FEDERAL COURT OF AUSTRALIA

Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 of the Federal Circuit Court of Australia made on 23 September 2014 be set aside.

3.    The decision of the second respondent dated 29 October 2013 be quashed.

4.    The appellant’s application for review dated 25 June 2012 be remitted to the second respondent for reconsideration according to law.

5.    The first respondent pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    The central issue is whether the Administrative Appeals Tribunal, formerly the Migration Review Tribunal (the Tribunal) correctly construed and applied cl 485.213(b) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). In particular, the question is whether on review of the Tribunal’s decision, the Federal Circuit Court of Australia (the FCCA) erred in not finding that the Tribunal fell into jurisdictional error in considering whether or not the appellant’s Australian study qualifications were “closely related” to his nominated skilled occupation as an Engineering Technologist. For reasons which will be developed, we find that the FCCA did err in this regard and that the appeal should be allowed.

2    The background facts may be summarised as follows. On 19 June 2012, the Minister’s delegate refused Mr Talha’s application for a Skilled (Provisional) (Class VC) visa (Skilled Visa) on the basis that he did not satisfy the Australian study requirements, as required by cl 485.213 of the Regulations.

3    Mr Talha sought a review by the Tribunal. The Tribunal conducted a hearing on 25 September 2013, during the course of which it raised the following three concerns with his visa application:

(a)    in his visa application form, Mr Talha nominated his skilled occupation as “Engineering Technologist”, however, the skills assessment dated 4 June 2012 by Engineers Australia assessed him as meeting the requirements for “Telecommunications Engineer (ANZSCO 263311)”;

(b)    whether each of the diploma or trade qualifications relied upon by Mr Talha to satisfy the Australian study requirement was “closely related” to his nominated occupation as Engineering Technologist, as required by cl 485.213(b); and

(c)    whether Mr Talha satisfied the Australian study requirement in the six month period immediately preceding his visa application, as required by cl 485.213(a).

4    After being granted a further week to provide additional material in support of his review application, Mr Talha provided sufficient information which was accepted by the Tribunal as meeting the concerns expressed in (a) and (c) above. Mr Talha also provided the Tribunal with a document prepared by him and dated 25 September 2013 which was headed “Statement of relevancy between business management and engineering technology”. In that statement, Mr Talha explained why he considered that his various Australian studies were “closely related” to his nominated skilled occupation. In particular, he stated that the labour market was looking for professionals who had combined knowledge and skills consisting of technical knowledge and business/management skills to enhance productivity; that most engineering work was project driven and it was essential for engineering professionals to equip themselves with business management skills; that he would like to be a person with business skills who did not have to consult a technical specialist in order to win and negotiate projects; that during his engineering bachelor degree course in India he studied management science and managerial economics; and that he wanted to work as a project engineering manager, program director or chief engineering officer so that he could apply his engineering skills and knowledge in managerial roles. He concluded his statement by submitting that it would be “unimaginable for any manager with no technical background to manage well a highly technical team or project or for any business negotiator with no technical background to discuss about import of any sophisticated electronic equipment or computerised machinery”.

5    On 29 October 2013, the Tribunal affirmed the delegate’s decision and held that it was not satisfied that Mr Talha’s Australian studies were closely related to his nominated occupation, with the consequence that it was not satisfied that he met cl 485.213(b).

6    By an application filed on 25 November 2013, Mr Talha sought judicial review of the Tribunal’s decision in the FCCA. He raised four grounds of appeal in an amended application for judicial review dated 25 July 2014. At the FCCA hearing Mr Talha was represented by a solicitor advocate, who pressed only two of the four grounds in the amended application for judicial review. Both those grounds related to allegations of procedural unfairness. On 23 September 2014, Judge Riley dismissed his application (see Talha v Minister for Immigration & Anor [2014] FCCA 2191).

7    Mr Talha appealed that decision to this Court. He initially represented himself. Following a referral by her Honour, Gordon J, he received pro bono legal advice and was represented in the appeal. At the hearing, leave was sought to amend his notice of appeal so as to raise the following three grounds of appeal.

1.    The Federal Circuit Court erred in failing to find that the decision of the Migration Review Tribunal was affected by jurisdictional error on the grounds that the Migration Review Tribunal:

a.    Misconstrued cl 485.213(b) of Sch 2 to the Migration Regulations 1994 (Cth) 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 ANZSCO 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 engineering technologist, in that it confined its attention in determining the content of the nominated occupation to the text under 233914 Engineering Technologist without reference to the whole of the ANZSCO description, which included the content under the heading Minor Group 233 Engineering Professionals and Unit Group 2339 Other Engineering Professionals.

8    The Minister consented to leave being granted to raise grounds 1(a) and (b) on condition that the costs order made below not be disturbed in circumstances where proposed ground 1(a) was not advanced below and proposed ground 1(b) (as initially propounded) was contained in Mr Talha’s original judicial review application, but was subsequently abandoned. The Minister opposed leave being granted to permit the appellant to raise ground 1(c). The opposition was based on:

(a)    the lateness of the proposed amendment, noting that it was only raised during the course of the hearing of the appeal;

(b)    the absence of any explanation as to why the proposed amendment was not raised earlier; and

(c)    the prejudice which would be caused to the Minister if leave were granted because the ANZSCO Code was not in evidence and the Minister’s counsel was not in a position to deal with the ground.

9    The Court granted leave to raise ground 1(c) on condition that the appellant bear the Minister’s costs of having to deal with the amendment. The parties were given an opportunity to provide after the hearing brief supplementary submissions in respect of the amendment, which they both availed themselves of. There was no further oral hearing. The Court directed the Minister to file and serve a full copy of the relevant version of the ANZSCO Code. The Court considered that these conditions on the grant of leave addressed the Minister’s prejudice. In granting leave, the Court also took into account the evident strength of the proposed amendment, a factor which must have been overlooked by Mr Talha’s legal representative in the Court below.

Legislative context

10    It is desirable briefly to explain the legislative context in which the issues for determination fall for consideration.

11    The criteria for the relevant visa are set out in cl 485.213 of Sch 2 of the Regulations. Clause 485.213(a) required that the visa applicant must have satisfied the “Australian study requirement” in the period 6 months ending immediately before the day on which the visa application was made.

12    A second requirement, in cl 485.213(b), was as follows:

… each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.

13    A further relevant requirement was imposed by cl 485.221. It required the visa applicant to establish, at the time of the decision concerning the visa application, that the applicant’s skills for his or her nominated skilled occupation “have been assessed by the relevant assessing authority as suitable for that occupation”. It might also be noted that cl 485.221(2) provided that if such an assessment was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, it was a requirement that the qualification was obtained as a result of studying a registered course. It may be inferred from this provision that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia.

14    The definition of “skilled occupation” is to be found in reg 1.15I of the Regulations, which provided as follows:

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.

15    The meaning of “Australian study requirement” is to be found 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 2.26A (6).

diploma has the meaning given in subregulation 2.26A (6).

trade qualification has the meaning given in subregulation 2.26A (6).

16    The relevant Ministerial Instrument for the purposes of reg 1.15I is Legislative Instrument IMMI 12/068. The instrument specifies skilled occupations for the purposes of reg 1.15I(1)(a) of the Regulations, identifies the particular ANZSCO Code for individual skilled occupations, specifies the country or countries corresponding to each skilled occupation, specifies relevant assessing authorities to conduct skills assessments, and specifies the relevant number of points required where relevant. Relevantly to Mr Talha, the entry in IMMI 12/068 relating to his nominated skilled occupation, i.e. Engineering Technologist, was as follows:

The ANZSCO Code

17    In view of its central significance in the appeal, it is desirable to describe the relevant features of the ANZSCO Code. “ANZSCO” is an acronym for Australian and New Zealand Standard Classification of Occupations, 1st Edition (the ANZSCO Code). The ANZSCO Code replaced the previous ASCO directory. 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 the ANZSCO Code. The introductory section of the ANZSCO Code explains the concept of “a job” as meaning:

…a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job.

18    “Occupation” is defined in the ANZSCO Code as “a set of jobs that require the performance of similar or identical sets of tasks”.

19    The introductory section of the ANZSCO Code also explains how occupations are classified. Occupations are classified according to their attributes and are grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The occupations are then organised or classified into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. Details of the various hierarchies or groups are provided. “Occupation” is the most detailed level of classification. Occupations are distinguished from other occupations in the same unit group on the basis of detailed skill specialisation.

20    The notes explain that the classification of occupations is done according to two criteria, namely skill level and skill specialisation. “Skill level” is defined as a function of the range and complexity of the set of tasks performed in the particular occupation and is measured operationally by the level or amount of formal education and training, the amount of previous experience in a related occupation, and the amount of on-the-job training which is required competently to perform a set of tasks required for the occupation. Occupations are divided into five different skill levels. The highest skill level is Skill Level 1, which is defined as a level of skill commensurate with a bachelor degree or higher qualification, however, at least five years of relevant experience may substitute for the formal qualification.

21    The concept of “skill specialisation” is defined in the ANZSCO Code as a function of:

    field of knowledge required;

    tools and equipment used;

    materials worked on; and

    goods or services produced or provided.

22    It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy.

23    It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes:

This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes.

Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (e.g. business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie).

24    It is desirable to illustrate the structure of the ANZSCO Code by reference to Mr Talha’s nominated skilled occupation as “Engineering Technologist”. The ANZSCO Code contains the following information in relation to that “occupation”:

233914 ENGINEERING TECHNOLOGIST

Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.

Skill Level: 1

Specialisations:

Aeronautical Engineering Technologist

Agricultural Engineering Technologist

Biomedical Engineering Technologist

Chemical Engineering Technologist

Industrial Engineering Technologist

Mining Engineering Technologist

25    The occupation of Engineering Technologist forms part of a broader Unit Group 2339, which is called “Other Engineering Professionals”. The ANZSCO Code contains the following information in relation to that unit group:

UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALS

This unit group covers Engineering Professionals not elsewhere classified.

It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Registration or licensing may be required.

Occupations:

233911 Aeronautical Engineer

233912 Agricultural Engineer

233913 Biomedical Engineer

233914 Engineering Technologist

233915 Environmental Engineer

233916 Naval Architect (Aust) / Marine Designer (NZ)

233999 Engineering Professionals nec

(Underlining added for emphasis).

26    That unit group then forms part of a higher hierarchy, which is called “Minor Group 233 Engineering Professionals”. The ANZSCO Code contains the following information in relation to that Minor Group:

MINOR GROUP 233 ENGINEERING PROFESSIONALS

ENGINEERING PROFESSIONALS design, plan and organise the testing, construction, installation and maintenance of structures, machines and their components, and production systems and plants, and plan production schedules and work procedures to ensure engineering projects are undertaken efficiently and in a cost effective manner.

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this minor group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:

•    planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electronic components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects

•    drafting and interpreting specifications, drawings and plans, and determining construction methods

•    supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant

•    organising and managing project labour and the delivery of materials, plant and equipment

•    estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control

•    resolving design and operational problems in the various fields of engineering through the application of engineering technology.

This section contains the following subsection:

UNIT GROUP 2331 Chemical and Materials Engineers

UNIT GROUP 2331 Civil Engineering Professionals

UNIT GROUP 2333 Electrical Engineers

UNIT GROUP 2334 Electronics Engineers

UNIT GROUP 2335 Industrial, Mechanical and Production Engineers

UNIT GROUP 2336 Mining Engineers

UNIT GROUP 2339 Other Engineering Professionals

(Underlining added for emphasis).

27    Minor Group 233 in turn forms part of a higher Sub-Major Group 23, which is called “Design, Engineering, Science and Transport Professionals”. The ANZSCO Code contains the following information in respect of this Sub-Major Group:

SUB-MAJOR GROUP 23 DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS

DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS fly and ensure the safe operation of aircraft, control and manage the operation of ships, boats and marine equipment, design buildings, landscapes and products for manufacture and visual communication, design plan and organise the testing, construction and maintenance of structures, machines, production systems and plants, and perform analytical, conceptual and practical tasks in relation to the chemical and physical properties of the universe, living organisms, and the environment.

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:

•    flying aircraft, and ensuring the safe and efficient operation of aircraft in flight and on the ground

•    controlling and directing the operation of ships, boats and marine equipment to ensure the safe and efficient loading and transport of cargo and passengers

•    designing products including furniture, textiles and maps, and physical structures and engineering systems

•    conducting research and practical tests to resolve design and operational problems

•    interpreting and analysing data from engineering and scientific experiments and tests

•    conducting experiments and tests to determine the chemical composition and reactive properties of natural substances and processed materials

•    analysing and describing living organisms and their interaction with their environment

•    advising on the use of natural resources, and discussing and making recommendations to individuals and groups about variables affecting land use

This section contains the following subsection:

MINOR GROUP 231 Air and Marine Transport Professionals

MINOR GROUP 232 Architects, Designers, Planners and Surveyors

MINOR GROUP 233 Engineering Professionals

MINOR GROUP 234 Natural and Physical Science Professionals

(Underlining added for emphasis)

28    The highest hierarchy within which Engineering Technologists fall is called “Major Group 2 Professionals”, in relation to which the ANZSCO Code states:

MAJOR GROUP 2 PROFESSIONALS

PROFESSIONALS perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare.

Indicative Skill Level:

Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In New Zealand:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

NZ Register Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2).

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Some occupations, such as those in Sub-Major Group 21 Arts and Media Professionals, require high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications or experience.

Tasks Include:

•    communicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts

•    analysing, planning developing and implementing programs and solutions to resolve business and economic problems

•    Providing services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations

•    flying aircraft, and controlling and directing the operation of ships, boats and marine equipment

•    conducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge

•    designing products, buildings and other physical structures, and engineering systems

•    researching and developing curricula, and teaching students in a range of educational settings

•    designing, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated

•    identifying, treating, and advising on, health, social, and personal issues

•    advising clients on legal matters.

This section contains the following subsection:

SUB-MAJOR GROUP 21 Arts and Media Professionals

SUB-MAJOR GROUP 22 Business, Human Resources and Marketing Professionals

SUB-MAJOR GROUP 23 Design, Engineering, Science and Transport Professionals

SUB-MAJOR GROUP 24 Education Professionals

SUB-MAJOR GROUP 25 Health Professionals

SUB-MAJOR GROUP 26 ICT Professionals

SUB-MAJOR GROUP 27 Legal, Social and Welfare Professionals

The appellant’s submissions summarised

29    Mr Talha placed strong reliance on Manousaridis J’s decision in Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (Tobon). In particular, the Court was urged to adopt his Honour’s statement at [32] regarding the proper construction of the phrase “closely related” in cl 485.213(b):

In my opinion, the construction I have arrived at on the basis of the words of cl 485.213(b) is consistent with the construction favoured by North J and Logan J. The requirement of “related” is met by reading cl 485.213(b) as requiring the diploma to relate to a course that results in a skill or skills that form part of the skill set required to engage in the nominated skilled occupation; and the requirement of “closely” is met by requiring that all or a substantial proportion of the skills acquired as a result of the study or training for which the diploma is awarded are skills that form part of the skill set required to engage in the nominated skilled occupation.

30    Mr Talha submitted that this approach was consistent with decisions of this Court, including Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 (Uddin); Prasad v Minister for Immigration and Citizenship [2012] FCA 591 (Prasad); Bhanot v Minister for Immigration and Border Protection [2014] FCA 848 (Bhanot) and Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 (Dhillon).

31    Mr Talha submitted that the Tribunal misconstrued cl 485.213(b) in proceeding on the basis that the clause required that the skills obtained from study could be used only for the purpose of the nominated skilled occupation. This was in error, it was submitted, because skills that are acquired through courses of study, particularly at the higher levels of education, often form skill sets of more than one skilled occupation. It was submitted that the Tribunal should have evaluated the skills acquired through Mr Talha’s various degrees and diplomas, the skills required to engage in his nominated occupation, and then conducted a comparative qualitative evaluation to determine whether those two skill sets were “closely related”. Instead of undertaking this evaluative task, the Tribunal relied on its finding that Mr Talha’s courses were “general” in nature and, therefore, were not closely related to his nominated skilled occupation.

32    Mr Talha also argued that the Tribunal fell into jurisdictional error in that it misunderstood the significance of the ANZSCO descriptions by wrongly considering that these descriptions described the totality of the skills required of his nominated skilled occupation and thereby ignored his evidence that his nominated skilled occupation required skills in addition to those set out in the ANZSCO description.

33    Brief oral submissions were made in support of ground 1(c), which may be summarised as follows. It was submitted that the Tribunal was obliged to take into account Mr Talha’s statement regarding the importance to his occupation as an Engineering Technologist of management skills, as well as the fact that the ANZSCO Code’s description of Engineering Professionals (which includes “Other Engineering Professionals” which, in turn, includes Engineering Technologists) (see [25] and [26] above) are persons who inter alia:

    plan and organise engineering projects to ensure that they are undertaken efficiently and made cost efficient;

    organise and manage project labour and the delivery of materials, plants and equipment;

    estimate total costs and prepare detailed costs plans and budgetary matters; and

    supervise the construction of projects.

34    The essence of the oral submissions is reflected in the following extract:

If an applicant advances material which engages with the content that ANZSCO contemplates might form part of the occupation then the tribunal is under an obligation to deal with that and to determine whether in fact it is part of the content of the occupation and it cannot exclude from its consideration those matters and simply rely on the two lines on which it did.

35    In his written supplementary submissions (which were filed after the hearing and in response to those of the Minister), the following broad submissions were made on behalf of Mr Talha:

(a)    given that the Tribunal’s task was to conduct a “review”, if an applicant argued that the Tribunal should find that the content of the relevant occupation includes content which is set out in the descriptions of the relevant minor group and the unit group of the ANZSCO Code and it is open on the material before the Tribunal to accept that argument, the Tribunal is obliged to consider that evidence and those arguments;

(b)    while it may be accepted that some of the content of the higher level grouping will not be relevant to all of the particular occupations within a group, the appellant argued that his occupation of Engineering Technologist did contain content as set out in the higher level grouping, which the Tribunal could not ignore;

(c)    the fact that the Minister has chosen to identify occupations by reference to occupational categories is not determinative because the relevant inquiry is whether those occupational categories are to be understood by reference to, and in the context of, the descriptions of the higher level groupings;

(d)    the ANZSCO Code expressly provides that the occupational level descriptions do not specify all of the content of an occupation but only the “main” activities. The meaning of the term “main” will vary depending on the descriptions used at the various levels in the ANZSCO Code itself, having regard to the nominated occupation as well as the evidence and arguments advanced by an applicant. To illustrate that point, the appellant submitted that some occupations may contain only one task, thus the term “main” will mean “overwhelming”, whereas other occupations may contain many tasks such that the term “main” means “largest contributors”. The Tribunal is not confined in its consideration to the narrow occupational description in the ANZSCO Code;

(e)    the fact that the occupation of “Engineering Technologist” fits within a “miscellaneous” unit group says nothing about its connection with the Minor Group 233 Engineering Professionals, in which minor group the occupation comfortably falls;

(f)    if, contrary to ground 1(b) it is accepted that the Minister has identified skills occupations by reference to particular occupational categories in the ANZSCO Code, it must follow that the whole of the ANZSCO Code pursues that objective, with the consequence that information in the relevant unit group, minor group and major group descriptions are relevant to the occupational description; and

(g)    the structure of the ANZSCO Code into categories of varying levels of generality of specificity itself assumes that many occupations have some degree of relationship which includes overlapping content. For example, merely because the ANZSCO Code contains a classification for “Engineering Managers” says nothing about whether or not the occupation of an Engineering Technologist includes management tasks. It is sufficient that an Engineering Technologist may be required to perform some managerial tasks, which is a matter for the Tribunal to determine.

Minister’s submissions summarised

36    On the first ground of appeal, the Minister submitted that Tobon was incorrectly decided because of the following four errors of principle:

(a)    Manousaridis J’s approach permitted the skills conferred by the whole of a course to be compared with the skills associated with carrying on only part of an occupation, which is inconsistent with Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 (Constantino) at [26] per Jacobson J;

(b)    Manousaridis J’s approach impermissibly departs from the text of cl 485.213(b) because the reference therein to “associated with” requires a closer degree of connection than having skills which are merely “complementary”, “relevant” or “useful” to the performance of the nominated occupation (citing Uddin at [12] per North J; Prasad at [18] and [23] per Logan J and Manik v Minister for Immigration and Citizenship [2012] FCA 619 at [19]-[20] per Cowdroy J);

(c)    by placing heavy emphasis on the proper construction of the word “skill” in the phrase “skilled occupation”, Manousaridis J impermissibly construed the defined term by reference to the ordinary meaning of the individual words that constitute the defined term (citing inter alia Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; [1978] HCA 30 at 507 per Gibbs J, at 512-513 per Stephen J, at 518 per Mason J and at 528-529 per Aickin J); and

(d)    the prescriptive, three-staged inquiry proposed by Manousaridis J finds no support in the text of cl 485.213(d). Whether a qualification and an occupation are closely related is, the Minister submitted, a question of degree that calls for the Tribunal to make an evaluative judgment (citing inter alia Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254 at [22] per Katzmann J; Constantino at [48] per Jacobson J; Dhillon at [20] per curiam). Given that reasonable minds might differ on whether a qualification and an occupation are “closely related” the Tribunal has a wide scope to determine the ultimate question and ought not to be confined by the prescriptive test outlined in Tobon.

37    As to the second ground of appeal, the Minister submitted that there was no basis to conclude that the Tribunal had ignored Mr Talha’s evidence or confined its consideration to the occupation description set out in the ANZSCO code. In any event, the Minister contended, even if the Tribunal did rely exclusively on the ANZSCO definition of an “Engineering Technologist”, no jurisdictional error would be established. That is because reg 1.15I of the Regulations defines a “skilled occupation” to mean an occupation of a kind specified by the Minister in an instrument in writing. IMMI 12/068 specifies the occupation of “Engineering Technologist” in Sch 2 as a skilled occupation by reference to the ANZSCO description. Accordingly, the Minister submitted that the nature of the occupation is to be determined by sole reference to the ANZSCO description, rather than some more general understanding of the occupation (citing Seema v Minister for Immigration and Citizenship [2012] FCA 257 (Seema) at [44] per Siopis J).

38    As noted above, after the hearing the Minister filed brief written supplementary submissions in respect of ground 1(c). They may be summarised as follows:

(a)    the stated purpose of the ANZSCO Code is to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it, but it “is not intended as a means of assigning information about particular jobs to ANZSCO classes”;

(b)    after describing the various hierarchical groupings in the ANZSCO Code, the Minister submitted that the descriptions of higher-level groupings are more general than those for lower level groupings in particular occupations. Some of the matters included in the higher-level descriptions are not relevant to particular occupations within the grouping, thus the Tribunal should focus its attention on the specific occupational classification;

(c)    the Minister chose by legislative instrument to identify skilled occupations by reference to occupational categories and not by higher level categories, which justified the Tribunal’s focus on the occupation description;

(d)    as the ANZSCO Code makes clear, the occupational descriptions summarise the “main activities undertaken and, indirectly, the occupation’s boundaries” and it is this description which sets the boundaries of the occupation in question, not the higher-level description which could be used only to clarify or inform;

(e)    because the occupation of Engineering Technologist sits within the miscellaneous unit group of “Other Engineering Professionals”, the Tribunal need not consider the description of the unit group because the nature of the miscellaneous grouping is that there is no common theme or connection to the occupations within that group;

(f)    the ANZSCO Code was developed for statistical purposes and not for the purposes of assigning information about particular jobs to ANZSCO classes. While that might indicate that the ANZSCO Code is not suited to the purpose of determining whether a person’s qualifications are “closely related” to a particular occupation, that is not a matter for the Court because the Minister has determined that the ANZSCO Code is the measure to apply. The Minister has identified skilled occupations by reference to particular occupational categories and there is no requirement for the Tribunal to have regard to the higher-level descriptions because those descriptions are not intended for the purposes of “assigning information about particular jobs”; and

(g)    the existence of a separate unit group and occupational classification for “Engineering Managers” confirms that the occupation of “Engineering Technologist” (as well as the Engineering Professionals minor group more generally) are focused on technical and not management skills.

Consideration

39    The critical issue is whether the Tribunal fell into jurisdictional error in considering whether the Australian studies completed by Mr Talha were “closely related” to his nominated skilled occupation for the purposes of cl 485.213(b).

40    It is desirable to say something more about the Tribunal’s approach to this matter.

41    Based on the information which was provided to the Tribunal, the Tribunal concluded that Mr Talha satisfied the Australian study requirements with reference to the various diplomas and trade qualifications he had achieved in Australia, which included:

    Certificate III in Printing and Graphic Arts at Cambridge International College from 7 July 2008 to 8 May 2009;

    Certificate III in Business (Frontline Management) at Cambridge International College from 18 May 2009 to 12 July 2009;

    Diploma of Business (Frontline Management) completed from 18 May 2009 to 16 February 2010 at Cambridge International College;

    Certificate IV in Business at Acumen Institute of Further Education from 3 May 2010 to 1 November 2010; and

    Diploma of Business at Acumen Institute of Further Education from 15 April 2011 to 1 August 2011.

42    The Tribunal had before it various information from the relevant education institutions as to the content of the courses completed by Mr Talha in Australia, which indicate that he passed many subjects dealing with business management.

43    Information provided by Cambridge International College concerning Mr Talha’s Certificate III in Printing and Graphic Arts (Graphic Pre-press) stated that he had successfully completed the following subjects:

    digitise images for reproduction;

    select and apply type;

    produce a typographic image;

    produce graphics using a graphics application;

    create, manipulate and incorporate 20 graphics;

    develop a basic design concept;

    create web pages with multimedia;

    access and use the internet;

    apply knowledge of the graphic pre-press sector;

    produce pages using page layout application;

    output images;

    inspect quality against required standards;

    communicate in the workplace;

    prepare an imposition format for printing processes;

    create 2D digital animation;

    manipulate and incorporate audio into multimedia presentations;

    incorporate video into multimedia presentations;

    capture a digital image;

    edit a digital image;

    follow OHS practices and identify environmental hazards.

44    Information provided by Cambridge International College concerning Mr Talha’s Certificate III in Business (Frontline Management) stated that he had successfully completed the following subjects:

    maintain workplace safety;

    contribute to effective workplace relationships;

    support operational planning;

    organise personal work priorities and development;

    support a workplace leaning environment; and

    identify risk and apply risk management processes.

45    Information provided by Cambridge International College concerning Mr Talha’s Diploma of Business (Frontline Management) stated that he had successfully completed courses on the following subjects:

    maintain workplace safety;

    contribute to effective workplace relationships;

    support operational plan;

    organise personal work priorities and development;

    support a workplace learning environment;

    identify risk and apply risk management processes;

    ensure a safe workplace;

    manage quality customer service;

    manage effective workplace relationships;

    manage workplace information systems;

    facilitate continuous improvement;

    facilitate and capitalise on change and innovation;

    manage personal work priorities and professional development;

    ensure team effectiveness;

    manage projects;

    manage people; and

    manage budget and financial plans within the work team.

46    Information relating to his Certificate IV in Business from Acumen Institute of Further Education stated that he had successfully completed courses on the following subjects:

    monitor a safe workplace;

    organise meetings;

    make a presentation;

    develop teams and individuals;

    analyse and present research information;

    write complex documents;

    recruit, select and induct staff;

    undertake small business planning;

    plan small business finances;

    profile the market.

47    Information provided by Acumen Institute of Further Education stated that Mr Talha had successfully completed the following subjects in his Diploma of Business:

    manage meetings;

    manage business document design and development;

    manage recruitment selection and induction processes;

    manage personal work priorities and professional development;

    manage risk;

    manage workforce planning;

    manage projects;

    manage payroll.

48    The Tribunal accepted that Mr Talha had successfully completed these courses in his Australian studies. It described its task under cl 485.213(b) as considering whether these Australian studies were “closely related” to his nominated occupation as an Engineering Technologist (see [42]). The Tribunal reasoned that, following Seema, it should consider the description of his occupation in the relevant ANZSCO Code. Significantly, the Tribunal then made reference to Unit Group 2339 in the ANZSCO Code and noted that the “Indicative Skill Level” for this unit group was a bachelor degree or higher qualification and that in some instances relevant experience and/or on-the-job training might be required in addition to the formal qualification. The significance of the Tribunal’s reference to information set out in Unit Group 2339 is that the Tribunal plainly considered that, in carrying out its assessment, it was not confined to a consideration of the description of the occupation of Engineering Technologist in the lowest level of the ANZSCO Code’s hierarchy. In our view, the Tribunal was correct to take that view. Indeed, for reasons which will be developed shortly, the Tribunal ought also to have considered relevant information in other higher level groupings within which the occupation and the unit group both fell.

49    At [45], the Tribunal acknowledged that the tasks performed by an Engineering Technologist were set out in ANZSCO 233914 as:

Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects.

50    After noting Mr Talha’s oral evidence that his Diploma of Business (Frontline Management) and Diploma of Business would enable him to undertake management roles in telecommunications, as well as his written statement dated 25 September 2013 regarding the suggested relevance of the business management courses he had completed to his nominated occupation, the Tribunal concluded at [47] that:

… a general business management course is not directed specifically at any industry, including the engineering industry, and prepares its graduates to work in any field. There is nothing in any of the courses completed by the applicant in Australia to suggest a link between these courses and the engineering industry and, more significantly, the occupation of an Engineering Technologist.

51    It is evident that in reaching that conclusion, the Tribunal only took into account the tasks performed by an Engineering Technologist as described in Unit Group 2339 (as well as the information relating to the occupation of Engineering Technologist which was provided in that part of the ANZSCO Code which dealt with ANZSCO 233914). The Tribunal made no reference to relevant higher hierarchies or groupings in the ANZSCO Code, of which Unit Group 2339 formed part. In particular, it made no reference to the information provided in Minor Group 233 Engineering Professionals and the description therein of relevant tasks, many of which are in the nature of business management tasks (and are not confined to any particular field of engineering). That is the fundamental point which Mr Talha made in his statement dated 25 September 2013 even though he made no specific reference there to other relevant task descriptions in the ANZSCO Code.

52    In our view, the Tribunal fell into jurisdictional error by confining its approach to the weighing up of Mr Talha’s Australian studies against the tasks for an Engineering Technologist as set out in Unit Group 2339 and in the occupation of Engineering Technologist. Notably, it made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Engineering Professionals, which included Engineering Technologists. Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation of Engineering Technologist and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation. In particular, the Tribunal ought to have included in the evaluative exercise the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. As is evident from the extract at [26] above, those tasks included many matters which, on their face, had a relationship with many of the courses completed by Mr Talha in his Australian studies. That was the essential point which Mr Talha made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings (which supported Mr Talha’s individual claims). The Tribunal erred in not taking into account the relevant information in those higher groupings. It adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth).

53    Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

(Emphasis added).

54    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.

55    Although we accept the Minister’s submission that some of the information contained in the higher groupings are not relevant to individual occupations within the grouping, the fact remains that, in the case of Mr Talha’s nominated occupation, there was relevant information in the higher groupings. Mr Talha’s statement, which the Tribunal took into account, highlighted the relevance to his nominated occupation of Engineering Technologist of information contained in the higher groupings relating to management tasks. The Tribunal ought not to have confined its consideration to the relevant information which was contained in the unit group, but should have also referred to the higher groupings.

56    Nor do we accept the Minister’s submission that, because the Minister chose by legislative instrument to identify skilled occupation by reference to occupational categories in the ANZSCO Code and not by higher level categories, the information in those higher categories is irrelevant. The 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 Mr Talha’s nominated occupation. As explained above, this not only included information in the introductory sections of the ANZSCO Code which explained its structure and purpose, but also relevant information in the higher groupings into which the nominated occupation expressly fell.

57    It might also be noted that the Minister’s submission is inconsistent with the Tribunal’s own approach because it did take into account information not only in the individual occupational category but also information in the higher unit group. Acceptance of the Minister’s submission would mean that the Tribunal should have ignored the information in the unit group notwithstanding that that information included an express reference to the very same terminology which appears in the Ministerial Instrument, namely “233914 Engineering Technologist”. Because that particular unit group itself fell into higher groupings, reference also had to be made to any relevant information in those higher groupings.

58    As to the Minister’s submission concerning the limited purpose of the ANZSCO Code (see [38(a)and (f)] above), the Minister has selectively quoted from the stated purpose of the ANZSCO Code. The relevant statement is set out in full in [23] above.

59    We do not consider those statements to preclude regard being had to information in higher groupings which is relevant to particular occupations. The statement as to the ANZSCO Code’s purpose is not directed to that exercise at all. Rather, the statement is directed to the need for caution in using ANZSCO information about particular jobs because the same job titles may be used in different industries to describe different occupations. Moreover, the occupation titles used in the ANZSCO Code are not an exhaustive list of all titles which are commonly used to describe an occupation, hence the example is given of “brickie” (see [23] above). Those are different matters to the manner in which ANZSCO Code information needed to be considered in the particular circumstances here.

60    As to the Minister’s submission which is summarised in [38(f)] above, which is to the effect that the ANZSCO Code has only a limited purpose, and is not suited at all to the task of determining whether a person’s Australian study qualifications are “closely related” to a nominated occupation, acceptance of that proposition would have the remarkable effect of rendering the Ministerial Instrument unworkable, as well as leave a huge vacuum in the operation of reg 1.15I and cl 485.213(b) of Sch 2 of the Regulations. Furthermore, the submission is predicated on a misinterpretation of the statement in the ANZSCO Code as to its purpose (see immediately above). The contention should be rejected.

61    Finally, the fact that the ANZSCO Code also contains a separate unit group and occupational classification for “Engineering Managers” is not inconsistent with the correct approach to the use of relevant information in higher groupings in the ANZSCO Code. The groupings relating to “Engineering Managers” are entirely separate. What is relevant here is the fact that the groupings into which the nominated occupation of Engineering Technologist falls contain information which confirms Mr Talha’s claims that management skills and tasks were elements which the Tribunal had to take into account in assessing whether his Australian study qualifications were “closely related” to his nominated occupation.

62    This is sufficient to uphold the appeal. In view of the way in which the case was presented, however, it is appropriate to make the following comments on ground 1(a) and the correctness of Tobon.

63    As to ground 1(a), we do not consider that the Tribunal proceeded on the basis that cl 485.213(b) required that the skills obtained from Mr Talha’s Australian studies could be used only for the purpose of his nominated skilled occupation. We accept the Minister’s submission that the Tribunal did not find that it was necessary for the Australian studies to confer skills which were unique to the nominated skilled occupation. Such an approach would have involved jurisdictional error. As pointed out above, the Tribunal’s error here is more correctly characterised as a failure to apply all relevant aspects of the ANZSCO Code which caused the Tribunal to have regard to too narrow a description of the relevant tasks identified in the ANZSCO Code relating to Mr Talha’s nominated skilled occupation.

64    As to the correctness of Tobon, it is important to appreciate that the various errors identified in the Tribunal’s reasoning were different from the error identified above. No issue arose in that case as to whether the Tribunal had misconstrued or misapplied the ANZSCO Code, with the consequence that the Tribunal took into account an unduly limited list of tasks applicable to the nominated skilled occupation.

65    The errors identified in Tobon were that:

(a)    the Tribunal there construed cl 485.213(b) as requiring that the skills, or at least a substantial proportion of the skills for which a diploma is awarded, are skills that can only be used in the nominated skilled occupation (see [33]);

(b)    the Tribunal applied parts of the Minister’s Procedures Advice Manual, which were not supported by the terms of the relevant legislation (see [36]);

(c)    the Tribunal erred in proceeding on the basis that a diploma is closely related to a nominated skilled occupation only if it results in the acquisition of skills that on their own equipment the visa applicant to perform at least part of the nominated skilled occupation (see [37]); and

(d)    the Tribunal proceeded on the basis that, before a diploma can be closely related to a nominated skilled occupation, skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation (see [38]).

66    The Minister has not satisfied us that any of these four findings were in error.  We would add some further observations. The fourth of those findings ought not to be read as derogating from the fundamental requirement that, in conducting the evaluative exercise required by cl 485.213(b), consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation.  We would not, for ourselves, express the proposition in paragraph [25](c) of Tobon as a necessary part of determining whether a qualification is “closely related” to a nominated occupation, although such a comparison may in a given case form part of the exercise as described by the Full Court in Dhillon. This leads to our final observation, which is that we would prefer not to describe the evaluative exercise in cl 485.213(b) as requiring that a decision maker “must” undertake the three steps as set out in [25] of Tobon. There is a danger in attempting to be too prescriptive in relation to a provision such as cl 485.213(b), which invites a formula to be substituted for the terms of the provision.  These are more matters of emphasis and approach and do not affect our opinion that none of the four alleged errors in Tobon have been made out.

Conclusion

67    The appeal should be upheld. The Tribunal’s decision should be set aside and the Tribunal ordered to reconsider Mr Talha’s application for review according to law. Having defended all the grounds of appeal, the Minister should bear the costs of the appeal. However, having regard to the condition of the grant of leave in respect of the third ground of appeal, the order as to costs made below should stand.

68    The Court expresses its gratitude to Ms Martin and Mr Aleksov who accepted a pro bono referral to advise and appear for the appellant. Mr Knowles, who appeared for the Minister, provided his customary helpful assistance.

69    Appropriate orders will be made accordingly.

Associate:

Dated:    25 August 2015