Velusamy v Minister for Immigration
[2009] FMCA 879
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VELUSAMY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 879 |
| MIGRATION – Review of Migration Review Tribunal decision – Skilled – Independent Overseas Student (Residence) visa – refusal – points system – eligibility for bonus points – criterion based on length of employment in a skilled occupation – matters which must be considered by Tribunal – unarticulated claim. |
| Migration Act 1958, ss.94, 95, 95A, 350, 359A, 474 Migration Regulations 1994, reg.2.26A, , cl.136.213 of sch.2, cl.880.222 of sch.2, item 6A81 of sch.6A |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Martinez v Minister for Immigration & Citizenship [2009] FCA 781 De Ronde v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 519 Morais v Minister for Immigration, Local Government & Ethnic Affairs (1995) 54 FCR 498 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 |
| Applicant: | PRABU CHANDRAPURAM VELUSAMY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1341 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 August 2009 |
| Date of Last Submission: | 28 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1341 of 2009
| PRABU CHANDRAPURAM VELUSAMY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 November 2006 the applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. On 29 January 2008 a delegate of the Minister refused the application on the basis that the applicant had failed to achieve a “qualifying score” pursuant to cl.880.222 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant subsequently applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
At the time the visa application was lodged, the Skilled – Independent Overseas Student (Residence) (Class DD) visa contained only one subclass: subclass 880.
The criteria for the grant of a subclass 880 visa are set out in pt.880 of sch.2 to the Regulations. Relevantly in this case, a primary criterion to be satisfied at the time of decision is cl.880.222 which requires that an applicant have a “qualifying score” when assessed under subdiv.B of div.3 of pt.2 of the Act (i.e. ss.92-96). That subdivision provides for the application of a points system under which applicants for relevant visas are given a score based on particular attributes set out in the Regulations, in this case sch.6A (which provides details of the qualifications and the range of points available) and reg.2.26A (which stipulates which parts of sch.6A are relevant to subclass 880 visas).
Relevantly in this case, sch.6A’s item 6A81(b) allows for five “bonus points” to be awarded where
The applicant:
(a) …
(b) has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a visa authorising him or her to work; …
In this context “employed” means “engaged in an occupation for remuneration for at least 20 hours weekly”: reg.2.26A(7).
An applicant whose assessed score is more than or equal to the applicable pass mark is taken to have received the qualifying score: s.94(1). If an assessed score is less than the pass mark, but greater than or equal to the “pool mark”, the applicant remains in a pool for up to two years, waiting for a lower pass mark to be prescribed: ss.95, 95A.
Section 350 of the Act requires the Tribunal to consider the Regulations and the pool and pass marks in force at the time of the delegate’s assessment and at the time of the Tribunal assessment and to apply whichever are more favourable to the applicant.
At all times relevant to these proceedings the pass and pool marks were both set at 120 points: Gazette Notice 15, 14 April 2004.
Background facts
Primary application
In his application form of 1 November 2006 the applicant gave his nominated occupation as “computing professional” and claimed that he had been employed since August 2004 as an “IT support technician” for Mosskito Cold Chain Logistics Pty Ltd (“Mosskito”). In support of his application he provided, amongst other things, a letter dated 27 October 2006 from Mr D. Zanon, the general manager of Mosskito, who confirmed that the applicant had been working twenty hours per week since August 2004 in an IT capacity.
By letter dated 16 October 2007 the Minster’s department advised the applicant that on 8 October 2007 two of its officers had conducted an on-site visit to his place of employment for the purposes of verifying his claims and reported that:
After discussions with a representative of the company, it was confirmed that the applicant [sic] main role varied and consisted mainly of storeman duties and a forklift driver, loading the refrigerated trucks. It was also confirmed that the applicant sometimes performed IT work such as data entry and was able to fix some server and system problems.
The applicant’s agent responded by letter dated 20 November 2007 stating that there had been a misunderstanding regarding the applicant’s position and enclosing for clarification purposes an additional letter dated 16 November 2007 from Mr Zanon. Amongst other things, Mr Zanon stated that:
… there are many occasions when we become extremely busy and all staff – including administrative staff – are requested to help out for a short period in the warehouse. … [this] is only an occasional help provided voluntarily … Mr. Prabu’s duties have been in the area of IT support, not in the warehouse. His help is only in addition to his regular duties as IT support technician.
The Minister’s delegate awarded the applicant the following points for each category:
Skill
60
Age
30
English language ability
20
Specific work experience
0
Occupation in demand/job offer
0
Australian qualification
5
Bonus points
0
Regional Australia
0
TOTAL
115
Of particular relevance to these proceedings, the delegate found that the applicant was not entitled to any bonus points under item 6A81(b) as she was satisfied that his work experience whilst employed by Mosskito was that of a forklift driver, an occupation which was not listed on the Skilled Occupation List.
As the requisite pass mark at the time of the delegate’s decision was 120 points, the applicant failed to achieve the qualifying score and accordingly the delegate refused to grant him the visa.
Application to the Tribunal
The applicant applied to the Tribunal for review of that decision and appeared at a hearing on 18 November 2008 to give evidence and present arguments. Oral evidence was also given by Mr Zanon.
The Tribunal reassessed the applicant’s points score and found that he was entitled to a total of 115 points for the following reasons:
a)Skills qualifications
The applicant’s nominated skilled occupation of ICT Recent Graduate entitled him to 60 points.
b)Age qualifications
The applicant’s age entitled him to 30 points.
c)Language skill qualification
Having achieved an IELTS test score of at least 6 for each component of listening, reading, writing and speaking, the applicant was entitled to 20 points for this category.
d)Employment experience qualifications
The applicant made no claims about being employed in his nominated skilled occupation or a closely related skilled occupation for a period of, or periods totalling, at least thirty-six months in the forty-eight months immediately before the day on which his visa application was made and he was therefore entitled to no points in this category.
e)Spouse skill qualification
The applicant did not have a spouse and therefore no points could be awarded for this category.
f)Australian educational qualification
The applicant had successfully completed a Master of Information Systems at Central Queensland University which entitled him to 5 points for this category.
g)Skills targeting qualifications
The applicant’s nominated skilled occupation of ICT Recent Graduate was not a specified occupation in demand and therefore no points could be awarded in this category.
h)Bonus points qualification
The Tribunal accepted that the applicant was employed by Mosskito for at least six months for twenty hours per week in the relevant period. However, given that some this work was undertaken in the warehouse or as a storeman, the Tribunal found that it necessarily followed that the applicant did not work for twenty hours per week as an IT support technician. Accordingly, he was not entitled to bonus points pursuant to item 6A81(b).
i)Additional points qualification for regional Australia and low-population metropolitan areas
The applicant did not study full-time for two years at a specified campus and did not reside for at least two years in a specified area such that he would be entitled to points in this category.
The applicant having attained a score of 115 points, the Tribunal found that he failed to achieve the qualifying score of 120 points as required by cl.880.222 of sch.2 to the Regulations. As, at the time of the delegate’s decision, the pool and pass marks relevant to the applicant’s application were both 120 and this situation had not changed by the time the Tribunal made its decision, the Tribunal affirmed the delegate’s decision not to grant the applicant a subclass 880 visa.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)A jurisdictional error occurred when the Tribunal failed to determine the Applicant’s application for a Independent Overseas Student (Residence) (Class DD) visa in accordance with the Migration Regulations 1994, because the Tribunal misconstrued and/or misapplied item 6A81(b) of Schedule 6A and regulation 2.26A(7).
(2)The Tribunal committed jurisdictional error by failing to deal with the claims expressly put to it or otherwise squarely raised on the material before it. In the alternative, the Tribunal failed to take into account a relevant consideration.
Misapplication of test
The particulars of the allegation that the Tribunal failed properly to apply item 6A81(b) of sch.6A and reg.2.26A(7) can be summarised as follows:
a)the Tribunal had to determine if the applicant had been employed in Australia in a skilled occupation for periods totalling six months in the forty-eight months immediately before he applied for the visa;
b)“employed” means “engaged in an occupation for remuneration for at least 20 hours weekly”: reg.2.26A(7);
c)the period of employment relevant to the applicant’s application was seven months in overall length;
d)the Tribunal found that the applicant had not worked in the relevant occupation for twenty hours every week because, on occasion, he performed other duties on the warehouse floor;
e)the Tribunal failed to determine when and for what periods of time the applicant had, in that seven month period, performed those other duties; and
f)absent such a finding, the Tribunal could not be satisfied that the applicant failed to satisfy the relevant criterion.
The applicant submitted that the Tribunal made the same mistake as was made by a ministerial delegate and considered in Martinez v Minister for Immigration & Citizenship [2009] FCA 781. There, Goldberg J considered cl.136.213 of sch.2 to the Regulations which required the applicant to demonstrate that he had been “employed in a skilled occupation” for a particular period. The delegate rejected the applicant’s claim to have been employed in a skilled occupation and performing the duties of the relevant occupation to the requisite level without having specifically determined the nature of the work that the applicant had undertaken, the duties involved and the period or periods during which the applicant had performed such work or duties. His Honour said:
... In my opinion, the delegate was obliged to determine the nature of the work which the appellant had undertaken and the duties he had undertaken in the course of his work and also the period or periods during which the appellant claimed to have undertaken that work and performed such duties. These matters were intertwined and both had to be addressed specifically in order for the delegate to determine whether the appellant satisfied subcl 136.213(1).
As a matter of legal analysis, in order for the delegate to determine whether she was satisfied as to the nature of the employment of the appellant in the skilled occupation and that he had performed the duties of a cook it was necessary for the delegate to examine, consider and make a finding in respect of the period or periods during which the appellant had been employed in that occupation and performing those duties. If the delegate had turned her mind to identifying, and making a finding in respect of those periods, she may well have reached a different conclusion from the conclusion she reached in respect of her level of non-satisfaction as to the nature of the occupation undertaken by the appellant and the duties he performed as a cook. (at [35] – [36])
Martinez’s case demonstrates that, in this case, item 6A81(b) of sch.6A to the Regulations required the Tribunal, as an exercise of jurisdiction, to make a determination on the following matters:
a)which weeks in the forty-eight month period immediately before the day on which he made the visa application the applicant worked in his skilled occupation;
b)whether those periods totalled at least six months; and
c)the nature of the work or the duties undertaken by the applicant during that period.
The applicant submitted that the Tribunal did not address itself to those particular questions.
In para.48 of its decision the Tribunal said:
On the evidence available to it, the Tribunal accepts that the visa applicant was employed for at least 6 months [between April and October 2006] for 20 hours per week in the relevant period.
The Tribunal did not specify in which of the weeks from April to October 2006 the applicant worked for twenty hours. The evidence to which the Tribunal referred supported a conclusion that, in fact, the applicant had worked for twenty hours per week from 1 April 2006 to 13 October 2006, a period of twenty-eight weeks. However, at this point of its consideration it was not necessary for the Tribunal to do more than find that the applicant had worked for twenty hours per week for at least six months, i.e. twenty-six weeks.
The significance of there apparently being two weeks of the applicant’s work history which the Tribunal implicitly discarded for the purpose of deciding whether he had worked for twenty hours per week for at least six months emerges in its finding in para.55. There it said:
If the visa applicant worked not more than 20 hours per week in the relevant period and some of his work was undertaken in the warehouse or as a storeman, it necessarily follows that he did not work for 20 hours per week in the skilled occupation as an IT Support Technician.
The applicant submitted that such a conclusion did not necessarily follow at all. This, he said, was because in the twenty-eight week period to which the Tribunal made reference in para.48, the applicant could have satisfied the item 6A81(b) test by working as an IT support technician for twenty hours per week over twenty-six weeks and by working in the warehouse for the remainder of the April to October 2006 period. The applicant submitted that that the Tribunal’s finding articulated in para.55 of its decision reflected its erroneous failure to follow the steps which Martinez’s case states should be observed when considering provisions such as item 6A81(b).
If the Tribunal had failed to turn its mind to the full details of the applicant’s work history as the applicant’s arguments imply, then it would have failed to approach the matter in the way required by Martinez’s case.However, although it found that the applicant worked “for at least 6 months” for twenty hours per week, the Tribunal should not be understood to have been restricting its consideration of the work performed by the applicant to an unspecified six month period and to have failed to consider the remainder of the April to October 2006 period. The Tribunal should be understood to have had regard to all of the applicant’s work history in that period.
The Tribunal’s consideration of the applicant’s work history was undertaken in three steps. The first step was its reference to the evidence of the applicant’s work history from April 2006 to October 2006 and its finding that he had worked for twenty hours per day for “at least” six months (para 48). Although the Tribunal was only required to determine whether the applicant’s qualifying work history amounted to at least six months in total, it can be inferred from the way it expressed itself in para.48 of its decision, quoted above at [23], that the Tribunal accepted that the applicant worked twenty hours per week in each of the weeks in the April to October 2006 period in respect of which he had provided documentary evidence in the form of payslips. The Tribunal referred to the payslips at para.47 of its decision.
The second step was set out in para.55 of the decision quoted above at [24]. There, the Tribunal stated its conclusion that because the applicant worked no more than twenty hours per week for Mosskito and any work in Mosskito’s warehouse was performed at some point during those twenty hours, it naturally followed that in a week when such work was performed, the applicant did not work for twenty hours as an IT support technician. The applicant submits that this reflected an assumption that any work at the warehouse necessarily defeated the applicant’s claim. However, at this point of its decision the Tribunal was not considering whether the applicant failed to meet the item 6A81(b) test of being “employed” and whether such voluntary work would affect the applicant’s satisfaction of the work-history criterion of the visa he sought. All it was doing was stating the obvious fact that, given that the applicant worked for no more than twenty hours in any week, if in a given week he did some work in the warehouse, in that week he could not have worked for twenty hours as an IT support technician.
At para.56 of its decision the Tribunal considered the evidence of the applicant’s work history:
The evidence of the visa applicant’s occupation is finely balanced. The Departmental officers [sic] report did not deny that the visa applicant ‘sometimes performed IT work such as data entry and was able to fix some server and system problems’. The General Manager and the visa applicant conceded that the latter worked in the warehouse for at least some of the time in the relevant period.
It was necessary for the Tribunal to consider such evidence to determine the extent to which the applicant had worked as an IT support technician and the extent to which he had performed other work. Following a consideration of that evidence, the Tribunal took the third and final step and concluded that, on balance, the applicant had
worked for less than 20 hours per week as an IT support technician in the relevant period. (para.57)
That is to say, the Tribunal concluded that at no point during the relevant period, in respect of which only twenty eight weeks’ employment records had been evidenced, had the applicant worked for twenty hours per week as an IT support technician.
The Tribunal satisfied the Martinez test by considering both the nature of the work performed by the applicant and the entirety of the period for which there was evidence of that work. It satisfied the Martinez test notwithstanding that it did not analyse each of the weeks of the applicant’s employment to determine whether he was relevantly “employed”. In circumstances where the Tribunal concluded that at no point during the forty-eight month period prior to the lodgment of the visa application was the applicant “employed” in the prescribed sense, it was not obliged to make separate findings in relation to each week in the twenty-eight week period between April and October 2006 for which there was adequate evidence of employment. It was sufficient to make an overall finding that, at no point in that period, did the applicant satisfy the employment test prescribed by item 6A81(b).
Failure to consider unarticulated claim/relevant consideration
The applicant also submitted that the Tribunal failed to consider his claim that his assistance in the warehouse was voluntary, outside the scope of, and over and above, his employment as an IT support technician.
As the summary of facts set out earlier in these reasons records, this issue arose out of a site visit which officers of the Minister’s department made to Mosskito, during which they were informed that the applicant worked in the warehouse as well as in the office providing IT support. The Tribunal raised this information with the applicant in a s.359A notice and his then-solicitors responded, in part by submitting a letter from Mosskito which stated:
We wish to point out that this is not a part of the employment conditions, but is only an occasional help provided voluntarily to ensure work is completed on time. Mr Prabu’s duties have been in the area of IT support, not in the warehouse. His help is only in addition to his regular duties as IT support technician.
The applicant pointed to the Tribunal’s comments in para.54 of its decision record where it said:
The last point made in the General Manager‘s letter is of some concern because if true it suggests that the visa applicant may have worked in excess of 20 hours per week. The Tribunal put this possibiliy to the visa applicant by letter on 9 April 2009, who simply asserted that he never worked more than 20 hours per week in the relevant period. The Tribunal makes no findings on this point.
The applicant submitted that the Tribunal’s statement that it would make “no findings” concerning whether the work in the warehouse was over and above the twenty hours per week evidenced a failure to consider a claim expressly made or squarely raised by the material before the Tribunal and which it was obliged to consider. He identified that claim to be one that, because it was voluntary, the additional work did not amount to employment as relevantly understood by the Regulations. The applicant submitted that the Tribunal proceeded on the assumption that the voluntary work constituted employment and had to be taken into account when considering whether he was, for at least six months in the forty-eight months preceding his visa application, “employed” in the sense of “engaged in an occupation for remuneration for at least 20 hours weekly”.
The applicant referred to reg.2.26A(7) where the definition of “employed” depends on there being remuneration. Reference was also made to De Ronde v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 519 where Riethmuller FM held that where “engaged in an occupation” is used in reg.2.26A(7), it means actively participating in or undertaking duties directly connected with the carrying out of the occupation concerned. In Morais v Minister for Immigration, Local Government & Ethnic Affairs (1995) 54 FCR 498 at 500, Kiefel J said that an essential feature of an occupation is remuneration in exchange for effort. On this basis, it was submitted, any work performed by the applicant on a voluntarily basis could not be considered to be work falling within the scope of his “employment”, as that term is relevantly understood by the Regulations.
In relation to the Tribunal’s asserted obligation to consider this postulated claim, the applicant referred to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1. There the Full Court of the Federal Court said that a claim, even if it is not expressly advanced, will attract the Tribunal’s review obligation when it is apparent on the face of the material before the Tribunal and does not depend for its exposure on constructive or creative activity on the part of the Tribunal (at 19 [58]). As Allsop J said in NAVK vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Given the Tribunal’s s.359A notice dated 9 April 2009 and the reply which the applicant’s then-solicitors made to it, I do not find that the applicant should be considered to have made an unarticulated claim that his voluntary work did not amount to employment for the purposes of the Regulations. In its s.359A notice the Tribunal advised the applicant that information before it appeared to show that he had worked for more than twenty hours per week in some parts of the employment period and for less than twenty hours per week in others. In addition to identifying that information, the Tribunal explained its relevance in the following terms:
This information is relevant to the review because it may show that the visa applicant was not employed for 20 hours per week as required by the definition of ‘employed’ for the purposes of regulation 6A81(b), and it may show that in some periods the visa applicant was employed for more than 20 hours per week in breach of his student visa condition. (emphasis added)
His then-solicitors responded on 6 May 2009 saying, amongst other things:
The applicant has never worked more than the permitted work limit within his student visa. All the documents submitted to the Department and to the MRT clearly show that he has worked 20 hours per week during the relevant period (attached page 84 to 93 in DIAC’s file). We fail to understand, how the Tribunal concluded the fact that the applicant may have breached the visa condition related to the work limit.
It is apparent from that letter that the applicant was aware of the significance of working exactly twenty hours per week. To do fewer would mean he could not satisfy one of the conditions for the grant of the new visa which he sought but to do more would breach his existing visa conditions. Moreover, whether any particular work was voluntary or remunerated was likely to be irrelevant to the condition on his then-current visa. As the Tribunal said at para.42:
In the context of this visa ‘work means an activity that, in Australia, normally attracts remuneration’, whether remuneration is actually paid or not.
Consequently, the applicant should be understood to have told the Tribunal in his reply to the s.359A notice that the totality of his work for Mosskito was exactly twenty hours every week. Far from flagging the claim which it is now submitted he was making without expressing it, in that reply he was saying that the work he performed on a voluntary basis never caused him to work more than twenty hours per week. Put another way, the voluntary work was part of those twenty hours.
The Tribunal’s statement in para.54 of its decision record that it would make “no findings” on the question of whether the applicant worked more than twenty hours per week in the relevant period does not reflect a failure by it to consider whether the voluntary work should or should not have been taken into account when considering whether the applicant had been “employed” as defined by reg.2.26A(7). Rather, it reflects the fact that the Tribunal had no need to consider whether the applicant had breached a term of his student visa by working more than twenty hours per week. It also evidenced the Tribunal’s preparedness to accept what the applicant’s then-solicitors had said in their letter of 6 May 2009 – that he had never worked more than twenty hours in any week. The discussion at paras.53-54 of the Tribunal’s decision record reveals that it considered the applicant’s response to the s.359A notice to mean, when it said that the applicant never worked more than the number of hours permitted by his student visa, that his work, both paid and voluntary, did not exceed the twenty hour weekly limit imposed by his visa.
Moreover, implicitly relying on its understanding of the response to the s.359A notice, and contrary to the applicant’s submissions, the Tribunal did consider what significance should be attached to the voluntary work. Paragraph 55 of its decision, quoted above at [24], expresses the conclusion that the applicant’s weekly work of no more than twenty hours included his voluntary work.
The applicant further submitted, and in the alternative, that the Tribunal failed to take account of a relevant consideration in the sense that it failed to consider whether or not his voluntary work was or was not “employment” as relevantly understood by the Regulations. However, the voluntary work was, essentially, unskilled or semi-skilled labouring in Mosskito’s warehouse, not the skilled occupation of IT support technician in respect of which the applicant made his claim for bonus points. It was not necessary for the Tribunal to consider whether the voluntary work was to be considered “employment” because, as the Tribunal’s decision makes clear, it would not amount to skilled employment which was the only sort of work which was relevant to consider in the context of item 6A81(b).
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 September 2009
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