Yi v Minister for Immigration
[2006] FMCA 1055
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1055 |
| MIGRATION – Application to review decision of the Migration Review Tribunal – no jurisdictional error. |
| Migration Act 1958, s.359A |
| Applicants: | YU KUN YI, SHEN JU CAO, LI YI, SEAN YI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2997 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 June 2006 |
| Date of Last Submission: | 4 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2997 of 2005
| YU KUN YI, SHEN JU CAO, LI YI & SEAN YI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a review of a decision of the Migration Review Tribunal (the Tribunal) made on 15 August 2005 affirming the decision that the applicants (husband, wife and two children) were not entitled to the grant of Employer Nomination (Residence) (Class BW) visas. The applicant husband, Yu Kun Yi, is the primary applicant. For convenience he is referred to hereafter as the applicant. The applicant, a citizen of the Peoples Republic of China, first arrived in Australia in 1997. He has held several visas since that time and has travelled to and from Australia several times, most recently arriving on 2 May 2004.
Relevantly, on 19 April 2002 the applicant applied for an employer nomination (Residence) (Class BW) visa. In connection with that application the applicant relied on a nomination by his employer, Premier Industrial Coaters Pty Limited for a position described in the employer nomination as “Supervisor, Industrial Spray Painter-Powder & Oil Coating” (said to come within the Australian Standard Classification of Occupations (ASCO) code “Supervisor, Painters and Decorators (ASCO code: 4421 – 01)”. Information provided to the Department indicated that the nominator was a specialist electrostatic powder coating and industrial spray painting company.
The applicant sought to meet the criteria in Subclass 856 of Class BW. The criteria to be satisfied at the time of application included clause 856.213 which was as follows:
“856.213 The applicant:
(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and
(b) is a highly skilled person, within the meaning of Regulation 5.19, in relation to that appointment; and
(c) unless the appointment is exceptional:
(i) has not turned 45; and
(ii) has vocational English.
The meaning of highly skilled in Clause 856.213(b) is governed by Regulation 5.19(3) which provides:
(3) A person is a highly skilled person in relation to a nominated position if, in respect of work of the kind to be performed in that position:
(a) the person has completed, over a period of at least 3 years, formal training or equivalent experience; and
(b) unless the approved appointment is exceptional, the person has been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least 3 years:
(i) after completing the training or experience referred to in paragraph (a); and
(ii) before making the application; and
(c) if it is mandatory for work of that kind in Australia that a person be the holder of a qualification of a kind specified in subregulation 3(a), the Minister is satisfied is, or is eligible to become, the holder of that qualification.
On 22 June 2002 the Department advised the sponsor Premier Industrial Coates Pty Ltd (which proposed to employ Mr Yi) that the nomination for the position of “Supervisor – Spray Printer (sic) and Coating (ASCO code: 4421 – 01)” had been approved (as required by Clause 856.221) and also that the position had been approved as requiring three years formal qualification/equivalent experience plus three years relevant post-qualification experience.
A delegate of the first respondent subsequently requested the applicant to have his qualifications and work experience assessed by Trades Recognition Australia (TRA) (the relevant assessing authority for this occupation) to determine his level of skills. The applicant applied to TRA for an assessment but on 13 August 2003 TRA determined that on the information submitted with his application the applicant did not possess suitable skills for any of the occupations under the “skilled occupation list” assessed by TRA for migration purposes. The TRA reasons for decision sheet indicated that the classification sought was industrial spray painter and that recognition was sought on the basis of the applicant’s work experience, but that he had failed to substantiate the required periods of acceptable trade training and employment at trade level or the level and complexity of practical skills that would qualify him for recognition in any work classification assessed by TRA for the purposes of migration to Australia.
In the face of this assessment, the delegate of the first respondent concluded that the applicant was not a qualified “Supervisor Spray Printer (sic) and Coating (ASCO code: 4421 – 01)” and therefore did not meet the requirements of the position and the definition of “highly skilled” person under the Migration Regulations and that Regulation 856.213(b) was not met.
The applicant sought review by application lodged with the Migration Review Tribunal on 30 September 2003. On 16 January 2004 the applicant submitted the result of a review of the original decision made by TRA which classified him for the purpose of migration to Australia as a “Vehicle Painter [4214 – 11]”.
On 3 December 2004 the Tribunal wrote to the applicant under s.359A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on the fact that the delegate had approved the employer nomination by Premier Industrial Coaters Pty Ltd to have the nominated position of “Supervisor Spray Printer Coating (ASCO code: 4421 – 01)” as an approved appointment, but the TRA skills assessment had classified the applicant as a “Vehicle Painter” (ASCO code: 4214 – 11) which was a less skilled occupation than the approved nominated position. The letter suggested that the information was relevant to the review because the skills assessment provided by TRA indicated that the applicant may not be a “highly skilled person” in relation to a nominated appointment within subclause 856.213(b) of the criteria in Part 856 of Schedule 2 to the Migration Regulations.
The applicant’s migration agent sought and was granted an extension of time to respond. On 31 January 2005 he submitted information from the nominator and a claimed expert in the coating industry of Australia suggesting that “Vehicle Painter (ASCO code: 4214 – 11)” was “very similar” to “Supervisor – Spray Painter Coating (ASCO code: 4421 – 01)” in terms of skill level and task performance and that someone who had a “Vehicle Painter” qualification was more than qualified to undertake industrial spray painting of machinery. Letters of support referring to the applicant’s work as an industrial spray painter were provided.
The applicant attended a Tribunal hearing on 27 April 2005. After the hearing the Tribunal received further information in support of the applicant’s claims that he was the supervisor of the spray painting section of the nominator’s business.
Tribunal decision
In its reasons for decision the Tribunal referred to the fact that the nominated position had been approved, the need for the applicant to be a highly skilled person in relation to that appointment and to the fact that the latest trade classification from TRA assessed the applicant as a vehicle painter, from which it appeared that he did not meet the criteria in subclause 856.213(b) as he had not been classified as having the required skill level in relation to the approved nominated position.
The Tribunal outlined the evidence given at the hearing by the applicant and by a director of the nominator. The only record of what occurred in the Tribunal hearing before the Court is the Tribunal reasons for decision. The Tribunal recorded that it commenced by noting that the applicant had been classified as a vehicle painter by TRA and that the position for which he sought employment was for a different classification described as “Supervisor Spray Painter Cook (sic) Coating” which was described by the Tribunal as a higher level of classification. The Tribunal explained that its duty was to investigate whether the applicant was able to do the higher level job. The Tribunal set out the applicant’s evidence about what he did in his job and whether he was a supervisor or a leading hand (as had been stated in a letter of 20 March 2003 from the nominator.) It also explained to the director of the nominating company that the issue was that the business had an approval to employ a person classified as “Supervisor Spray Painter Coating” which was an ASCO rating and that the rating of the applicant by TRA was not at that level. The Tribunal stated that it explained that it needed to be satisfied that Mr Yi had the necessary “practical supervisory and administrative skills to fill the role as required by ASCO”. It gave the applicant the opportunity to provide further information.
The Tribunal reasons for decision record, however, that at the conclusion of the hearing the Tribunal pointed out “that it was necessary to show that the primary applicant is a ‘Supervisor Vehicle Spray Painter Coating’ and that it read out the requirements of ASCO position 4214 – 01 Supervisor, Vehicle Painter”. In the absence of a transcript of the hearing the context in which the Tribunal read out the requirements of ASCO position 4214-01 Supervisor, Vehicle Painter is not clear. Nor is it clear why the Tribunal added the word ‘vehicle’ to the job description for the approved nominated position.
The Tribunal noted in its reasons for decision that included in documents provided to it after the hearing was a letter of reference from the nominator which purported to set out the skills and employment history of Mr Yi under headings which conformed with the ASCO job description and that on a “prima facie” reading the information in that document would appear to indicate that Mr Yi had the skills necessary to meet the ASCO classification. However the Tribunal found that the claims in the reference letter were not in accordance with the evidence that had been given by Mr Yi and the director of the nominating company at the hearing. It placed little weight on the claims made after the hearing that were not supported by the prior evidence. It also noted the absence of evidence from China as to the applicant’s training and of independent objective evidence. It stated that:
“ASCO requires that the primary applicant to “Supervise and Coordinate the activities of Vehicle Painters”. On the evidence the primary applicant would appear to be the only Vehicle Painter in the business and it is not logical that he supervise himself.”
On the basis of the evidence at the hearing the Tribunal did not accept that the applicant had a supervisory role in the nominator’s business. It found that the applicant’s role in the business was not such that his skills met the requirements for the classification “Supervisor Vehicle Painter Coating” noting that the TRA assessment was that of a Vehicle Painter and that a person with that classification had to be supervised.
The Tribunal nonetheless considered whether the applicant had demonstrated that he had the skills necessary to perform the activity, noting that while it was not bound by the decisions of TRA it had to consider the fact that the TRA had made an assessment of the applicant’s ability to perform the activity and had classified him as a Vehicle Painter.
The Tribunal found that it was entitled to consider the applicant’s experience in assessment of whether he was a highly skilled person within the meaning of Regulation 5.19(3). It continued:
Whilst policy states that where possible, the Australian Standard Classification of Occupations (ASCO) should be referred to as the principal source of information on the normal duties and skill requirements of occupations in Australia, the Tribunal is not bound by policy. The Tribunal has assessed the skills criteria using the details of the primary applicant’s qualifications and work history, including the classification by TRA and the evidence given at the hearing and in the post-hearing submission.
The Tribunal finds that in this case it is appropriate to follow policy and require the primary applicant to establish his formal qualifications and have at least three years relevant experience. Accordingly, the Tribunal is unable to justify reaching a finding contrary to the findings of TRA as to the skills level of the primary applicant.
On this basis the Tribunal found that the primary visa applicant did not meet the requirements of the position and the definition of “highly skilled” person under the Regulations and did not meet subclause 856.213(b) of Schedule 2 to the Migration Regulations. It found that it had no alternative but to affirm the delegate’s decision.
This application
The applicant sought review by application filed in this Court on
7 September 2005. He relies on an amended application filed on
22 November 2005.
The first ground relied upon is that the respondent denied the applicant natural justice “by not considering the context in which the applicant have in fact met the criterion in subclause 856.213(b) – a highly skilled person, within the meaning of Regulation 5.19 in relation to the appointment referred to in subclause 856.213(a).” While expressed in terms of natural justice this is in substance a contention that, contrary to the Tribunal’s conclusion the applicant did meet criterion 856.213(b). It seeks merits review which is not available in this Court.
The remaining grounds in the amended application set out reasons why it is contended that the Tribunal was wrong. Some of these “grounds” take issue with the Tribunal’s understanding of matters of fact, for example suggesting that a vehicle painter is a highly qualified skill and in demand in Australia, pointing out that it is in the same group of tradespersons as a Supervisor Spray Painter and Coating under the ASCO code, suggesting that the job performance is almost the same, the technique is at the same level and that Vehicle Painter is in the category of the Department’s current migration occupations in demand. It is also contended that the Tribunal did not understand the actual situation in the industry which led it to misunderstand the technical titles in the same technical group which meant that a person who had obtained the qualification of vehicle painter was qualified to perform the job of industrial painter. These contentions go to the merits of the Tribunal decision and do not establish jurisdictional error.
More generally it is contended that the Tribunal’s “insufficient understanding of the actual situation and technical environment had resulted in it inaccurately applying law in the assessment”. The manner in which this is said to have occurred is not clarified by the amended application and no jurisdictional error is established in the manner contended for in this ground.
The contention that the respondent’s “negligence” had led to the applicant suffering great financial loss and a “sudden negative situational change in the family” does not establish a jurisdictional error. There is nothing in the material before the Court to support this contention.
In the hearing before the Court the applicant had nothing to add to his amended application other than to ask the Court to make a decision according to his circumstances and qualifications. Insofar as he seeks merits review, merits review is not available in this Court.
However counsel for the respondent addressed the issue of whether jurisdictional error was apparent, in particular arising from discrepancies between descriptions of the position for which the applicant had nominated and the Tribunal’s suggestion during the hearing and its statement in its reasons for decision that it was necessary to consider whether the applicant met the skills requirements for the classification “Supervisor Vehicle Spray Painter Coating” or “Supervisor Vehicle Painter Coating” and whether this was a reference to ASCO position 4214 – 01 rather than the nominated position (which was described as Supervisor-Spray Painter Coating but referred to the ASCO code: 4421 – 01 Supervisor-Painters and Decorators.)
The class of visa in issue was Class BW, an Employer Nomination (Residence) visa. At the relevant time that class contained two subclasses. The only subclass in respect of which the applicant advanced claims was subclass 856 (Employer Nomination Scheme).
In issue was clause 856.213 and regulation 5.19(3) which are set out above. The Tribunal was satisfied that the applicant met clause 856.213(a) as a result of the nomination by Premier. It concluded however that he did not satisfy clause 856.213(b) which required him to be a highly skilled person within the meaning of Regulation 5.19 in relation to the nominated appointment. On that basis it did not need to reach a conclusion as to whether the applicant met clause 856.213(c).
The nominated appointment was the position of “Supervisor, Industrial Spray Painter-Power & Oil Coating” that was said to correspond with the ASCO classification “Supervisor, Painters and Decoration” (ASCO 4421-01). The approval referred to a position of “Supervisor-Spray Printer (sic) and Coating, ASCO Code 4421-01”. The reference to “Printer” appears to be a typographical error.
It is apparent from the Departmental specification of Skilled Occupations dated 26 March 2002 that at the relevant time (June 2002) the ASCO Classifications included not only Supervisor, Painters and Decorators (4421-01) but also Supervisor, Vehicle Painters (4214-01) as well as Painter and Decorator (4213-11) and Vehicle Painter (4215-11). The Tribunal had before it those parts of the second edition of ASCO which set out the description, skill level and tasks for each of these classifications (as is apparent from the Court Book and the affidavit of Angela Nanson on 27 June 2006).
Relevantly, the information in ASCO, 2nd Edition for the classification 4421-01 (referred to in the approval of the nominated position of Supervisor-Spray Painter and Coating) describes that position as someone who “supervises and co-ordinates the activities of painters and decorators” (who in turn are described under classification 4421 – 11), gives a skill level consisting of an entry requirement being an AQF Certificate III or higher qualification and at least three years relevant experience and notes that registration or licensing may be required. It describes the tasks as including:
· determines work requirements and allocates duties to Painters and Decorators
· confers with managers to coordinate activities with other organisational units
· maintains attendance records and rosters
· explains and enforces safety regulations
· oversees the work of the unit and suggests improvements and changes
· confers with workers to resolve grievances
· may perform the task of a Painter and Decorator
The Tribunal indicated, both in the s.359A letter and at the start of the hearing, that the position for which the applicant sought employment was as a “Supervisor Spray Painter Coating” which was (correctly) said to be at a higher level of classification from that of Vehicle Painter which was the classification the applicant had been given by TRA. As the Tribunal recorded that it indicated in the hearing, the nomination was for a “Supervisor-Spray Painting Coating” while the rating by TRA was “not at that level”.
ASCO, 2nd Edition describes a “Vehicle Painter” (Code 4214-11) as someone who “prepares surfaces of vehicles, matches and mixes colours and applies paints, with an entry requirement of an AQF Certificate III or higher. It lists the tasks carried out by a vehicle painter. It is notable that the classification 4214-01 Supervisor, Vehicle Painters is in identical terms to 4421-01 except that the words “Vehicle Painters” and a “a Vehicle Painter” appear instead of “Painters and Decorators” and “a Painter and Decorator”.
It is the case that during the hearing the Tribunal referred to the need to show that the applicant was a Supervisor Vehicle Spray Painter Coating and read out the requirements of ASCO position 4214-01. The Tribunal concluded that the applicant’s “role in the business is not such that his skills meet the requirements for the classification Supervisor Vehicle Painter Coating. His TRA assessment is that of Vehicle Painter and a person with that classification requires to be supervised”.
The material before the Court does not indicate why the Tribunal compared the applicant’s skills and experience with the position Supervisor-Vehicle Painter rather than the approved nominated position which was said to accord with the ASCO code for of Supervisor-Painters and Decorators, but it is consistent with the applicant’s assessment by TRA as a Vehicle Painter. Furthermore, the distinction between the practical tasks of a Vehicle Painter and the supervisory role of a Supervisor, Vehicle Painter is in the same terms as the distinction between a Painter and Decorator and a Supervisor-Painter and Decorator.
What is important is that, despite the reference to a different ASCO classification, the Tribunal was assessing whether the applicant was “a highly skilled person in relation to” the “nominated position” as required by Regulation 5.19(3). Relevantly Regulation 5.19(3) requires that a person has had three years formal training (or equivalent experience) in respect of work of the kind to be performed in [the nominated] position and that he or she has been employed in that work for three years after becoming qualified and before making the visa application.
The approval of the nominated position in this case required such qualifications and experience. Hence, as contended by the respondent, the Tribunal’s findings that the applicant had not performed a supervisory role and did not have skills commensurate with the nominated position of “supervisor” made it impossible for him to meet these requirements in relation to the nominated position of Supervisor Spray Painter and Coating.
The Tribunal did not by its change in terminology fail to consider this question. This is clear from the fact that the reason for its decision held good in relation to the ASCO classification referred to in the approval of the nominated position as well as for the classification referred to by the Tribunal. Both positions involved supervision of tradesmen (whether painters, or, as the applicant was classified by TRA, vehicle painters). Critically, the Tribunal was not satisfied that the applicant performed or had the requisite experience in a supervisory role.
Moreover, the Tribunal not only referred to ASCO on skill requirements for occupations, it went on to consider whether the skills level of the applicant (based on his qualifications and work history, the TRA classification and the evidence before it) satisfied it that the applicant had demonstrated that he had the skills necessary to perform the activity (being the nominated position of Supervisor-Spray Painter and Coating). In other words it considered whether the applicant met the requirements of subclause 856.213(b) that he be “a highly skilled person, within the meaning of regulation 5.19 in relation to that appointment.”
The Tribunal required, consistent with paragraphs 5.19(3)(a) and (b), that the applicant establish his formal qualifications and have at least three years “relevant experience”. On this basis (in the absence of satisfactory evidence of past supervisory responsibility) it was unable to justify reaching a finding contrary to the findings of TRA as to the skills level of the applicant. Hence it found that he did not meet the requirements of a “highly skilled” person under the Regulations. No jurisdictional error is apparent in the Tribunal’s approach.
The change in terminology in the description of occupation classifications did not result in the Tribunal considering any irrelevant issue, failing to consider any relevant issue or asking itself (materially) any wrong question.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 August 2006.
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