Bhanot v Minister for Immigration and Border Protection

JUDGE: PERRY J DATE: 14 AUGUST 2014 (PRONOUNCED ON 12 AUGUST 2014) PLACE: SYDNEY

1. OVERVIEW 1 The principal issue in this appeal is whether the Migration Review Tribunal (the Tribunal) asked itself the correct question when determining whether the applicant had satisfied one of the criteria for a Skilled (Residence) (Class VB, subclass 885) visa (skilled visa), namely whether the occupation in which the appellant was employed was "closely related" to his nominated skilled occupation. 2 The appellant, Varun Kumar Bhanot, is a citizen of India. On 20 September 2010, Mr Bhanot applied for a skilled visa nominating "Accountant (General)" as his skilled occupation. On 29 September 2011, an authorised delegate of the first respondent (the Minister) refused the appellant's application on the basis that Mr Bhanot did not satisfy the relevant criteria for the grant of the skilled visa and, in particular, cl 885.221 of the Migration Regulations 1994 (Cth) (Migration Regulations). 3 On 17 October 2011, Mr Bhanot applied to the Migration Review Tribunal (the Tribunal) for review of the delegate's decision. The Tribunal conducted a hearing on 9 October 2012 at which the appellant appeared with his registered migration agent, gave evidence and made submissions. On 1 February 2013 the Tribunal affirmed the delegate's decision. 4 Mr Bhanot sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia by an application filed on 1 March 2013. On 29 April 2014, that Court dismissed Mr Bhanot's application: Bhanot v Minister for Immigration and Citizenship [2014] FCCA 864. 5 Mr Bhanot raises one ground of appeal in his notice of appeal filed on 20 May 2014, namely: His Honour, when upholding the Tribunal's decision by finding that a 'closely related' occupation could not embrace the work duties of the appellant for the reason that the adverb 'close' meant that there must be a substantial connection (i.e. the sharing of more than one characteristic) between the nominated skilled occupation of Accountant (General) and the closely related occupation, and that no such relationship existed, erred in law by failing to take into account that the ANZSCO definition of Accountant (General) contextually diluted the stricter definition given to that of Accountant and that the actual duties of the appellant or at least some of them fell within the embrace of the definition.

2. Legislative framework 6 It is necessary first to explain briefly the legislative context in which the issue for determination falls to be considered. 7 Mr Bhanot applied for a subclass 885 "Skilled - Independent" visa. Before such a visa can issue, an applicant must demonstrate that he or she satisfies the criteria prescribed by the Migration Regulations when the application is made. The criteria relevant here are set out in Part 885 of Schedule 2 of the Migration Regulations and include that an applicant satisfy subitem 1136(4) of Schedule 1 of the Migration Regulation. 8 Clause 885.221 required that an applicant achieve a "qualifying score" when assessed in relation to the visa. The points system pursuant to which this clause was made is established by Subdivision B of Part 2 Division 3 of the Act. Specifically, under s 93 of the Act, the Minister must make an assessment by giving an applicant a prescribed number of points for each prescribed qualification that the applicant meets. 9 The Minister may set a "pool mark" and a "pass mark" in relation to a class of visas pursuant to s 96 of the Act. If an applicant's score exceeds or is equal to the pass mark specified by the Minister, the applicant is deemed to have a "qualifying score" pursuant to s 94(1) of the Act. If the score is less that the pass mark but greater than the pool mark, then an applicant remains in a 'pool' of applicants for a period of up to 24 months: see ss 95 and 95A of the Act. 10 When Mr Bhanot applied for a 885 visa, the applicant was required to satisfy "the Australian study requirement" and demonstrate that each "qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation": cl 885.211(2)(a)-(b). Item 1136 of Schedule 1 of the Migration Regulations in turn specified that an applicant for a skilled visa must, among other things, "nominate a skilled occupation for the applicant": subparagraph 4(b)(ii) of item 1136. The term "skilled occupation" is defined in reg 1.15I(1) of the Migration Regulations to mean an occupation of a kind specified by the Minister for which a specified number of points is available and applicable to the person: reg 1.15I(1)(a)-(c). 11 Subregulation 2.26AA(2) specified that each qualification listed in column 2 of an item in Parts 6B.1-6B.12 of Schedule 6B is prescribed as a qualification in relation to the grant of a subclass 885 visa. Relevantly, item 6B41 in Part 6B.4 of Schedule 6B specifies that: The applicant nominated a skilled occupation for which 60 points are available and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made. (Emphasis added) 12 Item 6B51 in Part 6B.5 specified that: The applicant has been employed in Australia, in the applicant's nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made. (Emphasis added) 13 As earlier mentioned, Mr Bhanot nominated "Accountant (General)" as his skilled occupation. As the Tribunal set out at [14] of its reasons, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) code for the specified occupation is "221111". The relevant instrument specifying skilled occupations is Legislative Instrument IMMI 12/068 regarding the 'Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain other Visas'. The relevant effect of that instrument is that it specified that the skilled occupation nominated by Mr Bhanot is one for which 60 points are available.

3. PROCEEDINGS BEFORE THE TRIBUNAL 14 The delegate found that Mr Bhanot did not have a qualifying score sufficient to achieve the relevant pass or pool mark in force when he applied for the 885 visa, namely, 120 points. The delegate assessed Mr Bhanot as having a score of 110 points and therefore refused to grant the visa pursuant to s 65(1)(b) of the Act. 15 The applicant applied for review to the Tribunal under s 347 of the Act. The Tribunal wrote to Mr Bhanot before the hearing on 4 September 2012 advising that it would be unable to make a favourable decision based on the information then before it. He was invited to appear at the hearing on 9 October 2012 and to provide evidence that he satisfied the points test within 14 days of the letter. 16 At the Tribunal hearing, Mr Bhanot claimed to be working as a manager in a "closely related skilled occupation" for a period totalling at least 36 months in the 48 months before the visa application was made and thereby to be entitled to points under Part 6.4 of Schedule 6B of the Migration Regulations: Tribunal reasons at [58]. However, as the appellant made no claims in relation to his employment overseas and relied on his Australian employment qualifications, the Tribunal decided to consider his claim under Part 6B.5 of Schedule 6B as it was more favourable to the appellant: Tribunal [59]. Presumably it is because the Tribunal found that the appellant was not entitled to points for Part 6B.5, that it found at [60] that the appellant is entitled to no points for Part 6B.4. 17 As to the appellant's claim under part 6B.5, the appellant did not claim that he had been employed in his nominated skilled occupation. The question was whether he had been employed in a "closely related skilled occupation" for a period totalling at least 12 months in the 48 months immediately before he made his application on 20 September 2010 (Tribunal reasons at [61]). 18 The appellant gave evidence that he commenced employment at a Supabarn store in Sydney as a Customer Service Representative in 2006 and had worked in that role for over three years. The Tribunal considered Mr Bhanot's evidence and submissions in relation to his employment history at Supabarn at [29]-[36] and [61]-[75] of its reasons. In relation to his employment at Supabarn, the evidence before the Tribunal included that the appellant: commenced employment at Supabarn on a part time basis as a Customer Service Representative in approximately 2006; at the conclusion of his studies in approximately March 2008, he started working on a full time basis and received on the job training in Supabarn's different departments; learnt about customer service, checking inventory, auditing departments, checking weekly budgets, preparing financial statements and end of day procedures; was promoted in approximately July 2008 and commenced "doing all the tasks of a manager"; signed a 12 month contract in 2009 employing him as a "night manager"; and since 2011, he has been working part time for 32 hours a week and that his title at work is "Customer Relations Manager" and also "night manager". 19 The evidence relied upon by the applicant included a letter dated 4 October 2012 from the Store Manager at the Supabarn where he worked. In that letter, the Store Manager confirmed the appellant's employment at Supabarn since 1 September 2006 and that he currently holds the position of manager. He provided a detailed list of what he described as the appellant's duties and responsibilities. The letter concluded that the appellant performs the duties of three occupations: Accountant, Administrative Manager, Retail Customer Services Manager. 20 The Tribunal found that payslips provided by the appellant described his position as "grocery assistant" for the period 3 September 2012 to 9 September 2012 and was clearly troubled by the discrepancy with his evidence. The Tribunal also observed that the Store Manager's description of the appellant as performing the duties of three occupations was inconsistent with the appellant's evidence that he did not consider himself to be an accountant although he does some of the tasks of an accountant and that his job is that of a Retail Customer Service Manager (Tribunal reasons at [67]-[68]). However, in the crucial passages in the Tribunal's reasons at [71]-[72] the Tribunal found that: 71. Based on the applicant's evidence and the references he provided to the Tribunal, the Tribunal accepts that the applicant undertook some tasks that are related to accounting. However, the Tribunal is of the view that his primary role was that of a Retail Customer Service Manager and any tasks that he performed that were related to accounting were incidental to that role. This view is consistent with the applicant's own evidence that he does not consider himself to be an Accountant although he does some tasks of an Accountant and that his job is that of a Retail Customer Service Manager. 72. The applicant's employment as a Retail Customer Service Manager and Night Manager is not in the same industry as an Accountant. The Tribunal is not satisfied, on the evidence before it, that in his role as a Retail Customer Service Manager and Night Manager the applicant exercises substantially the same skills and requires the same level qualifications as would be required in his nominated occupation of Accountant (General). The Tribunal is not satisfied, on the evidence before it, that the duties that the applicant performed in his role of Retail Customer Service Manager and Night Manager required him to have the skills and qualifications of an Accountant. 21 The Tribunal concluded that it was not satisfied that Mr Bhanot had been employed in Australia in his nominated skilled occupation or a closely related skilled occupation for the relevant period before the application was made and therefore did not meet the requirements of item 6B51 of Schedule 6B. The end result was that Mr Bhanot failed to satisfy the criteria set out in cl 885.221 as the qualification score remained below the necessary pool or pass mark and the delegate's decision to refuse his application was affirmed.

4. PROCEEDINGS IN THE COURT BELOW 22 The appellant sought judicial review from the decision of the Tribunal substantially on the same ground as is sought to be agitated here. The Federal Circuit Court refused the application for judicial review. The primary judge set upon the task of construing item 6B41 (which poses the same substantive test as 6B51) in a careful and considered way. Specifically, the primary judge considered that: a) the words "closely related" predicate a relation between two things being the skilled occupation in which an applicant has been employed and the nominated skilled application (at [50]); b) the fact that the relation must be close means that the characteristics or elements that define the actual skilled occupation are substantially the same as those which defined the nominated skilled occupation, the latter being specified by the Minister, ie, which ANZSCO defines "Accountant (General)" (at [52]-[53]); and c) this means the Tribunal was required to determine whether the services provided by the appellant while employed by Supabarn were substantially the same as the services ANZSCO stipulated a person must provide in order to be classified as an "Accountant (General)" and that the skills the appellant possessed were substantially the same skills which ANZSCO stipulated an "Accountant (General)" must possess (at [55]). 23 The primary judge concluded at [61] that the Tribunal asked itself the correct question. His Honour appears to have done so on the basis of the Tribunal's conclusion, as he expressed it, that "it was not satisfied that, in the occupation the applicant claimed he was employed, the applicant 'exercises substantially the same skills and requires the same level qualifications [sic] as would be required in his nominated occupation of Accountant (General)."

5.1 The Tribunal asked itself the wrong question 24 In my view, the appellant correctly submitted that the Tribunal failed to ask itself the question which it was required to address by item 6B51 of Schedule 6B. 25 The question which the Tribunal was required to address by item 6B51 was whether the appellant had been employed in "a closely related skilled occupation" to his nominated skilled occupation of "Accountant (General)" for the relevant period. 26 Counsel for the Minister submitted that the words "closely related" are not defined and that in assessing the degree to which the qualifications relied upon relate to the person's actual occupation, "naturally, as a tool of analysis, the decision-maker may have regard to all of the nature of the actual occupation that the applicant for the visa has including, amongst other things, the amount of time that they spend using their skills as, in this case, an accountant". Thus he submitted that, while it was not the ultimate test, it was not irrelevant to have regard to the amount of time that a visa applicant applied his skills in a given role and whether those skills are requirement for that role. In this regard, the Minister accepted that a person may be engaged in a "closely related" occupation notwithstanding that he is not engaged in the same industry but that, depending upon the circumstances, a person in a management position applying the relevant qualifications and skills might be found to be in a closely related occupation. This submission is in line with an example given at [19.3] of the Minister's Department's Procedures Advice Manual 3 made pursuant to the Act (and to which the Tribunal must have regard but is not itself bound by). 27 It can readily be accepted that the Tribunal may lawfully have regard to the kinds of considerations to which counsel for the Minister referred in making the assessment required by item 6B51. However, I do not consider that the Tribunal in this case approached its task in that manner. The difficulty in my view is that the Tribunal at [71] approaches the question by identifying what it considers to be the appellant's "primary role" and, having found that role to be of a Retail Customer Service Manager, then finds that any tasks performed by him that related to accounting were "incidental to that role". The Tribunal then narrows its inquiry at [72] so as to consider whether the appellant exercises substantially the same skills, and requires the same level of qualifications, in his nominated occupation as in his "role" as Retail Customer Service Manager and Night Manager only. This means that the Tribunal compared the nominated skilled occupation with only part of the appellant's actual occupation. In other words, by characterising the accounting tasks as "incidental" to that primary role, the Tribunal appears then to have taken the performance of those tasks out of the equation in determining how the question posed by item 6B51 should be answered. 28 Item 6B51 does not in my view justify that approach. I consider that the question posed by the item necessitates the making of an evaluative judgment having regard to all of the facts in the individual case relating to the person's occupation as a whole. It follows that I take a different interpretation of the critical passages in the Tribunal's reasons from that adopted by the primary judge and depart from the conclusion which his Honour reached. 29 My construction of item 6B51 receives some support from the decision in Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567 (Constantino). This case involved the closely analogous question of whether the qualification used to satisfy the Australian study requirement for a skilled visa was "closely related" to the appellant's nominated skilled occupation. In that case, Jacobson J concluded at 571 [26] that "the wording of the clause implicitly imports the requirement that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists." 30 However, I have not placed any reliance upon the decision in Singh v Immigration Review Tribunal (1993) 44 FCR 495 on which the appellant relied both before the primary judge and on appeal. In that case, the Immigration Review Tribunal was required to address a visa requirement that the person occupy a position on a "permanent, full-time basis" and that the position was "in respect of a highly skilled occupation". Wilcox J found that the Immigration Review Tribunal had erred in finding that the criterion was not met because the position held by the applicant in that case required her to exercise her particular skills only for a minor portion of each day as opposed to her other tasks. In common with the primary judge, I consider that the question which the Tribunal was required to ask itself in that case was very different and does not assist in the task in construing the statutory criteria applicable here.

5.2 The Minister's submission that an error in construction would not constitute a jurisdictional error 31 Counsel for the Minister, however, submitted that the question for the Tribunal under item 6B51 was a question of fact involving a comparison between what the applicant has actually been employed to do, with what the nominated skilled occupation requires. He submitted that the words "closely related" should be given their ordinary meaning as a consequence of which, if the decision-maker should find that particular facts fall or do not fall within the words, he makes a finding of fact only. There can be no jurisdictional error in the Minister's submission where, as here, the question is a mixed question of fact and law. 32 In support of his submission, the Minister sought to rely on Constantino. In particular, in obiter, Jacobson J observed at 573 [48] that: Even if the construction adopted by the tribunal is incorrect, it seems to me that there can be no jurisdictional error in its decision. This is because the question which arose in the tribunal was a question of mixed fact and law. It was not a question as to which only one conclusion was open and the tribunal did not so misdirected itself as to take its decision beyond jurisdiction: Vetter v Lake Macquarie City Council (2001) 202 CLR 439… at [24]-[27]. 33 His Honour then observed that this approach had been adopted in Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113 at [19] (Logan J) and in Dhiman v Minister for Immigration and Citizenship [2012] FCA 1254 at [22] (Katzmann J). Counsel for the Minister in this appeal also submitted that the Court's approach in Vetter is "the correct analysis here". 34 With respect, however, the High Court's decision in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 does not stand for the proposition which the Minister contends and for which it is quoted in Constantino. Vetter was not concerned with correcting jurisdictional error by an administrative tribunal in the exercise of jurisdiction under s 39B of the Judiciary Act 1903 (Cth) which mirrors that conferred by s 75(v) of the Constitution. In Vetter (which was decided before Kirk v Industrial Court of New South Wales (2010) 239 CLR 531), the question was whether the appellant had identified a question of law so as to enliven the jurisdiction of the New South Wales Court of Appeal to hear an appeal from the Compensation Court of New South Wales under s 32 of the Compensation Court Act 1984 (NSW). In that context, in their joint judgment Gleeson CJ, Gummow and Callinan JJ said at 450 [24] that: Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way… whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Company v Valuer General [(1940) 40 SR (NSW 126]: '[I]f the facts inferred… from the evidence… are necessarily within the description of a word or phrase in the statute or necessarily outside that description, a contrary decision is wrong in law.' 35 Their Honours then cited with apparent approval the statement by Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) in Hope v Bathurst City Council (1980) 144 CLR 1 at 7 that: Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law… However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [[1973] AC 854] was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. 36 Nor does the decision of Katzmann J in Dhiman v Minister for Immigration and Citizenship [2012] FCA 1254 support the proposition put by the Minister. In that decision at [22], her Honour concluded that, even if error was demonstrated in the Tribunal's reasons, its findings were sustained by an independent ground. Katzmann J therefore concluded that any error would have been an error within jurisdiction. 37 Finally, the passage in the decision of Logan J in Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113 at [19] which was also cited in Constantino stands for the opposite contention to that put by the Minister here. The case was one concerning an application for a skilled 485 visa. His Honour found that the question of whether jurisdictional error had been demonstrated in the Tribunal's conclusion that a particular degree was not closely related to the nominated skill depended upon whether the Tribunal had correctly construed the terms of the relevant criterion in the regulations. 38 It follows, with respect, that I consider the proposition for which the Minister contends to be wrong. A contrary conclusion would constitute an unwarranted and significant erosion of the constitutionally entrenched jurisdiction to undertake judicial review in s 75(v) of the Constitution and the equivalent jurisdiction of this Court conferred by s 39B of the Judiciary Act 1903 (Cth). The fact that the Parliament has conditioned an exercise of power on a criterion expressed in ordinary, non-technical language and that the Tribunal in assessing whether the criterion is satisfied might be described as making a finding on a mixed question of fact and law cannot remove the Court's jurisdiction to determine whether the decision was made within lawful boundaries. As Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513-514 [104], "[t]he reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them." It is trite than an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law: Craig v South Australia (1995) 184 CLR 163 at 179; Plaintiff S157/2002 at 512 [98]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 572 [67]; FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754 at 772 [90]. In short, as the High Court stated in the oft quoted passage from Craig at 179 with respect to the grounds of judicial review of administrative decisions: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

6. ORDERS 39 For these reasons, I would allow the appeal with costs. The decision of the Tribunal should be quashed and the application remitted to the Tribunal for determination according to law. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.