RAZZAQ v Minister for Immigration
[2019] FCCA 2531
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAZZAQ v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2531 |
| Catchwords: MIGRATION – Temporary Graduate (Class VC) (Subclass 485) visa – decision of Administrative Appeals Tribunal – whether Tribunal failed to take into account relevant considerations – whether Tribunal erred in concluding course of study was not “closely related” to occupations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15F, cll.485.221, 485.222 of sch.2 |
| Cases cited: 0807011 [2010] MRTA 1555 (1 July 2010) Bala v Minister for Immigration & Border Protection [2019] FCA 600 Minister for Immigration & Border Protection v Dhillon [2014] FCAFC 157 |
| Applicant: | AAMIR RAZZAQ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 622 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 16 August 2019 |
| Date of Last Submission: | 16 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The applicant’s application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 622 of 2018
| AAMIR RAZZAQ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 19 November 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 31 October 2019.
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Temporary Graduate (Class VC) (Subclass 485) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court has before it a Court Book (“CB”) comprising 110 pages which has been marked as Exhibit 1. It also has the applicant’s application, his affidavit sworn 16 November 2018 and the Minister’s outline of submissions filed 8 July 2019. The Court has read and reviewed each of these documents in preparation for the hearing of this matter.
Background
The Minister’s submissions at [3]-[9] accurately summarise the factual background to this matter. The Court is satisfied that, on the basis of the materials in the Court Book, the Minister’s submissions identify the key aspects of the history of this matter. The Court adopts the summary provided. It provides as follows.
The applicant is a citizen of Pakistan who arrived in Australia on 16 February 2011 on a Student (Temporary) (Class TU) (Subclass 572) visa (CB 55). Over subsequent years, the applicant completed courses in business, bricklaying/blocklaying, management, marketing and work health and safety (CB 37-38 and 50-53).
On 6 September 2016 the applicant applied for a graduate visa to the former Department of Immigration and Border Protection, nominating bricklayer as his occupation (CB 1-38).
On 6 January 2017 a delegate of the Minister refused to grant the applicant a graduate visa on the basis that the applicant did not satisfy cl.485.222 to sch.2 to the Migration Regulations 1994 (Cth) (the “Regulations”) as the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to the applicant’s nominated occupation (CB 67-72).
On 24 January 2017 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 73-74).
On 22 August 2018 the applicant was invited to a hearing before the Tribunal (CB 79-82).
On 19 October 2018 the applicant’s migration agent provided written submissions to the Tribunal (CB 83-93).
On 31 October 2018 the applicant appeared before the Tribunal to give evidence and present arguments (CB 95-97). On the same day, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 101-105).
Tribunal’s Decision
The Tribunal’s decision is at Court Book pages 101-105. The applicant appeared before the Tribunal on 31 October 2018. His hearing concluded at 2.50pm. The Tribunal made the decision the subject of this appeal at 4.19pm.
The decision is 19 paragraphs long. The Minister’s submissions at [14]-[20] again accurately summarise the Tribunal’s decision. The Court will adopt this summary as its own. It provides as follows.
The Tribunal explained that the issue before it was whether the applicant met the primary criteria for a graduate visa in the graduate work stream which had the requirements of cll.485.221 and 485.222 of sch.2 to the Regulations. These clauses required the applicant to have satisfied the ‘Australian study requirement’ in the period of 6 months immediately before the day the visa application was made (cl.485.221) and, secondly, that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation (CB 102 at [5]).
The Tribunal found that the only qualification the applicant completed in the six months before the visa application was made was the Diploma of Work Health and Safety and the applicant here relied on that qualification to meet the Australian study requirement. The Tribunal stated that it must consider whether the Diploma of Work Health and Safety is closely related to the nominated occupation of bricklayer (CB 102-103 at [8]).
The Tribunal considered the applicant’s written and oral evidence that he relied on the Diploma of Work Health and Safety to meet the Australian study requirement, that this qualification was related to bricklaying and that the skills attained were required to work as a contractor or subcontractor. The applicant claimed that the Diploma of Work Health and Safety consisted of nine competencies and that each equipped him to perform his job better, and he outlined the content of each competency (CB 103 at [9] and [11]). The applicant told the Tribunal that bricklayers worked on different sites and work health and safety was important to their work and to be able to manage other workers, and he gave examples of how work health and safety was important to the role of a bricklayer (CB 103 at [12]).
The Tribunal accepted that work health and safety was central to the work of a bricklayer, as well as many other occupations. However, the Tribunal observed that the Diploma of Work Health and Safety was not the qualification that taught the applicant how to apply work health and safety rules in his work environment. The applicant told the Tribunal that he learned these rules in his Certificate III in Bricklaying course and it was that qualification that enabled him to obtain the licensing or registration as a bricklayer. The Diploma of Work Health and Safety, on the other hand, was a broader course that was not designed for any specific industry but rather provided students with higher level knowledge of implementing the work health and safety rules in a work environment (CB 103 at [12]).
The Tribunal considered the website of the institution that awarded the applicant the Diploma of Work Health and Safety. From this, the Tribunal formed the view that the qualification was designed for those seeking to work in the field of work health and safety and not those applying work health and safety as part of their normal duties in a trade occupation (CB 103-104 at [13]-[14]).
The Tribunal considered the tasks performed by bricklayers in Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) and stated that, while it accepted that the applicant applied work health and safety rules in his work as a bricklayer, it had formed the view that the Diploma of Work Health and Safety was a qualification that, as a whole, was designed for an entirely different purpose. The tasks performed by bricklayers, according to ANZSCO, did not require assessment and implementation of work health and safety practices in the workplace, consultation about work health and safety processes, management of risks and hazards, investigation of incidents and so forth. The work health and safety that formed part of the job of a bricklayer was not what the Diploma of Work Health and Safety course aimed to teach. The Tribunal did not accept that the Diploma of Work Health Safety was closely related to the occupation of a bricklayer (CB 103-104 at [15]-[16]).
Accordingly, the Tribunal was not satisfied that each degree, diploma or trade qualification used to satisfy the Australian study requirement was closely related to the applicant’s nominated occupation and that, as a result, the applicant did not meet cl.485.222. The Tribunal affirmed the delegate’s decision not to grant the applicant a graduate visa (CB 105 at [17]-[19]).
Proceedings in this Court
The application for judicial review contained two grounds as follows:
1. The decision of the tribunal dated 31/10/2018 is affected by jurisdictional error because the tribunal failed to take in to account a relevant consideration.
2. The tribunal failed to determine that the appellant does not meet the requirements of cl.485.222.
In an affidavit sworn by the applicant on 16 November 2018, the applicant stated:
1. That I am a citizen of Pakistan and I am currently residing in Australia at above address.
2. I am married and have three children and all members of my family live in Pakistan.
3. I applied to department of home affairs (then department of immigration and border protection) for subclass 485 on 6th September 2016.
4. The delegate refused to grant visa because I did not satisfy the requirements of cl. 485.222 of schedule 2 of the regulations.
5. I then applied for review of the decision and it was affirmed by tribunal on 31st Oct 2018.
6. I am of the view that I meet the requirements by completing courses and they are closely related to each other. The contents of the course, Diploma of work health and safety, are related to my previous study which is Certificate III in Brick laying. It is always important for brick layer to follow work health and safety procedures at work place.
7. For the reasons above, I claim that AAT had made 'jurisdictional error' in deciding my visa application.
8. It is, therefore, request that the court order as requested in the application to which this affidavit is an attachment.
Despite an opportunity afforded by a registrar of this Court to file an amended application, supporting affidavits and an outline of submissions, the applicant filed nothing further in these proceedings.
At hearing the applicant appeared on his own behalf and Ms Anicic appeared for the Minister.
Noting the recent decision of Anastassiou J in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] which stresses that an unrepresented applicant ought to be given an opportunity to explain any concerns they have with the Tribunal’s decision, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16] [17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“SZMDS”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is strictly to determine if the Tribunal made a material error in arriving at the decision it has on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against that background, the Court asked the applicant to explain what he believes the Tribunal “did wrong”. Unfortunately, the applicant’s submissions pointed to no more than a disagreement with the Tribunal’s decision. In effect, he seeks merits review.
The applicant also referenced the decision of the Migration Refugee Tribunal in the case of 0807011 [2010] MRTA 1555 (1 July 2010). Regrettably, that decision did not assist the applicant in relation to the issue of jurisdictional error before this Court today. Decisions of this sort are fact specific. The decision the applicant relied upon simply reinforces the Minister’s position that each case must be assessed on the particular facts before the Tribunal and the evidence unique to each case.
As indicated, the submissions made were of limited assistance. They were, as explained to the applicant, directed at the merits of the decision. The Court cannot undertake a review of that sort. To the extent that the submissions can be seen in any way to tie to the grounds of review as articulated in the application or jurisdictional error generally, the Court will address them below.
Applicable legislation
Prior to considering the grounds of review, and whether the Tribunal fell into jurisdictional error, the Court will briefly outline the legislative framework that was applicable to the applicant, and in particular what was determinative of his application.
The determinative matter before the delegate and the Tribunal was cl.485.222 of the Regulations. This criterion was required to be satisfied at the time the decision was made on the applicant’s application. Clause 485.222 is as follows:
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The definition of “Australian study requirement” is found in reg.1.15F of the Regulations as follows:
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
In Minister for Immigration & Border Protection v Dhillon [2014] FCAFC 157 at [20] (Allsop CJ, Murphy and Pagone JJ) the Full Court said of the phrase “closely related”:
The words ‘closely related’ are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is ‘closely related’ to a nominated occupation does not require the finding of an exact correspondence between the two but it does require ‘that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists’: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26].
What is meant by “closely related” is a matter of fact for the Tribunal to determine. It requires an evaluative task and the Tribunal has a “wide scope” to determine if the relevant qualification is “closely related” to the nominated occupation: Singh v Minister for Immigration & Border Protection [2017] FCA 1108 at [34] (“Singh”).
Consideration
Ground 1
1. The decision of the tribunal dated 31/10/2018 is affected by jurisdictional error because the tribunal failed to take in to account a relevant consideration.
The Court notes the Minister’s submissions at [24]-[31] as follows:
24. The applicant has not identified the relevant consideration that the Tribunal has failed to take into account.
25. It is submitted that the Tribunal took into account the mandatory relevant considerations. In this proceeding, those mandatory relevant considerations, which were also determinative, were contained in clauses 485.221 and 485.222 of schedule 2 to the Regulations. As explained above, those clauses required:
25.1.that the applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the visa application was made, and
25.2.that the diploma used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
26. The Tribunal assessed the applicant’s study history and the applicant’s oral and written evidence, and found that the applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the visa application was made through completion of a Diploma of Work Health Safety.
27. Having found that clause 485.221 was satisfied, the Tribunal turned to clause 485.222 and considered whether the diploma used to satisfy the Australian study requirement was closely related to the applicant’s nominated skilled occupation.
28. The diploma used to satisfy the Australian study requirement was the Diploma of Work Health and Safety, and the applicant’s nominated skilled occupation was bricklayer.
29. In making its assessment, the Tribunal considered the Diploma of Work Health and Safety, the applicant’s oral and written evidence, the whole of the ANZSCO entry for bricklayer, and the website of the education institute that awarded the applicant his Diploma of Work Health and Safety.
30. Having assessed this evidence, the Tribunal considered that the Diploma of Work Health and Safety was a qualification that, as a whole, was designed for those seeking to work in the field of work health and safety, and not those applying work health and safety as part of their normal duties in a trade occupation. Having made this finding, the Tribunal concluded that the Diploma of Work Health and Safety was not closely related to the occupation of a bricklayer.
31. The Tribunal did not fail to take into account any relevant consideration. Accordingly, this ground cannot succeed
The Court agrees with the content and argument in these submissions.
As correctly identified by the Minister, the applicant has failed to identify what relevant consideration was not taken into account. At hearing the Court asked the applicant what was “not considered”. Regrettable, the applicant’s submissions did not address anything that appears to have been incorrect. In effect, he simply disagrees with the way the Tribunal “considered” his circumstances.
Having analysed the Tribunal’s decision in detail, the Court concludes that the Tribunal correctly referred to the correct visa class and expressly identified the primary criteria the applicant was required to satisfy, being cll.485.221 and 485.222. These were the mandatorily relevant considerations that the Tribunal needed to address.
It can also be said that The Tribunal’s approach was methodical.
The Tribunal identified what occupation the applicant had nominated as namely, that of bricklayer: CB 102 at [7].
The Tribunal then referred to the applicant’s evidence in relation to the qualifications he had completed and determined what qualification or qualifications met the criterion of cl.485.221 (specifically, the qualifications completed in the six months prior to the application).
The only qualification that met the criterion was the Diploma of Work Health and Safety.
The Tribunal then proceeded to determine if cl.485.222 was met.
In doing so, the Tribunal referred to submissions made by the applicant’s agent prior to the hearing and the submissions and evidence made by the applicant at the hearing (including his evidence that that he learned how and what work health and safety rules to apply in in the brick laying work environment in relation to his Certificate III in Bricklaying course and that it was that qualification that will enable him to obtain the licensing or registration he requires as a bricklayer). The Tribunal also had regard to the course description of the Diploma and the tasks performed by a bricklayer as provided by the ANZSCO.
Having taken into account all of this evidence and the submissions in consideration of whether he met the requirements of the mandatorily relevant consideration in cl.485.222, the Tribunal made the finding it made that the applicant did not meet the clause relevant to the visa.
On the basis of what was assessed and what was analysed (in forensic detail), it cannot be said here that the Tribunal failed to consider anything.
Accordingly, ground 1 must be dismissed.
Ground 2
2. The tribunal failed to determine that the appellant does not meet the requirements of cl.485.222.
The Court notes the Minister’s submissions at [33]-[39] as follows:
33. Clause 485.222 implicitly imports the requirement that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists. The relationship cannot be satisfied by asking whether some of the subjects studied in the applicant’s course of qualification are closely related to the nominated skilled occupation, or some part of it.
34. As stated in the Full Court of the Federal Court decision of Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525, the task to be undertaken to determine whether a qualification is closely related to a nominated occupation does not require the finding of an exact correspondence between the two but it does require that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists: at [20].
35. The relationship between the qualification and occupation must be one which is more than complementary and more than one in which the qualification is useful to the occupation.
36. The Tribunal’s task involved an evaluative exercise. Reasonable minds might differ on whether a qualification and an occupation are closely related and the Tribunal has a wide scope to determine that question.
37. As outlined in relation to ground 1, the Tribunal informed itself about the nature of the skilled occupation of bricklayer by considering the ANZSCO entry and compared that with the course content submitted by the applicant for the units undertaken by him in the Diploma of Work Health and Safety. The Tribunal accepted that the applicant applied work health and safety rules in his work as a bricklayer, however, it had formed the view that the Diploma of Work Health and Safety was a qualification that, as a whole, was designed for an entirely different purpose. The tasks performed by bricklayers, according to ANZSCO, did not require assessment and implementation of work health and safety practices in the workplace, consultation about work health and safety processes, management of risks and hazards, investigation of incidents and so forth, which were competencies the subject of the Diploma of Work Health and Safety.
38. The Tribunal concluded that the Diploma of Work Health and Safety was designed for those seeking to work in the field of work health and safety, and not those applying work health and safety as part of their normal duties in a trade occupation and that, accordingly, the diploma was not closely related to the applicant’s nominated skilled occupation.
39. The Tribunal’s reasoning is in accordance with the case authorities described above. The Tribunal’s finding was open on the material before it. It cannot be described as illogical or irrational in the sense that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence.
(References omitted)
The Court agrees with these submissions and notes further that the applicant is simply asserting that the Tribunal erred because, in effect, he disagrees with its findings.
Based on all of the evidence and materials before it, the Tribunal formed the view that the Diploma was not “closely related” to the applicant’s nominated occupation.
That was a finding for the Tribunal to make. The reasons the Tribunal gave were entirely logical and open to it.
The important parts of the Tribunal’s findings in this regard are at [12]-[14] and [16]:
12. The applicant told the Tribunal that bricklayers work on different sites and work health and safety is important to their work and to be able to manage other workers. The applicant gave examples of how work health and safety is important in his role as a bricklayer. The Tribunal accepts that this it the case and the Tribunal accepts that work health and safety is central to the work of a bricklayer, as well as many other occupations. However, the Diploma of WHS is not the qualification that taught the applicant how to apply work health and safety rules in his work environment. The applicant told the Tribunal that he learned these rules in his Certificate III in Bricklaying course and it is that qualification that enable him to obtain the licensing or registration as a bricklayer. The Diploma of WHS, on the other hand, is a broader course that is not designed for any specific industry but rather provides students with higher level knowledge of implementing the work health and safety rules in a work environment.
13. The Kingdom Institute of Management provides the following information on its website ( about the Diploma of WHS:
Diploma of Work Health and Safety course develops the skills and knowledge required to work as a WHS practitioner in a wide variety of work health and safety contexts.
14. The website further states that graduates of this qualification would be able to seek employment as WHS Coordinators or Health Safety Managers. Thus, the Tribunal has formed the view that the qualification is designed for those seeking to work in the field of work health and safety and not those applying work health and safety as part of their normal duties in, for example, a trade occupation.
…
16. Thus, while the Tribunal accepts that the applicant applies work health and safety rules in his work as a bricklayer, the Tribunal has formed the view that the Diploma of WHS is a qualification that, as a whole, is designed for an entirely different purpose. The tasks performed by bricklayers, according to ANZSCO, do not require assessment and implementation of WHS practices in the workplace, consultation about WHS processes, management of risks and hazards, investigation of incidents, etc. The wok health and safety that forms part of the job of a bricklayer is not what the Diploma course aims to tach. The Tribunal does not accept that the Diploma of WHS is closely related to the occupation of a bricklayer.
Having assessed the Tribunal’s decision as a whole, the Court is not satisfied that there was anything unreasonable or illogical in the Tribunal forming the view that the Diploma of Work Health and Safety was not “closely related” to the nominated occupation of bricklayer.
The above extracts clearly demonstrate that the Tribunal had regard to the materials before it and was satisfied that the Diploma was designed for an entirely different purpose. Further, the competencies the applicant studied (CB 85-89) were not included in the tasks performed by bricklayers as outlined in ANZSCO. The Tribunal also noted that the applicant’s own evidence was that he learned how to apply work health and safety rules in his work environment in studying the Certificate III Bricklaying course, not the Diploma.
While it may be that a different Tribunal member would have found differently or, indeed, that this Court might have found differently, that, unfortunately for the applicant, is not the test relevant to these proceedings. The Court can only look to the issue of jurisdictional error. Having done so, the Court is not satisfied that the Tribunal’s determination here that the applicant did not meet cl.485.222 was not open to it.
The Tribunal undertook a detailed evaluative task. The decision it arrived at did not exceed the wide scope it has in making a determination of the sort it made in relation to the issues relevant here: Singh. The view formed is not one that no rational and logical decision maker could have arrived at on the same evidence: SZMDS.
Further, it cannot be said that the Tribunal misapplied or misunderstood the task to be undertaken to determine if the diploma and occupation were “closely related”. The Tribunal compared the whole of the qualification. It noted at [9] that the applicant had outlined the content of each unit. The Tribunal clearly had regard to the course outline (see [12] and [13]) and compared this with the whole of the occupation (see [15]) to determine whether they were “closely related”: Constantino v Minister for Immigration & Border Protection [2013] FCA 1301 at [26] (“Constantino”).
The Tribunal appreciated that the Diploma in Work Health and Safety was useful, and that the applicant applies work health and safety rules in the occupation (see [12] and [16]). However, the Tribunal found that this was not sufficient. It found that the relationship between the Diploma and occupation must be one which is more than useful to the occupation: Constantino at [37].
In effect, the applicant is disagreeing with the Tribunal’s finding that he did not meet cl.485.222 of the Regulations. Unfortunately, while the Court sympathises with the concerns the applicant has raised today and recognises that his future will be now uncertain, it cannot be said that the reasons the Tribunal gave and the Tribunal’s understanding of the relevant legislation contains any error of the sort that this Court can address.
Ground 2, accordingly, is dismissed.
Applicant’s Affidavit.
It is noted that the applicant filed an affidavit to accompany his judicial review application. That affidavit contained 8 paragraphs.
Paragraphs [1]-[5] merely recount uncontested factual matters.
Paragraphs [7] and [8] also fail to establish jurisdictional error. Paragraph [7] refers back to the previous paragraphs as what he claims was the “jurisdictional error”. Paragraph 8 is no more that a plea for relief.
The only relevant paragraph that could be taken to be a ground of review is at [6], which is in the following terms:
I am of the view that I meet the requirements by completing courses and they are closely related to each other. The contents of the course, Diploma of work health and safety, are related to my previous study which is Certificate III in Brick laying. It is always important for brick layer to follow work health and safety procedures at work place.
Unfortunately, this ground again invites impermissible merits review. That the applicant believes he meets the requirements is not sufficient to suggest jurisdictional error. It was the Tribunal’s task to be satisfied the applicant met the relevant requirements. The Tribunal was not so satisfied having assessed all of the evidence before it.
The applicant’s affidavit fails to identify any jurisdictional error.
Conclusion
The Court is not satisfied that the applicant’s grounds in his judicial review application or affidavit identify any jurisdictional error. The Court is also not satisfied that there is, otherwise, any jurisdictional error on the face of the Tribunal’s decision.
Accordingly, the application must be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 September 2019
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