Wang v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-06-08|Before: Madgwick J

Madgwick J: 1 This case concerns whether a delegate of the respondent Minister fell into jurisdictional error in considering the applicant's application for a Class BN Subclass 136 Skilled - Independent (migrant) visa, which she applied for on 2 September 2004. The delegate refused the application on 9 February 2005. The delegate's decision is not reviewable by the Migration Review Tribunal ('the Tribunal') because the visa is not one that can be granted in the migration zone.

The regulatory framework 2 Subclass 136 of Schedule 2 to the Migration Regulations 1994 sets out some of the criteria to be met at the time of application for the grant of a Subclass 136 visa, which is another way of describing the visa in question. Clause 136.213(1) relevantly makes a condition of the grant of the visa that the applicant has been 'employed' in a 'skilled occupation' for at least 12 of the 18 months immediately preceding the date on which the application is made. 'Employed' is defined by regulation 2.26A of the Migration Regulations as 'engaged in an occupation for remuneration for at least 20 hours weekly'. Regulation 1.03 defines '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'. 3 The relevant Gazette Notice specifies, as an occupation carrying sixty points for the operation of the relevant points system, 'Architect', and 'ASCO Code' 2121-11 is referred to in the notification as relevant to that occupation. An assessing authority is specified. The function of the assessing authority is to assess the skill level of the applicant as satisfying Australian standards and is otherwise, so far as I can see, not relevant. The specification has relevantly appended to it the following: 'NOTE 5: An occupation classification listed in ASCO (second edition) not referred to in the Schedule [of the skilled occupations specified] is not to be regarded as a skilled occupation for the purposes of regulation 1.03 of the Regulations.' 4 Those purposes include the presently relevant purposes. 5 The specification indicates by way of a footnote that: 'ASCO code references are those contained in McLennan, W, ASCO - Australian Standard Classification of Occupations, Second Edition, Australian Bureau of Statistics, 1997.' 6 The ASCO entry for the code given is as follows: '2121-11 Architect Designs buildings or advises on the procurement of buildings, provides concepts, plans, specifications and detailed drawings, and negotiates with builders. Skill Level: The entry requirement for this occupation is a bachelor degree or higher qualification and relevant experience in addition to the formal qualification. Registration is required. Tasks Include: · obtains advice from clients or management to determine type, style and size of buildings or alterations · provides information regarding designs, materials and estimated building times · prepares project documentation, including sketches and scale drawings, and integrates structural, mechanical and aesthetic elements in final designs · writes specifications and contract documents for use by builders and calls tenders on behalf of clients · consults with a range of engineers and experts in the fields of environmental design · develops feasibility studies jointly with quantity surveyors and other workers · inspects and oversees construction work to ensure compliance with specifications · may specialise in the design of commercial, industrial, institutional, residential or recreational buildings or in conservation architecture · may supervise and coordinate the work of architectural associates · may use computer-assisted design software and equipment to prepare project designs and documentation'

The applicANt's relevant employment history 7 In the four years before her application, the applicant indicated that she had been employed as a lecturer in architecture and then as an associate professor in architecture and also, at that time, as an architect, by the Architecture Department of the College of Architecture and City Planning, Guangzhou University (Public), Guangzhou, China. 8 In the relevant 18 month period from 2 March 2003 to 2 September 2004 the applicant had been employed in the latter two capacities for an average of 38 hours per week, but her hours actually practising as an architect averaged between 12 and 13 hours a week.

The delegate's decision 9 The delegate dealt with the matter in the following way in her decision record, which was forwarded to the applicant's solicitors for the applicant: 'In order to determine whether the occupation in which you have been employed is classified as a "skilled occupation", I have referred to the ASCO system. The ASCO system provides the most consistent and authoritative method of classifying occupations in Australia. It is policy therefore that any doubts about the occupational classification of a position (for the purposes of subsequently assessing the skill level required) should be resolved by comparing the duties of the occupation with the duties of relevant occupations as described in the ASCO Dictionary. In the present case, I find that during the period 02/03/2003 to 02/09/2004 you were not working for at least 20 hours per week as an Architect; however, you were working the majority of hours as a "University Lecturer" (ASCO code 2421-11). As a University Lecturer is not an occupation listed in the Skilled Occupations List … as "specified by Gazette Notice", I am not satisfied that you have been employed in a "skilled occupation" for the required period. I have determined that you therefore do not satisfy item 136.213(1).' 10 It is clear, as the applicant submits, that the delegate's reason for refusing to grant the visa was based on a view that her work as a lecturer in architecture did not relevantly amount to work experience as an architect as specified but as a lecturer.

The applicant's case 11 The applicant submits that, at least in the case of her present application, her skills required to lecture in architecture overlapped with the skills required for actual architectural practice. Her levels of skill deployed and necessary to discharge her duties as a lecturer in architecture were by no means inferior to those of a practising architect. The applicant points out that the enumerated tasks in the ASCO Dictionary are preceded by the words 'Tasks include', so that the listed tasks are merely illustrative of the kinds of tasks which an architect performs, and are not exclusive of others. That observation appears to me to be correct. 12 The essence of the applicant's case is that, as the applicant's work as a lecturer involved teaching the design and theory of architecture and, apparently, 'directing' a subject known as 'professional practice' in architecture, it appears that she was carrying out duties requiring skills the same as, or with extremely high relevance to, those of an architect actually designing buildings or otherwise engaging in activities that fall within the ASCO definition of an architect. The ASCO definition of a University Lecturer is as follows: 'Lectures students and conducts tutorials in one or more subjects within a prescribed course of study at a university and conducts research in a particular field of knowledge.' However the applicant says that, having regard to the nature of her particular work as a lecturer, she must have expertise and deal daily in the profession of architecture at a level at least equivalent to that of a graduate architect.

Consideration 13 One of the applicant's referees says, among other things, that 'She is rich in professional design experience'. That referee appears to be a senior practising architect and a former dean of the applicant's University's Architecture Department. 14 Given the applicant has such a background, if one could deduce a purpose for the criteria prescribed which might induce a sense of ambiguity about the relevant phraseology of the relevant criterion, I should readily do so. However, I think that no such purpose can be deduced. 15 The entire structure of the relevant criteria appears to be to minimise qualitative arguments of the kind urged by the applicant. Thus, the entire issue of previous work experience may be avoided by an applicant for the subject visa by resort to an alternative criterion. This is that an applicant has 'completed a degree, diploma or trade qualification for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia', if that course was completed in the six months immediately before the day when the application was made and instruction for the award of the qualification was conducted in English (see cl 136.213(2)). 16 The only purpose underlying the criteria that one can deduce is that either such an Australian qualification (presumably by reason of what is known to the Minister as the requirements of Australian institutions) suffices to give an applicant sufficient relevant current practical skills or current practical skills must be proven by actual engagement for pay for at least 20 hours per week in the defined occupation. 17 There is no scope, in my opinion, for going outside the ASCO definition of an architect. There is nothing to indicate that what is described by that definition was intended to be merely indicative of persons who have very high levels of architectural training skills and ability and who teach in subjects necessary to qualify people as an architect, when that teaching does not also constitute direct engagement in designing buildings or advising on their procurement or subsidiary tasks thereto, including supervision of building projects. 18 In a general way, although the facts of course are quite different, the decision of Kiefel J in Shahid v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1412 is of some assistance. It is evident that her Honour also felt constrained to take a literal approach to the criteria concerned. 19 It is notable that this class of visa does not involve questions of any remarkable detriment to the applicant if the visa is refused, unlike the position of an applicant for refugee status, nor does it likely involve any question of hardship to an Australian citizen if refused, unlike visa applications based on family reunion criteria. There is, therefore, no reason to adopt a method of construction, if one were available, that is beneficial to the applicant. 20 The whole notion of visas for skilled immigrants clearly has in mind the benefit of the Australian community at large. The avoidance of difficult and imprecise qualitative judgments in the assessment of immigrant applications must be regarded as being in the interests of the Australian community. 21 I am afraid that I see no jurisdictional error on the part of the delegate. Indeed, I do not see how the delegate could, on the admitted facts, properly have come to a different conclusion. 22 I cannot leave this case without saying that an unfortunate set of circumstances has been revealed. The applicant appears to be an extremely well-qualified architect, if not falling within the narrow visa criteria, and her husband also appears, from the material before the Court, to be a well-qualified man in his own field. If there is any means by which the Minister might now reconsider this matter outside the narrow confines of the visa criteria in question, this would appear to be an appropriate case for such reconsideration, rather than leaving the applicant to such comfort as she may be able to derive by altering her employment arrangements in China for a year, if she can, and, in any event, undergoing the further trouble and, no doubt, the expense of another formally supported visa application.

23 The application to the Court must therefore be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 23 June 2005 Solicitor for the Applicant: Oliveri Attorneys

Solicitor for the Respondent: Blake Dawson Waldron

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