Mendis v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application by Mr Shehan Bernard Mendis ("the applicant") and members of his family for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") made on 17 September 2001 which affirmed a decision of a delegate of the respondent ("the Minister") to refuse to grant a Skilled - Australian Linked (Migrant) (Class AJ) visa ("the visa") to the applicants.

Background 2 The applicant applied for a Concessional Family (Migrant) (Class AJ) visa on 3 June 1996. The class AJ visa was renamed the Skilled-Australian Linked (Migrant) (Class AJ) visa on 1 July 1997. The application was lodged at the Australian Embassy in Moscow, although it appears that the applicant was in Australia at that time on a different visa. As the applicant's usual place of residence was Sri Lanka, the visa application was sent from Moscow to the Australian High Commission in Colombo for further processing. The delegate's decision to refuse to grant the visa was made on 14 April 1998. An internal review was unsuccessful. The applicant then applied to the Tribunal for review of the delegate's decision. 3 To be eligible for the visa the applicant, relevantly, had to meet certain legislative criteria including the primary criteria set out in Parts 105 of Schedule 2 to the Migration Regulations 1994. One primary criterion, to be satisfied at the time of decision, was that the applicant must have the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth). That Subdivision relevantly provided: "93 (1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. (2) In this section: prescribed means prescribed by regulations in force at the time the assessment is made. 94 (1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score. (2)… … 96 (1) … (2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the Regulations." 4 At the time the applicant's application was assessed and at the time of the Tribunal's decision it was necessary to secure 115 points. The prescribed qualifications and points for each qualification were to be ascertained having regard to reg 2.26 and Sch 6 of the Migration Regulations. Seven qualifications were set out in Sch 6 together with the range of points available for each. Part 1 concerned the first employment qualification, for which a maximum of eighty points was available. That Part contained seven items to which differing numbers of points were attributed. Which item was the applicable item in Part 1 depended, in part, on the applicant's "usual occupation". Regulation 2.26(5) of the Migration Regulations provides that a person's usual occupation is an occupation that an applicant has engaged in for gain or reward for a continuos period of at least 6 months during the period of 2 years immediately preceding the application for the visa. 5 In determining what was a person's usual occupation, the Minister may compare the evidence given by a visa applicant about the tasks or duties usual undertaken in the course of their occupation with the occupation definitions in the Australian Standard Classification of Occupations (ASCO) published by the Australian Bureau of Statistics. 6 In his visa application the applicant stated that his usual occupation was that of "silver service waiter". He listed the main tasks and duties performed in that occupation as: "Serving food and beverages to hotel/restaurant customers, taking down food and beverage orders, mixing drink/cocktails, opening and service of wines, presenting ordered food items on silver platters and silver service of these items to guests, tasting and recommending correct wines with correct meals, advising about specials of the day and up-selling food and liquor items to enhance sales." 7 In support of his application, the applicant submitted written references indicating he had been employed by the Colombo Hilton Hotel as a Trainee Assistant Steward from 15 October 1991 to 8 August 1992, by the Galadari Hotel as a "permanent waiter with Silver Service experience, attached to the food and beverage department" from 1 September 1992 to 20 December 1995 and by the Sydney Tower Restaurant as a waiter from April 1996, shortly after his arrival in Australia. The applicant also submitted evidence indicating he had completed 12 years of schooling at St. Peters College in Colombo and a "Restaurant & Bar Service Course 126 with silver service" course conducted by the Ceylon Hotel School which the applicant claimed in his application was one year in duration. 8 Having regard to the duties and tasks listed by the applicant and after consulting the second edition of ASCO ("ASCO 2"), the Minister's delegate found that the applicant's usual occupation was that of "general waiter" (ASCO 2 code 6323-11). In accordance with PAM 3 guidelines and the guidelines in ASCO which set out the minimum Australian skill level or entry requirements for that occupation, the Minister's delegate then determined that the applicant's employment qualification fell within item 6107 of Pt 1 Sch 6 and accordingly awarded him 25 points for that qualification. Together with the points awarded to him in respect of the remaining six qualifications listed in Sch 6, the applicant received 90 points. He failed to achieve the qualifying score of 115 points and did not satisfy the primary criteria for the grant of the visa.