Walia v MIBP
[2015] FCCA 1949
•20 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALIA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1949 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – application for Skilled (Provisional) (Class VC) visa – whether applicant’s business management qualifications were ‘closely related’ to the nominated skilled occupation of pastry cook as required by cl.485.213 of Schedule 2 to the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Regulations 1994 (Cth), Sch 2, cl.485.213, Sch 4, cl.4020 |
| Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 Tobon v Minister for Immigration & Anor [2014] FCCA 2208 |
| Applicant: | SONIA WALIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3146 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 1 July 2015 |
| Date of Last Submission: | 1 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Radha Nair |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3146 of 2013
| SONIA WALIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 3 December 2013 and handed down on 4 December 2013 (“the MRT”), refusing the applicant a Skilled (Provisional) (Class VC) visa as a pastry cook.
On 17 December 2009, the applicant lodged her application for a Subclass 485 visa and nominated her profession as “pastry cook”. At the time the applicant made her application for a Subclass 485 visa, she was the holder of a student visa, which was subject to certain conditions, including that she not work more than 20 hours per week.
In her application for a Subclass 485 visa, the applicant listed her educational qualifications, including a Diploma of Business Management that she studied between February 2009 and December 2009.
Relevantly, the MRT found that the applicant’s Diploma of Business Management was not closely related to her nominated profession of pastry cook, resulting in a failure by the applicant to meet the requirements of cl.485.213 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”).
The MRT also found that the applicant did not meet Public Interest Criterion (“PIC”) 4020 as she had provided a bogus document to the Minister and there were no bases in the circumstances to waive the requirements of PIC 4020(1)(a).
It is common ground that in order to succeed, the applicant must demonstrate jurisdictional error in both findings of the MRT. Namely, the MRT’s findings that the applicant’s Diploma of Business Management was not closely related to her nominated occupation of pastry cook; and that she did not meet PIC 4020 as she provided a bogus document to the Minister.
The grounds relied upon by the applicant are as follows:
“The “closely related” criterion
Ground One: The Tribunal denied the applicant procedural fairness. It misconstrued the law. Consequently it asked the wrong question and ignored relevant, independent, authoritative evidence in regard to the requirement that the applicant’s diploma be closely related to the applicant’s skilled occupation. It failed to give proper, genuine and realistic consideration to the applicant’s evidence and submissions.
Particulars:
i. The Tribunal purportedly found that the applicant did not satisfy Cl. 485.213(b) of Schedule 2 to the Migration Regulations - “the closely related criterion” - that required that her Diploma of Business Management is “closely related” to her nominated skilled occupation of pastry cook.
ii. The test in regard to whether a diploma is closely related to a nominated skilled occupation is whether “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”. (Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (26 September 2014) at [24]).
iii. The applicant told the Tribunal about the training.gov.au, the authoritative source of information on training packages, qualifications, accredited courses, units of competency, skill sets and Registered Training Organizations and provided the Tribunal with relevant information from this source.
iv. The Tribunal failed to give proper, genuine and realistic consideration in regard to the merits of the case to this independent, authoritative evidence (the information on training.gov.au), and purportedly relied instead on ANZSCO.
v. ANZSCO is primarily a statistical classification designed to differentiate between occupations by classification based on tasks that distinguished one occupation from another rather than on all the necessary skills for an occupation.
vi. The Tribunal applied the wrong test. Instead of asking whether “the study or training for which the diploma was granted conferred on (the) 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” (of pastry cook), the Tribunal asked whether the diploma was relevant to the limited set of tasks that distinguished the occupation of pastry cook from other occupations.
vii. A failure to give proper, genuine and realistic consideration in regard to the merits of the case to independent, authoritative evidence (the information on training.gov.au) to relevant material is jurisdiction error. It renders meaningless the invitation to a hearing pursuant to s.360 of the Migration Act. It is a denial of procedural fairness.
In regard to Public Interest Criterion 4020:
Ground Two: The Tribunal denied the applicant procedural fairness. It ignored relevant material. It overlooked independent material that showed an investigation had been conducted by the Department of Education, Employment and Workplace Relations (“DEEWR”) into whether the applicant had provided fraudulent documents to Trades Recognition Australia (“TRA”). The applicant’s positive skills assessment was not withdrawn after this investigation.
Particulars:
i. There was, before the Tribunal, “independent” (not provided by the applicant) evidence of an investigation conducted by the Department of Education, Employment and Workplace Relations (“DEEWR”) (see CB 230 to CB 234), by Mr. Neil Stewart who was a Senior Investigator with DEEWR “investigating an allegation of fraudulent work experience letters that involved Sonia Walia” (CB 230 at [4]). Trades Recognition Australia (“TRA”) is a unit within DEEWR (see CB 65).
ii. The applicant confirmed this independent evidence.
iii. The applicant made a clear argument that her skills assessment was not withdrawn after the TRA/DEEWR investigation because it was “clear that after investigation the Investigation Branch came to the conclusion that there was no basis to the allegation (that on 4 May 2009 an application to TRA submitted by her contained false information).
iv. The Tribunal completely overlooked this “independent” evidence. The Tribunal specifically said (CB 353 at [29]) that the “Tribunal has no record of such investigation or what matters had been considered by the TRA”.
Ignoring centrally important evidence is jurisdictional error
Ground Three: The Tribunal denied the applicant procedural fairness. The Tribunal ignored relevant material. It failed to give proper, genuine and realistic consideration to the applicant’s employment log book in regard to the merits of the case.
Particulars:
i. The applicant told the Tribunal that she ceased her work experience employment in March 2009.
ii. The reference letter from the employer said the applicant had ceased her work experience employment on 15 April 2009.
iii. The Tribunal purported to rely on this “discrepancy” between the dates to find that the applicant had not satisfied PIC 4020.
iv. The employer also provided a log book signed by him (in evidence before the Tribunal) showing that the applicant had ceased her employment on 15 March 2009.
v. The Tribunal noted the existence of the log book and the information it contained (CB 351 at [19]), however the Tribunal did not go any further. Notwithstanding the centrality of the date on which the applicant ceased her work experience (whether in March or April 2009) to the Tribunal’s purported determination, the Tribunal did not give any reasons as to why this evidently centrally important evidence was irrelevant or why it did not give it any weight. Ignoring relevant material includes not giving it proper, genuine and realistic consideration in regard to the merits of the case. The Court should infer that the Tribunal ignored this evidence. It is jurisdictional error. It rendered meaningless the invitation to the hearing before the Tribunal. It was a denial of procedural fairness.
Ground Four: The Tribunal denied the applicant procedural fairness. It ignored relevant material in regard to PIC 4020 being a statutory declaration evincing that the applicant had undertaken “voluntary work as a pastry cook at L & A Cuisine Pty Ltd at Burwood NSW from April 2008 till March 2009”. There is no mention whatsoever of this centrally important evidence in the Tribunal’s reasons.
Particulars:
i. The applicant told the Tribunal, in her oral evidence, that her 900 hours of work experience ended in March 2009 (CB 352 at 27).
ii. The reference letter from her employer said that this work experience ended on 15 April 2009.
iii. The evidence before the Tribunal included a statutory declaration from a Mr. Devpal Singh Bhatia declared on 25 July 2012 (CB 214). It said, inter alia, that Mr. Bhatia is “a family friend of Ms. Sonia Walia” and that he has known her “since her arrival in Australia in February 2007”, and that, “as part of her skills assessment she undertook volunteer training as a pastry cook at L & A Cuisine Pty Ltd at Burwood NSW from April 2008 to March 2009”
iv. This statutory declaration is clearly capable of corroborating the applicant’s evidence.
v. There is no reference whatsoever in the Tribunal’s Decision Record to this statutory declaration. It is clear that the Tribunal completely overlooked this evidence. Ignoring centrally important evidence is jurisdictional error.
Ground Five: The Tribunal’s purported determination in regard to PIC 4020 is vitiated by jurisdictional error. It is illogical or irrational. There is an absence of logical connection between the evidence and the inferences and the conclusions drawn. The evidence the Tribunal purported to rely on was not logically probative of the findings it made.
i. The Tribunal purported to come to its determination that the applicant did not complete the 900 hours of work experience she claimed on the basis of the “combination” of three “matters” (CB 353 at [29]).
The first “matter”:
ii. In regard to the first matter the Tribunal relied on two facts. One, that the applicant had worked, substantially, within the 20 hours per week limitation in her paid job at the fruit shop at Ashfield. Working more than 20 hours per week in total (whether at one or more jobs) would have been a breach of the conditions of her student visa. The second fact was the fact that the applicant had said she worked 20 hours per week in her unpaid 900 hours of work experience employment.
iii. The Tribunal purported to infer from these two facts that “while the applicant now claims that she breached the conditions of her student visa because of her family circumstances, in the Tribunal’s view it is more likely that the applicant did make some effort to comply, at least substantially, with the conditions of her student visa and her present suggestion of the breach is merely an attempt to address the delegate’s concerns in relation to PIC 4020”.
iv. In effect, the Tribunal is relying on its conclusion that the applicant tried, at least substantially, not to breach her student visa conditions to find that the applicant committed the arguably more serious offence of providing a bogus document to the Minister. Such an “inference” is not open to the Tribunal. It is not logically connected to the evidence. It is pure conjecture.
The second “matter”:
v. With regard to the second “matter”, the Tribunal relied on a supposed discrepancy as between the date given by the applicant in her oral evidence as to when she ceased her work experience employment and the date stated by her employer in his reference letter. The Tribunal ignored the evidence in the log book provided by the same employer which supported the applicant’s version of the date. The Tribunal completely overlooked the statutory declaration from Mr. Bhatia which declared that the applicant had been employed “to March 2009”.
vi. In view of all the evidence before the Tribunal, the only logical conclusion was that the date given in the reference letter was an inadvertent mistake by the maker of the letter. The supposed discrepancy was mere conjecture. It could not found a determination that the applicant had breached PIC 4020.
The third “matter”:
vii. With regard to the third “matter”, the Tribunal found that “the applicant had somewhat limited knowledge about the job of a pastry cook”, that she “had difficulty providing the recipes or describing how particular items were made and (that) her description was overly broad and somewhat vague”.
viii. In considering this third “matter”, the Tribunal did not however reject the applicant’s evidence that “she (had) worked under supervision and not on her own” and that “several years had passed and she no longer works in the occupation”. At the time of the hearing on 3 December 2013, several years had passed since the time (March 2009) the applicant completed the work experience.
ix. The evidence with regard to this third “matter” cannot found a conclusion that the applicant breached PIC 4020. The Tribunal was clearly of this view. The Tribunal did not attempt to do so solely on this basis of this evidence. It purported, instead, to rely on the combination of the three matters.
x. The evidence in regard to the combination of the three matters purportedly considered by the Tribunal, either taking each matter by itself or as a combination, is not logically probative of the finding that the applicant gave, or caused to be given, a bogus document to the Minister.”
(Errors in original.)
The first respondent conceded that the MRT’s decision may be affected by jurisdictional error in relation to its consideration of PIC 4020 and its subsequent adverse findings.
However, the first respondent contended that the MRT’s finding that the applicant’s Diploma of Business Management was not closely related to her nominated occupation of pastry cook, resulting in a failure to meet cl.485.213 of Schedule 2 to the Regulations, was without error.
Counsel for the applicant, Mr. Nair, submitted that the MRT did no more than consider the qualifications referred to in the list of Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) skills, rather than with the whole of the skills involved in being a pastry cook.
Clause 485.213 of Schedule 2 to the Regulations is as follows:
“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.”
(Emphasis added.)
Counsel for the applicant submitted that the test in regard to whether a diploma is closely related to a nominated skilled occupation is as enunciated by Manousaridis J in Tobon v Minister for Immigration & Anor [2014] FCCA 2208 at [25] as follows:
“25. 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.”
Mr. Nair submitted that the applicant had referred the MRT to a website (“training.gov.au”) which is identified as “a joint initiative of the Australian State and Territory governments.” Mr. Nair submitted that the information on the website is independent authoritative evidence of the skills needed for the occupation of pastry cook.
Mr. Nair submitted that the study or training for the Diploma of Business Management involved a substantial number of related to skills associated with the carrying-on of the occupation of pastry cook in an Australian retail environment. A similar submission was made by the applicant to the MRT where the applicant submitted as follows:
“A comparison of the qualifications stated in the training.gov.au documents (including Units of Competency and the Employability Skills Summary) with the Transcript of Academic Report for the Diploma of Business Management show that the skills and training acquired through the Diploma of Business Management are an integral and necessary part of the employability skills required for the occupation of pastry cook working in a trade, retail baking environment.”
The applicant also referred to employability skills that she would acquire through her Diploma of Business Management which would be of particular relevance to her as a pastry cook because she came from India, which is hierarchical, unlike Australia. The applicant submitted that her co-workers came from very diverse backgrounds and she found that her business management studies included role-playing, which helped her understand and function more effectively in such a diverse environment. The applicant also referred to being required in her job to try various products and that the ability to market these products and general customer-care skills was an integral and necessary part of the training for the occupation of pastry cook working in a retail environment.
Counsel for the applicant, Mr Nair, submitted that the MRT did not give this evidence and supporting submissions proper, genuine and realistic consideration to the merits of the case and ignored this evidence and submissions. In ignoring this evidence and the submissions, counsel for the applicant submitted that the MRT considered the material to be irrelevant when they were not.
However, the MRT acknowledged this evidence and submissions in its decision record as follows:
“13. In her written submission to the Tribunal of 29 November 2013 the applicant referred to the course transcript and submitted that the skills required to work as a pastry cook include skills to operate successfully in the working environment and are not limited to purely 'technical skills'. The applicant referred to government training initiatives. The Tribunal accepts that pastry cooks - as most occupations - may work in a business environment. However, a Diploma of Business Management offers more than the ability to work in a business environment. It is a specific course designed to offer skills in business management, which is different to merely operating in a business environment. The applicant stated that her employment was not only about baking and cooking and she felt she had to know and understand the business environment and various issues relevant to business management.
She claims that this was the best course she was offered. The Tribunal notes, however, that knowledge of the business environment and business management matters do not form part of the nominated occupation. The tasks performed by a pastry cook are set out at ANZSCO 351112 as follows:
Tasks Include:
· checking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations
· checking the quality of raw materials and weighing ingredients
· kneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods
· preparing pastry fillings
· monitoring oven temperatures and product appearance to determine baking times
· coordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products
· glazing buns and pastries, and decorating cakes with cream and icing
· operating machines which roll and mould dough and cut biscuits
· emptying, cleaning and greasing baking trays, tins and other cooking equipment
14. The applicant claims that the occupation of a pastry cook is not only about the technical knowledge but requires more than that. The applicant also argues that the knowledge she gained through that qualification will enable her to work successfully in a diverse background and manage a whole range of roles that come from working within a small trade. However, The Tribunal is of the view that ANZSCO does accurately reflect the requirements of the occupation and, notably, business management does not form any part of that occupation. In the Tribunal's view, and contrary to the applicant's suggestion, there is no relevance of business management qualification to the occupation of a pastry cook.
15. The applicant referred to the tasks she performed as part of her employment at Pasticceria Italia Dolce, stating that she used skills such as marketing and her qualification in business management enabled her to perform a variety of tasks. However, the Tribunal must consider the objective requirements for the occupation and not what the applicant did as part of her role. As Raphael FM stated in Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at 12:
“If the Tribunal was required to look at each individual's specific job description then the requirements for the grant of the visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant's definition based upon his own employment conditions.”
16. Overall, the applicant has not satisfied the Tribunal that the Diploma of Business Management is closely related to the occupation of Pastry Cook. As the Tribunal has found that the applicant relied on this qualification to meet the Australian study requirement, the Tribunal is not satisfied that the applicant meets cl. 485.213(b) and cl. 485.213.”
Simply because the MRT did not accept the applicant’s evidence or her submissions does not demonstrate that the MRT ignored that evidence and her submissions in support. Indeed, the MRT’s decision record demonstrates to the contrary. The MRT referred to the government training initiatives provided by the applicant, including the training.gov.au website, and accepted that pastry cooks may work in a business environment, as do most occupations. I do not accept the submission by the applicant that simply because the MRT referred to “government training initiatives”, as opposed to training.gov.au, it has the effect of meaning that the MRT ignored or misunderstood that submission made on behalf of the applicant.
I accept the submission of the first respondent that the leading authority about whether an applicant’s qualifications could be said to be “closely related” to the applicant’s nominated skilled occupation is as enunciated by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20] per Allsop CJ, Murphy and Pagone JJ (“Dhillon”) as follows:
“The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection[2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection[2014] FCA 848 , [21], [24], [38]) and on the materials its finding was open to the Tribunal.”
I accept the first respondent’s submission that the MRT in the case before this Court did exactly what the Migration Review Tribunal did in Dhillon. The MRT compared the whole of the occupation with the whole of the applicant’s qualification in determining whether the necessary close relationship existed. It was open to the MRT to inform itself about the nature of the skilled occupation of pastry cook by considering the ANZSCO criteria and to compare them with the units studied by the applicant in her Diploma of Business Management.
In the circumstances, the MRT’s findings were open to it on the evidence and material before it and for the reasons it gave. The MRT’s conclusion, that the applicant had not satisfied it that the Diploma of Business Management was closely related to the occupation of pastry cook and that therefore the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations, as required by her visa, was the only outcome for the applicant based on the findings made by the MRT.
As stated above, in circumstances where the applicant would be required to demonstrate jurisdictional error in the MRT’s assessment of whether the applicant’s skilled occupation was closely related to her qualification, it is common ground that the applicant cannot succeed in establishing jurisdictional error in the MRT’s decision such as to entitle her to the relief sought.
In light of the respondent’s concession in relation to the MRT’s consideration of PIC 4020, the parties agreed that it was not necessary for the Court to consider Grounds 2 to 5.
The first respondent seeks a declaration in the following terms:
“The second respondent (Migration Review Tribunal) erred in finding that the applicant breached PIC 4020 because it overlooked material that was before it that disclosed that there was an investigation by the Department of Education, Employment and Workplace Relations, which resulted in an outcome that the applicant’s employment was found to be genuine.”
Where the Court has concluded that it was open to the MRT to find that the applicant had not satisfied the closely related requirement in cl.485.213 of Schedule 2 to the Regulations, a declaration in the terms sought by the first respondent should be made and the proceeding before this Court commenced by way of application, filed on 17 December 2013, should otherwise be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 July 2015
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