Appeal to this Court
51 The first ground of appeal is that the learned Federal Magistrate fell into jurisdictional error by failing to correctly apply clause 138.216. His Honour found, in essence, that the Tribunal committed a jurisdictional error by failing to consider whether Mr Hossain's tasks required him to exercise his tertiary-level skills.
52 The appellant submits that the learned Federal Magistrate erred by finding that the Tribunal was required to consider whether Mr Hossain was applying higher-order skills. The appellant says the question the Tribunal was required to consider was whether Mr Hossain was employed as a Business and Information Professional, not whether he was utilising some of his skills arising out of his qualifications. The appellant submits that the Tribunal undertook the required task by examining Mr Hossain's responsibilities, ascertaining his description of the elements of those responsibilities, and then considering whether those duties went beyond the tasks of Bank Workers and Credit and Loan Officers.
53 The appellant submits that this is a factual finding. In Shahid v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1412, Kiefel J considered a Tribunal finding as to whether a visa applicant's duties were those of a skilled occupation under clause 138.216. Her Honour considered such a finding to be one of fact. The appellant says the Tribunal's finding that Mr Hossain was a Bank Worker was a finding of fact open to it on the evidence.
54 The respondent submits that Shahid is distinguishable on the facts. However, her Honour's description of a finding under clause 138.216 as a finding of fact is not dependent on the facts of the case. A decision as to whether Mr Hossain's tasks are those of a skilled occupation requires an examination of those tasks in parallel with the tasks of the skilled and non-skilled occupations under consideration, and a conclusion as to which occupation more closely aligns with his tasks. That is a factual matter and thus not open to review.
55 Clause 138.216 requires the visa applicant to be employed in "a skilled occupation" for a specific period of time. A skilled occupation is not an occupation in which higher-order skills are utilised. A skilled occupation is an occupation which has been specified by the Minister in an instrument in writing, as a skilled occupation. It was proper for the Tribunal to examine the tasks Mr Hossain actually performed against ASCO classifications to determine which of those classifications most closely described Mr Hossain's actual employment. Having determined that his responsibilities were most closely aligned with a Bank Worker or Credit and Loans Officer rather than with a Business and Information Professional, it was proper for the Tribunal to conclude that Mr Hossain had not been employed in a skilled occupation. Whether Mr Hossain was utilising his tertiary-level skills in undertaking the tasks of a non-skilled occupation is not relevant to that determination.
56 The learned Federal Magistrate erred in finding that the Tribunal had committed jurisdictional error by failing to consider whether Mr Hossain's tasks required him to exercise his tertiary‑level skills.
57 In relation to the second ground of appeal, the appellant says that the learned Federal Magistrate erred in finding that the Tribunal's conclusion was one, no reasonable Tribunal could have reached, in reliance on the failure to act upon unchallenged evidence, and on the basis that the Tribunal incorrectly focussed on the "tasks" level rather than the "skills" level.
58 The respondent submits that the Tribunal's finding that Mr Hossain did not satisfy sub-clause 138.216 was contrary to the evidence, which it says was to the effect that Mr Hossain worked in the nominated occupation and undertook the duties required.
59 The appellant contends that the weight to be given to the evidence is a matter for the Tribunal. It says the Tribunal properly and fully examined the tasks listed as the responsibilities of a Business and Information Professional, a Bank Worker, and a Credit and Loans Officer, and concluded that the responsibilities Mr Hossain had engaged in did not go beyond those of a Bank Worker or Credit and Loans Officer. The appellant submits that this finding of fact was open to the Tribunal on the evidence.
60 The Tribunal expressly took into account the evidence submitted by the visa applicant. It is correct to say that the visa applicant's evidence was unchallenged. However, it was not the only evidence before the Tribunal. Also the Tribunal is not required to accept or act upon unchallenged evidence. The weight to be placed on particular pieces of evidence is a matter for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464).
61 A review of the material before the Tribunal and the Tribunal's reasons demonstrate that the Tribunal acted upon the evidence put forward by Mr Hossain. The decision sets out in considerable detail the tasks Mr Ahmad ascribes to Mr Hossain in his letter of 11 June 2007 (p 6). It also discusses Mr Hossain's evidence as to the correct interpretation of the descriptions of his tasks. Based on that evidence, the Tribunal came to the conclusion that the tasks as described by Mr Ahmad and Mr Hossain were those of a Bank Worker or Credit and Loans Officer.
62 Federal Magistrate Burnett found that the Tribunal had committed a jurisdictional error by focusing on Mr Hossain's tasks rather than his skills. Clause 138.216 does not specify whether, in considering whether an applicant's occupation is a skilled one, a decision-maker is to give primary weight to the applicant's skills, or to the tasks actually undertaken. The ASCO classifications for Bank Worker and Credit and Loans Officer contain two types of information about those occupations: "Skill Level" and "Tasks Include". The ASCO classification for Business and Information Professionals contains information about "Skill Level" and "Occupations in this group include", but not about tasks.
63 However, "skills" is to some extent a misnomer. The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation. Instead, it contains information as to the qualifications required for entry to that occupation. The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and / or training, and previous experience.
64 In order to determine whether an applicant's employment fits into a particular ASCO classification, a decision‑maker is required to consider all of the details set out in that classification. However, in making such a decision, the skills that are to be considered are those set out in the "Skill Level" section of the classification to which the applicant's position is being compared. That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation.
65 Although the Tribunal did not expressly analyse the application in terms of the "skills" criterion, it is clear from a consideration of the Tribunal's reasons that it accepted that Mr Hossain had the relevant qualifications based on his certificates and on the VETASSESS assessment. The Tribunal, in substance, assessed and determined the particular question of "skills" for the purposes of the ASCO classifications, in reaching its decision on the facts. It was necessary for the Tribunal also to consider the "tasks" section of the classifications, and this examination is set out in some detail (p 10).
66 The Tribunal's decision was not "so devoid of any plausible justification that no reasonable body of persons could have reached [it]" (Andary v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 211). The learned Federal Magistrate erred in concluding that no reasonable Tribunal would have reached such a conclusion.
67 The third ground of appeal is that the learned Federal Magistrate erred in finding that the Tribunal, in asking whether the visa applicant was a Bank Worker / Credit and Loans Officer, rather than whether he was a business information professional, asked itself the wrong question.
68 The appellant submits that the Tribunal considered the ASCO descriptions of a Bank Worker and Credit and Loans Officer as part of determining whether Mr Hossain was actually employed as a Business and Information Professional. It submits that it was reasonable for the Tribunal to ask whether Mr Hossain's position could be described as one of those occupations because Mr Hossain worked in a Bank. The appellant also contends that it was reasonable for the Tribunal to focus on those occupations because the description of Business and Information Professional is not of great assistance. The appellant further says that the Tribunal did not need to enquire further into the responsibilities of a Business and Information Professional because Mr Hossain's tasks fitted exactly within the description of a Bank Worker or Credit and Loans Officer.
69 It is clear from the Tribunal's decision that it did emphasise the comparison between Mr Hossain's duties and those of a Bank Worker or Credit and Loans Officer. However, the Tribunal did consider the description of a Business and Information Professional sufficiently to engage a comparison between Mr Hossain's tasks, the tasks of a Business and Information Professional, and the tasks of a Bank Worker or Credit and Loans Officer, in order to determine the question before it. It focused on Bank Worker and Credit and Loans Officer because it found that those occupations corresponded more closely with Mr Hossain's duties.
70 Accordingly, his Honour erred in concluding that the Tribunal asked itself the wrong question.
71 Accordingly, the appeal is to be allowed and the decision of the Federal Magistrates Court of 19 November 2008 is to be set aside. The decision of the Migration Review Tribunal is reinstated. The respondent shall pay the costs of and incidental to the appeal and the hearing before the Federal Magistrates Court.
I certify that the preceding seventy‑one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.