Robel v Minister for Immigration

[2005] FMCA 1154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROBEL v MINISTER FOR IMMIGRATION [2005] FMCA 1154

MIGRATION – Skilled-Australian Linked (Migrant) (Class AJ) visa – “usual occupation” – whether applicant’s education, training and work experience meet the definition of a dental hygienist or dental therapist as well as that of a dentist.

Migration Act 1958, s.359
Migration Regulations 1994, Regulations 2.26, 2.26(5)
Migration Regulations 1994, Schedules 2 and 6
Federal Magistrates Court Rules 2001, Rule 21.02(2)(a)

Minister for Immigration and Multicultural Affairs v Hu 79 FCR 309
Morais v Minister for Immigration and Ethnic Affairs (1995) 54 FCR 498

Applicant: DENA MARIE ROBEL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2579 of 2004

Judgment of: Nicholls FM

Hearing date: 5 April 2005

Date of Last Submission: 31 March 2005

Delivered at: Sydney

Delivered on: 30 August 2005

REPRESENTATION

Counsel for the Applicant: Mr. L. J. Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr. G. R. Kennett

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Migration Review Tribunal be joined as a party to these proceedings.

2. A writ of certiorari is to be issued quashing the decision of the Migration Review Tribunal made on 28 June 2004.

3. The matter be remitted to the Migration Review Tribunal, differently constituted, to redetermine the review application according to law.

4. The respondent to pay the applicant’s costs fixed in the amount of $5000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2579 of 2004

DENA MARIE ROBEL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 19 August 2004 seeking review of the decision of the Migration Review Tribunal, the second respondent, (“the Tribunal”) made on 28 June 2004 and handed down on the same date, to affirm the decision of the first respondent’s delegate made on 25 March 2002 to refuse Skilled-Australian Linked (Migrant)(Class AJ) visas to Mr. Lovel Oreas and his family. The applicant before the Court Ms. Dena Robel, is the sister of Mr. Oreas who was the primary visa applicant before the first respondent's Department and the Tribunal.

2. The relevant facts, which do not appear to be in dispute between the parties, are:

   1)On 23 September 1998 Mr. Lovel Oreas, a Philippines national, his wife and two children applied for “class AJ” visas to enter and remain Australia.

   2)The name of the class of this visa was at that time “Concessional Family”. It was subsequently changed to Skilled-Australian Linked visa.

   3)The statutory and regulatory regime relevant to this visa and in particular clause 105.222 of Part 105 of Schedule 2 of the Migration Regulations, requires an applicant for the visa to achieve a qualifying score when assessed under a points system pursuant to Subdivision B of the Migration Act, which provides for applicants for certain visas to be given a score based on points awarded for holding particular attributes or factors. This score is then compared to pool or pass totals, which are gazetted from time to time. The Migration Regulations set out the prescribed attributes and the points for each of these. Relevantly, Regulation 2.26 and Schedule 6.

   4)The application was first considered by relevant officers of the Australian Embassy in Manila and eventually Mr. Oreas received a letter dated 10 January 2000 (CB 88 to CB 89) advising that his “usual occupation” for the purposes of assessment pursuant to the points system outlined above had been assessed as a “dentist”. The letter invited Mr. Oreas to approach the appropriate assessing authority in Australia to have his qualifications assessed.

   5)On 10 July 2000 solicitors acting for the visa applicants wrote to the Chief Migration Officer at the Australian Embassy in the Philippines and relevantly submitted that it is possible for an applicant to have more than one usual occupation for the purposes of the statutory and regulatory regime, provided they meet the definition requirements of this term contained in the Migration Regulations.

   6)The visa applicant's application and that of his then wife, who had been assessed separately, was refused on 26 March 2002 by the Minister’s delegate. In relation to Mr. Oreas this was essentially because he took no action to obtain the assessment by the relevant Australian assessing authority and received no points for the employment factor relevant to the points test, and thereby failed to achieve a pass in the points test relevant to the class of visa for which he had applied (CB 106 to CB 109).

   7)On 20 May 2002 Ms. Robel represented by the family's Australian solicitors, applied for review of that decision with the Tribunal (CB 110 to CB 118).

   8)On 2 February 2004 the family's solicitor advised the Tribunal that Mr. Oreas and his wife had separated and that his spouse was no longer included in the application.

   9)In addition to the material on the Tribunal's file, and the first respondent's Departmental file, the Tribunal conducted a hearing on 3 February 2004 with the review applicant Mrs. Robel, her husband and their representative. The Tribunal's account of the hearing is set out at CB 201.4 (at paragraph 32) to CB 203.4 (at paragraph 41). Relevantly, the Tribunal recorded that the review applicant's representative referred to his submission to the first respondent’s Department of 11 July 2000, and to paragraph 11.7.1 in PAM (Procedures Advice Manual in the first respondent’s Department), and submitted that “the primary visa applicant could be regarded as having the usual occupation of dentist and dental therapist and dental hygienist”.

   10)On 4 March 2004 the Tribunal wrote to the applicant's solicitor with a copy sent to the applicant, now before me, advising that the Tribunal had considered the alternatives provided at the hearing and representations and materials before it and have considered the visa applicant's usual occupation to be that of dentist, and that Mr. Oreas needed to have his qualifications and experience assessed by the Australian Dental Council as the relevant Australian assessing authority. The Tribunal sought information pursuant to s.359 of the Act that Mr. Oreas had lodged his application for assessment or alternatively whether he did not wish to do so (CB 178 to CB 179).

   11)The applicant's solicitor responded on 31 March 2004 (CB 187), stating surprise that the Tribunal was only assessing the applicant as a dentist and not a dental hygienist or dental therapist. The solicitors submitted that there had been many decisions of the Tribunal which accepted that applicants could have contemporaneously more than one usual occupation. The solicitor sought clarification of the Tribunal's position.

   12)The Tribunal responded on 27 April 2004 (CB 188 to CB 189) providing an explanation for its view.

3. The application before the Court now is:

   “1. The second respondent committed jurisdictional error of law in that it:

   a. erred in its understanding of the term “usual occupation” in Reg. 2.26(5), in that it has failed to consider whether Mr. Oreas’s education, training and work experience meet the definition of a dental hygienist/therapist as well as that of a dentist’s.

   b.failed to ask the correct question in the circumstances of the applicant’s application to it, that being whether Mr. Oreas’ education, training and work experience meet the definition of a dental hygienist/therapist as well as that of a dentist.”

4. At the hearing before me, Mr. Karp appeared for the applicant and Mr. Kennett appeared for the respondents. Mr. Karp’s submission on behalf of the applicant is that the Tribunal failed to ask itself the critical question whether Mr. Oreas could be classified as a dental therapist and dental hygienist at the same time as being classified as a dentist. Mr. Karp submitted that the same person may have two occupations concurrently and that in failing to consider whether an applicant's circumstances may encompass more than one usual occupation at the same time the Tribunal failed to ask the right question and failed to take into account a relevant consideration. The proposition underlining the visa applicant's case is that a person, while doing the job which has a particular label can at the same time undertake duties associated with another job that may be different and therefore it would be incorrect to describe the visa applicant as having a single indivisible usual occupation. Mr. Karp points to:

   1)The submission to the first respondent's delegate of 10 July 2000 where solicitors for Mr. and Mrs. Oreas made clear their view that an applicant can be assessed against a number of usual occupations from concurrent circumstances.

   2)The information submitted in support of Mr. Oreas’s visa application that included:

   (a)At CB 174 a certificate from the Philippine Dental Association certifying that he had undertaken lectures on good oral health in school children in both private and public schools in which English was used as a medium of communication.

   (b)At CB 175 a certification from the Philippine Dental Association listing the tasks performed by Mr. Oreas, including items 1 to 4 and 12, which overlap between tasks performed by a dentist, dental hygienist and dental therapist.

   (c)At CB 176 a letter from the Executive Director of the Philippine Dental Association stating:

   “This will further certify that generally speaking the job of a dentist, dental hygienist and dental therapist does not differ in any way as far as duties and responsibilities are concerned.”

   3)A letter dated 31 March 2004 where the solicitors for Mr. Oreas stressed that in addition to the visa applicant undertaking the duties of a dentist he also undertook, at the same time, the duties of a dental hygienist and dental therapist. I note that this letter postdates the hearing before the Tribunal and reinforces the Tribunal's understanding as set out at CB 203.4, paragraph 41, that the applicant's representative at the hearing before the Tribunal referred to an earlier submission to the respondent's Department and submitted that Mr. Oreas “could be regarded as having a usual occupation of dentist, dental therapist and dental hygienist.” 

5. Mr. Karp stressed that this submission was clearly before the Tribunal, and the Tribunal was therefore required to address it. In support of this submission put before the Tribunal, Mr. Karp referred me to the definition of usual occupation in Migration Regulation 2.26 of the Regulations, and as set out by the Tribunal itself in its decision record at CB 119.5 at paragraph 16:

   “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.”

   Mr. Karp's submission was that the definition has nothing in it expressly limiting occupation to just one occupation during the period specified, and that in particular there is no qualifier such as predominant occupation or main occupation or even sole occupation. His argument was that the word “an” preceding “occupation” in the definition could be interpreted to mean one, or it could be one of several and submitted that this is the usual meaning of the word. When seen in its usual sense as a preposition “a”, or “an” in words beginning with a vowel, does not imply any limitation so as to mean one occupation. He gave a number of examples, of which a solicitor and migration agent doing the same job at the same time, as indeed he said his instructing solicitor was doing, could be seen as having two usual occupations contemporaneously. In all the examples, the critical point of his submission was that, the one aspect is not done to the exclusion of the other, and that it is done indivisibly and in that sense such persons have more than one usual occupation.

6. In looking at the Tribunal's analysis, beginning at CB to 207.2, paragraph 57, Mr. Karp submitted that the Tribunal made reference to the respondent's which contained a statement (at paragraph 11.7.1 of PAM 3) that a person can have more than one usual occupation over the necessary period. The submission was that there is nothing to stop the Tribunal considering that a person could have more than one usual occupation at the same time. He argues that the Tribunal's failure to consider the solicitor’s submission is that it went on to look at the general issue of definition of “usual occupation” in the context of part-time employment as shown in its restatement of the extract from PAM at paragraph 59. His argument then is that at paragraph 60 the Tribunal says:

   “Thus, an applicant employed in more than one position at any one time or whose duties, training and work experience in one position could be regarded as constituting more than one occupation, may have more than one ‘usual occupation’ for the purposes of the definition in sub-regulation 2.26(5).”

   This is put in the context of one person doing a number of occupations part-time over the relevant period, and is not directed to the circumstances put forward in this case, which is one person doing a number of usual occupations full-time, over the relevant period. That, while Mr. Oreas’s work could be described as a dentist, but that a significant part of his work was also to perform duties which are the equivalent to those of a dental therapist and dental hygienist. In not looking at this circumstance, Mr. Karp argues, the Tribunal has failed to give the term “usual occupation” its full meaning and that such a failure amounts to the Tribunal not having asked itself the right question and having failed to consider a relevant consideration. 

7. Mr. Kennett for the respondent submitted:

   1)That the Tribunal did not reject the submission that an applicant could hold more than one usual occupation at the same time. In this regard he submitted that the Tribunal’s statement at CB 207.7 at paragraph 60, irrespective of the argument that preceded it, stated a proposition as to the criteria applied, which reflects the criteria now said by the applicant that should apply.

   2)Mr. Kennett developed his submission that the Tribunal did encompass the proposition that an applicant could hold more than one usual occupation and referred me to paragraphs 51 to 54 (CB 205.4 to CB 206.7) of the Tribunal's decision record, where the Tribunal looked at the tasks involved in the occupation of dentist, dental therapist and dental hygienist.

   3)Mr. Kennett took me to paragraphs 64 to 66 of the Tribunal's decision (CB 208) and submitted that irrespective of what the Tribunal may or may not have been doing, in the previous paragraphs, that it is at these critical paragraphs where the Tribunal seeks to draw all relevant matters together and looks at the relevant circumstances to determine the usual occupation of the applicant:

   (i)At paragraph 64, the Tribunal looked at the applicant's educational qualifications and his membership of relevant associations and, professional associations.

   (ii)At paragraph 65, the Tribunal looked at specific clinics at which the applicant worked.

   (iii)At paragraph 66, the Tribunal formed a conclusion that the composite of duties, training and experience would be described in Australia as a dentist. The Tribunal then goes on to discuss the submission put to it about dental therapist or dental hygienist in the latter part of that paragraph and specifically noted that some of the visa applicant’s work included tasks that are included in the Australian description of the range of tasks performed by a dental therapist or dental hygienist. But, critically based its decision on the visa applicant’s oral evidence that he was performing these tasks as part of his work as a dentist.

8. Mr. Kennett's second submission was that, even if the Tribunal had taken the view that one set of duties only entail one usual occupation, then as a matter of law there would be nothing wrong with taking such a view. Mr. Kennett relied on the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v Hu 79 FCR 309 to support the proposition that the exercise required to be undertaken by the Tribunal in dealing with the identification for usual occupation of the purposes of Schedule 6 (General Points Test – Qualifications and Points) of the Migration Regulations, is one of characterisation, rather than dissection or description. That the exercise should not involve the Tribunal in looking at breaking down what the applicant does and then finding all the possible labels that could be applied to the various bits of it. Mr. Kennett referred me to Hu at 321, where the Court said:

   “It is implicit in this provision (in dealing with usual occupation) that the decision maker must identify the usual occupation of the applicant.”

   He submitted that this is put in the singular, consistent with his submission, and that it is a matter for the Tribunal to look at what a person does as a whole and not to break what a person does down into constituent tasks. He goes on to refer to the notation by Kiefel J. in Morais v Minister for Immigration and Ethnic Affairs (1995) 54 FCR 498, where Her Honour looked at the definition of “usual occupation” and that again the discussion was in the singular in relation to occupation. At 322 Her Honour says:

   "The occupation the regulation is concerned with is clearly not just any undertaking, pursuit or activity which occupies one's time, but one which has been pursued in the context of employment. An essential feature of such an occupation is the receipt of income or other form of reward, something given or acquired in exchange for the provision of skills or services. A person's occupation would, I consider, ordinarily be understood to refer to that employment, trade or business in which that person is habitually engaged and by which that person earns a livelihood or receives some form of remuneration ... The practical importance of this, in a regulation concerned, as it is expressed, with a person's suitability for employment in Australia in the event of migration is relatively clear. The mere holding of qualifications is not considered sufficiently indicative of prospective employment. The fact however that those qualifications and associated skills have been taken up in the market for them for the requisite period, that an employer or other party has been prepared to pay in some way for them, might furnish a more reliable indication. It may also be seen to overcome any need for an individual assessment of a person's ability to carry out the work, or of their skills."

   He argued that what the Full Court in Hu expressed difficulty with was that the delegate had concentrated exclusively on the tasks performed by the applicant, and not looked at other relevant factors, such as qualifications and history. The Full Court made the point that at 323:

   “…the word “occupation” does not have the same meaning as “job” or “position”. A person can engage in an occupation for a reward for a continuous period of six months with two or more employers. This suggests that the inquiry is to be broader than one that simply focuses on the task performed by the applicant in a particular job or position in which he or she has worked for a period of more than six months.”

   Mr. Kennett submitted that this tended to some degree to go against the proposition that one can discover a series of usual occupations in what a person does by breaking down the tasks that he or she performs as part of that work.

1. Mr. Kennett also sought to raise a third argument that was not put into written submissions, that even if a jurisdictional error could be identified, the application before the Tribunal was bound to fail in any event because there had been no assessment by the relevant Australian qualifications authority. Mr. Karp for the applicant sought to address this issue at the hearing before me and I provided him with an opportunity subsequent to the hearing to make any written submissions. In any event, the respondent subsequently advised the applicant and the Court that she no longer sought to press that argument and relied on the primary submission that the Tribunal did not commit a jurisdictional error.

2. I found Mr. Karp's submission, that the term “usual occupation” could encompass two or more usual occupations arising out of a contemporaneous set of circumstances, to be a strong one. Mr. Kennett's reliance on the case of Hu can be distinguished on the facts between what was before the Tribunal in that case, and the facts before the Tribunal in the case before me. In that case, the Tribunal had before it a sequential series of employment situations although there is an argument to say that the characteristics in one employment situation were also present in the other employment situation and were relevant in determining that there may have been two usual occupations over the relevant period. Further, what is important is that a Tribunal should go beyond just looking at the tasks performed and applying labels to these tasks. As the Court said in Hu at 322:

   “The delegate did not consider whether, by reason of the applicant's qualifications and experience, his usual occupation should be classified in some other way. A person's usual occupation is not to be determined solely by reference to a catalogue of duties performed for a particular employer within the period referred to in the definition, a comparison then being made between that catalogue and a description of duties for a particular occupation specified in ASCO.”

3. In the case before me, the Tribunal clearly found, and it is not disputed, that the visa applicant had essentially worked in the one set of employment circumstances for the relevant period. The Tribunal clearly postulates that there are circumstances where an applicant’s duty, training and work experience in one position could be regarded as constituting more than one occupation, and that there are circumstances where an applicant could have more than one usual occupation for purposes of the relevant definition. It is clear however, that in making this statement at paragraph 60, CB 207.7, the Tribunal had not set out any specific contemplation of the specific circumstances presented by the applicant. The Tribunal's examples at paragraphs 57 to 59, CB 207, looked at a situation of sequential, but different, employment and a situation of part-time employment. The Tribunal specifically excluded from this part of its analysis the applicant’s circumstances as relevantly not having changed over the two-year period preceding the visa application. Contrary to this however, the Tribunal, at paragraph 66, CB 208.5, does look at some of the tasks performed by the applicant as being tasks included in the ASCO description of dental hygienist or dental therapist, but rejected that the applicant’s usual occupation could also be a dental therapist or dental hygienist on the basis that the applicant was performing these tasks as part of his work as a dentist in sole practice and not as an associate or professional under the supervision or direction of a dentist. It was a finding that the applicant performed tasks in sole practice and not under supervision that led to the Tribunal concluding that the usual occupation of the primary visa applicant was as a dentist only.

4. The Tribunal had material before it, that is the ASCO code (paragraphs 52 and 53)(CB 205.8 to CB 206.6) to show that in Australia a dental hygienist and dental therapist would carry out their occupation under the direction or supervision of a dentist. But, the Tribunal also had before it evidence, which the Tribunal does not appear to have rejected, and which is referred to in the letter of 31 March 2004 to the Tribunal by the applicant's representative, that it is the usual practice for dentists in the Philippines to also undertake the duties of dental hygienist and dental therapist. I accept Mr. Karp’s submission that in considering the issue of usual occupation that there is a distinction between the way the work is carried out and what the work actually is. It is clear that on what was before the Tribunal the tasks that he carried out were that of dentist, dental hygienist and dental therapist. In the Philippines context he is able to carry out these tasks and be seen to be operating in some circumstances as a dental hygienist and dental therapist while still operating as a dentist in a sole practice. This is the import of the material and submissions that were put before the Tribunal. The Tribunal noted that there was some overlap in terms of tasks as between each of the three possible usual occupations. The Tribunal picked one occupation as the usual occupation, and excluded the others by looking at whether the applicant operated under supervision or not. The Tribunal did not ask itself whether the lack of supervision precludes the applicant from having a usual occupation as a dental therapist or a dental hygienist. Mr. Karp's submission, that the fact that he does tasks in a certain way cannot mean that the tasks were not carried out, is in my view correct. To determine as the Tribunal has done, that the tasks were not carried out in the context of being occupied as a dental therapist or a dental hygienist because they were done in a context of “without supervision”, ignores the fact that while it was not possible to do so in Australia, it was possible to do so in the Philippines. The Tribunal therefore was in error in not asking itself whether the lack of supervision in the Philippines context precluded this applicant from having the usual occupation as a dental therapist or hygienist in Australia. It made an assumption but the Tribunal did not go beyond this point. It did not examine the extent to which these tasks were carried out and whether or to what degree they could be characterised as forming part of the usual occupation of the applicant in all the circumstances of the visa applicant’s situation. It clearly looked at duties, training, qualifications and experience in the context of assessing the applicant as a dentist, but it did not undertake this task in assessing whether he could also be a dental hygienist or dental therapist. The Tribunal prevented itself from asking this question, and did not ask this question, because it took the view that as he was performing these tasks in sole practice that this meant that he could only have been working in the usual occupation of the dentist. This is an error on the part of the Tribunal in failing to ask itself a relevant question that was presented to it in the circumstances of the applicant before it, and on this basis the Tribunal decision should be quashed and the matter remitted to the Tribunal, differently constituted, for reconsideration.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date: 22 August 2005