Silveira v Australian Institute of Management

Thus there is a Class BN visa, which has two subclasses. For present purposes, the relevant subclass is Subclass 136.

4 Section 46(1)(b) of the Act provides that an application for a visa is valid only if it satisfies the criteria and requirements prescribed under s 46. Under s 46(3) the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Under s 46(4) the Regulations may, in particular, prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application. 5 Regulation 2.07(1) provides that, for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa other matters relating to the application other than the approved form and charge are set out in the relevant part of Schedule 1. Clause 1128C(3)(c) provides that an application for a Class BN visa must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant for his or her nominated skilled occupation.

CRITERIA FOR GRANT OF CLASS BN VISA 6 Regulation 2.03(1) provides that for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant part of Schedule 2. Under the heading "Sub-clause 136 Skilled-Independent" in Schedule 2, clause 136.2 specifies the primary criteria for a class BN visa that must be satisfied at the time of application and at the time of decision. Item 136.212 requires that at the time of application the applicant has "nominated a skilled occupation in his or her application". 7 Subclause 136.22 specifies criteria to be satisfied at the time of decision. Items 136.222 and 136.223 are presently relevant. I shall deal with each separately.

ASSESSMENT OF SKILLS 8 Item 136.222 requires that, at the time of decision, "the skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation". 9 The term "skilled occupation" is defined in r 1.03 as meaning: "an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available." The term "relevant assessing authority" is defined in r 1.03 as meaning: "a person or body specified under Regulation 2.26B." Regulation 2.26B provides that the Minister may, by notice in the Gazette, specify a person or body as the relevant assessing authority for a skilled occupation if the person or body is approved in writing, by the Minister or the National Office of Overseas Skills Recognition, as the relevant assessing authority for the occupation. 10 By Gazette Notice dated 17 May 2000, published in the Commonwealth of Australia Gazette of 7 June 2000, the Minister: · specified each occupation referred to in the Schedule to that notice as a skilled occupation for the purposes of the definition of "skilled occupation" in r 1.03; and · specified each person or body referred to in the same Schedule as the relevant assessing authority for a skilled occupation for the purposes of rr 1.03 and 2.26B.

11 The Schedule to the Gazette Notice contains a listing of occupations under four column headings. For present purposes it is necessary to refer to only one of the entries in the schedule as follows: OCCUPATION ASCO CODE* ASSESSING POINTS AUTHORITY** FOR SKILL Supply and Distribution Manager 1223-11 AIM 60

12 At the end of the Code there is a legend, which defines ASCO Code as follows: "ASCO code references are those contained in McLennan, W, ASCO - Australian Standard Classification of Occupations, Second Edition, Australian Bureau of Statistics, 1997." 13 Note 5 to the Gazette Notice also provides as follows: "(5) 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 regulation 1.03 of the Regulations." 14 The legend at the end of the ASCO Code contains a definition of "AIM" as referring to the Institute. 15 The ASCO Code is a skill-based classification published by the Australian Bureau of Statistics. It is intended to encompass all occupations of the Australian work force. The Code contains definitions of jobs and occupations in a hierarchical table. Thus, it begins with nine major groups as follows: "1. Managers and Administrators 2. Professionals 3. Associate Professionals 4. Tradespersons and Related Workers 5. Advanced Clerical and Service Workers 6. Intermediate Clerical, Sales and Service Workers 7. Intermediate Production and Transport Workers 8. Elementary Clerical, Sales and Service Workers 9. Labourers and Related Workers" 16 The major groups are then divided and sub-divided. Thus, Major Group 1, "Managers and Administrators", is divided into sub major groups as follows: "11 Generalist Managers 12 Specialist Managers 13 Farmers and Farm Managers"

The sub-major group 12 "Specialist Managers" is then sub-divided into minor groups as follows: "121 Resource Managers 122 Engineering, Distribution and Process Managers 123 Sales and Marketing Managers 129 Miscellaneous Specialist Managers: 17 The minor group 122 "Engineering, Distribution and Process Managers" is then further sub-divided into unit groups as follows: "1221 Engineering Managers 1222 Production Managers 1223 Supply and Distribution Managers 1224 Information Technology Managers" At that level some unit groups are further sub-divided. However, unit group 1223 "Supply and Distribution Managers" contains only one occupation. 18 Item 1223-11 to the ASCO Code states that Supply and Distribution Managers "plan, administer and review the supply, storage and distribution of equipment, materials and goods used and produced by organisations". It states that the skill level for that occupation is as follows: "The entry requirement for this unit group is a bachelor degree or higher qualification or at least five years' relevant experience. In some instances relevant experience is required in addition to the formal qualification." 19 The Item then describes the tasks of a person in that occupation as follows: "· directs the formulation of purchasing, storage and distribution strategies, policies and plans

· prepares and implements plans to maintain required stock levels at minimum cost

· negotiates contracts with suitable suppliers to meet quality, cost and delivery requirements

· monitors and reviews storage and inventory systems to meet supply requirements and control stock levels

· oversees recording systems to track all movements of supplies and finished goods, and ensures re-ordering and re-stocking at optimal times

· liaises with other departments and customers concerning outward goods requirements and associated forwarding transportation

· directs the recording of purchase, storage and distribution transactions

QUALIFYING SCORE 20 An additional criterion to be satisfied at the time of decision is provided for in item 136.223 as follows: "The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act." Subdivision B provides for the application of the "points" system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes. Section 93, which is contained in Subdivision B of the Act, provides that the Minister must make an assessment of a qualifying score by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. Regulation 2.26A(2)(a) relevantly provides that each qualification specified in column 2 of an item in Part 1 of Schedule 6A is prescribed as a qualification in relation to the grant to the applicant of a subclass 136 (Skilled-Independent) Visa. Under r 2.26A(3) the number of points specified for a qualification specified in column 2 in an item in Schedule 6A is specified in Column 3 of the item. Part 1 of Schedule 6A contains the following: Column 1 Column 2 Column 3 Item Qualification Number of Points 6A11 The occupation nominated by the applicant in his or her application is specified by Gazette Notice as a skilled occupation for which 60 points are available. 60

21 The effect of those provisions is that, by nominating a skilled occupation in an application in accordance with item 136.212, an applicant will be assessed, under s 93, with the number of points applicable to that occupation. In the present case, pursuant to the Gazette Notice, the number of points applicable to the occupation of "supply and distribution manager" is 60.

FACTUAL BACKGROUNd 22 On 12 July 2000, a registered migration agent acting for Ms Silveira wrote to the Institute enclosing the Institute's duly completed assessment form in respect of Ms Silveira. Other supporting material was also enclosed. The form was headed "Assessment of Management Qualifications for Migration". The supporting material included a detailed curriculum vitae and evidence of the grant of a degree of Bachelor of Commerce from the University of Bombay. The assessment form disclosed that Ms Silveira's current employment was as "operations and logistics manager" with APL Limited in Dubai in the United Arab Emirates. 23 On 18 August 2000 the Institute replied to the migration agent saying, relevantly, as follows: "The Manager Assessment material you have forwarded to this office in relation to a subclass 136/138 visa application has now been examined and from the information supplied I regret to advise that the applicant's skills have been assessed as not meeting the minimum requirements for the purpose of skilled migration. To satisfy these requirements applicants must hold a senior management position at the level of an Associate Fellow of AIM and for your information the criteria used is as follows: A record of proven management achievement over a period of five years or more in a senior management position such as a chief executive, general manager or senior functional manager who delegates authority to several other managers who hold positions requiring the delegation of work to several other positions of a supervisory, or technical, or skilled nature. A critical factor to be considered in assessing a position against the guidelines is whether a person delegates authority to other managers who are themselves responsible for planning, organisation, decision making, staffing and control, and who in turn delegate to others. It should be noted, however, that it is not simply that a manager has subordinate managers reporting but also the range of functions those subordinate managers themselves undertake. ……………………… It is noted that the applicant reports to the General Manager Operations & Logistics and assists him in the supply chain operation. It would be her superior that would have accountability and responsibility for the logistics function of the organisation. The applicant supervises a team of people who are involved in the support role functions of the supply chain. The criteria for recognition as having skills equivalent to that of an Associate Fellow make it clear that the person must be responsible for a range of organisational functions and to have such responsibilities at a level which is concerned with policy and not just operations. A senior manager at the Associate Fellow level would play a key role in shaping and influencing the development and direction of the organisation through establishing objectives, strategies and tactics. On the evidence provided the applicant's responsibilities and the depth of those responsibilities are not commensurate with the requirements for a senior manager at the Associate Fellow level. Review of the assessment decision will only be undertaken if new information and substantiating documentary evidence is provided." 24 Ms Silveira's migration agent responded on 23 August 2000 enclosing an amended curriculum vitae providing further information concerning Ms Silveira's experience. On 20 September 2000, Ms Silveira's solicitors then wrote a further letter to the Institute drawing attention to the provisions of the Regulations and the Gazette Notice of 17 May 2000. They said, inter alia, the following: "It is more than apparent that the Migration Legislation empowers the Australian Institute of Management to perform only two tasks:

(a) to determine whether a Degree or Diploma is equivalent to an Australian Degree or Diploma; and

(b) whether or not the Applicant's skills match those skills as are set forth in the ASCO codes.

The legislation does not empower the Australian Institute of Management to assess any application before it for the purposes of the Migration Act under any criteria other than those that are set forth in the ASCO Codes." 25 The Institute responded on 25 September 2000, asserting that the claims just set out "are not legally sustainable". The letter referred to Islam v The Minister for Immigration & Multicultural Affairs ("Islam's case")[2000] FCA 1183, saying that in that case the Federal Court had: "noted that the provisions of both ASCO versions were intended to only provide guidance as to the classification of occupations for statistical purposes and they did not impose a mandatory requirement on the Minister to find that employment requirements must be present to qualify for the various job classifications." Ms Silveira's solicitors responded to the effect that there was "no basis in the Migration Legislation whatsoever which enables AIM to set its own criteria when assessing Skills Applications under the new Regulations". 26 By letter of 8 November 2000, the Institute informed Ms Silveira's solicitors that "the Review Committee agreed with the original assessment". The letter went on to say: "The Committee has advised as follows: · The applicant does not delegate responsibility to other managers who themselves have planning, operational, staffing and budgetary responsibilities. · The applicant does not have direct accountability for the logistics function, she reports to the General Manager Operations and Logistics. · The applicant is not involved in the development of strategic plans and business plans for the enterprise as a whole. The applicant does not have responsibilities at a policy level. On the basis of this review there are no grounds to change our assessment."

27 By her application filed on 6 December 2000, Ms Silveira seeks orders that the Institute reconsider her qualifications "in accordance with law". The application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The application refers to ss 3(3) and 3(4) of the ADJR Act. The Institute, on the other hand, filed a notice of motion on 20 December 2000 seeking orders that the proceeding be dismissed as incompetent or alternatively on the ground that no reasonable cause of action is disclosed or there is no reasonable basis for the application. 28 The grounds stated in the application are as follows. 1. Error of Law The Institute was required to assess the applicant's qualifications in accordance with the ASCO Code but instead the Institute failed to consider the ASCO criteria and considered criteria other than ASCO criteria. 2. Improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

The Institute took into account irrelevant considerations, namely, requirements for AIM Fellowship at Associate level and failed to take into account relevant considerations, namely, the requirements of Item 1223-11 of the ASCO Code.

29 In the course of argument, counsel for Ms Silveira and the Institute accepted that the proceeding raises three issues:

1. Whether an assessment made by the Institute of the suitability of skills of a person is a decision under an enactment within the meaning of the ADJR Act.
2. On the true construction of the Regulations and the Gazette Notice, whether the Institute is required to make such an assessment by reference to the description of the relevant occupation in the ASCO Code. 3. Whether there is material before the Court on the basis of which the Court could conclude that the Institute made its assessment otherwise than by reference to the ASCO Code.

DECISION UNDER AN ENACTMENT 30 Relief under the ADJR Act may only be given in respect of a decision to which that Act applies. Under s 3, the ADJR Act applies to a decision of an administrative character made, proposed to be made, or required to be made as the case may be (whether in the exercise of a discretion or not) under an enactment. The Act and the Regulations each constitute an enactment for the purposes of the ADJR Act. 31 Section 3(2) provides that a reference to the making of a decision includes a reference to: "(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing;" 32 Parliament did not intend that the ADJR Act be a vehicle for judicial review of every decision of a decision maker under a Commonwealth enactment. Some decisions will have real impact upon a person's rights, privileges or obligations. Some will have no such impact, while others are mere stepping stones, which may lead ultimately to the making of a decision which does affect a person's position - Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68, Australian Broadcasting Tribunal v Bond ("Bond's case") (1990) 170 CLR 321 at 337. 33 Further, for a decision to be properly characterised as one made under a relevant enactment, the decision must be one that the enactment requires or authorises. The question of characterisation must be determined as one of substance. There must be sufficient proximity between the decision and the enactment to permit the decision to be characterised as one made under the enactment - Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 409. 34 It is a criterion for the grant of the visa contemplated by Ms Silveira that an assessment of the suitability of her skills for the occupation of Supply and Distribution Manager be made by the Institute. The source of the Institute's power to make an assessment by reason of its memorandum and articles of association. Neither the Act nor the Regulations, confers any power on the Institute. There is no other act of the Parliament or regulation that requires or authorises an assessment of skills by the Institute. 35 If the Institute makes an assessment, it does so because of a request made by an applicant. Even if the Institute had not been specified in the Gazette Notice pursuant to r 2.26B, it would have been possible for the Institute to make an assessment as to whether the skills of Ms Silveira are suitable for the occupation of Supply and Distribution Manager, as that occupation is described in the ASCO Code. 36 There would have been no consequences under the Act if such an assessment were made. There is no duty on the Institute to conduct an assessment, unless it agrees to do so on terms agreed with a particular applicant. If the Institute failed to do so, there does not appear to be any duty that could be the subject of an order in the nature of mandamus. 37 The completion by Ms Silveira of the form enclosed with the letter of 12 July 2000 may well be properly construed as an implied request to the Institute to make an assessment such as is contemplated by item 136.222 of Schedule 2 and item 1128C(3)(c) of Part 1 of Schedule 1 to the Regulations. The acceptance of the fee by the Institute may have given rise to a contractual obligation to make such an assessment. However, the request and the acceptance of the fee are what give rise to any obligation on the part of the Institute. 38 The position might be contrasted with the position that was considered by the High Court in Minister for Immigration & Ethnic Affairs v Mayer (1985) 157 CLR 290. Previously, s 6A of the Act provided that an entry permit could not be granted to a non-citizen after his entry into Australia unless stipulated conditions were fulfilled. One of the conditions was that the non-citizen held a current temporary entry permit and that the Minister had determined, by instrument in writing, that the non citizen had the status of refugee within the meaning of the Refugee Convention. The High Court concluded that it was the intention of the Parliament that the provisions of s 6A, which attach statutory consequences to a determination by the Minister that the holder of a temporary entry permit had the status of refugee within the meaning of the Convention, be construed as impliedly conferring upon the Minister statutory authority to make that determination (at pages 301-2). In the absence of such implied authority, there would have been no authority for the Minister to make such a determination. 39 In the circumstances of the present case, the making of the assessment by the Institute may have certain consequences for Ms Silveira, if she chooses to lodge an application for a visa. One likely consequence is that the criterion referred to in item 136.222 will not be satisfied by the assessment. Even if a valid application were lodged by Ms Silveira, such that the Minister was bound to consider it, any such application was doomed to rejection if the only assessment relied on by Ms Silveira for the purposes of item 136.222 was that made by the Institute as evidenced by its letter of 18 August 2000 and confirmed by its letter of 8 November 2000. 40 Counsel for Ms Silveira contends that the making of an assessment is a report or recommendation within the meaning of s 3(3) of the ADJR Act. Section 3(3) of the ADJR Act provides: "(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself deemed, for the purposes of this Act, to be the making of a decision." Section 3(3) applies where there is a provision in an enactment that a particular report or recommendation be made as a condition precedent to the making of a decision under the enactment or under another law. Section 3(3) contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other - Edelsten v Health Insurance Commissioner (1990) 27 FCR 56 at 70. 41 However, in my opinion s 3(3) contemplates a report or recommendation precedent to a reviewable decision - see New England Biolabs Inc v Commissioner of Patents & Anor [2001] FCA 787. As I outlined in paragraphs [32] and [33] above, a reviewable decision is one for which provision is made by or under statute. It is not a conclusion reached as a step along the way in a course of reasoning. No valid application for a class BN visa can be made unless it is accompanied by satisfactory evidence that the Institute has assessed the skills of the applicant for his or her nominated skilled occupation. However, a positive assessment from the Institute is merely one step in the process of obtaining a class BN visa. An applicant must satisfy the other requirements of sub-clause 136, such as the vocational English requirement - s.cl.136.224, or the public interest criteria - s.cl.136.226. Pursuant to s 65(1), the Minister must only grant a visa if all of these requirements have been met. As a result, the Institute's decision cannot be considered to be an "ultimate" decision as envisaged by Bond's case. 42 It follows, in my opinion, that the making of an assessment by the Institute, pursuant to a request by a prospective applicant for a visa, is not a decision under an enactment for the purposes of the ADJR Act. Accordingly, the Court has no jurisdiction to grant relief under the ADJR Act. It is therefore not necessary to consider the other two questions that arise in the proceeding. However, since the questions were argued at some length, I shall make some brief observations on those questions.

THE INSTITUTE'S TASK 43 Some meaning must be given to the reference, in the second column of the Schedule to the Gazette Notice, to items in the ASCO Code. It is unlikely that the Regulations intended to leave criteria used to assess the suitability of an applicant's skills entirely to the discretion of the nominated assessing authority. The ASCO Code contains a detailed definition of each occupation that is specified for the purposes of the Regulations. In my opinion, the task of an assessing authority is to make an assessment as to whether the skills of a particular applicant are suitable for the nominated skilled occupation as defined in the Code. 44 Thus, in order to satisfy the criterion specified in Item 136.222, it would be necessary for the Institute to make an assessment that the skills of Ms Silveira are suitable for the occupation of Supply and Distribution Manager, as the skill level and tasks of such an occupation are defined in the ASCO Code. The decision in Islam's Case deals with a different question and does not appear to me to govern the question presently under consideration.

IS THERE EVIDENCE THAT THE INSTITUTE DID NOT PERFORM THAT TASK? 45 There is no reference to the ASCO Code in the Institute's letter of 18 August 2000. Nor is there any reference to the ASCO Code in the Institute's letter of 8 November 2000. Further, in response to the assertion by Ms Silveira's solicitors that the task of the Institute was to determine whether her skills match those that are set forth in the ASCO Code, the Institute responded that that assertion was not legally sustainable. The inference is clearly open that the Institute made its assessment by reference to criteria other than those that are to be found in Item 1223-11 of the ASCO Code. 46 The Institute adduced no evidence to indicate that it had regard to the provisions of the ASCO Code in making its assessment of Ms Silveira's skills. For example, it might have adduced evidence to demonstrate some connection between the skills of an Associate Fellow of the Institute and the skills of a Supply and Distribution Manager within the definition in Item 1223-11. The absence of any such evidence supports a conclusion that it did not have regard to the ASCO Code at all.

CONCLUSION 47 It may be that Ms Silveira has a contractual entitlement to require the Institute to make an assessment of the suitability of her skills for the occupation of Supply and Distribution Manager as described in Item 1223-11 of the ASCO Code. That question, however, has not been litigated in this proceeding. It may be that Ms Silveira will pursue such a question separately. That, however, is not a matter upon which it is appropriate to express any view in this proceeding. It follows, in my opinion, that the application should be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 16 July 2001 Counsel for the Applicant: Mr R de Robillard Solicitor for the Applicant: Diamond Peisah & Co Counsel for the Respondent: Mr T Hurley Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 25, 26, 27 June 2001 Date of Judgment: 27 June 2001