Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 779
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 779
File number(s): MLG 117 of 2019 Judgment of: JUDGE SYMONS Date of judgment: 28 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where Tribunal affirmed the delegate’s decision to refuse the applicant a Skilled (Provisional) (Class VC) visa – whether the applicant’s educational qualification was “closely related” to the nominated skilled occupation – where Tribunal had regard to the ANZSCO description of the occupation – where Tribunal found that qualification must be more than complementary or useful to the nominated occupation to be closely related – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) Schedule 2 cll 485.221, 485.222
Cases cited: Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567; [2013] FCA 1301
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Singh v Minister for Home Affairs [2020] FCA 203
Talha v Minister for Immigration and Border Protection & Anor (2015) 235 FCR 100; [2015] FCAFC 115
Tobon v Minister for Immigration & Anor (2014) 289 FLR 173; [2014] FCCA 2208
Uddin v Minister for Immigration and Citizenship [2010] FCA 1281
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission: 21 August 2023 Date of hearing: 21 August 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents:
Mills Oakley
ORDERS
MLG 117 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKHDEEP SINGH
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
28 August 2023
THE COURT ORDERS THAT:
1.The application filed on 15 January 2019 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,400.
3.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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 SYMONS:
INTRODUCTION
By an application filed on 15 January 2019, the applicant seeks judicial review of a decision of the second respondent (the Tribunal) made on 18 December 2018. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicant a Skilled (Provisional)(Class VC) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act). The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of India. On 29 November 2016, he lodged an application for the visa in the Graduate work stream with the nominated occupation of “Motor Mechanic (General)” (CB 1-13; 37).
In his application the applicant listed the following educational qualifications (CB 11-12):
(a)Certificate III in Automotive Mechanical Technology completed on 27 April 2010;
(b)Certificate IV in Automotive Technology completed on 23 August 2010;
(c)Diploma of Automotive Technology completed on 27 April 2011; and
(d)Advanced Diploma of Business completed on 17 October 2016.
In order to meet the requirements for the grant of the visa, the applicant had to satisfy cl 485.221 and cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which provide:
485.221
The applicant satisfied the Australian study requirement:
(a)in the period of 6 months immediately before the day the application was made;
…
485.222
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
A person satisfies the “Australian study requirement” if the person satisfies the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses. [1]
[1] See Regulation 1.15F of the Regulations.
On 12 January 2017, a delegate of the Minister refused to grant the applicant the visa. The delegate found that the applicant’s automotive courses could not be relied upon to satisfy cl 485.221(a) because they were completed more than six months before the applicant applied for the visa. The delegate also found that while the Advanced Diploma of Business could “possibly assist the applicant in [his] future career plan” it was not closely related to the nominated occupation of Motor Mechanic (General). In reaching this conclusion, the delegate had regard to the Australian and New Zealand Standard Classification of Occupation (ANZSCO) description of “Motor Mechanic (General)” and noted that it did not refer to business related activities as benefitting this occupation. The delegate therefore found that the applicant did not meet the requirement of cl 485.222 and therefore did not meet the criteria for the grant of the visa.
On 27 January 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 46-47).
On 23 October 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 18 December 2018 (CB 55-62).
On 13 December 2018, the applicant provided a submission to the Tribunal in which he addressed the issue of the relevance of his Advanced Diploma of Business to his nominated occupation of automotive trade worker. The applicant explained that he wished to establish his own automotive business and that his Advanced Diploma of Business had given him the skills required to open, run and manage a business successfully. The applicant identified some of the units he had studied and explained how these would be useful to his future business, before concluding that these studies would assist him in securing employment in the nominated field of Motor Mechanic. For these reasons, he argued, the nominated occupation was “consistent” with the study he had undertaken (CB 67-71).
On 18 December 2018, the applicant participated in a hearing at the Tribunal with the assistance of an interpreter in the English and Punjabi languages (CB 72-74).
THE DECISION OF THE TRIBUNAL
On 18 December 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa and published a written statement of decision and reasons (Reasons) (CB 76 -81).
The Tribunal identified the issue on the review as whether the applicant could satisfy cl 485.221 and cl 485.222, being (some of) the primary criteria for the grant of a visa in the Graduate Work stream.
The Tribunal recorded the applicant’s study history (Reasons, [5]-[6]) and found that the only course the applicant had completed in the six-month period immediately before the day the visa application was made was the applicant’s Advanced Diploma of Business. The Tribunal found that it was this qualification that the application relied upon to meet the Australian study requirement for the purpose of cl 485.221. The question for the Tribunal was whether it could be satisfied that the Advanced Diploma of Business was closely related to the nominated occupation of Motor Mechanic (Reasons, [8]).
The Tribunal noted that it had considered the applicant’s submission (see [9] above) and the arguments he raised on the question of the relevance of the Diploma of Advanced Business to the nominated occupation of Motor Mechanic (General), including that he had chosen to study the business course to acquire the skills to be able to run his own business (Reasons, [9]).
The Tribunal observed however that the assessment required by the legislation related to the occupation nominated by the applicant (motor mechanic) rather than an occupation in which the applicant might wish to engage in the future. The Tribunal expressed the view that if the applicant was to decide in the future to run his own business, his occupation would be that of a manager or supervisor and not that of a motor mechanic (Reasons, [11]-[12]).
The Tribunal referred to the oral evidence given by the applicant that in a small business or workshop, mechanics also work as managers and that if the applicant was to run his own business, he would be performing such tasks as marketing, advertising and management of a team. The Tribunal noted however that it was required to consider the objective requirements for the occupation rather than the tasks the applicant believed he would perform in his role (Reasons, [13]).
The Tribunal cited authority for the proposition that if it was required to look at each individual’s specific job description, then the requirements for the grant of the visa would take on a subjective element that would appear to be inconsistent with the scheme of the Act. Instead, it was appropriate that the Tribunal have regard to the ANZSCO description rather than the applicant’s own description of what he did in the course of his employment (Reasons, [13]-[14]).
The Tribunal then set out an itemised list of tasks performed by motor mechanics taken from the relevant ANZSCO (Reasons, [15]). By reference to this list, the Tribunal expressed the view that they did not include business management or other tasks which the applicant claimed he had acquired as part of his Advanced Diploma (Reasons, [16]).
The Tribunal considered the applicant’s argument that having a business qualification would make him more employable, especially in a small business or workshop environment, where he would be expected to perform a variety of tasks. The Tribunal found however that the fact the applicant might utilise business knowledge when running his own business or working in a small business went no further than establishing, at best, the usefulness of the business qualification to the occupation. The Tribunal found that the legislation required something more than “complementary or useful” and reiterated the need for it to be “closely related” (Reasons, [17]).
The Tribunal was not satisfied that the business skills acquired by the applicant in his Advanced Diploma of Business formed “any meaningful part” of the skills associated with carrying on the occupation of a motor mechanic. Accordingly, the Tribunal was not satisfied that the qualification used to satisfy the Australian study requirement was closely related to the nominated occupation as required by cl 485.222 and on this basis, it affirmed the decision of the delegate to refuse to grant the applicant the visa (Reasons, [18]-[21]).
PROCEEDINGS IN THIS COURT
On 20 January 2021, a Registrar of this Court made procedural orders including that the applicant file and serve at least 28 days before the final hearing any amended application with proper particulars of the grounds of the application and written submissions.
Consistent with the procedural orders, the Minister, on 14 November 2018, filed a court book, and on 7 August 2023, filed written submissions. The applicant did not produce any material responsive to these orders.
The final hearing of the application for judicial review was listed before me on 21 August 2023. On that day the applicant appeared in person and the Minister was represented by lawyer Mr Daly.
Grounds of review
The application for judicial review contains the following grounds:
1.I wish to submit that my case is not a private clause decision within the meaning given by Subsection 474 (2) of the migration act 1958. There exists a clear jurisdictional error in the decision made by the presiding member at the Migration Review Division of Administrative Appeal Tribunal related to my Temporary Graduate (Class VC) Temporary Graduate (Graduate Work) (Subclass 485) visa application who has affirmed delegate's decision of my review application. In support of my case I refer to FCCA decision, "Tobin V Minister of immigration & Anor (2014) FCCA 2208 (Dated 26 September 2014)". My skills of Advanced Diploma of Business are transferrable to my nominated occupation of Motor Mechanic (General) and provides me advantage over other in seeking job and a career progression or establish my own business in the current environment related to Automotive Industry in particular and in business environment in general. When considered in today's economic environment as I have seen that business skills are routinely used by workshop mechanics since most of the automotive workshops are small, individually owned where the employer is doing mechanic and other jobs or use a qualified mechanic for his/her finance, advertising, marketing, supervising of new/unskilled mechanics or affecting any change required from time to time.
2.Furthermore, I request the honourable court to consider that I have spent hard earned money of my family and spent valuable time of formative years of my life for obtaining world class qualification, skills and experience in Australia so that I could achieve my career goals. My theoretical Australian (Australian Qualification Framework) qualifications from Certificate III to Diploma level in Automotive does not make me Motor Mechanic (General). Therefore, it will be wasted of my money and valuable time of formative years in Australia without gaining any worthwhile skill to qualify and work in the occupation of a Motor Mechanic (General).
3.I pray to the Hon. Court to consider Jurisdictional error and give favourable decision to set aside the decision of presiding member at the Migration Review Division of Administrative Appeal Tribunal which clearly suffers from a jurisdictional error.
Submissions of the applicant
The applicant was invited to address the Court, including by reference to the grounds of review referred to above, on the reasons why he believed that the Tribunal had made an error in its decision to refuse him the visa.
The applicant told the Court that the Tribunal had made a mistake because it had failed to appreciate that in other similar cases, even those where the Australian study relied upon was not closely related to the nominated occupation, a visa had nonetheless been granted. The applicant insisted that in his case, his Advanced Business Management course was closely related to his nominated occupation.
The applicant referred the Court to his written submission given to the Tribunal (appearing at CB 67-71) and suggested that the Tribunal had not properly considered the submission when it made its decision.
I asked the applicant whether there was anything he wished to say about the decision of Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (Tobon) which was referred to in the grounds of application. The applicant was provided a copy of the judgment and given an opportunity to review it but was not in a position to advance any submissions directed at its application to the circumstances of his case.
Submissions of the Minister
The Minister first addressed the decision of Tobon and submitted that it did not assist in the applicant’s case given that it operated on a decision of a different Tribunal and involved an error in construction of criterion cl 485.213(b) (expressed in identical terms to cl 485.222) that was not manifest in the decision of this Tribunal. The error was described in the decision as the introduction of a requirement that “the skills, or at least a substantial proportion of the skills for which a diploma is awarded are skills that can only be used in the nominated occupation” which was said to arise from the use by the Tribunal in that case of the term “generic” (Tobon at [33]).
The Minister submitted that the Tribunal here in contrast did not make any finding that the applicant had undertaken studies that provided “generic skills” or that it was necessary for the qualification to confer skills that were unique to the occupation. Instead, the Tribunal had considered the applicant’s evidence that he wanted to run a small mechanical business and the ANZSCO description of the tasks included in the nominated occupation but did not consider that those tasks included business management or other tasks claimed by the applicant to have been acquired as part of the Advanced Diploma. The Minister submitted that this reasoning demonstrated that the Tribunal had properly directed itself to the question of whether the qualification was “closely related” to the applicant’s nominated skilled occupation. The finding that this business qualification was “useful” to the occupation was insufficient to establish the required nexus (referring to Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 at [12]).
Dealing with the contention contained in paragraph 1 of the grounds of review that the skills obtained in the Advanced Diploma of Business were “transferrable” to the occupation of motor mechanic the Minister characterised this as an invitation to embark on impermissible merits review.
The Minister submitted that the matters identified in paragraph 2 of the grounds of review did not identify any jurisdictional error in circumstances where the Tribunal had no discretion to waive the requirement (embodied in cl 485.222) that the qualification used to satisfy the Australian study requirement be closely related to the nominated skilled occupation.
The Minister submitted that the Court should reject the general assertion (contained in paragraph 3 of the grounds of application) that the Tribunal decision “clearly suffers from a jurisdictional error”. Beyond the inability of the applicant to identify any basis for this contention the Minister submitted that the Tribunal had correctly applied cl 485.222 to determine whether the necessary close relationship between the nominated skilled occupation and the course of study did exist.
The Minister submitted that the Tribunal had not been required to descend into an analysis of individual subjects in circumstances where the comparison undertaken of the two “wholes” (the whole of the qualification compared with the whole of the occupation) had indicated the test of a close relationship would not be satisfied (referring to Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10, citing Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 567 at [27]).
The Minister submitted that although the Tribunal had not referred to all hierarchies or groupings in the ANZSCO Code for which Unit Group 3212 (Motor Mechanics) formed part, it should be inferred that the absence of any reference to certain tasks was because the Tribunal did not consider them to be material (referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69])) or “potentially relevant tasks which were applicable to the occupation” of motor mechanic (referring to Talha v Minister for Immigration and Border Protection & Anor [2015] FCAFC 115; (2015) 235 FCR 100 at [52]).
CONSIDERATION
The cases referred to by the Tribunal in its decision and to which the Minister made reference in his submissions, stand for the following propositions which were summarised by Banks-Smith J in Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10 at [20]-[21], including by reference to the decision of Derrington J in Singh v Minister for Home Affairs [2020] FCA 203 at [23]-[25].
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;
(d)The nature of the nominated occupation is to be determined by reference to the 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;
(e)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;
(f)Descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two “wholes” indicates the test of close relationship would not be satisfied in any event.
Considered against these parameters, I am unable to identify any error in the reasoning applied, and approach, taken by the Tribunal in this case. This is so because the Tribunal considered the whole of the nominated occupation by reference to the ANZSCO job description for “motor mechanic” (which it extracted at [15] of the Reasons) and the value of the applicant’s business qualifications. I do not consider that anything flows from the failure of the Tribunal to make specific mention of the other group and sub-group occupations that comprised the Major Group 3 Technicians and Trades Workers. The ANZSCO publication in relation to the nominated occupation of motor mechanic was before the Court.[2] I am satisfied that any omission reflected a view taken by the Tribunal that the group or sub-group (and its specified tasks) were not applicable to the occupation of motor mechanic.
[2] See affidavit of Alana Meaney filed on 7 August 2023 and Annexure “AQMS 1.
The Tribunal acknowledged that in some businesses, mechanics might perform a variety of tasks and also that business knowledge might (at best) be useful to the occupation of motor mechanic. However, having regard to the job description it did not consider that the skills acquired by the applicant in his Advanced Diploma of Business formed any meaningful part of the skills that were associated with the occupation of motor mechanic. The Tribunal found, and there was a proper basis to do so, that the “closely related” test could not be satisfied in these circumstances.
The Tribunal also took into account matters such as why the applicant undertook the Advanced Diploma of Business, why he said business skills were useful within a small business or workshop environment, and his submission that he wanted to open his own business in the field which explained why he had studied the courses that he did.
Although the Tribunal did not set out in the Reasons the actual units or subjects undertaken by the applicant for the Advanced Diploma of Business, the Tribunal referred to the written submission of the applicant dated 13 December 2018 and that (in that submission) the applicant had “described the subjects he studied in the Business Diploma and explained how these would be useful to his future business” (Reasons, [9]). Those units were described by the applicant as having taught him the skills of opening and running a business successfully and identified as: manage knowledge and information; develop a marketing plan; develop organisational marketing objectives; develop an advertising campaign; provide leadership across the organisation; develop and implement strategic plans; manage finance; and lead and manage organisational change. The Tribunal referred to the Advanced Diploma of Business throughout the Reasons and understood that it involved different subjects. I infer that the Tribunal took into account the content of the course that was in evidence before it.
For completeness, I note that although the applicant was not able to articulate why the decision of Tobon was relevant to his case it may be that the decision was identified as significant because it concerned a situation where the applicant for the visa had argued that his diploma of human resources management was closely related to his nominated occupation of civil engineer because it would equip him to undertake a management role. However, although the Court found error in the decision of the Tribunal in that case, I accept the submission of the Minister that it did so for reasons that are not manifest in the decision of the Tribunal that is the subject of this review.
CONCLUSION
The applicant has failed to establish any jurisdictional error in the findings or reasoning of the Tribunal. It follows that the application for judicial review filed on 15 January 2019 must be dismissed with costs fixed in an amount reflecting the Court Scale.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 28 August 2023
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