Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 580
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 580
File number(s): MLG 2145 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 22 July 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – citizen of India – Skilled (Provisional) (Class VC) visa – whether bias – whether irrelevant material considered – whether failure to consider relevant information – whether regulations misconstrued – whether jurisdictional error
WORDS AND PHRASES – “closely related”
Legislation: Migration Act 1958 (Cth) ss 474, 476
Migration Regulations 1994 (Cth) Sch 2, cl 485.213
Cases cited: 1602950 (Migration) [2016] AATA 4120
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 657
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Manik v Minister for Immigration and Citizenship [2012] FCA 619; (2012) 128 ALD 539
Manik v Minister for Immigration and Citizenship [2012] FMCA 149
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Home Affairs [2020] FCA 203
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
Talha v Minister for Immigration and Border Protection and Another [2015] FCAFC 115; (2015) 235 FCR 100
Tobon v Minister for Immigration & Anor [2014] FCCA 2208; (2014) 289 FLR 173
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 5 October 2021 Place: Perth Applicant: In person via CISCO Webex (with the assistance of an interpreter) Counsel for the First Respondent: Ms B Roscoe via CISCO Webex Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2145 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURVIKRAMJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
22 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 4 October 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, Mr Gurvikramjit Singh (“Mr Singh”) on 4 October 2016 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 16 September 2016. The Tribunal affirmed a 19 April 2013 decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant Mr Singh a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa (“Skilled Visa”).
The Judicial Review Application contains three grounds of review. The grounds of review are set out at [6] below.
The Court has before it the following materials:
(a)the Court Book (“CB”) numbering 275 pages which was marked as “Exhibit 1”;
(b)Mr Singh’s affidavit filed 4 October 2016 (“Mr Singh’s Affidavit”);
(c)the Minister’s written submissions filed 24 May 2017 (“Minister’s Submissions”);
(d)Mr Singh’s written submissions filed 5 September 2021 (“Ms Singh’s Submissions”);
(e)the Minister’s further written submissions filed 17 September 2021 (“Minister’s Further Submissions”); and
(f)the transcript of the hearing on 5 October 2021 (“Transcript”).
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)Mr Singh is a 32 year old citizen of India: CB 1-2;
(b)Mr Singh arrived in Australia on 20 April 2008: CB 56;
(c)on 21 November 2012 Mr Singh applied for the Skilled Visa: CB 1-14. In his Skilled Visa application Mr Singh nominated his skilled occupation role (“Skilled Occupation”) as a “Welfare Worker”: CB 10;
(d)on 19 April 2013 the Skilled Visa application was refused by the Delegate on the basis that Mr Singh did not satisfy cl 485.213(b) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 103-110;
(e)on 23 April 2013 Mr Singh applied for review to the Tribunal (then the Migration Review Tribunal): CB 112-122;
(f)on 26 August 2014 Mr Singh appeared before the Tribunal for a hearing (“First Tribunal Hearing”). Mr Singh attended with his legal representative. The hearing went for over an hour: CB 153-155;
(g)on 25 September 2014 the Tribunal affirmed the Delegate’s Decision: CB 162-167;
(h)on 10 October 2014 Mr Singh applied for judicial review of the 25 September 2014 Tribunal decision;
(i)on 21 September 2015 this Court, differently constituted, made orders (amended on 26 November 2015) quashing the 25 September 2014 Tribunal decision and remitting the application to the Tribunal: CB 168-170;
(j)on 7 September 2016 Mr Singh appeared before the Tribunal, differently constituted, for a hearing (“Second Tribunal Hearing”). Mr Singh attended with his migration agent. The hearing went for over two hours and twenty minutes: CB 215-218;
(k)on 16 September 2016 the Tribunal handed down the Tribunal Decision, affirming the Delegate’s Decision: CB 246-262; and
(l)on 4 October 2016 Mr Singh filed the Judicial Review Application in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia).
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)noted that the term “closely related” was not defined in the Migration Act, and considered recent case law about how the term had been interpreted, including the judgment of the Full Court of the Federal Court in Talha v Minister for Immigration and Border Protection and Another [2015] FCAFC 115; (2015) 235 FCR 100 (“Talha”). The Tribunal acknowledged that, in light of Talha, it ought to have regard to the Australia and New Zealand Standard Classification of Occupations (“ANZSCO”) and all the potentially relevant tasks which were applicable to the nominated occupation, and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation in ANZSCO: CB 249 at [18] and [21];
(b)also noted the judgments in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (“Dhillon”) and Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 657 (“Constantino”), which held that in evaluating whether a nominated occupation was “closely related”, “the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: CB 249 at [19]-[20];
(c)further noted the decision in Manik v Minister for Immigration and Citizenship [2012] FMCA 149, upheld on appeal: Manik v Minister for Immigration and Citizenship [2012] FCA 619; (2012) 128 ALD 539, that indicated that all the courses relied on to meet the study requirement need to be closely related to the nominated skilled occupation: CB 250 at [24];
(d)in assessing whether Mr Singh’s qualifications were “closely related” to the nominated occupation, had regard to ANZSCO, the oral evidence of Mr Singh, the subjects that comprised the relevant courses as set out in the statements of results attained by Mr Singh and the other materials provided by him: CB 254 at [32];
(e)noted the multiple written submissions provided by Mr Singh and the evidence that he provided at the First Tribunal Hearing regarding the relationship between the occupation of Welfare Worker as described in Australian Standard Classification of Occupations (“ASCO”) and his business studies: CB 254 at [33];
(f)explained that as this evidence (at the First Tribunal Hearing) pertained to the ASCO tasks description, the Tribunal held the Second Tribunal Hearing to take evidence as to whether Ms Singh’s qualification were closely related to the nominated occupation of Welfare Worker as described in ANZSCO: CB 254 at [34];
(g)was satisfied that the Diploma of Community Welfare Work (“Welfare Diploma”) is related to the nominated occupation of Welfare Worker: CB 254-255 at [35];
(h)was satisfied that after considering the various subjects that comprised the Welfare Diploma, that the Welfare Diploma had a focus and content that was specific to the occupation of a Welfare Worker and corresponding ANZSCO codes: CB 255 at [36];
(i)in relation the Diploma of Business (“Business Diploma”) and whether it is “closely related” to the occupation of Welfare Worker, had regard to the course subjects in the Business Diploma and Mr Singh’s explanations of what matters each of the subjects covered: CB 255-256 at [37]-[39];
(j)noted that it invited Mr Singh to comment on whether the subjects in the Business Diploma are closely related to the various tasks in the hierarchy in ANZSCO and asked him: CB 256-258 at [41]-[46], and asked him how various subjects in the Business Diploma were closely related to the occupation of Welfare Worker and other possibly relevant occupations and tasks related to those occupations as described in the ANZSCO;
(k)expressed its concern about whether both the Welfare Diploma and Business Diplomas were “closely related to the occupation”: CB 258 at [47] (emphasis in original). Mr Singh stated that not all subjects are related but there are subjects that will help him to be a good Welfare Worker: CB 258 at [47];
(l)noted Mr Singh’s migration agent’s submission that:
(i)the Business Diploma may not appear closely related, was generic in nature and can be applied in any other discipline and is relevant to the tasks of the nominated occupation of Welfare Worker; and
(ii)at face value that several tasks relating to the occupation appeared to be different to the tasks described but that the Business Diploma is generic in nature and is closely related to the tasks for a Welfare Worker: CB 258 at [48];
(m)noted the documents submitted by Mr Singh’s migration agent including: CB 258-259 at [49]-[50]:
(i)a document from a carer centre website of the Western Australian government setting out the role, skills, attributes and working arrangements applicable to a “community worker”, which the Tribunal placed limited weight on, noting that to be eligible for a skilled visa the applicant must identify a specific skilled occupation in the relevant legislative instrument, being IMMI 12/065; and
(ii)a document from the seek.com.au website setting out information about the career of a “welfare support worker”, which the Tribunal placed no weight on, primarily because it was information regarding a “welfare support worker”, which is separately defined in ANZSCO and is not listed under the categorisation of Major Group 2 of occupations;
(n)after carefully considering the evidence, was not satisfied that the Business Diploma is closely related to the nominated occupation of Welfare Worker, but accepted that in a general sense there was a relationship between the course subjects for the Business Diploma and the tasks of the occupation: CB 259 at [52];
(o)was not satisfied that the Business Diploma is “closely related” to the occupation of Welfare Worker: CB 259 at [53];
(p)considered that the range of tasks of the Welfare Worker occupation form part of the professional tasks of “identifying treating, and advising on, health, social and personal issues”: ANZSCO Major Group 2 tasks, but did not consider that the subject matter in the Business Diploma was closely related to the overall professional task as described in Major Group 2, or to the role description: CB 259-260 at [54];
(q)outlined some examples of Mr Singh giving evidence of how the Business Diploma was relevant to the tasks in Minor Group 272 and the relationship between the Business Diploma and the tasks of a Welfare Worker and noted how the Tribunal was not satisfied by the links or relationships Mr Singh claimed existed: CB 260-261 at [55]-[62];
(r)was “mindful” that Mr Singh’s migration agent described the Business Diploma as a “‘generic course’ which is transferable and can be applied in any other discipline” but was “very mindful” that the regulation requires that the qualification is “closely related” and the word “closely” must be given effect to, and did not consider that a generic Business Diploma could be described as “closely related” to the occupation of Welfare Worker: CB 261 at [62];
(s)noted that the Tribunal was not bound to apply the Tribunal decision in 1602950 (Migration) [2016] AATA 4120 (“1602950”), and that in any event, in that case the Tribunal was considering whether the qualification for a Diploma of Business Management was closely related to the nominated occupation of pastry cook and did not consider the findings in that case were of assistance, noting it considered a different course and a different occupation: CB 261-262 at [63];
(t)was not satisfied that the Business Diploma qualification is closely related to the nominated Skilled Occupation of Welfare Worker: CB 262 at [64]; and
(u)subsequently found the Business Diploma was not closely related to the nominated skilled occupation, and that Mr Singh therefore did not meet cl 485.213(b) of Sch 2 to the Migration Regulations: CB 262 at [64]-[66].
JUDICIAL REVIEW APPLICATION
Grounds
The grounds of the Judicial Review Application are as follows:
1.Member was biased. When I arrived at hearing she was already prepared to make decision. She was not interested to listen to me.
2.She looked at the wrong information and did not consider right information. She spent time discussing about non-relevant qualifications.
3.Member did not look at skills set required to work as welfare worker.
Prior Litigation History
The prior litigation history of this matter is principally set out in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550 (“Singh”) at [2] per Judge Lucev. In summary, the Judicial Review Application was filed in the Melbourne Registry of the Court on 4 October 2016, listed for hearing on 12 September 2019, but then adjourned, and reallocated to the Perth Registry of the Court in June 2021, at which time it was listed for hearing on 12 July 2021. Mr Singh requested an adjournment, and following a hearing of an opposed application for adjournment on 5 July 2021, the Court made orders adjourning the 12 July 2021 hearing to a further hearing on 5 October 2021: Singh at [27] per Judge Lucev. The hearing on that date proceeded, and these Reasons for Judgment relate to the hearing on that day.
Jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne J.
SUBMISSIONS
Mr Singh’s Submissions
In Mr Singh’s Affidavit, Mr Singh repeated the grounds of the Judicial Review Application (albeit differently numbered).
In accordance with orders made on 5 July 2021, Mr Singh’s Submissions were filed on 5 September 2021, and provided extensive written submissions regarding grounds 2 and 3 including the following:
(a)ANZSCO information on ANZSCO code 272613 Welfare Worker;
(b)Job Outlook screenshots;
(c)links to and information about social skills in the workplace reproduced from thebalancecareeers.com, a North American careers and lifestyle website;
(d)ANZSCO information on ANZSCO Major Group 2 Professionals;
(e)ANZSCO information on ANZSCO Minor Group 272 Social and Welfare Professionals;
(f)references to cases including Talha, Constantino and Tobon v Minister for Immigration & Anor (2014) FCCA 2208; (2014) FLR 173 (“Tobon”); and
(g)links to and information about a Social/Welfare worker – Rehabilitation Services position description reproduced from Lyndoch Living via lyndoch.org.au, an independent aged, retirement and assisted living service in Victoria.
Mr Singh’s Submissions, relevantly, were as follows (and wherein the page references are references to pages in Mr Singh’s Submissions):
(a)his Australian Qualifications Framework (“AQF”) qualifications are relevant to his Nominated Occupation of Welfare Worker: page 1;
(b)he had been successful in completing various business and management courses and the Welfare Diploma over 2010 to 2012: page 2;
(c)the Tribunal had concluded that:
… if the Diploma of Community Welfare Work and Diploma of Business are “closely related” then cl.485.213(b)) is met. However, if the Diploma of Business is not closely related then cl.485.213(b) is not met – noting that the Diploma of Business is the only course completed 6 months immediately preceding the visa application being lodged, such that the applicant meets the requirements in cl.485.213(a): CB 250 at [25]
and that the Tribunal was satisfied that Mr Singh met the requirement in cl 485.213(a) of Sch 2 to the Migration Regulations by studying the Business Diploma and the Welfare Diploma, and the Business Diploma was completed in the period of six months immediately before the day on which his Skilled Visa application was made;
(d)the Procedures Advice Manual (“PAM”) explanatory policies about “closely related” study provide as follows: page 2
Even if an applicant otherwise meets the Australian study requirement referred to in 485.221, 485.222 requires the completed Australian degree, diploma or trade qualification/s to be ‘closely related’ to the applicant’s nominated skilled occupation.
(e)he accepted under policy the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill or skills underpinning the qualification or qualifications are directly transferrable to the nominated occupation, in terms of both subject content and the level of qualification at which those skills were attained by the nominee, which, in this case, is the skills of a Welfare Worker: pages 2-3;
(f)he had lodged his Skilled Visa application on 21 November 2012 with a skills assessment applied for with the Australian Community Workers Association in the nominated skilled occupation of Welfare Worker, and relied upon the completion of the Business Diploma as his most recently completed qualification: page 3;
(g)his study in the Business Diploma is relevant to his Nominated Occupation of Welfare Worker, pointing (at page 3) to:
(i)how ANZSCO defines the tasks of a Welfare Worker;
(ii)how the Business Diploma had enabled him with the skills required that are relevant to the job of a Welfare Worker, citing and quoting an article titled “7 Reasons to Start a Career in Community Services” from courses.com.au: page 4;
(iii)how Welfare Workers need to be able to relate themselves to the skills required to interact or be a part of any business. Generically, the nominated position does not give any impression that it is directly related to the study based upon business, however, as a Welfare Worker he cannot work on his own and must seek a job in any established business and if he does not know how to integrate in that business then that will pose the biggest challenge to him in any setting;
(iv)screenshots from an Australian government website, Job Outlook, showing the possible industries Mr Singh might be able to join to perform his job: pages 5-6;
(v)a reference to an article titled “Top Social Skills for Workplace Success” from thebalancecareers.com: pages 6;
(vi)set out, at page 7, how his study in the Business Diploma:
… not only provided me with an insight into business practices and business environment of current times, rather it also gave me valuable knowledge regarding deep integral components that facilitate efficient and sustainable change. It is a known fact that the idea of crunching numbers often is enough to make individuals cringe, but from the perspective of a social/community worker, understanding and interpreting statistics makes a huge difference. Statistics is more about developing logical reasoning than just number crunching. When conducting community work research with the goal of advancing the knowledge in the field, statistics is an essential tool that enables social and community workers to draw a story out of the mountains of statistical data unearthed. Having a foundational knowledge in statistics will ensure that I can work with community and analyse the feedback productively. The community/social dimension of sustainability does not appear at first glance, even though social welfare and sustainability are closely related. Social and community welfare refers to physical and mental well-being, while sustainability references the balance that exists between the economic, environmental, and social aspects of a social and economic system. Together these attributes would help me to define a society that may promote sustainable outcomes in consideration and inclusive of individual and communal satisfaction.
(vii)his Skilled Visa application and that it should be looked at by going beyond the ANZSCO code of the Nominated Occupation and looking at the overall group rather than just the Nominated Occupation of Welfare Worker, and that he had clearly gained an edge by gaining highly specialised knowledge to work within any business using his social and interpersonal skills: page 7;
(viii)screenshots from Job Outlook regarding the skills and knowledge of Welfare Support Workers: pages 8-9, and that this demonstrated that the Nominated Occupation of Welfare Worker is not limited to just work as a sole worker in the community but that there were chances to expand “your domain” by setting up businesses such as aged care homes or disability support homes and “work in liaison with agencies” like the National Disability Insurance Scheme (“NDIS”): page 9;
(ix)cited, at page 10, the Tribunal’s remarks at CB 249 at [18] concerning the meaning of the words “closely related” and the Tribunal’s acknowledgement that the qualification and occupation do not require an exact correspondence, however the relationship must be more than merely complimentary;
(x)an extract from ANZSCO for Major Group 2 which has “detailed explanation for the skills required to work under the major group of professionals”: page 10;
(xi)further information from ANZSCO sub-major group 27 and minor group 272: pages 11-12;
(xii)that the Tribunal was satisfied that the Welfare Diploma is related to the nominated occupation of Welfare Worker. This course included subjects such as work with clients intensively; provide advocacy and representation; plan and conduct group activities; develop and implement and promote effective communication techniques; develop, facilitate and monitor all aspects of case management; respond holistically to client issues; improve upon counselling skills; work within a structured counselling process; meet statutory and organisational information requirements; work with clients intensively; reflect and improve upon professional practice; and provide nonclinical services to people with mental health issues: CB 254-255 at [25];
(xiii)the issue for the Judicial Review Application being that it was to determine whether Mr Singh’s study of the Business Diploma is closely related to the tasks mentioned in the screengrabs taken from the ANZSCO website: page 13;
(xiv)Talha stated that the evaluation that is required to decide whether a nominated occupation is “closely related” to an applicant’s Australian studies must consider “the whole of (the) Australian studies compared with the whole of the nominated occupation” and that “the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”;
(xv)in order to determine if the study is closely related it is important to look at the ANZSCO code in totality and not just a chunk of it. If some of the tasks present in the “minor group” or “sub-major group” within which the nominated position falls then it should be considered as closely related: page 13;
(xvi)Tobon affirmed that “the skills to which the … qualification … relates must be capable of being used for more than a small part of the nominated skilled occupation” and discarded the interpretation of the decision-maker which was concluded from the PAM demanding that the skills gained via any studies must be “directly transferable” to the nominated occupation, because the legislation does not stipulate that the skills be directly transferable: page 13;
(xvii)even though the Tribunal confirmed that there was a “relationship in a general sense” between the subjects of the Business Diploma and Nominated Occupation’s tasks, it did not consider a decision of the Tribunal in 1602950 where the Tribunal accepted there was relevance between an applicant’s Diploma of Business Management and nominated occupation of pastry cook: page 13;
(xviii)a screenshot of a position description for a Welfare Worker from Lyndoch Living, a residential aged care centre in Victoria: page 14;
(xix)any social or welfare worker does not work as a “sole trader” but gets opportunities to work in a business setting such as aged care, rehabilitation centres or with the NDIS, and that if the Tribunal could approve the closely related criteria between pastry cook and a Diploma of Business Management based upon the fact that the pastry cook works in a different environment than that of a Welfare Worker as it did in 1602950, and that although the business environments are different the point is that as pastry cooks are required to merge and adapt to the employer’s policies, similarly, welfare workers are recruited by firms and if they have no understanding of the business operates he did “not think any firm can run productively after recruiting a welfare worker who has only basic knowledge about the community service and has no idea about the operational structure of the business”: page 15;
(xx)a screenshot of a search for Welfare Worker positions in Victoria on indeed.com.au with a Case Worker position with EmploymentPlusAU highlighted: page 15; and
(xxi)people are working with NDIS to set up businesses where they can perform various roles, and that concluding that a Welfare Worker does not need business skills but a pastry cook does would be incorrect, as a worker would have to manage the staff, recruitment and analyse feedback from the people they are looking after as they have to deal with the most vulnerable sectors of the society: page 15; and
(h)the Court should consider the fact that while performing the work of a Welfare Worker or finding an opportunity to work as a Welfare Worker, he would rely upon skills learnt in the Business Diploma as he had explained through the various screenshots and references: page 16.
Minister’s Submissions
In relation to ground 1 the Minister’s Submissions were that:
(a)an allegation of bias is a serious allegation which needs to be sufficiently particularised and supported by evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”); and
(b)Mr Singh has failed to make out either apprehended or actual bias and that:
(i)there is nothing on the face of the Tribunal Decision that suggests it acted with bias or with a closed mind;
(ii)on a fair reading of the Tribunal Decision, it is evident that the Tribunal invited Mr Singh to comment on the issue dispositive to the review, being whether the Business Diploma was closely related to the nominated occupation of Welfare Worker. The Tribunal considered the evidence in response to this issue, and concluded that the Business Diploma was not closely related to the nominated skills occupation. This was a finding open to the Tribunal on the material before it. In this context, Mr Singh’s assertion of bias appears to be no more than dissatisfaction with the Tribunal Decision to affirm the Delegate’s Decision; and
(iii)while Mr Singh asserts the Tribunal was not interested in listening to him, he has not filed a transcript of the Second Tribunal Hearing. The Tribunal Decision indicates that the Tribunal thoroughly considered Mr Singh’s evidence given at Second Tribunal Hearing.
In relation to grounds 2 and 3 the Minister’s Submissions (filed on 24 May 2017) were that:
(a)grounds 2 and 3 assert that the Tribunal did not consider the right information, and in particular, discussed non-relevant qualifications and did not look at the skills set required to work as a welfare worker;
(b)the Tribunal has correctly had regard to the ANZSCO qualifications it was required to consider, and grounds 2 and 3 cannot be made out;
(c)consideration of grounds 2 and 3 requires consideration of the judgments of the Full Court of the Federal Court in Dhillon and Talha, and set out lengthy passages related to whether an applicant’s qualifications might be said to be “closely related” to the relevant nominated skilled occupation;
(d)the effect of Talha is that in determining whether a qualification is “closely related” to a nominated occupation, regard must be had to the various tasks described within the various hierarchical levels of the relevant ANZSCO code;
(e)in the present case, the Tribunal acknowledged its obligation to consider the tasks set out in the higher classifications of ANZSCO: CB 250 at [26]. The Tribunal then set out the tasks relevant to the classification of Welfare Worker, including the tasks set out in the higher classifications in ANZSCO: CB 250-254 at [27]-[31]. The Tribunal then in detail assessed the skills set out in those tasks with the skills acquired in Mr Singh’s Business Diploma: CB 254-259 at [33]-[51], and so compared the “whole of the qualification with the whole of the occupation to determine whether the necessary close relationship exists”, as required by Dhillon and Constantino;
(f)significantly, Mr Singh has not identified any other relevant part of ANZSCO that Mr Singh asserts was not considered by the Tribunal. On the contrary, Mr Singh appeared, at least in part, to accept that the ANZSCO groups identified were the ones relevant, with the Tribunal Decision recording at CB 259 at [52] that “the applicant agreed this is the only relevant task in the list of tasks in ANZSCO Major Group 2”;
(g)in such circumstances Mr Singh has failed to raise any jurisdictional error in the Tribunal's application of ANZSCO; and
(h)the Minister also submits, for completeness, that the Tribunal has not made any of the four errors identified in Tobon (summarised in Talha at [65] per Griffiths, Mortimer and Beach JJ). In particular, the Tribunal in this matter did not proceed on the basis that cl 485.213(b) of Sch 2 to the Migration Regulations required that the skills, or at least a substantial proportion of the skills for the Business Diploma, are skills that can only be used in the nominated skilled occupation. Rather, the Tribunal accepted that there was a relationship in a general sense, and that some subjects were complementary, but found that that they were not “closely” related. In so finding, the Tribunal explicitly acknowledged that the Business Diploma was a generic course which was transferable and can be applied in any other discipline: CB 261 at [62].
The Minister’s Further Submissions addressed those issues specifically raised by Mr Singh in Mr Singh Submissions as follows:
(a)the Tribunal correctly applied principles in Talha and Constantino and Mr Singh’s Submissions do not point to any error on the part of the Tribunal because the Tribunal:
(i)explicitly acknowledged the principle established in Talha: CB 250 at [26]. It noted that in ANZSCO the nominated occupation of Welfare Worker was located in the Major Group 2 ‘Professionals’, Sub-Major Group 27 ‘Legal, Social and Welfare Professionals’, Minor Group 272 ‘Social and Welfare Professionals’, and Unit Group 2726 ‘Welfare, Recreation and Community Arts Workers’: CB 250 at [27] and proceeded to set out the tasks relating to each major, sub-major, minor and unit group as described in ANZSCO: CB 250-254 at [28]-[31];
(ii)set out the evidence given by Mr Singh at the Tribunal Hearing with respect to the subjects undertaken in the Business Diploma: CB 255-256 at [38]-[39], and invited Mr Singh to comment on “whether the subjects in the Diploma of Business are closely related to the various tasks in the hierarchy in ANZSCO”: CB 256 at [40]. The Tribunal Decision indicates that it asked Mr Singh to explain how the subjects in the Business Diploma were closely related to the occupation of:
(A)Welfare Worker and the task described at ANZSCO 272613: CB 256 at [41];
(B)welfare, recreation and community arts worker and the task described at ANZSCO Unit Group 2726: CB 257 at [42];
(C)social and welfare professional and the tasks described at Minor Group 272: CB 257 at [43];
(D)legal, social and welfare professionals and the tasks described at Sub-Major Group 27: CB 258 at [44]-[45]; and
(E)the occupation of professionals and the tasks described at Major Group 2: CB 258 at [46];
(iii)accepted that there were subjects in the Business Diploma that, “in a general sense”, could be related to the nominated occupation of welfare worker and were “complementary to some of the tasks of a Welfare Worker as described in the various classifications from Group 27 and lower in the hierarchy”: CB 259 at [52], but, after assessing in detail the skills set out in the various ANZSCO tasks with the skills acquired in the Business Diploma: CB 259-261 at [54]-[62], the Tribunal was not satisfied that the Business Diploma was closely related to the nominated occupation of Welfare Worker: CB 262 at [64]; and
(iv)correctly and thoroughly compared the whole of the qualification with the whole of the occupation to determine whether the necessary close relationship existed, as required by Talha and Constantino. Mr Singh does not point to any specific error in the Tribunal’s treatment of ANZSCO in relation to the nominated occupation, and none is apparent and Mr Singh’s Submissions on this point ultimately amount to no more than an expression of disagreement with the Tribunal Decision;
(b)at pages 13-14 of the Mr Singh’s Submissions, Mr Singh also cites Tobon to assert that the skills to which the Business Diploma relates must be capable of being used for more than a small part of the nominated skilled occupation, and that there is no requirement for the skills gained to be “directly transferrable” to the nominated occupation. The Minister accepts this proposition, but submits that the Tribunal correctly applied this principle; and
(c)the Tribunal did not proceed on the basis that cl 485.213(b) of Sch 2 to the Migration Regulations required that the skills, or at least a substantial proportion of the skills, gained in the Business Diploma were skills that could only be used in the nominated skilled occupation. Rather, the Tribunal accepted that there was a relationship in a general sense, but found that they were not closely related and in so finding, explicitly acknowledged that the Business Diploma was a “generic course which is transferrable and can be applied in any other discipline”: CB 261 at [62].
The Minister’s Submissions in relation to Mr Singh’s claims about the Tribunal’s consideration of 1602950 were as follows:
(a)Mr Singh submits that the Tribunal did not consider 1602950 “where the Tribunal accepted relevancy between diploma of business and pastry cook as a nominate occupation” (reproduced unaltered): Mr Singh’s Submissions at page 14;
(b)contrary to that assertion the Tribunal noted that Mr Singh’s migration agent had submitted that the Tribunal should have regard to the decision in 1602950: CB 261 at [63]. The Tribunal noted that it was not bound to apply 1602950 and that the case concerned whether the qualification for a Diploma of Business Management was closely related to the nominated occupation of pastry cook, and in that case the Tribunal had formed the view that a pastry cook operated in a business environment. The Tribunal “did not consider the findings in that case were of assistance noting that it considered a different course and different occupation”: CB 261-262 at [63];
(c)the Tribunal considered 1602950, but was not satisfied that it was of relevance to Mr Singh’s case. The weight given to evidence presented by Mr Singh was a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, and the Tribunal was entitled to accept or reject or give such weight to the evidence as it thought appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J, and no jurisdictional error is established or apparent; and
(d)Mr Singh’s claims about the Tribunal Decision constitute claims for impermissible merits review and Mr Singh Submissions otherwise offer no explanation as to why he believes the skills gained in the Business Diploma are relevant to the nominated occupation of Welfare Worker. The evidence Mr Singh has supplied, such as quotes from blogs and screenshots from employment websites to support his point of view, are submissions that rise no higher than an invitation for the Court to impermissibly review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The Tribunal’s findings were reasonably open to it for the reasons which it gave.
CONSIDERATION
Ground 1
Bias is a serious allegation which must be firmly and distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Mr Singh has pointed to no evidence which suggests bias on the part of the Tribunal, and there is therefore no evidence or indication that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake any proper assessment of relevant materials: Jia Legeng at [35] and [71]-[72] per Gleeson CJ and Gummow J. The Court’s view is that the Tribunal considered the Judicial Review Application in a proper and entirely orthodox manner: see, for example, the Tribunal’s observations and findings as set out at [5] above.
In the circumstances, there is nothing in the allegation of bias to establish jurisdictional error in the Tribunal Decision, and ground 1 of the Judicial Review Application is not made out.
Grounds 2 and 3
In Dhillon at [20] per Allsop CJ, Murphy and Pagone JJ the Full Court of the Federal Court said as follows about whether a visa applicant’s qualifications could be said to be “closely related” to the appellant’s nominated skilled occupation:
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 …
In Talha at [22] per Griffiths, Mortimer and Beach JJ, the Full Court noted a salient feature of the ANZSCO as follows:
22.… It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy.
In Talha at [51]-[52] per Griffiths, Mortimer and Beach JJ stated, in criticising the Tribunal’s decision in that case, that:
51.It is evident that in reaching that conclusion, the Tribunal only took into account the tasks performed by an Engineering Technologist as described in Unit Group 2339 (as well as the information relating to the occupation of Engineering Technologist which was provided in that part of the ANZSCO Code which dealt with ANZSCO 233914). The Tribunal made no reference to relevant higher hierarchies or groupings in the ANZSCO Code, of which Unit Group 2339 formed part. In particular, it made no reference to the information provided in Minor Group 233 Engineering Professionals and the description therein of relevant tasks, many of which are in the nature of business management tasks (and are not confined to any particular field of engineering). That is the fundamental point which Mr Talha made in his statement dated 25 September 2013 even though he made no specific reference there to other relevant task descriptions in the ANZSCO Code.
52.In our view, the Tribunal fell into jurisdictional error by confining its approach to the weighing up of Mr Talha’s Australian studies against the tasks for an Engineering Technologist as set out in Unit Group 2339 and in the occupation of Engineering Technologist. Notably, it made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Engineering Professionals, which included Engineering Technologists. Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation of Engineering Technologist and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation …
In Singh v Minister for Home Affairs [2020] FCA 203 at [23]-[25] per Derrington J, the Federal Court considered the meaning of “closely related”:
23.As is apparent from the Tribunal’s reasons, it considered the trio of relevant cases in this Court on the meaning of “closely related”: Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 (Dhillon); Talha v Minister for Immigration & Border Protection (2015) 235 FCR 100 at [53] and Constantino v Minister for Immigration & Border Protection (2013) 139 ALD 567 at [26].
24. The principles to be derived from those three cases are not in issue. They are:
(a)The words “closely related” require a consideration of the connection between two things, being the relevant course of study and the occupation the subject of the visa application.
(b)The comparison does not require a finding of an exact correspondence between the course of study and the occupation but 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.
(c)A conclusion that the qualification and the occupation are “closely related” requires more than a conclusion that the two things are complementary, or that the qualification might be applied or utilised in the course of the nominated profession.
25. As the Tribunal noted, the nature of the nominated occupation is to be determined by reference to the “Australian and New Zealand Standard Classification of Occupations” (ANZSCO), which needs to be read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. In considering the comparison between the course of study and the occupation, it is not appropriate to rely upon the applicant’s view or description of what the occupation entails or the applicant’s view of the degree of any relevant connection: Chawdhury v Minister for Immigration [2010] FMCA 275 at [12]; Kabir v Minister for Immigration & Citizenship (2010) 244 FLR 25 at [70]; Shafiuzzaman v Minister for Immigration [2011] FMCA 874 at [58].
The connection between the Business Diploma and the nominated occupation of Welfare Worker was not one which might be passing or convenient. Cl 485.213(b) of Sch 2 to the Migration Regulations required, if the relevant criteria for the Skilled Visa were to be met, for the connection to be one which could be classified as “closely related”. It is plain that the Tribunal recognised, and understood that that was the case, and that the relevant test required that the whole of the Business Diploma qualification had to be compared with the whole of the nominated occupation to determine whether the necessary close relationship existed, and in that regard, the Tribunal quoted from recognised authorities, including Dhillon, Talha and Constantino (and footnoted other cases): CB 249 at [18]-[19] and [21].
The Tribunal understood the hierarchical nature of the ANZSCO, and set out the relevant parts of ANZSCO for the purposes of the assessment relevant to the classification of Welfare Worker: CB 250-254 at [26]-[31].
The Tribunal set out at length its assessment of whether the Business Diploma qualification as a whole related to the tasks and classification of Welfare Worker as a whole, by reference to the available materials, including the detailed submissions made by Mr Singh: CB 255-262 at [37]-[62]. In the course of doing so the Tribunal observed at CB 259 at [52]-[53] as follows:
52.After carefully considering evidence the Tribunal is not satisfied that the Diploma of Business is closely related to the nominated occupation of welfare worker. The Tribunal accepts that in a general sense there is a relationship between the course subjects for the Diploma of Business and the tasks of the occupation. For example, managing projects has some relationship to developing, evaluating and maintaining community resources and programs and to assisting to establish and administer neighbourhood houses, community groups, employment training programs and other services, being tasks set out in unit group 2726. Similarly the subject managing meetings would assist in the task of assisting to establish and administer neighbourhood houses, community groups, employment training programs and other services, being a task in unit group 2726. The Tribunal accepts these subjects are complementary to some of the tasks of a welfare worker as described in the various classifications from Group 27 and lower in the hierarchy.
53.However, the Tribunal is not satisfied that the Diploma of Business is "closely related" to the occupation of welfare worker.
At CB 262 at [64]-[66] the Tribunal concluded that:
64.After reviewing the evidence available, the Tribunal is not satisfied that the qualification, the Diploma of Business, is closely related to the nominated skilled occupation of welfare worker.
65.As the applicant's qualification for the Diploma of Business is not closely related to the nominated skilled occupation the applicant does not meet cl.485.213(b).
66.On the basis of the above findings, the Tribunal finds that the applicant does not meet the requirements of cl.485.213 and does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
The Tribunal understood and applied the relevant test to all of the evidentiary materials before it, and it is not evident that there is any error in its application and understanding of the test as applied to those materials. Further, it is not apparent that there was any relevant claim or evidence or materials that were ignored or not considered by the Tribunal. Rather, the Tribunal Decision is a thorough going examination of the issues raised by Mr Singh, but in particular as to the nature of the Business Diploma qualification and how it relates to the nominated occupation of Welfare Worker. In the circumstances, Mr Singh’s Submissions primarily seek to challenge the merit of the Tribunal Decision, but having failed to identify any jurisdictional error in the Tribunal Decision, such a challenge on the merits is impermissible: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Reference to 1602950 does not assist Mr Singh. These cases are not determined by broad-based comparisons with other cases (and particularly where the comparator case involves a different qualification and nominated occupation), but rather by the application of the relevant test in cases such as Dhillon, Talha and Constantino. The test was properly considered and applied by the Tribunal to Mr Singh’s Business Diploma and nominated occupation for the reasons set out at [23]-[26] above.
In all the circumstances, grounds 2 and 3 of the Judicial Review Application have not been made out, and do not disclose jurisdictional error in the Tribunal Decision.
Jurisdictional Error Otherwise
The Court has been cognisant that Mr Singh is self-represented, and that the Court must therefore endeavour to remain independently alert to the possibility of a material jurisdictional error otherwise being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. The Court does not consider that there is an otherwise discernible material jurisdictional error in the Second Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that none of the three grounds in the Judicial Review Application have been made out, and that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 22 July 2022
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