Uddin v MIAC

Case [2010] FCA 1281

FEDERAL COURT OF AUSTRALIA

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

Citation: Uddin v Minister for Immigration and Citizenship [2010] FCA 1281
Appeal from: Uddin v Minister for Immigration & Anor[2010] FMCA 553
Parties: MD GIAS UDDIN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number(s): NSD 1073 of 2010
Judge: NORTH J
Date of judgment: 8 November 2010
Corrigendum: 26 November 2010
Date of hearing: 8 November 2010
Place: Sydney
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 15
Counsel for the Appellant: Mr J R Young
Counsel for the Respondents: Mr R Graycar
Solicitor for the Respondents: Clayton Utz

FEDERAL COURT OF AUSTRALIA

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

CORRIGENDUM

1.In Order 2, the sum “$4,000” should read “$4,400”.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:        26 November 2010

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1073 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MD GIAS UDDIN
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

8 NOVEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $4,000.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1073 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MD GIAS UDDIN
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE:

8 NOVEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 2 August 2010.  The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal, which affirmed a decision of a delegate of the first respondent not to grant the appellant a Skilled (Provisional) (Class VC) visa. 

  2. The appellant applied for the visa based upon undertaking two courses, namely, a Certificate 3 in Hospitality (Commercial Cookery), from the Illawarra Business College, and a Diploma of Information Technology (System Administration), from Uniworld Business College.  The appellant was required to rely on both courses in order to satisfy the two-year study requirement contained in cl 485.213 of Schedule 2 and reg 1.15F of the Migration Regulations 1994 (Cth). A requirement for the visa stipulated in cl 485.213(b) was that each degree, diploma or trade qualification used to satisfy the two-year study requirement be closely related to the applicant’s nominated skilled occupation. The Tribunal determined that the Diploma of Information Technology was not…

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Uddin v MIAC [2010] FCA 1281
Case
[2010] FCA 1281
Decision Date

CaseChat Overview and Summary

In the case of Uddin v MIAC, the Federal Magistrate was tasked with reviewing the decision of the Tribunal which had dismissed the appellant's visa application on the grounds that the appellant's Diploma of Information Technology was not closely related to his nominated occupation as a cook. The appellant argued that certain elements of his IT qualification were directly related to his occupation, but the Tribunal found that the overall qualification did not meet the required standard of being closely related to the occupation of a cook.

The central legal issue the court had to address was whether the Tribunal correctly interpreted the requirement that the qualifications of the appellant must be closely related to his nominated occupation as a cook, under clause 485.213(b) of the Migration Regulations. The appellant contended that the Tribunal had applied the wrong test in determining the relationship between his IT qualification and his nominated occupation. Specifically, the appellant argued that the Tribunal failed to consider certain elements of his IT qualification that he claimed were directly related to his occupation as a cook.

The court examined the reasoning of the Tribunal and found that it had indeed considered the appellant's submission regarding the relationship between the IT qualification and the occupation of a cook. The Tribunal had reviewed the subjects taught in the IT course and determined that these elements were not closely related to the tasks performed by a cook as defined by the relevant legislative instrument. Therefore, the Tribunal's consideration of the appellant's arguments was proper, genuine, and realistic. The court concluded that the Tribunal had not erred in its interpretation of the relevant legislation and dismissed the appeal.

Consequently, the appeal was dismissed, and the decision of the Tribunal was upheld. The Federal Magistrate affirmed that the Tribunal had correctly applied the legal principles in determining that the appellant's Diploma of Information Technology was not closely related to his nominated occupation as a cook. The reasoning and conclusion of the Tribunal were deemed to be sound and appropriate under the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Federal Magistrate upheld the decision of the Tribunal. THE DECISION OF THE TRIBUNAL The reasoning of the Tribunal commenced with the statement that the degrees, diplomas or trade qualifications relied upon by the appellant must be closely related to the nominated skill in the visa application. It recorded the nominated skilled occupation of a cook and that the work of a cook was defined in Legislative Instrument IMM107/058. It then stated that the Tribunal must consider whether the Diploma of Information Technology completed by the appellant is closely related to that occupation: see [24]. The Tribunal then noted that the Policy Advice Manual (PAM) indicated that the qualifications needed to be complementary to the nominated occupation and it had to be determined whether the skill set underpinning the qualification could be used in the nominated occupation. The Tribunal expressed the view that the policy approach in the PAM did not reflect the close relationship required by cl 485.213(b). The Tribunal said at [25]:The term “closely related” is not interchangeable with, nor necessarily consistent with, being complementary or useful. It requires, in the Tribunal’s view, a much stronger link between the academic qualification and the occupation than being merely useful. The Tribunal then indicated that it would not apply the policy approach in the PAM. The Tribunal considered the appellant’s argument that the IT qualifications would assist him in his aim of managing a restaurant in the future. The Tribunal said that the proper approach was to compare the qualification with the work of the nominated occupation of cook, which was defined in the legislative instrument, and not with the work of a restaurant manager or business owner to which the appellant aspired. No argument was made against that conclusion. The reasoning of the Tribunal then continued: 28The applicant argues that many of the subjects he had completed in the Diploma of IT which he completed at Uniworld Business College are helpful in the field of cooking and are similar to the Diploma of Hospitality Management. The applicant presented two course outlines for the two courses and he has identified a number of subjects which he claims are the same between the two courses. The Tribunal considers the applicant’s approach in comparing the two courses to be misguided. The issue before the Tribunal is not whether the course undertaken by the applicant, the Diploma of IT, is similar to another course, such as a Diploma of Hospitality Management. The issue is whether the course that was undertaken by the applicant, the Diploma of IT, is closely related to the applicant’s nominated occupation of a Cook. The comparison must occur between the qualifications obtained by the applicant and his nominated skilled occupation, not between the applicant’s qualification and another qualification which the applicant believes to be closely related to the nominated skilled occupation. 29The applicant argues that a Diploma in IT provides skills that are readily applicable in any workplace, such as dealing workplace safety, time management and personnel management. He also notes that the course was only at the Diploma level. While the website of Uniworld Business College no longer offers a description of this course, the Tribunal is of the view that a Diploma of IT in System Administration would normally be designed to prepare students for work in the field of IT or system administration. It is not designed to prepare students for working as cooks. Further, even if the Tribunal were to apply the broader policy interpretation of this provision, the Tribunal is not satisfied that a Diploma in Information Technology is complementary, or useful to, the occupation of a cook because the aim of the course and the skills obtained through that course are very different to those that are used by a cook.30While some of the subjects identified by the applicant are generic – such as, for example, applying occupational health and safety procedures, communication in the workplace and providing advice to clients – the aim of the Diploma of IT course and the course as a whole is not, in the Tribunal’s view, closely related to the tasks performed by a Cook. These are set out in ASCO 4513-11 as follows:Cook – prepares, seasons and cooks food in catering and dining establishments• examines food to ensure quality• regulates temperatures of ovens, grills and other cooking equipment• prepares and cooks food• seasons food during cooking• portions food, places it on dishes, adds gravies or sauces, and garnishes• stores food in temperature controlled facilities• may plan menus and estimate food requirements• may prepare food to meet special dietary requirements• may train other kitchen staff and apprentices31The applicant provided to the Tribunal the course outlines for the two courses and listed a number of subjects which he claims the two courses share. However, as noted above, it is not sufficient, in the Tribunal’s view, that some of the subjects undertaken by the applicant in the Diploma of IT are similar to the subjects the applicant would have taken in a Diploma of Hospitality Management. Considering the qualification as a whole, which is what cl 485.213(b) requires, the Tribunal is not satisfied that a course in IT with emphasis in system administration is closely related to the occupation of a cook.32The applicant also argues that his qualifications in IT and as a cook assisted him in his employment as a cook in that any cook requires a good knowledge of information technology. However, as noted above, the issue before the Tribunal is not whether the skills acquired in the qualification are useful to the nominated occupation. The test is that of close relevance, not mere usefulness and that test requires consideration of the qualification as a whole to the tasks that are normally performed by a cook. Neither is it sufficient, in the Tribunal’s view, for the applicant to state that the skills, learning or qualifications acquired in his Diploma of IT course benefit him in his employment as a Cook. There must be a close relationship between the study and the nominated occupation, not merely a benefit of one to the other.33The applicant referred to another decision of the Tribunal (0806557 [2009] MRTA 2245), which he claims were based on similar facts The Tribunal notes that Tribunal decisions have no precedential value for the Tribunal. Further, this decision related to a Subclass 880 application which was concerned with a different statutory requirement (that the qualifications must be ‘relevant’ and not ‘closely related’) to the one that applies in this case. This decision is, on that basis, distinguishable. 34The applicant’s representative referred to the Tribunal’s discretion in finding that the Diploma of IT was closely related to the occupation of a Cook. However, there is no discretion offered by cl. 485.213(b). It calls for the decision-maker’s satisfaction. Having considered all the material before it, the Tribunal is not satisfied that the Diploma of Information Technology is closely related to the applicant’s nominated occupation of a Cook. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl. 485.213(b) and cl. 485.213 of the Regulations. ARGUMENTS ON THE APPEALThe Tribunal Applied the Wrong Test

Ratio Decidendi

Legal Principle Established

The second substantial ground of appeal argued on behalf of the appellant was that the Tribunal failed to give proper, genuine and realistic consideration to one of the submissions advanced by the appellant. I am prepared to accept for the purposes of argument that a failure to give such consideration amounts to jurisdictional error. The submission which it is alleged the Tribunal ignored was a submission set out in a letter dated 13 January 2010 from the appellant’s migration adviser to the Tribunal. In that letter, it was contended that there were a number of elements of the appellant’s IT qualification which were “directly related” to his occupation as a cook. These elements were the application of occupational health and safety procedures, communication in the workplace, coordination and maintenance of work teams, coordination of change requests, skills in time management, skills in project integration, stress and loading test, the guidance of risk management principles, and the guidance of the application of communications management. The appellant claims that the written submission on this subject was simply not considered by the Tribunal. Consideration The extract of the decision of the Tribunal, set out earlier in these reasons, discloses that there is no basis for this argument. The Tribunal considered the relationship between the subjects taught in the IT course to the nominated occupation of cook. Indeed, it referred to some of the particular elements from the submission at [30], namely occupation, health and safety procedures, communication in the workplace and providing advice to clients. It made a determination on the facts that these elements of the qualification were not closely related to the tasks performed by a cook as stipulated by the legislative instrument. The Tribunal did not fail to give proper, genuine and realistic consideration to this part of the appellant’s submission. For these reasons, the appeal must be dismissed.