SATHIAMOORTHY v Minister for Immigration

[2016] FCCA 2820

FEDERAL CIRCUIT COURT OF AUSTRALIA

SATHIAMOORTHY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2820

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (Class VB) (Subclass 885) (Skilled – Independent) visa – points test – whether it was open to conclude that the applicant was entitled to 15 points rather 25 points for English language skills – whether it was open to the Tribunal to conclude that the applicant was a fast food cook (unskilled) rather than a cook (skilled) – whether the Tribunal should have adjourned the hearing before it – whether the Tribunal made any jurisdictional error in relation to reasonableness.

Legislation:
Migration Act 1958, sub-div B, div 3, pt 2
Migration Regulations 1994, sch 2, sub-cl.885.221, pts 6B, 6B.3, rr.1.15C, 1.15D

Applicant: SREEDHARAN SATHIAMOORTHY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 2631 of 2014

Judgment of: Judge Riley

Hearing date: 2 August 2016 and 14 September 2016

Date of last submission: 14 September 2016

Delivered at: Melbourne

Delivered on: 4 November 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.

2. The application filed on 23 December 2014 be dismissed.

3. The applicant pay the first respondent’s costs, fixed in the sum of $9,517.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2631 of 2014

SREEDHARAN SATHIAMOORTHY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 (Skilled – Independent) visa. 

2. The applicant is a citizen of India.  In his visa application, the applicant nominated his skilled occupation as Software and Applications Programmer.

3. The applicant attended a hearing before the Tribunal.  A migration agent assisted the applicant at the hearing. 

4. The applicant brought the present proceedings and appeared at the two hearings before the court without the benefit of a legal practitioner.

5. Subclause 885.221 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) required the applicant to have a qualifying score when assessed under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (“the Act”).  That subdivision provided for a points system, whereby applicants are awarded a set number of points for each of certain prescribed qualifications.  The relevant qualifications and points were prescribed in Schedule 6B to the Regulations.  If an applicant achieved a score equal to or above the relevant pass mark, he would achieve the qualifying score.

6. For the visa sought by the applicant, he was required to have a qualifying score of 120 points.  The delegate found that the applicant had 105 points.  The Tribunal also found that the applicant had 105 points.

The Tribunal’s decision

1. There were 12 types of qualification prescribed in the present case.  The applicant accepted that the Tribunal properly assessed eight of them and disputed the Tribunal’s assessment of four of them.

2. The eight qualifications, and the points the Tribunal awarded for them, that the applicant accepted were as follows:

   a)Occupational qualifications  60 points

   b)Age qualifications  25 points

   c)Australian educational qualifications  5 points

   d)Designated language qualifications  0 points

   e)Study in regional Australia etc qualifications                   0 points

   f)Partner skill qualifications  0 points

   g)State or Territory nomination qualifications  0 points

   h)Designated area sponsorship qualifications  0 points

3. The four qualifications, and the points awarded for them by the Tribunal, that the applicant disputed were as follows:

   a)English language qualifications  15 points

   b)Specific employment qualifications   0 points

   c)Australian employment qualifications  0 points

   d)Occupation in demand qualifications  0 points.

4. The applicant said that, instead of the points awarded by the Tribunal, he should have received the following points for the following qualifications:

   a)English language qualifications  25 points

   b)Specific employment qualifications   10 points

   c)Australian employment qualifications  15 points

   d)Occupation in demand qualifications  15 points.

5. That would have given the applicant an extra 50 points, and would have enabled the applicant to comfortably achieve the qualifying score.

Grounds of application

1. The grounds of review set out in the application filed on 23 December 2014 are:

   Fact sheet 24 overview of skilled migration to Australia

   Employment as manager of Money Converters Pty Ltd

   Other attributes, skills

   Length of stay

   Psychological impact

   Social, economic, cultural and political contribution

2. Most of that appears to be an attempt to challenge the merits of the Tribunal’s decision.  As the court attempted to explain to the applicant at the hearing, this court is not permitted to provide merits review; it can only remit a matter if there has been jurisdictional error.

3. However, the mention of the employment as a manager at Money Converters is possibly a claim that the Tribunal failed to take into account a relevant consideration, being an aspect of the applicant’s employment history, and that could be a jurisdictional error.  This point is considered further below.

English language qualification

1. The written submission attached to the applicant’s affidavit affirmed on 23 December 2014, and filed at the same time as his application, addressed, among other things, the Tribunal’s award of 15 points for his English language qualification.  The applicant said he should have been given an additional 10 points, because he had worked in the film and television industry in Australia as an actor and director and had high level English language skills.  The applicant filed various other documents, affidavits and submissions that did nothing more than assert that he had high level English.

2. Under Part 6B.3 of Schedule 2 of the Regulations, and the relevant instrument, being IMMI 14/076, the applicant was entitled to 25 points if he had proficient English, as defined in r.1.15D, and 15 points if he had competent English, as defined in r.1.15C.

3. For proficient English, the applicant needed to have achieved a score of at least 7 in each of the four components of an International English Language Testing System test (“IELTS test”) or a score of at least B in each of the four components of an Occupational English Test (“OET”).

4. For competent English, the applicant needed to have achieved scores of 6 in each of the four components of an IELTS test, or at least B in each of the four components of an OET, or hold a valid passport issued by The United Kingdom, The United States of America, Canada, New Zealand or the Republic of Ireland.

5. The evidence showed that the applicant had an undertaken an IELTS test, but not an OET.  The applicant achieved 6.5 in each of the four components of the IELTS test.  He told the Tribunal that he had an Indian passport and no other passport.

6. Consequently, the applicant had competent English, as defined, but not proficient English, as defined.  The Tribunal was not able to give the applicant more than 15 points for his English language qualification.  There was no error of law in the Tribunal’s conclusion on this issue. 

7. In his oral submissions at the second hearing before this court, the applicant said that the Tribunal had expressed a personal view by saying that, in relation to English language proficiency:

   …the Australian door is very narrow and it’s not wider.

8. The applicant explained to the court that it was the personal view of the Tribunal member who heard his case that the Tribunal would only look at the matter narrowly.

9. What the Tribunal actually said is at line 475 and following of the transcript provided by the Minister, which is as follows:

   Because the definitions of competent and proficient English have very, they’re very specific.  So the only thing the Tribunal can do is consider a test score, or a passport.  A type of passport from a particular country.  Those are the only 2 things I can do.  So the door, when it comes to English, is very narrow.  It’s not as wide as you would like it to be.  And that goes for a lot of the things that you’re saying in your written submission.  I wish the door was wider, and the Tribunal (could) consider more things.  The door is in fact smaller in many of these cases, so you’ve got to get through that small door.  You can’t use a wider door to … (interrupted)

   … I could sit here and listen to your English and make up my own mind.  But the rules are that you need to demonstrate your English through one of these very specific ways.  Okay.

10. Clearly, the Tribunal member was not expressing a personal view that he would only look at the case narrowly.  In fact, the Tribunal member expressed a wish to be able to look at the case more beneficently.  However, the Tribunal said, correctly, that all it could do was apply the law, which the Tribunal member described as narrow.  There was no jurisdictional error in that.

11. Nor was there any denial of procedural fairness.  The delegate decided the issue on essentially the same basis as the Tribunal, so the applicant was well aware of the issues.  The Tribunal’s statement set out in the previous paragraph does not give rise to a bias point. I am unable to detect any basis on which it could be said that the Tribunal made any jurisdictional error in relation to the issue of the applicant’s English language qualification.

Specific and Australian employment qualifications  

1. It is convenient to deal with the applicant’s specific employment qualifications and Australian employment qualifications together. Schedule 6B allowed 10 points if:

   The applicant nominated a skilled occupation for which 60 points are available and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made[.]

2. Schedule 6B allowed five points if:

   The applicant has been employed in a skilled occupation for a period totalling, at least 36 months in the 48 months immediately before the day on which the application was made[.]

3. Schedule 6B allowed 10 points if:

   The applicant has been employed in Australia, in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made[.]

4. Schedule 6B also allowed 10 points if:

   The applicant has completed a professional year in Australia in the applicant’s nominated skilled occupation, or closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made[.]

5. The applicant lodged his visa application electronically on 10 March 2011.  The form asked (at CB11):

   Have you worked in an occupation on the Skilled Occupation List (SOL) for 36 out of the 48 months immediately before lodging this application?

6. The applicant responded “No”. The form also asked (at CB11):

   Have you been employed in Australia in your nominated occupation or a closely related occupation for 12 out of the 48 Months immediately before lodging this application?

7. The applicant responded, “No”. The form then said (at CB11):

   Applicant past employment

   List your employment for the last four years. Only past employment in occupations on the Skilled Occupations List (SOL) is relevant.

8. The applicant did not list any employment for the last four years.

9. The form also indicated (at CB13) that the answers the applicant had given showed that he would receive 90 points, which was insufficient to be granted a visa, and asked if he wished to continue with his application.  The applicant obviously did proceed with his visa application.

10. The delegate said in relation to the applicant’s specific employment qualifications:

    You have made no claims and provided no evidence that you were employed in a skilled occupation for at least 36 months in the 48 months immediately before applying for this visa and no points are awarded.

11. The delegate said in relation to the applicant’s Australian employment qualifications:

    You have made no claims and provided no evidence of having eligible Australian employment or of completing a Professional Year and no points are awarded.

12. The Tribunal sent the applicant letter dated 15 October 2014. It explained the need to have a qualifying score of at least 120 and provided a copy of Schedule 6B. It invited the applicant to provide information in writing that demonstrated that he had the appropriate qualifying score.

13. The applicant responded to that letter on 6 November 2014.  In relation to specific and Australian employment, the applicant provided evidence that Australia faced skills shortages in the IT and film and television industries.  He also said:

    I have skill in 261399 ERP softwares. I have three years Australian employment as client service representative in Global leading insurance company Allianz Global Assistance. Where I do duties on [a] daily basis in ERP systems

    ·Generating reports from SAP crystal reporting system.

    ·Analyzing, evaluating and processing medical bills and invoices in MIDAS ERP system.

    ·Checking claims progression in E5 financial and treasury application system.

    ·Updating customer detail in MIDAS ERP system.

    ·Using kronos global ERP workforce management solution to submit timesheets for payroll.

    At Dreamwear lnfotech, India I worked 3 years 12th may 2003 to 20th April 2006 as Business Analyst, where I did duties like

    ·Discussion, consultation with clients to identify client’s business requirements.

    ·Preparing project documents and training system users.

    ·Coding program in HTML, CSS and MYSQL.

    ·Testing and debugging HTML, CSS programming language.

    ·Helping project management team in project plan, cost and resource management.

    Also after completing my bachelors I was studying and doing 2 years part time as junior business analyst. I kindly request you; please consider me for 5 points for overseas experience.

    …

    I work as retail assistant in global hospitality leader Delaware north companies, Delaware north companies is a user of ERP systems. I worked in ERP information system vending machine in console operatorations.

    …

    Specific employment and Australian employement (Film and Televesion)

    Assistant Director – Doritos commercial (AFL superbowl competition)

    Stunt Director – “Devils poker” feature film (pilot)

    Stunt co-ordinator – “Run” short film

    Production Assistant – “Seaside destination” community Television series (pilot)

    Production Assistant – “shake paw” community Television series, C31, C44, Digital44

    Video editor – own videos and freelance

    …

    Contribution to Australian Television and film workforce

    Actor, Assistance director, production assistant and Stunt director

    Contribution to Australian Music workforce

    DJ, singer, dancer and Keyboard player

    Contribution to Australian Hospitality workforce

    Food and beverage attendant, food process worker, bar attentent and bar back

    …

    Political Contribution

    1.DJed at social and community events

    2.Middle easter doumbek drummer for multi-cultural functions

    3.Volunteer in federal and state election like door knocking, street campaign etc

    4.Booth volunteer and scrutineer on election days.

    (errors in original)

14. The Tribunal said in relation to the applicant’s specific employment qualifications:

    33.Points are available under this Part if the applicant has been employed in a skilled occupation or a closely related skilled occupation for at least 36 months in the 48 months before the visa application was made.

    34.The Part requires the tribunal to consider only a period of time which ended before the visa application was made on 10 March 2011.

    35.The applicant indicated in the visa application form that he had not worked in an occupation on the Skilled Occupation List for 36 out of the 48 months immediately before making the visa application.

    36.He also indicated that he had not been employed in the nominated occupation or a closely related occupation for 12 out of the 48 months before making the visa application.

    37.He listed no employment items in the ‘last four years’ prior to making the visa application in occupations on the Skilled Occupation List.

    38.In his Form 80, he listed the following under his employment history:

    a.Rider for Domino’s Pizza;

    b.Bar staff; and

    c.Retailer in a hospitality business from July 2007 to ‘Present’ (his Form 80 was signed in March 2011).

    39.In written submissions of 7 November 2014, he asserted that he had been:

    a.A ‘client service representative’ for Allianz Global Assistance insurance company (dates/periods unspecified); and

    b.A business analyst in India from 2003 to 2006 (a period of time which falls outside the period relevant to this part).

    40.In his written submissions of 7 November 2014, 10 points were claimed against this item.

    41.At hearing the applicant said that from 10 March 2007 to 10 March 2011 he worked at Domino’s Pizza as a driver, pizza maker, and sales console operator, he worked as bar staff in a bar, he worked in Delaware North as a food and beverage attendant, he worked in a car wash company, Rub n’ Tub, he worked for Future Entertainment as bar staff, he worked at Peter Erwin as a food and beverage attendant, he acted in a film where the filming took less than 2 months, and he was a volunteer for women’s rights, and he worked in food production on the production line and packing goods.  He said that was all he could remember.  He said he started working for Allianz in or around November 2011.  He was informed that was after the period relevant to the points test.  He said he was placed in universities and handled sales and client management of students taking out student insurance.

    42.At hearing the applicant was informed that to be relevant an occupation had to be a skilled occupation in relation to him, which meant that it had to be specified as a skilled occupation for him.  The above claimed occupations were put to him and it was suggested to him that they were not specified as skilled occupations.

    43.The tribunal referred to the applicant’s wide-ranging but unclear written statements as to his employment experience (from folio 58).  He was asked if he could identify a skilled occupation in which he was employed in the 48 months before the visa application was made on 10 March 2011.

    44.He said in 2008 he worked at Victoria University as a student guide helping in the enrolment process.  It was suggested to him that such an occupation was not on any of the skilled occupation lists, and unless he could point to an occupation on the skilled occupation list which he had performed in the 48 months before the visa application was made, he would not be entitled to any points.  The representative argued that working as a student guide required him to utilise skills.  The applicant said he was and DJ and also remixed music and created music.  The representative said he was an actor.  He said he also worked as a production assistant for a TV show.  He said he used software to create digital music and edit videos.  The applicant said he had also been a freelance HTML designer and video editor.

    45.The applicant was asked how many times he had been paid in the music-related roles.  He said he had been paid maybe 50 times as a DJ and as a music production assistant.  He said his work was mainly as a DJ and he got around $200 for four hours.  He said he had been a DJ 50 times for around 4 hours each time.  He said he had been a production assistant ten times and they paid $10-20 per hour and he had done maybe 40 hours of this job in total.

    46.He said he had been paid 15 times in video-related roles.  He said he used Adobe Aftereffects to edit videos.  He said on average he would be paid $100-200 a job and on average they would take 10 hours each.

    47.He said he had been paid two times in relation to HTML-related work.  He said in these two instances he was paid around $40 each time and he spent 30 minutes on each job.

    48.He was informed that there was no occupation on the skilled occupation list that would describe being a DJ or music production assistant.

    49.He was informed that his DJ work amounted to around 200 hours, his video work 150 hours, his HTML work around 1 hour, and his music production work around 40 hours.  In total, he was informed that was something less than 400 hours.

    50.He was informed that the definition of employed was at least 20 hours of remunerated work a week.  He was told that on this basis 12 months of employment would amount to around 960 hours of work over a 48 week period (making nominal deductions for annual leave).  It was suggested to him that even if taken together the applicant had [not] been employed in these occupations for at least 12 months and therefore no points could be awarded.

    51.He was informed that the tribunal could not identify any occupation that was a skilled occupation that could describe any of the jobs the applicant had done in the 48 months before he applied for the visa.

    52.The parties were asked if they could point to such a skilled occupation. The applicant spoke of the need to use skills as a driver for Domino’s Pizza.

    53.The representative argued that the applicant years working as a food and beverage attendant was relevant.  The applicant confirmed he served and sold food and drinks.  It was suggested that was not a skilled occupation as specified.  He said he also prepared burgers and kababs.  He said that involved planning and management and for example checking temperatures and hygiene tests, and placing orders for the next day.  He said the last place he worked was in Etihad Stadium where he cooked chips, kababs, burgers and calamari.  He was asked if he needed training for those tasks.  He said he did as the correct temperature and time was needed.   It was suggested to him that he was describing the occupation of a Fast Food Cook (ANZSCO 851111) which included many of the tasks that he described and that it was not specified as a skilled occupation.

    54.The applicant said he also worked [at] Southern Cross Station making kababs, salads, breakfast and burgers.  It was again suggested that was the job of a Fast Food Cook.  He was asked if there were any other jobs he wished to raise.  He said he worked at the Australian Open in a Malaysian outlet where rice and roti, pad Thai, noodles, and curries were sold.  It was again suggested that was the job of a Fast Food Cook.    He said he also made coffee.  He was told barista was not a skilled occupation.  He said that was all he had done in terms of hospitality.

    55.The tasks of a Fast Food Cook indicated by ANZSCO were read out to him:

    UNIT GROUP 8511 FAST FOOD COOKS

    FAST FOOD COOKS prepare a restricted range of foods in fast food establishments.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications outlined below.

    In Australia:

    AQF Certificate I, or compulsory secondary education (ANZSCO Skill Level 5)

    In New Zealand:

    NZ Register Level 1 qualification, or compulsory secondary education (ANZSCO Skill Level 5)

    For some occupations a short period of on-the-job training may be required in addition to or instead of the formal qualification. In some instances no formal qualification or on-the-job training may be required.

    Tasks Include:

    taking and serving food and beverage orders, and receiving payment from customers

    preparing food such as hamburgers, pizzas, fish and chips

    washing, cutting, measuring and mixing foods for cooking

    operating cooking equipment such as grills, microwaves and deep-fat fryers

    cleaning food preparation areas, cooking surfaces and utensils

    ordering and taking delivery of fast food ingredients

    may arrange delivery of prepared food and beverages

    Occupation:
    851111 Fast Food Cook

    851111 FAST FOOD COOK

    Prepares a restricted range of foods in a fast food establishment.

    Skill Level: 5

    Specialisation:

    Short Order Cook

    56.It was suggested to him that all of the roles he described seemed to be best described by the occupation Fast Food Cook.  The representative said that cooking curry was the job of a cook.

    57.On the evidence the tribunal is not satisfied the applicant has worked in the occupation of cook or another skilled occupation in hospitality, and finds he has worked in the occupation of fast food cook, which is not a specified skilled occupation. 

    58.On the evidence, and for the reasons above, the tribunal finds the applicant has not worked in a skilled occupation for 36 of the 48 months before the visa application was made.  Neither item 6B41 nor 6B42 are met.

    59.Therefore, the applicant is entitled to no points under this part.

1. The Tribunal said in relation to the applicant’s Australian employment qualifications:

   60.Points are available under this Part if the applicant has been employed, or completed a professional year (that is, a course specified in an instrument), in Australia in the nominated occupation or a closely related skilled occupation for a total of 12 months in the 48 months immediately preceding the visa application date.

   61.The Part requires the tribunal to consider only a period of time which ended before the visa application was made on 10 March 2011.

   62.The applicant indicated in the visa application form that he had not worked in an occupation on the Skilled Occupation List for 36 out of the 48 months immediately before making the visa application.

   63.He also indicated that he had not been employed in the nominated occupation or a closely related occupation for 12 out of the 48 months before making the visa application.

   64.He listed no employment items in the ‘last four years’ prior to making the visa application in occupations on the Skilled Occupation List.

   65.In his written submissions of 7 November 2014, 10 points were claimed against this item.

   66.The tribunal refers to the discussion at hearing concerning the applicant’s employment history and its findings above, and finds that the applicant had not been employed in the nominated occupation, a closely related occupation, or indeed any skilled occupation, for 12 of the 48 months before the visa application was made.  On the evidence, item 6B51 is not met.

   67.The applicant was asked if he had completed any of the professional year programs below which are specified in IMMI 08/074, and its successor, IMMI 12/029:

   a.Professional Year Program provided by the Australian Computer Society;

   b.Professional Year Program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia and the Institute of Public Accounting; or

   c.Professional Year Program provided by Engineers Australia.

   68.The applicant said he had not undertaken or completed any of these professional year programs.

   69.Item 6B52 is not met.

   70.Therefore, the applicant is entitled to no points under this part.

2. The applicant argued before this court that the Tribunal had misapplied the law, because he worked for Delaware as a cook, which is a skilled occupation, not as a fast food cook, which is not a skilled occupation.  This argument is at odds with the statements in the applicant’s original visa application form, and in his submission dated 6 November 2014, which indicated that he was a retail assistant for Delaware.

3. In any event, the Tribunal made a finding of fact that the applicant worked for Delaware as a fast food cook.  The court is not able to review a finding of fact on the merits.  The court could only disturb a finding of fact if there were a jurisdictional error involved in the finding, such as a misapplication of the law or a denial of procedural fairness. 

4. The written submission attached to the applicant’s affidavit sworn or affirmed on 23 December 2014, and filed at the same time as his application, said that:

   a)the hearing before the Tribunal was three hours long;

   b)the applicant was under enormous stress;

   c)he forgot to mention to the Tribunal his job as a credit manager at Money Converters from January 2010 until May 2011;

   d)his agent asked the Tribunal to give him some time to talk to the applicant but the Tribunal refused.

5. This was possibly a claim that the Tribunal unreasonably refused an adjournment to another day or a break in the hearing to allow the applicant to give instructions to his agent.  When the court asked the applicant why he had not brought documents to the Tribunal hearing about his employment with Money Converters, he said that he had not expected to need to show the Tribunal other areas of skilled work that he had undertaken.  The applicant also said that, if he had more time, he could have explained to the Tribunal more clearly about his cooking jobs.

6. The hearing before this court was adjourned to enable the applicant to obtain a transcript of the hearing before the Tribunal.  He provided a partial transcript as an exhibit to his affidavit sworn on 30 August 2016.  The Minister subsequently provided a transcript of the whole hearing before the Tribunal as an exhibit to the affidavit of Suzanne Porritt.

7. The Minister’s transcript shows that the hearing before the Tribunal began at 1:40pm and ended at 4:17pm.  That is two hours and 37 minutes.  This court frequently hears matters from 10am until 1pm without a break.  That is three hours.  In the normal course, a hearing of two hours and 37 minutes is not oppressive.  The applicant in this case has not pointed to anything that would suggest that, in his circumstances, a hearing of two hours and 37 minutes was oppressive.  I am not persuaded that there was any denial of procedural fairness in the hearing before the Tribunal proceeding for two hours and 37 minutes without a break.

8. The transcript provided by the Minister shows that:

   a)the Tribunal member discussed the points test, explained that Schedule 6B would apply and gave the applicant a copy of it;

   b)the Tribunal member identified that the applicant’s nominated occupation was software and applications programmer;

   c)there were various questions and answers;

   d)at line 2114, on page 36, the Tribunal may have been drawing the hearing to a close, but a “support person” asked if there was still time to ask the applicant about his hospitality work;

   e)the Tribunal asked the applicant what he wanted to say about that, and discussion on that topic followed;

   f)at line 2267 on page 38, the agent said:

   So I need to talk to the manager [of where the applicant worked] as I said before I say anything [inaudible]

   g)at line 2318 on page 39, the Tribunal said:

   Your agent said you wanted to have an opportunity for you to tell him what you have done.  Well I’m saving him the trouble.  I’m asking you what you’ve done.

9. The Tribunal did not give an adjournment to enable the agent to speak to the applicant’s manager and did not provide a break in the hearing to enable the applicant to speak to his agent. 

10. The Minister submitted that, even if an adjournment was sought, it was reasonably refused in the circumstances.

11. The starting point with reviews of decisions of the Tribunal is that it is for an applicant to make out his or her case.  The applicant should attend the hearing with all the material that he or she needs to persuade the Tribunal that he or she is entitled to the visa sought.  However, if the Tribunal raises a new issue at the hearing, it may be necessary for the Tribunal to give the applicant an adjournment to find additional material.

12. In the present case, the applicant said he was caught unawares during the hearing because he thought he had provided sufficient material to show he had the requisite amount of skilled employment.  He said he was surprised when the Tribunal said that his work with Delaware was not a skilled occupation, and when the Tribunal indicated that it did not accept that his other jobs were sufficient.

13. However, the Tribunal did not actually raise a new issue.  It simply rejected the applicant’s claims that his work history was sufficient.  The Tribunal does not need to give an adjournment every time it is unsatisfied by the claims of an applicant.

14. The need to provide detail of the applicant’s employment over the four years before he lodged his visa application was, or should have been, obvious to the applicant. Questions were asked about it in the visa application form. The electronic form told the applicant the information he had given was insufficient to qualify for the visa he sought. The delegate set out in detail what was required to satisfy the points test and told the applicant that the information he had given was insufficient. His agent, if he had properly advised the applicant, would have told him that his claims were insufficient to satisfy the points test. The Tribunal, on 15 October 2014, sent the applicant a letter enclosing a copy of Schedule 6B and asking him to say how he satisfied the points test.

15. In these circumstances, it was not unreasonable for the Tribunal to refuse an adjournment to enable the applicant’s agent to speak to his manager about the work he did, or to enable the applicant to speak to his agent during the hearing.  The applicant at the hearing was being asked about his own work history, which he should have been very well aware of.  It was incumbent upon him, and his migration agent, to come to the Tribunal hearing with a clear chronology of the applicant’s work history over the four years from 10 March 2007 to 10 March 2011, and with supporting documentation.  There was no jurisdictional error in not giving the applicant an adjournment in these circumstances.

16. I am unable to discern any misapplication of the law in relation to the Tribunal’s finding that the applicant’s work for Delaware was not skilled work, but was work as a fast food cook.  The Tribunal correctly identified the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) description of the work of a fast food cook.  There is no indication that the Tribunal misunderstood the ANZSCO description of the work of a fast food cook, or misapplied it, or misunderstood the applicant’s description of his work for Delaware.

17. I am unable to discern any denial of procedural fairness in relation to the Tribunal’s finding that the applicant worked as a fast food cook for Delaware.  The Tribunal read the ANZSCO description of fast food cook to the applicant during the hearing and sought his comments on it.  The applicant was well aware, or ought to have been well aware, of the requirements for the visa from the delegate’s decision, from the letter the Tribunal sent the applicant on 15 October 2014, and from the professional assistance provided by his own migration agent.

18. The Tribunal’s finding that the applicant worked as a fast food cook for Delaware does not seem to me to be unreasonable, in the legal sense. 

19. I am unable to discern any jurisdictional error in relation to the Tribunal’s finding that the applicant worked as a fast food cook for Delaware.

20. All in all, I am not persuaded that the Tribunal’s finding that the applicant worked as a fast food cook for Delaware can be disturbed by this court.

21. There does not appear to be any other basis on which the applicant could have been entitled to points for his specific and Australian employment, as disclosed to the Tribunal.  His work with Allianz occurred after his visa application was lodged, so it was outside the necessary time frame.  His work in the film and television industry and as a DJ did not add up to sufficient hours to meet the visa requirements, even if they had constituted skilled occupations.

22. It is possible that the applicant’s work with Money Converters would have entitled him to some points.  However, this court is not permitted to reassess the applicant’s points.  All the court can do is determine whether the Tribunal made a jurisdictional error on the material before it.  There was no such error.

Occupation in demand qualifications

1. Schedule 6B allowed 20 points if:

   The applicant:

   (a)has nominated a migration occupation in demand in his or her application; and

   (b)has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made; and

   (c)has an offer of full-time employment in that occupation in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made

2. Schedule 6B allowed 15 points if:

   The applicant:

   (a)has nominated a migration occupation in demand in his or her application; and

   (b)has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made

3. The applicant’s submissions in relation to this point were substantially the same as those made in relation to the specific and Australian employment qualifications.

4. The Tribunal said in relation to this issue:

   77.Points may be awarded under this Part if the applicant has nominated a migration occupation in demand (as specified in an instrument), and has been employed in that occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date. Additional points are available if the applicant has an offer of full time employment in certain organisations. 

   78.The nominated occupation is specified as a migration occupation in demand in IMMI 11/033, where the person specialises in certain software platforms.

   79.At hearing it was put to the applicant that his evidence suggested that he had not worked in any occupation specified to be a skilled occupation in the 48 months before he applied for the visa and if the tribunal found that was so, he would not be entitled to any points under this part.

   80.He spoke of the time and money he had invested in his life in Australia, and the importance he attached to staying on.

   81.The tribunal refers to the discussion at hearing concerning the applicant’s employment history and its findings above, and finds that the applicant had not been employed in the nominated occupation, a closely related occupation, or indeed any skilled occupation, for at least 12 of the 48 months immediately preceding the visa application date.

   82.Therefore, the applicant is entitled no points under this part.

5. I am unable to discern any jurisdictional error in the Tribunal’s handling of this issue.

Unreasonableness

1. The applicant also said at the second hearing before this court that the Tribunal’s decision was unreasonable because the Tribunal member said during the hearing that he was not sure about the purpose of the points test. 

2. The transcript of the hearing before the Tribunal shows that the member said at lines 2090 to 2106 on pages 35 to 36:

   Whether, no matter what it is, even if you say, even if it is a test of your suitability and even if you say, well, I don’t really, technically I don’t get those points because of these other reasons, but I am suitable and you can see that I’m suitable, so who needs a points test. It’s like saying, well if the Tribunal decides that you are a suitable person and you’re well integrated, then the Tribunal can say you don’t need to, to meet the pass mark. I don’t have that power. So it doesn’t matter what the purpose of the points test is, we have to go through the points test to get you to the other side. Ok? Now the purpose may be like what you’re saying, but either way you need to go through it. And when you go through it that is when each of these items is going to make or break you in terms of whether you get points or not. Ok? So we can talk about the purpose, I’m not exactly sure what the purpose is. But if you look at it, it favours those people who have been employed in skilled occupations and in particular in their nominated skilled occupation and it favours people who have a partner, who’s also applied for the same visa and has skills, and it favours people who have studied in regional Australia. It’s obvious that it favours those things because more points are available for those things.

3. Essentially, the Tribunal was saying that it had to apply the points test, because that is the law, whether the Tribunal member thought the points test was a good idea or not and whether the Tribunal member thought that there were better ways of assessing a person’s suitability for a skilled visa or not. 

4. The Tribunal was correct in saying that.  Regardless of the applicant’s abilities, as he did not satisfy the points test, the Tribunal could not allow him to have the visa he sought. 

No evidence

1. The applicant also submitted that the Tribunal had made its decision with no evidence.  When asked to explain, he said that the Tribunal had not taken into account his many years of good work in Australia.  The applicant also said, in Britain, you automatically become a citizen after 12 years without a visa.

2. These things do not suggest the Tribunal made its decision with no evidence.  In fact, the Tribunal had ample evidence to make its findings, being the applicant’s own statements to the Tribunal.

The fact sheet

1. The applicant exhibited to his affidavit sworn or affirmed on 10 August 2016 a fact sheet regarding skilled migration.  He said that the Tribunal member had probably not read it and had not followed it. 

2. The fact sheet is not law.  It is expressed in general terms and is an overview of the system.  The Tribunal was under no obligation to read or apply the fact sheet.  The Tribunal was obliged to apply the law, including the points test, and it did so.

Conclusion

1. All in all, I am not satisfied that the Tribunal made any jurisdictional error in this case.  Consequently, the application must be dismissed with costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     4 November 2016