Rahman, Mohammad Arifur v Minister for Immigration and Multicultural Affairs
[1997] FCA 282
•6 FEBRUARY 1997
CATCHWORDS
MIGRATION - Application for review of decision of delegate of Minister - application for visa - operation of points test - specification by Procedures Advice Manual criteria for occupation - whether error of law - role of Minister or officer of Department.
Migration Regulations - Regs 1.03; 2.26; Schedule 6.
MOHAMMAD ARIFUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 390 of 1996
Davies J.
6 February 1997
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 390 of 1996
)
GENERAL DIVISION )
)
BETWEEN: MOHAMMAD ARIFUR RAHMAN
Applicant
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
Coram: Davies J.
Date: 6 February 1997
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The decision rejecting the visa application be set aside.
2.The application be remitted for consideration according to the proper principles of law.
3.The respondent pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 390 of 1996
)
GENERAL DIVISION )
)
BETWEEN: MOHAMMAD ARIFUR RAHMAN
Applicant
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
Coram: Davies J.
Date: 6 February 1997
Place: Sydney
REASONS FOR JUDGMENT
This application seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs. A visa was sought in accordance with subclass 126 of the Migration Regulations, the grant of which turned upon the number of points which were attributable to the applicant in accordance with Schedule 6 to the Regulations. The part of the points test which is in issue is that part which turns on the occupation of the applicant. Schedule 6 provided, inter alia:-
"6102The applicant's usual occupation:
(a)....; and
(b) is an occupation:
(i)for which, in Australia, a degree or certificate is required; or
(ii)...
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)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
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or:
(iii)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
..."
Regulation 2.26 provided the following relevant definitions:-
"`trade certificate' means:
(a) an Australian trade qualification obtained as a result of the completion of:
(i)an indentured apprenticeship; or
(ii)a training contract;
that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:
(iii)part-time formal training at a technical college or a college of technical and further education; and
(iv)employment within the meaning of:
(A)an industrial award under a law of the Commonwealth or of a State or Territory; or
(B)a law of a State or Territory dealing with commercial or industrial training; or
(b)a qualification obtained outside Australia that is of an equivalent standard;"
"`usual occupation' means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa."
"`relevant Australian authority' means:
(a)NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or
(b)the Department of Industrial Relations; or
(c)if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister ..."
The acronym "NOOSR" stands for "National Office of Overseas Skills Recognition within
Education" and is so defined in Regulation 1.03. The other relevant part of Schedule 6 is para 6108, which required that:-
"6108The applicant has:
(a)an occupation that is the applicant's usual occupation; and
(b)has educational qualifications equivalent to 12 years of primary and secondary education in Australia "
There were occupations relevant to the applicant's claim and standards for those occupations which were set out in the Australian Standard Classification of Occupations dictionary, published by the Department of Employment and Industrial Relations and the Australian Bureau of Statistics. Relevant occupations in that dictionary were:-
"6505-11FORMAL SERVICE
WAITER/WAITRESS
Silver Service Waiter/Waitress
Serves food and beverages, in a formal dining setting, to patrons in hotels, restaurants, clubs and similar dining establishments.
SKILL LEVEL
Education and Training: a trade certificate.
DUTIES
Sets tables.
Presents menus to patrons and suggests dishes.
Answers questions regarding service and food preparation.Takes orders and relays them to kitchen or bar staff.
Carries trays or pushes carts to transport food and beverages to tables.
Garnishes dishes and carves meat.
Serves food from chafing or warming dishes at tables.
Attends to patrons to fulfill additional requests and ensure delivery of courses at appropriate times.
Presents bills to patrons and accepts payment.
Clears tables and returns dishes and cutlery to kitchens.
Removes linen and places it in containers for laundering."
"6505-15WAITER/WAITRESS (GENERAL)
Food Steward/Stewardess
Serves food and beverages to patrons in dining establishments.
SKILL LEVEL
On-the-Job Training: 1-6 months.
DUTIES
Sets tables.
Presents menus to patrons and answers questions regarding food preparation.
Takes orders and relays them to kitchen staff or bar attendants.Serves food and beverages.
Presents bills to patrons.
Clears tables and returns dishes and cutlery to kitchens.
May move and arrange tables and chairs.
May serve drinks."
Those paragraphs appeared in a group of which the opening words said:-
"The entry requirement for this unit group is a 20 week certificate or a 4 year trade certificate. 1-12 months on-the-job training is usual".
It will be noticed that the occupation of formal service waiter/waitress, in paragraph 6505-11, specifically required a trade certificate whilst the occupation 6505-15, for a waiter/waitress (general), contained no such requirement.
The matter became complicated when the Minister or an officer in his department apparently formed the view that some standards set out in the dictionary were obsolete. I draw that conclusion from what occurred and from paragraphs of a document headed "Migration Series Instruction", issued in a series which are called
"Procedures Advice Manual". Paragraphs 4.4.1 and 4.4.2 of the instructions issued on 1 June 1995 read:-
"4.4.1 The ASCO Dictionary is an important resource for the determination of skill level for the purposes of the points test. However, ASCO was not designed for this purpose and in some cases ASCO no longer reflects current occupational standards. Some further interpretation of skill level statements given in the ASCO Dictionary is required.
4.4.2 In cases where ASCO descriptions conflict with PAM 3 guidelines PAM 3 is to be given precedence. This is because PAM 3 is amended more frequently to take into account changing circumstances in industries and is designed to reflect standards for migration purposes."
The Procedures Advice Manual published the following ruling:-
"WAITER/WAITRESS
(Skilled: Silver Service)
Occupational Classification: ASCO 6505-11
(1)This document MUST be read together with PAM3: Sch6/Skills.
(2)The following guidelines do not cover the related occupations of:
.Supervisor, Waiter/Waitress ASCO 6505-01
. Drink Waiter/Waitress ASCO 6505-13
.Waiter/Waitress (general) ASCO 6505-15
The above occupations should be assessed using ASCO Dictionary guidelines.
1JOB DESCRIPTION
1.1 Skilled waiters/waitresses welcome patrons and silver serve food and beverages to tables in international standard restaurants. Silver service waiters/waitresses are highly skilled and should not be grouped with general food and beverage waiters.
...
3SKILL LEVEL REQUIRED FOR VISA PURPOSES
For the purposes of assessing skills, applicants are taken to have met the Australian standard for the occupation if they meet the requirements described in paragraphs 3.1 or 3.2 below.
Acceptable
3.1Applicants with:
. a trade qualification; and
.at least three years of post-trade experience in five star international class hotels or restaurants, including silver service experience.
3.2Applicants with:
.on-the-job-training, with at least five years experience, in five star international class hotels or restaurants, including silver service experience.
3.3Table cookery experience and conversational English is desirable. (emphasis added)
Unacceptable
3.4All other applicants."
The application for the visa lodged on behalf of the applicant by his solicitor contained the following information:-
"(c)Skills - the applicant is a qualified waiter. This occupation is listed at ASCO code 6505-11. PAM Schedule 6 Assessing authorities notes that your office should assess the applicant's skills using PAM guidelines. However these are discretionary and you must also have regard to the evidence produced.
The applicant worked at the Toledo Restaurant in Riyadh, K.S.A. from June 1990 until October 1994. His position here was that of waiter. We submit that whilst in this position he performed duties similar to those as set out by the ASCO code for this usual occupation. The applicant has also worked in restaurants in Australia. He has worked at Mario's Restaurant in East Sydney from May 1995 up to the present date and before that at the Bombay Tandoori Restaurant in Sydney, both of which are reputable international standard restaurants. We submit that the applicant has in excess of 6 years experience in his usual occupation.
The applicant will apply for a craft certificate in the trade of cooking from the New South Wales Commissioner for Vocational Training and this will be submitted to you on receipt.
It is our submission that the applicant should thus be allocated 70 points for skills as he has over three years experience including experience throughout the last three years - Regulation 6102."
Subsequently, there was supplied to the Department a Statement of Attainment in Food and Beverage Service from the New South Wales Technical and Further Education Commission, which showed that in 1995 the applicant had passed the subject, "Food & Beverage Service (BFB1-3)".
The decision-maker rejected the application, the crux of the reasons being set out in the following paragraphs:-
"The applicant's usual occupation has been classified as Waiter (General) (ASCO 6505-15).
According to the Procedures Advice Manual (PAM3), the Australian Standard Classification of Occupations Dictionary (ASCO) provides the guidelines for this occupation. While PAM3 is relevant for Formal Service (Silver Service) Waiters, the ASCO dictionary contains the guidelines for General Service Waiters.
The applicant has been assessed as a General Service Waiter as the evidence provided indicates that the applicant has never worked in an international five star hotel or restaurant."
The decision‑maker gave to the applicant a maximum of 20 points for the employment factor, applying paragraph 6108 of Schedule 6 on the basis that the applicant had a usual occupation and had educational qualifications equivalent to 12 years of primary and secondary education in Australia.
The action taken in the Procedures Advice Manual of specifying, for the purposes of decision-making, criteria for the occupation "waiter/waitress (skilled: silver service)", being the equivalent of ASCO 6505/11, was, in my view, flawed. It is not for the Minister or any member of his department to lay down what is the standard for a relevant occupation. If there is an occupation for which in Australia a trade certificate is required, it is plain that standards for that occupation will be laid down either in a document such as the dictionary or in other documents such as awards or in the publications of educational authorities. That is clear enough from the mere fact that the criteria of a trade certificate refer to an indenture apprenticeship or training contract required by state or territory industrial training legislation or a relevant federal state or territory industrial award. Documents such as that set out the requirements of the occupation and the training required for it, and it is not for the Minister or a member of his staff to determine for himself what is an occupation and what are the standards for that occupation.
It is also to be noted that the test of equivalence is a test which is to be considered in the first place by NOOSR or by the Department of Industrial Relations and, only if the circumstances of a case preclude one of those bodies from determining the matter, then by the Minister. By relying on the Procedures Advice Manual and by putting out of his mind the standard as set out in the dictionary, the decision‑maker made an error of law.
I have much sympathy for the decision‑maker. It seems to me that he might have said that, on the materials before him, he could not be satisfied that the applicant qualified as other than a "waiter (general)" which is defined in ASCO 6505/15. The decision-maker might also have said that, if the applicant wished to show that he qualified for some other occupation which was relevant, then it was up to the applicant to specify the relevant occupation which in Australia required a degree or trade certificate. The decision-maker may also have requested the applicant to demonstrate that a relevant authority, NOOSR or the Department of Industrial Relations, had determined that his, the applicant's, academic and trade training and work experience had been assessed to be equivalent to the Australian standard, or that there were circumstances which precluded those authorities from making that assessment and that the Minister must make the assessment for himself.
Clearly the approach taken on behalf of the applicant had been too simplistic.
However, I am of the view that the decision-maker approached the matter on the wrong footing, and therefore, the proper step is to set the decision aside and to remit the matter.
I do not suggest that it is for the Minister to work out all the problems. It is for the applicant to put forward a positive case, and that means identifying the relevant occupation and showing that the relevant authority has assessed the applicant's academic and trade training and work experience as being the equivalent of the Australian standard. However, I think that the matter must be approached on the correct basis and as it was not approached on that basis, the decision should be set aside.
Counsel for the applicant put forward the contention that the decision‑maker did not look at the substance of the matter, and should for himself have weighed up this question of equivalence; but I have already pointed out that the words "the relevant Australian authority" are defined, and the Minister is third in the list.
I should also make the comment that paragraph 6102 is very much concerned with an occupation which requires not merely experience but also trade training. I regard the definition of "trade certificate" as important, for it is looking at a situation where there has been quite a degree of study under an apprenticeship or a training contract.
Ultimately, the facts are for those who are going to determine the matter, and if it happens that the standard set out in ASCO 6505/11 is obsolete, and that there is some more up-to-date standard, then, of course, the consideration of the case will turn upon that current up-to-date standard and how the applicant's circumstances fit it.
Counsel for the Minister submitted that there was no inconsistency between the matters set out in the Procedures Advice Manual and those in para 6102 or between the Procedures Advice Manual and the occupation described in ASCO 6505/11. However,
the two descriptions of the occupation are inconsistent in that they are different. No doubt there is a good deal of overlapping between them but, nevertheless, the criteria which they specify are different and therefore there was inconsistency.
For those reasons I am satisfied that the decision should be set aside with costs. The matter will be remitted for consideration.
I certify that this and the preceding 9 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.
Associate:
Date: 6 February 1997
Counsel for the applicant: C.R. de Robillard
Solicitors for the applicant: Parish Patience Solicitors
Counsel for the respondent: L. McCallum
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 6 February 1997
Date of judgment: 6 February 1997
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