Shukla v MIAC

[2010] FMCA 625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHUKLA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 625

MIGRATION – MRT decision – independent skilled residence visa – bonus points for working in a skilled occupation – applicant performed some management tasks in a 7-11 shop – bonus points claimed as ‘office manager’ – Tribunal found better classification was ‘shop manager’ – effect of ASCO definitions of occupations – no error of fact or law – application dismissed.

Migration Regulations 1994 (Cth), r.1.03, Sch.2, cl.880.222, Sch.6A

Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Parekh v Minister for Immigration [2007] FMCA 633

Applicant: SREYASH SHUKLA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 537 of 2010

Judgment of: Smith FM

Hearing date: 16 August 2010

Delivered at: Sydney

Delivered on: 16 August 2010

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 537 of 2010

SREYASH SHUKLA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Mr Shukla came to Australia in 2004, and studied until March 2006 at the Central Queensland University in Melbourne, gaining a degree of Master of Information Systems.  On 28 August 2006, a migration agent lodged an application on his behalf for a Skilled Independent Overseas Student visa, class DD, subclass 880.  This is a residence visa available to some people who gain qualifications in Australia which are relevant to a list of ‘skilled occupations’ gazetted by the Minister.

2. The application identified Mr Shukla’s nominated skilled occupation as “computer professional, ASCO code 2231-79”. Mr Shukla also needed to satisfy a time of decision requirement to achieve the qualifying score under a points test under Sch.2, cl.880.222 of the Migration Regulations. The relevant points were assessed pursuant to a table in Sch.6A.

3. Mr Shukla’s migration agent projected how, in his submission, Mr Shukla would achieve the necessary score of 120 points. Ultimately, all of these points were uncontroversial, except the achievement of five bonus points under Part 8 of schedule 6A. This provided four alternative grounds for these points in item 6A81:

   Part 8   Bonus points qualification

   …..

   The applicant:

   (a)has deposited at least AUD100 000 in a designated security for a term of not less than 12 months; or

   (b)has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a visa authorising him or her to work; or

   (c)is the holder of a qualification (that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language; or

   (d)is accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters

4. In the submission and documents accompanying the visa application, Mr Shukla claimed five points under paragraph (b), on the ground that he had been employed in Australia “in a skilled occupation” for the requisite period. I note that these points may be acquired even where the skilled occupation in which a visa applicant has been working is not his nominated skilled occupation. Work experience or employment offers in the nominated occupation can gain significantly more points under Parts 4 and 7 of Sch.6A, but Mr Shukla had no work experience in his nominated skilled occupation, and could not gain any points under those Parts.

5. In relation to his actual work history, Mr Shukla’s agent claimed that he was entitled to five points under item 6A81(b) because:

   Mr Shukla has been in paid employment in Australia in the skilled occupation of Office Manager for six months.  Please refer to the enclosed letter from his employer. 

6. The enclosed letter on letterhead of Minyian Pty Ltd dated 17 August 2006, was signed by two persons in Chinese characters, and said as follows:

   This is to confirm that Mr Sreyash Shukla has been employed by this company since 24/07/2005 as an Office Manager.  His working hours are 20 hours a week.  He is paid a salary of $21p/h.

   Mr Shukla’s principal duties in this position are as follows:

   ·Executes all official correspondence both electronic and postal.

   ·Segregating vendor dockets (Delivery dockets, Tax invoice & EDI dockets), documents relating to promotions & marketing letters, credit vouchers etc.

   ·Generating daily reconciliation report, daily sales report and weekly sales report.

   ·Ordering stock by means of electronic, telephonic and negotiation with vendor salesman.

   ·Executes banking transactions and deals with bank during week days.

   ·Training new staff as and when appointed or training for skills upgrade, setting up staff rosters calculating weekly staff timesheet, weekly payroll, assigning duties and responsibilities to each staff member thereby followed by overall supervision of staff.

   ·Periodic testing of all security equipments which includes fire alarms, security alarms, copying data of surveillance cameras and handing them over to concerned authorities during undesirable incidents.

   ·Communicating and Reporting to Head Office as a routine duty or during disputes.

   ·Action on customer feedback or complaints either reported by the Head Office or directly by the customer.

   Mr Shukla’s conduct has been found satisfactory.  His dedicated and professional efforts are an added asset to our organization.  We do look forward to continue working with him over the coming years.

   An accompanying PAYG payment summary for the tax year 2005/06 showed gross payments of $13,187 being paid to Mr Shukla within that financial year. 

7. Processing of the visa application became protracted for reasons which are unnecessary to explore.  In the course of the processing, two Immigration Department investigators visited the premises of Minyian Pty Ltd, and reported:

   On 1 February 2007 at 13:15 Investigators Vince Murano and Naomi Griffin attended premises of Minyian Pty Ltd at 306 Bay Street, Brighton.

   The premises were a “7-11” store located within a shopping district.

   Investigators spoke with Gui Qin, one of the referees.  Gui Qin stated that Mr Shukla worked at the business and his role was to “look after the business when Gui Qin and her husband went on holidays”.

   Gui Qin stated that Mr Shukla orders stock every Sunday, does customer service and arranges staffing.  Orders are completed through the computer on software provided by the “7-11” franchise.

   Gui Qin stated that Mr Shukla work at the counter serving customers and also in the ‘company out back’.  Gui Qin showed Investigators the ‘company out back’ which consisted of a small room behind the counter containing one computer and a large amount of stock.

   Gui Qin stated that she was aware the reference was for immigration purposes.

   Investigators departed at 13:45

   Recommendation

   Discussions with the employer suggest that the visa applicant worked with Minyian Pty Ltd.  However, contrary to what is stated in the work reference submitted to DIAC, it appears as though the visa applicant’s role was a counter operator who had additional duties of staffing and stock ordering and managing the business when the owners were on holiday, not as an office manager.

   As a result it appears as though the visa applicant does not qualify for the five bonus points. 

   For your consideration and decision.

8. The investigators’ report and recommendation was put to Mr Shukla and his agent for comment.  In response, his agent submitted a statutory declaration from one of the employers, which included the following statement:

   On 1 February 2007 at about 1pm. two officers of the Department of Immigration came to the shop at 706 Bay Street, Brighton, where Mr Shukla works.  Mr Shukla was not present at the time because he normally works from 3pm to 7pm.  The officers spoke to me in English without the use of any interpreter.  My English is very poor and in order to prepare this Statutory Declaration, as well as when I prepared the certificate on 17 August 2006, I have had to use the help of my son who is a qualified interpreter.  It was hard for me to understand the officers’ questions and it was even harder for me to explain to them in English what Mr Shukla did.  Furthermore, at the time I was very busy and needed to get back to looking after the shop.  For both these reasons I could only answer them briefly and in general terms.

   Various documents from the shop were also forwarded to the Department, to show Mr Shukla’s involvement in some  managerial duties.

9. A delegate made a decision on 12 February 2009, refusing the visa on the ground that Mr Shukla achieved only 115 points.  The delegate accepted the points projected by Mr Shukla’s agent, except for the five bonus points.  In relation to these, the delegate referred to Mr Shukla’s claims about his duties at the 7-11 store.  The delegate said:

   I find that these duties are more closely related to the duties of a Shop Manager (ASCO 3311-11).  The duties of a Shop Manager are as follows:

   -   plans, directs and participates in the operations of the establishment.

   -   determines product mix, stock levels and service standards.

   -   sells products and services to customers and advises them on product use.

   -   selects, trains and supervises staff.

   -   maintains records of stock levels and financial transactions.

   -   undertakes business planning and budgeting for the store.

   -   develops and implements marketing and promotion of goods and services.

   -   ensures merchandise is well presented to enhance the shop’s image.

   -   ensures that shop’s premises, features and fittings are cleaned and maintained.

   -   supervises store security and cash handling procedures.

   -   arranges the purchase and pricing of goods for sale.

   As the occupation Shop Manager is not on the Skilled Occupation List, I am not satisfied that you have been employed in a skilled occupation.  As a result I find that you do not meet the requirements of Australian Work Experience and therefore no points have been awarded.

10. Mr Shukla then employed a solicitor to lodge an application for review by the MRT.  The solicitor’s covering letter said:

    We advise that we have received instructions to act on behalf of this applicant whose application for a subclass 880 visa was refused because he was unable to obtain a score of 120.  We are instructed to advise that the applicant wishes to claim 5 bonus points on the basis that he will be attempting the NAATI test.  If he passes the test then the points should be allocated.  We are further instructed to advise that in the event he is not successful in the NAAATI test he will claim 5 bonus points on the basis of making the prescribed investment.  We trust the Tribunal will afford our client sufficient time to meet this regulatory requirement.

11. During the subsequent period that the matter was before the Tribunal, a hearing was adjourned, and the Tribunal was requested to defer making its decision, to allow Mr Shukla to explore obtaining bonus points through the alternative pathways of Item 6A81(a) and (d).  However, ultimately, he was unable to present any such evidence before the Tribunal made its decision on 16 February 2010.  

12. Nor did Mr Shukla persuade the Tribunal that he could gain five bonus points under paragraph (b) of that item, by working in a gazetted ‘skilled occupation’ of ‘office manager’ ASCO 3291-11. 

13. In its decision, the Tribunal referred in summary form to evidence given at the hearing in relation to this.  Neither party tendered a transcript, and I see no reason not to accept the Tribunal’s description of what was said:

    23. The Tribunal questioned the applicant about his employment in Australia. He said that he is a manager in a franchise convenience store. He is responsible for ordering and receiving goods, cash reporting, security of the store, paying the staff, allocating shifts and rosters. He has done this job since November 2004 until now. He is also responsible for communicating with the head office, ordering and receiving goods, weekly and daily cash reports and daily reconciliation reports….

    24. The applicant said that he has been working for the shop since November or December 2004. He said that the store employs 8-10 staff, who do cash handling, they are check out operators and sales assistants. His boss had two convenience stores and he used to look after both of them but she had sold one of the stores. He confirmed that it is a franchise of a 7-11 Store which operates independently. He is responsible for communicating with the head office, checking, ordering, receiving and logs. The Tribunal pointed out that it appeared that he was working as a shop manager. The applicant said that he thought he could claim points as a manager. He said that it was not a shop he was managing, but a franchisee, and he needs to talk to the corporate office, while in an independent shop he would not need to deal with the head office but only with the owner.

14. The Tribunal’s reasoning, which essentially arrived at the same conclusion previously arrived at by the delegate, was as follows:

    46. The applicant claimed bonus points on the basis of his employment in Australia in a skilled occupation. He stated on the application form that between July 2005 and the date of the application he was employed as an Office Manager at Minyian Pty Ltd. He provided, in support of this claim, an employment reference, a job description and a number of payslips, a PAYG statement and a number of other documents with his signature. The Tribunal accepts, on the basis of this evidence, that the applicant has been employed at Minyian Pty Ltd for a period of at least 6 months in the 48 months immediately before the day on which the application was made. Electronic records before the Tribunal indicate that from June 2005 and until the day of the application the applicant has been a holder of a Student visa authorising him to work. The issue before the Tribunal is the nature of such employment.

    47. The applicant informed the Tribunal in his oral evidence that he managed a franchise of a 7-11 store and that his responsibilities included communicating with the head office, checking, ordering, receiving and logs. The Tribunal has formed the view that the applicant worked as a shop manager and the fact that the applicant managed a franchise does not detract from that. The occupation of a Shop Manager is at ASCO 3311-11 and is not a skilled occupation. The Tribunal is not satisfied that the applicant has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made.

    The Tribunal finds that the applicant is not entitled to 5 points for Part 8 of Schedule 6A

15. Mr Shukla now applies to the court to set aside the Tribunal’s decision and to remit the matter. I have power to do this only if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to make an assessment of the points which Mr Shukla should be awarded under Sch.6A, nor to consider whether he should be granted this visa or any other permission to stay in Australia.

16. The grounds relied upon in his amended application are:

    1.The Tribunal erred in failing to test the applicant’s job or occupation description against criteria for the position of “office manager”.

    2.The Tribunal erred in failing to consider whether the applicant’s occupation could be described as that of an “office manager” whether or not it could also be described as “shop manager”.

17. Counsel for Mr Shukla submitted in his written submission:

    15.As a matter of economic and social reality, employers design statements of duties to suit the requirements of their businesses.  There is no rule that a position must adhere to an ASCO definition or description, and indeed there is no reason why a position may not incorporate aspects of several ASCO descriptions.

    16.In this case the duties described by the applicant to the Tribunal were considerably different to those listed by the delegate at CB 197.  It may be noted that the Tribunal did not examine the applicant’s job description against that of an office manager.  This, I submit was integral to the Tribunal’s jurisdictional task, as it needed a point of reference to determine whether or not the applicant’s claim as to his occupation was supported by the facts.

    17.The Tribunal’s second and related error was to fail to consider whether the applicant’s employment could be accurately described as an “office manager” whether or not it could also be described as “shop manager”.  This I submit is an error that goes to the Tribunal’s jurisdiction, in that it failed to complete the enquiry it was obliged to make.

18. To understand the Tribunal’s reasoning which referred to the occupation of a shop manager in ASCO 3311-11, it is necessary to understand the statutory role of the ASCO classifications in determining whether a visa applicant’s past employment satisfied a definition of a “skilled occupation”, or was some other occupation.

19. At the relevant time, r.1.03 relevantly defined “skilled occupation” as

    (b) in any other case- an occupation that is specified in a Gazette Notice for this paragraph as a skilled occupation for which a number of points specified in that instrument are available.

20. The relevant gazettal notice is not in evidence before me, but it is reasonable to assume that it was in the same or similar terms to the gazettal notice of skilled occupations which I examined in Parekh v Minister for Immigration [2007] FMCA 633. This gave a list of precisely identified occupations by reference to their title and number under the ASCO classification, second edition, published by the Australian Statistician. In Parekh, I explained the nature of the ASCO code, and extracted some relevant general introductory explanations for its classifications.  As I pointed out, the code classifies 986 occupations in Australia by reference to hierarchies of grouped occupations.  Each numbered occupation is explained by its title, then a “lead statement” which gives “a concise description of the nature of the occupation, summarising the main activities undertaken”, then a “skill level” giving “the usual entry requirements for the occupation”, and then a list of “tasks” giving “a representative list of the primary tasks performed in the occupation” (see Parekh at [11]).

21. The Minister tendered in the present case extracts from the ASCO code referable to the classifications of “office manager” and “shop manager”.  Both appear in “Major group 3” which covers “Associate Professionals” in five “sub-major groups.”  Two sub-major groups are “32 business and administration associate professionals”, and “33 managing supervisors (sales and service)”.  Sub-major group 32 is described:

    Business and administration associate professionals manage and administer the operational activities of an office or financial institution; ….

    There is then a breakdown into minor groups.  Minor group 329 covers “miscellaneous business and administration associate professionals”, being “business and administration associate professionals not elsewhere classified”.  Four occupations are identified, including:

    3291-11        Office Manager

    Organises and controls the activities of an office including administrative systems and office personnel.

    Skill Level

    The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience.  In some instances relevant experience is required in addition to the formal qualification.

    Tasks include:

    ·    Develops and maintains recording and information systems.

    ·    Oversee and controls office functions.

    ·    Arranges office accommodation.

    ·    Liaises with other departments in the organisation.

    ·    Ensures compliance with occupational health and safety regulations.

    ·    Trains and supervises staff.

    ·    May deal with inquiries from outside the organisation, particularly complaints.

    ·    May deal with salary, termination and other employment matters.

1. Sub-major group 33 covers “managing supervisors (sales and serve)”.  It includes a minor group of “shop managers”, including:

   3311-11        Shop Manager – Store Manager

   Organises and controls the operations of a retail trading establishment.

   Skill Level

   The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience.  In some instances relevant experience is required in addition to the formal qualification.

   Tasks include:

   ·    Plans, directs and participates in the operations of the establishment.

   ·    Determines product mix, stock levels and service standards.

   ·    Sells products and services to customers and advises them on product use.

   ·    Selects trains and supervises staff.

   ·    Maintains records of stock levels and financial transactions.

   ·    Undertakes business planning and budgeting for the store.

   ·    Develops and implements marketing and promotion of goods and services

   ·    Ensures merchandise is well presented to enhance the shop’s image.

   ·    Ensures that shop’s premises, features and fittings are cleaned and maintained.

   ·    Supervises store security and cash handling procedures.

   ·    Arranges the purchase and pricing of goods for sale.

2. It appears to me that both the delegate and the Tribunal probably located these two definitions, as being relevant to the claimed classification of Mr Shukla’s occupation in the 7-11 shop.  I am not persuaded that when doing so, they did not consider the full definitions of ‘office manager’ and ‘shop manager’, and their places in the ASCO classifications, when deciding that Mr Shukla’s occupation in the 7-11 shop was better classified as a “shop manager” than an “office manager”.  The application of both classifications might have taken a generous view of Mr Shukla’s responsibilities in the 7-11 shop, but no issue is taken on that basis.

3. It was not submitted by the applicant that in Parekh I incorrectly explained the significance of the ASCO classifications to decisions on whether a visa applicant’s past occupation met a ‘skilled occupation’ description in the ASCO occupational code.  Nor was it submitted that I incorrectly concluded that the definition of ‘skilled occupation’ is expressly tied to that scheme of classification.  At [23] in Parekh I distinguished a previous scheme which invited a general factual inquiry about occupations.  I concluded:

   However, in my opinion, the above reasoning demonstrates a clear distinction between the legislation required to be addressed by the present delegate.  In the present case, the definition of “skilled occupation” was expressly tied to an occupation which was “specified” in the Gazette Notice.  The manner of that specification was, in my opinion, clearly one which adopted the ASCO definitions identified in the list in Sch.C to the Gazette Notice.  I reach this conclusion not only due to its apparent structure, in which the first two columns appear clearly intended to be read together so as to incorporate the full ASCO definitions by reference to their short titles and classification numbers found in the ASCO code.  I also consider that the purpose of the references to the ASCO classifications in Sch.C is apparent: it is to provide to the Minister’s decision‑makers a ready and authoritative source of definitional rules and descriptions for classifying occupations.  Reading the whole of the relevant parts of the Gazette Notice, I do not accept that its author intended that decision‑makers should be at large in deciding whether a person’s occupation answered only the descriptive words of an occupation in column 1, and that they should treat the ASCO code only as an optional and inconclusive guide to those words. 

4. As I understood Mr Shukla’s counsel’s oral submissions, he submitted that the present Tribunal made two errors.  He first submitted that the Tribunal erred by failing closely to examine the “tasks” performed by Mr Shukla in his place of employment, and to consider how they could meet the “tasks” of office managers under Item 3291-11.  He submitted that, if the Tribunal had made that assessment, a large number of the tasks of that occupation would appear to have been performed by Mr Shukla. 

5. However, I am not satisfied that the Tribunal failed to consider the tasks actually performed by Mr Shukla in his shop, and to consider how those tasks fitted within item 3291-11 or, for that matter, item 3311-11 in relation to shop managers.   In my opinion, it is likely that the Tribunal considered his tasks in relation to both definitions, in the course of concluding that Mr Shukla was better classified as a ‘shop manager’.  

6. The two definitions, in their terms and in their positions in the structure of ASCO, presented a clear differentiation between the two occupations, arising from the location in which their listed tasks would occur.  Reference to their different workplaces is found obliquely in their respective list of tasks, and overtly in the two “lead statements.”  The lead statements show that an office manger’s occupation is performed in an environment of an “office”, and a shop manager’s occupation is in “retail trading establishments.”  The environment in which their management ‘tasks’ occur is then reflected in the repetition of the word “office” in the tasks under 3291-11, and the repetition of “establishment” and “shop” in the tasks under 3311-11. 

7. Against that background of the two ASCO definitions, the Tribunal’s conclusion that Mr Shukla’s occupation in 2005 and 2006 fitted better within the occupation of a “shop manager” was clearly open to it, and may have been the only conclusion which, as a matter of law, could be arrived at by the Tribunal when applying the scheme of ASCO classifications.  Certainly, I am not persuaded that the Tribunal failed to address any factual matter relevant to the definition of the ‘skilled occupation’ of ‘office manager’ when so concluding. 

8. It has been held that it is at least open, as a matter of law, to a decision maker applying the ASCO code when determining whether someone has a skilled occupation, to consider both the tasks listed for that occupation, and also the extent to which another classification in ASCO appears more suited to the tasks performed by the visa applicant (see Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562 at [64] and [69]). Some occupations might need close examination of skills or tasks rather than lead statements, when the classification is made. However, in my opinion, an application of the ASCO classifications does not, in all cases, require the focusing of the assessment upon the ‘tasks’ parts of the definition. In the present case, the ‘lead statements’ provided an equally relevant, and clearer, distinction between the two occupations addressed by the delegate and the Tribunal.

9. I am, therefore, not persuaded by counsel’s principal submission that the Tribunal asked itself a “wrong question” when finding and taking into account the better classification of Mr Shukla as a ‘shop manager’ rather than an ‘office manager’.  I therefore do not need to consider whether any error by the Tribunal in its consideration of the claim that he should be classified as a shop manager, would have been an error of fact, law, or jurisdiction.

10. Nor, in my opinion, has any substance been shown for the alternative submission made by counsel, which was that the Tribunal misapprehended the possibility of an overlapping classification of Mr Shukla’s occupation.  He submitted, in effect, that the Tribunal made an error of law by assuming that a better classification of Mr Shukla under ASCO 3311-11 meant that he could not also be classified under ASCO 3291-11. 

11. The Tribunal, indeed, appears to have so reasoned in [47] extracted above.  However, I am not persuaded that this reasoning reflected any misapprehension as to the scheme of the ASCO classification, which was adopted by the definition of ‘skilled occupation’.  My current understanding of the scheme deriving from a full consideration of the terms of the ASCO code performed in Parekh, is that ASCO provides mutually exclusive classifications, albeit at a level of considerable refinement at times.  So much also appears to have been accepted or assumed by Greenwood J in Kamruzzaman at [69].

12. In the present case, counsel for Mr Shukla did not tender, nor take me to, any sections of the ASCO publication to show that it would not have been open to the present Tribunal to make the same assumption.

13. I am not persuaded that the Tribunal made any error, whether of fact or law, when concluding that the better classification of Mr Shukla’s occupation was that of shop manager, rather than an office manager, under their respective ASCO definitions.   I am not persuaded that this finding did not then provide a sufficient basis for its conclusion that he should not be classified as having been employed in the skilled occupation which he claimed to have been engaged, for the purpose of obtaining bonus points. 

14. Essentially, in my opinion, most of the submissions made by Mr Shukla’s counsel attempted to invite me to engage in a factual conclusion about Mr Shukla’s occupation, and to find that the Tribunal made an erroneous classification.  However, that is not my task.  I am not satisfied that the Tribunal made any error of law or of fact amounting to jurisdictional error, when it found that Mr Shukla was not entitled to the five bonus points claimed by him.   I certainly do not consider that its findings of fact exhibit any unreasonableness amounting to jurisdictional error within principles recently considered in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16.

15. For all the above reasons, I am not persuaded that the Tribunal’s decision is affected by jurisdictional error, and I must therefore dismiss the application. 

16. It is agreed that the costs according to the scale should follow the event.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  24 August 2010