Manik v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of Federal Magistrate Smith dated 28 February 2012: Manik v Minister for Immigration [2012] FMCA 149. The matter before the Federal Magistrate was an application for judicial review of the decision of the Migration Review Tribunal ('the Tribunal'), which was dated 22 July 2011. 2 The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Skilled (Provisional) (Class VC) visa to the appellant. The Minister's decision was dated 11 November 2010. 3 In his application for a skilled visa, the appellant nominated his skilled profession as 'cook'. The contentious issue in these proceedings concerns reg 485.213 of the Migration Regulations 1994 (Cth) ('the regulation'), which states: The following requirements are met: (a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made; (b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation. 4 To satisfy the two year study requirement specified in the regulation, the appellant relied upon his completion of two separate qualifications. One was a Diploma of Information Technology (System Administration) ('the IT Diploma') which the appellant completed at Uniworld Business College on 24 April 2008. The other was a Certificate III in Hospitality (Commercial Cookery) ('the Cookery Certificate') which the appellant completed at The Illawarra Business College on 1 October 2008. 5 In his decision the Minister determined that the IT Diploma was not closely related to the nominated skill occupation of cook and therefore the appellant did not meet the requirements of the regulation and should not be granted a visa. 6 The appellant sought review of this decision before the Tribunal. The appellant made submissions as to what relevance the IT Diploma had to his stated profession of cook. The appellant sought to establish that there was overlap in the course contents of the IT Diploma and the Cookery Certificate. The appellant also stated that information technology has become so ubiquitous that knowledge of information technology is relevant to almost any profession. Furthermore, the appellant stated that the IT Diploma was relevant towards his ultimate ambition of owning and operating a number of restaurants. 7 The Tribunal considered the description of a cook in the Australian Standard Classification of Occupations ('ASCO'). According to ASCO, a cook 'prepares, seasons and cooks food in catering and dining establishments'. 8 The Tribunal considered the Procedures and Advice Manual 3 ('PAM 3') which is the policy manual which provides guidance to decision-makers on issuing visas. Schedule 2.485.7 of PAM 3 provides guidance to decision-makers about the meaning of 'closely related' for the purpose of the regulations: The 'closely related' requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained. Another instance in which policy does not consider qualifications to be 'closely related' to the nominated occupation is where the level at which the skills prescribed by the relevant assessing authority is inconsistent with the level at which the applicant is skilled to work: [...] Example of not closely related skill levels: The applicant met the Australian study requirement on the basis of having completed a Certificate III in Furniture Making and a Masters of Information Technology. Although basic IT skills are generally applicable to most occupations, the high level skills gained by completing a Masters course are inconsistent with the skills that would be useful on a day to day basis as an entry level tradesperson (for a nominated skilled occupation of Carpenter and Joiner). 9 The Tribunal found that PAM 3 did not accurately reflect the wording of the legislation. The Tribunal found that the legislation required more than just a complementary relationship between the course of studies and the occupation. The Tribunal found that the words 'closely related' required a much stronger link between the academic qualifications and the occupation than just being complementary or useful. The Tribunal stated that it was under no obligation to have regard to PAM 3 as a condition of its jurisdiction: Pasula v Minister for Immigration [2010] FMCA 275 at [21]. 10 The Tribunal decided that the focus of the IT Diploma is to equip the holder of the qualification with skills and knowledge required to maintain complex IT systems. The Tribunal concluded that such skills and knowledge were not closely related to the tasks and responsibilities of the occupation of cook. It therefore affirmed the Minister's decision.