SINGH v Minister for Immigration
[2017] FCCA 192
•7 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 192 |
| Catchwords: MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) Subclass 485 – whether the Tribunal erred in finding that the applicant’s Australian study was not closely related to his nominated occupation – Advanced Diploma of Marketing – motor mechanic. |
| Legislation: Migration Regulations 1994, Sch.2, cl.485.222 |
| Cases cited: Manik vMinister for Immigration and Citizenship [2012] FMCA 149 Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115 |
| First Applicant: | JATINDER SINGH |
| Second Applicant: | PARAMJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2696 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 1 December 2016 |
| Date of last submission: | 1 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2017 |
REPRESENTATION
| Advocate for the first applicant: | In person |
| Solicitors for the first applicant: | None |
| Advocate for the second applicant: | In person |
| Solicitors for the second applicant: | None |
| Counsel for the first respondent: | Julia Lucas |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application filed on 7 December 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2696 of 2015
| JATINDER SINGH |
First Applicant
And
| PARAMJIT KAUR |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the first applicant (“the applicant”) a Skilled (Provisional) (Class VC) Subclass 485 visa.
The applicant is the husband of the second applicant. The second applicant made no claims of her own.
A delegate of the first respondent refused the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). That clause required that the qualification that the applicant relied upon to satisfy the Australian study requirement be closely related to his nominated occupation. The applicant relied upon his qualification of an Advanced Diploma in Marketing to meet the Australian study requirement. His nominated occupation was motor mechanic. The delegate considered that the Advanced Diploma of Marketing was not closely related to the occupation of motor mechanic.
The applicant sought review by the Tribunal. The applicant was represented throughout the Tribunal’s review by a migration agent. The Tribunal affirmed the delegate’s decision for same reason as the delegate had made the original decision, that is, that the applicant’s Advanced Diploma of Marketing was not closely related to his nominated occupation of motor mechanic.
Criteria
Clause 485.222 of Schedule 2 to the Regulations provided that:
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The other criteria for the visa were not in issue in this proceeding.
The Tribunal’s reasons for decision
In its decision dated 18 November 2015, the Tribunal said, under the heading, “Is the qualification ‘closely related’ to the nominated occupation?”:
11.The leading authorities on this issue establish that:
·The words ‘closely related’ are not defined in the legislation but they require and call attention to the connection between two things. They do not require an exact correspondence,[1] however the relationship must be more than merely complementary.[2]
·In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ASCO/ANZSCO descriptions.[3] More recent authority suggests that the nature of the nominated occupation must be determined by reference to ASCO/ANZSCO,[4] and, further, that the ASCO/ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation.[5]
·It is appropriate to objectively consider the relationship of the applicant’s qualification to the ASCO/ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[6]
·It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian studies are ‘closely related’ to the nominated skilled occupation,[7] and in carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.[8]
12.The Tribunal has had regard to the ANZSCO Code listing for the Unit Group 3212 Motor Mechanics and the details specifically relating to the nominated occupation of Motor Mechanic (General) (Tribunal folios 50 to 52). The Tribunal has compared this to the units completed by the applicant in his Advanced Diploma of Marketing, as listed in his record of results (Department folio 30 back page).
13.The applicant argued that his marketing skills will assist him to become a self-employed mechanic one day. However, as discussed at the hearing, the Tribunal is of the view that the occupation of Motor Mechanic does not imply that someone in that occupation is or will be self-employed. The skills and tasks of a Motor Mechanic, as listed in the ANZSCO guide, are practical and technical and do not imply or suggest that marketing one’s own business is an integral part of those tasks. There is, in the Tribunal’s view, virtually no overlap between the ANZSCO skills and tasks of a Motor Mechanic and the subjects undertaken by the applicant in his Advanced Diploma of Marketing. Whilst these subjects could, in future, clearly benefit the applicant in marketing his own Motor Mechanic business, the Tribunal is not satisfied that the Advanced Diploma of Marketing is objectively closely related to the tasks of the nominated occupation as set out in ANZSCO.
14.The Tribunal also considered the applicant’s argument that his marketing knowledge assisted him to obtain his current employment as a Motor Mechanic. The Tribunal accepts that this may be the case but considers that this falls squarely into the category of being complementary and useful to some of his duties as a Motor Mechanic, which the Courts have held is insufficient to establish that the Advanced Diploma of Marketing is ‘closely related’ to the occupation of Motor Mechanic.
[1] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [33] quoting with approval Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) at [33].
[2] Uddin v MJAC [2010] FCA 1281 (North J, 8 November 2010) at [10]-[12] where North J rejected the argument that the Tribunal misunderstood the term ‘closely related’ by departing from what was then set out in PAM3. The Tribunal in that case found that the language of the regulation required a closer relationship than that suggested by the words ‘complementary’ or ‘useful’ as used in PAM3 at that time. This approach was followed in Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) (special leave refused: Prasad v MIAC [2013] HCASL 34) and approved in Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) and MIBP v Dhillon (2014) 227 FCR 525 at [20].
[3] Manik v MJAC [2012] FMCA 149 (Smith FM, 28 February 2012) citing Shukla v MIAC [2010] FMCA 625 (Smith FM, 16 August 2010), Kabir v MIAC [2010] FMCA 577 (Scarlett FM, 3 September 2010) and Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010).
[4] See Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015). The central question in this case was not whether the nominated occupation must necessarily be determined by reference to ANZSCO, but rather whether the Tribunal had incorrectly confined its consideration to the relevant ANZSCO occupation. However the central significance of the ANZSCO Code is implicit in the Court's reasoning.
[5] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [56].
[6] Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010) at [12]. See also Kabir v MIAC [2010] FMCA 577 (Scarlett FM, 2 August 2010) at [70], Shafiuzzaman v MIAC [2011] FMCA 874 (Nicholls FM, 15 November 2011) at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to his nominated occupation.
[7] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53].
[8] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [26].
Authorities
In the case of Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100; [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ said at [53]:
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. (emphasis added)
In Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157, Allsop CJ and Murphy and Pagone JJ said at [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, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
In Tahla, the Full Court said at [54]:
The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.
In Dhillon, the applicant’s nominated occupation was pastry cook and his relevant Australian qualification was a Diploma of Business Management. In Tahla, the applicant’s nominated occupation was engineering technologist and his relevant Australian qualifications were in business management.
Grounds of application
The applicants were not legally represented before this court. The grounds of review in the application filed on 7 December 2015 were stated as follows:
I came to Australia in 2009 on student visa
After Completing my studies I decided to apply for 485 Skilled Provisional visa.
I lodged my file on 27 May 2015 For the review of my 485 visa.
After few months I received a letter from DIBP which States that my 485 visa file has been refused.
I was unsatisfied with the decision made by DIBP as I have Provided all the supporting evidences for my case.
For the further right review of my 485 ViSA , I decided to apply for MRT/AAT . On 14/08/15 after few months from lodging my application at MRT/AAT I received an invitation to comment on my case.
I provided all the evidences in support of my application.
The member refused to grant me the visa as according to her my Study is not relevant with my previous qualification. Which according to me is not true.
So I am not satisfied with the decision made by MRT/AAT
So, I wish to apply for federal Circuit Court for the right review of my application.
(errors in original)
Clearly, the grounds contained in the application do not identify any jurisdictional error, but merely contain a chronology of the matter. However, the applicant also filed on 17 June 2016 and 20 June 2016 an outline of submissions dated 7 June 2016. In that outline, the applicant argued that his Advanced Diploma of Marketing was closely related to his nominated occupation of motor mechanic, because the marketing skills he learned would help him to run his own business as a motor mechanic in the future.
The applicant ran that argument before the Tribunal, and the Tribunal rejected it at paragraph 13 of its reasons for decision. The Tribunal also noted in the second bullet point in paragraph 11 of its reasons for decision that:
In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path.
The authority for that proposition is contained in the decision of Smith FM in Manik vMinister for Immigration and Citizenship [2012] FMCA 149, where his Honour said at [14]:
The Tribunal also considered the relevance of Mr Manik’s submissions referring to the tasks that he was performing for his employer in his present employment, and to his plans for his future career in the restaurant business or industry. The Tribunal said that “its assessment should focus on the objective tasks of the nominated skilled occupation, which are reflected in ASCO, and not on what an applicant does in their employment or what they intend to do in their future employment”. In adopting that approach, the Tribunal member also in my opinion revealed no error of law …
I am obliged for reasons of judicial comity to follow that decision unless I consider it to be clearly wrong. I do not consider it to be clearly wrong. On the contrary, I consider that it accurately reflects cl.485.222 of Schedule 2 to the Regulations. Therefore, I accept that the Tribunal was correct to consider whether the applicant’s actual nominated occupation, rather than the career that he hoped to have, was closely related to his relevant Australian qualification.
During the hearing, I attempted to explain to the applicant that this court is not able to undertake merits review and could only set aside the Tribunal’s decision if a jurisdictional error could be identified. I also attempted to explain to the applicant the nature of jurisdictional error and gave some examples.
The applicant argued that the Tribunal had accepted that 18 other people in a position similar to himself had Australian qualifications that were closely related to their nominated occupations. The applicant produced documents relating to two of those people, which became exhibits 3 and 4.
I attempted to explain to the applicant at the hearing that, although consistency in decision making is desirable, the Tribunal is not legally required to follow the decisions of the Tribunal differently constituted. It is not a jurisdictional error if the Tribunal does not do so. Although it may seem unfair, the court is only permitted to examine whether the Tribunal in the present case made a jurisdictional error. Moreover, the applicant did not provide full details of the two cases he referred to, such as the Tribunal decision record. Consequently, it cannot be determined that the cases referred to by the applicant are in fact relevantly identical to his. In addition, even of the other two cases were relevantly identical to the applicant’s, the Tribunal in the other two cases may have been in error.
The applicant also provided to the court a document apparently obtained from the website of the Department of Immigration and Border Protection. It became exhibit 1. It is headed “Australian Study Requirement”. Under the heading, “Qualifications must be closely related to nominated occupation”, the document said:
The Australian qualification(s) you have completed must be closely related to your nominated skilled occupation. This means that the subject matter and the skills gained from your qualifications can be applied at the level you achieved them in your nominated skilled occupation. Some examples of this are:
·Diploma in Business and Certificate IV in carpentry would be consistent with nominating carpenter as your occupation as you could find those qualifications genuinely useful in operating their own business as a carpenter.
·Masters in IT and Certificate III in carpentry would not be consistent with nominating carpenter as your occupation as you have attained skills at a significantly higher level in a professional field and skills at that level will not have any practical application in working as a carpenter.
The applicant relied on that document to argue that an Advanced Diploma of Marketing was the equivalent of the Diploma in Business used in the example, and his nominated occupation of motor mechanic was the equivalent of the nominated occupation of carpenter used in the example.
It is not apparent that a document in the form of exhibit 1 was before the Tribunal. Even if it had been, it appears to be information prepared by a public servant. As such, it does not have the force of law, and the Tribunal is not bound to follow it. The Tribunal had to make up its own mind about whether the applicant’s Australian study qualification was closely related to his nominated occupation. It decided it was not. It seems to me that that conclusion was open to the Tribunal.
Even if the example in the information sheet is sound, there are clear differences between an Advanced Diploma of Marketing and a Diploma in Business, the latter being more basic and general. There may also be relevant differences between carpenters and motor mechanics. It may also be that carpenters are routinely self-employed sub-contractors in the building industry whereas motor mechanics are more usually employees.
In any event, the Tribunal was under no obligation to follow an information sheet evidently prepared by a public servant.
It seems to me that the Tribunal in this case correctly understood the applicable law and correctly applied it. The applicant’s case rested on the usefulness of his Advanced Diploma of Marketing to the business he wishes to run in the future. On the authority of Manik, that was not the correct approach. I am unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process.
Conclusion
As no jurisdictional error has been established, the application must be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 7 February 2017
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