Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2)

[2007] FCA 594

FEDERAL COURT OF AUSTRALIA

Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2)
[2007] FCA 594

RAVI KUMAR VISHNUMOLAKALA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No NSD 1983 of 2006

FINN J
27 APRIL 2007
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1983 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	RAVI KUMAR VISHNUMOLAKALA Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE OF ORDER:	27 APRIL 2007
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1983 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	RAVI KUMAR VISHNUMOLAKALA Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	27 APRIL 2007
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This appeal from a decision of a Federal Magistrate refusing relief by way of constitutional writs against a decision of the respondent Minister’s delegate has taken an unusual course.  Of the seven grounds contained in the original application all but one have been abandoned.  Leave was sought to raise four new grounds.  In turn two of these were abandoned.  I refused leave in the case of another at an earlier interlocutory hearing and indicated I would consider the remaining application for leave at this hearing.  The ground sought to be raised was not in issue before the Federal Magistrate.  I will refer to these two live grounds separately below.

   BACKGROUND

2. The appellant applied unsuccessfully for a class BN subclass (136) Skilled-Independent Permanent Resident’s visa. One of the criteria for the visa was that the appellant must be outside Australia when the visa is granted. There were two important consequences of this requirement. The first was that he did not have a right of merits review by the Migration Review Tribunal: see s 338(2)(a) of the Migration Act 1958 (Cth); the second was that the Minister’s delegate was under no obligation to give written reasons why the appellant was unsuccessful: see s 66(2)(c) of the Act. When the matter came before the Federal Magistrate a “decision record” was put in evidence although, as the Magistrate observed, “this was intended to provide only a cursory explanation of the decision”.

3. Given the absence of a statutory obligation to provide reasons and the parsimonious nature of the evidence before the Magistrate, his Honour rightly indicated that it was difficult to draw inferences that the delegate failed to take matters into consideration given the absence of discussion of evidence or submissions in the decision record. 

4. The application for a visa was lodged on 13 January 2004.  It presented evidence of the appellant’s Indian qualifications in science and computer programming and his employment in India between 1996 and 2002, an employment he described as that of “Programmer”.  He also presented evidence of employment in the United Kingdom between 2002 and 2003 and in Australia since 2003.  This employment he described as being an “Analyst Programmer”.  The application nominated the skilled occupation upon which he sought permanent migrant entry as “Analyst Programmer” ASCO Code 2231-17.  Importantly, as will become apparent, the Federal Magistrate commented of this occupation that there was no evidence before the Court to explain it or its distinctions from other occupations in the field of computer programming. 

5. In order to establish his occupational level the appellant presented a skills assessment from the Australian Computer Society.  That assessment which was provided to him, not to the Department, stated inter alia:

   “For the purpose of your application you have as of June 2002 satisfied the requirements of the ACS PIM2, Group B.

   Your work experience has been calculated as follows:

   Dates:              04/96 – 01/02
              Position:          Programmer
              Employer:        Jeshmasoft – Secunderabad, India

   Dates:              03/02 – 01/03
              Position:          Analyst Programmer
              Employer:        Allied Info Tech Ltd – London, UK

   Dates:              06/03 – 09/03
              Position:          Analyst Programmer
              Employer:        Braintech Pty Ltd – Sydney, NSW

   You should note that DIMIA reserves the right to undertake further detailed investigation of your work experience for the purposes of assessing the recent work experience requirement, and the specific work experience and Australian work experience points test items.

   Your skills have been assessed to be suitable for migration under 2231-17 of the ASCO Code, being the skilled occupation indicated that you intend to nominate in a General Skilled Migration application.”

6. The Federal Magistrate observed of this letter:

   “8.Although it would seem that the Society took into account the applicant’s history of employment as a computer programmer which I shall detail below, I am unable to read its letter as providing the delegate with any opinion on whether the whole period of his past employment, in particular in India, had been at the level of ASCO Code 2231-17.”

7. The method of assessment of past employment for the purposes of the visa involved the application of a points test arising under prescribed criteria. One of these was for “employment experience” for which 10 points could be awarded. The delegate in fact awarded no points rather than 10 for this criterion. This is now in issue in this appeal. The one matter that does require emphasis given this issue is that the criteria to be satisfied in respect of a nominated skilled occupation (in the appellant’s case an Analyst Programmer) are separate and distinct from that which relates to a qualifying score for employment experience. When the delegate assessed whether the appellant was entitled to the award of 10 points on account of employment experience, the delegate was required to apply Pt 4 of Sched 6A of the Migration Regulations 1994 (Cth). It provided, insofar as presently relevant, that if a visa appellant could establish that he or she had been “employed in the nominated skilled occupation, or a closely related skilled occupation” for a period of at least 36 months in the 4 years preceding the visa application, that appellant would be awarded 10 additional points.  In his visa application, in his curriculum vitae and in his references, the distinction was drawn between his employment in India which was described as that of a “Programmer” and his employment in England and in Australia which was described as “Analyst Programmer”.

8. The submission that was made to the delegate by the appellant’s migration agent was in the following terms:

   “8.      Employment Experience Qualification

   The applicant has been employed as an Analyst Programmer from June 2003 to present at Brain Tech Pty Ltd.  Prior to that he worked as an Analyst Programmer from March 2002 to January 2003.  From April 1996 to January 2002, he worked as a Programmer with Jeshmasoft in Secunderabad, India.  The application was lodged on 13 January 2004.  Thus he has a relevant work experience of 43 months in the 48 months immediately before the date on which the application was submitted to the Adelaide Skilled Processing Centre (The Regulation requires at least 36 months before 48 months of the lodgement of the application with the Adelaide Skilled Processing Centre).

   We submit that the applicant is eligible for the award of 10 points for his employment experience qualifications (Schedule 6A Part 4 6A41).”

9. The delegate’s decision record in relation to this matter, apart from describing the point system itself, simply notes “[t]he applicant has not provided sufficient evidence of having worked in their nominated occupation or closely related occupation for at least 3 of the 4 years immediately before they apply.  Therefore no points was (sic) awarded.” 

10. The manner in which this conclusion was challenged in the proceedings before the Federal Magistrate was on the basis of an allegation that the delegate failed to consider and evaluate the evidence and claims presented by the appellant in relation to his specific work experience for which he was claiming 10 points.  That claim underlies, as I will indicate, the one existing ground of appeal as also the new ground for which leave to raise is sought.  In dealing with the above ground the Federal Magistrate said:

    “44.In my opinion, this contention fails, because I am not satisfied as to its factual premise:  that there was relevant evidence presented by the applicant which was not considered by the delegate.  As I have explained above, the delegate was under no obligation to give reasons containing a discussion and findings in relation to the evidence and submissions presented, and I can draw no inference from the absence of such discussion.  Counsel was unable to point to any parts of the decision record or correspondence which points to the overlooking of evidence or submissions. 

    45.The applicant’s counsel argued that the overlooking of evidence could be established by the lack of any apparent justification for the rejection of the submission made by the applicant’s agent.  In effect, his submission was that it was not open to the delegate not to award points for work experience, on the evidence before her. 

    46.However, I am not so persuaded.  As I have indicated above, there was an apparent distinction in the applicant’s work history for the preceding four years, in which a substantial part involved employment in an occupation with a name different from that of the nominated skilled occupation of ‘analyst programmer’.  The documents which were presented to the Department maintained this distinction, and suggested that two separate occupations might be recognised in the industry. 

    47.I can find no evidence before me, or the delegate, that the applicant’s ‘senior programmer’ position in India met the ASCO classification 2231-17 so as to allow him to obtain 10 points under item 6A41 of Sch.6A. Nor can I find such evidence showing that his Indian position was a ‘skilled occupation’ as defined in reg.1.03 for the purposes of item 6A42, so as to obtain 5 points.

    48.I am therefore not satisfied that the delegate’s conclusion was not open to her as a matter of law.  Indeed, I consider that it was more probably properly based upon the evidence presented by the applicant.  On the evidence before me, I consider that it was open to the delegate to award no points for the reason that the applicant had ‘not provided sufficient evidence’.”

    The present appeal

11. The ground for which leave is sought has been expressed in the following terms: 

    “(6)     The learned Federal Magistrate failed to hold that the Delegate made jurisdictional error as she failed to take into consideration matters critical to its decision which she was bound to consider. 

    Particulars

    (1)      Whether the occupation ‘Programmer’ is a closely related occupation to the occupation ‘Analyst Programmer’ under item 6A41 of Sch.6A of the Migration Regulations. 

    (2)      The fact that ACS has treated the experience as ‘Programmer’ as equivalent to experience as a ‘Analyst Programmer’.”

12. The other ground is in the following terms: 

    “(7)     The learned Federal Magistrate failed to hold that the Delegate made jurisdictional error as she failed to deal with an important claim impliedly made by of the Appellant”

    I will consider each of these in turn. 

    Ground 6

13. For the purposes of understanding this ground, it is important to note (i) that the nominated skilled occupation was that of Analyst Programmer and that (ii) the relevant 48 month period specified in the schedule ran from January 2000 to January 2004. While, as earlier noted, a distinction was drawn between Programmer and Analyst Programmer by the appellant in his application and curriculum vitae as also in the references provided by his employers, the submission advanced by the Migration Agent to the delegate seemingly treated the two for the purposes of the 48 month period as specifying “the nominated skilled occupation, or a closely related skilled occupation”. Notably, while including the appellant’s work as a Programmer in India within the description “relevant work” for the purposes of Sched 6A, the submission did not indicate explicitly that it was work in “a closely related skilled occupation”. The proper inference to be drawn from the delegate’s decision would seem to be that the delegate was not satisfied that the evidence advanced in respect of the appellant’s work experience in India was experience in such a closely related skilled occupation.

14. The appellant’s case is that the letter of the Australian Computer Society, which indicated that the appellant satisfied the requirements, makes the relevant connection between his Indian work experience and the 4 year requirement of the Schedule.  The particular Computer Society documentation used in assessing skill levels for visa purposes divided skill levels into groupings.  The appellant was found to fall within Group B and to have satisfied the requirements of that group as of June 2002.  One of the requirements was that he had to have had at least “six (6) equivalent years of full-time relevant IT professional experience prior to the date of their application for Pre Application Skills Assessment”. 

15. The appellant would appear to be asserting for present purposes that the type of experience highlighted (almost all of which occurred in India) was to be taken, if not as experience as an Analyst Programmer, then as experience in a closely related skilled occupation.  Given the inference that the delegate did not regard the Indian work experience as being that of an Analyst Programmer, the appellant’s case is that by the terms of the schedule, the delegate was then required to consider whether it was nonetheless experience in a closely related skilled occupation.  It is to this conclusion that the finding of insufficient evidence appears to relate.

16. The respondent Minister’s case, with which I agree, is that relevant experience for Group B purposes, i.e. relevant IT professional experience, is not synonymous with experience in a closely related skilled occupation.  If there was to be a connection made between the two it had to be a matter of judgment based on evidence.  The appellant seeks to overcome the evidentiary requirement by pointing to the skilled occupations which have been gazetted for the purposes of the schedule for Information Technology Officers, one of which is Computing Professionals (not elsewhere classified) (No 2231-79) as being the relevant closely related occupation.  The criteria for this particular classification is set out in a document, the Australian Standard Classification of Occupations (ASCO) – a document of which account had been taken by the delegate as appears from her Decision Record.  The skilled requirements of occupations covered by 2231-79 are hardly illuminating to a lay person:

    “2231-79 Computing Professionals nec

    This occupation group covers Computing Professionals not elsewhere classified. 

    Skill Level:
    The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience.  In some instances relevant experience is required in addition to the formal qualification.

    Occupations in this group include:
    Computer analyst
    Computer Scientist
    Computing Tester
    Database Analyst
    Local Area Network (LAN) Controller”

17. At no stage was it suggested to the delegate that this appellant in fact fell within this particular classification.  In my opinion, it is not to be assumed that a decision maker reading it would, without appropriate evidence, be able to be satisfied that a person did or did not fall within it.  That category was not the nominated skilled occupation relied upon by the appellant.  Neither did the appellant suggest that any category other than Analyst Programmer was relevant for the purposes of the Schedule’s requirement.  In this state of affairs it was, in my view, properly open to the delegate to arrive at the conclusion at which she arrived.  She had taken account of the ASCO document;  she had evidence before her of Indian work experience;  and that evidence was regarded by the Australian Computer Society as relevant IT professional experience for the purposes of its assessment of the appellant.  What the delegate did not have was evidence which established to her satisfaction that that experience was experience in a closely related skilled occupation.  As the Federal Magistrate concluded, the delegate’s decision was open to her as a matter of law.

18. I am in consequence satisfied that this ground of appeal must fail. 

    Ground 7

19. This ground, which the appellant accepts is closely related to Ground 6, must also fail given the conclusion I have arrived at on that ground.  It was, as I have indicated, a perceived insufficiency of evidence in relation to a claim, not a failure to deal with a claim, that led to the delegate not being satisfied that the appellant met the employment experience criteria.

    CONCLUSION

20. I will order that the appeal be dismissed with costs. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J.

Associate:        

Dated:        27 April 2007

Counsel for the Appellant:	Mr Silva
Solicitor for the Appellant:	Silva Solicitors
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	9 March 2007
Date of Judgment:	27 April 2007