SINGH v Minister for Home Affairs
[2019] FCCA 1581
•29 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1581 |
| Catchwords: MIGRATION – Application for temporary graduate visa – course of study not closely related to nominated occupation of chef – non-compliance with visa condition – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), r.1.15F(1), cl.485.222 Migration Act 1958 (Cth), s.476(1) |
| Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 Talha v the Minister for Immigration and Border Protection [2015] FCAFC 115 |
| Applicant: | MANDEEP SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 893 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 29 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 29 May 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the First Respondent: | Ms K. Reid, Solicitor of Clayton Utz |
ORDERS
That the application for review filed on 29 August 2019 be dismissed.
That 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 893 of 2018
| MANDEEP SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who lodged an application for a temporary graduate (class VC) (subclass 485) visa on 17 February 2017. The applicant’s nominated occupation was that of chef. The application referred to the applicant as having obtained the following academic qualifications:
a)Certificate III in Commercial Cookery, obtained from King’s Institute of Management and Technology
b)Certificate IV in Commercial Cookery, obtained from King’s Institute of Management and Technology
c)Diploma of Leadership and Management, obtained from King’s Institute of Management and Technology
On 7 April 2017, the Department wrote to the applicant advising him that his visa application had been refused on the basis that the applicant did not meet the relevant requirements of clause 485.222 of schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 485.222 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.”
It was found by the Department that the course of study undertaken by the applicant to obtain the Diploma of Leadership and Management was not closely related to the nominated occupation of a chef.
On 24 April 2017, the applicant lodged an application for review of the decision of the delegate. On 10 July 2018, the applicant appeared before the Tribunal and made submissions. On 18 July 2018, the applicant’s representative provided additional submissions in support of the application. The applicant again attended the Tribunal hearing on 26 July 2018. On 16 August 2018, the Tribunal wrote to the applicant, advising him that the Tribunal had affirmed the decision of the Department. On 16 October 2018, the applicant filed an application for review, pursuant to the provisions of section 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The first respondent submitted that in order to qualify for the requirement that there be at least two academic years of study, each of the three courses undertaken by the applicant must have been “closely related to” the occupation of chef. So much is clear from a reading of regulation 1.15F(1) of the Regulations, which provided as follows:
“1.15F (1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).”
At [26]-[49] of its reasons, the Tribunal closely examined the question of whether the course of study undertaken by the applicant when obtaining his Diploma of Leadership and Management was such as to constitute such qualification as being one which was closely related to the occupation of chef.
At [43]-[48] inclusive of its reasons, the Tribunal went into great detail as to the particular aspects of the occupation of chef, which might have been covered by the applicant having undertaken the Diploma of Leadership and Management.
In doing so, it compared the Diploma of Leadership and Management course content with the ANZSCO unit group 3515 chef duties as listed in [33] of its reasons. Having done so, the Tribunal was not satisfied that having regard to the totality of the duties described for the occupation of chef, the applicant satisfied such criteria by having undertaken the Diploma of Leadership and Management.
At [50] of its reasons, the Tribunal specifically had regard to the contents of an expert engaged by the applicant to present his case before the Tribunal, namely one David Dolley. At [51] of its reasons, the Tribunal drew a distinction between a Diploma of Hospitality Management to that of a Diploma of Leadership and Management.
Having regard to the different courses of study for each of those two diplomas, the Tribunal remained of the opinion that the applicant, by having undertaken the diploma of leadership and management course, had not undertaken a course of study which was closely related to the nominated skilled occupation of chef (See [51] of the tribunal reasons).
When one is considering whether an academic qualification is closely related to a nominated occupation or not, one has to look at the whole of the qualification and compare it with the whole of the occupation, so as to determine whether the necessary close relationship exists or not. Such approach was addressed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20] where it was said:
“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.”
In the present case, the Tribunal fairly addressed the question as to whether the Diploma of Leadership and Management course of study was closely related to the nominated occupation of chef, whether such qualification was “merely complimentary to the occupation, or whether the skills could be used in that occupation”.
In Talha v the Minister for Immigration and Border Protection [2015] FCAFC 115 at [53], it was said by 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 JJ, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J.”
The applicant’s grounds for review as set out in the originating application are as follows:
“1. Tribunal made jurisdictional error by applying interpretation of Migration Regulations term incorrectly.
2. Tribunal’s decision affected by procedural errors by reason of relying on matters not relevant to the review application.
3. Tribunal failed to consider relevant matters including experts opinion and previous AAT decisions.”
The first two grounds for review were so vague and uncertain that they were liable to be dismissed on that basis alone. [1]
[1] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J
and WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
As to the third ground of review, the Tribunal at [50] and [51] of its reasons, dealt with matters relating to the proffered expert opinion as to what constituted an applicable course of study that was closely related to that of a chef.
There is no merit to the contention that the Tribunal failed to address relevant expert opinion when arriving at its decision. At [52]-[53] of the Tribunal reasons, the Tribunal dealt with previous decisions concerning the question as to whether a Diploma of Leadership and Management was or was not closely related to the occupation of chef. In that regard, each case turns on its own facts and an appreciation of the circumstances of the course of study to the question before the Tribunal.
It cannot be said that the Tribunal failed to make an obvious inquiry about a critical fact. The Tribunal addressed all relevant matters before it. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] it was said per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ as follows:
“[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 did the Tribunal. 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, Kiefel 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 that the Tribunal fell into jurisdictional error.
The application for review is without merit and is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 21 June 2019
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