Talha v MIBP

Case [2015] FCAFC 115

FEDERAL COURT OF AUSTRALIA

Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

Citation: Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Appeal from: Talha v Minister for Immigration & Anor [2014] FCCA 2191
Parties: MOHAMMED AWAIZ TALHA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 594 of 2014
Judges: GRIFFITHS, MORTIMER AND BEACH JJ
Date of judgment: 25 August 2015
Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia (‘FCCA’) – application for Skilled (Provisional) (Class VC) visa – whether the FCCA erred in holding that the Administrative Appeals Tribunal (‘Tribunal’) correctly construed and applied cl 485.213(b) of Sch 2 of the Migration Regulations 1994 (Cth) – whether the FCCA erred in not finding that the Tribunal fell into jurisdictional error in considering whether the appellant’s Australian study qualifications were ‘closely related’ to his nominated skilled occupation by determining the content of the nominated occupation without referring to the whole of the ANZSCO description for that occupation
Legislation:

Migration Act 1958 (Cth) s 348

Migration Regulations 1994 (Cth) reg 1.15F, 1.15I, 1.15I(1)(a), Sch 2 cl 485.213, 485.213(a), 485.213(b), 485.221

Legislative Instrument IMMI 12/068

Cases cited:

Bhanot v Minister for Immigration and Border Protection [2014] FCA 848

Constantino v Minister for Immigration and Border Protection [2013] FCA 1301

Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254

Manik v Minister for Immigration and Citizenship [2012] FCA 619

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157

Prasad v Minister for Immigration and Citizenship [2012] FCA 591

Seema v Minister for Immigration and Citizenship [2012] FCA 257

Talha v Minister for Immigration & Anor [2014] FCCA 2191

Tobon v Minister for Immigration & Anor [2014] FCCA 2208

Uddin v Minister for Immigration and Citizenship [2010] FCA 1281

Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; [1978] HCA 30

Date of hearing: 23 July 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 69
Counsel for the Appellant: Ms L Martin and Mr A Aleksov (Pro Bono)
Counsel for the First Respondent: Mr P M Knowles
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 594 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

MOHAMMED AWAIZ TALHA
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:

GRIFFITHS, MORTIMER AND BEACH JJ

DATE OF ORDER:

25 AUGUST 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 1 of the Federal Circuit Court of Australia made on 23 September 2014 be set aside. 

3.The decision of the second respondent dated 29 October 2013 be quashed. 

4.The appellant’s application for review dated 25 June 2012 be remitted to the second respondent for reconsideration according to law. 

5.The first respondent pay…

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AGLC
Talha v MIBP [2015] FCAFC 115
Case
[2015] FCAFC 115
Decision Date

CaseChat Overview and Summary

The case of Talha v MIBP involved an appeal from the Federal Circuit Court of Australia concerning an application for a Skilled (Provisional) (Class VC) visa. The appellant, Mr Talha, sought to challenge the Federal Circuit Court's decision that upheld the Administrative Appeals Tribunal's (AAT) assessment of his visa application. The primary issue was whether the AAT correctly interpreted and applied clause 485.213(b) of the Migration Regulations 1994 (Cth) in determining whether Mr Talha's Australian study qualifications were 'closely related' to his nominated skilled occupation. This required the court to examine whether the AAT fell into jurisdictional error by not considering the entire ANZSCO description for the nominated occupation when making its decision.

The court found that the AAT did not err in its interpretation and application of the regulation. It clarified that the evaluative exercise under clause 485.213(b) must consider the whole of the Australian studies and the whole of the nominated skilled occupation. While a comparison between the two may form part of the exercise, it is not a necessary step. The court also noted that being too prescriptive in describing the evaluative process could risk substituting the terms of the provision with a formula. The Minister's supplementary submissions were considered, highlighting the purpose of the ANZSCO Code and the Tribunal's focus on specific occupational classifications.

The court concluded that the appeal should be upheld, and the decision of the AAT should be set aside. The Tribunal was ordered to reconsider Mr Talha's application for review according to law. The Minister, having defended all grounds of appeal, was to bear the costs of the appeal. The court also expressed gratitude to the pro bono counsel who represented the appellant.

In summary, the Federal Court allowed the appeal, quashed the AAT's decision, and remitted the matter for reconsideration. The Minister was ordered to pay the appellant's costs of and incidental to the appeal. The decision underscored the importance of considering the entire scope of the nominated occupation and the Australian studies when determining the 'closely related' requirement under the Migration Regulations.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 1 of the Federal Circuit Court of Australia made on 23 September 2014 be set aside.

3. The decision of the second respondent dated 29 October 2013 be quashed.

4. The appellant’s application for review dated 25 June 2012 be remitted to the second respondent for reconsideration according to law.

5. The first respondent pay the appellant’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister has not satisfied us that any of these four findings were in error. We would add some further observations. The fourth of those findings ought not to be read as derogating from the fundamental requirement that, in conducting the evaluative exercise required by cl 485.213(b), consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation. We would not, for ourselves, express the proposition in paragraph [25](c) of Tobon as a necessary part of determining whether a qualification is “closely related” to a nominated occupation, although such a comparison may in a given case form part of the exercise as described by the Full Court in Dhillon. This leads to our final observation, which is that we would prefer not to describe the evaluative exercise in cl 485.213(b) as requiring that a decision maker “must” undertake the three steps as set out in [25] of Tobon. There is a danger in attempting to be too prescriptive in relation to a provision such as cl 485.213(b), which invites a formula to be substituted for the terms of the provision. These are more matters of emphasis and approach and do not affect our opinion that none of the four alleged errors in Tobon have been made out. Conclusion The appeal should be upheld. The Tribunal’s decision should be set aside and the Tribunal ordered to reconsider Mr Talha’s application for review according to law. Having defended all the grounds of appeal, the Minister should bear the costs of the appeal. However, having regard to the condition of the grant of leave in respect of the third ground of appeal, the order as to costs made below should stand. The Court expresses its gratitude to Ms Martin and Mr Aleksov who accepted a pro bono referral to advise and appear for the appellant. Mr Knowles, who appeared for the Minister, provided his customary helpful assistance. Appropriate orders will be made accordingly.

Ratio Decidendi

Legal Principle Established

As noted above, after the hearing the Minister filed brief written supplementary submissions in respect of ground 1(c). They may be summarised as follows:(a)the stated purpose of the ANZSCO Code is to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it, but it “is not intended as a means of assigning information about particular jobs to ANZSCO classes”;(b)after describing the various hierarchical groupings in the ANZSCO Code, the Minister submitted that the descriptions of higher-level groupings are more general than those for lower level groupings in particular occupations. Some of the matters included in the higher-level descriptions are not relevant to particular occupations within the grouping, thus the Tribunal should focus its attention on the specific occupational classification;(c)the Minister chose by legislative instrument to identify skilled occupations by reference to occupational categories and not by higher level categories, which justified the Tribunal’s focus on the occupation description;(d)as the ANZSCO Code makes clear, the occupational descriptions summarise the “main activities undertaken and, indirectly, the occupation’s boundaries” and it is this description which sets the boundaries of the occupation in question, not the higher-level description which could be used only to clarify or inform;(e)because the occupation of Engineering Technologist sits within the miscellaneous unit group of “Other Engineering Professionals”, the Tribunal need not consider the description of the unit group because the nature of the miscellaneous grouping is that there is no common theme or connection to the occupations within that group;(f)the ANZSCO Code was developed for statistical purposes and not for the purposes of assigning information about particular jobs to ANZSCO classes. While that might indicate that the ANZSCO Code is not suited to the purpose of determining whether a person’s qualifications are “closely related” to a particular occupation, that is not a matter for the Court because the Minister has determined that the ANZSCO Code is the measure to apply. The Minister has identified skilled occupations by reference to particular occupational categories and there is no requirement for the Tribunal to have regard to the higher-level descriptions because those descriptions are not intended for the purposes of “assigning information about particular jobs”; and(g)the existence of a separate unit group and occupational classification for “Engineering Managers” confirms that the occupation of “Engineering Technologist” (as well as the Engineering Professionals minor group more generally) are focused on technical and not management skills. Consideration The critical issue is whether the Tribunal fell into jurisdictional error in considering whether the Australian studies completed by Mr Talha were “closely related” to his nominated skilled occupation for the purposes of cl 485.213(b).