Sutherland v Minister for Immigration

[2016] FCCA 2843

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTHERLAND & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2843

Catchwords:
MIGRATION – Skilled visa – skills assessment – transitional period between different skills assessments definitional frameworks – assessment under previous skills assessment framework.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), reg.186.234

First Applicant: CHAMINDA THARANGA SUTHERLAND

Second Applicant: RASANGA HARSHANI BATUGAHAGE PERERA

Third Applicant: YASMIN HEDYA SUTHERLAND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2073 of 2014

Judgment of: Judge Riethmuller

Hearing date: 28 July 2016

Date of Last Submission: 29 September 2016

Delivered at: Melbourne

Delivered on: 7 November 2016

REPRESENTATION

Counsel for the Applicants: Mr Aleksov

Solicitors for the Applicants: Fairfields Lawyers

Counsel for the First Respondent: Mr Horan, QC

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2073 of 2014

CHAMINDA THARANGA SUTHERLAND

First Applicant

RASANGA HARSHANI BATUGAHAGE PERERA

Second Applicant

YASMIN HEDYA SUTHERLAND

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) affirming a decision of the delegate to decline to issue the applicant with an Employer Nomination (Permanent) (Class EN) visa under section 65 of the Migration Act1958.

2. The issue in these proceedings is whether or not the applicant has fulfilled one of the conditions essential for the grant of the visa, condition 186.234(2)(a) of Schedule 2 to the Act, which requires that:

   186.234 …

   (a)     an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant's skills as suitable for the occupation;

3. The decisions under this clause are generally straight forward as an assessing authority carries out an assessment of the skills of the applicant for the relevant occupation.  The legislative scheme requires a determination of the category of position and assessments of skills suitable for the particular occupation.

4. In order to implement the legislative scheme a classification system was adopted for the purpose of classifying occupations, allowing skills to be assessed against the terms of the occupations classification.

5. Prior to 1 July 2010 the occupation relevant to this application, ‘accountant,’ was defined by Australian Standards Classification of Occupations (“ASCO”) as ASCO Code Accountant 2211-11 (referred to in this judgment as the ‘ASCO category’).  On 1 July 2010 a new system of categories was introduced, defined by Australia and New Zealand Standard Classification of Occupations (“ANZSCO”), which provided for three categories of accountants (referred to in this judgement as the ‘ANZSCO Categories’).   

6. In simple terms, the single occupation category of ‘Accountant’ (code 2211-11) under the ASCO categories was divided into three categories under the ANZSCO categories: ‘Accountant (General)’, ‘Management Accountant’, and Taxation Accountant’ (codes 2211-11 to 2211-13).

7. The relevant instrument that adopts the ANZSCO categories is IMMI 14/049. The body of the instrument refers to a table that contains the various occupations in columns, where the description of the occupation is set out in column A, the relevant ANZSCO code is set out in column B and the assessing authority is set out in column D.

8. Whilst some argument was directed to whether the IMMI effectively adopted the relevant definitions in the table by references to the codes, a fair reading of the document makes clear that the occupations named in column A are intended to be understood as having the definitions as set out in the ANZSCO defining documents by reference to the code numbers set out therein. The argument that the Tribunal member ought to form their own view as to the definition of the occupations without reference to the ANZSCO definitions would create an artificial reading of the document and should be rejected.

History and background of the application

1. In this matter, it is convenient to set out a brief chronology of the various events bearing upon the decision:

   ·28 June 2010 – the applicant applies for a skills assessment as an Accountant (ASCO2211-11), on the ASCO Category;

   ·1 July 2010 – the definitions of occupations utilised by the department changed from those defined by  the ASCO categories to the new system categories (those defined by ANZSCO categories);

   ·14 September 2010 – the assessing body finds the applicant does not hold the skills for the occupation of ‘Accountant’ on the ASCO categories as he had not completed a mandatory subject;

   ·14 September 2010 – applicant corresponds with assessing authority, ultimately seeking a review of the assessment.

   ·25 March 2011 – the assessing authority issues a review decision assessing the applicant as suitable for “nominated occupation:  accountant (general) [ANZSCO] former [ASCO Category] accountant”.

   ·29 June 2012 – employer lodges nomination application for applicant’s position;

   ·10 January 2013 – department approves the applicant’s nominated employment position as being a “management accountant” under the ANZSCO categories, not “accountant (general)” (a different occupation under the ANZSCO categories);

   ·9 July 2013 – the applicant applies for the subclass 186 (employer nomination scheme) visa.

   ·3 October 2013 – a delegate of the Minister writes to the applicant’s migration agent, noting that the visa application was for “accountant (general) [under the ANZSCO categories]”, however, the approved nomination was for “management accountant”.

   ·21 November 2013 – delegate refuses application on the basis that the nomination was for a different position to that the subject of the visa application (noting that the email of 3 October 2013 had not received a response).

   ·9 July 2013 – applicant seeks review by the Tribunal.  Whilst the applicant described the position as “accountant (general)” in the visa application it must have been changed to “management accountant” at some point.

   ·7 August 2014 – assessing authority advises that the original assessment and subsequent review was completed under the pre-July 2010 assessing criteria (those for ASCO) and that therefore the applicant was assessed as fulfilling the accountant criteria under the ASCO categories.  The authority also stated that the applicant was assessed as fulfilling the “accountant (general)” criteria on the ANZSCO categories.

2. The assessing authority advised that they placed both assessments on the assessment letter as a result of advice from the department to provide assessments under the old and new categories (ASCO and ANZSCO).

3. There is no question that on the ANZSCO categories the applicant does not have a skills assessment for the position of “Management Accountant”, which is the category of the relevant position.  Thus, having regard only to the ANZSCO categories the applicant did not meet the visa criteria. 

4. The applicant argues that transitional arrangements allow him to rely upon the skills assessment that shows him as having suitable skills for the ASCO category occupation “accountant” to satisfy the visa requirement for a skills assessment for the occupation defined as “Management Accountant” under the ANZSCO categories.

Transitional Arrangements

1. A change in definition of various occupations as a result of the changeover of categories occurring on one day, was inevitably going to result in many cases where assessments and visa applications utilised different categorisations.  

2. The correlation between the definitions of different types of employment under the old and new category systems (ASCO and ANZSCO schemes) was the subject of investigation by the department and discussed in procedural advice manual PAM3 [P D1.2REG1.03-ANZSCO], which was referred to by the Tribunal, provided as follows:

   16.The departmental policy guidelines in relation to the correlation between ASCO and ANZSCO state:[1]

   7      ASCO-ANZSCO correlations for departmental purposes

   The differences between ASCO and ANZSCO meant that there was not, for many occupations, a direct correlation from one ASCO occupation that was acceptable for skills assessment purposes to one ANZSCO equivalent.

   To allow for transitional arrangements and comparative reporting, the department undertook a major exercise, examining each ASCO occupation to decide which ANZSCO occupations(s) most closely correlated to it. This was done by:

   …

   [1] PAM III – Div1.2/r.1.03 ANZSCO

   The resulting correlations became the department's endorsed correlations for the above purposes. See also section: 8.3 Using correlations of ASCO and ANZSCO.

   8.3    Using correlations of ASCO and ANZSCO

   If there is a mix of ASCO and ANZSCO information, that mix can be accepted provided the correlation between the ASCO and ANZSCO occupations has been endorsed by the department as being an acceptable correlation for this purpose.

   This may occur if:

   oan application made before 1 July 2010 with a nominated occupation and/or acceptable employer nomination in ASCO but a skills assessment submitted after 1 July 2010 that had been completed using ANZSCO or

   oan application made after 1 July 2010 with a nominated occupation and/or acceptable employer nomination in ANZSCO but a skills assessment that had been obtained before 1 July 2010 using ASCO.

   Officers must always check the relevant regulations, legislative instrument and instructions relating to the specific visa class and subclass for comprehensive information on:

   opolicy and procedural matters and

   oadvice on the correlations between ASCO and ANZSCO that have been endorsed by the department for use in relevant visa programs.

3. This guide was to assist decision-makers in determining whether or not an ANZSCO skills assessment related to an occupation sufficiently similar to an ASCO occupation to enable them to determine whether or not a particular ANZSCO assessment would fulfil the requirements of regulation 186.234(2). Thus, in the examples given, it is said that:

   a)where an application for a visa as an “accountant” (under the ASCO definitions) is made prior to the change in the categories; AND

   b)the skills assessment was subsequently carried out under the ANZSCO definitions; THEN

   c)a skills assessment for any of the categories “accountant (general)”, “management accountant”, or “tax accountant” would be evidence sufficient to satisfy the regulation with respect to an occupation within the definition of “accountant” under the ASCO guidelines.

4. Similarly, where an ASCO assessment had been obtained prior to the changeover date and the application for the visa made thereafter, the Tribunal member had to determine whether the ASCO assessment was sufficient to satisfy the regulations with respect to an occupation categorised according to the ANZSCO definitions. 

5. The ASCO definition for “Accountant”, is described in the attachment to the PAM as “Plans and provides systems and services relating to the financial dealings of enterprises and individuals, and advises on associated record-keeping and compliance requirements” and listed as correlating to the three ANZSCO occupation categories listed above.  The descriptions for the two relevant ANSCO categories are set out as:

   a)Accountant (General): “Plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements.  Registration or licensing is required. Specialisation: Financial Analyst, Insolvency Practitioner.”

   b)Management Accountant: “Plans, reviews and administers accounting systems and procedures, analyses the financial information needs of organisations, provides financial planning and risk management, and provides management with reports to assist in decision-making.  May provide insight into cost performance and support the implementation of benchmarking and improvement initiatives.  Registration or licensing is required.”

6. This case did not fall squarely within the PAM as the applicant had not obtained his skills assessment before the changeover date, and the occupation assessment was made after the changeover date.

Effect of the Guideline

1. As the guideline (PAM111-DIV1.2/R.1.03 ANZSCO) is only a guideline and not a legislative instrument, it could not change the meaning or operation of regulation 186.234 of the IMMI instrument.

2. To the extent that the parties argue that the PAM effectively created transitional provisions, this could not be the case, as it is not a statutory or regulatory instrument. At best, the guideline provides decision-makers with some assistance in determining whether or not the assessments made prior to the change of categories (whether of skills or occupations) correlate sufficiently to assessments (of skills or occupations) made after the change, in order to satisfy the test in regulation 186.234. 

The central Question

1. The central question in this case remains that of whether or not the authority “assessed the applicant's skills as suitable for the occupation”.  This requires consideration of the categories of skills assessed by the authority and the category of the occupation.  Ultimately this is a question of fact in each case, although one that will be simply and obviously answered in cases where the occupation and skills assessments are both undertaken using the same category system.

2. Thus, for an employer nomination under ASCO but an assessment under ANZSCO, the question arises as to whether the decision-maker can be satisfied on that evidence.  This question seems relatively straightforward as the ANZSCO categories all appear to be various specialisations within the ASCO category of “Accountant”.  More difficult is the case where the skills are assessed against the more general ASCO category and the Tribunal must determine whether the assessment satisfies a particular ANZSCO occupation category.

3. It appears to me that the operation of the guideline is better understood as referring to the problem decision makers may sometimes find where the evidence reasonably available to be placed before them on a question such as this is less than perfect.  They must therefore make a determination as to whether, on the available evidence, they are satisfied that, as a matter of fact, the requirements of the regulation have been fulfilled.

4. As occurs in many areas of the law, less than perfect evidence is often relied upon, particularly during periods of transition.  For example, similar problems occur when technology brings the possibility of better quality evidence, but it is not readily available to all litigants when it is first discovered.  A simple example being blood typing evidence that was still relied upon during the early periods of the availability of DNA testing as being, on a practical basis, the best available evidence.  Today such evidence would no longer be persuasive in light of the ready availability of DNA testing (unless there were reasons DNA testing could not be used, such as the sample being too degraded for DNA testing).

5. In the context of the operation of regulation 186.234, during the transition period, the Tribunal had open to it the option of adopting a practical application of the fact-finding process.  Thus, it was open to the Tribunal to accept evidence that may not be a perfect technical match as between the ASCO and ANZSCO guidelines as being sufficiently persuasive.  To say this does not require the Tribunal to accept such evidence, but rather make a determination based upon the circumstances of the case bearing in mind the extent to which better quality evidence is or could be reasonably available. 

6. In this case, the Tribunal had regard to the terms of the assessment and, in particular, that the assessing authority provided information to show that the ASCO assessment in this particular case was the equivalent of an assessment for the position “accountant (general)” as described in the ANZSCO categories. The Tribunal also had regard to the fact that, whilst the assessment was sought a few days before the changeover date, the applicant did not complete all of the required criteria and obtain the assessment for around nine months.  Significantly the applicant did not apply for the visa until almost two years after the changeover date.  The applicant had ample time to obtain an assessment under the ANZSCO guidelines well before he sought the visa but did not do so.

7. The applicant argued that in this regard the Tribunal erred when saying:

   24. The Tribunal agrees with the submission that if his 28 June 2010 assessment application was assessed as suitable, the applicant would have been able to rely on the transitional provisions outlined above.  In other words, a suitable skills assessment as accountant ASCO 2211-11 would have correlated to by acceptable as a suitable skills assessment for the approved nominated occupation of management accountant ANZSCO 221112.  The difficulty for the applicant is his 28 June 2010 skills assessment application was assessed by ICAA as not suitable on 14 September 2010.  So he does not have a suitable skills assessment from ICAA as an accountant ASCO 2211-11.

8. This paragraph must be read in the context of paragraph [25] where the Tribunal goes on to consider the subsequent positive assessment issued following the review (after the applicant completed a further subject of studies).  Taken in context it is clear that the Tribunal was only speaking of the initial assessment in para [24], not the subsequent review assessment.  I am not persuaded that this demonstrates that the Tribunal misconceived the facts of the case, simply that the last line of para [24] was infelicitously worded, a not unlikely occurrence for a busy Tribunal (or indeed even a busy court).

9. It is difficult to conclude that the Tribunal’s findings of fact that the assessment itself was not for the correct employment category can be criticised.  Nor is this a case where it could be suggested that the evidence was the best evidence reasonably available in the circumstances, given the extensive time between the changeover date and the visa application.  Indeed, in this case the applicant did not complete all of the necessary qualifications under the ASCO definitions until well after the changeover date. 

10. I have considered the comments of the Tribunal at paragraph [29] of the decision where the Tribunal says:

    29.The Tribunal has had regard to the purpose of the transitional provisions which was not to disadvantage applicants who had a mix of ASCO and ANZSCO skills assessments/approved nominated occupations. The Tribunal acknowledges the applicant is a person with such a mix of ASCO and ANZSCO codes. But on the evidence before it, the Tribunal has found the applicant is someone who is simply unable to obtain a suitable skills assessment as a management accountant. Instead of relying on the transitional provisions to avoid disadvantage, the applicant is seeking to rely on the transitional provisions to gain an advantage he is otherwise not entitled to, that being a positive skills assessment for the approved nominated position as a management accountant ANZSCO 221112.

11. I am mindful that it is not appropriate to read the Tribunal’s decision with a fine-tooth comb finely attuned to error. In this case, the comment does not appear to me to indicate that the Tribunal’s considerations, taken as a whole, miscarried.

1. These comments, on their face, appear to imply a purposive reading of the guidelines as transitional provisions that implement a ‘no disadvantage’ test, which would be broader than the strictures of the regulation.  However, in this case such a broader reading of the PAM was only potentially to the applicant’s advantage.  It does not alter the clear fact finding of the Tribunal that the skills assessment the applicant holds does not satisfy the regulation with respect to the relevant occupation the subject of the visa application.  Clearly the Tribunal took the view that this was not a case where the applicant was relying upon the best evidence reasonably available to him (due to recent changes to the categories), but that he was seeking to avoid the consequences that flowed from not providing appropriate evidence of his satisfaction of the relevant visa criteria.

Conclusion

1. I am persuaded that the Tribunal determined as a matter of fact whether or not the qualifications that the applicant held satisfied the Tribunal with respect to the occupation nominated, as they were required to under regulation 186.234. It was open on the facts for the Tribunal to reach the decision it did in this case.

2. In these circumstances, I therefore dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 7 November 2016