Wang v Minister for Immigration - [2008] FMCA 59

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 59

MIGRATION – Review of decision of Minister’s delegate to refuse skilled migrant visa – adequacy of reasons in support of decision – whether Australian degree in marketing “relevant to” nominated skilled occupation of translator – no jurisdictional error found.

Migration Act 1958: ss65; 66; 338; 474, 476
Migration Regulations 1994: Part 136 of Schedule 2

Wang v Minister for Immigration & Citizenship and Lee [2007] FMCA 809
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Re Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212
R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25
Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189
Tax Agents Board of New South Wales v Aqabani (2005) 144 FCR 446
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Thongsuk v Minister for Immigration & Citizenship [2007] FMCA 655
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Urban Transport Authority v Nweister (1992) 28 NSWLR 471
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28

Applicant:

TIAN JIAO WANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

FEE LEE

File number:

ADG 54 of 2007

Judgment of:

Brown FM

Hearing dates:

9 July & 21 August 2007

Date of last submission:

21 August 2007

Delivered at:

Adelaide

Delivered on:

30 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr Churches & Mr Quinn

Solicitors for the Applicant:

Xiao Lawyers

Counsel for the First Respondent:

Mr Roder & Ms Nash

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first named respondent’s costs fixed in the sum of four thousand dollars ($4,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 54 of 2007

TIAN JIAO WANG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

FEE LEE

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant (Ms Wang) complains that the second respondent (Ms Lee or “the Delegate”) has failed to provide her with adequate explanation as to why Ms Wang’s degree of Masters of Marketing obtained from the University of South Australia is not relevant to her application for a skilled migrant visa to enable her to pursue the occupation of translator within Australia.
Ms Wang argues that the baldness of the reasons supplied to her by Ms Lee implies that Ms Lee has either asked herself the wrong questions regarding the relevance of Ms Wang’s marketing degree to her visa application or must necessarily have ignored material relevant to that question.
It is Ms Wang’s case that these omissions on Ms Lee’s part amount to a jurisdictional error which vitiates Ms Lee’s decision made on 31 January 2007.
As a result Ms Wang seeks that the constitutional writs of certiorari and mandamus should issue from the court quashing Ms Lee’s decision and requiring the first respondent (“the Minister”) to redetermine her application according to proper principles of law.
This is not the first time that I have considered Ms Wang’s application. At an earlier stage, Ms Wang sought to administer interrogatories to Ms Lee in an attempt to have her (Ms Lee) elaborate upon why she had reached the conclusion Ms Wang’s degree in marketing was not relevant to her visa application.[1]
[1] See Wang v Minister for Immigration & Citizenship and Lee [2007] FMCA 809
I determined that it was not appropriate to allow Ms Wang to interrogate Ms Lee, an adjudicative decision maker. I was of the view that to allow the interrogatories would have had the consequence of Ms Lee becoming an active participant in the subsequent review proceedings concerning the appropriateness or correctness of her decision and this would not have been either appropriate or in the interest of justice.
Rather I was of the view that Ms Lee’s decision should be allowed to stand for itself, without any further elaboration from her, given that her decision making task, regarding Ms Wang’s application, had been completed.
However Ms Wang continues to assert that Ms Lee’s reasons are inadequate and as such disclose jurisdictional error. In order to support her position Ms Wang wishes to lead evidence, via her solicitor Mr Xiao, that other delegates of the Minister, exercising the same jurisdiction as Ms Lee, have reached different conclusions regarding the relevance of tertiary qualifications to skilled migrant visa applications in circumstances similar or analogous to those of Ms Wang.
The Minister does not accept that Ms Lee’s reasons are in any way inadequate and so can be said to be indicative of any error on her part. The Minister argues that Ms Wang’s assertion that an erroneous question was asked by Ms Lee or relevant material ignored by her is simply that – an assertion, unsupported by anything which appears in Ms Lee’s decision of 31 January 2007. The Minister asserts that though Ms Lee’s decision is concise, it has discharged her statutory obligations to provide reasons.
The Minister also opposes Ms Wang being able to lead evidence regarding extrinsic decision makers before the court at this stage.

Background

Ms Wang is a citizen of the People’s Republic of China. Between September 1994 and July 1998, she completed an undergraduate degree (Bachelor of Engineering) in Industrial Foreign Trade at the Liaoning Institute of Technology in Jinzhou City, China. Later she worked as a lecturer at Bohai University, also in Jinzhou City.
In 2002, her employer sent her to South Australia to complete a certificate in assessment and workplace training provided by the Torrens Valley TAFE College. Subsequently she returned to South Australia, where she completed a Master’s Degree in Marketing at the University of South Australia between January 2004 and December 2005.
On 7 June 2006[2], Ms Wang applied for what is known as a Class BN, subclass 136 Skilled-Independent (Migrant) Visa (“the visa”) pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). Her nominated occupation was as an English into Chinese translator.
[2] This is the date on which the application was sent by Mr Xiao. Ms Wang completed the actual application on 1 May 2006
In support of her application, she provided a number of documents. These included a police record check conducted by the Australian Federal Police; identity documents; proof of her tertiary qualifications; taxation records; evidence of her financial means; proof of the payment of tuition fees in respect of her Australian qualifications; and her accreditation from the National Accreditation Authority for Translators and Interpreters (“NAATI”) as a “one way Translator from the English language into the Chinese language”.
At several points in her application, Ms Wang provides details of her previous employment.[3] These details include that she was employed as a tutor at the Vocational Language Learning Centre in Adelaide: “from 7/2004 to 7/2005 (sic)”.
[3] See Case Book at page 13;19; & 33.
At a later stage (23 June 2006), Ms Wang provided her results pursuant to the International English Language Testing System (IELTS). It is clear that Ms Wang made her application whilst she was residing in China. Her application provides a current residential address within Jinzhou City.

The legislative framework applicable to the visa application

Pursuant to s.65 of the Act, the Minister is authorised to grant or refuse skilled migration visas and in particular to determine whether the criteria relevant to the granting of such visas has or has not been satisfied by the Applicant concerned. The Minister delegated this power to the Delegate. There is no controversy regarding the legality of this delegation.
The Migration Regulations 1994 (“the Regulations”) provide the applicable criteria, which must be met before consideration is given to the granting of a visa to enable a person to pursue a skilled occupation within Australia. The granting of such a visa is predicated on the satisfaction of a certain number of points or benchmarks by the applicant concerned. It is uncontroversial between the parties that the occupation of translator is such a skilled occupation.
In particular, Part 136 of Schedule 2 to the Regulations sets out the relevant application criteria. Applicants are required to satisfy the Minister that they have relevant experience in the nominated skilled occupation in either a period of eighteen or thirty six months preceding the application. Points are awarded depending on the nature of the experience and the extent of such work experience.
However, the work experience criterion does not apply if the Applicant concerned has completed a degree, diploma or trade qualification which “is relevant to the skilled occupation nominated by the Applicant in his or her application”.[4]
[4] See item 136.223A(2)(a)(ii) of the Migration Regulations
This is the controversial criterion in the present case, particularly whether Ms Wang’s Master’s Degree in Marketing is relevant to her application for a skilled visa as a translator and so she need not have attained the required level of work experience within Australia, which is otherwise an essential prerequisite for the granting of such a visa.

The Delegate’s decision

In her decision dated 31 January 2007, the Delegate indicated that she had taken into account a number of documents in reaching her decision. These documents included the following:
·the Migration Regulations;
·the Procedures Advice Manual, which apparently provides guidelines to officers administering the migration legislation;[5]
·the Australian Standard Classification of Occupations;
·and the relevant Country Education Profiles.
[5] This is known by the acronym PAM3
The Delegate’s decision does not specify to what use these various documents were put in reaching her decision.
Thereafter the Delegate set out the specific provisions of Part 136 of Schedule 2 to the Regulations relating to Ms Wang’s application and noted that to qualify for a waiver of the work experience requirement, on the basis of an Australian qualification, Ms Wang need to satisfy item 136.223A.
In refusing the Ms Wang’s visa application, the Delegate recorded as follows in her decision:
“Item 136.223a(2)(A)(ii) requires the degree, diploma or trade qualification to be relevant to the skilled occupation nominated by the Applicant in his or her application. As the degree, Master of Marketing, is not relevant to the nominated skilled occupation of Translator, you have failed to satisfy Item 136.223A(2)(a)(ii) and hence Item 136.223A(2). Therefore you do not qualify for a waiver of the recent work experience requirement.”
No further elucidation was provided as to why the Master of Marketing degree was not relevant to the skilled occupation Ms Wang had nominated as the one she wished to pursue in Australia.
After stipulating that Ms Wang was required to satisfy a sixty point quota to qualify for the visa for which she had nominated and the timeframe required to satisfy this benchmark was twelve months work during the eighteen months preceding the application, the Delegate noted that Ms Wang could be counted to have worked only from 8 December 2004 until July of 2005 within the required eighteen month period, which was less than the twelve months required.
Accordingly the Delegate concluded that Ms Wang had failed to satisfy Items 136.223 A (1) and (2) of Item 136.223A. As such, she refused to grant Ms Wang the visa for which she had applied.
The Delegate’s decision was forward to Ms Wang’s solicitor, Mr Xiao on 31 January 2007 under cover of a letter, which advised Ms Wang that she had no right of review in respect of the decision to refuse her the applicable skilled migration visa.

The current application

There appears to be no controversy between the parties concerned that the Delegate’s decision of 31 January 2007 is not an MRT-reviewable decision [section 338]. I presume that this is because the applicant is “offshore”. Accordingly the decision complained of is not one which can be the subject of a merits review in the Migration Review Tribunal.
The applicant filed her application in this court on 27 February 2007. Given the absence of a right of review in the Migration Review Tribunal, it is an application to which section 476 of the Act applies. As previously indicated she seeks orders quashing the decision of 31 January 2007 and that her application be redetermined.
Pursuant to section 476(1) the Federal Magistrates Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.
However this jurisdiction is qualified by section 474 of the Act which stipulates that a wide variety of decisions made under the Migration Act which are of an administrative nature are “privative clause decisions”.
The decision which the applicant seeks to review is such a “privative clause decision” as defined by section 474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia[6] has held that the provisions of section 474 does not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error or have been made in bad faith.
[6] Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
An Administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[7]
[7] See Craig v South Australia (1995) 184 CLR 163
The hearing before me is not a merits review. Rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the Delegate was within her legal powers. It is not the function to examine the merits of the decision.[8] Accordingly this hearing is not a rehearing of all the available evidence. Rather the hearing is directed towards the legality of the Delegate’s decision.
[8] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Essentially, I only have the authority to remit the matter back for reconsideration unless I am satisfied that the Delegate’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa which she seeks.
The grounds on which the applicant bases her application are as follows:
“1.The Delegate exceeded, and/or constructively failed to exercise, jurisdiction in making the Decision by:
1.1asking the wrong question in relation to whether the Applicant’s Masters degree in marketing was relevant to her nominated occupation of Translator 2529-15 within the meaning of subparagraph 136.223A(2)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”); and/or
1.2 ignoring relevant material, being the Applicant’s Masters degree in marketing, in relation to whether the Applicant satisfied paragraph 136.223A(2) of Schedule 2 to the Regulations.”
It is the Minister’s position that the court has not jurisdiction to review the decision of 31 January 2007 on the basis that it is a privative clause decision.

The hearing of 9 July 2007

Following the decision not to allow the applicant to administer interrogatories to the Delegate, the substantive hearing of Ms Wang’s application was fixed for 9 July 2007.
On 5 July 2007, Mr Xiao filed an affidavit on behalf of his client, Ms Wang. Attached to Mr Xiao’s affidavit were a number of documents which related to a Mr Rajgopalan, an Indian national who had applied, via Mr Xiao’s office, for a skilled-independent overseas student visa. It was Mr Xiao’s position that Mr Rajgopalan’s position was similar to that of Ms Wang.
Mr Rajgopalan applied for his visa on 7 June 2002. He had qualifications from India in physiotherapy. More recently he had obtained a Master’s degree in Orthopaedic and Manual Therapy from the University of South Australia, qualifying on 19 December 2001. He, like Ms Wang, had also obtained accreditation as an interpreter. The occupation for which Mr Rajgopalan sought a skilled migration visa was as an interpreter.
In his affidavit, Mr Xiao indicated that he had sought some information from the Minister’s Department, via email, regarding how the prerequisite point benchmarks would be applied to a theoretical master’s graduate, who wished to apply for a skilled migration visa as a translator.[9] Mr Xiao noted that there had been a recent change to the skilled migration visa system.
[9] See Exhibit JX1 to Mr Xiao’s affidavit
Mr Xiao’s request was sent in August 2003, over one year after Mr Rajgopalan’s application. It subsequently became apparent to me that the request could have had no connection to Mr Rajgopalan’s application.
In any event, a Mr Jeff Grant replied to Mr Xiao’s email request on 11 August 2003, again by email. Mr Grant replied as follows:
“One of the changes introduced on 1 July2003 was a requirement that an applicant’s qualification or qualifications be relevant to the nominated skilled occupation. While policy guidelines have not been finalised, it is our intention that the test of relevance will be applied flexibly. This will mean that applicants will need to demonstrate that they have complementary qualifications that can be used in the nominated occupation.
…
Similarly, translators and interpreters found suitable by NAATI who also have a commerce, accounting, business or IT related qualification would generally be acceptable where the second qualification has a demonstrably international content.” [10]
[10] ibid
In his affidavit, Mr Xiao also made reference to information he had obtained from the Department of Immigration and Citizenship website regarding the granting of skilled independent overseas student visas. In particular he made reference to this statement:
“The completed Australian qualification/s must be relevant to your nominated skilled occupation. This means that you must have qualifications that can be used in your nominated skilled occupation.”[11]
[11] ibid
No doubt this information was provided in an attempt to demonstrate how the Department had previously interpreted the test of relevance between a skilled occupation for which a visa was sought and the tertiary qualifications held by the applicant concerned.
At first blush I was concerned that there may have been some level of inconsistency between the decision reached in respect of Mr Rajgopalan and that reached in respect of Ms Wang, which might be perceived by Ms Wang and others as being unfair. In that the policy of the Department had not been applied in the same way to each of them. On that basis I invited those representing the Minister if the Minister was prepared to reconsider the decision. The invitation was declined.
In his written submissions, Mr Roder, counsel for the Minister said as follows:
“Mr Xiao has been requested to attend for cross examination on his affidavit. In any event his affidavit does not take the argument any further. There is no basis in the material for any contention that the Delegate failed to take policy into account. It is contrary to her expressed statement in her reasons. It has not been demonstrated that the decision was contrary to policy. No attempt has been made to put the PAM3 referred to by the Delegate before the Court. In any event, whilst the Delegate may be required to take policy into account, there is no evidence that she did not do so.”[12]
[12] Counsel for the First Respondent’s written submissions filed 9 July 2007 at paragraph 15

On this basis I elected to proceed with the cross examination of Mr Xiao before proceeding to hear the submissions of each of the parties.
Mr Xiao did not turn out to be a helpful witness in turns of shedding any light on the assertion that policy had been applied inconsistently by departmental delegates.
In cross examination, it became apparent that Mr Rajgopalan had made his visa application on 28 May 2002 under cover of a letter from Mr Xiao dated 7 June 2002. However Mr Xiao conceded that he had sought information from the Department and received the response from Mr Grant in August of the following year. Accordingly it could not be said that Mr Rajgopalan’s application had any connection to the advice provided by Mr Grant.
Later Mr Xiao conceded that a new regime regarding skilled occupation visa had come into force in July of 2003 and accordingly Mr Rajgopalan’s application pre-dated that new regime.
After conceding his error, in re-examination Mr Xiao indicated that rather than Mr Rajgopalan’s application, he thought that he had relied on Mr Grant’s advice in making a visa application for a Ms Sun Yen, a student from Sydney.
After Mr Xiao gave his evidence, the hearing proceeded on 9 July 2007 with judgement being reserved. I will return to the respective submissions of each of the parties shortly. However after the submissions were completed and before judgement was delivered, something else significant occurred.

The applicant’s application to re-open her case

On 11 July 2007, Mr Xiao filed a further affidavit of himself. It was not filed in conjunction with any particular application. In his affidavit Mr Xiao deposed that he had made a skilled visa application on behalf of one Bo Li in December of 2003 and in making that application had relied on the advice of Mr Grant to which reference has earlier been made.
Mr Xiao deposed that Mr Li’s situation was similar to that of Ms Wang and he had inadvertently confused Mr Li with Mr Rajgopalan due to the fact that he (Mr Xiao) had been unwell for much of 2007.
Mr Xiao’s affidavit disclosed that Mr Li, a citizen of the People’s Republic of China, had completed a Master of Business Administration degree at the University Adelaide. He had earlier Chinese tertiary qualifications in teaching.
On 22 October 2003, he had also qualified as a professional translator. He sought a skilled independent overseas student visa (as opposed to the offshore visa sought by Ms Wang). His nominated occupation was also as a translator. His application was made under cover of a letter from Mr Xiao’s office dated 17 December 2003.
In his affidavit, Mr Xiao did not provide details as to whether Mr Li’s application was ultimately successful. Rather he supplied a letter from the Department dated 8 January 2004 which indicated that Mr Li had been granted a Bridging Visa A whilst his substantive application was determined.
I determined that the affidavit constituted an application by Ms Wang to reopen her case. Accordingly I determined that the matter should be re-listed before me on 21 August 2007.
Mr Quinn, who appeared for the applicant on this occasion argued that Mr Xiao’s affidavit should be admitted so that I had a full and proper understanding of the applicant’s case, particularly that a different decision had purportedly been made within the same legislative framework. The explanation proffered for the failure to provide the evidence at the earlier stage was the incapacity of Mr Xiao.
Ms Nash, who appeared for the respondent argued that the affidavit should not be admitted because it was not relevant.
I am not persuaded that the cases of Mr Li and the applicant are strictly analogous. I reach this conclusion because Mr Li made his application onshore and Ms Wang hers offshore. In addition, I do not know what was the final result of Mr Li’s application.
The general rule regarding the reopening of a case following its completion and pending the delivery of judgement is whether the interest of justice are better served by either allowing or rejecting the application.[13]
[13] See Urban Transport Authority v Nweister (1992) 28 NSWLR 471 at 478
Ordinarily the hearing is the time and place for the presentation of argument and it is only in exceptional circumstances that a court will give leave to a party to supplement submissions at a later stage. A party has no legal right to continue to put submission to the court after a hearing has concluded.[14]
[14] See Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at 29
In exercising the discretion I have to allow the applicant to reopen her case, I believe I must bear in mind that I am not conducting a rehearing of her visa application. As such I am not entitled to consider other evidence than that which was before the primary decision maker. Rather I am required to scrutinise the record to ascertain whether or not there has been a failure of jurisdiction resulting in error.
Bearing this in mind, I do not consider that it would be in the interests of justice to allow the applicant to reopen her case and this aspect of her application will be dismissed.

The applicant’s submissions

The applicant relies on written submissions prepared by Mr Ower supplemented by oral submissions made by Mr Churches.
The applicant’s complaint is fundamentally about the adequacy of the reasons supplied by the Delegate in respect of the decision in question, which was of great importance to her.
Mr Churches describes the regulation in question as being “serpentine” in its application, centring as it does on the meaning of the word “relevant”. His criticism of the Delegate is that she has simplistically and without elaboration determined that Ms Wang’s qualification in marketing is not relevant to the occupation for which she seeks the visa in question.
In so doing the Delegate has kept her chain of reasoning concealed in her mind. Accordingly, Mr Churches argues that the Delegate’s failure to explain precisely why the qualification is not relevant to the question at hand effectively renders the decision unreviewable, if the court does not challenge the adequacy (or lack thereof) of her reasoning behind the blunt answer of negative in respect of the question the regulation requires her to pose for herself – was the degree relevant. This, the applicant contends, amounts to a jurisdictional error.
Pursuant to section 66 of the Act, if a Delegate of the Minister decides to refuse a visa and the basis of the refusal was that the applicant failed to satisfy a criterion for the visa in question, the Delegate concerned must provide written reasons as to why the criterion had not been satisfied.[15]
[15] Migration Act section 66(2)(c)
In addition, pursuant to section 25D of the Acts Interpretation Act 1901(Cth), where an Act requires any person making a decision to give written reasons for it, those reasons are required to set out the findings on any material questions of fact and refer to the evidence or any other material on which the finding in question was based.
In order to succeed in her application, the applicant concedes that the court must make two findings. Firstly a finding of fact regarding the test of relevance as applied by the Delegate. Secondly a finding of law that this test was incorrect.[16]
[16] See Applicant’s written submissions filed 5 July 2007 at paragraph 7
Obviously the Delegate has not provided any specific details at all of the test applied by her. However the applicant contends that it is both possible and permissible for this court to infer that she has in fact applied the wrong test from all the surrounding circumstances.
In this regard reliance is placed on the statement made by Gibbs CJ in Public Service Board (NSW) v Osmond, that “if the decision-maker does not give any reasons for his decision, the court may be able to infer that he had no good reason.”[17] Reference was again made to this inference by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Palme.[18]
[17] Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-664
[18] Re Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212 at 224
In the present case, the applicant contends that the Delegate has given no explanation as to why her qualification in marketing cannot be relevant to the occupation of translator. She contends that there has been no attempt to explain why there is no connection between the two. It not having been said, for example, that there is no relevance between the two because the discipline of marketing has no component of linguistic skills in it.
Mr Churches contends that relevance is not a simplistic concept but one which necessarily requires elaboration. Some connection is required in assessing the relevance between the occupation for a which a visa is applied and the qualification on which the application is based.
In Mr Churches’ submission the prerequisite “connector” required is supplied by the policy enunciated by Mr Grant in his email of 11 August 2003 – the test of relevance is to be applied “flexibly”. Mr Churches argues that in the absence of any explanation, it can be inferred that the test in the present case was not applied flexibly and this failure amounts to a jurisdictional error.
In support of this contention the applicant relies on the Oxford Dictionary definition of the word “relevance” which she contends support a construction of the relevant sub-regulation as requiring some connection between the qualification in question and the skilled occupation for which a visa is sought.[19]
[19] See applicant’s written submissions at paragraph 18
It is also submitted on behalf of the applicant that the court may consider the material before the Delegate to ascertain whether or not she has applied the correct test. An inadequacy of material may support the inference that the decision maker concerned has either applied the wrong test or has not satisfied him or herself of the requisite matters.[20]
[20] The applicant made reference to R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 and Palme (supra) at 223
The applicant contends that the baldness of the reasons provided by the Delegate are an indication that she has misconceived the function committed to her and has not properly considered the material before her, as “there is no reason on the face of any of the material [before the delegate for her] to conclude that the [applicant’s degree in marketing] could not be relevant to the occupation of Translator.”[21]
[21] See applicant’s written submissions at paragraph 14
Mr Churches contends that it is clear from Mr Grant’s email to Mr Xiao that the Department’s policy is that the test of relevance of tertiary qualifications will be applied flexibly to visa applications. As previously indicated, there is no indication in the Delegate’s reasons that this criterion was an element of the Delegate’s reasoning.
In this context the applicant makes references to what was said in Rashid v Minister for Immigration & Citizenship:[22]
“On judicial review the court may receive evidence and enquire into what were in fact the reason for the impugned administrative decision. This is so whether or not the decision-maker is legally obliged to given reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error). (Citations omitted)
[22] Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 at paragraph 16
It is the applicant’s contention that it is an unavoidable inference that the Delegate did not apply the test of relevance flexibly, as required by the policy as enunciated by Mr Grant. Policy is relevant in decision making as it renders decisions made by different persons consistent with one another, which is of itself an ideal of justice. For that reason, a decision maker is not free to ignore policy. Common concepts of justice require that like cases will be generally treated in the same way. Accordingly formal policy may be a relevant factor to be regarded in considering the lawfulness or otherwise of a decision.[23]
[23] In this regard the applicant relied upon Minister for Immigration and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206-207 and Tax Agents Board of New South Wales v Aqabani (2005) 144 FCR 446 at 452-453
The applicant, I think, concedes that it is difficult for her to establish that the email sent by Mr Grant constitutes a formal guideline which had been formulated at the relevant time by the Department to guide the exercise of the power conferred upon the Delegate in this case. However it is argued that even if the policy was an informal one, it still forms a factor from which the court may draw an inference that the Delegate has applied the wrong test.
Indeed, it is Mr Churches’ submission that the applicant is entitled to have a legitimate expectation that the Delegate will take heed of what is said by a senior departmental officer in respect of a decision making power which has been delegated to her. If, by necessary implication, the Delegate has ignored what Mr Grant has stated, he contends this failure amounts to a breach of the principles of natural justice, which this court is required to rectify.
As previously indicated, the applicant’s primary complaint concerns the paucity of reasoning supplied by the Delegate in her decision. In this regard, Mr Churches draws an analogy to the obligations of the Refugee Review Tribunal and its responsibility under section 430 of the Act to provide reasons for its decisions and what the Delegate did in the present case.
In this regard he points to what was said in Minister for Immigration & Multicultural Affairs v Yusuf regarding section 430. It was said in the case that the section did not have to imply an obligation to make finding by the Tribunal for it to have utility.
Rather, it obliged the Tribunal to set out its findings on the questions of fact it considered material to its decision so that, if the person concerned with that decision was subsequently dissatisfied with it, he or she could know what reasons the Tribunal had for reaching the decision which it did. This in turn was of significance to any court which was subsequently requested to review that decision.
Accordingly, if the Tribunal concerned failed to refer to a matter in its statement pursuant to section 430, a subsequent reviewing court was entitled to infer that such a matter was not considered by the Tribunal concerned.[24]
[24] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346
Clearly, from the applicant’s point of view, these considerations are relevant to the issue of whether the Delegate considered the right question of relevance in regards to the exercise of power she had under the regulation in question and whether a jurisdictional error occurred in the sense set out in Craig v South Australia.
In summary, the applicant contends that the only appropriate inference for this court to draw, from the material available to it, is that the Delegate has applied the wrong test to the meaning of “relevance” in regulation 136.223A and accordingly she did not have authority to make the decision which she did. This must follow given the paucity of reasons provided to the applicant.

The respondent’s submissions

It is the respondent’s submission that the Delegate has complied with her obligations under section 66. She has specifically stated that she took into account the PAM3 and all the material which the applicant otherwise advanced in her application for the visa concerned. This was all that was required of her. Accordingly it cannot be inferred that she has failed to consider any relevant matter. As such there is no manifest error on the face of her decision.
It is the respondent’s contention that the question the Delegate was required to pose herself was a simple one: was the degree in marketing relevant to Ms Wang’s nominated occupation of translator? The question has either an affirmative or negative answer, which requires no further elaboration and does not require the Delegate to pose herself any intermediary questions. Accordingly it cannot be inferred that she has asked herself the wrong question and that some form of error has ensued.
It is apparent that the Delegate did consider the relevance of Ms Wang’s marketing degree in the sense of the ordinary meaning of that word. Whether the degree was relevant is a subjective decision available to the Delegate. The question of relevance is for the Delegate alone, after she has considered all the relevant material before her. She has made reference in her decision to that material, including Departmental policy. It cannot therefore be said that she has not taken into account policy.
Mr Roder submits that the obligation on the Delegate pursuant to section 66 is not as extensive as that on the Refugee Review Tribunal pursuant to section 430. Further, he contend that whether the reasons concerned are adequate is to be judged subjectively rather than objectively from the stance of any court subsequently reviewing the decision concerned.[25]
[25] See Minister for Immigration & Multicultural Affairs v Yusuf (supra) at 331
On this basis, Mr Roder contends that the decision of the Delegate is perfectly adequate and requiring of no further elaboration. It being clearly open to her to conclude that the applicant’s degree in marketing was not relevant to her proposed occupation of translator. As such there is no lacuna in the Delegate’s reasoning to which any inference that she has applied the wrong test or failed to consider the relevant matters can attach.
Even if it is concluded that the Delegate’s reasoning is defective (which is not conceded by Mr Roder), he contends that the applicant’s only remedy is to seek compliance with the provisions of section 66 of the Act and seek reasons of the type stipulated in that section and in the event such reasons are not supplied instituted proceedings in the nature of mandamus to compel the production of them.
Mr Roder submits that the issue of whether something is relevant to some other thing is a matter of subjective judgement. He contends that “relevant” should be given its common meaning of “bearing upon or connected with the matter at hand; pertinent;” in the court’s determination of whether there is or is not some failure of the discretion relating to relevance disclosed in the Delegate’s decision in this case in assessing whether the degree in question was relevant to the visa applied for.
In this regard, Mr Roder takes me to what was said by Smith FM in Thongsuk v Minister for Immigration & Citizenship [26] concerning the use of the phrase “relevant to” in the context of a similar visa application and the exercise of the Minister’s discretion in regards to it.
[26] Thongsuk v Minister for Immigration & Citizenship [2007] FMCA 655 at paragraph 24
His honour said as follows:
“…I also consider that the use of “relevant to” suggests the need for the Minister to be satisfied as to a positive “pertinence” and particular “usefulness” of the qualifications to the nominated occupation, which is more than that of providing generally relevant education or skills or personal background…I consider that it is looking for a relationship between that study and the nominated occupation, in which the visa applicant can be assumed to have acquired skills, learning or qualifications which have a connection to the occupation, which is more than that of generally benefiting the person in his future employment in the nominated occupation.”

When this definition is considered, it is submitted that it cannot be concluded that there is any discernable error in the Delegate’s reasoning or that she has failed to properly exercise her jurisdiction or has exceeded it.

Conclusions

Pursuant to section 66 the obligation on the Delegate is to specify which particular visa criterion has not been satisfied and provided written reasons as to why that is so.
In this case the visa criterion related to the relevance of a tertiary qualification to the occupation for which a visa was sought and whether there was a sufficient level of pertinence between the two to justify the waiver of the recent work experience requirement.
It needs no great analysis to reach the conclusion that the skills required for marketing and those required for translating are not synonymous. I do not think that the Delegate was required to express this finding, which can be regarded as axiomatic.
Thereafter was she required to express the degree of pertinence between the two? The regulation itself expressed no such requirement. There are no possible intermediary outcomes available dependent upon the degree of relevance of the qualification in question.
The question which the Delegate must pose herself can only be expressed in the alternative – the regulation is either relevant to the occupation for which the visa is sought or it is not. I do not think the adequacy of the Delegate’s reasons can be criticised for her failure to express the degree of relevance. In her judgement the applicant’s degree either was or was not relevant to the nominated visa occupation of translator. She concluded that it was not.
From the material available to the Delegate, I do not think that it can be said that the conclusion she reached was irrational, illogical or was based upon findings or inferences of fact not supported by logical grounds.[27]
[27] See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67
Given the necessary lack of congruity in the skills required for marketing as opposed to those required for translating (other than both require linguistic skills in at least one language) I do not think it can be said that the Delegate’s conclusion, bald as it is, that Ms Wang’s qualification in marketing is not relevant to her nominated visa occupation of translator is lacking in rationality or cannot be supported by the material which was available to her. In short, I conclude that the conclusion the Delegate reached was clearly open to her and as such is untainted by jurisdictional error.
In addition, I do not think that it can be concluded that the Delegate has taken into account any extraneous or irrelevant considerations in reaching this conclusion. The Delegate has specified in her reasons the materials which she took into account in reaching her decision. It is not open to this court to look behind those materials and conclude that they have been considered inappropriately in some way.
For all these reasons, it must follow that the application should be dismissed. The respondent has sought an order for costs and in my view such an order is appropriate. I assess the respondent’s costs in the sum of $4,000.00. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 30 January 2008