SINGH v Minister for Home Affairs
[2019] FCCA 2815
•5 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2815 |
| Catchwords: MIGRATION – Application for a skilled (provisional) (class VC) visa – nominated skilled occupation was that of a chef – applicant’s course of study was that undertaken for an advanced diploma in marketing – finding of Tribunal that such course of study was not closely related to the nominated occupation of chef – no jurisdictional error demonstrated – application for review dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.485.222 |
| Cases cited: Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100 |
| Applicant: | ARMINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 46 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 5 September 2019 |
| Date of Last Submission: | 5 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 5 September 2019 |
REPRESENTATION
| Applicant: | In-person |
| Solicitor for the Respondent: | Ms K. Reid of Clayton Utz |
ORDERS
The application for review filed on 17 January 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 46 of 2019
| ARMINDER SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. On 27 June 2017, the applicant lodged an online application for a skilled (provisional)(class VC) visa. The applicant’s declared nominated skilled occupation was that of chef.
On 16 August 2017, the department wrote to the applicant and advised him that his application for the visa had been refused. It was found that the applicant did not meet the relevant requirements of clause 485.222 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.222 relevantly provides as follows:
485.222
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The delegate had found that whilst potentially useful for the purpose of a later occupation as a chef, the course of study undertaken by the applicant, namely an advanced diploma in marketing, was not, “closely related to” the nominated occupation of chef. On 30 August 2017, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
On 24 October 2018, the Tribunal wrote to the applicant inviting him to comment upon the question as to whether the applicant had completed an advanced diploma in marketing six months prior to his visa application. On 7 November 2018, the applicant’s representative responded to the Tribunal’s letter of 24 October 2018. The response was to the effect that the applicant had completed an advanced diploma of marketing. Written submissions were also provided in support of the application.
On 14 November 2018, the Tribunal invited the applicant to attend a hearing on 30 November 2018. On 30 November 2018, the applicant attended the hearing before the Tribunal in the company of a representative. On 20 December 2018, the Tribunal wrote to the applicant advising him that the Tribunal had affirmed the decision under review. On 17 January 2019, the applicant filed an application for review of the decision of the Tribunal.
The grounds for review as set out in the originating application for review filed on 17 January 2019 are as follows:
1. The Second Respondent’s decision was affected by jurisdictional error in that:
(a) It did not act according to substantial justice and the proper merits of the case in breach of section 353 of the Migration Act 1958 (‘the Act’) in that:
i. It asked or focused on the wrong questions;
ii. It ignored relevant material and facts;
iii. It failed or substantially failed to exercise the authority or power given to it under the Act;
iv. It failed to consider or properly consider regulations 485.222 of Schedule 2 of the Migration Regulations 1994.
Particulars:
a. After finding that Certificate IV in Commercial Cookery is closely related to the occupation of chef, the Second Respondent came to a finding that an Advanced Diploma of Marketing is not closely related; erroneously adopting an unduly narrow approach to its task when a broad approach is the applicable test. The occupation of “Chef” in ANZSCO only requires a Diploma where planning, organising, estimating, monitoring, discussing issues, demonstrating, advising, explaining, enforcing, selecting and training are required, which tasks were clearly taught in the Applicants Advanced Diploma of Marketing; similar or more advanced and thorough then a Diploma of Hospitality.
At [8] of its reasons, the Tribunal noted that there were two requirements to be satisfied in relation to the application for the visa made by the applicant. First, the applicant must have satisfied the “Australian study requirement” in the six months immediately prior to the date that the visa application had been made. In relation to that requirement, it was found at [14] of the Tribunal reasons that the applicant had satisfied such Australian study requirement.
Secondly, it was noted by the Tribunal that the degree, diploma or trade qualification used to satisfy the Australian study requirement must be “closely related to” the applicant’s nominated skilled occupation. The Tribunal at [20] of its reasons stated that the Certificate IV in Commercial Cookery was a course of study closely related to the occupation of chef.
At [22] – [27] inclusive of the Tribunal’s reasons, the Tribunal gave careful consideration to the applicant’s submissions as to whether the advanced diploma of marketing course was so closely related to the stated occupation of chef so as to justify the granting of a visa to the applicant. The Tribunal had regard to relevant court authority on point when carrying out such assessment ([19] of Tribunal reasons).
At [26] and [27] of its reasons, the Tribunal examined closely the role of a chef and relevantly set out the tasks inherently required to be undertaken by a chef when fulfilling a chef’s role. At [27] of its reasons, the Tribunal found that the advanced diploma in marketing course did not assist the applicant in linking, in a closely related way, such course of study with the occupation of chef.
Having conducted that assessment as to the respective requirements of the occupation of a chef as compared with the nature of study involved in an advanced diploma of marketing, the Tribunal at [28] – [30] inclusive of its reasons found that the applicant’s nominated qualification of chef was not an occupation to which the course of study under the advanced diploma of marketing was closely related.
The term “closely related to” has been considered in a number of decisions. In Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at [20], it was said per Allsop CJ, Murphy and Pagoni JJ as follows:
“20. The words “closely related” are not specifically defined in the Migration Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567 at [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection (2014) 223 FCR 454 at [21], [24], [38]) and on the materials its finding was open to the Tribunal.”
Further, in Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100 at [53], it was said per Griffiths, Mortimer and Beach JJ as follows:
“53. Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
(Emphasis Added)”
The Tribunal carried out its duty by closely examining the claims made to it by the applicant. It did so in a way which was considered and careful. The Tribunal, when so analysing the matters of relevance before it, did not fail to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27] inclusive, where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Keifel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has not demonstrated jurisdictional error on the part of the Tribunal. The Tribunal made a finding of fact as to whether the nominated course of study undertaken by the applicant was closely related to the occupation of chef or not. The applicant seeks a merits review of such factual findings, something the court is not entitled to do.
The application for review is without merit and is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 2 October 2019
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