Tobon v Minister for Immigration & Anor
[2014] FCCA 2208
•26 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOBON v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2208 |
| Catchwords: MIGRATION – Review by Migration Review Tribunal of decision refusing applicant a Skilled Graduate (Temporary) (Class VC) Subclass 485 visa – proper construction of “diploma . . . that is closely related to the applicant’s nominated skilled occupation” – whether skills acquired as a result of study or training to which the diploma relates must be skills that can only be used in the nominated skilled occupation – whether skills acquired as a result of study or training to which the diploma relates must be directly transferable to the nominated skilled occupation, in terms of subject matter and level of qualification – whether before a diploma can be considered to be closely related to the nominated skilled occupation, it must result in the acquisition of skills which on their own equip the applicant to perform at least a part of the nominated skilled occupation – whether before a diploma can be closely connected to a nominated skilled occupation, the skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation – jurisdictional error found. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), s.9(1) Migration Regulations 1994 (Cth), regs.1.03, 1.15F(1), 1.15I(1) Schedule 2, cls.485.213, 485.213(b), 485.214, 485.221(1), 485.221(2) |
| Prasad v Minister for Immigration & Citizenship [2012] FCA 591 Uddin v Minister for Immigration & Anor [2010] FMCA 553 Uddin v Minister for Immigration & Citizenship [2010] FCA 1281 |
| Applicant: | JORGE MARIO TOBON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2398 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2014 |
REPRESENTATION
Applicant in person assisted by an interpreter.
| Solicitors for the Respondents: | Ms N Blake Clayton Utz |
ORDERS
The decision of the second respondent made on 9 September 2013 affirming the decision of the delegate of the first respondent made on 5 March 2013 is quashed.
The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent made on 5 March 2013 refusing to grant the applicant a Skilled Graduate (Temporary) (Class VC) Subclass 485 visa.
The first respondent pay the applicant such costs to which the applicant may be entitled as an unrepresented party.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2398 of 2013
| JORGE MARIO TOBON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Colombia, is a qualified civil engineer. He obtained his qualifications from the National University of Colombia in 2004 and he worked for two and half years in Colombia as a construction supervisor, site engineer, and project manager.[1]
[1] CB45-46
On 18 March 2010 the applicant was granted a student visa.[2] After he arrived in Australia, the applicant enrolled in a course for a Diploma of Human Resources Management at the Bridge Business College. The applicant successfully completed that course on 4 April 2012 when he was awarded a Diploma of Human Resources Management (Diploma).[3]
[2] The applicant was also granted a student visa on 15 February 2009 and 3 September 2009: CB8-9.
[3] CB14
On 28 May 2012 the applicant applied to the first respondent (Minister) for a Skilled Graduate (Temporary) (Class VC) Subclass 485 visa (485 visa). In his application for the 485 visa, the applicant was required to nominate a skilled occupation. The applicant also had to satisfy the Minister that his obtaining the Diploma satisfied the “Australian study requirement”, and that the Diploma was “closely related” to the skilled occupation he nominated. These requirements were imposed by cl.485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which, as at the date of application, provided:
485.213 The following requirements are met:
(a)the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;
(b)each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The applicant nominated “civil engineer” as his nominated skilled occupation.[4] Thus, to have been entitled to a 485 visa, the applicant had to satisfy the Minister that the studies he undertook to earn the Diploma satisfied the “Australian study requirement”, and that the Diploma “is closely related to the applicant’s skilled occupation”, namely, “civil engineer”.
[4] CB9
A delegate of the Minister refused to grant the applicant a 485 visa because he concluded the applicant did not satisfy the Australian study requirement, and because the Diploma was not closely related to the applicant’s nominated skilled occupation, “civil engineer”. On an application for review, the Tribunal concluded the applicant did satisfy the Australian study requirement, but found the Diploma was not closely related to the applicant’s nominated skilled occupation of “civil engineer”.
The issue in this Court is whether the Tribunal made a jurisdictional error in concluding the applicant’s Diploma was not closely related to civil engineering.
Grounds of review and approach
The applicant, who is not legally represented, relies on a number of grounds, and has advanced many contentions. But the ground on which I will pay attention to in these reasons is that contained in paragraph (c) of the particulars to ground 1 of the application.
On its discretional powers, the Tribunal identified a ‘wrong issue’ in the applicant’s case; under the basis of ‘erroneous questions itself and without evidence’ to the legal test in issue: “Whether Human Resources Management is closely related to Civil Engineering’; and reaching a mistaken conclusion.
Although not expressed as a lawyer would express it, I read this paragraph as a claim that, in concluding the Diploma was not closely related to the skilled occupation of “civil engineer”, the Tribunal misconstrued or misapplied the expression “diploma . . . that is closely related to the applicant’s nominated skilled occupation” that appears in cl.485.213(b) of Schedule 2 to the Regulations, and for that reason made a jurisdictional error. Therefore, the principal issue that arises on this application is whether the Tribunal misconstrued or misapplied that expression.
I propose to deal with the applicant’s claims as follows. First, I will set out the relevant regulations and instruments that define “the Australian study requirement” and “skilled occupation”. The definitions of these terms constitute the immediate statutory context in which the words “diploma . . . that is closely related to the applicant’s nominated skilled occupation” are to be construed. Second, I will consider the Tribunal’s reasons. Third, I will consider what is the correct construction of the words “diploma . . . that is closely related to the applicant’s nominated skilled occupation”. Finally, I will consider the Tribunal’s construction of that expression.
The criteria for the grant of a 485 visa that applied to the applicant, both at the time he applied for the 485 visa, and at the time the Tribunal made its decision, have been replaced. For ease of expression, I will refer to the provisions of the 485 visa that apply to the applicant in the present tense.
“Australian study requirement” and “skilled occupation”
I first turn to the expression “Australian study requirement”. That expression, as at May 2012, was defined in reg.1.15F(1) of the Regulations. It provided that the “Australian study requirement” would be satisfied as follows:
A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a)that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c)that were completed as a result of a total of at least 2 academic years study; and
(d)for which all instruction was conducted in English; and
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
As at May 2012, the expression “registered course” was defined in reg.1.03 of the Regulations to mean “a course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000 [ESOS Act], to provide the course to overseas students”. Section 9(1) of the ESOS Act then provided that a “designated authority for a State may recommend that an approved provider for that State be registered under this Act to provide a specified course for that State to overseas students”.
The expression “skilled occupation”, when used in relation to a person, is defined in reg.1.15I(1) of the Regulations to mean, among other things, an occupation of a kind “that is specified by the Minister in an instrument in writing to be a skilled occupation”. The Minister has from time to time specified by instrument in writing occupations that are skilled occupations. The instrument that applied to the applicant is Legislative Instrument IMMI 12/023.[5] Schedule 1 to that instrument defines “Civil Engineer” by reference to the description given in Australian and New Zealand Standard Classification of Occupations (ANZSCO). ANZSCO describes a “civil engineer” as a person who:
Plans, designs, organises and oversees the construction and operation of dams, bridges, pipelines, gas and water supply schemes, sewerage systems, airports and other civil engineering projects.
[5] The Instrument commenced on 1 July 2012. Clause 2(a) provides that the instrument applies to a person who applies on or after 1 July 2011 and on or before 30 June 2012, for, among other things, a Skilled (Provisional) (Class VC) visa.
ANZSCO also lists the tasks that civil engineers carry out. One of the tasks is “organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities”.
The hearing before the Tribunal
At the hearing before it, the Tribunal raised with the applicant its concerns that the Diploma is not closely related to the skilled occupation of civil engineer. The Tribunal said it considered the description of “civil engineer” given in ANZSCO and that “the content of the courses undertaken by the applicant . . . may not be closely related to the occupation of Civil Engineer”.[6]
[6] CB133-134, [21]-[22]
According to the Tribunal, the applicant made the following submissions:[7]
The applicant indicated he has a particular interest in human resources. He said civil engineering is a big industry with several branches. He has work experience as a civil engineer including as a project manager and construction inspector. He said he wanted to work in management and realised that, apart from the technical aspects of construction and design, managers in the field must have skills in understanding the needs of the labour force. He likes to play a management role because he likes the human contact and dealing with employees’ concerns. In the past he has faced several issues because of lack of experience and expertise in management so he decided to study human resources management to develop skills in understanding the diversity of the workforce. He said his courses helped him develop, within the engineering field, the skills needed to manage, along with his technical skills. He said he had already gone through the accreditation process as his bachelor degree from Colombia met Australian standards. He only needed to strengthen his management skills. He said he feels more confident now about management. . . .
The applicant argued that there are many roles in the field of civil engineering such as design, project management and project direction. He asserted the Human Resources course provided management skills, and by covering issues such as occupational health and safety, enabled the applicant to manage in an Australian environment.
[7] CB134, [23]; CB135, [25]
Tribunal’s reasons
The Tribunal was not satisfied “the qualification of Diploma of Human Resources Management is closely related to the applicant’s nominated skilled occupation of Civil Engineer”.[8] The Tribunal gave the following reasons for its conclusion (emphasis added):[9]
a)The courses the applicant completed for the Diploma provided “generic skills in business, team leadership and management”; none of the units appeared to “directly relate to the management of a civil engineering project”.
b)The Tribunal was not satisfied that “the skill set underpinning the qualification is directly transferable to the nominated occupation, in terms of subject matter and level of qualification”.
c)The Tribunal was not satisfied “the qualification on its own provides the applicant with the skills to perform the role of a manager of civil engineering projects”.
d)The Diploma “may have equipped the applicant to deal with a small part of the role of a civil engineering project manager”.
e)The Diploma “is merely complementary and can only be used in some aspects of the occupation”.
[8] CB135, [30]
[9] CB135, [30]
It will be seen that the Tribunal did not articulate how it construed the expression “diploma . . . is closely related to the applicant’s nominated skilled occupation”. How the Tribunal understood this expression can only be inferred from its reasons for decision. I will consider that question after I consider the meaning of the expression.
Meaning of “diploma . . . is closely related to the applicant’s nominated skilled occupation”
The starting point is the word “related”. One of its meanings is “connected or having relation to something else”.[10] On this meaning, an applicant’s diploma will be related to the applicant’s nominated skilled occupation if the diploma is connected or has a relation to the applicant’s nominated skilled occupation. This, however, tells us nothing about the nature of the relationship cl.485.213(b) requires. That must be determined by reference to the things that are required by cl.485.213(b) to be related: the “diploma”, on the one hand, and the “nominated skilled occupation”, on the other. And here, the word “skilled” in “nominated skilled occupation” is important.
[10] Oxford English Dictionary 2014 (online edition)
On its own, the word “skill” signifies a capacity or facility to do something. As it appears in the expression “nominated skilled occupation”, “skilled” means the capacity or facility to undertake the nominated skilled occupation. A “nominated skilled occupation” is an occupation that involves tasks that can only be undertaken by a person who has a particular capacity or facility to undertake those tasks. But the word “skilled” has a narrower meaning in cl.485.213(b). The capacity or facility to undertake the nominated skilled occupation must be one that is acquired by study or training. For it is in relation to study or training that a degree or diploma is granted. The relationship that must exist between the diploma and the nominated skilled occupation, therefore, is that the study or training for which the diploma is granted results in the person undertaking that study acquiring skills that fall within the set of skills associated with carrying on the nominated skilled occupation.
What does the word “closely” add to the word “related”? In my opinion, only this: “closely” requires that all or a substantial proportion of the skills the applicant acquires by undertaking the study or training for which the diploma is granted are skills that fall within the set of skills associated with carrying on the nominated skilled occupation.
On this construction, it is not necessary that the diploma result in the conferral of all or a substantial proportion of the skill set of the nominated skilled occupation. Nor is it necessary that the granting of the diploma be a prerequisite to a person’s being qualified to conduct the nominated skilled occupation.
This construction is supported by those provisions that deal with the assessment of the applicant’s skills for the applicant’s nominated skilled occupation. Clause 485.214 specifies that, at the time of application for the 485 visa, the Minister is satisfied the applicant applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. Subclause 485.221(1) specifies that, at the time of decision, the skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. Subclause 485.221(2) provides:
If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Subclause 485.221(2) implies that the assessment required by subclause 485.221(1) could be made on the basis of a qualification an applicant obtained outside Australia. That, in turn, implies that cl.485.213(b) does not require that the diploma result in conferring on an applicant the skills it is necessary for the applicant to have before he or she can engage in the nominated skilled occupation.
For a diploma, therefore, to be closely related to an applicant’s nominated skilled occupation within the meaning of cl.485.213(b) of Schedule 2 to the Regulations, the decision-maker must be satisfied that the study or training for which the diploma was granted conferred on an applicant skills, all, or a substantial proportion of which, fall or falls within the set of skills associated with the carrying on of the nominated skilled occupation. In order to determine in any given case whether a diploma is closely related to an applicant’s nominated skilled position, the decision-maker must undertake the following steps:
a)First, the decision-maker must identify the study or training for which the diploma was granted, and the skills the applicant acquired as a result of such study or training (acquired skills).
b)Second, the decision-maker must identify the set of skills that are associated with carrying on the nominated skilled occupation (nominated skills).
c)Third, the decision-maker must determine whether all or a substantial proportion of the acquired skills are nominated skills. If the decision-maker so determines, the diploma is closely connected with the nominated skilled occupation.
The carrying out of this task involves a degree of judgment. The area in which reasonable minds are most likely to reach different conclusions is the determination of the set of skills that are associated with the carrying on of the nominated skilled occupation.
Authorities
My conclusion as to the proper construction of cl.485.213 has been based on my reading of the text alone. There are, however, a number of decisions that have considered the meaning of that clause.
The first is the decision of Raphael FM in Uddin v Minister for Immigration & Anor.[11] In that case, one of the grounds on which it was claimed the Tribunal made a jurisdictional error is that it adopted an unduly narrow construction of cl.485.213. To the extent that submission was based on the Tribunal’s using the word “relevant”, rather than “closely related”, Raphael FM held that when it used the word “relevant”, the Tribunal used the words “closely related”. And his Honour accepted as correct the Tribunal’s construction of cl.485.213 as set out in the following passage from the Tribunal’s decision:[12]
The requirement in 485.213(b) is for the qualification to be “closely related” to the nominated skilled occupation. The term “closely related” is not interchangeable with, nor necessarily consistent with, being complementary or useful. It requires . . . a much stronger link between the academic qualifications and the occupation being really useful . . .
[11] Uddin v Minister for Immigration & Anor [2010] FMCA 553
[12] Uddin v Minister for Immigration & & Anor [2010] FMCA 553 at [5]
The second decision is that of North J on appeal from the orders of Raphael FM in Uddin v Minister for Immigration & Citizenship.[13] His Honour concluded that the Tribunal “was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary”.[14]
[13] Uddin v Minister for Immigration & Citizenship [2010] FCA 1281
[14] Uddin v Minister for Immigration & Citizenship [2010] FCA 1281 at [12]
The third, and final decision, I should consider is Prasad v Minister for Immigration & Citizenship.[15] In that case, the Tribunal applied the following part of the Department’s policy manual known as the “Procedures Advice Manual”:[16]
The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualifications/s are complimentary [sic] and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
[15] Prasad v Minister for Immigration & Citizenship [2012] FCA 591
[16] Prasad v Minister for Immigration & Citizenship [2012] FCA 591 at [4] (emphasis added by Logan J)
Logan J said:[17]
“Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.
[17] Prasad v Minister for Immigration & Citizenship [2012] FCA 591 at [24]
In my opinion, the construction I have arrived at on the basis of the words of cl.485.213(b) is consistent with the construction favoured by North J and Logan J. The requirement of “related” is met by reading cl.485.213(b) as requiring the diploma to relate to a course that results in a skill or skills that form part of the skill set required to engage in the nominated skilled occupation; and the requirement of “closely” is met by requiring that all or a substantial proportion of the skills acquired as a result of the study or training for which the diploma is awarded are skills that form part of the skill set required to engage in the nominated skilled occupation.
The Tribunal’s construction of cl.485.213(b)
The first reason the Tribunal gave for concluding the Diploma was not closely related to the applicant’s nominated skilled occupation of “civil engineer” was that the courses the applicant completed for the Diploma provided “generic skills in business, team leadership and management”, and that none of the units appeared to “directly relate to the management of a civil engineering project”. By “generic” it appears the Tribunal meant skills that are capable of being used in connection with a number of skilled occupations, including the nominated skilled occupation. This implies that the Tribunal construed cl.485.213(b) as requiring that the skills, or at least a substantial proportion of the skills for which a diploma is awarded are skills that can only be used in the nominated skilled occupation.
On my reading of cl.485.213(b), there is no warrant for such a construction. The word “generic” does not appear in cl.485.213(b). And skills that are acquired through courses of study, particularly at the higher levels of education, often are skills that form the skill set of more than one skilled occupation. The fact, therefore, that the Diploma that was awarded to the applicant did not specifically include a subject that deals with the management of a civil engineering project does not necessarily mean that the skills the applicant acquired as a result of his completing the Diploma are not skills associated with engaging in civil engineering. The Tribunal itself concluded that the Diploma may have equipped the applicant to deal with a small part of the role of a civil engineering project manager.
The second reason the Tribunal gave for concluding the Diploma was not closely related to “civil engineer” was it was not satisfied that “the skill set underpinning the qualification is directly transferable to the nominated occupation, in terms of subject matter and level of qualification”. These words appear to have been taken from the Minister’s current Procedures Advice Manual:
Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.
The Tribunal appears to have applied the terms of a policy document, rather than the words of the regulation to which the policy applied. That would not raise difficulties if the words of the policy reflected the words of the regulation or, at least, reflected a construction of the regulation declared by a court to be the correct construction. But the words of the policy the Tribunal applied are different from the words of cl.485.213(b); and those words do not reflect an accepted construction of cl.485.213(b).
The third reason the Tribunal gave for concluding the Diploma was not closely related to “civil engineer” is the Tribunal was not satisfied “the qualification on its own provides the applicant with the skills to perform the role of a manager of civil engineering projects.” This assumes that before a diploma can be considered to be closely related to the nominated skilled occupation, it must result in the acquisition of skills that on their own equip the applicant to perform at least part of the nominated skilled occupation. On my reading of cl.485.213(b), there is no warrant for such a construction. If all or a substantial part of a diploma results in skills that form part of the skill set of the nominated skilled occupation, cl.485.213(b) would be satisfied.
The final reasons the Tribunal gave for concluding the Diploma was not closely related to “civil engineer” can be dealt with together. They are that the Diploma may have equipped the applicant to deal with a small part of the role of a civil engineering project manager, and the Diploma was merely complementary and could only be used in some aspects of the occupation. These reasons indicate the Tribunal was of the view that before a diploma can be closely related to a nominated skilled occupation, the skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation.
In my opinion, such a construction also is not warranted. That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation.
Conclusion and disposition
The Tribunal’s conclusion that the Diploma was not closely related to the applicant’s nominated skilled occupation of “civil engineer” was based on an incorrect understanding of cl.485.213(b). For that reason, the Tribunal did not consider the applicant’s application for review according to law, and its decision to affirm the delegate’s decision was made in jurisdictional error. Given that conclusion, I do not propose to consider the applicant’s other grounds of review.
I propose, therefore, to order that the Tribunal’s decision be set aside, and that the Minister pay the applicant such costs to which he may be entitled as an unrepresented party.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 September 2014
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