Sharma v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2019-10-18|Before: Charlesworth J

The period in which the applicants may commence an appeal be extended to 16 October 2018.
The appeal is dismissed.
The appellants are to pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 On 21 May 2015 the first appellant, Neetu Sharma applied for a Temporary Work (Skilled) (subclass 457) visa, listing her husband Arvinder Sharma and son Mehak Sharma as accompanying secondary visa applicants. A delegate of the then named Minister for Immigration and Border Protection refused to grant the visa. The Administrative Appeals Tribunal affirmed the delegate's decision. 2 On 10 September 2018, the Federal Circuit Court of Australia (FCCA) dismissed an application for judicial review of the Tribunal's decision: Sharma & Ors v Minister for Immigration & Anor [2018] FCCA 2534. An appeal lies to this Court from that judgment: Federal Court of Australia Act 1976 (Cth), s 24(1)(d). Such an appeal is to be commenced within 28 days after the date of judgment: Federal Court Rules 2011 (Cth), r 36.03(a)(i). By an application filed on 16 October 2018 the applicants seek an extension of time to commence the appeal. The delay amounts to 15 days. 3 For the reasons that follow, an extension of time in which to commence an appeal from the judgment and orders of the FCCA should be granted. I have concluded that the appeal should nonetheless be dismissed.

the application for an extension of time 4 The Court has a discretion to extend the time in which a notice of appeal may be filed: Rules, r 36.05. 5 Rule 36.05 requires an exercise of discretion having regard to all relevant factors: AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 at [19]. Among the relevant considerations are the length of the delay, the adequacy of any explanation given for the delay, the prejudice that might be suffered by the respondent if an extension of time were granted, the prejudice that may be suffered by the applicant if the extension were to be refused and, relatedly, the merits of the proposed appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 ⸺ 349. Where an adequate explanation is given for the delay and the respondent would suffer no prejudice by reason of the delay, an extension of time should ordinarily be granted, provided that the applicant can demonstrate that the grounds of appeal are arguable: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478. These principles are not to be taken to be exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36], nor are they to be applied as if they were statutory preconditions to the grant of an extension of time. 6 In an affidavit sworn on 16 October 2018, Ms Sharma deposed that she and the other applicants were self-represented in the proceedings before the FCCA and that she was unware of the period in which an appeal should be commenced. Ms Sharma deposed that the Minister's legal representatives had served a copy of the orders of the FCCA on her on 14 September 2018 under the cover of a letter requiring the payment of the Minister's costs. 7 The applicants have secured legal representation for the purposes of this application and (should the application be granted) for the substantive appeal. The proposed grounds of appeal are those set out in an Amended Draft Notice of Appeal received by the Court on 11 December 2018. 8 The Minister submits that the explanation for the delay in commencing the appeal is "partly credible". It is not suggested that the Minister would suffer prejudice should an extension of time in which to appeal be granted. The Minister nonetheless opposes the application for an extension of time on the basis that the proposed grounds of appeal have no reasonable prospects of success. 9 At the hearing of the application the parties were afforded the opportunity to make submissions as to the merits of the appeal so that, should an extension of time be granted the Court could proceed to determine the appeal without the necessity off a further hearing. The issues raised on the Amended Draft Notice of Appeal will become apparent in the reasoning that follows. For the purposes of the extension of time application, it cannot be said that the issues are inarguable. 10 Reasonable minds may differ as to the degree of latitude that may appropriately be extended to a litigant who claims to be ignorant of the requirements of the Rules. On this application, I accept the unchallenged evidence of Ms Sharma that she was not aware of the timeframe. I also accept that the applicants have acted promptly to commence the appeal, having regard to their status as self-represented litigants. Their status as self-represented litigants is a circumstance to which I attribute some weight. 11 In all of the circumstances I am satisfied that the time to commence an appeal should be extended to 16 October 2018. The appeal will be taken to have been commenced as at that date. The Amended Draft Notice of Appeal will be treated as the Notice of Appeal and the grounds contained in it will now be considered and determined on their substantive merits.

THE APPEAL 12 Section 65(1)(a) of the Migration Act 1958 (Cth) provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If not so satisfied, the Minister must refuse to grant the visa: s 65(1)(b) of the Act. 13 Section 31 of the Act provides that there are to be prescribed classes of visa and that the Regulations may prescribe the criteria for the visa or visas of a particular class. The criteria for the grant of a subclass 457 visa include those contained in cl 457 of Sch 2 to the Regulations: see reg 2.01. Clause 457.223(1) required that the applicant meet the requirements in either subcl (2) or (4). Clause 457.223(4) relevantly provides: Standard business sponsorship (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and (aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; … (da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and … 14 For the purposes of cl 457.223(4)(da), Ms Sharma claimed to have the skills, qualifications and employment background to perform the tasks of her nominated occupation, being that of a "Painting Trades Worker".

The Tribunal's decision 15 In its written reasons for decision, the Tribunal stated that there was "no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation". The Tribunal said that in determining the question that arose under cl 457.223(4)(da), it may be guided by the Australian and New Zealand Standard Classification of Occupations (the ANZSCO). The use of the ANZSCO as a source of information is provided for by a policy titled "Procedures Advice Manual", known as PAM 3. It relevantly states: 4.7.6.2 Assessment against the nominated occupation in ANZSCO When assessing this criterion, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal source of information on the skill requirements for the nominated occupation - that is, the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. Officers should consider the 'Indicative Skill Level' specified for the nominated occupation in the ANZSCO rather than the general ANZSCO Skill Level. They should also make sure that the qualifications and experience of the visa applicant are relevant to the nominated occupation, for example: … 16 The applicable part of the ANZSCO is as follows: UNIT GROUP 3322 PAINTING TRADES WORKERS PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Indicative Skill Level: Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below. In Australia: AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3) In New Zealand: NZ Register Level 4 qualification (ANZSCO Skill Level 3) At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required. Tasks Include: • erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering • preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces • selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives • applying paints, varnishes and stains to surfaces using brushes, rollers and sprays • hanging wallpaper, matching patterns and trimming edges • cleaning equipment and work areas • may repair windows and replace glass in wooden and metal frames • may lay and repair wall and floor tiles Occupation: 332211 Painting Trades Worker 332211 PAINTING TRADES WORKER Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required. Skill Level: 3 Specialisation: Paperhanger 17 The Tribunal stated that Ms Sharma had provided it with evidence that she had completed a Certificate III in Painting and Decorating and a Diploma in Building and Construction (Management). The Tribunal said that although Ms Sharma had, at the time of her visa application, indicated that she had organised work as a painter with the nominated employer, she had been working in childcare since May 2013. Ms Sharma had told the Tribunal that her nominating employer did not want her to start work until she could work full time. Ms Sharma told the Tribunal that she had undertaken some voluntary work as a painter. The Tribunal attached little weight to Ms Sharma's claims in that regard, concluding that the evidence of prior work experience was "vague and unconvincing" (at [18]). The Tribunal said that there was "very little, if any, evidence that the applicant has any work experience as a Painter" (at [23]). 18 In terms that will be discussed later in these reasons, the Tribunal explained the use which it had put the policy set out in PAM 3 and the ANZSCO. The Tribunal noted that Ms Sharma's painting qualifications had been completed more than three years prior. It reiterated that she had not provided any supporting evidence of any relevant work experience or on the job training, before concluding (at [32]): … On this basis, and after considering the attributes and skills of the applicant and how (or whether) they are being applied in the workplace, the tribunal is not satisfied she has any relevant work experience or background as a Painting Trades Worker. For these reasons, the tribunal is not satisfied that the applicant possesses the skills, qualifications or employment background necessary to perform the tasks of the nominated occupation.

ARGUMENTS ON THE Appeal 19 To succeed before the primary judge it was necessary for the appellants to show that the Tribunal's decision was affected by jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173. 20 The grounds of appeal allege that the primary judge erred by rejecting the following two arguments: 1. The Tribunal misconstrued clause 457.223(4)(da) of the Migration Regulations 1994 (Regulations) as if the applicant need to have the skills, qualifications and employment background necessary to perform the occupation of Painting Trades Worker, whereas the clause enabled the Applicant to fulfil the criteria by merely having the qualifications necessary to fulfil the criteria. 2. The Tribunal failed to give proper genuine and realistic consideration to how the Applicant's Diploma of Business Management and Diploma of Building and Construction enabled her to fulfil the criteria in clause 457.223(4)(da) of the Regulations. 21 The arguments advanced on the appeal do not neatly correlate with any one of the four grounds for judicial review relied upon at first instance. The second ground for judicial review raised similar issues, although it was phrased in terms of the Tribunal having regard to an irrelevant consideration. In rejecting that ground, the primary judge said: 16. In ground 2 the applicants argue that the Tribunal made an error of law in concluding that work experience was a relevant consideration and one of the matters that the applicants should satisfy in order to demonstrate the primary applicant had the skills, qualifications and employment background necessary to perform the tasks in the nominated occupation. 17. The words 'employment background' clearly indicate some degree of work participation in the relevant area. The ANZSCO guidelines clearly identify that work experience is a relevant part of that consideration. It is unsurprising that work experience or on the job training is part of the relevant qualifications for an occupation in the category of that a trade, such as a painter. 18. Having regard to the regulations and the ANZSCO guidelines, it is difficult to see how it could be said that the Tribunal erred in law in concluding that work experience (or the equivalent) was a relevant consideration. In this case there was in substance no evidence of any significant work experience, whether formally as on the job training or informal work experience, nor evidence of other experiences that could reasonably be said to be commensurate with on the job training or work experience as a painter. 22 On appeal, Counsel for the appellant submitted that cl 457.223(4)(da) required the Tribunal to evaluate what was necessary to perform the tasks of the occupation "by reference to the cumulative factors of employment, background, skills and qualifications" of the visa applicant. It was submitted that in cases involving the acquisition of qualifications that involve skills-based learning, proof of on the job experience may not be necessary. This was such a case, Counsel submitted. It was submitted that the absence of "employment background" could not prevent the grant of a visa in cases, such as the present, where employment background was not "necessary to perform the tasks of the nominated occupation". 23 Counsel argued that the guidance provided in the ANZSCO recognised that acquisition of a Certificate IV (or, implicitly, the higher qualification of a Diploma) may serve as an alternative to on the job training. It was submitted that the Tribunal had failed to give proper, genuine and realistic consideration to Ms Sharma's Diploma of Building and Construction (Management). The Tribunal had not analysed what was lacking in Ms Sharma's capacities to perform the substantive tasks of painting and decorating, being the tasks listed in the ANZSCO itself. The Tribunal had not analysed why on the job training (in addition to the qualifications) was necessary for Ms Sharma to (for example) apply paints, varnishes and stains to surfaces using brushes, rollers and sprays, so it was submitted. 24 The crux of these submissions was that the Tribunal had not performed the evaluative task that cl 457.223(4)(da) required and so had committed jurisdictional error. The error, it was submitted, is revealed in the Tribunal's reasons (at [31]): On this basis, in the context of this application, even if the applicant might be considered by virtue of the Certificate III and Diploma of Building and Construction to have the qualifications necessary to perform the tasks of the nominated occupation, the tribunal is not satisfied that she has the skills or employment background. The tribunal has taken into account the claim that clients of the applicant's representative have been granted subclass 457 visas with the same qualifications and no work experience however it can only deal with the facts and evidence before it. Contrary to the representative's claims, the tribunal's own inquiries did not reveal any decisions in which a person with the applicant's qualifications, without any (or very little) work experience, had been found to meet cl.457.223(4)(da).

CONSIDERATION 25 The two grounds of appeal may be considered together. 26 Subject to one qualification, I have concluded that the appellants' submissions concerning the proper construction cl 457.223(4)(da) and the relevant part of the ANZSCO should be accepted. However, I am not satisfied that the Tribunal committed any error in the construction of the clause, nor am I satisfied that the Tribunal erred in the application of the clause to Ms Sharma's individual circumstances.

The proper construction of cl 457.223(4)(da) 27 The task to be performed by a decision-maker under cl 457.223(4)(da) has three elements: (1) identification of the tasks required to be performed by a person in the nominated occupation; (2) consideration and determination of the skills, qualifications and employment background necessary to perform the tasks so identified; and (3) an assessment of whether the visa applicant has the skills, qualifications and employment background that the decision-maker has determined to be necessary. 28 The first element of the task gives rise to an objective factual question. The second and third elements involve evaluative assessments as to factual matters in respect of which reasonable minds may differ. 29 As the appellants correctly submitted, it would constitute an error to construe cl 457.223(4)(da) as requiring visa applicants in every case to demonstrate that they have on the job training or other work experience relevant to the tasks of their nominated occupations, just as it would be an error to proceed on the basis that it was necessary for all visa applicants to possess formal qualifications. The phrase "skills, qualifications and employment background" refers to three discrete things, one or more of which may not be considered necessary in a given case. 30 The nominated occupation is that which has been nominated by the visa applicant's business sponsor, being the occupation which has been approved under s 140GB of the Act: cl 457.223(4)(a). In the present case, Ms Sharma's business sponsor nominated an occupation by reference to a six digit "ANZSCO code" as r 2.72(10)(e)(iv) of the Regulations permitted or required. It seems to me that in cases where the nominated occupation has been identified by a six digit ANZSCO code, it is not only permissible for the Tribunal to have regard to information contained in the ANZSCO but necessary that it do so for the purposes of identifying the tasks to be performed by a person in that occupation. 31 The ANZSCO is structured in a way that provides general information in respect of a unit group of occupations (given a four digit code), and more particular information in respect of specific occupations falling within the unit group (each of which is given a six digit code). In the present case, and at the relevant time, the unit group with the code 3322 had just one occupation falling within it, that of "PAINTING TRADES WORKER" (code 332211). 32 The tasks required of that occupation are not disputed. In determining the skills, qualifications and employment background necessary to perform the tasks, it was permissible for the Tribunal to have regard to the information appearing under the heading "Indicative Skill Level". Importantly however, that part of the ANZSCO does not purport to state what is "necessary" to perform the tasks of the occupation. Rather, the ANZSCO gives an indication that "most" occupations in the unit have "a level of skill commensurate with" the qualifications and experience then listed. The ANZSCO indicates a skill level applicable to the occupation and provides some guidance as to how skills at that level can be attained. 33 It follows that it would constitute an error for the decision-maker to construe or use the ANZSCO as if it laid down an inflexible checklist for the skills, qualifications and employment background necessary to perform the nominated occupation. 34 As to the meaning of the ANZSCO in its application to painting trades workers, it states that a Certificate III in a field relevant to the tasks without on the job training would not of itself be sufficient for the acquisition of the skill level required to perform the tasks, but a Certificate IV without on the job training would suffice. In that sense the ANZSCO embodies an opinion about the extent to which the courses of study to which it refers might assist a person to gain practical skills. In the present statutory context, and subject to what I have said above, that implicit opinion is one to which the decision-maker may have regard in performing at least the second element of the statutory task. To the extent that it was submitted that it was incumbent upon the decision-maker to make his or her own assessment of the curriculum of the Certificate III to ascertain the extent that it involved skills-based learning, the submission should be rejected. In my view, the circumstance that r 2.72(10)(e)(iv) makes express reference to the ANZSCO renders it permissible for the decision-maker to rely upon express or implied opinions based on expertise that may be contained within it. As discussed below, that is what the Tribunal did in Ms Sharma's case.

No jurisdictional error 35 The Tribunal found that Ms Sharma did not have any employment background as a painter. That was a finding that was open to the Tribunal, assuming that "employment background" is equated with on the job training (as was assumed in the appellants' submissions). 36 The reasons of the Tribunal disclose a finding that the subjects studied by Ms Sharma in obtaining her Diploma were not sufficiently related to the tasks of the occupation. The submission that the Tribunal failed to engage with that question should be rejected. The Tribunal expressly referred to a submission advanced by Ms Sharma's representative to the effect that the subjects Ms Sharma studied in attaining her Diploma were complementary to her Certificate III painting qualification, that the Diploma was at least equivalent to obtaining a Certificate IV and that the Diploma could stand as a substitute for on the job training. The Tribunal stated that it had, at the hearing, queried the relevance of the subjects undertaken in the Diploma because of their focus on management. The Tribunal provided Ms Sharma's representative an opportunity to provide submissions on the topic and explained in its reasons why those submissions were rejected. On appeal it has not been shown that the Tribunal made an error in questioning the relevance of the subjects studied by Ms Sharma to achieve her Diploma, nor has it been shown that any such error should properly be categorised as jurisdictional. 37 The Tribunal stated (correctly) that there was no "threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation" and that it was permissible to be "guided" by the ANZSCO (at [10]). Before turning to the ANZSCO, the Tribunal said (at [11]): The tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration. (footnote omitted) 38 The phrase of "how those attributes and skills are being applied in the workplace" resonates at [32] of the Tribunal's reasons where it said that it had considered "the attributes and skills of the applicant and how (or whether) they are being applied in the workplace". The language is adopted from the judgment of Federal Magistrate McInnis in Joshi v Minister for Immigration & Anor [2005] FMCA 1116 which involved a different issue and a differently worded provision. 39 I accept that passages of the Tribunal's reasons at [31] and [32] are suggestive of an approach in which it erroneously construed the ANZSCO as requiring proof of on the job training in every case where the attainment of a Certificate IV qualification had not been achieved. However, after considering the reasons as a whole, I do not consider the Tribunal to have misconstrued cl 457.223(4)(da) or the ANZSCO, nor do I consider the Tribunal to have used the information erroneously. 40 The Tribunal correctly directed itself that proven work experience was not necessarily a requirement in every case and that whether or not it was required would depend on the circumstances of each individual case "and the occupation chosen" (at [27]). The occupation chosen by Ms Sharma involved the performance of practical hands on tasks and the Tribunal's reasons must be interpreted in that context. The Tribunal correctly stated that the ANZSCO provided "guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation", citing PAM 3 in that regard (at [29]). The Tribunal nonetheless acknowledged that the ANZSCO was not comprehensive (at [30]). Whilst the Tribunal appears to have made an assumption that attainment of the Certificate III was not sufficient to demonstrate that Ms Sharma had the skills, qualifications and employment background necessary, that assumption was one that was permissible having regard to the information contained in the ANZSCO, and the practical nature of the occupation Ms Sharma had nominated. 41 It follows that the appeal should be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Migration Regulations 1994(Cth)reg 2.01, 2.72

Migration Act 1958(Cth)ss 31, 65, 140GB

Federal Court Rules 2011(Cth)rr 36.03, 36.05

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