Constantino v Minister for Immigration and Border Protection

JUDGE: JACOBSON J DATE: 4 DECEMBER 2013 PLACE: SYDNEY

Introduction 1 Ms Myra Flores Constantino (the appellant) is a citizen of the Republic of the Philippines whose application for a Skilled (Provisional) (Class VC) visa was refused by a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) (the Act), and by the Migration Review Tribunal (the Tribunal). 2 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia but her application was dismissed by a judge of that Court (Judge Cameron) on 23 August 2013. The appellant appeals from the order made by the Federal Circuit Court. 3 The reason why the appellant was unsuccessful before the delegate and the Tribunal was that the decision-maker in each instance was not satisfied that the diploma used by the appellant to satisfy "the Australian study requirement" for the visa was "closely related" to the appellant's nominated skilled occupation as required by cl 485.213(b) of the Migration Regulations 1994 (Cth) (the Regulations). 4 Relevantly the diploma used by the appellant to satisfy the qualifications for Australian study requirement was an Advanced Diploma of Hospitality Management whereas her nominated skilled occupation was a marketing specialist. 5 In the Federal Circuit Court the appellant submitted that upon the proper construction of cl 485.213(b) of the Regulations, the qualifications used to satisfy the Australian study requirement and the nominated skilled occupation need not be considered as a whole in determining whether they are closely related. 6 The learned judge rejected the appellant's construction. His Honour considered that, although some aspects of the appellant's hospitality qualification were relevant to her nominated occupation of marketing specialist, it was open to the Tribunal to conclude that, when considered in its entirety, the qualification was not closely related to the nominated occupation. 7 The submissions on the appeal, for the most part, repeat those that failed before his Honour.

The Regulations 8 The formal requirements for a Skilled (Provisional) (Class VC) visa are contained in cl 1229 of Schedule 1, Part 2, of the Regulations. Subclause 4(b) of that clause provides that an applicant seeking to satisfy the primary criteria for the grant of a visa must nominate a skilled occupation for which at least 50 points are available as specified by the Minister. 9 The criteria for the relevant visa, which is described as a Skilled Graduate visa, subclass 485, are contained in cl 485.213 of Schedule 2 of the Regulations. 10 Clause 485.213 specifies two requirements. The first is stated in cl 485.213(a) which provides that the applicant must have satisfied the "Australian study requirement" in the period of six months ending immediately before the day on which the application was made. 11 The second is stated in cl 485.213(b) which is as follows: … each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation. 12 The definition of "Australian study requirement" is found in reg 1.15F(1). That regulation provides, relevantly, that a person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that are registered courses and which meet the remaining requirements specified in that regulation. 13 The definition of "skilled occupation" is found in reg 1.15I(1) which provides that a skilled occupation means an occupation of a kind that is specified by the Minister in an instrument in writing, and which meets the other requirements, including the number of points, that are specified. 14 The occupation of marketing specialist, which was nominated by the appellant, was specified as a skilled occupation in Legislative Instrument IMMI 12/068. 15 The criteria for a subclass 485 visa include a number of other requirements referred to in cl 485.21. Counsel for the appellant referred to the criterion stated in cl 485.214 which he submitted was part of the legislative context against which cl 485.213(b) should be construed. Clause 485.214 is as follows: The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. 16 Counsel for the appellant also referred to the criteria stated in cl 485.22 which specify the criteria to be satisfied by an applicant at the time of decision. In particular he referred to cl 485.221 as follows: (1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. (2) If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.

The Tribunal's reasons 17 The Tribunal identified the issue for determination as whether the appellant's qualification, namely the Advanced Diploma of Hospitality Management, which she used to meet the Australian study requirement, was closely related to her nominated skilled occupation of marketing specialist: see Tribunal's reasons at [31]-[33]. 18 The Tribunal rejected a submission made by the appellant that the test of "closely related" is whether the qualifications that are obtained are "complementary" to the nominated occupation. It found that the term "closely related" is not interchangeable with, nor necessarily consistent with, being complementary or useful, notwithstanding that the wider test of usefulness had been stated as departmental policy: see Tribunal's reasons at [34]. 19 In coming to that view, the Tribunal accepted a line of reasoning stated in a number of authorities commencing with the decision of North J in Uddin v Minister for Immigration & Citizenship [2010] FCA 1281 at [10]-[12]. 20 The Tribunal accepted that the skills acquired by the appellant as part of her qualifications have been useful in her employment in the hospitality industry. However, it re-iterated its finding that this was not sufficient to meet the "closely related" requirement: Tribunal's reasons at [36]. 21 The essence of the Tribunal's reasons is to be found in [37] in which it dealt with a submission by the appellant that a number of the subjects she completed as part of the Advanced Diploma of Hospitality Management were closely related to the occupation of marketing specialist. The Tribunal said: … the Tribunal does not consider that the legislation contemplates a comparison of individual subjects within a qualification and the assessment of their close relationship to the nominated occupation. What is required by cl 485.212 is an assessment of the qualification as a whole, not parts of the qualification which the applicant believes to be closely related. Thus, it is not sufficient to state, as the applicant has, that several subjects that formed part of the Advanced Diploma were closely relating [sic] to marketing. In the Tribunal's view, the qualification as a whole is not so related. 22 The Tribunal's observations at [41] are to similar effect. The Tribunal there expressed the view that the regulation requires consideration of the relationship of the qualification as a whole to the nominated occupation as a whole, and not to one aspect of that occupation.

The Federal Circuit Court's reasons 23 The essence of the judge's reasons may be found at [20]-[21] as follows: [20] Contrary to the applicant's submissions, there is no textual basis to conclude that cl.485.213(b) refers to qualifications and nominated occupations other than as entire concepts or to conclude that their component parts or characteristics must, as a matter of law, be considered individually when cl.485.213(b) is applied. In those circumstances it is unnecessary to consider the applicant's submissions that the intention of cl.485.213(b) is to ensure that the qualification is of substantial assistance or direct application to a visa applicant in his or her nominated occupation, other than to observe that the interpretation I have preferred is consonant with that intention. [21] Consequently, the Tribunal did not err by comparing the whole of the applicant's hospitality qualification with the whole of her nominated occupation. Although it does appear that some aspects of the applicant's hospitality qualification were relevant to her nominated occupation of marketing specialist, it was open to the Tribunal to conclude on the evidence that there was insufficient correlation between the qualification, when considered in its entirety, and the nominated occupation, to find that they were "closely related".

The appellant's first submission 24 The appellant's first submission on the appeal was that there is nothing in the text of cl 485.213(b) to support the proposition that the regulation requires consideration of the relationship between the qualification as a whole and the nominated occupation as a whole. 25 Thus, Mr Karp submitted that the Tribunal and the judge incorrectly introduced a gloss to the wording of the regulation by adopting that construction of cl 485.213(b). 26 I reject that submission. It seems to me 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. 27 Rather than importing a gloss on the wording, this approach is consistent with the plain wording of the legislation. Indeed, there is nothing in the wording which warrants the introduction of the qualification suggested by the appellant, that the relationship can be satisfied by asking whether some of the subjects studied in an applicant's course of qualification are closely related to the nominated skilled occupation, or some part of it. 28 In my opinion, the approach to construction suggested by the appellant is contrary to the plain meaning of the clause and is contrary to the approach adopted in the authorities which have considered the proper construction of the clause. I will refer to those authorities in addressing the appellant's second submission.

The appellant's second submission 29 The second submission was that, considered in its full legislative context, cl 485.213(b) requires a relationship of sufficient proximity between the qualification and the nominated skilled occupation. Mr Karp submitted that this could be satisfied where the course of study used to satisfy the Australian study requirement assists an applicant in his or her nominated skilled occupation. 30 Again, there is nothing to warrant this approach to construction of cl 485.213(b). In particular it is contrary to the construction which has been adopted in this Court in the authorities referred to in the Tribunal, and in one other authority. 31 The starting point for consideration of the authorities is the decision in Uddin. North J said at [12]: In my view, the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary. 32 The approach adopted in Uddin was followed by Logan J in Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113. His Honour said at [23] that in approaching the clause by reference to its subject matter, scope and purpose and language, the term "closely related" does not bear the less stringent meaning stated in the Minister's Procedures Advice Manual (PAM 3). 33 Logan J went on to say in Prasad at [24]: "Closely related" certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of "near" in the present context. "Related" requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation. 34 The stark results that may arise from that test were illustrated by Logan J in an example set out at [25] in Prasad. 35 The same approach was taken by Cowdroy J in Manik v Minister for Immigration and Citizenship (2012) 128 ALD 539 at [19]-[20]. 36 More recently, in Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254 at [22], Katzmann J accepted the correctness of the approach taken by Logan J in Prasad. 37 In my respectful opinion, each of these decisions adopts the correct approach to the construction of the degree of proximity or relationship required by cl 485.213(b) between the qualification that is relied upon and the nominated occupation. The relationship must be one which is more than complementary and more than one in which the qualification is useful to the nominated occupation. 38 As North J observed in Uddin at [12], the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and one which was less closely related. The Tribunal in the present case adopted the approach accepted in Uddin and followed in later authorities. The learned judge in the present matter was correct to find that there was no error in so doing. 39 Clause 485.214 does not assist the appellant. It is concerned with a different criterion from that which is stated in cl 485.213. It says nothing about the requisite relationship between the qualification and the nominated occupation and has no bearing upon the construction of cl 485.213(b). 40 For the same reasons, the criterion stated in cl 485.221 is of no assistance in the construction of cl 485.213.

The appellant's third submission 41 The appellant's third submission was that cl 485.213(b) is so vague and uncertain as to be invalid. This was put as an alternative submission to the appellant's central proposition about the degree of proximity required by the words "closely related to" in cl 485.213(b). 42 The effect of the appellant's submission was that the Tribunal's construction of cl 485.213(b), by requiring a comparison of the whole of the qualification with the whole of the nominated occupation, looked to something which was amorphous and therefore not capable of comparison. 43 It is well accepted that delegated legislation may be declared invalid on the ground of unreasonableness if it leads to capricious or unjust results. The rationale for the principle is that such legislation cannot be within the scope of the power intended to be conferred by Parliament upon the subordinate legislative authority: Williams v The Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1933) 49 CLR 142 at 149-150; see also Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 383-384. 44 However, as Lockhart J observed in Austral Fisheries at 384, it is only in an extreme case that the Court takes the step of declaring delegated legislation to be invalid on this ground. This is not such a case. 45 As a matter of statutory construction, in its application to the facts of any given case, there is no real difficulty in determining what may or may not fall within the scope of a particular qualification and what is comprised in a nominated occupation. The Tribunal and the Court have been able in the authorities referred to above to determine that question without producing results that are capricious or arbitrary. 46 It may be true, for reasons referred to later, that there may be some injustice in the present case but the injustice is not brought about by the requirements of cl 485.213(b). Rather, it may come about because of the less stringent relationship between the qualification and the nominated occupation that was required by the Department under the policy stated in PAM 3. For reasons explained in Uddin and later authorities, the earlier approach of the Department was inconsistent with the plain terms of the Regulations. 47 Nor is there any scope for adoption of the submission that the "arbitrariness" of the result contended for by the Minister points in favour of a less stringent relationship. Such an approach is contrary to the language of the clause and contrary to the authorities to which I have referred.

No jurisdictional error 48 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 misdirect itself as to take its decision beyond jurisdiction: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[27]. 49 This approach was adopted by Logan J in Prasad at [19] and by Katzmann J in Dhiman at [22]. The same conclusion follows in the present case. 50 The relevant qualification relied upon was the Diploma in Advanced Hospitality Management that was used to satisfy the Australian study requirement. The Tribunal found that this diploma was not closely related to the nominated occupation of marketing specialist. The learned judge held that it was open to the Tribunal to conclude on the evidence that there was insufficient correlation between the qualification and the nominated occupation for them to be "closely related". 51 This was a finding that the Tribunal had not fallen into jurisdictional error. I see no error on the part of the judge in making that finding.

Conclusion and orders 52 As I said above, there may be some degree of injustice in this matter because on the approach adopted by the Department prior to the decision in Uddin, the appellant may have been able to satisfy the less stringent test which was previously accepted by the Department. The appellant's course of study seems to have commenced before the decision in Uddin. 53 Nevertheless, for the reasons stated above, there is no appealable error in the orders of the Federal Circuit Court. The appeal must therefore be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.