Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 208
•3 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 208
File number: PEG 263 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 3 November 2021 Catchwords: MIGRATION – Skilled (Provisional) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s consideration of the applicant’s Australian studies (by reference to the ANZSCO Code) was “too narrow” – whether the Tribunal failed to consider the applicant’s other qualifications – whether the applicant was denied procedural fairness because the Tribunal hearing was conducted by telephone – Tribunal failed to discharge its statutory review obligations under s 348 of the Act – writs issued. Legislation: Migration Act 1958 (Cth), ss 366, 348, 476
Migration Regulations 1994 (Cth), reg 1.15F, Part 485 of Schedule 2, cll 485.221 and 485.222 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Pasula v Minister for Immigration & Anor [2010] FMCA 219
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of hearing: 4 August 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Flynn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 263 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANGREJ SINGH ANGREJ SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
3 NOVEMBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision dated 5 August 2020.
2.A writ of mandamus issue, remitting the matter to the second respondent and requiring the second respondent to reconsider and determine the applicant’s application for review according to law.
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 11, 22, 55 & 83). He was granted a student visa on 31 December 2013 (CB 19). He arrived in Australia as the holder of that visa in January 2014 (CB 18).
On 29 August 2017, the applicant applied for a Temporary Graduate (Class VC) (Subclass 485) (Graduate Work stream) visa (the “visa”) (CB 10-21). In his application, the applicant indicated that his nominated occupation was that of “chef” (CB 19). The applicant provided a range of supporting documents with his application. These included identity documents, educational records (including evidence of all qualifications completed in Australia), a provisional skills assessment summary, a National Police Certificate and a “confirmation of health cover” (CB 22-39).
On 8 September 2017, the applicant provided submissions to the Department of Immigration and Border Protection outlining the relevance of the Diploma of Leadership and Management to his nominated occupation (CB 42-45).
On 18 October 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-54). The delegate determined that the applicant did not meet cl 485.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the “relevant qualification” (the Diploma of Leadership and Management) was “not closely related to the applicant’s nominated occupation of Chef” (CB 53).
On 20 October 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 55-56).
During the course of the Tribunal proceedings, the applicant provided the Tribunal a “TRA Provisional Skills Assessment Applicant Result” issued by Trades Recognition Australia (dated 7 November 2017) (CB 63).
On 2 July 2020, the applicant was invited to attend a hearing before the Tribunal which was scheduled for 3 August 2020 (CB 64-68).
On 3 August 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant’s registered migration agent also attended that hearing (CB 75-78).
On 5 August 2020, the Tribunal affirmed the decision to refuse to grant the applicant the visa (CB 82-86).
On 8 September 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-6). An affidavit was also filed in support of that application (CB 7-9). The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is five pages long and spans 23 paragraphs.
The Tribunal began by identifying the type of visa under review (at [1]). The Tribunal summarised the applicant’s migration history and the delegate’s decision (at [2]) and confirmed that the applicant had attended a hearing before the Tribunal by telephone. The Tribunal noted that the hearing took place during the COVID-19 pandemic and confirmed that it was satisfied that the applicant had been given a fair opportunity to present his case (at [3]).
The applicant was represented by a registered migration agent before the Tribunal (at [4]).
The Tribunal set out the relevant visa requirements and legislative provisions as follows:
5. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.
6. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
•that are registered courses; and
•that were completed in a total of at least 16 calendar months; and
•that were completed as a result of a total of at least 2 academic years study; and
•for which all instruction was conducted in English; and
•that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
7. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.
The Tribunal then confirmed that the applicant had given the Tribunal a copy of the delegate’s decision record (at [8]).
The Tribunal outlined the applicant’s study history in Australia, as follows (at [9]):
09/14 – 10/15 Certificate III in Commercial Cookery
09/14 – 03/16 Certificate IV in Commercial Cookery
04/16 – 09/16 Diploma of Hospitality
10/16 – 08/17 Diploma in Leadership and Management
The Tribunal noted that the applicant had nominated the occupation of “Chef” in his visa application (at [10]) (which was filed in August 2017) and determined that the only qualification the applicant had completed “in the six months prior to lodging the application” was the Diploma in Leadership and Management (at [11]).
The Tribunal explained that, as the applicant had nominated the occupation of Chef in his application, the Tribunal had to be satisfied that the Diploma in Leadership and Management was “closely related to the occupation of a Chef” (at [12]).
The Tribunal then summarised the applicant’s oral and written submissions as follows:
13. In oral evidence the applicant told the Tribunal that he had completed a Diploma of Hospitality before and decided to do a Diploma in Leadership and Management because the two qualifications were very similar and many of the units overlapped but the Diploma of Management provided a more in-depth learning. The applicant said that the Diploma of Hospitality was a very short course, so he decided to do a longer course to learn management and other skills which he has been using in the hospitality industry. The Tribunal considers the applicant’s submission misconceived. The close relationship must exist between the nominated occupation and the qualification and not between the qualification and another qualification which the applicant has completed. The fact that the applicant found the two Diplomas to be similar or complementary does not establish a close relationship between his qualifications and the nominated occupation.
14. In his written submission to the delegate, the applicant states, essentially, that as a chef, he is responsible for the running of the kitchen and manages staff, finances and other aspects of kitchen operations. The applicant claims that a chef is a ‘leader of a restaurant’ and not only works in a kitchen. If he is not well educated, he cannot run a restaurant and cannot transfer skills to his employees. The representative also submits that chefs do not only work in the kitchen but also need to manage ‘the front and the back’. The representative submits that chefs must be able to demonstrate how they manage the restaurant and manage complaints and chefs must have extensive skills and not only relevant to cooking. The Tribunal is of the view, however, that it is necessary to consider the objective standard for the occupation and not what the applicant has done in his job or what he believes chefs do as part of their normal employment.
The Tribunal continued:
15.ANZSCO provides the following in relation to the nominated occupation of a chef.
CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
•planning menus, estimating food and labour costs, and ordering food supplies
•monitoring quality of dishes at all stages of preparation and presentation
•discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
•demonstrating techniques and advising on cooking procedures
•preparing and cooking food
•explaining and enforcing hygiene regulations
•may select and train staff
•may freeze and preserve foods
Occupation:
351311 Chef
16. In the Tribunal’s view, the occupation of a chef does not have leadership and management responsibilities. The Tribunal acknowledges that selection and training of staff is part of the occupation. However, when considering the tasks specified in ANZSCO as a whole, any management of staff, even if that was a task (as opposed to selection and training) does not appear to be a significant part of the occupation. ANZSCO suggests selection and training of staff is only one aspect of the role and it is not apparent that this aspect has any management or leadership responsibilities. Thus, the Tribunal is of the view that, at best, the Diploma of Leadership and Management may be useful to one aspect of the occupation of a chef. However, the closely related requirement must apply to the occupation as a whole and not merely one of its aspects. When considering the tasks set out in ANZSCO, the Tribunal does not consider that management or leadership is in any way related, let alone closely related, to other aspects of the occupation of a chef and the occupation as a whole.
17. In the Tribunal’s view the applicant’s evidence suggests no more than the usefulness of his latest qualification to the nominated occupation. The term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation.
The Tribunal then considered the applicant’s evidence regarding his claim that he wanted to open his own restaurant in the future and noted that the relevant regulations require that the Tribunal’s assessment relate to the occupation nominated by the applicant – not an occupation the applicant may wish to have in the future.
In this regard, the Tribunal quoted (at [18]) from Pasula v Minister for Immigration & Anor [2010] FMCA 219, wherein Smith FM stated (at [23]):
… the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law.
The Tribunal then noted that “if the applicant decides to run his own business in the future, his occupation may be that of a restaurant owner or manager and not that of a chef” (at [19]).
The Tribunal noted the applicant’s evidence that he:
·is a qualified chef;
·has been working in the hospitality industry in Australia; and
·has been able to obtain a skills assessment and a job.
However, the Tribunal did not consider that the applicant’s employment, or his ability to obtain a skills assessment and a job, was sufficient to establish a close relationship between the nominated occupation and the applicant’s study (at [20]).
The Tribunal concluded as follows:
21.Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Business is closely related to the nominated occupation of a chef. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation. The Tribunal is not satisfied the applicant meets cl.485.222.
The Tribunal ultimately found that cl 485.222 of the Regulations was not met (at [22]) and affirmed the decision not to grant the applicant the visa (at [23]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 8 September 2020 contained two “grounds of review”, as follows:
1. Tribunal did not consider my first two year qualification which I done in Cooking field.
2. Tribunal also did not consider Trade recognition Australia (TRA) assessment of my qualifications.
In support of his application, the applicant filed an affidavit affirmed by him on 8 September 2020 which annexed a copy of the Tribunal’s decision.
The applicant was given an opportunity to file an amended application, any further affidavit evidence and written submissions. The applicant filed a further affidavit on 30 March 2020. The applicant also filed a five page written submission on 13 July 2021 and a further seven page submission on 3 August 2021.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 8 September 2020, a further affidavit affirmed and filed by the applicant on 30 March 2021, written submissions filed by the applicant on 13 July 2021 and 3 August 2021, a Court Book numbering 86 pages (marked as Exhibit 1) and written submissions filed by the Minister on 21 July 2021.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister's written submissions.
As per the reasoning in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the Court gave the applicant an opportunity to elaborate on and particularise the grounds of review in his application for judicial review and to outline any concerns he might have with the Tribunal’s decision.
To assist the applicant, the Court explained to him that it could only address the issue of jurisdictional error. The Court stressed that the categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, however, they commonly include the following “categories of mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294 at [207]- [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
The Court also explained that it cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it made on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant indicated that he was “not able to explain his case” to the Tribunal because the hearing was conducted by telephone. The applicant also explained that “all of the units in his course were completely related to the hospitality industry and commercial cookery” and that “he learned all of the skills of a chef in the management course” he undertook. The applicant also emphasised that there was “no gap” in his study and that he had considered the ANZSCO requirements himself and was certain that “management” is “closely related to hospitality”.
At the hearing, the parties also made oral submissions in relation to the decision in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (“Talha”) (insofar as that decision relates to what is required of the Tribunal when it considers the Australian and New Standard Classification of Occupations Code (the “ANZSCO Code”).
In this regard, the applicant essentially submitted that the Tribunal’s approach (when considering the ANZSCO Code) was “too narrow”. Importantly, the applicant argued, the Tribunal had failed to consider “all of the relevant categories”.
With respect, the oral submissions advanced by the solicitor for the Minister were somewhat vague. Although not entirely clear, the solicitor for Minister seemed to submit that, whilst the Tribunal in this matter did not specifically refer to the “other levels in the ANZSCO Code”, it “can be inferred” that the Tribunal turned its mind to the ANZSCO Code “as a whole” and determined, ultimately, that there was nothing elsewhere in the ANZSCO Code that altered the Tribunal’s overall conclusion (referencing, in particular, [16] in the Tribunal’s decision).
These submissions will be considered by the Court below.
CONSIDERATION
In its duty to assist self-represented applicants whenever possible, the Court has addressed all of the applicant’s grounds as articulated and has interpreted them broadly to ensure that, to the extent that possible legal error is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. The Court has also considered for itself whether any error arises in the Tribunal’s decision.
On the basis of the material before it, and after hearing from both parties at the hearing, the Court considers that there are two core issues that arise in this matter.
The first issue, though not clearly articulated by the applicant (who was self-represented), is whether the Tribunal provided sufficient reasons for its ultimate conclusion that, as per the provisions of the ANZSCO Code, the applicant’s course of study was not closely related to the occupation of chef.
The second issue is whether or not the Tribunal should have or could have assessed the applicant’s other qualifications.
These two issues will be discussed below.
The Tribunal’s consideration of the provisions of the ANZSCO Code
The applicant claims that the Tribunal’s approach when considering whether the applicant’s Australian studies were closely related to his nominated occupation, by reference to the ANZSCO Code, was “too narrow”. In the applicant’s submission, the Tribunal should have looked at the ANZSCO Code more broadly.
Before considering whether the Tribunal fell into error in that regard, it is useful to first provide a summary of the ANZSCO Code’s functions, history and structure.
The ANZSCO Code
The ANZSCO Code replaced the Australian Standard Classification of Occupations and the New Zealand Standard Classification of Occupations 1999 (which were previously used by the respective countries). The ANZSCO Code classifies all occupations in the labour markets in Australia and New Zealand, including those occupied by persons who are self-employed.
The ANZSCO Code contains a definition of the term “job” as follows:
A ‘job’ is defined as a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job.
Any particular job will typically involve an individual working for a particular employer and undertaking a particular set of tasks. People working for themselves are considered as having a job and belonging to the labour force.
The term “occupation” is then defined as follows:
The categories at the most detailed level of the ANZSCO structure are called ‘occupations’. An ‘occupation’ is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an ‘occupation’ is a set of jobs whose main tasks are characterised by a high degree of similarity.
The similarity of tasks is defined in ANZSCO as a function of the level and specialisation of skill required to perform those tasks. Skill is defined as the ability to competently perform the tasks associated with an occupation.
It follows that ANZSCO classifies occupations according to two criteria - skill level and skill specialisation.
The concept of “skill level” is defined in the ANZSCO Code as “a function of the range and complexity of the set of tasks performed in a particular occupation”. The ANZSCO Code further explains that occupations of a greater skill level will involve a greater “range of complexity” of tasks and will generally require a greater “amount of formal education and training, previous experience and on-the-job training”. The ANZSCO Code then classifies occupations in one of five skill levels, with Skill Level 1 being the highest classification and requiring skills “commensurate with a bachelor degree or higher qualification” (though a minimum of five years of experience may be substituted for formal qualifications).
“Skill specialisation” is defined as:
… a function of:
•field of knowledge required
•tools and equipment used
•materials worked on, and
•goods or services produced or provided.
Jobs detailed in the ANZSCO Code are separated into “five hierarchical levels”. Those levels are major group, sub-major group, minor group, unit group and occupation. The jobs at the most detailed classification level are termed “occupations”. One, two, three, four and six digit codes are assigned to the major, sub-major, minor and unit groups, and occupations respectively.
The decision in Talha
In Talha, Justices Griffiths, Mortimer and Beach JJ considered whether the Tribunal in that matter had taken an overly narrow approach to the task of considering the applicant’s qualifications against the ANZSCO Code to determine whether the qualification was closely related to the applicant’s nominated occupation. In that matter, the applicant’s nominated occupation was that of an “Engineering Technologist”. The applicant’s “courses” were a Diploma of Business (Frontline Management) and a Diploma of Business.
The Tribunal in Talha had concluded at [47] that:
… a general business management course is not directed specifically at any industry, including the engineering industry, and prepares its graduates to work in any field. There is nothing in any of the courses completed by the applicant in Australia to suggest a link between these courses and the engineering industry and, more significantly, the occupation of an Engineering Technologist.
The Full Court in Talha found that the Tribunal had fallen into jurisdictional error as it had failed to consider the information contained in the other hierarchical groups related to the occupation of Engineering Technologist (as outlined in the ANZSCO Code).
Relevantly, the Full Court considered the Tribunal’s findings and noted as follows (emphasis added):
51It 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.
Justices Griffiths, Mortimer and Beach JJ also stated (emphasis added):
52In 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 particular, the Tribunal ought to have included in the evaluative exercise the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. As is evident from the extract at [26] above, those tasks included many matters which, on their face, had a relationship with many of the courses completed by Mr Talha in his Australian studies. That was the essential point which Mr Talha made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings (which supported Mr Talha’s individual claims). The Tribunal erred in not taking into account the relevant information in those higher groupings. It adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth).
The Full Court considered that the Tribunal should have had regard to all other potentially relevant tasks which might have been applicable to the occupation. Further, the Full Court considered that the Tribunal had erred in adopting “an unduly” narrow approach to its task by confining itself to the narrow statements in the unit group relevant to the specific occupation.
The Full Court went on to note that, whether the information in those hierarchical groupings meant that the course would be considered “closely related” to the applicant’s occupation was ultimately a matter for the Tribunal; however, the exercise should be undertaken by conducting a review of the whole of the applicant’s course against the whole of the applicant’s nominated occupation.
In that regard, the Full Court stated:
53Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
(Emphasis added).
The Full Court in Tahla ultimately found that Tribunal erred because it did not have regard to the hierarchical groupings in the ANZSCO Code as they related to the applicant’s nominated occupation. Further, the Tribunal ought to have had regard to “all of the potentially relevant tasks” which were “applicable to the nominated occupation” and that the Tribunal should not have “confine[d] itself to the tasks in the relevant unit group or specific occupation”.
The Tribunal’s approach in this matter
In this matter, the Tribunal set out the provisions of the ANZSCO Code in relation to the occupation of “chef” at [15] of its decision, as follows:
15.ANZSCO provides the following in relation to the nominated occupation of a chef.
CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
•planning menus, estimating food and labour costs, and ordering food supplies
• monitoring quality of dishes at all stages of preparation and presentation
•discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
• demonstrating techniques and advising on cooking procedures
• preparing and cooking food
• explaining and enforcing hygiene regulations
• may select and train staff
• may freeze and preserve foods
Occupation:
351311 Chef
Those provisions are contained in the “Unit Group 3513 Chefs”.
The Tribunal then considered the applicant’s Diploma of Leadership and Management against the ANZSCO Code at [16]-[17] as follows (emphasis added):
16.In the Tribunal's view, the occupation of a chef does not have leadership and management responsibilities. The Tribunal acknowledges that selection and training of staff is part of the occupation. However, when considering the tasks specified in ANZSCO as a whole, any management of staff, even if that was a task (as opposed to selection and training) does not appear to be a significant part of the occupation. ANZSCO suggests selection and training of staff is only one aspect of the role and it is not apparent that this aspect has any management or leadership responsibilities. Thus, the Tribunal is of the view that, at best, the Diploma of Leadership and Management may be useful to one aspect of the occupation of a chef. However, the closely related requirement must apply to the occupation as a whole and not merely one of its aspects. When considering the tasks set out in ANZSCO, the Tribunal does not consider that management or leadership is in any way related, let alone closely related, to other aspects of the occupation of a chef and the occupation as a whole.
17.In the Tribunal's view the applicant's evidence suggests no more than the usefulness of his latest qualification to the nominated occupation. The term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation.
The applicant submits that the Tribunal failed to consider the Minor Group and Unit Group for the occupation of chef. The applicant also submits that the Tribunal failed to consider the specialisations included in the occupation level description of chef in the ANZSCO Code (applicant’s submissions filed on 3 August 2021).
The Minister, in turn, submits as follows:
32. Finally, the applicant claims that the Tribunal did not consider the ANZSCO Minor Group and Unit Group for the occupation of chef. The applicant correctly notes that the Tribunal’s decision does not contain any reference to these group definitions.
…
34. The Tribunal noted that they had considered the ‘tasks specified in ANZSCO as a whole, any management of staff, even if that was a task (as opposed to selection and training) does not appear to be a significant part of the occupation’ [emphasis added]. The Tribunal was not required to expressly and specifically refer to all the evidence they considered in making its decision. It can be inferred from the use of the words ‘ANZSCO as a whole’, the Tribunal considered the higher groupings but did not consider that they established that the Diploma in Leadership and Management was closely related to the occupation of a chef.
In oral submissions, the Minister’s representative again stressed that, whilst “the Tribunal’s decision does not contain any reference to [the] group definitions” the applicant referred to, the Tribunal stated at [16] in its reasons that it had considered the “tasks as specified in ANZSCO as a whole”. As such, it can be inferred from that single line that the Tribunal did consider the ANZSCO Code more broadly.
In Talha, the Full Court found that the Tribunal ought “to have considered relevant information in other higher level groupings within which the occupation and the unit group both fell” (at [48]).
In this matter, although there is no evidence before the Court in relation to relevant information that was “not assessed”, there is, regrettably, no thorough assessment of what was assessed and why it was ultimately deemed not to be relevant. The Tribunal has only provided a partial extract from the “Unit Group 3513 Chefs” and made a passing reference to it having considered the “tasks specified in ANZSCO as a whole”. No detail is provided about which other classifications the Tribunal considered within the “Sub-major Group 35 Food Trades Workers”. Further, no analysis has been provided about what the tasks in those classifications encompass or why, in the Tribunal’s opinion, those tasks are not tasks which might result in a finding that the applicant’s Australian qualification was “closely related” to his nominated occupation of “chef”.
The Tribunal may well have considered other parts of the ANZSCO Code when undertaking its task but it is not at all clear that this actually occurred and why, if it did occur, those other parts were assessed as not relevant. In the circumstances, the applicant is left “wondering” – a state of uncertainty that is unsatisfactory and indicative of a failure on the part of the Tribunal to engage with the material before it and provide sufficient reasons – a core Tribunal obligation. Talha makes it quite clear that, while arguably a “big ask” of an already overworked Tribunal, the Tribunal’s reasons need to make it clear (unequivocally and in detail) what parts of the ANZSCO Code it has considered and why it does or does not consider that the tasks contained within those parts are relevant or not relevant to the nominated occupation. Here, the Tribunal has not done that. The conclusion made by the Tribunal in this matter thus exists in a vacuum. In effect, it “floats”, lacks context and is, regrettably, incomplete.
The Tribunal’s failure to undertake the analysis required of it in this matter is unfortunate. This is an otherwise well written decision. Tribunal Members work under extraordinary pressure and face a heavy workload. Nonetheless, errors arise and, when they do, they must be addressed.
Here, the Tribunal’s approach to its consideration of the ANZSCO Code is “flawed”. The Tribunal here, like in Talha:
52…. adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth).
On the basis of the error identified above, this matter will be remitted to the Tribunal for reconsideration.
The Tribunal’s consideration of the applicant’s other qualifications
The applicant alleges that the Tribunal failed to take into account his other qualifications. Those qualifications are Certificates III and IV in Commercial Cookery and a Diploma of Hospitality.
Given the error identified above, the Court need not need to address this issue. However, the Court will do so for the sake of completeness.
Before turning to whether the Tribunal failed to consider those courses, it is first necessary to outline the relevant legislative provisions relating the visa in question.
Legislative requirements
The applicant applied for a Temporary Graduate (Class VC) (subclass 485) (Graduate Work stream) visa. Part 485 of Schedule 2 of the Regulations outlines the criteria for the grant of a subclass 485 visa. Clauses 485.221 and 485.222 of Schedule 2 of the Regulations are of particular relevance in this matter and provide as follows:
485.221
The applicant satisfied the Australian study requirement:
(a)in the period of 6 months immediately before the day the application was made; or
(b)if the Minister is satisfied that the applicant was unable to apply during the period mentioned in paragraph (a) because the applicant was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020--in the period of 12 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.
Applicants can use more than one course to satisfy the Australian study requirement provided that the most recent course being relied upon was completed within the 6 months immediately prior to the application being made. Further, each of the courses must be “closely related” to the applicant’s nominated skilled occupation.
The Australian study requirement is defined in reg 1.15F of the Regulations as follows:
1.15F Australian study requirement
(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
Each of the courses must also satisfy the provisions of reg 1.15F of the Regulations.
Tribunal’s consideration
The applicant in this matter had undertaken four courses of study, as follows:
09/14 – 10/15 Certificate III in Commercial Cookery
09/14 – 03/16 Certificate IV in Commercial Cookery
04/16 – 09/16 Diploma of Hospitality
10/16 – 08/17 Diploma in Leadership and Management
The Tribunal found that, as the application for the visa was submitted in August 2017, the qualification the applicant needed to rely on to satisfy the requirement of cl 485.221(a) of the Regulations was the Diploma in Leadership and Management (at [11]). That is, the Diploma in Leadership and Management was the only course completed by the applicant within the 6 months prior to the visa application being made.
The Tribunal’s findings in this regard were correct. The applicant applied for his visa on 29 August 2017 (CB 41). The applicant completed a Diploma in Leadership and Management on 17 August 2017 (CB 29). The applicant also completed Certificates III and IV in Commercial Cookery (completed 14 October 2015 and 25 March 2016 respectively) and a Diploma of Hospitality (completed 1 September 2016). None of these courses were completed in the six months prior to the visa application being made (CB 23-27).
Once the Tribunal had found that the applicant’s Diploma in Leadership and Management course was not closely related to the applicant’s nominated occupation of chef (as required by cl 485.222 of Schedule 2 of the Regulations), the Tribunal did not need to go on to consider the remaining courses. This is so because, without the inclusion of the Diploma in Leadership and Management, the applicant could not have satisfied cl 485.221(a) of the Regulations because the remaining courses were completed outside of the requisite 6 month period.
The Tribunal was therefore unable to be satisfied that “each degree, diploma or trade qualification used to satisfy the Australian study requirement [was] closely related to the applicant’s nominated skilled occupation.”
Had the Tribunal found that the Diploma in Leadership and Management course was closely related to the nominated occupation, then, and only then, would the Tribunal have needed to consider whether the remaining qualifications satisfied the Australian study requirements as outlined in reg. 1.15F of the Regulations.
No error arises in this regard.
Other
In oral submissions, the applicant explained that he was, in effect, denied procedural fairness because his hearing was conducted via telephone.
For completeness, the Court does not accept that this was the case.
Section 366 of the Act permits the Tribunal to conduct hearings by telephone. The Tribunal exercised its discretion to do so (as per Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378 at [65] and Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44]).
In the invitation to attend the hearing dated 2 July 2020 (CB 66-68), the applicant was advised that the hearing would be conducted via telephone because of the escalating health crisis caused by the COVID-19 pandemic. That same letter advised that the applicant needed to contact the Tribunal as soon as possible if he was not able to participate in a telephone hearing (CB 67). The applicant was also provided with a copy of the “Response to hearing invitation” form which asked whether there were “any issues that may affect your ability … to take part in the hearing …?” and “Do you believe they you or another person will experience difficulty participating in the hearing by telephone…?” (CB 72).
There is no evidence before the Court to suggest that the applicant raised any concerns in this regard. The applicant attended the hearing before the Tribunal on 3 August 2020 with his migration agent (CB 75-78). The Court does not have a transcript of the Tribunal hearing. The Court can thus only reference the materials in the Court Book and the Tribunal’s decision as a whole. There is no evidence before the Court that can be read as indicating that the applicant raised any concerns with the Tribunal about the hearing proceeding by telephone. No adjournment was requested and there is nothing which indicates that the applicant was unable to actively engage with the Tribunal or was denied an opportunity to speak and present his case.
There is no evidence before the Court to indicate that the applicant was prejudiced by attending the hearing by telephone. Any concerns in that regard are rejected.
CONCLUSION
The applicant’s submissions filed on 3 August 2021 have identified a jurisdictional error in the Tribunal’s decision. Relevantly, the Tribunal has adopted an unduly narrow approach to its task which involved jurisdictional error. This error means that the Tribunal failed to discharge its statutory review obligation under s 348 of the Act.
The application is, accordingly, allowed.
The Tribunal’s decision dated 5 August 2020 will be set aside and the application will be remitted to the Tribunal for rehearing.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 3 November 2021
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