Singh v Minister for Immigration and Multicultural Affairs
[2000] FCA 1740
•1 DECEMBER 2000
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1740
MIGRATION – visas – points system in Sch 6 of the Migration Regulations 1994 – applicant assessed by reference to Item 6107(b) – whether applicant should have been assessed by reference to Item 6102(c) or Item 6103(a) – time at which applicant was deemed to have achieved a qualification equivalent to Australian standards for his occupation
Migration Act 1958 (Cth)
Migration Regulations 1994 reg 2.26; Sch 2 cl 126.221; Sch 6 Pt 1RUPINDER SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 827 of 2000BRANSON J
SYDNEY
1 DECEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 827 of 2000
BETWEEN:
RUPINDER SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
1 DECEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The decision of the delegate of the respondent be set aside.
2. The matter be referred to the respondent for further consideration according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 827 of 2000
BETWEEN:
RUPINDER SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
BRANSON J
DATE:
1 DECEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant has sought review of a decision of a delegate of the respondent made under the Migration Act 1958 (Cth) (“the Act”) and regulations relating to visas (s 475(1)(c)). The applicant had applied for a subclass 126 (Independent) visa on 29 March 1996. By letter dated 22 June 2000 the applicant was advised that his application had been unsuccessful and that neither he nor his wife would be granted a visa for Australia. For the reasons set out below I have concluded that the decision of the delegate of the respondent should be set aside and the matter referred to the respondent for further consideration according to law.
POINTS SYSTEM
The class of visa which the applicant sought is one to which the points system applies (see Subdivision B of Division 3 of Part 2 of the Act). Regulation 2.26 of the Migration Regulations 1994 relevantly prescribes the qualifications, and the number of points for each prescribed qualification, by reference to Schedule 6. It is necessary to set out Part 1 of Schedule 6 in its entirety:
“Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
PART 1 – EMPLOYMENT QUALIFICATION
6101 The applicant: 80
(a)applies to enter Australia on the basis of an occupation:
(i)that is the applicant’s usual occupation; and
(ii)that is a priority occupation; and
(iii)for which, in Australia, a degree, trade certificate, diploma, associate diploma or post-trade qualification is required or that is a professional-equivalent or technical-equivalent occupation; and
(iv)in respect of which, at least 3 years before the relevant application was made, the applicant:
(A)obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(B)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(C)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(b)has in respect of that occupation, qualifications or experience (or both) required for the purpose of any Australian occupational licence or registration (or both); and
(c)was employed in that occupation on the day that is 3 years before the day on which the relevant application was made; and
Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
(d)has worked in that occupation or in a closely related occupation for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.
6102 The applicant’s usual occupation: 70
(a)is not a priority occupation; and
(b)is an occupation:
(i)for which, in Australia, a degree or trade certificate is required; or
(ii)that is a professional-equivalent occupation; and
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e)is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f)is an occupation:
(i)in which the applicant has worked; or
Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
(ii)is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.
6103The applicant would meet the qualification specified in item 6102 except that: 60
(a)the applicant did not obtain or complete the qualification referred to in paragraph (c) of that item at least 3 years before the application was made; or
(b)the applicant was not employed in the occupation on the day that is 3 years before the application was made; or
(c)the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made.
6104 The applicant’s usual occupation: 55
(a)is not a priority occupation; and
(b)is an occupation:
(i)for which, in Australia, a diploma or associate diploma is required; or
(ii)that is a technical-equivalent occupation; and
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e)is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f)is an occupation:
(i)in which the applicant has worked; or
(ii)is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.
6105The applicant would meet the qualification specified in item 6104 except that: 50
(a)the applicant did not obtain or complete the qualification referred to in paragraph (c) of that item at least 3 years before the application was made; or
(b)the applicant was not employed in the occupation on the day that is 3 years before the application was made; or
(c)the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made.
6106 The applicant: 30
(a)applies to enter Australia on the basis of an occupation which is the applicant’s usual occupation, being an occupation:
(i)for which, in Australia, a degree, diploma, associate diploma or trade certificate is required; and
(ii)in respect of which the applicant has a degree, diploma, associate diploma or trade certificate that qualifies the applicant to enter that occupation in the foreign country that is the applicant’s usual country of residence; and
Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
(iii)in respect of which the qualifications of the applicant are assessed by the relevant Australian authority as requiring upgrading by a course of training lasting not more than 6 months before being equivalent to Australian standards for that occupation; and
(b)has, in relation to such an occupation, the attributes referred to in paragraph 6101(c).
6107 The applicant: 25
(a)applies to enter Australia:
(i)on the basis of an occupation that is the applicant’s usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and
(ii)as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and
(iii)as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; or
(b)has an occupation:
(i)that is the applicant’s usual occupation; and
(ii)entry to which in Australia requires a degree, diploma, associate diploma or trade certificate; and
(iii)in respect of which the applicant has a degree, diploma, associate diploma or trade certificate, or possesses work experience, assessed by the relevant Australian authority as not equivalent to Australian Standards for that occupation.
6108 The applicant has: 20
(a)an occupation that is the applicant’s usual occupation; and
(b)has educational qualifications equivalent to 12 years of primary and secondary education in Australia.
Column 1 Column 2 Column 3
Item Prescribed qualification Number of points
6109 The applicant has: 10
(a)an occupation that is the applicant’s usual occupation; and
(b)educational qualifications equivalent to 10 years of primary and secondary education in Australia.”
FACTS
The applicant’s visa application included information, and was accompanied by documents, which indicated that he had undertaken training leading to the attainment of trade qualifications at the diploma and trade certificate levels and that he had undertaken employment in the field of his trade qualifications, namely radio and television.
By letter dated 13 November 1998 he was advised by an Australian High Commission Visa Office:
“Your usual occupation, for visa purposes, has been assessed to be:
radio & television repairoerson (sic) ASCO Code: 4313
To assist this office in deciding your application, your skills will need to be assessed by Trades Recognition Australia (TRA – part of the Australian Department of Workplace Relations and Small Business – DWRSB) to determine whether they are recognised as meeting Australian standards for that occupation.”
The applicant applied to TRA to have his skills assessed. By letter dated 20 February 1999 TRA advised him that he was not eligible for classification as a tradesperson because he had insufficient training and experience. The applicant sought review of this decision. He undertook a practical trade test at the request of TRA. By letter dated 7 December 1999 he was advised by TRA:
“The processing of the review of the original decision made on your Application for Assessment of Trade Training and Experience has been finalised.
The result has overturned the original decision made on your case.
The evidence on which this new decision was based was not originally held by Trades Recognition Australia and therefore the review fee will not be refunded.
You have been classified for the purpose of migration to Australia as a:
Tradesperson (Radio and Television) [ASCO4315]
The date you have been deemed to have achieved the equivalent Australian standard for the purpose of migration to Australia is 24 November 1999.”
THE DECISION RECORD
The crucial part of the Decision Record is the following:
“Based on the information provided in your application and supporting documentation, your usual occupation for the purpose of allocating points in the Skill factor of the Points Test was determined to be Tradesperson (Radio And Television) (ASCO 4315). The relevant policy guidelines state that qualifications for this occupation are to be assessed by Trades Recognition Australia (“the TRA”). On 13 November 1998 you were requested to apply to the TRA to have your skills assessed. … The TRA advised you on 7 December 1999 that you have been classified as a Tradesperson (Radio and Television), however the date you were deemed to have achieved the equivilant (sic) Australian standard for the occupation in question was 24 November 1999; ie after the date of lodgment of [your] application. Therefore at the time of lodgment of your application your qualifications were not recognised and you have been awarded a maximum of 25 points in the Skill factor. [Item 6107(b) of Schedule 6 of the Migration Regulations].”
As a result of the applicant being awarded only 25 points for his employment qualification (as opposed to the at least 60 points to which he claims to be entitled) he was found by the decision maker not to have met the requirements of cl 126.221 of Sch 2 of the Migration Regulations 1994. Clause 126.221 provides that a criteria for the grant of the visa for which the applicant applied is that, at the time of the decision, the applicant has the qualifying score for the visa.
CONSIDERATION
The applicant contends that his employment qualification should not have been assessed by reference to Item 6107(b) but rather by reference to Item 6102(c) or Item 6103(a). If he had met the criteria of one of these latter items, he would have been entitled to be awarded either 70 or 60 points in respect of this application.
As the numbers in the points column tend to confirm, Items 6101 to 6109 are arranged in descending order of consequence so far as a level of education or training and length of experience are concerned, with, at each level, precedence being given to priority occupations over non-priority occupations. Tradesperson (Radio and Television) is not a priority occupation within the meaning of the Items.
The applicant plainly falls outside the terms of Items 6101 and 6102. His usual occupation is not a priority occupation (Item 6101) and it is not an occupation in respect of which, at least three years before the relevant application was made:
(a)he obtained a formal qualification assessed by TRA to be equivalent to the Australian standards for the occupation; or
(b)completed work experience assessed by TRA to be equivalent to the Australian standards for the occupation; or
(c)completed a combination of study or trade training and work experience together assessed by TRA to be equivalent to the Australian standards for the occupation (Item 6102).
The TRA’s letter of advice of 7 December 1999 makes no reference to its having made an assessment of the standard of the applicant’s formal qualifications, work experience, or a combination of the two, as at a time at least three years before the date of his visa application.
Does the applicant fall within the terms of Item 6103? He contends that he does on the basis that the only reason that he fails to fall within the terms of Item 6102 is that he was not assessed as having achieved equivalence to the Australian standards for his occupation at least three years before the date of his visa application. However, he was assessed by TRA as having achieved that equivalence with deemed effect from 24 November 1999. The respondent contends that Item 6103 is only directed to circumstances where an applicant achieves equivalence to the Australian standards for his or her occupation before the date of his or her visa application, albeit at a time that is less than three years before the date of his or her application. The principal issue for determination in this proceeding is thus the proper construction of Item 6103(a).
Clause 126.221 of Schedule 2 of the Migration Regulations 1994 reveals that the criterion of having the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act is one of a number of criteria to be satisfied at the time of the decision on the application. It is not a criteria that is required to be satisfied at the time of the application. It therefore does not flow from the time that the criterion is to be satisfied that paragraph 6103(a) is to be understood as applying only to an applicant who, before the date of his or her visa application, achieved equivalence to the Australian standard for his or her occupation.
Item 6103 is apparently designed to allow the awarding of a number of points, only marginally less than the number to be awarded to an applicant who falls within Item 6102, to an applicant who falls outside Item 6102 only because he or she fails to meet the time requirements of one of paragraphs (c), (e) or (f) of Item 6102.
Item 6107, by contrast, is apparently designed for a different purpose, namely, to allow the awarding of a small number of points to an applicant who either comes to Australia with only modest education, and training or experience which does meet Australian standards or, alternatively, with a superior formal qualification which does not meet Australian standards.
The applicant does not readily fit within either limb of Item 6107. As to the first limb, his formal qualifications are superior to a certificate or advanced certificate. Moreover, it does not appear that the occupation Tradesperson (Radio and Television) is an occupation entry to which in Australia requires a certificate or advanced certificate. The second limb of Item 6107 is dependent on an assessment by a relevant Australian authority that the applicant’s formal qualifications are not equivalent to Australian standards for his or her occupation. TRA did not by the letter of 7 December 1999 indicate that it had made any assessment of non-equivalence. The letter does not make clear whether the assessment undertaken by TRA was an assessment that the applicant’s formal qualifications were equivalent to the Australian standards for his occupation, an assessment that his work experience was equivalent to the Australian standards for his occupation, or an assessment that the combination of his formal qualifications, trade training and work experience were together equivalent to the Australian standards for his occupation. Rather, TRA advised that the applicant had “achieved the equivalent Australian standard for the purpose of migration to Australia” in the classification of Tradesperson (Radio and Television). It seems likely that the assessment undertaken by TRA was an assessment of the combination of the applicant’s formal qualifications, trade training and work experience. However, unlike subparagraph 6102(c)(iii), for example, subparagraph 6107(b)(iii) does not attach significance to an assessment of a combination of formal qualifications or training and work experience.
The decision-maker acted on the basis that, by deeming the applicant “to have achieved the equivalent Australian standard for the purpose of migration to Australia [on] 24 November 1999”, TRA had assessed his diploma and trade certificate or his work experience as not equivalent to Australian standards for that occupation within the meaning of subparagraph 6107(b)(iii). It seems clear that the decision maker understood subparagraph 6107(b)(iii) to require an assessment of equivalence as at the time that an applicant applies to enter Australia. I am prepared to assume for present purposes that an assessment of equivalence deemed to have been achieved on a particular day is the equivalent of an assessment of non-equivalence in respect of all earlier dates. However, while Item 6107(a) is framed so as to require that an applicant satisfy subparagraphs (i), (ii) and (iii) when he or she “applies to enter Australia”, Item 6107(b) is not so framed.
A similar difference in wording is seen between Items 6101 and 6102. While Item 6101(a) refers to an applicant who “applies to enter Australia on the basis of” an occupation that meets the criteria specified in subparagraphs (i)-(iv), Item 6102 contains no such reference. Some of the criteria referred to in Item 6102 (and in other items) necessarily relate to a period of time before the making of the application. For example, the term “usual occupation” is defined by reg 2.26 to mean:
“an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.” (emphasis added)
See also paragraph 6102(f) which by its terms is confined to a period ending before the date of the relevant application. However, paragraph 6102(d), which is logically capable of being satisfied either before or after the date of application, does not by its terms require that an applicant satisfy its requirements at the time that he or she “applies to enter Australia”. It seems that the drafter of the Items was conscious of the need to provide expressly for certain criteria to be satisfied at or before the time of application where this was the intention and the nature of the criteria itself did not ensure that this was the case.
I therefore conclude that the decision-maker erred in construing subparagraph 6107(b)(iii) as requiring an assessment of equivalence as at the time that the applicant applied to enter Australia. On a proper construction of Item 6107, the applicant did not fall within its terms. I note that, having regard to the applicant’s qualifications, training and experience, this result fits more comfortably with the structure of Part 1 of Schedule 6 (see para 9 above) than the result arrived at by the decision-maker.
I turn to consider Item 6103. As is mentioned above, the respondent contends that paragraph (a) of Item 6103 is only directed to circumstances where an applicant achieves equivalence to the Australian standards for his or her occupation before the date of his or her visa application. The paragraph does not expressly so provide and, for the reasons given above in respect of subparagraph 6107(b)(iii), I can see no reason to imply into the item the limitation for which the respondent contends.
In my view, the decision-maker erred by not giving consideration to whether the applicant was entitled to be awarded 60 points by reference to Item 6103. The decision will be set aside and the matter referred to the respondent for further consideration according to law.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 29 November 2000
Counsel for the Applicant: Mr M Smith Solicitor for the Applicant: Adrian Joel & Co Counsel for the Respondent: Ms R Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 October 2000 Date of Judgment: 1 December 2000
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