Prasad v Minister for Immigration
[2012] FMCA 57
•3 February, 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRASAD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 57 |
| MIGRATION – Migration Review Tribunal – Skilled Graduate (temporary) (Class VC) subclass 485 visa – whether MRT was in error to declare guidance in Policy Advice Manual as to the requirement that study be ‘closely related’ to the applicant’s nominated skilled occupation “unlawful” – whether MRT was in error to ignore guidance in Policy Advice Manual as to the requirement that study be ‘closely related’ to the applicant’s nominated skilled occupation – no error demonstrated. |
| Migration Regulations 1994, cl.1.1.15F, 485.213, 485.213(b) |
| Drake v MIEA (No.2) (1979) 2 ALD 634 Uddin v Minister for Immigration [2010] FMCA 553 Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 |
| Applicant: | SUNIL PRASAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 673 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 3 November, 2011 |
| Date of Last Submission: | 3 November, 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 3 February, 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A. J. Torbey & Associates |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 1 August, 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 673 of 2011
| SUNIL PRASAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Prasad seeks relief against an order of a Migration Review Tribunal which dismissed a review application by him against a decision of the Minister’s delegate to refuse him a Skilled Graduate visa.
Relevantly, to secure the grant of the visa, Mr Prasad needed to convince the Minister’s delegate, and the MRT on the review application, that he had studied a course that was “closely related” to the skilled occupation nominated by him in his visa application.
The issue to be determined in this case is whether the MRT denied itself jurisdiction by asking itself the wrong question when it came to consider if Mr Prasad’s Master of Business (International Hotel Management) was “closely related” to his nominated skilled occupation of Market Research Analyst.
For the reasons that follow I have come to the conclusion that it did not.
Some necessary facts
Mr Prasad is a citizen of India born on 25 January, 1974. On 6 March 2009 he applied for a Skilled Graduate (temporary) (Class VC) subclass 485 visa. For the purposes of that application he needed to nominate a skilled occupation. Mr Prasad stated that his nominated occupation was that of a Market Research Analyst.
One of the conditions that Mr Prasad had to satisfy to secure the grant of his visa was to be found in cl.485.213 of Schedule 2 to the Migration Regulations 1994. That clause required that:
a)Mr Prasad satisfy “the Australian study requirement” in the period of 6 months ending immediately before the day on which his application was made;
b)each degree, diploma or trade qualification used to satisfy “the Australian study requirement” be “closely related” to his nominated skilled occupation.
“The Australian study requirement” is defined in cl.1.15F of the Regulations. It is of no present importance except to note that to satisfy its requirements, Mr Prasad relied upon two courses of study. One was a Master of Business (International Hotel Management). The other was Master of Management (Marketing). The Minister’s delegate (and the MRT on review) both accepted that the Master of Management satisfied cl.485.213 in that it was “closely related” to his nominated skilled occupation.
However, on 10 November, 2009 the Minister’s delegate wrote to Mr Prasad seeking further information about how he contended that the Master of Business (International Hotel Management) was closely related to the nominated skilled occupation. Mr Prasad provided nothing in relation to that enquiry.
On 10 December, 2009 the Minister’s delegate refused Mr Prasad’s visa application. The visa was refused on the basis that the requirements of cl.485.213(b) had not been met because the Master of Business (International Hotel Management) qualification was not closely related to Mr Prasad’s nominated skilled occupation.
On 21 December, 2009 Mr Prasad applied for review of the Minister’s delegate’s decision. On 1 July, 2011 the MRT affirmed the decision not to grant the visa, as it was not satisfied that Mr Prasad met the requirements of cl.485.213(b), again because it was not satisfied that the Master of Business (International Hotel Management) was “closely related” to Mr Prasad’s nominated skilled occupation.
The Tribunal’s decision
The MRT referred to the Procedures Advice Manual used by the Department when considering visa applications. Relevantly, at the material time the PAM stated:
7.1 Purpose
The intention of the 'closely related' criterion in 485.213(0) is to support the policy objective that skilled migrants be ''job-ready'' for the Australian labour market and make a positive contribution to the Australian economy and society as soon as possible.
7.2 Closely related
The 'closely related' requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill sets underpinning the qualifications are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
Of that policy, the MRT said:
32. The applicant relies on the Departmental policy contained in PAM3 which refers to the qualifications being complementary and the applicant being ‘job-ready’. The policy states that the requirement is for the qualifications to be complementary to the nominated occupation and the issue is whether the skill set underpinning the qualification can be used in the nominated occupation. However, the Tribunal has formed the view that such policy does not reflect the wording of the legislation. The requirement in cl.485.213 is for the qualification to be closely related to the nominated skilled occupation. The term ‘closely related’ is not interchangeable with, nor necessarily consistent with, being complimentary or useful. It requires, in the Tribunal’s view a much stronger link between the academic qualifications and the occupation than merely being useful. In the Tribunal’s view, the policy does not adequately reflect the requirements of the legislation.
…
34. Where PAM3 ‘policy’ is not consistent with, or does not accurately reflect the regulation, the policy is unlawful and the regulation must prevail. (Alimi v MIAC [2007] FMCA 1520…)…
The MRT went on to conclude that Mr Prasad’s Master of Business (International Hotel Management) was not ‘closely related’ to his nominated skilled occupation.
To reach that conclusion, the MRT set out the objectives of the Master of Business (International Hotel Management) as obtained from the University of Queensland website ( The MRT, after setting out what it retrieved from the website said:
“These objectives seem to have very little, if any relationship to the occupation of a market research analysis.”
The MRT referred to the Australian Standard Classification of Occupations and recorded that the classification set out the tasks involved in the market research analyst occupation as follows:
a)Research as to potential demand and market characteristics for new products;
b)Collects and analyses population data and other statistical information;
c)Reports on the findings of research activities;
d)Composes advertising campaigns;
e)Analyses data regarding consumer patterns;
f)Interprets and predicts current and future consumer trends;
g)Liaises with clients regarding their information needs;
h)Isolates particular consumer markets for clients.
The MRT then went on to say:
“37. In the Tribunal’s view, these tasks have no close relationship to the hotel or hospitality industry or any other single industry. The occupation requires broader skills such as data collection and analysis, market research, reporting, etc. These broad tasks are not related to any particular field such as hotel management.”
…
42. The applicant has established, in the Tribunal’s view, that knowledge of a particular subject matter – in this case, the area of hotel management – will aid him in his employment as a market research analyst. The applicant argues that it is a legitimate practice to specialise in one area when working as a market research analyst and he referred to a number of job advertisements in organisations that specialise in that area of market research. However, in the Tribunal’s view, this goes no further than to establish that the knowledge and skills that the applicant acquired in his Master of Business course are useful to his work as a market research analyst. Being useful, however, is not sufficient.
43. The applicant referred to a number of subjects in his Masters course which he claims are very relevant to his nominated occupation he claims that he completed assessments in the fields of hotel management and market analysis which means that the two areas are closely related. However, it is not sufficient, in the Tribunal’s view, to say that a number of subjects undertaken in the Master of Management (SAL. Business) course may be used in the nominated occupation. Legislation requires consideration of the qualification as a whole and not individual subjects completed by the applicant as part of the course. The Tribunal is not satisfied that completing a number of subjects that may be considered to be useful in the occupation of market research analyst renders the qualification closely related to that occupation.
44. The applicant also refers, in his submissions of 24 June 2011, that the overall theme of the Masters course, rather than the individual subjects, is consistent with, and relevant to, his nominated occupation. The applicant referred to the content of the course and its relationship to the occupation of market research analyst. For the reasons stated above, the Tribunal does not accept that such relationship exists because the Tribunal has formed the view that the applicant’s claimed relevance to the hospitality industry is too narrow for the nominated occupation. The Tribunal reaches this conclusion while recognising, as noted above, that the industry may allow such specialisation and acknowledging that jobs are available in the particular field of market research on which the applicant relies.
Notwithstanding those matters, the MRT earlier found:
41. The Tribunal accepts that the applicant may wish to work as a market research analyst in the area of hotel management and that he may easily find a job in this field. However, the issue is not the applicant’s future or intended employment. It is his nominated occupation. This is made clear in Pasula. The applicant had nominated the occupation of market research analyst and not that of a market research analyst in the fields of hospitality or hotel management. The ‘closely related’ requirement applies to the nominated occupation as a whole and not to the occupation in which the applicant intends to engage in the future or an aspect of such occupation. The Tribunal must consider whether the Master course is closely related to the nominated occupation of the market research analyst and not to the more narrow specialisation of a market research analyst in the field of hotel management, as suggested by the applicant, even though the industry may allow for such specialisation to occur.”
Consideration
The MRT was entitled to disregard the guide and the material contained in it. I accept Mr Prasad’s contention that the following statement from Brennan P (as Sir Gerard then was) in Drake v MIEA No. 2 (1979) 2 ALD 634 at 648 is apposite:
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all in fulfilling its statutory function. In fulfilling its function, the Tribunal being independent of the Minister, is free to adopt reasoning entirely different from the reasoning that lead to the making of the decision under review. But it is not bound to do so.
I accept Mr Prasad’s submission that in determining that the policies set out in the guide was “unlawful” the MRT fell into error. But it matters not how the MRT chose to characterise the Policy. The MRT was not bound to apply it. The MRT was bound to come to its own conclusion about whether the Master of Business (International Hotel Management) was “closely related” to the nominated skilled occupation.
Mr Prasad submits that by concluding that the policy was unlawful and thereby rejecting a lawful approach found in the PAM it had “constricted” the question it had to ask itself and thereby asked itself the wrong question.
The MRT, however, stated the relevant regulation to be considered and, on more than one occasion, reminded itself that what was in issue was whether the Master of Business (International Hotel Management) was “closely related” to the nominated skilled occupation. The MRT determined that the phrase “closely related” required “a much stronger link between the academic qualifications and the occupation than merely being useful.”
In that respect, the reasoning adopted by the MRT reflected the reasoning that was expressly approved by this Court in Uddin v Minister for Immigration [2010] FMCA 553. In that case FM Raphael was faced with factual circumstances that were slightly different to those before me, although the visa condition under consideration in each case was that same. The Tribunal in Uddin came to the conclusion that the policy contained in the PAM as to how the phrase ‘closely related’ in cl.485.213(b) ought to be interpreted was “unlawful”. His Honour did not accept an argument that the Tribunal was in error to do so and pointed out at [9] that:
I would say that the Tribunal is entitled to arrive at its own definition of ‘closely related’ so long as it is not clearly wrong.
An appeal from the Federal Magistrate’s decision was dismissed: Uddin v Minister for Immigration and Citizenship [2010] FCA 1281. In dismissing the appeal North J recorded that the Tribunal had said:
The term ‘closely related’ is not interchangeable with, nor necessarily consistent with, being complimentary or useful. It requires, in the Tribunal’s view a much stronger link between the academic qualifications and the occupation than merely being useful.
Those words are precisely the same as those used in the MRT’s decision in this case and set out in paragraph 12 above. North J did not suggest that the approach was wrong.
Conclusion
The Tribunal identified the test that it had to apply. Characterising the PAM requirements as unlawful was probably an error, but the error had no effect upon the decision that was made on the review. The Tribunal did not “constrict” the question that it had to ask, but rather formulated its own view of what it was that the regulation required. It was entitled to do that and its approach was consistent with authority.
The conclusion that the Master of Business (International Hotel Management) was not closely related to the nominated skilled occupation of Market Research Analyst was a decision of fact by the MRT which was concluded against Mr Prasad.
No jurisdictional error is demonstrated. The application must be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 3 February 2012
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