Parekh v Minister for Immigration [2007] FMCA 633

The applicant's visa application sought to qualify for a subclass 495 visa, on the basis that she was sponsored by the South Australian government in relation to a nominated occupation as "internal auditor (ASCO Code 2212-13)". She submitted evidence of the sponsorship, and of a "skilled migration assessment" by the relevant assessor which evidenced that she had qualifications meeting the requirements of the nominated occupation.

However, for reasons which are obscure in the material and submissions before me, the applicant claimed to have been pursuing a different occupation in the past, that of "financial market dealer (ASCO Code 3212-15)", so as to satisfy a time-of-application criterion in Sch.2 item 495.211(1)(b) of the Migration Regulations 1994 (Cth). This relevantly required that "... the Minister is satisfied that the applicant has been employed in a skilled occupation: ... (b) if 40 or 50 points are specified in a Gazette Notice as available for the skilled occupation - for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day when the application was made".

The reference to "skilled occupation" invoked a definition of that term in reg.1.03 which relevantly provided that it "means ... an occupation that is specified in a Gazette Notice for this paragraph as a skilled occupation for which a number of points specified in that Gazette Notice are available". Reg.1.17 empowered the Minister to specify such matters in a notice published in the Gazette.

It is common ground that the delegate correctly identified a relevant Gazette Notice as one dated 29 March 2005 and published in Gazette S 55, 1 April 2005. This contained in Schedule C a "skilled occupations list", with four columns headed: "occupation", "ASCO code*", "assessing authority**", and "points". The footnote reference for "ASCO code" read:

* ASCO Code - ASCO code references are those contained in McLennan, W, ASCO - Australian Standard Classification of Occupations, Second Edition, Australian Bureau of Statistics, 1997. An occupation classification listed in ASCO (second edition) not referred to in the Schedule is not to be regarded as a skilled occupation for the purposes of the definition of that term in regulation 1.03 of the Regulations.

Paragraphs 6, 7 and 8 of the Gazette Notice gave effect to this Schedule, by stating that pursuant to regs.1.17, 1.03 and sub-reg.2.26B(1) the Minister "hereby ...:

6. SPECIFY each occupation referred to in Schedule C to this notice as a skilled occupation for the purposes of paragraph (b) of the definition of "skilled occupation" in regulation 1.03 of the Regulations;

7. SPECIFY the number of points referred to in Schedule C to this notice for the corresponding occupation set out in Schedule C for the purposes of paragraph (b) of the definition of "skilled occupation" in regulation 1.03 of the Regulations; AND

8. SPECIFY each person or body referred to in Schedule C to this notice as the relevant assessing authority for the corresponding skilled occupation set out in Schedule C for the purposes of subregulation 2.26B(1) of the Regulations.

Schedule C contained many pages showing a list of one line references to occupations, each with a corresponding ASCO code, a reference to an assessing authority and a specified number of points. One such line showed:

Extracts from the ASCO publication identified in the Gazette Notice are in evidence before me. Its introductory chapters contain an explanation of "the concepts of 'job' and 'occupation'":

ASCO is a skill-based classification which encompasses all occupations in the Australian work force. The concept of 'job' and 'occupation' are fundamental to an understanding of the classification.

A 'job' is a set of tasks designed to be performed by one individual in return for a wage or salary. Of course, some people may work for themselves but are still regarded as having a job and belonging to the labour force.

An 'occupation' is a set of jobs with similar sets of tasks. An occupation in ASCO is a collection of jobs which are sufficiently similar in their main tasks to be grouped together for the purposes of the classification.

The code classifies 986 occupations identified by reference to an assessment of their "skill level" and "skill specialisation". They are grouped into five hierarchical levels: major group, sub-major group, minor group, unit group and occupation. Each occupation is given a complex definition, the components of which are explained:

The main features of occupation definitions are as follows:

Principal title The principal title is the title which best describes the particular occupation. It will generally be the most commonly used title, although there are exceptions in cases where the most commonly used title is too broad or too narrow for the ASCO occupation, or where occupations of different content are usually known by the same title.

Alternative title Some titles are followed by an alternative title (or titles) listed directly below the principal title. These alternative titles have the same meaning as the principal title but may be less commonly used.

Lead statement A concise description of the nature of the occupation, summarising the main activities undertaken.

Skill level This specifies the usual entry requirements for the occupation, expressed in terms of the amount of formal education and/or training and previous experience. Special requirements such as registration or licensing are indicated under this heading.

Tasks This list specifies a representative list of the primary tasks performed in the occupation.

Specialisation titles These are commonly occurring titles referring to a subset of jobs belonging to the occupation designated in the principal title. These jobs involve the performance of specialised tasks rather than the broader range of tasks usually performed in the occupation.

The occupation entitled "financial market dealer" falls within a "unit group" which is introduced:

UNIT GROUP 3212 FINANCIAL DEALERS AND BROKERS

FINANCIAL DEALERS AND BROKERS conduct financial market transactions on behalf of clients, offer advice on financial matters, sell insurance, buy and sell commodities, determine risks and accept bets on the outcome of racing and other events.

Skill Level:

The entry requirement for this unit group is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Tasks Include:

• obtaining information on securities, market conditions, government regulations and financial circumstances of clients

• executing orders in the market place on behalf of clients and offering advice on financial matters such as stocks and bonds, market conditions and the history and prospects of corporations

• recording and transmitting buy or sell orders

• calculating and recording costs of transactions

• developing lists of investments for clients

• planning buying and selling activities

• interviewing prospective clients to explain insurance policy conditions, risks covered, premium rates and benefits, and making recommendations on the amount and type of cover

• offering and varying odds on competitors after considering the type of event, handicaps, weather conditions, and odds offered by other bookmakers

Occupations: 3212-11 Stockbroking Dealer

3212-13 Futures Trader

3212-15 Financial Market Dealer

3212-17 Commodities Trader

3212-19 Insurance Broker

3212-21 Bookmaker

3212-79 Financial Dealers and Brokers nec

The occupation of "financial market dealer" is then defined:

3212-15 Financial Market Dealer

Money Market Dealer

Buys and sells securities within financial markets, and trades and distributes financial securities on behalf of financial institutions.

Skill Level:

The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification. Registration or licensing is required.

Tasks Include:

• obtains information on securities, market conditions, government regulations and financial circumstances of clients

• trades securities within the wholesale treasury markets or inter-bank arena

• distributes securities

• makes prices within a dealing room environment

• interprets data from securities reports, financial periodicals and stock-quotation viewer screens

• provides information and offers advice on financial market matters, market conditions and the history and prospects of corporations

• records and transmits buy and sell orders

• calculates and records costs of transactions

• develops lists of investments for clients

Specialisations:

Derivatives Dealer

Fixed Interest Dealer

Foreign Exchange Dealer

In the present case, the information presented to the delegate in support of the applicant's claim that she had pursued the occupation of "financial market dealer" for at least two of the previous three years was extremely sparse. It consisted of the assertions in the applicant's agent's covering letter:

The primary visa applicant was self-employed from since 1990. Her income is derived solely from stock market operations. She has submitted tax returns for the past five years along with her profit and loss accounts and bank statement. These documents evidence that the primary visa applicant and her spouse actively managed their own portfolio from 1990 and that the brokers have always acted on their instructions for the purchase and sale of stocks, bonds and other investments.

Based on our assessment her occupation may be classified as Financial Market Dealer (ASCO Code 3212-15) which is an occupation on the Skilled Occupation List. Therefore she meet this requirement.

The agent enclosed a bundle of tax documents, but there was no analysis of these which allowed any real assessment of the extent or nature of the applicant's activities in relation to managing the investments of herself and her husband. No evidence was presented to show that the applicant was registered or licensed in India as a financial market dealer, or had qualifications equivalent to those required for a relevant licence in Australia.

The delegate's reasons for not being satisfied that the applicant met the requirements of item 495.211 were also economical. As I shall explain below, a full statement of reasons was not required by the Act. After setting out the "lead statement" and the "tasks" from the ASCO definition of "financial market dealer", the delegate said:

Your self-employment trading on financial markets does not meet this definition as you are not trading stocks on behalf of financial institutions, or a group of clients. The information in your application indicated that you trade only within your own portfolio. As such I am not satisfied that you have been employed in a skilled occupation in the three years prior to your application, and therefore do not meet the requirements of item 495.211(1) of the Migration Regulations.

Subclause 495.211(2) allows for a waiver of the recent work experience requirement on the basis of an Australian qualification completed in the six months immediately before the application is made. As you do not hold an Australian qualification I find that you are not eligible for a waiver of the recent work experience requirement.

I find that I am not satisfied that you are able to meet the mandatory requirements of subclause 495.211.

The present application requires me to consider whether this reasoning reveals a misapprehension as to the legal status and effect of the ASCO definition, when referred to in the legislative instruments set out above. In particular, the ground of review, as refined in the course of counsels' submissions, raise the following issues:

i)

Whether the delegate treated the ASCO definition as providing the exclusive considerations required to be addressed when deciding whether the applicant had been employed in her claimed occupation.

ii)

If so, whether this reflected an incorrect interpretation of the Gazette Notice "specification" of an occupation as a "skilled occupation".

iii)

If it did not, whether the delegate's reasoning revealed an incorrect interpretation of the ASCO definition of "financial market dealer".

iv)

Whether there was any relevant consideration which the delegate failed to take into account.

The applicant's grounds of review which raised these issues were framed in an amended application:

1. The delegate of the respondent failed to ask himself the correct question.

(a) The delegate assessed the applicant's usual occupation exclusively on the basis of Australian Standard Classification of Occupations (ASCO) descriptions whereas the delegate should have asked himself how the work currently being undertaken by the applicant, together with her experience and training would be described in Australia.

2. The delegate made his decision on the basis of policy without considering the merits of the case.

(a) The delegate adhered rigidly to the description of a "financial market dealer" in the ASCO compendium and failed to consider that the applicant may have been a "financial market dealer" despite the fact that her work differed marginally from the duties of a "financial market dealer" as described in that publication .

3. The delegate erred in failing to ask the right question.

(a) The delegate asked himself for whom did the applicant trade shares, whereas he should have asked how the work currently being undertaken by the applicant, together with her experience and training would be described in Australia.

Did the delegate give the ASCO definition an incorrect status?

The reasoning of the delegate is not clear whether he confined his consideration of the applicant's occupation by addressing only the ASCO definition. However, I am inclined to consider that, in the context of his earlier references to parts of that definition, his language in the reasoning extracted above shows that he decided the applicant's qualification by reference to that definition. I would understand his reasoning as being that the ASCO definition did not encompass a person in the situation described by the applicant's agent, who dealt with securities only within her own portfolio and not "on behalf of financial institutions, or a group of clients".

I therefore accept this element in the argument of the applicant's counsel. I accept his argument that the delegate did not embark on a broad consideration of whether the occupation described by the applicant's agent fell within the words "financial market dealer" considered as words of ordinary parlance, unfettered by the definition presented by the statisticians who compiled the ASCO classifications.

The delegate's reasoning is also unclear whether the delegate confined his consideration to the ASCO definition because he thought that the law required it, or because he thought that the applicant's agent had invited it. However, this is immaterial to the applicant's argument. If the delegate confined himself to the ASCO definition by reason of an erroneous legal opinion on the effect of the Gazette Notice when adopted by the definition of "skilled occupation" in reg.1.03, then this would amount to jurisdictional error (cf. Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 at [42]- [62]). If he confined himself because he thought that the applicant's agent had invited reference only to the ASCO definition, then jurisdictional error would still arise if this was legally misconceived, since the delegate had the duty to consider the visa application according to a true construction of the visa criteria and not according to the interpretation taken in a visa application.

In support of his argument that the ASCO definition could not be treated as exclusive or exhaustive of whether the applicant's occupation was that of "financial market dealer", counsel for the applicant referred me to a series of cases which considered visa criteria requiring the determination of a person's "usual occupation", where that term was undefined by any reference to the ASCO code. In particular, he cited the judgment of Einfeld J at first instance in Ye Hu v Rees & Minister for Immigration & Ethnic Affairs (1997) 46 ALD 509 at 511 and 515 (upheld on different grounds in Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 at 322-324), and of Wilcox J in Zeng Guang Wang v Minister for Immigration & Multicultural Affairs [1998] 30 FCA (30 January 1998). Counsel submitted that the present delegate made the same error as was found by Wilcox J:

The reasons given by Mr Rees for determining that Ms Wang's usual occupation was importer and exporter are sparse in the extreme. But it is apparent Mr Rees approached his task by asking himself which ASCO classification her activities seemed most nearly to fit. This approach was incorrect. Item 6102 of Schedule 6 made no reference to ASCO. The item referred to an applicant's "usual occupation". In considering how Ms Wang's mix of duties and experience ought properly to be described, Mr Rees was entitled to consult ASCO or any other relevant reference work. But he was not bound by the classifications contained in ASCO; there must always be a possibility that the usual occupation of an applicant will not aptly be described in ASCO at all.

...

A decision-maker required to determine the "usual occupation" of an applicant should consider the nature of the duties currently being undertaken by the applicant and his or her training and previous work experience and then determine how this composite of duties, training and experience would be described in Australia. In relation to some occupations, the particular industry in which the person is engaged may be significant; in others it may not. For example, "journalist" may be a sufficient description of the usual occupation of a person trained in journalism and working as such, without reference to whether the person is working in the print or electronic media. Similarly, perhaps, with a human resources officer of a company.

However, in my opinion, the above reasoning demonstrates a clear distinction between the legislation required to be addressed by the present delegate. In the present case, the definition of "skilled occupation" was expressly tied to an occupation which was "specified" in the Gazette Notice. The manner of that specification was, in my opinion, clearly one which adopted the ASCO definitions identified in the list in Sch.C to the Gazette Notice. I reach this conclusion not only due to its apparent structure, in which the first two columns appear clearly intended to be read together so as to incorporate the full ASCO definitions by reference to their short titles and classification numbers found in the ASCO code. I also consider that the purpose of the references to the ASCO classifications in Sch.C is apparent: it is to provide to the Minister's decision-makers a ready and authoritative source of definitional rules and descriptions for classifying occupations. Reading the whole of the relevant parts of the Gazette Notice, I do not accept that its author intended that decision-makers should be at large in deciding whether a person's occupation answered only the descriptive words of an occupation in column 1, and that they should treat the ASCO code only as an optional and inconclusive guide to those words.

I therefore reject the foundation premise of the argument presented by counsel for the applicant. His arguments, however, also opened up the question whether the delegate misunderstood the ASCO definition, by finding that the applicant did not come within its terms because she was trading only within her personal portfolio.

Did the delegate apply an incorrect interpretation of the ASCO definition?

In my opinion, the ASCO definition, read in its context of the "unit group" in which it is classified, is open to an interpretation that a person occupied as a "financial market dealer" will ordinarily be performing tasks as an intermediary or agent for clients or financial institutions. This is suggested by the reference to "on behalf of financial institutions" in the "lead statement" and the reference to "for clients" in the "tasks", as well as the general nature of the described tasks.

I therefore do not accept that the delegate's reasoning reveals a misapprehension as to the effect of the ASCO definition by reason of his reliance on the fact that the applicant traded only on behalf of herself. On the evidence before the delegate, I consider that the delegate's conclusion that the applicant's occupation did not fall within the definition was open to him, whether it was a conclusion of law or of fact (cf. Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 at 324-325, and cases cited therein).

As well as arguing that reference to the applicant's self-trading characteristic was irrelevant, counsel argued that there were many other relevant considerations which the delegate failed to consider. These included the possibility that, in exceptional circumstances, it was conceivable that a registered financial dealer might perform all of her activities for and on behalf of herself only. Counsel also argued that the delegate should have considered further the details of the dealing activities performed by the applicant, as well as her relevant experience and qualifications as a financial market dealer - although he did not refer me to evidence of any such particular information being provided to the delegate.

One difficulty facing the applicant in seeking to establish that relevant matters were not considered, is that under s.66(3) the Minister's delegate was not obliged to "give written reasons ... why the criterion was not satisfied", since the visa could not be granted while the applicant was in the migration zone (see Sch.2 item 495.412) and the delegate's decision was not an MRT-reviewable decision on the application of either the applicant or her sponsor (cf. s.338(2)(a) and (5) - and see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [4]- [5], and on appeal Vishnumolakala v Minister for Immigration & Multicultural Affairs [2007] FCA 248 at [8]- [12], and Vishnumolakala v Minister for Immigration & Multicultural Affairs (No 2) [2007] FCA 594 at [3]).

Taking into account the absence of a duty to give a complete statement of reasons, and the brevity of the applicant's claims to have been occupied for the previous three years as a "financial market dealer", I am not persuaded that there was any relevant matter which the delegate was required by law to consider and did not take into account.

I am not persuaded that his decision was affected by jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM