Solicitors |
| Counsel for the Respondent: | Ms J.K. MacDonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1428 of 2004
| HUU THANH PHAM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By an application filed 4 November 2004, judicial review is sought of a decision of the Migration Review Tribunal (the MRT) dated 7 October 2004. The MRT decision had affirmed a decision of the delegate of the respondent that the visa applicant's application for a skilled Australian-linked (migrant) (class AJ) visa (the visa) be refused.
In this matter the applicant is the brother and sponsor of Wong Thi Pham (the visa applicant) who applied for a concessional family (migrant) (class AJ) visa under the Migration Act 1958 (the Act) on 24 April 1997. The visa applicant's husband Son Anh Nguyen (the secondary visa applicant) and her daughter were included in the application.
On 14 December 1998 a delegate of the Minister refused to grant the visa to the visa applicant and her spouse and child, because she failed to meet a criterion for the visa, namely proficiency in English contained in clause 105.224 of schedule 2 of the Migration Regulations 1994 (the Regulations).
On 12 March 1999 the applicant applied to the Immigration Review Tribunal (the IRT) for review of the delegate's decision. As a consequence of the abolition of the IRT on 31 May 1999, the application was transferred to the MRT. The MRT, constituted by Mr Mahoney, conducted a hearing on 10 April 2002 and the applicant gave evidence.
The MRT delivered a decision dated 28 May 2002 (Pham Huu Thanh (2002) MRTA 2928 (28 May 2002) (the first MRT decision)). In the first MRT decision the MRT decided to remit the application made by the visa applicants for a skilled Australian‑linked (migrant) (class AJ) visa, subclasses 105 and 106, to the Department for reconsideration, with a specific direction that the visa applicant and secondary visa applicant had met the criteria under clause 105.224.
The secondary visa applicant's qualifications were submitted by his legal representatives to Trades Recognition Australia (TRA) for assessment. It appears to be common ground that an assessment was made, and on review that adverse assessment was confirmed by TRA on 10 January 2003.
It is useful to set out an extract from correspondence addressed to the applicant care of the applicant's solicitors from the TRA dated 10 January 2003, where in part the following is stated:-
“The review confirmed the original decision made on your case.
A careful assessment of the information submitted with your application has revealed that you do not possess suitable skills for any of the occupations under the skilled occupation list (SOL) assessed by Trades Recognition Australia (TRA) for migration purposes.”
In the review (Court Book pp.52-56) next to the heading "Classification Sought" the occupation "welder" appears. Next to the heading "Classification Considered" the words inserted are "welder, boilermaker and sheet metal worker".
The Court has not been provided with the original decision which was the subject of review by TRA. Nevertheless, it appears from the review sheet from TRA that the applicant had been refused recognition "on the basis of failing to adequate independent evidence that demonstrates he has completed training and undertaken duties in any one trade would be considered equivalent to Australian trade training" [sic].
In its conclusion of the review, the following appears:-
“Mr Nguyen has failed to demonstrate that his training and/or work experience would be considered equivalent to an Australian trained trades person in any one trade.”
It is noted that the secondary visa applicant's qualifications were submitted by the legal representatives to TRA for assessment and further noted that throughout the procedure the trade of "welding" has been referred to by the applicant. So much is clear from the application, where under the heading "Your Usual Occupation" the word "welder" is inserted.
Further, under the heading "What are the main tasks or duties performed in your usual occupation?" the words "welding for construction companies" was inserted. Under the heading "Are you self-employed?" the answer "yes" is marked. Under the heading "Nature of Business" the words "construction welding" have been inserted (Court Book page 14).
On 18 February 2003 a delegate of the Minister refused to grant the visas because neither the visa applicant nor the secondary visa applicant met the qualifying score for a class AJ visa (Court Book pp.57-61).
On 19 May 2003 the applicant applied to the MRT for review (the second application). On 7 October 2004 the MRT, again constituted by Mr Mahoney, affirmed the decision not to grant the visa applicant the class AJ visa.
The Relevant legislation and regulations
Legislation
It is noted that the relevant legislation appears in the following sections of the Migration Act 1958 (the Act). Section 31(1) provides for classes of visas and states that there are "to be prescribed classes of visas". Subsection 31(3) provides that, "The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by ss.32, 36, 37 or 37A but not by ss.33, 34, 35 or 38)."
Section 65 relevantly provides that after considering a valid application for a visa the minister, if satisfied in relation to the health criteria and other criteria for a visa prescribed by the act or regulations have been satisfied, then a visa should be granted. There are other factors to take into account, including an amount of visa application charge payable and whether or not the grant of the visa is prevented by operation of other provisions, neither of which are relevant in this instance. However, if under s.65 the Minister is not so satisfied, then the Minister should refuse to grant the visa (see s.65(1)(v)).
In relation to the determination of an applicant's score, s.93 provides as follows:-
“(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2) In this section:
‘prescribed’ means prescribed by regulations in force at the time the assessment is made.”
Regulations
Regulation 2.26 provides as follows:-
“(1A) This regulation applies to an applicant for an Independent (Migrant) (Class AT) or a Skilled - Australian-linked (Migrant) (Class AJ) visa.
(1) For the purposes of subsection 93 (1) of the Act (which deals with determination of an applicant's points score):
(a) each qualification specified in column 2 of an item in Part 1, 2, 3, 4, 5, 6, or 7 of Schedule 6 is prescribed as a qualification in relation to the grant, to the applicant, of a Subclass 105 (Skilled - Australian Linked) visa; and
….”
Regulation 2.27 provides:-
If:
(a) an applicant to whom regulation 2.26 applies (in this regulation called the applicant) does not receive the pass mark or pool mark (as the case requires) under that regulation; and
(b) the spouse of the applicant is an applicant for a visa of the same class;
the applicant is taken to have received the pass mark or pool mark (as the case requires) if the sum of:
(c) the points which the spouse could receive under Parts 1, 2 and 3 of Schedule 6; and
(d) the points which the applicant receives under Parts 4, 5, 6 and 7 of Schedule 6;
is equal to, or exceeds the pass mark or pool mark (as the case requires).”
It is noted that Regulation 2.26 and 2.27 both refer to Schedule 6 of the Regulations. Schedule 6 of the Regulations relevantly provides the following:-
| Column 1 | Column 2 | Column 3 |
| 6101 | The applicant: | 80 |
| (a) applies to enter Australia on the basis of an occupation: | ||
| (i) that is the applicant's usual occupation; and | ||
| (ii) that is a priority occupation; and | ||
| (iii) for which, in Australia, a degree, trade certificate, diploma, associate diploma or post-trade qualification is required or that is a professional-equivalent or technical-equivalent occupation; and | ||
| (iv) in respect of which, at least 3 years before the relevant application was made, the applicant: | ||
| (A) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or | ||
| (B) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or | ||
| (C) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and …. |
….
| 6103 | The applicant would meet the qualification specified in item 6102 except that: | 60 |
| (a) the applicant did not obtain or complete the qualification referred to in paragraph (c) of that item at least 3 years before the application was made; or | ||
| (b) the applicant was not employed in the occupation on the day that is 3 years before the application was made; or | ||
| (c) the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made |
….
| 6107 | The applicant: | 25 |
| (a) applies to enter Australia: | ||
| (i) on the basis of an occupation that is the applicant's usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and | ||
| (ii) as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and | ||
| (iii) as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; or | ||
| (b) has an occupation: | ||
| (i) that is the applicant's usual occupation; and | ||
| (ii) entry to which in Australia requires a degree, diploma, associate diploma or trade certificate; and | ||
| (iii) in respect of which the applicant has a degree, diploma, associate diploma or trade certificate, or possesses work experience, assessed by the relevant Australian authority as not equivalent to Australian Standards for that occupation |
It is noted from those regulations that the scheme of subdivision (b) of Division 3 of Part 2 of the Act is that the Minister must make an assessment of the prescribed points to be awarded to each prescribed qualification in relation to an applicant at the time when the assessment is made. So much is clear from s.93 of the Act.
I accept, as submitted by the respondent, that Regulation 2.26 set out above provides that for the purpose of a class AJ visa each qualification in column 2 of Parts 1-7 of Schedule 6 of the Regulations is a prescribed qualification, with the points prescribed in column 3. Parts 1-7 of Schedule 6 provide headings including Employment Qualification, Age Qualification, Language Skill Qualification, Relationship Qualification, Citizenship Qualification, Settlement of Sponsor Qualification and Location of Sponsor Qualification.
The scheme of Part 1 of Schedule 6 is that a visa applicant applies to enter Australia on the basis of an occupation that is the applicant's usual application, and that the applicant has obtained an educational qualification for and was employed in that occupation three years before applying for the visa and had been so employed for two out of the last three years before applying for the visa.
"Usual occupation" is defined in Regulation 2.26(5) of the Regulations as set out above. For present purposes the relevant period of time would therefore appear to be from 24 April 1995 up to the date of application, namely 24 April 1997.
It is noted that the form to be completed by a person seeking to migrate to Australia relevantly requires information including the completion of educational qualifications, employment history, occupation in which the applicant was employed on each occasion, and the applicant's usual occupation. An applicant achieves the "qualifying score" if he or she reaches the "pass mark" specified by the Minister under s.96 of the Act (see s.94(1) of the Act).
An applicant who receives less than the "pool mark" has not reached the qualifying score (see s.94(2) of the Act). The application of an applicant who does not meet the pass mark but reaches the pool mark is dealt with in accordance with s.95 of the Act. The pass mark at the time of the first MRT decision was 110 points and the pool mark was 105 points. At the time of the second MRT decision the marks were 115 and 110 points respectively. There is no dispute in relation to those points required.
Jurisdictional error
It is submitted and I accept that in this instance, unless the decision is vitiated by jurisdictional error, then it is a privative decision which cannot be reviewed by this court (see s.474 of the Act and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
The Tribunal's Second Decision
There is little doubt that the MRT has relied upon the application referred to earlier, which states that the usual occupation of the secondary visa applicant was "welder". Indeed, in the second application for review, the applicant further asserted that the secondary visa applicant's qualifications were "more than adequate to meet the appropriate requirements".
It is noted that the MRT was advised that another submission was being prepared to TRA. The MRT invited the applicant's comments, in a letter dated 4 December 2003, and sought those comments by 12 January 2004. That date was extended, at the request of the applicant, to 16 February 2004.
I accept that it was made clear that the MRT regarded the usual occupation of the secondary visa applicant as welder.
Further correspondence was received from the applicant's lawyers, seeking an adjournment of the hearing, which was granted.
Material was provided to the MRT in relation to the former employment of the secondary visa applicant, though it referred to "a period from 2 May to now". It did refer however to an unspecified source regarding the "welding" of ships. Reference was made in correspondence that the secondary visa applicant had "a reasonable chance of success as being recognised as a welder".
A further adjournment was sought by the applicant's lawyers on the basis that they had made an application for the secondary visa applicant's qualifications to be reassessed. An adjournment was granted to 1 June 2004.
Deferment of the handing down of the decision was sought, until a response was received from TRA. It is clear that the TRA classification referred to earlier in this judgment was provided to the MRT after the hearing, though before the decision was handed down.
In its decision dated 7 October 2004 the MRT, in deciding to affirm the decision under review, referred to no evidence having been provided that the visa applicant worked after 1995, and stated that it "continues to find that the visa applicant does not have a usual occupation" so that she was not entitled to any points for the employment qualification under Part 1 of Schedule 6 (Court Book page 109 at [38]).
The MRT referred to its previous conclusion that the secondary visa applicant's usual occupation was welder (ASCO code 4122-15) and to the TRA's assessment that he had not met the Australian trade standards for that occupation, before finding that he satisfied item 6107 and was entitled to 25 points for his employment qualification (Court Book 111 at [51]-[52]).
The MRT referred to the TRA having "now classified the secondary visa applicant's trade, training and experience as tradesperson and related worker as previously referred to in this judgment" but then went on to state that it had "already found his usual occupation as welder". He awarded the visa applicant a combined score of 80 points and found that she had not achieved the qualifying score.
The Application and the Applicant’s Submissions
In this matter the application merely includes a claim that "jurisdictional error in the decision, in that it was not made in accordance with the law". For present purposes and in the absence of any objection made by the respondent the Court was prepared to rely upon the applicant's contentions of fact and law, and in particular specific contentions set out in paragraphs 14 to 16, as providing particulars which the court accepted are particulars which would normally be subjoined to the claim of jurisdictional error in the application.
Those particulars effectively raise two issues relied upon as the foundation for this application. The errors have been appropriately identified in the respondent's contentions as follows:
a)in not making a decision but relying on "a finding of a previous tribunal" that the usual occupation of the secondary visa applicant was welder, for which his training and experience did not fit Australian standards, and
b)by not considering the most recent assessment of the TRA.
To understand the grounds it is necessary to note that the "most recent assessment of the TRA" is set out in a document dated 15 June 2004 (Court Book p.98) where the TRA states the following:-
“The processing of your pre-migration application skills assessment of your trade, training and experience, has been completed and you have been classified, for the purposes of migration to Australia, as an:
Tradesperson and Related Workers nec (4999-79)(sic)”
It is noted that in its decision the MRT refers to the TRA classification in the following paragraph when considering the occupation of the secondary visa applicant:-
“52.As the secondary visa applicant has a usual occupation with an entry level of a trade certificate and he has not met the Australian standards for that occupation, he would satisfy that criteria in Item 6107 of Part 1 of Schedule 6. Accordingly, the Tribunal finds that he is entitled to 25 points for the Employment Qualification under that item. TRA have now classified the secondary visa applicant’s trade training and experience as Tradesperson and Related Worker (ASCO code 4999-79) but the Tribunal has already found that his usual occupation is Welder.”
It is argued on behalf of the applicant that by simply referring to its earlier finding that the usual occupation of the secondary visa applicant is welder, that the MRT has fallen into error and should have acted upon, or at least considered, the more recent classification of the TRA set out in its correspondence dated 15 June 2004.
Essentially it is that classification which the applicant argues should have been the subject of a finding by the MRT in its second decision. Had it made that finding, then it is argued that the points score would rise to a level sufficient to meet both what are described as the pool and pass mark criteria.
The applicant relied upon two of the contentions which were taken to be particulars subjoined to the jurisdictional error ground in the application. In submissions before the court the applicant essentially argued that the MRT had fallen into error by not considering and/or applying the classification by the TRA. It further was argued in written submissions that the MRT did not make its own decision but relied on findings of a previous tribunal that the usual occupation of the secondary visa applicant was welder, for which his training and experience did not meet Australian standards.
As I understood it, however, the substantive complaint was the failure of the MRT to consider the most recent assessment by the TRA and/or excluding that assessment from its deliberations as a factor which should affect its determination.
The Respondent's Submissions
It was submitted on behalf of the respondent that the alleged error regarding a finding of usual occupation of the secondary visa applicant could not be sustained. It was argued that the MRT was not required to revisit its findings of fact as to the usual occupation of the visa applicant.
Specifically, it was submitted that the MRT was again dealing with an application which it had remitted to the Minister's Department, with a direction that the English proficiency criterion for the visa was satisfied, and that the MRT was inappropriately constituted by the same member.
Having already made a finding of fact as to the usual occupation of the secondary visa applicant and that that finding related to the period in the past, there was no necessity for the MRT to revisit its finding as to his usual occupation. Indeed, it was noted the applicant did not ask it to do so.
It was submitted that that finding, relating as it did to a period in the past, meant that it could not be affected by any evidence of employment of the secondary visa applicant since the MRT's first decision.
As noted earlier in this judgment, it was submitted by the respondent that the applicant's case before the MRT on both occasions, and in his application, was that his usual occupation was welder. It was submitted during the course of the hearing that there was no fresh or new evidence to suggest that the usual occupation of the secondary visa applicant was other than welder. The only material available to the MRT prior to the delivery of the second decision was the classification by the TRA.
It was submitted that it is for the MRT to make a finding of fact as to the usual occupation of the visa applicant and the secondary visa applicant. The role of the TRA under Schedule 6 of the Regulations, it was submitted, was to assess whether the qualification and/or experience of the secondary visa applicant were equivalent to Australian standards or his usual occupation.
It was argued that for the visa applicant to meet the qualifying score of a class AJ visa in the circumstances of her case, the MRT had to be satisfied that the usual occupation of the visa applicant or of the secondary visa applicant was an occupation in respect of which, at least three years before the relevant application was made, the applicant
·obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant authority to be equivalent to the Australian standards for the occupation, or
·completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation, or
·completed a combination of academic or professional study or trade training and work experience together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation.
It was submitted that unless fresh evidence was placed before the MRT, contrary to the applicant's own application in the case, then the usual occupation of the secondary visa applicant from 24 April 1995 to 23 April 1997 was not a welder. An assessment of the TRA of his qualifications and experience for some occupation other than welder was not relevant.
It was further submitted that a welder could not be classified as within the category of "tradespersons and related workers" not elsewhere classified in the trades in ASCO. Specifically it was submitted that a person whose usual occupation was a welder was excluded from that classification because ASCO in fact contained classification for welders.
According to the respondent's submissions it would be ‘fanciful’ to suggest that it would have been open to the MRT on the evidence before it to find (contrary to the visa applicant's own case) that the usual occupation of the secondary visa applicant was a tradesperson and related worker.
In relation to the alleged error in not considering the "most recent TRA assessment" it was argued that in fact the MRT did consider the most recent assessment, as set out in the reasons referred to earlier in this judgment. In any event, it was argued that it was not open to the MRT on the evidence before it to find, on the basis of the TRA classification, that the usual occupation of the secondary visa applicant was "tradesperson and related worker".
Accordingly, it was submitted on behalf of the respondent that the application should be dismissed with costs.
Reasoning
In my view the submissions made for and on behalf of the respondent are correct. A proper analysis of the legislation and regulations sets out a structure for consideration of an application of this kind. The legislative requirements, which provide a point system, clearly depend upon an assessment being made by the MRT of the usual occupation, in this instance critically of the secondary visa applicant.
In my view the mere fact that the MRT has been constituted by the same member who on an earlier occasion, based upon the claim and issues raised for and on behalf of the applicant, has made a finding that the secondary visa applicant's usual occupation was welder, does not preclude the MRT, constituted by the same person, relying upon that earlier finding of fact. Of course, the earlier finding of fact may be modified upon receipt of fresh evidence which the MRT might properly regard as relevant.
I do not regard the classification by the TRA - that is the most recent classification - as being relevant to the MRT's deliberations. Whilst the classification may indeed provide a different description of the work of the applicant, it should not necessarily follow that that becomes a relevant factor to be taken into account by the MRT.
When an applicant in the application refers to a usual occupation as ‘welder’ and then provides material in support of that claim, the MRT is entitled to draw a conclusion at any stage of its deliberations. In the absence of fresh evidence from the applicant or otherwise to the contrary, that finding of fact is a finding reasonably open to the MRT, based on the material then before it. The mere fact that there is a recent TRA assessment does not , in my view, alter the reasoning process of the MRT, nor ought it persuade the MRT to alter its earlier finding of fact.
Once having found the usual occupation as welder, then applying the relevant legislation and regulations, it is clear to me that there is indeed a specific occupation which would preclude the MRT applying the relevant law to consider placing the applicant in another category, namely tradesperson and related worker, specifically where that category provides the additional acronym of "NEC" which means "not elsewhere classified". In the present case the usual occupation found as a matter of fact as ‘welder’ is in fact a position elsewhere classified.
Once having been classified in that manner, that is having the usual occupation of ‘welder’, it is entirely appropriate for the MRT to then consider whether or not the qualifications of the secondary visa applicant for the position of welder are indeed qualifications which meet Australian standards. That fact‑finding process appears to me to be entirely appropriate.
Indeed, if the MRT were to simply substitute the TRA classification for its earlier finding, which had been based upon the claim and material presented by the secondary visa applicant, then effectively that would amount to a process which bypasses the requirements of the legislation and regulations. It would effectively mean that although a conclusion could be reached that the usual occupation is welder, then the subsequent more recent classification by the TRA would be substituted and, almost by what I would describe as a slight of hand, the applicant would be successful.
The result would be to ignore the claim as presented by the applicant and otherwise disregard the evidence and the conclusion reached by the MRT, which in my view was free of jurisdictional error. In those circumstances the MRT would embark upon a somewhat artificial process and would effectively relinquish its fact‑finding mission to the TRA. I accept the submission by the respondent that it is not the role of the TRA to determine the matter and that it is properly a matter within the power of the MRT.
I accept that the role of the TRA under Schedule 6 of the regulations is to assess whether the qualifications and/or experience of the secondary visa applicant were equivalent to Australian standards for his usual occupation.
The finding of fact by the MRT as to that usual occupation in my view in this instance is free of error. Accordingly it follows that the application should be dismissed with costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 19 September 2005
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