Singh v Minister for Immigration and Border Protection - [2017] FCA 1108 - FCA 2017 case summary — Zoe

CTHFCA

Singh v Minister for Immigration and Border Protection

[2017] FCA 1108

Federal Court of Australia|2017-09-19|Before: Ms J, Murphy J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2017-09-19

Before

Ms J, Murphy J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

The appeal be dismissed.
The First and Second Appellants pay the First Respondent's costs in the sum of $5,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

introduction 1 Before the Court is an appeal by the first and second appellants, Jatinder Singh and his wife Paramjit Kaur, from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): see Singh & Anor v Minister for Immigration [2017] FCCA 192. 2 The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant the first and second appellants Skilled (Provisional) (Class VC) Subclass 485 visas (the visas), doing so on the basis that the Advanced Diploma of Marketing qualification Mr Singh obtained is not "closely related" to his nominated occupation of Motor Mechanic. Mr Singh therefore did not meet the requirements for the grant of a visa under cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). As the primary requirements for such a visa must be satisfied by at least one of the applicants in a family unit, Ms Kaur did not satisfy the secondary criteria for the grant of the visa: cl 485.311. 3 To succeed in the appeal the appellants must establish that the Tribunal fell into jurisdictional error in making the decision that it did, and that the Federal Circuit Court erred in failing to set aside the decision. I am not satisfied that the Tribunal made a jurisdictional error and I made orders to dismiss the appeal and for the appellants to pay the Minister's costs.

[4]

THE LEGISLATIVE FRAMEWORK 8 Clause 485.221 of Schedule 2 to the Regulations provides that the visa applicant must have satisfied the "Australian study requirement" in the six month period before the application is made. 9 The meaning of "Australian study requirement" is defined in reg 1.15F of the Regulations: 1.15F Australian study requirement (1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses: (a) that are registered courses; and (b) that were completed in a total of at least 16 calendar months; and (c) that were completed as a result of a total of at least 2 academic years study; and (d) for which all instruction was conducted in English; and (e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. Note Academic year is defined in regulation 1.03. (2) In this regulation: completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award. Note The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred. degree has the meaning given in subregulation 2.26AC(6). diploma has the meaning given in subregulation 2.26AC(6). trade qualification has the meaning given in subregulation 2.26AC(6). 10 It is uncontentious that the Advanced Diploma of Marketing Mr Singh obtained satisfies the Australian study requirement. This was the only qualification which Mr Singh completed in the six month period before his visa application. 11 Clause 485.222 of Schedule 2 to the Regulations provides: Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closed related to the applicant's nominated skilled occupation. 12 "Skilled occupation" is defined in reg 1.15I of the Regulations: 1.15I Skilled occupation (1) A skilled occupation, in relation to a person, means an occupation of a kind: (a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and (b) if a number of points are specified in the instrument as being available - for which the number of points are available; and (c) that is applicable to the person in accordance with the specification of the occupation. (2) Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including: (a) that an occupation is a skilled occupation for a class of persons; (b) that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency. 13 It is uncontroversial that Mr Singh's nominated occupation of Motor Mechanic (General) is a skilled occupation for the purposes of cl 485.222, as defined in reg 1.15I of the Regulations.

[5]

THE TRIBUNAL DECISION 14 It is plain from the Tribunal decision that it understood that the question before it was whether an Advanced Diploma of Marketing is "closely related" to the occupation of Motor Mechanic (General) (ANZSCO 321211). 15 "ANZSCO" is an acronym for Australian and New Zealand Standard Classification of Occupations, 1st Edition (ANZSCO). All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in ANZSCO. It classifies occupations according to their attributes and groups them on the basis of their similarity. It then groups them into increasingly broader categories on the basis of similarity in terms of skill level and skill specialisation. "Occupation" is the most granular level of classification, and they are grouped together into "unit groups", which are in turn grouped into "minor groups", in turn grouped into "sub-major groups", and in turn grouped into "major groups". Under the various listings of occupations and groups ANZSCO sets out information as to the skill levels, qualifications and tasks involved in different occupations. 16 Before the Tribunal Mr Singh submitted that his Advanced Diploma of Marketing is closely related to the nominated occupation of Motor Mechanic in ANZSCO because: (a) the Job Outlook for Motor Mechanics (as published by the Commonwealth Department of Employment) says that 41% of the knowledge necessary to successfully work as a Motor Mechanic is in Sales and Marketing; (b) most motor mechanic workshops are small businesses owned and operated by motor mechanics themselves, and marketing their business is an important aspect of any success and business growth; (c) the Advanced Diploma of Marketing gave him skills in providing organisational leadership, managing innovation and continuous improvement, developing and implementing a strategic plan, developing and implementing a business plan, managing a marketing process, managing market research, developing an organisational marketing objective and developing a marketing plan. He submitted that such skills are highly relevant to his occupation as a motor mechanic and directly transferable to his current and future self-employment as such; and (d) the Advanced Diploma of Marketing had given him the marketing knowledge which assisted him to obtain his current employment as a motor mechanic. 17 Under the heading "Is the qualification 'closely related' to the nominated occupation?" the Tribunal said (at [11] of its reasons): The leading authorities on this issue establish that: • The words 'closely related' are not defined in the legislation but they require and call attention to the connection between two things. They do not require an exact correspondence, however the relationship must be more than merely complementary. • In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant's claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ASCO/ANZSCO descriptions. More recent authority suggests that the nature of the nominated occupation must be determined by reference to ASCO/ANZSCO, and, further, that the ASCO/ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. • It is appropriate to objectively consider the relationship of the applicant's qualification to the ASCO/ANZSCO definition of the occupation rather than relying on the applicant's own description of what the occupation entails or the applicant's own view of the proximity of the qualifications to the nominated occupation. • It is ultimately a matter for the decision-maker to decide whether an applicant's Australian studies are 'closely related' to the nominated skilled occupation, and in carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation. (Citations omitted.) 18 The Tribunal had regard to the ANZSCO listing for Unit Group 3212 Motor Mechanics and the details specifically relating to the nominated occupation of Motor Mechanic (General). The Tribunal then compared those to the units completed by the applicant in his Advanced Diploma of Marketing. 19 The Tribunal noted the applicant's argument that his marketing skills will assist him to become a self-employed mechanic one day, but took the view (at [13]) that the skills and tasks of a motor mechanic as listed in ANZSCO "are practical and technical and do not imply or suggest that marketing one's own business is an integral part of those tasks." It decided that there was virtually no overlap between the skills and tasks of a Motor Mechanic in ANZSCO and the subjects Mr Singh undertook as part of the Advanced Diploma of Marketing. 20 The Tribunal said that while the skills acquired in the Advanced Diploma of Marketing could, in the future, benefit Mr Singh in marketing a motor mechanic business, it was not satisfied that qualification is objectively closely related to the tasks of Motor Mechanic in ANZSCO. The Tribunal said that Mr Singh's marketing knowledge may have assisted him to obtain his current employment as a motor mechanic, but considered that showed no more than that marketing skills are complementary and useful to some of Mr Singh's duties as a motor mechanic, not that they are "closely related" to that occupation. 21 Therefore, the Tribunal found that Mr Singh did not meet the requirements of cl 485.222 and did not satisfy the criteria for the grant of a Subclass 485 visa. It also found that Ms Kaur could not be granted a Subclass 485 visa as she did not satisfy the secondary visa criteria in cl 485.311 by being a member of the family unit of a person who holds a subclass 485 visa. It said that there was no evidence that Ms Kaur met the primary criteria for the visa in her own right.

[6]

THE APPEAL 22 The Notice of Appeal alleges: Grounds of appeal 1. That the Federal Circuit Court Judge erred in failing to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error in considering whether or not the appellant's Australian study qualifications were "closely related" to his nominated skilled occupation of motor mechanic. Particulars a. The Tribunal misconstrued clause 485.222 of Schedule 2 to the Migration Regulations 1994 in that it considered that the clause required that the skills obtained from the study could be used only for the purpose of the nominated skilled occupation. b. Misunderstood the significance of the ANZSCO descriptions, in that it wrongly considered that these descriptions contained the totality of the skills required of the nominated skilled occupation, and therefore ignored evidence advanced by the appellant that his nominated skilled occupation required skills in addition to those set out in the ANZCO description. c. The Federal Circuit Court erred in failing to find the decision of the Migration Review Tribunal was affected by jurisdictional error, on the grounds that the Migration Review Tribunal misconstrued the ANZSCO description of the appellant's nominated occupation of motor mechanic, in that it confined its attention in determining the content of the nominated occupation to the text under 321211 Motor Mechanic (General) without reference to the whole of the ANZSCO description, which included the content under the heading 3212 Motor Mechanics and Unit Group 225 Sales, Marketing and Public Relations Professionals. d. The diploma or trade qualifications relied upon by the appellant to satisfy the Australian study requirement was 'closely related" to his nominated occupation as Motor Mechanic as required by cl485.222 applying Tobon v Minister for Immigration & Anor [2014] FCCA 2208. e. The Tribunal's task was to conduct a "review" and was obliged to consider and accept the appellants submissions that sales and marketing were ranked 41% importance on job outlook listings. f. The Tribunal failed to consider or draw its attention to the fact that the appellant had completed the following courses which are closely related or applicable to the nominated occupation; i. Certificate Ill in Automotive Specialist ii. Certificate IV in Business iii. Diploma of Management iv. Diploma of Automotive Technology v. Advanced Diploma of Marketing

[10]

Particulars 1(a) and (d) 30 Particular 1(a) of the appeal alleges that the Tribunal erred by construing the expression "closely related" to require that the skills obtained from the relevant study could be used only for the purpose of Mr Singh's skilled occupation. Particular 1(d) alleges that the Advanced Diploma of Marketing qualification is "closely related" to the nominated occupation of Motor Mechanic as required by cl 485.222 and as applying the decision of Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (Tobon). 31 The two particulars cover similar ground. In Tobon the Tribunal found that the applicant's nominated skilled occupation of "civil engineer" was not closely related to the course of a Diploma of Human Resources Management because that course provided "generic skills in business, team leadership and management" and would therefore be capable of being used in connection with a number of skilled occupations. Manousaridis J held (at [33]-[34]) that the Tribunal fell into error by construing cl 485.213(b) of the Regulations as requiring that the skills or at least a substantial proportion of the skills for which a qualification is awarded "are skills that can only be used in the nominated skilled occupation." 32 In submissions Mr Singh did not take the Court to anything to show that the Tribunal erred as alleged, and there is little in the Tribunal's decision to support this allegation. As I have said, the Tribunal had regard to ANZSCO in relation to the skills and tasks in respect to the occupation of Motor Mechanic (General). It compared those skills and tasks to the subjects completed by Mr Singh in the Advanced Diploma of Marketing. It concluded that there was almost no overlap between the skills and tasks of a Motor Mechanic in ANZSCO and the subjects in an Advanced Diploma of Marketing. While the Tribunal accepted that the skills Mr Singh acquired in the Advanced Diploma could benefit him as a self-employed mechanic and were complementary, it did not consider marketing to be an integral part of the skills and tasks of a motor mechanic in ANZSCO and did not consider the Advanced Diploma of Marketing was objectively closely related to such skills and tasks. 33 In doing so the Tribunal compared the entirety of Mr Singh's relevant Australian studies with the entirety of his nominated occupation, and gave consideration to the whole of the relevant ANZSCO description as required: see Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 at [53] (Griffiths, Mortimer and Beach JJ). I do not accept that the Tribunal construed the expression "closely related" to mean that the skills Mr Singh obtained through the Advanced Diploma of Marketing were unique to the occupation of Motor Mechanic or could only be used in such an occupation. Instead, the Tribunal decided that there was not sufficient overlap between the skills and tasks of a motor mechanic in ANZSCO and the subjects in the Advanced Diploma course for them to be "closely related". 34 The Tribunal's task involved an evaluative exercise. Reasonable minds might differ on whether a qualification and an occupation are "closely related" and in my view the Tribunal had a wide scope to determine that question. I am not persuaded that the Tribunal misapplied cl 485.222 and satisfied that the Tribunal's conclusion was open to it.