Uddin v Minister for Immigration and Citizenship

Federal Court of Australia|2010-11-08|Before: Mr J, North J

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 2 August 2010. The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal, which affirmed a decision of a delegate of the first respondent not to grant the appellant a Skilled (Provisional) (Class VC) visa. 2 The appellant applied for the visa based upon undertaking two courses, namely, a Certificate 3 in Hospitality (Commercial Cookery), from the Illawarra Business College, and a Diploma of Information Technology (System Administration), from Uniworld Business College. The appellant was required to rely on both courses in order to satisfy the two-year study requirement contained in cl 485.213 of Schedule 2 and reg 1.15F of the Migration Regulations 1994 (Cth). A requirement for the visa stipulated in cl 485.213(b) was that each degree, diploma or trade qualification used to satisfy the two-year study requirement be closely related to the applicant's nominated skilled occupation. The Tribunal determined that the Diploma of Information Technology was not closely related to the appellant's nominated skilled occupation for the purpose of this subclause. The skilled occupation nominated by the appellant for the purpose of his visa application was his occupation as a cook. 3 The Federal Magistrate upheld the decision of the Tribunal.

The Tribunal Applied the Wrong Test 8 The arguments submitted on behalf of the appellant on the appeal amount to two matters of substance. They are not well reflected in either the Notice of Appeal or the appellant's written submissions, neither do they particularly easily relate to the judgment of the Federal Magistrate. 9 The first argument was that the Tribunal misunderstood the requirement in cl 485.213(b) that the qualification had to be "closely related" to the nominated occupation. The appellant relied on a number of statements in the decision of the Tribunal which it was contended misstated the test. For instance, the Tribunal said at [8]: The issue in the present case is whether each of the qualifications used to meet the two year study requirement was relevant to the nominated occupation. 10 Then at [32] the Tribunal again referred to "close relevance" rather than "close relationship." Furthermore, it was argued that the Tribunal, in rejecting the PAM requirement that the qualifications be complementary to the nominated occupation, disclosed that it did not apply the "closely related" test properly. This was again supported, it was argued, by the conclusion at [29] that the IT qualification was not complementary or useful to the occupation of cook. Each of those examples, it was argued, disclosed that the Tribunal misunderstood the appropriate test. It was contended that the proper test is the test set out in the PAM. That is to say, that the concept of close relationship is captured by the policy that the qualification must be complementary to the nominated occupation.

Consideration 11 In my view, the first ground of appeal should not succeed. The Tribunal, perhaps too loosely, used the word "relevant" at [8] and [32]. However, its constant use of the concept "closely related" throughout the reasoning process, in particular at [23], [24], [25], [28] and [30], indicate that it was aware of the test which it needed to apply. The references to "relevant" at[8] and [32] seem to be inadvertent slips. 12 At [33], the Tribunal clearly draws the distinction between the two concepts and distinguishes a case based on the pre-existing "relevant" test and thereby shows that it appreciated that the "relevance" test was different from the "closely related" test. At [34], the Tribunal expresses its final conclusion in terms of close relationship and applies the correct test. In my view, the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary. In any event, the Tribunal, at [29], makes a fallback finding of fact that the IT qualification was not even complementary or useful in the occupation of a cook, having compared the work of a cook to the aims and skills relevant to the IT qualification.

Failure to Give Proper Genuine and Realistic Consideration 13 The second substantial ground of appeal argued on behalf of the appellant was that the Tribunal failed to give proper, genuine and realistic consideration to one of the submissions advanced by the appellant. I am prepared to accept for the purposes of argument that a failure to give such consideration amounts to jurisdictional error. The submission which it is alleged the Tribunal ignored was a submission set out in a letter dated 13 January 2010 from the appellant's migration adviser to the Tribunal. In that letter, it was contended that there were a number of elements of the appellant's IT qualification which were "directly related" to his occupation as a cook. These elements were the application of occupational health and safety procedures, communication in the workplace, coordination and maintenance of work teams, coordination of change requests, skills in time management, skills in project integration, stress and loading test, the guidance of risk management principles, and the guidance of the application of communications management. The appellant claims that the written submission on this subject was simply not considered by the Tribunal.

Consideration 14 The extract of the decision of the Tribunal, set out earlier in these reasons, discloses that there is no basis for this argument. The Tribunal considered the relationship between the subjects taught in the IT course to the nominated occupation of cook. Indeed, it referred to some of the particular elements from the submission at [30], namely occupation, health and safety procedures, communication in the workplace and providing advice to clients. It made a determination on the facts that these elements of the qualification were not closely related to the tasks performed by a cook as stipulated by the legislative instrument. The Tribunal did not fail to give proper, genuine and realistic consideration to this part of the appellant's submission. 15 For these reasons, the appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

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