Sutherland v Minister for Immigration and Border Protection
[2017] FCA 806
•19 July 2017
FEDERAL COURT OF AUSTRALIA
Sutherland v Minister for Immigration and Border Protection [2017] FCA 806
Appeal from: Sutherland & Ors v Minister for Immigration & Anor [2016] FCCA 2843 File number: VID 1366 of 2016 Judge: MOSHINSKY J Date of judgment: 19 July 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – application for Employer Nomination (Permanent) (Class EN) Subclass 186 visa – where nominated occupation was Management Accountant as specified in ANZSCO – where visa applicant submitted skills assessment carried out by reference to earlier ASCO occupation of Accountant – where skills assessment was completed after ANZSCO came into operation – where visa applicant did not seek skills assessment for ANZSCO occupation of Management Accountant because he had not completed the mandatory subjects for that occupation – where departmental policy regarding transitional arrangements accepted a correlation between the relevant ASCO and ANZSCO occupations – where Migration Review Tribunal found that the visa applicant did not hold a suitable skills assessment for the nominated occupation – whether Tribunal erred in so finding – appeal dismissed Legislation: Migration Regulations 1994 (Cth), reg 5.19, Sch 2, cl 186.233, 186.234 Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 23 June 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 69 Counsel for the Appellants: Mr A Aleksov Solicitor for the Appellants: Erskine Rodan & Associates Counsel for the First Respondent: Mr N Wood Solicitor for the First Respondent: Clayton Utz Counsel for the Second and Third Respondents: The second and third respondents filed submitting notices, save as to costs ORDERS
VID 1366 of 2016 BETWEEN: CHAMINDA THARANGA SUTHERLAND
First Appellant
RASANGA HARSHANI BATUGAHAGE PERERA
Second Appellant
YASMIN HEDYA SUTHERLAND
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
19 JULY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Save for the costs dealt with by the orders made on 12 May 2017, the appellants pay the first respondent’s costs of the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The first appellant, a national of Sri Lanka, applied on 9 July 2013 for an Employer Nomination (Permanent) (Class EN) — Employer Nomination Scheme (Subclass 186) visa in the ‘Direct Entry’ stream. The second and third appellants, who are family members, were secondary applicants. Although the visa application referred to the first appellant’s nominated occupation as being “Accountant (General)”, this was later changed to “Management Accountant”.
The occupation of Management Accountant is identified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) published by the Australian Bureau of Statistics, and has the code 221112 in that document. This was the occupation that was the subject of nomination by the first appellant’s employer and approval by a delegate of the first respondent (the Minister). This was also the occupation which, following the change referred to above, was the subject of the first appellant’s visa application.
The effect of the relevant provisions of the Migration Regulations 1994 (Cth) (the Regulations) was to require that, for an application for a Subclass 186 visa in the Direct Entry stream, the position to which the application relates correspond to an occupation specified by the Minister in an instrument in writing: see cl 186.233(1)(a)(i) of Sch 2 to the Regulations and reg 5.19(4)(h)(i). By the relevant instrument, the Minister had specified occupations by reference to ANZSCO and the codes in that document. One such occupation was Management Accountant (ANZSCO code 221112).
One of the criteria for the grant of the visas was, relevantly, that “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” (cl 186.234(2)(a) of Sch 2 to the Regulations). The assessing authority for present purposes was the Institute of Chartered Accountants in Australia (the ICAA).
It is convenient to note at this point that ANZSCO came into operation on 1 July 2010. Prior to this, the applicable classification scheme (as prescribed by the Minister in a legislative instrument) was the Australian Standard Classification of Occupations (ASCO). There are differences between the classifications under ASCO and those under ANZSCO. Relevantly for present purposes:
(a)ASCO included the occupation Accountant, with the code 2211-11; and
(b)ANZSCO includes the following three occupations:
(i)Accountant (General) – code 221111;
(ii)Management Accountant – code 221112; and
(iii)Taxation Accountant – code 221113.
In support of his visa application, the first appellant relied on a skills assessment from the ICAA dated 25 March 2011 (the ICAA Skills Assessment). Although completed after ANZSCO came into operation, the ICAA Skills Assessment was in fact carried out by reference to the ASCO occupation of Accountant. This was in circumstances where the first appellant had applied for the skills assessment before 1 July 2010. In the course of the hearing before the Migration Review Tribunal (the Tribunal), the first appellant, in response to a question why he did not request the ICAA to assess his skills by reference to the occupation of Management Accountant, explained that this was because he had not completed all of the mandatory subjects to receive a positive skills assessment as a Management Accountant.
The first appellant contended before the Tribunal that the ICAA Skills Assessment satisfied the criterion in cl 186.234(2)(a). The first appellant relied on certain departmental policy guidelines, being the Procedural Advice Manual (PAM3) of the Department of Immigration and Citizenship (DIAC), now the Department of Immigration and Border Protection (collectively, the Department), which dealt with transitional arrangements between ASCO and ANZSCO. He also relied on a document prepared by the Department with correlations between ASCO occupations and ANZSCO occupations (the DIAC-endorsed Correlations). In the latter document, Accountant under ASCO was accepted as correlating with Accountant (General), Management Accountant and Taxation Accountant under ANZSCO.
A delegate of the Minister refused the appellants’ application for the visas.
On review by the Tribunal, the Tribunal found that the first appellant did not hold a suitable skills assessment for the approved nominated occupation of Management Accountant. In reaching this conclusion, the Tribunal found that the first appellant was someone who was “simply unable to obtain a suitable skills assessment as a management accountant”.
The appellants applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The application was dismissed by the primary judge, who considered that it was open on the facts for the Tribunal to reach the decision that it did.
The appellants appeal to this Court from the judgment of the Federal Circuit Court. The appellants’ principal ground in their amended notice of appeal is that the Tribunal failed to address the correct question, in that it failed to ask itself whether, by virtue of the ICAA Skills Assessment, an assessing authority had assessed the first appellant’s skills as suitable for the occupation of Management Accountant. The appellants’ alternative ground is that the Tribunal misunderstood or mischaracterised the evidence before it. The appellants contend that the primary judge erred in not concluding that the Tribunal erred in the ways indicated in their grounds of appeal.
For the reasons that follow, in my view the primary judge did not err in the ways submitted by the appellants. In particular, although as a general proposition it was open to the Tribunal to accept the ICAA Skills Assessment (conducted by reference to the occupation of Accountant under ASCO) as sufficient for the purposes of the occupation of Management Accountant under ANZSCO, the Tribunal was not obliged to do so. In the circumstances of this case, which include that the skills assessment was conducted after 1 July 2010 and that the first appellant had not completed the mandatory subjects for the occupation of Management Accountant, it was open to the Tribunal to find that the ICAA Skills Assessment did not constitute a suitable skills assessment for the occupation of Management Accountant.
Accordingly, the appeal is to be dismissed.
Background facts
The following background facts are based on the documents in the Court Book (being the Court Book from the Federal Circuit Court proceeding which was used as the Appeal Book for the purposes of this appeal), supplemented by two documents tendered by the appellants.
On 28 June 2010, the first appellant applied to the ICAA for a skills assessment as an Accountant.
On 1 July 2010, the classification scheme for occupations utilised by the Department
(as prescribed by legislative instrument) changed from the occupations defined in ASCO to those defined in ANZSCO.
On 14 September 2010, the ICAA issued a letter of assessment in which it found that the first appellant did not hold the skills necessary for the occupation of Accountant (under ASCO) as he had not completed a mandatory subject.
Subsequently, the first appellant corresponded with the ICAA, ultimately seeking review of its assessment.
On 25 March 2011, the ICAA issued the ICAA Skills Assessment (CB 155). This took the form of a letter from the ICAA to the first appellant and relevantly provided as follows:
Letter of Review
Reference: PASA/491499 (Review)
Applicant: Chaminda Tharanga SUTHERLAND
Nominated Occupation: Accountant (General) 221111
Former ASCO Code Accountant 2211-11Assessment Outcome: Suitable for your nominated occupation
Dear Mr Sutherland
I refer to your letter of assessment dated 14 September 2010 and to your correspondence since that date.
Assessment Details
I have fully reviewed the additional documentation provided.
As a result of this, you have been granted the core knowledge area of Australian Taxation Law based on your studies at the University of Southern Queensland, Australia.
Assessment Outcome
Your Master of Business Administration from James Cook University, Australia is recognised by the Institute of Chartered Accountants in Australia (‘the Institute’).
Your qualifications are assessed as suitable for migration to Australia under your nominated skilled occupation. Further information about the assessment is enclosed.
This letter of assessment should be included when you lodge your application for skilled migration with the Australian Department of Immigration and Citizenship (DIAC). Please note that the assessment outcome does not imply that your application to migrate will be successful as such decisions are the responsibility of DIAC.
As set out in the passage quoted above, the ICAA Skills Assessment stated that the nominated occupation was “Accountant (General) 221111 Former ASCO Code Accountant 2211-11”. Although this may be taken to suggest that the skills assessment was carried out in relation to, or by reference to, the occupation of Accountant (General) under ANZSCO, a subsequent letter of clarification from the ICAA dated 7 August 2014 (referred to below) made plain that the assessment was in fact carried out by reference to the occupation of Accountant under ASCO.
On 29 June 2012, the first appellant’s employer, Belbaker Pty Ltd, lodged an application for nomination of an occupation in relation to the first appellant. The application described the position offered by the employer as being for the occupation “Accountant” and as having the ANZSCO code 221112 (ie, the code for Management Accountant under ANZSCO).
On 10 January 2013, a delegate of the Minister approved the nominated occupation. The approval stated that the occupation was “ANZSCO: 221112”, that is, Management Accountant.
On 9 July 2013, the appellants lodged their application for Subclass 186 visas. In a section of the application dealing with skills assessment, the nominated occupation of the first appellant was stated to be “Accountant (General)” (CB 9). This would appear to have been a mistake, as the occupation nominated by the employer and approved by the delegate was Management Accountant. The nominated occupation in the visa application was later changed (as referred to below). In response to a question in the application form regarding a suitable skills assessment, the appellants relied on the ICAA Skills Assessment dated 25 March 2011.
On 3 October 2013, an officer of the Department sent an email to the appellants’ migration agent seeking clarification of certain matters within 28 days. Among other things, the officer sought clarification of the first appellant’s position: “You have indicated on your visa application that the position you are applying for is Accountant (ANZSCO 221111). However the position approved on the nomination was Management Accountant (ANZSCO 221112).” The email also sought a skills assessment from the relevant assessing authority for the nominated occupation, namely Management Accountant.
On 21 November 2013, a delegate of the Minister decided to refuse the appellants’ application for the visas. The delegate’s decision noted that: the visa application related to the position “Accountant (ANZSCO 221111)”; on 3 October 2013, an email had been sent to the appellants’ migration agent seeking clarification of certain matters, including the discrepancy between the position specified on the visa application and the nominated and approved position; no reply had been received within the specified period; on 11 November 2013, the delegate had contacted the appellants’ migration agent who said that he would check if his client wanted to withdraw the application and would contact the delegate by 15 November 2013; and the delegate had not received a reply by that date. In these circumstances, the delegate was not satisfied that the appellants met the criteria for the visas.
Subsequently, there was correspondence between the appellants’ migration agent and the Department. The agent sought to have the decision rescinded, contending that it was based on incorrect information. In a letter dated 1 December 2013, the agent sought to rely on transitional arrangements relating to the change from ASCO to ANZSCO. In an email dated 17 December 2013, an officer of the Department rejected the contention that the delegate’s decision was subject to an error. Accordingly, the officer stated that the decision would not be vacated.
The appellants applied to the Tribunal for review of the delegate’s decision dated 21 November 2013.
On 4 August 2014, a hearing took place before the Tribunal. The first appellant and the appellants’ migration agent attended the hearing.
At the hearing, and in correspondence with the Tribunal shortly after the hearing (see, eg, CB 148), the appellants made clear that the visa application related to the occupation of Management Accountant (being the occupation nominated by the employer and approved by the delegate) and not Accountant (General) (as stated in the visa application). The appellants’ contention before the Tribunal was that the ICAA Skills Assessment should be treated as sufficient for the occupation of Management Accountant pursuant to transitional arrangements made by the Department. The appellants contended that the ICAA Skills Assessment was carried out by reference to the occupation of Accountant under ASCO, and that this occupation correlated with any and all of Accountant (General), Management Accountant and Taxation Accountant under ANZSCO. Hence, it was contended, the first appellant had a suitable skills assessment for the occupation of Management Accountant.
In the course of the hearing, the Tribunal sought clarification of the basis upon which the ICAA Skills Assessment had been carried out. Accordingly, the first appellant sought and obtained a letter from the ICAA which clarified the position (CB 153). This letter, a copy of which was provided to the Tribunal shortly after the hearing, stated:
The Institute of Chartered Accountants Australia confirms that we assessed your qualifications under the nominated occupation of ASCO Accountant 2211-11 on 25 March 2011.
This letter is to clarify the assessment process that was used, and the procedure which warranted the use of both the ASCO Code and the ANZSCO Code for the occupation of ‘Accountant’.
The original application for an ASCO Accountant Skills Assessment was lodged prior to July 2010 and as such was assessed against the ASCO Code and the applicable ASCO Criteria.
Your original assessment was not suitable however you did apply for a review on the 14 September 2010. A full review was undertaken of additional information provided and you were assessed as suitable for migration purposes. Your application for review was assessed under the ASCO criteria for an Accountant and that specification (on the review letter) that you were an Accountant (General) ANZSCO 221111 was a result of advice from the Department of Immigration.
We were advised by the Department of Immigration at the time that they would prefer that we put down the old ASCO Code as well as the relevant upgraded ANZSCO code on the review letters.
However in your case I can confirm that your original assessment and subsequent review was completed under pre-July 2010 assessing criteria, despite the final result being recorded on 25 March 2011. You were not required to provide your IELTS result which was a new requirement that was introduced to applicant’s that applied to have their qualifications assessed after 1 July 2010.
As per the DIAC Endorsed correlations from ASCO Occupations to ANZSCO Occupations – as at 1 July 2010, an ASCO Accountant is equivalent to the following ANZSCO Occupations;
Accountant (General)
Taxation AccountantManagement Accountant
As previously noted, the recording of the ANZSCO Code on the review letters was as a result of advice from the Department of Immigration however I can confirm that you were assessed as an ASCO Accountant 2211-11.
It is convenient at this point to set out the occupation descriptions in ASCO and ANZSCO:
(a)The occupation of Accountant under ASCO (code 2211-11) was described as follows:
Plans and provides systems and services relating to the financial dealings of enterprises and individuals, and advises on associated record-keeping and compliance requirements.
(b)As noted above, from 1 July 2010 the ANZSCO classifications replaced the ASCO classifications. Under ANZSCO, the occupations of Accountant (General), Management Accountant and Taxation Accountant are described as follows:
221111 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.
…
221112 MANAGEMENT ACCOUNTANT
…
Plans, reviews and administers accounting systems and procedures, analyses the financial information needs of organisations, provides advice on 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.
…
221113 TAXATION ACCOUNTANT
…
Analyses, reports and provides advice on taxation issues to organisations or individuals, prepares taxation returns and reports, and handles disputes with taxation authorities. Registration or licensing may be required.
The following aspects of PAM3 are noted:
(a)After referring to ANZSCO replacing ASCO on 1 July 2010 (at section 2.3), and how ANZSCO works (at section 4), it explains that, “[a]lthough the ASCO and ANZSCO systems appear superficially similar, the underlying concepts are markedly different” (section 6). It states that there are only 13 instances where the same six digit code represents the same, or a very similar, occupation in both ASCO and ANZSCO (section 6.8). One of these is Accountant (under ASCO) and Accountant (General) (under ANZSCO).
(b)Section 7 of PAM3 deals with ASCO-ANZSCO correlations for departmental purposes. It explains that: differences between ASCO and ANZSCO mean 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 occupation(s) were most closely correlated to it; and the resulting correlations became the Department’s endorsed correlations for these purposes (ie, the DIAC-endorsed Correlations).
(c)Section 8 of PAM3 deals with the use of ANZSCO in skilled migration visa subclasses. It states that “[i]f 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” (section 8.3). It continues:
This may occur if:
Ÿan 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
Ÿan 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.
The DIAC-endorsed Correlations include a correlation between, on the one hand, Accountant (ASCO code 2211-11) and, on the other hand, Accountant (General) (ANZSCO code 221111), Taxation Accountant (ANZSCO code 221113), and Management Accountant (ANZSCO code 221112). The DIAC-endorsed Correlations contain the following statement at the beginning of the document:
This document provides all ASCO-ANZSCO occupation correlations endorsed by DIAC. This list does not distinguish between those occupations included on Skilled Occupation Lists or other legislative Instruments, and those occupations correlated for historical reporting purposes only. It is to be viewed as a list of DIAC-endorsed occupation correlations, at a particular point in time, for general information purposes only.
Tribunal decision
The Tribunal noted, at [4], that the first appellant was seeking a visa in the Direct Entry stream to work in the nominated occupation of Management Accountant. As explained above, by the time of the Tribunal hearing, the appellants had changed the occupation identified in the visa application to Management Accountant to conform with the occupation that was the subject of the employer’s nomination and the delegate’s approval.
At [9], the Tribunal stated that the “key issue in the present case” was whether the first appellant had a suitable skills assessment for the nominated occupation of Management Accountant. No issue is taken with this identification of the issue.
The Tribunal explained, at [11], that for an applicant in the Direct Entry stream, cl 186.234 of Sch 2 to the Regulations required that, at the time of application, either the applicant was in a class of persons specified in an instrument in writing (ie, exempt persons) or the applicant’s skills had been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements had been met.
The Tribunal referred, at [14], to the ICAA Skills Assessment dated 25 March 2011, relied upon by the first appellant. The Tribunal noted that this document recorded the first appellant’s nominated occupation as “Accountant (General) 221111, former ASCO code Accountant 2211-11”, and that the nominated occupation for which the first appellant had obtained a skills assessment was not the nominated occupation of Management Accountant.
The Tribunal explained, at [15], that the first appellant was seeking to rely on certain transitional provisions which came into effect on 1 July 2010 when the Department transferred from ASCO to ANZSCO. In particular, the Tribunal noted, the first appellant relied on the DIAC-endorsed Correlations. The Tribunal stated that the DIAC-endorsed Correlations provide that “the ASCO occupation accountant 2211-11 correlates to the ANZSCO occupations: accountant (general) 221111; taxation accountant 221113 and management accountant 221112”. The Tribunal noted that the document states that it is “a list, at a particular point in time and for general information purposes only”.
The Tribunal referred, at [16], to departmental policy guidelines in relation to the correlation between ASCO and ANZSCO, setting out extracts from PAM3.
At [19], the Tribunal stated that, at the hearing, the first appellant had explained to the Tribunal that: he made his application for a skills assessment as an accountant to the ICAA prior to 1 July 2010 (ie, on 28 June 2010) based on qualifications from James Cook University; on 14 September 2010, the ICAA made an assessment that his qualifications were not suitable for an accountant; this result was because he had not completed a mandatory subject; he then completed that subject at the University of South Queensland and, in March 2011, applied to the ICAA for a review of its earlier assessment; and, following this, the ICAA issued him with a “review suitable skills assessment” on 25 March 2011 (ie, the ICAA Skills Assessment). The Tribunal then continued, at [19] of its reasons:
When asked why the applicant did not request ICAA to assess his skills as a management accountant in March 2011, the applicant explained to the Tribunal that was because he had not completed all of the mandatory subjects to receive a positive skills assessment as a management accountant. The applicant stated had he received a suitable skills assessment as an accountant using the ASCO code, he would be able to rely on that skills assessment under the transitional provisions to demonstrate he had a suitable skills assessment under the correlated occupation under ANZSCO as a management accountant. As his review skills assessment issued on 25 March 2011 refers to the ASCO code for accountant (as well as the ANZSCO code for accountant (general)) he should too be able to rely on that review skills assessment under the transitional provisions to demonstrate he had a suitable skills assessment for the correlated occupation under ANZSCO as a management accountant.
At [21], the Tribunal referred to the letter from the ICAA dated 7 August 2014 clarifying the basis upon which the ICAA Skills Assessment had been conducted. The Tribunal stated: “The assessor states the review was conducted under pre 1 July 2010 assessing criteria (ie ASCO).”
At [22] of the Tribunal’s reasons, the Tribunal member stated: “On the basis of the letter from ICAA dated 7 August 2014, the Tribunal finds the applicant’s review application to ICAA was assessed under ASCO guidelines for accountant.”
The Tribunal also made the following finding at [22]:
The applicant did not seek to change his nominated occupation to management accountant in the review assessment by ICAA. The Tribunal accepts the applicant’s evidence this was because he knew he had not completed the mandatory subjects necessary to achieve a suitable skills assessment as a management accountant.
The Tribunal reiterated this finding at [23] as follows:
The Tribunal finds the applicant has never sought a skills assessment in the approved nominated occupation of management accountant. His application to ICAA on 28 June 2010 could not have been made for the nominated occupation of management accountant, because it is not an occupation identified in ASCO. He did not request his review application to ICAA be considered as a management accountant (although ANZSCO was now in effect at that time), because he was aware he would receive a not suitable assessment (as he had not studied all of the requisite subjects). No doubt for the same reason, the applicant did not make a fresh application for assessment of his skills for the approved nominated occupation as a management accountant to ICAA or any other specified skills assessing authority prior to his applying for the visa in July 2013.
The Tribunal noted, at [24], that it agreed with the appellants’ submission that, if the first appellant’s 28 June 2010 skills assessment application had been assessed as suitable, the first appellant would have been able to rely on the transitional provisions. The Tribunal stated: “In other words, a suitable skills assessment as accountant ASCO 2211-11 would have correlated to be acceptable as a suitable skills assessment for the approved nominated occupation of management accountant ANZSCO 221112.” The Tribunal observed, however, that the difficulty for the first appellant was that his 28 June 2010 skills assessment application was assessed as not suitable on 14 September 2010. Accordingly, the Tribunal stated: “So he does not have a suitable skills assessment from ICAA as an accountant ASCO 2211-11”.
The Tribunal then considered whether “the review assessment conducted by ICAA was indeed a review” (at [25]). Although expressing some doubts about whether it was actually a review, the Tribunal concluded that for the purposes of its decision it accepted that the ICAA Skills Assessment was “a review by ICAA of the decision of 14 September 2010 for the occupation of accountant ASCO 2211-11”.
The Tribunal’s reasons continued, at [26]-[31], as follows:
26.The Tribunal finds the applicant holds a review suitable skills assessment from ICAA as an accountant (general) 221111 issued on 25 March 2011. The Tribunal acknowledges the correspondence from ICAA stating the review was conducted by ICAA under ASCO guidelines for the occupation accountant 2211-11. The Tribunal acknowledges too the review suitable assessment bears the ANZSCO code for accountant (general) 221111 and ‘former’ ASCO code for accountant 2211-11. But the Tribunal considers it is clear the review suitable skills assessment was issued after 1 July 2010. The Tribunal notes too that the review assessment was issued only after the applicant successfully completed a mandatory subject some months after the initial not suitable skills assessment was issued by ICAA in September 2010. The Tribunal too considers it is clear the nominated occupation on the review suitable assessment is accountant (general) 221111.
27.The Tribunal considers the evidence is finely balanced as to whether the review suitable assessment entitles the applicant to rely on the transitional provisions between ASCO and ANZSCO so that his review suitable skills assessment as an accountant (general) 221111 correlates to a suitable skills assessment as a management accountant ANZSCO 221112.
28.On the one hand, the review suitable assessment was conducted under ASCO and bears both the ANZSCO code for accountant (general) and ASCO code for accountant. On the other hand, the applicant only obtained the review suitable assessment due to his making a skills application that was doomed to fail and after he successfully later completed an additional mandatory subject. Further, the applicant has not and cannot obtain a suitable skills assessment as a management accountant.
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.
30.For the above reasons, after weighing up all of the evidence, on balance the Tribunal considers the correct and preferable decision is that the applicant is not entitled to rely on the transitional provisions to correlate his review suitable skills assessment as an accountant (general) ANZSCO 221111 to mean he holds a suitable skills assessment as a management accountant ANZSCO 221112. The Tribunal finds the applicant has only a review suitable skills assessment as an accountant (general) 221111.
31.It follows the Tribunal finds the applicant does not hold a suitable skills assessment for the approved nominated occupation of management accountant 221112.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the appellants Employer Nomination (Permanent) (Class EN) visas.
The Federal Circuit Court decision
The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.
Both the appellants and the Minister were represented by counsel and solicitors at the hearing before the primary judge.
On 7 November 2016, the primary judge delivered his reasons for judgment and made orders dismissing the application. The primary judge outlined the relevant provisions of the Regulations and the relevant ASCO and ANZSCO occupations at [1]-[8], and set out a chronology of events at [9]. The primary judge stated, at [11], that: there was “no question that on the ANZSCO categories the [first appellant] does not have a skills assessment for the position of ‘Management Accountant’, which is the category of the relevant position”; and thus, having regard only to the ANZSCO categories, the first appellant did not meet the visa criteria. At [12], the primary judge summarised the first appellant’s argument, namely that “the 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”.
The primary judge outlined the transitional arrangements at [13]-[18], referring to PAM3. The primary judge dealt with the effect of PAM3 at [19]-[20], noting that it was only a guideline and not a legislative instrument, and could not change the meaning or operation of cl 186.234 of Sch 2 to the Regulations.
The primary judge stated, at [21], that the central question in the case was “whether or not the authority ‘assessed the applicant’s skills as suitable for the occupation’”. This required, the primary judge said, consideration of the categories of skills assessed by the authority and the category of the occupation. The primary judge noted that “[u]ltimately 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”.
The primary judge reasoned at [25]-[26]:
25.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.
26.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.
The primary judge dealt, at [27]-[28], with an argument presented on behalf of the appellants relating to [24] of the Tribunal’s reasons. The primary judge considered that, read in context, the Tribunal was only speaking of the initial assessment at [24], not the subsequent review assessment.
The primary judge reasoned, at [29]-[33], as follows:
29.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.
30.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.
31.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.
32.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
33.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.
The appeal to this Court
The appellants appeal from the judgment of the Federal Circuit Court. The appellants’ proposed amended notice of appeal (which was handed up during the appeal hearing) contained three grounds, but the third ground was abandoned during the course of oral submissions. The first two grounds (as set out in the amended notice of appeal filed with leave following the hearing) are as follows:
The Judge below erred in not accepting that:
1.The Tribunal failed to address the correct question, in that it failed to ask itself whether the applicants’ skills assessment for the occupation “Accountant, ASCO 2211-11” meant that “an assessing authority specified by the Minister in an instrument in writing as the assessing authority for the occupation of Management Accountant had assessed the applicant’s skills as suitable for the occupation?”
2.The Tribunal misunderstood or mischaracterised the evidence before it, and based its decision upon that misunderstanding or mischaracterisation.
Particulars
i.The Appellants sought correlation between an assessment for the occupation “Accountant, ASCO 221111”, and the nominated occupation of Management Accountant, ANZSCO Code 221112.
ii.The Tribunal understood that the Appellants sought correlation between “Accountant (General), ANZSCO Code 221111” and the nominated occupation “Management Accountant, ANZSCO Code 221112”.
Consideration
There is no issue between the parties that the visa criterion relevant to this appeal is that specified in cl 186.234(2)(a) of Sch 2 to the Regulations, which required that “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”.
Nor is there any issue that the Minister made the relevant specification by the legislative instrument, IMMI 14/049 (see paragraph 5 and Sch 1). That instrument commenced on 1 July 2014 (before the Tribunal’s decision on 12 September 2014) and expressly provided that it was to apply to “a person who applies on or after 1 July 2013 but before 1 July 2014 for a Subclass 186 visa” (such as the appellants, who applied for the visas on 9 July 2013). Sch 1 to that instrument included the occupation Management Accountant with the ANZSCO code 221112, and specified assessing authorities for that occupation including the ICAA.
The appellants’ submissions (in relation to both grounds of appeal) can be summarised as follows:
(a)The ICAA Skills Assessment mentioned an ANZSCO code and an ASCO code. The ICAA explained that it was an assessment under ASCO, and that the ANZSCO code was included for administrative convenience in dealing with the Department. The mention of the ANZSCO code was no more than the statement of an opinion – either that of the ICAA or the Department, it is not clear which – of the ‘correlation’ between the ASCO code assessment that was undertaken and the entries in ANZSCO.
(b)In short, the evidence before the Tribunal was that the first appellant enjoyed a positive assessment under ASCO for the occupation of Accountant, ASCO code 2211-11. The first appellant had applied for this assessment prior to 1 July 2010, but only became substantively entitled to a positive assessment after this date.
(c)This discrepancy gave rise to the need for the Tribunal to undertake a comparative evaluation between the substance of the assessment under ASCO and the requirement for a “suitable” skills assessment for the nominated occupation, being Management Accountant, ANZSCO code 221112. This evaluation was informed by the appellants’ argument that the opinion of the Department was that there was a correlation between Accountant (ASCO code 2211-11) and Management Accountant (ANZSCO code 221112), as expressed in its policy documents.
(d)Although the Department had sought to qualify its opinion by reference to a ‘time limit’, any ‘time limit’ could not bind the Tribunal.
(e)The Tribunal conducted its evaluation upon a footing that sprang from a misconception. This misconception is apparent from the statement in [26] of the Tribunal’s reasons that “it is clear the nominated occupation on the review suitable assessment is accountant (general) 221111”. This can only be understood as an expression of the Tribunal’s opinion that the appellants were relying upon an assessment for the occupation of Accountant (General) (ANZSCO code 221111). This is confirmed by a similar statement in [30] of the Tribunal’s reasons.
(f)The false premise was that the appellants sought a correlation between a skills assessment for the occupation of Accountant (General) (ANZSCO code 221111) and the nominated occupation of Management Accountant (ANZSCO code 221112). However, the appellants relied on an assessment for the occupation of Accountant (ASCO code 2211-11) and argued for a correlation between this assessment and the nominated occupation of Management Accountant (ANZSCO code 221112).
(g)The correct question was whether, having regard to the appellants’ reliance on the departmental opinion that there was a correlation between Accountant (ASCO code 2211-11) and Management Accountant (ANZSCO code 221112) and to how and when the first appellant obtained the positive ICAA Skills Assessment, the Tribunal should accept that the ICAA Skills Assessment for the occupation of Accountant (ASCO code 2211-11) had a suitable correlation with the nominated occupation of Management Accountant (ANZSCO code 221112). Instead, the Tribunal answered a different question, namely whether there was a suitable correlation between the first appellant’s assessment as suitable for Accountant (General) (ANZSCO code 221111) and the nominated occupation of Management Accountant (ANZSCO code 221112).
(h)The first appellant’s actual case was capable of succeeding given the ambulatory manner in which accountancy was treated under ASCO, the departmental research undertaken in this regard, and the statement of an opinion by the Department to this effect (whatever may have been the Department’s purpose for expressing this opinion and crystallising it into policy). The question that the Tribunal asked itself, however, left the first appellant with no chance of success because there was no basis on which the first appellant could have argued for ‘correlation’ between Accountant (General) (ANZSCO code 221111) and Management Accountant (ANZSCO code 221112), not having any departmental opinion in his corner. This was the wrong question to ask, and amounts to a jurisdictional error.
(i)While there are two potential indications to the contrary (being the final sentence of [25] and the second sentence of [29] of the Tribunal’s reasons), fairly read these passages are just a statement of the underlying factual circumstances. As the error does not spring from the Tribunal ignoring any piece of evidence or making bare factual mistakes, but from the mischaracterisation of the evidence, these passages do not undermine the argument set out above.
(j)Alternatively, the Tribunal misconstrued or misunderstood the evidence and so, constructively, failed to perform a “review” or denied the appellant procedural fairness: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]. This same argument was put below and does no more than identify a different legal conclusion (being a different expression of the jurisdictional error).
The appellants further submit that the primary judge erred in failing to accept the arguments set out above.
In my view, for the reasons that follow, the appellants have not established error in the reasons of the primary judge. In particular, the appellants have not established that the primary judge erred in failing to find jurisdictional error by the Tribunal.
The Tribunal’s reasons need to be read as a whole. When this is done, it is clear, in my view, that the Tribunal correctly understood that the ICAA Skills Assessment was carried out by reference to the occupation of Accountant (ASCO code 2211-11) and, therefore, that the correlation to be considered was between that occupation and the nominated occupation of Management Accountant (ANZSCO code 221112). I note, in particular, the following aspects of the Tribunal’s reasons:
·At [15], the Tribunal stated that the first appellant was seeking to rely on certain transitional provisions that came into effect on 1 July 2010 when the Department transferred from ASCO to ANZSCO and, in particular, the document titled “DIAC endorsed correlations from ASCO to ANZSCO occupations – as at 1 July 2010” (referred to in these reasons as the DIAC-endorsed Correlations). This indicates that the Tribunal understood that the correlation sought to be made by the first appellant was between an ASCO occupation and an ANZSCO occupation.
·The Tribunal set out, at [16], extracts from the departmental guidelines (ie, PAM3) in relation to the correlation between ASCO and ANZSCO. Again, this indicates that the Tribunal correctly understood the correlation sought to be made.
·At [19], the Tribunal set out the first appellant’s response to the question why he had not requested the ICAA to assess his skills as a Management Accountant in March 2011. In setting out the first appellant’s response to this question, it is plain that the Tribunal understood the argument that was being put by the first appellant, namely that he sought to rely on a skills assessment conducted under ASCO and the transitional provisions “to demonstrate [that] he had a suitable skills assessment under the correlated occupation under ANZSCO as management accountant”.
·At [21], the Tribunal described the letter from the ICAA dated 7 August 2014. The description of the letter indicates that the Tribunal understood that the ICAA Skills Assessment “was conducted under pre 1 July 2010 assessing criteria (ie ASCO)”.
·At [22], the Tribunal found that “[o]n the basis of the letter from ICAA dated 7 August 2014 … the applicant’s review application to ICAA was assessed under ASCO guidelines for accountant”.
·At [27], the Tribunal stated that it considered the evidence to be “finely balanced” as to whether the review suitable assessment (ie, the ICAA Skills Assessment) “entitles the applicant to rely on the transitional provisions between ASCO and ANZSCO”. Putting to one side whether the word “entitles” was apt, it is apparent that the Tribunal understood that the correlation sought to be made by the first appellant was between an ASCO occupation and an ANZSCO occupation.
·At [28], the Tribunal again noted that the review suitable assessment (ie, the ICAA Skills Assessment) “was conducted under ASCO”.
It is true that there are parts of the Tribunal’s decision which, if taken in isolation, may suggest that the Tribunal thought that the ICAA Skills Assessment was for the occupation of Accountant (General) (ANZSCO code 221111) and that the correlation sought to be made by the first appellant was between Accountant (General) (ANZSCO code 221111) and Management Accountant (ANZSCO code 221112). I refer, in particular, to the following passages:
·The first sentence of [26]: “The Tribunal finds the applicant holds a review suitable skills assessment from ICAA as an accountant (general) 221111 issued on 25 March 2011.”
·The last sentence of [26]: “The Tribunal too considers it is clear the nominated occupation on the review suitable assessment is accountant (general) 221111.”
·The conclusion in [30] that the first appellant was not entitled to rely on the transitional provisions to correlate his review suitable assessment “as an accountant (general) ANZSCO 221111” with “management accountant ANZSCO 221112”.
·The finding in [30] that the first appellant “has only a review suitable skills assessment as an accountant (general) 221111”.
However, these passages need to be read in the context of the Tribunal’s reasons as a whole and consistently with the principles discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. When so read, taking into account, in particular, the passages referred to in [62] above, it is clear that the Tribunal correctly understood both the nature of the ICAA Skills Assessment (namely, a skills assessment carried out by reference to ASCO) and the correlation sought to be made by the first appellant (namely, between Accountant (ASCO code 2211-11) and Management Accountant (ANZSCO code 221112)).
It is also relevant to bear in mind that there is a close textual similarity between the description of the occupation of Accountant under ASCO and that of Accountant (General) under ANZSCO – see the descriptions set out in [30] above – and that the ICAA Skills Assessment itself referred to Accountant (General) 221111. In these circumstances, it is perhaps understandable that the Tribunal, in certain passages, described the ICAA Skills Assessment as a skills assessment for Accountant (General) under ANZSCO. But I think it is clear, for the reasons given above, that the Tribunal understood that the ICAA Skills Assessment was in fact carried out under ASCO and that the correlation sought to be made by the first appellant was between an ASCO occupation (namely, Accountant) and an ANZSCO occupation (namely, Management Accountant).
This way of reading the Tribunal’s reasons is reinforced by the substance of why the Tribunal rejected the first appellant’s argument. The first appellant’s visa application related to the position of Management Accountant. It was this occupation that had been the subject of a nomination by the first appellant’s employer and approval by a delegate of the Minister. Although the visa application was lodged a long time after the transition from ASCO to ANZSCO (the transition occurred on 1 July 2010; the visa application was lodged on 9 July 2013), the first appellant was seeking to rely on a skills assessment carried out by reference to the ASCO occupation of Accountant. The Tribunal asked the first appellant why he had not requested the ICAA to assess his skills as a Management Accountant in March 2011 (the month when the ICAA Skills Assessment was obtained). In response, the first appellant explained that this was because he “had not completed all of the mandatory subjects to receive a positive skills assessment as a management accountant” (Tribunal reasons, [19]). The Tribunal accepted that evidence at [22] of its reasons. It was in these circumstances that the Tribunal (at [28]-[29]) declined to treat the ICAA Skills Assessment as a suitable skills assessment for the occupation of Management Accountant. This method of reasoning indicates an appreciation of the circumstances in which the first appellant obtained the ICAA Skills Assessment, the nature of that skills assessment, and how he sought to rely on it.
I note for completeness that the appellants did not suggest that, if the Tribunal had correctly understood the nature of the ICAA Skills Assessment and the correlation sought to be made by the first appellant, it was bound to accept this. Ultimately, as the primary judge stated, it was a question of fact to be determined by the Tribunal whether the skills assessment put forward by the first appellant satisfied the requirements of cl 186.234(2)(a) of Sch 2 to the Regulations and, in particular, whether the assessing authority had “assessed the applicant’s skills as suitable for the occupation”.
For these reasons, in my view neither of the grounds set out in the appellants’ amended notice of appeal is established.
It follows that the appeal is to be dismissed. It was accepted by both sides at the hearing that costs should follow the event. I will, therefore, also make an order that the appellants pay the Minister’s costs of the appeal.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 19 July 2017
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