Shahid v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The visa applicant, Mr Khan ('the applicant') is a national of Pakistan. On 3 October 2002 he lodged an application dated 27 August 2002 for a Skilled-Australian-sponsored (Migrant)(Class BQ subclass 138) visa. A delegate of the first respondent refused his application and the applicant applied for a review of that decision by the Migration Review Tribunal ('the Tribunal'). On 16 June 2004 the Tribunal affirmed the decision under review. 2 The applicant's entitlement to a visa depended upon the requirements of clause 138.216 of the Migration Regulations 1994 to the Migration Act 1958 (Cth) which provided in relevant part: '(1) Subject to subclause (2), the applicant has been employed in a skilled occupation: … (b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.' (Subclause 2 does not apply in this case, as the Tribunal found.) 3 Regulation 1.03 defines the term 'skilled occupation' as 'an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available'. Regulation 2.26A(7) defines the word 'employed' as 'engaged in an occupation for remuneration for at least 20 hours weekly': That definition is applicable here (see clause 138.111). 4 The occupation nominated by the applicant in his application was 'hotel or motel manager' under the ASCO Code 3323-11 (the Australian Standard Classification of Occupations directory, Occupation Definitions). The ASCO directory refers to that occupation in the following terms: 'UNIT GROUP 3323 HOTEL AND MOTEL MANAGERS HOTEL AND MOTEL MANAGERS organise and control the operations of hotels or motels in providing guest accommodation, meals and other services. 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: · overseeing reservation, reception, room service and housekeeping activities · planning and supervising entertainment activities · supervising security arrangements and garden and property maintenance · planning and supervising bar, restaurant, function and conference activities · observes liquor, gaming and other laws and regulations · ensuring compliance with occupational health and safety regulations · assessing and reviewing customer satisfaction and preferences · overseeing accounting and purchasing activities Occupations: 3323-11 Hotel or Motel Manager 3323- Hotel or Motel Hotelier Publican Organises and controls the operations of hotels or motels in providing guest accommodation, meals and other services. 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 may be required. Tasks Include: · oversees reservation, reception, room service and housekeeping activities · plans and supervises entertainment activities · supervises security arrangements, and garden and property maintenance · plans and supervises bar, restaurant, function and conference activities · observes liquor, gaming and other laws and regulations · assesses and reviews customer satisfaction and preferences · oversees accounting and purchasing activities · ensures compliance with occupational health and safety regulations · may provide guests with local tourism information, arrange tours and transportation · may manage the entire range of services provided by the establishment or may manage a specialised service area Specialisations: Accommodation Manager Functions Manager Resort Manager' 5 The appropriate authority assessed the applicant as meeting the requirements of his nominated occupation. This was accepted by the Tribunal. 6 Under Gazette Notice 15, of 17 April 2002, the occupation of 'Hotel or Motel Manager (Diploma Level)' is listed in the Schedule and is therefore a skilled occupation. An occupation which might be listed in ASCO but which is not referred to in the Schedule is not to be regarded as a skilled occupation (see Note 5 to the Gazette). The Schedule attributes 40 points to it. 7 The Tribunal considered the matter which arose for its determination under clause 138.216(1) to be as follows (at par 14): '… This means that for the purpose of clause 138.216(1) of the Regulations, the Applicant must have been employed as a hotel or motel manager, being the skilled occupation nominated under the primary application, for a period of, or for periods totalling, at least 24 months in the 36 months preceding the date of lodgement of the primary application on 8 October 2002. The relevant 36-month period being between 8 October 1999 and 8 October 2002.' 8 It was not in dispute that the applicant had worked as a management trainee with the Pearl-Continental Hotel for a period of eighteen months between 30 April 2001 and 8 October 2002. The Tribunal identified the critical issue to relate to the applicant's employment in a restaurant for six months in the passages which follow (at pars 19-21): '19. The Tribunal is satisfied that the Applicant was working at the Hotel as a 'management trainee' either as an employee or through a contractor for about eighteen months in the 36 months between 8 October 1999 and 8 October 2002. Even if the Tribunal were to accept that the duties of a 'management trainee' fall within the ambit of a hotel or motel manager as indicated in ASCO, the Applicant was employed in a skilled occupation about four months of the prescribed twenty-four months. 20. The Applicant was not working between 27 August 2000 and 23 November 2000 as he was in Australia visiting his sister. 21. It is submitted that the shortfall of about six months or so should be covered by the Applicant's 'casual/part-time' employment at the Salt'n Pepper restaurant since March 1999. An undated reference from the Salt'n Pepper restaurant's General Manager Southern Territory which was tendered to the Tribunal under the Review Applicant's solicitor submission of 29 April 2004 provided a 'brief description of the duties performed by [the Applicant] as follows: · Training manager - junior staff (helped in improving and developing structured training program for our staff in different areas: waiting, cashiers, reception, cleaners, etc · Kitchen food checking supervisor · Restaurant supervisor · Private parties supervisor.' 9 I add that neither party to the application was able to explain what the Tribunal may have intended by the last sentence in paragraph 19. This application has proceeded upon the basis that there was no other issue other than that relating to the applicant's employment in the restaurant. 10 The Tribunal concluded (at par 23): 'The Tribunal has carefully considered the Review Applicant's solicitor's submissions and compared the Applicant's duties at the Salt'n Pepper restaurant with those usually required of a hotel and motel manager as set out above. With respect the Tribunal is unable to find that the Applicant's casual/part-time employment at the Salt'n Pepper restaurant may be classified as that of a hotel or motel manager. It would not be unreasonable to say that his duties at the restaurant are more limited than those required of a hotel or motel manager. For example a hotel or motel manager is required to manage more than just a restaurant. There are the functions relating to accommodation which the Applicant would not have had to handle at the restaurant.' 11 The Tribunal determined that the Applicant was not employed in a skilled occupation for the necessary period. 12 Clause 138.216(1) requires that the applicant be employed for the relevant period in the skilled occupation nominated in the application. I did not understand the applicant to suggest that engagement in a different skilled occupation over the period would suffice and note that a restaurant manager is not included as a skilled occupation. The question which arises under the clause for the Tribunal would appear to be one of fact. The Tribunal found that the duties undertaken by the applicant in the six month period in the restaurant were not equivalent to, and were less than, those of a hotel or motel manager. If such a finding was subject to review it is clearly one open on the evidence and by reference to the description of the duties of a hotel or motel manager in the ASCO directory. 13 The applicant's application listed a number of grounds. The first was a general claim that he had not been given a proper, genuine and realistic review. It was not pursued. The applicant's contention, as emerged from written submissions and at the hearing, is that it is sufficient for compliance with the clause that he be employed and using some of the skills he might use as a hotel or motel manager. Those skills or duties include supervising restaurants and functions, the latter being listed as a speciality in the ASCO directory. The applicant gave as an example a teacher who was engaged for a time in making an educative film. It was said that in such a circumstance they would still be a teacher even if they are not using all of the skills that they have as a teacher. 14 So far as concerns the example given, I would think the answer is that the person was not employed and did not carry out the work of a teacher in the period, although they continued to hold qualifications which would enable them to undertake the role of a teacher. A similar approach could be taken to the applicant's position. He remains qualified as a hotel or motel manager, but that is not the matter enquired about. The clause is concerned with actual experience in the nominated occupation. It does not suggest that the holding of skills alone is sufficient. 15 I do not consider that one can conclude from the fact that the applicant was utilising some of the skills he had gained as a hotel or motel manager that he was employed in that capacity. Again, this is a question of fact. There is no error of law disclosed. In particular it is not shown that the Tribunal misunderstood the question posed for it. The applicant appeared to argue that the Tribunal should have approached the issue of his employment at the restaurant by asking itself: was the applicant, when employed at the restaurant, employed in tasks which a hotel or motel manager might ordinarily do? However that is not the question which the Tribunal was required to address. The question was whether he was in fact undertaking the work of a hotel or motel manager. 16 The applicant also sought to argue that the Tribunal had somehow misapplied or gave too much weight to the ASCO classification of duties. It is not said that the directory was an irrelevant consideration and indeed that could not be said. The applicant submitted that the Tribunal applied the directory so as to require the visa applicant to fulfil each of the duties listed of hotel or motel manager. The submission misunderstands the approach taken by the Tribunal, which was not to consider each specified duty. In some cases it may be necessary for a decision-maker to undertake an assessment of the extent of the duties of the nominated occupation which are involved in the employment in question. It was sufficient for the Tribunal's purposes in this case to observe that more is required of a hotel or motel manager, than a restaurant manager, in terms of the areas of operation they are required to manage, including that of accommodation. 17 The applicant has not identified an error of law, let alone one going to jurisdiction. The application will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.