Sharma v Minister for Immigration
[2018] FCCA 2534
•10 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2534 |
| Catchwords: MIGRATION – Application for judicial review – work visa – consideration of ‘skills, qualifications and employment background’ – no relevant work experience – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.457.223, reg.2.72 |
| Cases cited: Joshi v Minister for Immigrationand Multicultural and Indigenous Affairs & Anor [2005] FMCA 116 |
| First Applicant: | NEETU SHARMA |
| Second Applicant: | ARVINDER SHARMA |
| Third Applicant: | MEHAK SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 107 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $9,702.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 107 of 2017
| NEETU SHARMA |
First Applicant
| ARVINDER SHARMA |
Second Applicant
| MEHAK SHARMA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 23 December 2016. The Tribunal affirmed a decision of a delegate not to grant the applicants a temporary work (skilled) visa (subclass 457) (“work visa”).
The applicants in this matter are a family unit, the first and second applicants, the parents, and the third applicant, their child. The second and third applicants rely entirely on the claims of the primary applicant.
The relevant criteria for the work visa was contained in cl.457.223(4)(da) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which provides as follows:
The applicant meets the requirements of this subclause if:
…
the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation;
The definition refers to the ‘skills, qualifications and employment background’ necessary to perform the tasks of the nominated occupation. There is no specific threshold at a legislative level for the definition of these particular qualifications, skills or background, however, the Tribunal is able to be guided by the Australian and New Zealand Standard Classification for Occupations (“ANZSCO”) as and from July 2010.
The Tribunal in this case noted that a narrow matching process was not appropriate as is identified in the case law: see Joshi v Minister for Immigrationand Multicultural and Indigenous Affairs & Anor [2005] FMCA 116. The relevant definition in the ANZSCO guidelines is set out by the Tribunal at para. 12 of the decision as follows:
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
·erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering
·preparing surfaces by removing old paint and wallpaper, fixing woodwork,
·filling holes and cracks, and smoothing and sealing surfaces
·selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives
·applying paints, varnishes and stains to surfaces using brushes, rollers and sprays
·hanging wallpaper, matching patterns and trimming edges
·cleaning equipment and work areas
·may repair windows and replace glass in wooden and metal frames
·may lay and repair wall and floor tiles
Occupation:
332211 Painting Trades Worker
332211 PAINTING TRADES WORKER
Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required.
Skill Level: 3
Central to the definition is having carried out on the job training or work experience of at least two years (in the case of certificate 3 or certificate 4 holders) and three years in the case of persons with other certificates or no formal academic training.
The difficulty that confronted the primary applicant in this case was that she did not have any on the job training or work experience. This issue was clearly highlighted by the delegate when making the initial decision, as appears at Court Book p.80 where a summary of the qualifications was given including the references to on the job training. Further, at Court Book p.81 the delegate says:
The applicant did not indicate that they have at least two years of on-the-job training.
Ultimately, the applicants failed before the Tribunal on the same basis: that there was no satisfactory evidence of an appropriate amount of on the job experience or job training. The Tribunal, however, did specifically consider this and whether less formal equivalence of such training had occurred, saying at para. 18:
At the hearing the applicant confirmed her past employment and told the tribunal she was currently working in child care. She said that her nominating employer did not want her to start work until she could work fulltime. She claimed that she had undertaken some voluntary work as a painter however was very elusive as to dates and times and said she did not have any documents or other information in support of these claims. The tribunal attaches little weight to the applicant's unsupported claims in this regard, finding her evidence of her work experience vague and unconvincing.
The ultimate conclusion of the Tribunal is set out at paras. 31 and 32 which provide:
31. On this basis, in the context of this application, even if the applicant might be considered by virtue of the Certificate III and Diploma of Building and Construction to have the qualifications necessary to perform the tasks of the nominated occupation, the tribunal is not satisfied that she has the skills or employment background. The tribunal has taken into account the claim that clients of the applicant's representative have been granted subclass 457 visas with the same qualifications and no work experience however it can only deal with the facts and evidence before it. Contrary to the representative's claims, the tribunal's own inquiries did not reveal any decisions in which a person with the applicant's qualifications, without any (or very little) work experience, had been found to meet c1.457.223(4)(da).
32. On the evidence before the tribunal, the applicant qualified for a Certificate III in Painting and Decorating in 2013 and a Diploma of Building and Construction (Management) in 2015. While accepting that ANZSCO should not be rigidly applied, the tribunal notes that her painting qualification was completed over 3 years ago and she has not provided any supported evidence of any relevant work experience or on-the-job training. On this basis, and after considering the attributes and skills of the applicant and how (or whether) they are being applied in the workplace, the tribunal is not satisfied she has any relevant work experience or background as a Painting Trades Worker. For these reasons, the tribunal is not satisfied that the applicant possesses the skills, qualifications or employment background necessary to perform the tasks of the nominated occupation.
Grounds
The applicants’ grounds for judicial review are set out in the application as follows:
1. The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
The tribunal erred in law and in fact in determining that the applicant did not meet the requirements set out in c1.457.223(4)(da) because it failed to give any weight to the applicants Diploma of Building and Construction which she had completed in addition to her Certificate III in Painting and Decorating. Further, the tribunal also failed to give any weight to the applicants Diploma in Business Management.
2. The tribunal erred in law in determining that the applicant required work experience to be granted a 457 visa.
Particulars
The Tribunal at para 31 of its decision determined that even if the applicant was deemed to have the necessary qualifications to perform the tasks of the nominated occupation (painter), the tribunal was not satisfied that the applicant had the skills or employment background.
The net effect of the Tribunals decision is, that where an applicant has a Certificate III in Painting and Decorating as well as a Diploma of Building and Construction (because there does not exist any Certificate IV course in Painting and Decorating), those two courses combined are insufficient to satisfy the ANZSCO skill and educational requirements and applicants with these two qualifications (or a combination of Certificate III and another course) will be required to demonstrate that they have relevant work experience (2 years on the job training), otherwise they will be ineligible to apply for a 457 visa without any work experience.
The Minister (the department) has never adopted this approach and has recognised that because there does not exist any Certificate IV course in Painting and Decorating, an applicant with a Certificate III in Painting and Decorating together with another comparable qualification to the Certificate IV, such as the Diploma of Building and Construction, will satisfy the education and skills requirement to be granted a 457 visa. This is the current approach of the department to date.
The matter has a difficult history. On the first date that it was listed for hearing, the applicants’ persuaded Judge Hartnett that they had mistakenly thought the Minister’s lawyers were acting for them and her Honour adjourned the matter to ensure that they were not disadvantaged by the error.
On the second occasion, the applicants’ appeared before me with a letter from an immigration legal firm in Melbourne which set out two further articulations of grounds for review, but at that stage, due to the short notice, the law firm was not available to accept instructions to appear. That letter is exhibit ‘1’ in the proceedings. Given the specificity set out in that letter and that there had been short notice to those lawyers, I adjourned the matter to the 2 August 2018. It was adjourned to ensure the applicants had an opportunity to obtain a lawyer to represent them if they wished to do so. As it transpires they were not able to do so and represented themselves at the hearing.
In the circumstances of the case I take the two grounds set out in the law firm’s letter as being additional grounds to be pursued by the applicants and, to the extent necessary, give formal leave to include them as grounds in the application. Those grounds (renumbered to 3 and 4) are as follows:
3. The fact that Mrs Sharma had previously had a nomination approved in connection with her subclass 457 visa application:
3.1 Evidence of the approval of the Mrs Sharma’s nomination was before the Tribunal (CB 182);
3.2 In approving the nomination, a delegate of the first respondent had found that the subreg 2.72(e)(iv) was satisfied in relation to Mrs Sharma. That provision relevantly required that:
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A) for the occupation in the ANZSCO
3.3 The approved nomination was therefore relevant to the task being carried out by the Tribunal.
4. Other qualifications held by Mrs Sharma
4.1 The Tribunal had before it evidence of Mrs Sharma’s several other qualifications (CB 48, 52), including:
4.1.1 Diploma in Business Management;
4.1.2 Masters of Political Science;
4.1.3 Bachelor of Arts;
4.1.4 Bachelor of Education.
4.2 These qualifications were arguably relevant (or at least, not irrelevant) to the question of whether [the primary applicant] had the 'skills, qualifications and employment background' necessary to perform the tasks of a 'Painting Trades Worker'
Ground 1
With respect to the first ground, it is alleged that the Tribunal failed to have regard to, or give appropriate weight to, the Diploma of Building and Construction (Management) that the primary applicant had completed in addition to her certificate 3 in painting and decorating. This is simply not the case. The Tribunal refers specifically to the Diploma in Building and Construction at para. 13 of the decision highlighting that the diploma had not been provided to the delegate, but saying at para. 15 of the decision, that the diploma had been provided to the Tribunal:
Prior to the hearing the applicant's representative wrote to the tribunal providing a copy of her Certificate III in Painting and Decorating and Diploma in Building and Construction (Management). The agent submitted that the delegate had refused the application only because she had not been satisfied that the applicant had completed the Diploma and the tribunal now had a certified copy of her qualifications in this regard. In addition the agent submitted that the present tribunal should follow the approach taken in another tribunal decision (differently constituted) in relation to the requirements of subclause 457.223(4)(da) [FN: 1305027 [2014] MRTA 1660 (25 July 2014)]. Specifically, it was submitted that the tribunal in that matter had found favourably for an applicant who had a Certificate III in Painting and a Diploma in Building and Construction.
In submissions before me the applicants said the diploma had been provided to their migration agent and that he had not provided it to the delegate or, alternatively, that it had been lost. However, this cannot have been the case as the delegate’s decision was made on 27 July 2015 (Court Book p.82) and the relevant diploma was not issued by the institution until after that date, namely, 2 August 2015 (see Court Book p.105). In the circumstances I am not persuaded that this ground establishes a reviewable error by the Tribunal in that: firstly, the Tribunal was clearly aware of and had regard to the Diploma of Building and Construction; and secondly, it made no difference to the Tribunal’s decision as the diploma was provided to the Tribunal prior to the Tribunal determining the matter.
Ground 2
In ground 2 the applicants argue that the Tribunal made an error of law in concluding that work experience was a relevant consideration and one of the matters that the applicants should satisfy in order to demonstrate the primary applicant had the skills, qualifications and employment background necessary to perform the tasks in the nominated occupation.
The words ‘employment background’ clearly indicate some degree of work participation in the relevant area. The ANZSCO guidelines clearly identify that work experience is a relevant part of that consideration. It is unsurprising that work experience or on the job training is part of the relevant qualifications for an occupation in the category of that a trade, such as a painter.
Having regard to the regulations and the ANZSCO guidelines, it is difficult to see how it could be said that the Tribunal erred in law in concluding that work experience (or the equivalent) was a relevant consideration. In this case there was in substance no evidence of any significant work experience, whether formally as on the job training or informal work experience, nor evidence of other experiences that could reasonably be said to be commensurate with on the job training or work experience as a painter.
To the extent that it is argued that there is some precedential value of earlier decisions of the delegate or the Tribunal relating to this occupation, they are not identified beyond the previous decisions that the Tribunal discuss in the reasons and appropriately distinguishes. I note that in this case the Tribunal member clearly took submissions to this effect seriously and made their own inquiries as to whether or not there were any other decisions where a person with little or no work experience had been able to meet the qualifications in this area and was unable to do so (see the above quote at para. 31 of the Tribunal’s reasons).
In the circumstances, I am not persuaded that this ground has been made out.
Ground 3
This is the first of the two grounds contained in the law firm’s letter. The applicants in this ground extract part of sub-reg.2.72 (namely, 2.72(10)(e)(iv)). The argument looks strong in the way that the ground has been drafted, however, the person who drafted the ground has set it out in a way that is somewhat misleading. Sub-regulation 2.72(10)(e) commences with the words:
If the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination in writing, that…
That is, the ground proceeds upon the implicit assumption that the delegate has accepted the applicant’s qualifications and experiences are sufficient, when in fact this regulation only speaks of the nominator certifying as to the qualifications. It is apparent that the delegate is not bound by a nominator’s certification of the qualifications of an applicant, even if one simply looks at the matter from basic principles. Importantly, a decision has been made on this issue in Cargo First Pty Ltd v Minister for Immigration & Border Protection [2016] FCA 30 at para. 23 where it was found that the Minister can look behind such a certification. In these circumstances I am not persuaded that this is a ground upon which the applicants can succeed.
Ground 4
The final ground is the second ground in the letter provided by the law firm. It lists a number of other qualifications that the primary applicant had earned prior to undertaking the certificate courses in painting and decorating. It is not clear from the material that she does in fact have a Diploma in Business Management rather than Building and Construction (Management), however, as stated by the primary applicant in submissions, it cannot be said that any of the qualifications listed under this ground were relevant to the question of whether or not she satisfied the criteria with respect to the skills, qualifications and employment background for the nominated occupation in this case. It is difficult to see how any of these tertiary qualifications or the Diploma in Business Management if it was held by her, are commensurate with on the job training in painting and decorating.
In these circumstances, I am not persuaded that the failure by the Tribunal member to consider whether or not these qualifications were sufficient to satisfy them of the relevant criteria can be made out. It is simply not arguably open that a qualification such as a Master of Political Science or Diploma in Management or Bachelor of Education in some way assists in establishing that somebody has the appropriate skills of a painting trade worker.
In these circumstances, I find that this ground has not been made out.
I therefore dismiss the application of the applicants.
Costs
The parties made arguments with respect to costs. In this case the applicants, if they were successful, sought a filing fee reimbursement of $770 and $1,500 paid to the lawyer. The applicants were not successful.
The Minister was entirely successful and ordinarily costs should follow the event. There is nothing in this matter to indicate that a different form of orders is appropriate. Indeed, at least two of the court events were caused entirely by the applicants and through no fault of the Minister.
The Minister seeks scale costs together with payment of costs relating to the two wasted events where on both occasions counsel appeared to argue the matter. The costs sought by the Minister with respect to the wasted events are modest amounts of $1,000 on one event and $1,100 on the other, together with the scale fee, which brings the costs claimed by the Minister to $9,702.50. I am persuaded that this is a reasonable amount for costs in this case given its unusual procedural history.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 September 2018
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