Thongsuk v Minister for Immigration & Anor
[2007] FMCA 655
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THONGSUK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 655 |
| MIGRATION – MRT decision – onshore independent skilled residence visa – Australian degrees, diplomas or trade qualifications “relevant to” nominated skilled occupation – evaluation of relationship required – Tribunal found MBA not relevant to occupation of pastry cook – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.474(1), 476(1)
Migration Regulations 1994 (Cth), regs.1.03, 1.17, Sch.1 item 1128CA(3)(l), Sch.2 items 880.214, 880.215
Burswood Management Ltd v Attorney‑General (Cth) (1990) 23 FCR 144
HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93
Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309
Parekh v Minister for Immigration [2007] FMCA 633
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311
| Applicant: | CHOOSAK THONGSUK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3122 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 28 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3122 of 2006
| CHOOSAK THONGSUK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 25 October 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 September 2006 and handed down on 27 September 2006. The Tribunal affirmed a decision of a delegate made on 4 January 2006, which refused to grant a ‘Skilled – Independent Overseas Student’ (Residence)(Class DD)(Subclass 880) visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to remit the matter unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa which he seeks.
The visa sought by the present applicant is a subclass which was introduced in 2001, as a permanent residence visa available to persons meeting migration points‑test benchmarks who had successfully studied in Australia immediately before applying on‑shore. Its requirements were amended in June 2005, to introduce a time‑of‑decision criterion that the qualifications gained in Australia are “relevant to” the skilled occupation nominated for skills assessment under the points test. In the present case, the applicant nominated his occupation as “pastry cook” and argued that his degree of Master of Business Administration (Financial Management) was “relevant to” that occupation. The Tribunal did not accept this contention, but it is now argued by the applicant that the Tribunal applied a too restrictive concept of “relevant”. I have not been persuaded by his arguments, and I shall explain my reasons below.
The background
The factual background to the case was sufficiently narrated by the Tribunal in the following paragraphs of its statement of reasons:
13.On 16 July 1998, the visa applicant entered Australia on a Subclass 560 visa which was valid until 15 February 1999. On 11 February 1999 and 5 March 2001 the visa applicant was granted further Subclass 560 visas, the latter of which was valid until 10 March 2003. On 10 March 2003 the visa applicant was granted a Subclass 574 visa which was valid until 15 March 2005. On 22 March 2005, the visa applicant was granted a Subclass 573 visa which was valid until 31 August 2005. On 14 November 2005 the visa applicant was granted a Subclass 497 visa which was valid until 11 January 2006. On 13 October 2005 the visa applicant was granted an associated Bridging visa on the basis of his Subclass 880 visa application.
14.On 5 October 2005 the visa applicant lodged his Subclass 880 visa application. In the visa application, the visa applicant nominated the occupation of Pastry Cook (ASCO code 4512‑13) and stated that the relevant assessing authority was Trades Recognition Australia (TRA). Provided with the visa application was a letter from TRA dated 22 August 2005 which states that the visa applicant’s application has been accepted and that for migration purposes the visa applicant has been designated as a Tradesperson and Related Workers nec (ASCO code 4512‑13) (D1, f.39).
15.In the visa application the visa applicant provided details of his Australian qualifications which were:
March 2001 to February 2003 Diploma of Business
February 2003 to July 2005 Master of Business Administration
February 2005 to June 2005 Certificate III Retail Baking
16.An applicant that has, in the six months immediately preceding the day when the visa application is made, completed a degree, diploma or trade qualification, for award by an Australian educational institution, after less than 2 years full time study, can have completed at least 1 other degree, diploma or trade qualification to achieve not less than 2 years full time study. Therefore, the relevant information provided to the Department was:
•A Certificate III in Food Processing (Retail Baking), Cake and Pastry awarded by City College of Professional Development on 22 June 2005 (D1, f.28). The Final Statement of Results states that the duration of the course is 1 year, however, it also states that the course start date was 1 February 2005 and the course end date was 22 June 2005 a period of 4 months (D1, f.27, T1. ff.25‑26).
•A Master of Business Administration (Financial Management) (MBA) awarded by Central Queensland University on 26 July 2005 (D1, f.29). An Academic History for the visa applicant issued by Central Queensland University indicates that the course commenced in the 2003 Autumn Term and concluded in the 2005 Term 1 (D1, ff.24‑26). Provided to the Tribunal was a letter from Central Queensland University dated 26 July 2005, which states that the visa applicant studied this course over 2 years full time study (T1, f.29).
…
18.The visa applicant also provided to the Department a Relevance Letter dated 28 September 2005 (D1, f.30). The letter stated that the Business Administration course provided skills and knowledge that are relevant and would assist a student in the performance and running of his business as a pastry cook. The visa applicant then goes on to list the skills studied in his MBA as follows:
•Financial Market Analysis.
•Organisational Finance.
•International Finance.
•Investments‑Analysis and Management.
•Managing in a Dynamic Environment.
•Organisational Analysis.
•Strategy Formulation and Initiatives.
•Strategy Implementation.
•International Marketing.
•The Economics of the Asia Pacific.
•Asia Pacific Business.
•Accounting Information for Decision Making.
19.On 4 January 2006 the delegate refused to grant the Subclass 880 visa as the delegate found that elements of the MBA studied by the visa applicant do not relate to the duties and activities of the nominated occupation of Pastry Cook. The delegate referred to the Central Queensland University handbook and stated that the MBA is tailored for a managerial role whereas the nominated occupation of Pastry Cook is a trade qualification and does not have any managerial role. Therefore, the delegate found that the visa applicant did not meet the requirements of clause 880.215.
20.On 27 January 2006, the visa applicant lodged an application for review with the Tribunal. Provided with the application for review was a copy of Central Queensland University’s CPU Postgraduate Handbook 2003 (T1, ff.18‑19) referred to in the delegate’s decision. In the handbook it states that the MBA programme:
…is designed to enhance the opportunities for graduates to obtain positions involving major managerial responsibilities in commerce, industry and government.
Its broad aim is to provide a program which will enable its graduates to apply contemporary management and business knowledge and perspectives in an interdisciplinary manner to the dynamic environments in which they are likely to find themselves as managers.
…
22.The visa applicant also provided a submission in relation to the relevancy of his MBA (T1, f.10). He refers to four basic management functions of planning, organising, leading and controlling and the definition of management being the art of getting things done through people. The submission also states that not everyone who studies management is planning a career in management. The submission states that a Pastry Cook needs management. He refers to Wikipedia definition of Chef and that they are responsible for all aspects of food production including menu planning, purchasing, costing and planning work schedules. He also refers to the requirements of Coles Supermarkets for a Trade/Qualified Baker highlighting and that applicants need to have the ability to take direction and work as part of a team. He quotes Jamie Oliver who states that to get started as a chef you should take courses that not only give you insights into the science of cooking but also give you insights into the front of house, management and accounting sides of the business.
23.The visa applicant’s submission also states that a Pastry Cook as a business person needs to become a good executive and administrator. The Pastry Cook needs to manage physical assets, Human Resources and Time as well as having business entrepreneurship.
24.On 23 March 2006 the visa applicant provided to the Tribunal additional information (T1, ff.63‑87). Provided was a work reference from Vickers Bakery (T1, f.85) and an updated relevance submission (T1, ff.64‑78). Also provided was a Student Transcript for the visa applicant’s Diploma of Business Studies which states that the course dates were 5 March 2001 to 28 February 2003 (T1, ff.82‑83).
25.On 1 August 2006 the Tribunal sent the visa applicant a letter by facsimile (T1, ff.109‑111) inviting the visa applicant, pursuant to section 359A of the Act, to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That information was that:
•Information on the Department’s file that your qualification of Certificate III in Food Processing (Retail Bakery) was awarded after only 12 months study in Australia.
•The skilled occupation you nominated in your Subclass 880 visa application lodged on 5 October 2005 was that of a pastry Cook.
•Information on the Department’s file, provided by the visa applicant, indicates that he studied a Diploma of Business awarded by Bridge College and a Master of Business Administration (Financial Management).
26.The letter also stated that the information is relevant to the review because it indicates that the visa applicant has not, within the 6 months immediately preceding the lodging of his visa application, completed two or more degrees, diplomas or trade qualifications, as a result of at least 2 years of full time study, which are relevant to the skilled occupation nominated in his visa application. If the Tribunal makes this finding it may also find that the visa applicant does not meet relevant criteria, particularly clause 880.215, for the grant of a Subclass 880 visa.
27.On 11 August 2006 the visa applicant’s representative provided a statutory declaration of Mr Luigi Stivaletta dated 11 August 2006. Mr Stivaletta stated in his statutory declaration that a Pastry Cook and business owner requires:
…a solid range of managerial skills and the abilities to manage physical assets, human resource, financial operation and implementation of a business plan. The greater your skills in managing, the greater you’re (sic) potential for success.
On a‑day‑by‑day basis, a pastry cook must constantly plan, organise, control and prepare. Also a pastry cook must know how to receive, control, store stock and monitor work operation. This also includes staff training, menu planning, ordering, purchasing, costing, and planning work schedules. Leading and managing people, dealing with conflict and conflict resolution within the work place.
28.Mr Stivaletta also states that the necessary managerial skills can be found in courses such as Diploma Food Processes Industry, Diploma of Business and Master of Business Administration.
29.On 17 August 2006 the Tribunal held a hearing. At the hearing the visa applicant stated that he was working at Big Joh Pizzas and had been working there part time since 2002 as a delivery person. He also did some kitchen prepping and answering the phone taking orders. He stated that he grew up in kitchens. He is interested in hospitality and the food industry. He wants to have 2 to 3 jobs so he gains experience before he opens his own cake shop and café.
30.At the hearing Mr Luigi Stivaletta who is a Pastry Chef/Business Owner and teacher at TAFE gave evidence. He stated that it was important to have managerial ability if the visa applicant is to have his own Pastry business. He was asked about the relevance of subjects such as marketing, particularly International Marketing. Mr Stivaletta stated that once the visa applicant has a particular product he may need to market that on a larger scale.
(emphasis in original)
The legislative context
The criteria which require interpretation in this case are found in Sch.2 items 880.214 and 880.215 of the Migration Regulations 1994 (Cth) as they stood at the relevant time:
880.214The Minister is satisfied that the applicant meets the requirements of paragraph 1128CA (3) (l) of Schedule 1.
880.215The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA (3) (l) (i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.
Sch.1 item 1128CA(3)(l) provided a requirement going to the validity of the visa application:
(l)Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that:
(i)each of the following sub‑subparagraphs applies in relation to the applicant:
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full‑time study at that institution while the applicant was present in Australia;
(C) all instruction for that degree, diploma or trade qualification was conducted in English; or
(ii)each of the following sub‑subparagraphs applies in relation to the applicant:
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of less than 2 years of full‑time study at that institution while the applicant was present in Australia;
(B) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, while the applicant was present in Australia;
(C) the 2 or more degrees, diplomas or trade qualifications mentioned in sub‑subparagraphs (A) and (B) were completed as a result of a total of at least 2 years of full‑time study while the applicant was present in Australia;
(D) each of the degrees, diplomas or trade qualifications mentioned in sub‑subparagraphs (A) and (B) was completed at the institution at which it was commenced;
(E) all instruction for each of the degrees, diplomas or trade qualifications mentioned in sub‑subparagraphs (A) and (B) was conducted in English.
As appears in the Tribunal’s narrative which I have extracted above, the applicant had relevantly completed a 4 month course in “Food Processing (Retail Baking), Cake and Pastry”, as well as his 2 year MBA course. He therefore was required to rely upon his MBA to satisfy either item 1128CA(3)(l)(i)(A) alone, or item 1128CA(3)(l)(ii)(A)‑(D) in combination with his cooking course. He also needed under criterion 880.215 to satisfy the Minister that his MBA “is relevant” to his “skilled occupation nominated by the applicant in his or her application”. This was nominated by him as “Pastry Cook … ASCO code 4512‑13”.
The reference in criterion 880.215 to “skilled occupation” invoked paragraph (b) of a definition in reg.1.03:
skilled occupation means:
(a)in relation to an applicant for a Skilled Australian Sponsored (Migrant) (Class BQ) visa whose sponsor has, on the sponsorship form, stated a residential address the postcode of which is specified in a Gazette Notice for this paragraph – an occupation:
(i)that is in the Sydney and Selected Areas Skilled Shortage List specified in that Gazette Notice; and
(ii)for which a number of points specified in that Gazette Notice are available; and
(b)in any other case – an occupation that is specified in a Gazette Notice for this paragraph as a skilled occupation for which a number of points specified in that Gazette Notice are available.
The relevant Gazette Notice was made by the Minister under reg.1.17 on 26 October 2005, and gazetted in No. S190 on 1 November 2005. I gave a detailed description of its predecessor, which was in the same general terms and form as the present Notice, in my judgment in Parekh v Minister for Immigration [2007] FMCA 633 at [7] and following. I also explained the derivation and effect of the ASCO codes which are invoked by the list of occupations found in Sch.C to the Notice, and I shall not repeat that description. In Parekh, I concluded at [23]:
In the present case, the definition of “skilled occupation” was expressly tied to an occupation which was “specified” in the Gazette Notice. The manner of that specification was, in my opinion, clearly one which adopted the ASCO definitions identified in the list in Sch.C to the Gazette Notice. I reach this conclusion not only due to its apparent structure, in which the first two columns appear clearly intended to be read together so as to incorporate the full ASCO definitions by reference to their short titles and classification numbers found in the ASCO code. I also consider that the purpose of the references to the ASCO classifications in Sch.C is apparent: it is to provide to the Minister’s decision‑makers a ready and authoritative source of definitional rules and descriptions for classifying occupations. Reading the whole of the relevant parts of the Gazette Notice, I do not accept that its author intended that decision‑makers should be at large in deciding whether a person’s occupation answered only the descriptive words of an occupation in column 1, and that they should treat the ASCO code only as an optional and inconclusive guide to those words.
In the present case, the applicant’s nominated occupation did not appear in the categories of occupations in Sch.C of “managers and administrators”, nor “professionals”, nor “associate professionals” – which included “chef”, but in the list of “trades persons and related workers”. The occupation was classified in ASCO in the “minor group” of “food tradespersons”, and the “unit group” 4512 of “bakers and pastrycooks”. This gave the following description of skill levels and tasks:
UNIT GROUP 4512 BAKERS AND PASTRYCOOKS
BAKERS AND PASTRYCOOKS prepare and bake bread loaves and rolls, buns, cakes, biscuits and pastry goods.
Skill Level:
The entry requirement for this unit group is an AQF Certificate III or higher qualification. In some instances relevant experience is required in addition to the formal qualification.
Tasks Include:
·checking the cleanliness and operation of equipment and premises before production runs ensuring compliance with occupational health and safety regulations
·kneading, maturing, cutting, moulding, mixing and shaping dough
·monitoring oven temperatures and product appearance to determine baking times
·coordinating the forming, loading, baking and unloading of batches of bread, rolls and pastry products
·glazing buns and pastries, and decorating cakes with cream or icing
·operating machines which roll and mould dough or cut biscuits
Occupations: 4512‑01 Supervisor, Bakers and Pastrycooks
4512‑11Baker
4512‑13Pastrycook
4512‑81Apprentice Baker
4512‑83Apprentice Pastrycook
The immediate definition of the ASCO code 4512‑13 occupation of “pastrycook” was:
4512‑13 Pastrycook
Prepares and bakes buns, cakes, biscuits and pastry goods.
Skill Level:
The entry requirement for this occupation is an AQF Certificate III or higher qualification.
Tasks Include:
·weighs and mixes ingredients, and prepares pastry fillings and shapes pastry goods
·kneads, matures, cuts, moulds and shapes pastry dough and operates dough baking and rolling equipment
·controls mixing times and transfers dough to tempering rooms
·glazes buns and pastries, and decorates cakes with cream or icing
·monitors forming machines for crumpets, muffins and wafers
·operates machines which roll and mould dough or cut biscuits
·loads buns, pastries and cakes into ovens, and unloads cooked products
·controls baking times and monitors the temperature and appearance of products
·empties, cleans and greases baking trays, tins and other cooking equipment
The Tribunal’s reasoning
The Tribunal referred to the Departmental “Procedures Advice Manual 3” (“PAM3”) for “some guidance as to what ‘relevant to the skilled occupation nominated’” meant. This stated:
Qualification/s must be relevant to nominated occupation
‘Relevant to’
For:
•Schedule 1 (Classes DD, DE and UQ) and
•Schedule 2 (Classes BN, BQ and DB)
purposes, the completed Australian qualification/s must be ‘relevant to’ the nominated skilled occupation. The ‘relevant to’ requirement is to ensure that applicants have qualifications that are compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation.
Under policy, circumstances of a qualification not being ‘relevant to’ the nominated occupation include where the qualification is not related to the nominated skilled occupation ie being generally in different fields of study eg an applicant who has completed motor mechanic and baker qualifications as a result of 2 years of full time Australian study. These qualifications would not meet the ‘relevant to’ requirement.
Acceptable combinations
Policy envisages that acceptable complementary qualifications may include such combinations as hairdressing and information technology (if nominating hairdressing but not if nominating an IT occupation) where the person has a suitable trades assessment from TRA and can demonstrate that they will be able to use the IT skills in a business environment.
Other complementary courses could include ICT, business, or legal qualifications at diploma level, undertaken to supplement an 18 month generalist masters degree where the person claim 50 points for a generalist occupation. In these cases, the applicant would generally not be able to obtain suitable skills assessment from the 60 point assessing authority.
(emphasis in original)
The Tribunal also referred to the ASCO definition, which I have set out above. It then explained its reasons for finding that the applicant’s MBA degree was not a “relevant” degree for the purposes of item 880.215:
40.The list of subjects finalised by the visa applicant while studying his Certificate III in Food Processing (Retail Baking) Cake and Pastry are all closely related to what ASCO lists as the tasks for a Pastry Cook. Therefore, the Tribunal finds that the Certificate III in Food Processing (Retail Baking) Cake and Pastry is relevant to the skilled occupation of Pastry Cook nominated in the visa application. Unfortunately the Certificate was awarded after only 4 months study in Australia.
41.As stated above the course studied prior and, towards the end of the course, concurrently with the Certificate III in Food Processing (Retail Baking) Cake and Pastry was the visa applicant’s MBA which was awarded by Central Queensland University on 26 July 2005. Provided to the Tribunal was a letter from Central Queensland University dated 26 July 2005 which stated that the visa applicant studied this course over 2 years full time study (T1, f.29) and, therefore, the Tribunal finds that this course was studied over 2 years.
42.The visa applicant in his relevance letter dated 28 September 2005 provided to the Department lists the skills studied in his MBA as follows:
•Financial Market Analysis.
•Organisational Finance.
•International Finance.
•Investments‑Analysis and Management.
•Managing in a Dynamic Environment.
•Organisational Analysis.
•Strategy Formulation and Initiatives.
•Strategy Implementation.
•International Marketing.
•The Economics of the Asia Pacific.
•Asia Pacific Business.
•Accounting Information for Decision Making.
43.The Tribunal accepts that a business, including a cake shop/café is more likely to succeed if the owner has had experience in or training in business skills including management. The relevance of a business education qualification is obvious. However, in the circumstances of this review the MBA is an educational qualification beyond a broad business qualification. The visa applicant in his submission of 27 January 2006 stated that an MBA prepares graduates to obtain positions involving major managerial responsibilities, a level beyond the managerial requirements of a cake shop/café. For example Financial Market Analysis, Organisational Finance, International Finance, Investments‑Analysis and Management, International Marketing, the Economics of the Asia Pacific and Asia Pacific Business are subjects that would develop skills and are more relevant to a larger organisation. This does not mean that someone studying these subjects would not obtain some benefit or skills relevant to running a small business or being a Pastry Cook in business. The Tribunal accepts the visa applicant’s statements in his submission of 27 January 2006 and Mr Stivalettta’s statutory declaration of 11 August 2006 that managerial skills are important to being a Pastry Cook and business owner. However, what the Tribunal is deciding is whether the MBA is relevant to the nominated skill of Pastry Cook and, to extend that consideration, to Pastry Cook in the business environment. The MBA is a very different course from a Diploma of Food Processes Industry and a Diploma of Business which would be far more closely relevant to a Pastry Cook who is a business owner in Australia [and] whose focus on establishing and maintaining a business would be at the local level. The MBA subjects listed above are, as previously stated, far more relevant for larger organisations with far greater managerial requirements and a broader focus which is not only on the local level but on State or Australian level and beyond that to an international level. The Tribunal has considered the subjects studied by the visa applicant for his MBA and they are not relevant to the occupation of a Pastry Cook even if that Pastry Cook is a business owner. Therefore, on the evidence and for the above reasons the Tribunal finds that the visa applicant’s Australian educational qualification of a MBA is not relevant to the visa applicant’s nominated occupation of Pastry Cook.
(emphasis in original)
The ground of review
Counsel for the applicant relied upon one ground of review set out in the amended application:
1.The Second Respondent committed jurisdictional error in that:
(a)the Tribunal misconstrued sub‑clause 880.215 of the Migration Regulations 1994 as requiring that a degree, diploma or trade qualification relevant to the nominated skilled occupation excludes a degree, diploma or trade qualification by which an applicant would obtain some benefit or skills relevant to working in the nominated skilled occupation.
Counsel for the applicant accepted that the PAM3 explanation of “relevant to” appropriately suggested tests of “compatibility” and whether qualifications were “complementary and can be used in the nominated occupation”. He also accepted that some reference to the ASCO short description of the nominated occupation and to its tasks was appropriate. However, he argued that the regulation did not allow any evaluation of degrees of relationship between the presented qualifications and the nominated occupation. He argued that the present Tribunal erred in law by considering whether there were other occupations for which an MBA was “more relevant”, and by considering whether other qualifications would be “far more closely relevant to a Pastry Cook”.
He submitted that the Tribunal’s error most clearly emerged in its statement: “this does not mean that someone studying [the applicant’s MBA] subjects would not obtain some benefit or skills relevant to running a small business or being a Pastry Cook in business”, which it did not regard as sufficient. This implied that the Tribunal had required a relationship in which the qualification did more than merely confer “some benefit or skills relevant” to the occupation. In essence, the Tribunal erred by considering that the regulation required it to measure “relevance” of qualifications to occupation, and to exclude qualifications which were not regarded as having sufficient proximity to the tasks or activities of the occupation, notwithstanding that they might be of some “use” in the occupation.
Counsel also made submissions criticising the Tribunal’s reference to “the subjects studied, rather than the skills learned”. However, I was unable to understand the point of this distinction. I consider that it was open to the Tribunal to gain some impression of the skills likely to have been acquired by the applicant in his MBA course, by considering the subjects which he had studied in that course. I do not consider that it did more than this.
On the other side of the argument, Counsel for the Minister also supported the tests of “relevance” suggested by PAM3, but disputed the applicant’s argument that it did not invite an evaluation of degrees of usefulness of qualifications to occupational activities. His written submission argued that “what is required by the word is a connection much closer than possible utility (as is suggested by the applicant). It is intended that the course, as a whole, will be of direct and immediate use in the nominated occupation”. He argued that the Tribunal’s reasons did not disclose any misapprehension as to this, and “once it is accepted that it properly understood the meaning of the word (and thus the criterion), it was a question of fact as to whether the MBA degree fit within it”.
It thus appeared to be common ground that the construction of item 880.215 raised an initial question of law as to the intended meaning of “relevant to”, and was not just a question of fact (cf. Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 at 324‑325, and Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at [28]). It also appeared to be common ground that if I found that the Tribunal had wrongly understood the intended meaning, this would provide jurisdictional error which affected its decision (cf. Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93 at [42]‑[62]).
Discussion
Neither counsel cited authorities which have addressed the meaning of the words “relevant to” in the present statutory context or in one having any parallel. Counsel for the Minister cited cases which have considered references to “related to” and “connected with”, and which emphasise that the nature and degree of the intended relationship should be discovered by applying principles of statutory construction, considering the words with which they are associated and the objects and context of the particular statutory provision (cf. Burswood Management Ltd v Attorney‑General (Cth) (1990) 23 FCR 144 at 146, and HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 at [35]).
In the legislative context which I have set out above, one interpretation of the reference to “relevant to” in criterion 880.215 is that the Minister must be satisfied that the Australian qualifications presented to the Minister are the qualifications necessary to gain admittance to or obtain employment in the nominated occupation. This is an attractive interpretation, particularly in a context where the occupational qualifications are usually indicated within the ASCO definitions which are invoked by the definition of “skilled occupation”. It would bring more clarity and consistency to decision‑making, than can be achieved by a less precisely identified relationship. Moreover, it would accord with the objects of the visa, if the visa could be confidently characterised as one directed at filling particular occupational needs in the Australian labour market. If the visa does serve this purpose, then its achievement would be assisted by requiring that the qualifications gained are precisely those required to undertake the occupation, since this is more likely to ensure that the person granted the visa will in fact undertake the nominated occupation if given the visa.
I canvassed the above interpretation with counsel for the Minister, pointing out that this would bring more certainty and immediacy in the test of “relevance” between qualifications and occupation than would PAM3’s test of “complementary and can be used in”. However, he submitted that such a test of “relevance” was not intended. He argued that the criterion could easily have said that the “Australian degrees, diplomas or trade qualifications” are those required for the nominated skilled occupation, if this were intended. Rather, a broader and vaguer test of “relevant to” had been deliberately adopted, thereby allowing a less demanding evaluation of the relationship between qualifications and occupation. Moreover, the suggested policy of filling gaps in the Australian labour market was not clearly apparent from the structure of this visa, and was not supported in extrinsic material which he presented. In this situation, it would not be a proper construction to read “relevant to” as meaning “required for”.
I accept these submissions, suggesting that the criterion intends to allow degrees, diplomas and trade qualifications to have a broader “relevance” to the nominated occupation than being only the mandatory qualifications.
However, I also consider that the use of “relevant to” suggests the need for the Minister to be satisfied as to a positive “pertinence” and particular “usefulness” of the qualifications to the nominated occupation, which is more than that of providing generally relevant education or skills or personal background. The purpose of the criterion in 880.215 is manifestly to require more than that the visa applicant has successfully completed 2 years or more of Australian study. I consider that it is looking for a relationship between that study and the nominated occupation, in which the visa applicant can be assumed to have acquired skills, learning or qualifications which have a connection to the occupation which is more than that of generally benefiting the person in his future employment in the nominated occupation.
In my opinion, it would be unfortunate, and unnecessary, for the Court to adopt a particular description of the required proximity or connection between the educational achievement and the occupation. It is enough that I accept that the Minister is intended to evaluate the relationships of the educational studies and achievement to the nominated occupation, and to be positively satisfied that the Australian educational achievement is occupationally relevant to the particular demands of the nominated skilled occupation as indicated in its ASCO definition. Because of the intangibility of the criterion’s concept of “relevance”, there is a considerable legal space for the Minister’s delegates and the Tribunal to be guided by administrative policy and to take into account a broad range of considerations, assessing both the nature of the qualifications acquired and the demands of the nominated occupation.
I therefore do not accept the submissions of counsel for the applicant that it was legally irrelevant for the Tribunal to consider the skills and qualifications gained by the applicant through his MBA studies broadly, as part of an assessment of the relevance of those studies to the occupation of pastry cook as distinct from other occupations in the ASCO classification. Nor do I accept his submissions that it was enough for the Tribunal to find that an MBA might provide “some benefit or skills” to a pastry cook, and that the Tribunal irrelevantly compared the applicant’s MBA studies with other educational achievements which were more relevant to that occupation.
On my interpretation of the legislation, I am not satisfied that any of the discussion provided by the Tribunal reveals a misconception of the legal meaning to be given to the words of item 880.215. I am satisfied that, as a matter of law, it was open to the Tribunal not to be satisfied that the applicant’s MBA degree was not “relevant to” the skilled occupation nominated by him.
I am therefore not persuaded that its decision was affected by any jurisdictional error, and I must dismiss the application.
I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 May 2007
10
6
0