Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs
[1997] FCA 1343
•27 OCTOBER 1997
CATCHWORDS
MIGRATION - application for independent entry visa - refusal - assessment of employment qualifications - failure to observe procedure - usual occupation - whether futile to remit matter to decision-maker
WORDS AND PHRASES - “or” - conjunctive or disjunctive
Migration Act 1958 ss 475, 476, 481
Migration Regulations 1994 reg 2.26; Schedule 2 Part 126, Schedule 6 Part 1
Beneficial Finance Corp Ltd -v- Commissioner of Federal Police [1991] 31 FCR 523
Mak -v- Immigration Review Tribunal [1994] 48 FCR 314
Electricity Trust of South Australia -v- Krone (Australia) Technique Pty Ltd and Ors [1994] 51 FCR 540
Subraju -v- Minister for Immigration and Ethnic Affairs [1996] 68 FCR 313
Stone -v- Minister for Immigration and Ethnic Affairs Hill J unreported 28 June 1996, affirmed by Full Court (Lee, Carr and Nicholson JJ) unreported 6 February 1997
Hu -v- John Rees & Minister for Immigration and Ethnic Affairs Einfeld J, unreported 4 March 1997
Enayetur Rahim -v- Minister for Immigration and Ethnic Affairs Sackville J, unreported 28 August 1997
R F Brown & Co, Ltd -v- Harrison, Hourane and Harrison [1927] 43 TLR 633
Re: Li Yu, Immigration Review Tribunal No.Q94/01314 26 June 1995
YUK SHAN CHEUNG v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG 565 of 1996
EINFELD
SYDNEY
27 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 565 of 1996
GENERAL DIVISION )
Between:YUK SHAN CHEUNG
Applicant
And:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
MINUTE OF ORDERS
The Court orders that:
the application be dismissed.
there be no order as to costs.
Note:Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
27 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 565 of 1996
GENERAL DIVISION )
Between:YUK SHAN CHEUNG
Applicant
And:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 27 OCTOBER 1997
Introduction
The applicant is a Chinese citizen living in Hong Kong where she applied on 6 November 1995 for an Independent (Migrant) (Class AT) visa (the visa). She paid the prescribed fee. The application was refused by a delegate of the respondent Minister on 10 June 1996, the applicant being notified through her migration agents and solicitors on 17 June 1996. By amended application on 6 August 1996, the applicant sought review of this decision.
Judicial review
The applicant seeks substantive relief under Part 8 of the Migration Act 1958 (the Act) which allows judicial review by this Court of certain decisions:
475 (1)Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a)decisions of the Immigration Review Tribunal;
(b)decisions of the Refugee Review Tribunal;
(c)other decisions made under this Act, or the regulations, relating to visas.
The decision of the first respondent in this instance is a judicially reviewable decision within the meaning of paragraph (c) upon grounds found in section 476:
476 (1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b)that the person who purported to make the decision did not have jurisdiction to make the decision;
(c)that the decision was not authorised by this Act or regulations;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision.
The applicant put her case for review on four of these statutory bases:
the procedures required by the Migration Regulations to be observed in connection with the making of the decision were not observed, contrary to paragraph (a)
the decision was an improper exercise of power conferred by the Act, contrary to paragraph (d)
the decision involved an error of law by incorrectly interpreting or applying the law to the facts, contrary to paragraph (e)
there was no evidence or other material to justify the making of the decision within the meaning of paragraph (g)
In the event, no argument was addressed to the fourth of these grounds.
Factual background
Yuk Shan Cheung enrolled for the degrees of Bachelor of Arts at Wollongong University in 1990. She gained one year’s credit and transferred to the University of Sydney to complete the final two years of her degree specialising in geography. She also undertook a number of psychology subjects such as learning and behaviour, child development and human performance. Thereafter, in Hong Kong, Ms Cheung had a number of jobs. In reverse order, she was employed as a secondary school teacher of geography and English at St Teresa Secondary School, Kowloon, from September 1994 to the time of the application for a visa in November 1995 (a 14 month period), as an Administrative Officer at Advance Bank Australia Ltd from July 1993 to August 1994 (13 months), and as a casual teacher for a total of 5 months from February to June 1993, first at Cheung Chuk Shan College (February-April) and then at Choi Hung Estate Catholic School (May/June). Her degree was conferred by the University of Sydney on 23 October 1993. None of these facts or dates were disputed.
The regulatory framework
The criteria for the visa are contained in Schedule 2.126 of the Migration Regulations 1994 (the regulations) which requires the satisfaction of a points system. Points are allocated for different attributes and assessed against the relevant pool entrance priority and pass marks. At the time of the decision the pass entrance mark for a Class 126 visa was 110 points and the pool mark was 100 points.
One of the relevant points earners is personal skill assessed on “Employment Qualifications” and awarded on the basis of an applicant’s usual occupation. “Usual occupation” is defined in regulation 2.26(5) as meaning:
an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.
The applicant needed at least 60 points for “employment qualifications” to obtain the visa. In her application she said that she was a “teacher”, an occupation for which a tertiary degree or qualification is normally required. Items 6102 and 6103 of Schedule 6.1 of the regulations, for which 70 and 60 points are awarded respectively, provide the criteria and procedures by which the decision-maker was therefore required to assess the applicant’s employment qualifications:
6102 The applicant’s usual occupation:
(a) is not a priority occupation; and
(b) is an occupation:
(i)for which, in Australia, a degree or trade certificate is required; or
(ii)that is a professional-equivalent occupation; and
(c)is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e)is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f)is an occupation:
(i) in which the applicant has worked; or
(ii)is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.
6103 The applicant would meet the qualification specified in item 6102 except that:
(a)the applicant did not obtain or complete the qualification referred to in paragraph (c) of the item at least 3 years before the application was made; or
(b)the applicant was not employed in the occupation on the day that is 3 years before the application was made; or
(c)the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made.
School teacher is not a priority occupation. Qualifying under Item 6102 attracts 70 points while Item 6103 attracts 60 points.
The decision
The decision-maker found that the applicant’s usual occupation was secondary school teacher and then briefly explained why in his view she had not met the requirements for the visa:
3. Requirements not met:
THE POINTS TEST
Points for the skill factor are based on the skills required to perform [the applicant’s] usual occupation in Australia. [The applicant’s] usual occupation has been classified as a Secondary School Teacher.
The Procedures Advice Manual (PAM) provides the requirements for this occupation. The PAM states that a three or four year bachelor degree or diploma in Teaching or Education, or a degree in any discipline plus a one year postgraduate diploma in Teaching or Education is required. [The applicant’s] qualifications have been assessed as not meeting the Australian standards for this occupation because [the applicant does] not hold a bachelor of education or a one year postgraduate diploma in teaching or education. Therefore the maximum number of points that [the applicant] may be awarded for skill is 25 (Migration Regulations (1994), Schedule 6, Item 6107 refers).
The applicant contended that in reaching this decision, the decision-maker failed to perform the procedures required by the regulations in that no assessment of her educational qualifications was made by “the relevant Australian authority” [Item 6102 (c)(i)] or of her “completed work experience” [Item 6102(c)(ii)] or of her “professional study ... and work experience ... together” [Item 6102(c)(iii)]. It is therefore necessary that the Court determine whether he was in error in the procedures he followed in making his assessment.
Assessment of the applicant’s qualifications as a teacher
The regulations require that the employment experience of an applicant be assessed by the “relevant Australian authority”, defined in regulation 2.26(5) as:
(a)NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or
(b)the Department of Industrial Relations; or
(c)if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister;
The acronym “NOOSR” stands for “National Office of Overseas Skills Recognition within Education” established within what is now known as the Department of Employment, Education, Training and Youth Affairs. With regard to teachers, NOOSR has authorised the respondent’s department to make the initial assessment of the employment qualifications of visa applicants: see the Procedures Advice Manual Number 3 (PAM 3) Schedule 6 Attachment 2. NOOSR has provided to the respondent’s department occupation-specific assessment guidelines to enable its officers to make this assessment. These guidelines specify the “Minimum Australian Eligibility Requirements” against which the decision-maker is to assess the applicant’s qualifications as a teacher. Relevantly, point 2.1 states that the minimum education eligibility requirements are:
(a) three or four year Bachelor degree or diploma in Teaching or Education, or a degree in any discipline plus a one year postgraduate diploma in Teaching or Education.
Under the heading “Group A” are listed overseas qualifications automatically considered to be equivalent to the Australian standard. Under “Group B” are listed the qualifications described as only “potentially acceptable” and thus, according to point 4.2, to be referred to NOOSR to determine in which part of Australia, if any, a particular applicant is eligible for registration and employment:
Group B: Potentially acceptable
3.23 The following criteria apply to teaching awards from all countries.
3.24 To meet the minimum requirements of all State and Territory government registration and employment authorities, an applicant’s qualifications must fulfil at least the following conditions.
¼
Length of course3.26 The course must involve at least three years of full-time study or the equivalent¼
Content requirements
3.27 The course must include at least one year of full-time professional education studies or equivalent, of which at least 6 weeks must be supervised teaching practice. This year can be either:
·an integral part of a three or four year program with the teaching practice spread throughout the course: or
·part of a separate award (eg a Diploma of Education).
Earlier, point 2.4 states that in New South Wales (NSW), where the applicant intended to teach in a Catholic School, registration for teaching is not required and that
teachers in government schools must meet the classification requirement of the State ... employing department. Non-government schools have similar requirements.
The applicant pointed to three potential problems in the manner in which the decision-maker followed the PAM guidelines. Firstly, the guidelines are intended for the assessment of overseas qualifications whereas the applicant has a degree from an Australian university. Secondly, the bare use of the PAMs without any assessment of the merits of the whole of the application is impermissible because the PAM guidelines give no weight to the occupational experience of applicants as appears to be required of the relevant authority by subparagraphs (ii) and (iii) of Item 6102(c). Thirdly, the guidelines wrongly assume that non-government employers of school teachers have the same or similar requirements to those of government employers.
Although it appears to me that the procedures set out in Item 6102 are generally intended for use in the assessment of foreign degrees, and I raised the matter at the hearing, no submissions were made on the point. I will therefore defer to the views of Justice Carr in Mak -v- Immigration Review Tribunal [1994] 48 FCR 314, in which his Honour accepted with some reservations that regulations in similar wording to those now in question did not require that the qualification be from an overseas institution.
It is evident from the PAM guidelines that the level and type of qualifications required to teach in Australia vary between states. The system works on the basis that if for example, an applicant does not intend to teach in Victoria which requires the equivalent of four years’ tertiary level teacher training, the person is not required to possess those qualifications. Yet it seems that the decision-maker looked at the PAM guidelines, saw that the applicant’s educational qualifications did not include a “bachelor of education or a one year postgraduate diploma in teaching or education”, and on this basis decided that her educational qualifications did not meet the Australian standards for this occupation. He apparently made no attempt to assess the applicant’s work experience because the PAM guidelines gave no value to work experience when assessing the skills of an overseas qualified teacher applying to work in Australia.
The applicant drew to attention that in at least one reported instance, the teaching qualifications of a person who did not have the requisite one year of professional study in teacher education was found to meet the academic requirements for teaching in NSW: Immigration Review Tribunal (IRT), Re: Li Yu, Reference No.Q94/01314 of 26 June 1995. In that case the Tribunal, having learned that NOOSR was unable to take work experience as a teacher into account when assessing qualifications, referred her qualifications to the NSW Department of School Education which replied that her qualifications and experience met “the academic requirements for approval as a Secondary - Chinese, Mandarin teacher”.
A number of other cases have come before the IRT showing that in certain instances in both government and Catholic schools, the lack of professional teacher training has been compensated for by the work experience of the applicant. The decision-maker would thus have been aware that notwithstanding the guidelines, persons had been found academically qualified to teach in NSW despite their lack of a year’s professional teacher training. These cases and other available information should also have alerted the decision-maker to the situation that the qualifications required to teach in Australia may vary between government and non-government or Catholic schools. He should have realised that this possibility required first investigation, and then authoritative assessment against the facts relating to the applicant. It was wrong for him to simply rely, if that is what occurred, on the assertion in the PAMs that non-government employers have similar requirements to government schools.
Section 54 of the Act requires that the Minister or his delegate must have regard to all of the information in the application. Given that Ms Cheung had 19 months teaching experience, in 15 of which she specialised in teaching geography and English, thus utilising the geography major from her bachelor’s degree, it is possible that the relevant authority, be it NOOSR, the NSW Department of School Education or a NSW Catholic School, would have found her combination of work experience and educational qualifications to be equivalent to the Australian standards for teaching.
In failing to refer the applicant’s qualifications to the appropriate authority for assessment, the decision-maker did not follow the procedures required by the Migration Regulations. The task is not confined to applying the PAM guidelines. Assuming that the applicant’s work experience was in her usual occupation, it is clear that Item 6102(c) contemplates an assessment by the relevant authority of whether the work experience is sufficient to meet Australian standards for that occupation. No attempt was made to obtain this assessment. It appears that supremacy was given to the PAM over the Act and Regulations, including in a case where the guidelines are in fact wrong by suggesting the virtual identity of standards accepted by government and Catholic schools in NSW. These criteria are thus narrower than those prescribed in the regulations, creating an error within section 476(1)(a) in the form of a failure to observe the procedures required by Item 6102(c)(ii) and (iii).
“Administrative Officer”
In the alternative, the applicant contended that her usual occupation should also have been identified as an Administrative Officer employed by a bank. She submitted in amendments to the application that the respondent was required to, but did not, have regard to or assess this alternative “usual occupation”. This failure, it was contended, amounted to an error of law within the meaning of section 476(1)(a) or (e). In view of the other conclusions I have reached, it is only necessary to deal with this point briefly.
The applicant contended that based on the information contained in the visa application, the decision-maker should have considered the possibility that the applicant had two usual occupations. I do not accept the parallel drawn between this matter and my decision in the case of Hu -v- John Rees and Minister for Immigration and Ethnic Affairs, unreported 4 March 1997. In Hu, and in all of the cases cited within it which have held that a person may have more than one usual occupation, the applicant had identified tasks and duties in his or her application that fell within more than one occupational description. All Hu decided was that the Minister’s delegate must not, by factual findings on certain elements of the material provided, fail to consider all of the material and thereby foreclose reasonable speculation upon the likelihood that the applicant is qualified for entry on the basis of another occupation than the principal one put forward.
Hu did not intend to require a primary decision-maker to consider every type of occupation in which an applicant has been employed for six months or more during the two year period specified by regulation 2.26(5) when these occupations are in no way related to the identified usual occupation or to the tasks and duties performed as part of the person’s employment in that occupation.
The tasks and duties the applicant listed as being performed in her usual occupation of teacher all related to that occupation and there are no other occupations within which they could fit. There was therefore no reason for the decision-maker to give more than a passing glance to the applicant’s employment as an administrative officer. Moreover, as her usual occupation, it would not have led to a higher points score. The applicant was not working as an administrative officer three years prior to the making of the application [Item 6102(e)]; she had not worked in the occupation for a period of two years in the three year period before the making of the application [Item 6102(f)]; and the qualifications required for the occupation of administrative officer were not obtained by the applicant three years prior to the lodgment of her application [Item 6102(c)]. The relevant dates were again not disputed or challenged in any way. There is no substance to this submission.
Remittal for correction of error
Ordinarily the first of these conclusions would determine the result in this case in that the matter would be remitted for a fresh determination based on the correct procedures. However, it is necessary to examine the matter further.
The powers of this Court in an application for review of a “judicially reviewable decision” are set out in section 481(1) of the Act. Relevantly for this case, they are:
On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:
(a)an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d)¼
The applicant sought orders under these three paragraphs, the requested declaration under paragraph (c) being to the effect that the application was not determined according to law.
It is well settled, in relation to matters involving administrative tribunals, that even if an error of law has been made, there is no utility in remitting the matter if the facts are agreed or there is no additional factfinding to be undertaken and the correct application of the law would mean that the same decision as that being appealed is inevitable. As Justice Sackville recently observed in Enayetur Rahim -v- Minister for Immigration and Ethnic Affairs unreported, 28 August 1997, at page 21:
..... it seems to me to be a proper exercise of the discretion conferred by s 481(1) to affirm a decision of the IRT notwithstanding that it has erred in law, if the IRT’s findings of fact preclude the applicant from satisfying the criteria upon which the fate of his or her application depends. Remittal of the matter in these circumstances would be futile.
Similar reasoning had been applied by Justice Hill in Stone v Minister for Immigration and Ethnic Affairs unreported, 28 June 1996, affirmed by a Full Court (Lee, Carr and Nicholson JJ), unreported 6 February 1997, and by Justice Moore in Subraju -v- Minister for Immigration and Ethnic Affairs [1996] 68 FCR 313 at 318.
The powers of the Court under section 481(1) apply to the review of all judicially-reviewable decisions whether of tribunals or of others operating under the Act or the regulations in relation to visas, including a decision by a delegate of the Minister under section 93(1) as to the number of points to be awarded to an applicant. In circumstances when facts not in dispute preclude an applicant satisfying the criteria prescribed for a certain visa or points allocation, and the decision-maker, although making an error of law, made the factually correct decision, the matter should not be remitted. The question whether this conclusion is appropriate here must now be considered in the light of the proper construction of Items 6102 and 6103.
Item 6102
The structure of Schedule 6.1 is hierarchical so that in any decision determining the points to be awarded for an applicant’s employment qualifications, the starting point is Item 6101 because it offers the most points. If Item 6101 is not applicable, the assessment moves to Item 6102, and so on until an applicable set of criteria is found.
Item 6101 has no relevance here. Item 6102(c) requires that in the 3 years prior to the application for the visa, the applicant must have obtained either:
a degree, certificate or diploma, or post-trade qualifications assessed by “the relevant Australian authority” to be their equivalent,
OR
work experience similarly assessed,
OR
a combination of the two similarly assessed.
As 6 November 1992 was Ms Cheung’s 3 year commencement date, her degree and work experience did not qualify under this provision. It is also obvious from the facts of the case, and was conceded at the hearing, that the applicant also failed to meet the time criteria in paragraphs (e) and (f) of Item 6102. She was not employed as a teacher on 6 November 1992 and had not on the date of her application worked as a teacher for two of the three previous years, either continuously or in aggregate. Item 6102 does not apply to the applicant.
Item 6103
The applicant thus sought to rely on all three exceptions in Item 6103. She submitted that the “or”s between paragraphs (a), (b) and (c) of that Item should be interpreted as meaning “and/or” so that an applicant could rely on one or a combination of the exceptions.
There are authorities to support the contention that in some instances an “and” or “or” in legislation can be altered by statutory construction, where the context requires, to correct expressions which if read literally lead to nonsensical results. See for example Burchett J in Beneficial Finance Corp Ltd -v- Commissioner of Federal Police [1991] 31 FCR 523 at 530. In R F Brown & Co, Ltd -v- Harrison, Hourani and Harrison [1927] 43 TLR 633, Atkin LJ said (at 639):
I disagree with the learned judge in his view that the word ‘or’ can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use.
Situations in which “or” has been read by the Courts as conjunctive, that is, meaning “or, or as well” have involved criteria which although expressed as alternatives, are not intended to be construed as mutually exclusive alternatives; see for example the interpretation of the definition of “manufacturer” in the Manufacturers Warranties Act 1874 (SA) discussed in Electricity Trust of South Australia -v- Krone (Australia) Technique Pty Ltd and Ors [1994] 51 FCR 540 at 547C. Such a situation also exists in Item 6102 in which the legislature could not have intended the employment qualifications described in the three paragraphs of paragraph (c) to be mutually exclusive. A person with tertiary qualifications or with adequate work experience or with a satisfactory combination of the two qualifies. But to read the provision so as to exclude a person who has both a degree and extensive employment experience because they appear to be strictly alternatives would be absurd.
In Item 6103, however, the literal reading of the word “or” as disjunctive does not lead to absurdity. Indeed, to read “or” as “and/or” goes against the plain meaning of the regulation. In my belief, treating the alternatives in paragraphs (a), (b) and (c) as mutually exclusive accords with the intention of the legislature to provide that an applicant’s inability to comply with a requirement in Item 6102 be partially excused. What was intended was that only visa applicants who, to meet the qualifications specified in Item 6102, need to take advantage of just one of the available exceptions in Item 6103, are to qualify for 60 points. It is neither repugnant nor nonsensical that by reason of limited experience and a consequent failure to comply with more than one of the requirements in Item 6102, an applicant should also fail under Item 6103. It is the alternative proposition that would give rise to an anomalous result.
The applicant argued that in accordance with regulation 2.26(3)(b) the respondent must be generous to the applicant in that the highest possible number of points possible must be awarded:
For the purposes of subsection 93(1) of the Act (which deals with determination of an applicant’s points score), the Minister:
...
(b)is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification;¼
The intent of the system is that priority be given to potential immigrants with suitable employment experience. The object of this provision is to declare only that if more than one score is applicable under the points system, the applicant is to be awarded the higher score.
The difference of only 10 points between Items 6102 and 6103 also suggests that the difference in employment qualifications between applicants who succeed under these Items should not be great. Item 6103 can apply for example to a person who has worked for a considerable number of years in an occupation but has only within the last three years completed a degree or some other qualification that meets Australian standards for that occupation. I do not believe that it is intended to apply to a person, such as the applicant, who neither possessed the required tertiary qualifications nor had achieved the required work experience in the three years prior to the date of her visa application.
If the decision-maker had worked through all of the clauses of 6102 before applying Item 6103, as the law requires, he would have failed this application on the grounds that the applicant did not meet any of the requirements in Item 6102 (c), (e) and (f). She had neither relevant educational qualifications nor work experience for three years before the application. Item 6103 would thus simply not have arisen. Unfortunately, however, as is evidenced by his reasons for decision, the decision-maker ignored the time requirements in paragraph (c) by applying the exception in Item 6103(a), and embarked on an assessment of the applicant’s work experience. He thereby invited this application.
Because the applicant does not meet the criteria in Item 6102, and therefore cannot avail herself of Item 6103, she does not attract 60 points. Despite the decision-maker’s failure to follow the procedures required by Item 6102(c), its inapplicability to the applicant’s situation means that remitting the matter for another decision would be futile because on the undisputed facts, the applicant cannot satisfy the relevant criteria. The decision-maker therefore made the correct decision on the application despite incorrectly applying the procedures required by the regulations.
I dismiss the application. In the circumstances, there will be no order as to costs.
For the applicant Mr Mark A. Robinson instructed by Barlow & Co, Solicitors For the respondent Ms Victoria A. Hartstein instructed by Australian Government Solicitor Date of Hearing 14 July 1997 Date of Judgment 27 October 1997
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