Uddin v Minister for Immigration
[2010] FMCA 553
•2 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UDDIN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 553 |
| MIGRATION – Review of RRT decision – where Tribunal found that applicant’s IT qualifications were not closely related to his nominated occupation of cook – where Tribunal used the terms “relevance” and “closely related” interchangeably – whether Tribunal applied incorrect test or impermissibly disregarded policy contained in PAM3 – whether Tribunal ignored applicant’s submissions or evidence – whether failure to give proper, genuine and realistic consideration – review of authority on this issue. |
| Migration Act 1958 (Cth), s.425 |
| Thongsuk v Minister for Immigration [2007] FMCA 655 Sakhno v Minister for Immigration [2007] FMCA 1492 Alimi v Minister for Immigration [2007] FMCA 1520 Chawdhury v Minister for Immigration [2010] FMCA 275 SZJSS v Minister for Immigration [2009] FCA 1577 Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633 NAIS & Anor v Minister for Immigration [2005] HCA 77 SZKGC v Minister for Immigration [2010] FCA 270 SZMVK v Minister for Immigration [2010] FMCA 75 SZMVK v Minister for Immigration [2010] FCA 679 |
| Applicant: | MD GIAS UDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 909 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 July 2010 |
| Date of Last Submission: | 23 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Counsel for the Respondents: | Mr J Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 909 of 2010
| MD GIAS UDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Uddin was refused a skilled (Provisional) (Class VC) visa by a delegate of the Minister on 1 April 2008 on the grounds that he did not satisfy clause 485.213 of Schedule 2 to the Migration Regulations (1994) (the “Regulations”) because the delegate was not satisfied that each of the qualifications used to meet the two year study requirement was closely related to the nominated occupation. Mr Uddin sought review of that decision from the Migration Review Tribunal which affirmed that decision on 29 March 2010. Mr Uddin had applied for the visa nominating as his occupation that of cook. The two courses he submitted which enabled him to satisfy the two year study requirement in the period of six months ending immediately before the day upon which the application was made were, first, a Diploma of Information Technology (System Administration) from Uniworld Business College and, second, a Certificate III in Hospitality (Commercial Cookery) from the Illawarra Business College. The issues which confronted the Court in this application for review of the decision of the Migration Review Tribunal all concerned the manner in which the Tribunal dealt with the requirement of subclause 485.213(b) which at the relevant time was in the following form:
“The following requirements are met:
…
(b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.”
The Tribunal’s decision is not an altogether happy document. In paragraph 3 it states:
“The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that each of the qualifications used to meet the two year study requirement was relevant to the nominated occupation.”
At paragraph 8 the Tribunal says:
“The issue in the present case is whether each of the qualifications used to meet the two year study requirement was relevant to the nominated occupation.”
At paragraph 13 the Tribunal says:
“On 19 January 2009 the delegate decided to refuse to grant the visa as the delegate found that the applicant had not met the two year study requirement. The delegate found that the Diploma of IT was not relevant to the nominated occupation of a cook. The delegate was not satisfied that the applicant met cl.485.213.”
And in paragraph 14:
“The applicant sought review of the delegate’s decision on 27 January 2009. On 14 January 2010 the Tribunal received a further submission from the applicant on the issue of relevance.” [emphasis added in all extracts]
“Relevant” is a word that was utilised in previous regulations such as 880.215 that was helpfully considered by Smith FM in Thongsuk v Minister for Immigration [2007] FMCA 655. The replacement of that criteria by “closely related” would seem to indicate that the legislature thought that “relevance” was too wide a concept. Policy Advice Manual (PAM) 3, which the Tribunal is not required to follow, discusses the meaning of closely related at [8]:
“8.2 Closely related
Even if an applicant otherwise meets the Australian study requirement described in 485.213(a), 485.213(b) requires the completed Australian qualification/s to be ‘closely related to’ the applicant’s nominated skilled occupation.
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 qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.
Under policy, circumstances of a qualification not being ‘closely related’ to the nominated occupation include where the qualification is not related to the nominated skilled occupation – for example, an applicant’s nominated occupation is registered nurse but they satisfied the Australian study requirement on the basis of having completed a Bachelor of Commerce.
Another instance in which policy does not consider qualifications to be ‘closely related’ to the nominated occupation is where the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work:
Example:
The applicant met the Australian study requirement on the basis of having completed a Certificate III in Furniture Making and a Masters of Information Technology. Although basic IT skills are generally applicable to most occupations, the high level skills gained by completing a Masters course is inconsistent with the skills that would be useful on a day to day basis as an entry level tradesperson (for a nominated skilled occupation of cabinet maker, as example).”
One might hazard a guess that the Tribunal was using the word “relevant” in the extracted passages as short hand for the words “closely related” because at [16]:
“The Tribunal explained that it must be satisfied that each of the qualifications were closely related to his nominated occupation of cook. The Tribunal invited the applicant to explain why he thought the Diploma of IT was closely related to the nominated occupation of cook.”
The Tribunal utilises the proper wording of “closely related” again at [23] when the Tribunal says:
“Clause 485.213(b) relevantly requires that each of the degrees, diplomas or trade qualifications used to satisfy the two year study requirement must be closely related to the applicant’s nominated skilled occupation.”
Those words are again used at [24] and throughout the balance of the Tribunal’s Findings and Reasons. At [31] the Tribunal says:
“[C]onsidering the qualification as a whole which is what 485.213 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.”
And at [33] the Tribunal declines to follow another decision of a Tribunal because it related to a subclass 880 application which was concerned with the qualification of “relevance” and not “closely related”. I am satisfied, on reading the Tribunal’s decision as a whole, that it understood the criteria it was obliged to apply and did not test the application based upon a criteria of “relevance”.
In its Findings and Reasons the Tribunal considers the policy contained in PAM3 and noted that the advisory stated that the requirement was for the qualifications to be complementary to the nominated occupation and whether the skill set underpinning the qualification can be used in the nominated occupation but went on to say:
“However, the Tribunal has formed the view that such policy does not reflect the wording of the legislation. 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, in the Tribunal’s view, a much stronger link between the academic qualifications and the occupation being really useful and, in the Tribunal’s view, the policy does not adequately reflect the requirements of the legislation.”
The Tribunal went on to quote from two decisions of the FMCA, Sakhno v Minister for Immigration [2007] FMCA 1492 and Alimi v Minister for Immigration [2007] FMCA 1520, to the effect that the Tribunal was entitled to depart from PAM3 if it believed that the advisory did not accurately reflect the Regulations and proposed to do so.
In his submissions to the Tribunal the applicant made it clear that his nominated occupation of cook was merely the first step towards him becoming a restaurant proprietor and indicated that, in his view, he had benefited from the obtaining of the IT diploma not just for its connection with his work as a cook but also for the assistance it would give him in reaching his goal to be a profitable restaurant owner. The Tribunal noted this but pointed out that the assessment contemplated in 485.213(b) is against the nominated occupation and not an occupation in which the applicant intends to engage in the future. I believe that is correct and I made the same point in Chawdhury v Minister for Immigration [2010] FMCA 275. At [32] the Tribunal described what it considered the test was:
“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 qualification 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.”
The applicant sought review of the Tribunal’s decision on 27 April 2010 and gave three grounds of application. The first was:
“The second respondent committed jurisdictional error by failing to give a proper, genuine and realistic consideration to the merits of the application.”
The respondent argues that I should not consider this ground at all because there is no requirement to give proper, genuine and realistic consideration to the merits of an application. The applicant says there is. The applicant relies principally upon what fell from Rares J in SZJSS v Minister for Immigration [2009] FCA 1577 and, in particular, at [43]. I note that his Honour appears to have acknowledged the correctness of the views expressed by Tobias JA in Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633 at 648 - 651 [51-60] that:
“This formulation should not be turned into an assessment of the adequacy of the consideration accorded to the particular case so as to permit an intrusion in the administrative decision maker’s assessment of the merits.”
Mr Uddin also suggests that some support for his Honour’s views that the failure to provide proper, genuine and realistic consideration can lead to a jurisdictional error in not complying with the provisions of s.425 of the Migration Act 1958 (Cth) (the “Act”) is supported by the High Court in NAIS & Anor v Minister for Immigration [2005] HCA 77. But the only references to this phraseology in that case are contained at [37] when Gummow J said:
“Counsel for the Minister accepted that it is implicit in the reference in section 425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT.”
And Callinan and Heydon JJ said at [171]:
“The first respondent also accepted that 425(1) by implication refers to a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made.”
It can hardly be said that these two references to a concession by the Solicitor-General constitute substantive and reasoned support for the propositions advanced by Rares J. But I am placed in an even more invidious position because in 2010 Lander J in SZKGC v Minister for Immigration [2010] FCA 270 made the following observation:
“It was contended before the Federal Magistrate and on appeal that the RRT was under an obligation to give “proper, genuine and realistic consideration” to the appellant’s claim. It is not entirely clear what is meant by the injunction that an administrative body give “proper, genuine and realistic consideration” to the application before it. Nor is it clear that a failure to do so necessarily amounts to an error of law or jurisdictional error: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [59]- [66]; NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [51]; Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633 at [51]- [60].”
His Honour did not refer to the decision of Rares J in making his views known. In SZMVK v Minister for Immigration [2010] FMCA 75 I said at [22]:
“I accept the respondent’s submission that there is nothing to suggest that the accepted bases of jurisdictional error now include a new ground of uncertain meaning being a failure to give “proper, genuine and realistic consideration” that could be made in the absence of any other jurisdictional error being established. This view is consistent with that of the High Court in Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429 which illustrated a determination on the part of the High Court to restrict categories of jurisdictional error to those arising directly from failure to comply with statutory requirements.”
On appeal from that decision in Cowdroy J agreed that a failure to give proper, genuine and realistic consideration did not in itself constitute jurisdictional error:
“The claims that there was no ‘proper, genuine and realistic consideration’ to the appellant’s claims and that there was a failure to engage in ‘an active intellectual process’ are not grounds for review unless a jurisdictional error can be identified: see Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82].
In NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 77; (2005) 228 CLR 470 at [37] the phrase ‘proper, genuine and realistic consideration’ was used in respect of the jurisdictional error disclosed. Such jurisdictional error related to excessive delays by the Tribunal which had compromised its ability to consider fairly the case before it and thereby to fulfil its obligations pursuant to s 425 of the Act.”
See SZMVK v Minister for Immigration [2010] FCA 679 at [32].
What is an inferior court to do when faced with two competing decisions of an appellate court? The generally accepted view is that it should avoid the controversy by preferring the later of the two decisions and leaving the matter to be decided by higher authority at an appropriate time. That is what I would propose to do if I could not otherwise dispose of the applicant’s argument. I believe I can. The applicant says that he did not get the requisite consideration because the Tribunal did not take into account a lengthy submission that he made that is found [CB 77 – 86] in which he went through all the courses which he took and explains their connection to his nominated occupation as well as to his intended occupation. I am not satisfied that the Tribunal ignored this submission because, in my view, the references which the Tribunal makes to the applicant’s submissions in [14] which include the words:
“the applicant referred to the various modules he had undertaken in his formal studies and explained how he could apply these in his work as a cook or a restaurant owner”
indicates a reference to these submissions. I also note that at [29] where the Tribunal says:
“The applicant argues that a Diploma of IT provides skills that are readily applicable in any workplace such as dealing workplace safety, time management and personnel management.”
comes straight from the applicant’s written submission at [CB 77] and [CB 79]. I accept the argument put by the respondent that between [29] and [31] [CB 120] the Tribunal actively engages with all the arguments raised by the applicant and comes to a conclusion that they do not satisfy it that the course is closely related to the nominated occupation. This is what the Tribunal is required to do and I think that the arguments put by the applicant to support his suggestion that proper consideration was not given border upon a request for merits review however elegantly they were put.
The second ground of application was that:
“The second respondent committed jurisdictional error by failing to consider all the evidence relied upon by the applicant in support of his application.”
In his written submissions the applicant argues that the Tribunal stated without adequate reasoning that PAM3 was unlawful whereas the applicant believes that it did give proper advice as to the manner in which the test should be carried out. In my view, this is a complaint that the Tribunal did not carry out the PAM3 test and carried out some test of its own which was not appropriate. I would say that the Tribunal is entitled to arrive at its own definition of “closely related” so long as it is not clearly wrong. As Smith FM said in Thongsuk (supra) at [25]:
“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. …Because of the intangibility of the criterion’s concept of “relevance”, there is considerable legal space for the Minister’s delegate and the Tribunal to be guided by administrative policy and to take account of a broad range of considerations assessing both the nature of the qualifications acquired and the demands of the nominated occupation.”
The Tribunal took the view in this particular case that the submissions made by the applicant as to the close connection between the course and the nominated occupation went no further than indicating a general benefit to him. That was not sufficient. The Tribunal looked at what the ASCO 4513-11 definition of a cook was at [30] [CB 120] and was unable to make a connection with the course to the degree it believed was required. As in Chawdhury (supra), the applicant had tried to show the similarities between the IT course which he had done and a hospitality management course which the Tribunal would doubtless have accepted as having the necessary close relationship. But the Tribunal, rightly in my view, pointed out that it was not sufficient:
“that some of the subjects undertaken by the applicant in the Diploma of IT are similar to the subjects the applicant would have undertaken in a Diploma of Hospitality Management.”
The applicant also argued under this head that the Tribunal gave no consideration to his detailed submission but, for the reasons given above, I have to reject that submission.
The third ground raised by the applicant was that:
“The Tribunal erred in failing to consider the full breadth of the term “skilled occupation” in the context in which it appears in regulation 485.213(b).”
In his written submissions the applicant says:
“The second respondent made jurisdictional error by adopting an unduly narrow construction of clause 485.213.”
If the applicant is saying here that the Tribunal wrongly did not apply PAM3 then this is met by the finding in [29] [CB 120]:
“Further, even if the Tribunal were to apply the broader policy interpretation of this provision [PAM3], 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.”
If the applicant is arguing that the Tribunal’s use of the word “relevant” at the commencement of the decision record indicates that it misunderstood the requirement in the regulation then, for the reasons I have already expressed, I reject that submission.
In my view this decision must be looked at as a whole and without an eye attuned to uncovering error. The Tribunal clearly understood what it was required to do. It considered all the representations made by the applicant and it failed to be satisfied on one of the mandatory requirements. In coming to that conclusion, I am unable to see that it fell into jurisdictional error. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,800.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 2 August 2010
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