FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration & Multicultural Affairs [2000] FCA 1183

MIGRATION – points test – skill sub-factor – whether delegate erred by determining the applicant was a “waiter” not a “formal service waiter” – whether delegate erred by referring to the second edition of the Australian Standard Classification of occupations – second edition published after the visa application but before the delegate’s decision – first edition of ASCO recognised the occupation of “formal service waiter” – second edition did not

Migration Act 1958 s 93

Migration Regulations 1994 sub-reg 2.26(5), Items 6102, 6103 and 6107 in Schedule 6

Australian Standard Classification of Occupations

Wang v Minister for Immigration & Multicultural Affairs (Wilcox J, 30 January 1999, unreported) cited

MOHAMMED SAIFUL ISLAM v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1204 OF 1999

TAMBERLIN J

SYDNEY

23 AUGUST 2000

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a “points” assessment decision made on 7 September 1999 by a delegate of the Minister under s 93 of the Migration Act 1958 (“the Act”) by a departmental officer, Mr Brown (“the delegate”).

2                     The original visa application was for what is known as an Independent (Migration) (Class AT) Visa.  The application was lodged on 23 February 1996.  This visa class includes sub-class 126 (Independent).  Applicants are eligible to be granted an Independent (Migrant) (Class AT) Visa only if they meet the legislative criteria including, relevantly, the requirements of sub-class 126.  Satisfaction of these criteria involves the attainment of qualifying points based in part on applicants’ skills.

3                     The points for the skill element of the points test are awarded on the basis of the applicant’s “usual occupation” and the qualifications necessary to practise it in Australia.  This expression is defined in sub-regulation 2.26(5) of the Migration Regulations 1994 (“the Regulations”) to mean:

“… an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.”

4                     Since the application was made on 23 February 1996 the relevant period is a continuous six month period in the two years from 23 February 1994.

5                     The applicant was awarded 25 points in relation to the Skill sub-factor by the delegate on the basis that his usual occupation was a waiter, and accordingly he fell within Item 6107 of Schedule 6 of the Regulations.  The gravamen of the applicant’s case is that he should have been credited with more than 25 points on the basis that his usual occupation was a “Formal Service Waiter” or a “Silver Service Waiter” and that this occupation required a “trade certificate.”  Once these qualifications were required, it was submitted, the applicant met the requirements of Item 6103 of Schedule 6 of the Regulations and was entitled to 60 points.

6                     When assessing the applicant’s usual occupation the delegate consulted the July 1996 edition of Australian Standard Classification of Occupations (“ASCO 2”) which lists only “Waiter (General)” as a specific occupational classification.  The applicant submits his application should have been assessed according to the earlier edition of ASCO (“ASCO 1”) which lists “Formal Service Waiter” (aka “Silver Service Waiter”) as an occupation.  The relevant ASCO extracts are also set out below.

7                     The decision in respect of which judicial review is sought is brief and relevantly reads:

“THE POINTS TEST

You applied for what is now known as a Class AT Independent Skilled Migration Visa on 23 February 1996.  This visa class includes visa subclass 126 (Independent) and subclass 135 (State/Territory Nominated Independent).  An applicant is eligible to be granted a Class AT Independent Skilled Migration Visa only if they can meet all the legislative criteria relating to either subclass 126 or subclass 135.

Points for the Skill sub-factor of the Points Test are awarded on the basis of the applicant’s usual occupation.  The term “usual occupation” is defined in Sub-regulation 2.26(5) as meaning an occupation in which the applicant has engaged in for gain or reward for a continuous period of at least 6 months in the two-years preceding the application.  The numbers of points to be awarded are specified in Schedule 6 of the Regulations.

Based on the information provided in your application and supporting documents, I assessed that you have a “usual occupation” as defined in Sub-regulation 2.26(5) since you have been employed as a waiter since June 1990.

To classify your usual occupation, the Australian Standard Classification of Occupations (ASCO) Dictionary (Second Edition) was consulted.  Based on the information provided in your application and supporting documents, for the purpose of allocating points for the Skill sub-factor, your usual occupation is considered to be that of a Waiter (ASCO 6323-11).  According to the relevant Procedures Advice Manual (PAM) and ASCO, the minimum educational entry requirement for a Waiter is an Australian Qualification Framework (AQF) Certificate 11 or higher qualification.

Schedule 6, Part 6107 states, amongst other things, that:

The applicant who:

(a)       applies to enter Australia:

(i)        on the basis of an occupation that is the applicant’s usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and

(ii)       as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and

(iii)      as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind is to be awarded 25 points for the Skill factor.

Accordingly, you have been awarded 25 points under the Skill Factor.  The point allocation is based on the skill level of your occupation and not the academic qualifications you hold.

I have awarded you 30 points under the Age sub-factor on the basis that you were 27 at the time of your application (Item 6201 of Part 2 of Schedule 6) and, based on your IELTS Language test result, 20 points under the Language sub-factor (Item 6304 of Part 3 of Schedule 6).

You, therefore, have obtained a total score of 75 points which is less than the Gazetted Pool (95 points) and Gazetted Pass (105 points) marks.  As such you are unable to satisfy the prescribed requirement of Clause 126.221 and 135.223.

As you fail to meet one of the Legal requirements for the grant of a Class AT Migrant Visa, you are not eligible to be granted a class AT Migrant Visa and I have refused your application.

            Minimum points required

            for further processing:                                    95

            Actual points scored:                                      75

            Breakdown of score    Skill                            25

                                                Age                              30

                                                Language                    20

                                                Bonus                            0

                                                                                    ___

                                                            Total:              75”    (Emphasis added)

Background

8                     Mr Islam was born in Bangladesh on 15 March 1968.  He commenced work as a waiter in 1990.  He obtained a certificate in May 1992 from the Bangladesh Hotel & Tourism Training Institute.  From September 1992 until June 1994 he worked as a waiter in a café, and later as a “captain waiter”, at the Hotel Sofitel in Jeddah.  Mr Islam came to Australia in July 1994 and has resided in Australia ever since.  He continues to be employed in Australia as a waiter.  Mr Islam was awarded an Advanced Certificate in Hospitality and Catering (Supervision) by the Northern Sydney Institute of TAFE in June 1995.  He was issued with a Craft Certificate by the New South Wales Commissioner for Vocational Training on 3 July 1996 under the Industrial and Commercial Training Act 1989 (NSW).  That Certificate which certifies that Mr Islam had completed the term of an apprenticeship in the trade of “waiting”.  In December 1997 he was awarded a Diploma in Hospitality by the North Sydney Institute of TAFE.

9                     At the time of his application Mr Islam was 27 years of age. The application was lodged under a covering letter sent from Parish Patience Solicitors and Attorneys, dated 22 February 1996.   In relation to the Skill factor that letter submits:

“(c) Skills – Skills (sic) - The applicant is a qualified Silver Service Waiter.  This occupation is listed at ASCO code 6505 – 11.  PAM 3 Schedule 6 Assessing Authorities notes that you (sic) office should assess the applicant’s skills using PAM guidelines.

This is an occupation which attracts 70 points if the person’s qualifications are recognised and he has sound, continuous, relevant experience.  Attachment 17 to the Assessment of Skills and Qualifications No 2 PAM provides the required qualifications at paragraph 3.1.  This notes that applicants with a trade qualification plus at least three years of relevant post trade experience in major hotels or restaurants including silver service experience or on the job training with at least five years experience in major hotels or restaurants including silver service experience have acceptable qualifications.  In addition to score 70 points they need a further three years experience.

The applicant was initially employed by Hotel Midway International, a reputable Hotel in Dhaka Bangladesh.  His position with this Hotel was as a waiter.  He worked there from June, 1990 up until July, 1992.  After this he travelled to Saudi Arabia where he gained employment at Hotel Sofitel a five star hotel in Jeddah.  His position there was also that of a waiter.  He worked here from September, 1992 until June, 1994 when he travelled to Australia.

Whilst in Australia the applicant studied at Ryde  College at TAFE.  Here he completed an Advanced Certificate in Hospitality and Catering Supervision.  The course was one year in duration.  In Australia he has been employed at reputable Indian restaurants as a waiter.

The applicant will apply for a craft certificate in the trade of waiting from the New South Wales Commissioner for Vocational Training and this will be submitted to you on receipt as evidence of the Australian recognition of his trade skills. 

We submit that the applicant has in excess of five years employment experience as a waiter and has also completed a one year Advanced Certificate course in Australia in a relevant discipline, and has experience in all aspects of the occupation as can be seen from the employment references produced.  He thus fulfils all the tasks which are set out in ASCO 6505-11. [ASCO 1]

It is our submission that the applicant should be allocated 60 points for skills – regulation 6103.

Accordingly, on the points test assessment the applicant should be allocated a total of 110 points which score equals the current pass score of 110 for this class of visa and should be approved for further migrant entry processing.” (Emphasis added)

10                  The letter does not detail any specific experience as a “Silver Service Waiter” or as a “Formal Service Waiter” apart from the bare assertion that he was so qualified.

The Legislation

11                  In Wang v Minister for Immigration & Multicultural Affairs (30 January 1999, unreported) Wilcox J outlined the operation of the points system in Part 2, Division 3(B) of the Act and there is no need to repeat that analysis here.

12                  Section 93 of the Act provides:

“(1)     The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.

(2)       In this section:

             prescribed means prescribed by regulations in force at the time the assessment is made.”  (Emphasis added)

13                  The assessment of the number of points an applicant is entitled to is undertaken according to reg 2.26.  It relevantly provides:

“(1A)   This regulation applies to an applicant for an Independent (Migrant) (Class AT)… visa

(1)       For the purposes of subsection 93(1) of the Act (which deals with determination of the applicant’s point score):

…

(b)       Each qualification specified in column 2 of an Item in Part 1, 2 or 3 of Schedule 6 is prescribed as a qualification in relation to the grant to the applicant of a sub-class 126 (Independent) … visa.

…

(3)       For the purposes of subsection 93(1) of the Act …the Minister …

(b)       is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such  prescribed qualification …”

14                  Regulation 2.26(5) contains definitions in relation to certain terms used in Part 1 of Schedule 6 including the definition of “usual occupation” set out earlier.

15                  In this matter, the relevant “Items” that contain the proscribed qualifications referred to in reg 2.26 are Items 6103 and 6107.  The former is the Item the applicant says applies to him, the latter is the Item the delegate determined was relevant to the applicant.  Item 6102 is also relevant because it feeds into Item 6103.  The Items read as follows:

“Column 1                  Column 2                                                        Column 3

Item                             Prescribed qualification                                  Number of

6102                The applicant’s usual occupation:                                          70

                        …

                        (b) is an occupation

                          (i) for which in Australia, a degree or

                              trade certificate is required; [and]

                        …

                        (c) is an occupation in respect of which, at least

                             3 years before the relevant application was made,

                            the applicant:

                                    (i) Obtained [a qualification or work

                                        experience] assessed by the relevant

                                       Australian Authority to be

                                       equivalent to the Australian Standards

                                       for the occupation…

6103                The applicant would meet the qualification                           60

                        specified in item 6102 except that:

                        (a) the applicant did not obtain or complete the

                             qualification referred to in paragraph (c) of

                             that item at least 3 years before the application

                            was made; or …”

16                  The delegate in his reasons sets out Item 6107 in Schedule 6 as follows:

“6107              The applicant:

(a)                   applies to enter Australia:

(i)        on the basis of an occupation that is the applicant’s usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and

(ii)       as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and

(iii)      as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to  a post-secondary qualification of that kind, or

…”   (Emphasis added)

17                  As noted earlier, the decision-maker determined the applicant’s usual occupation after consulting ASCO 2.  ASCO 1 was in force at the date of the visa application on 23 February 1996.  ASCO 2 was published after the date of the visa application, but it was the edition in force at the time of the decision under review.

18                  In support of his judicial review application the applicant contends that the classifications which were current as at the date of the visa application, ASCO 1 should be taken into account.

19                  ASCO 1 included a classification 6505-11 which relates to “Formal Service Waiters” and “Silver Service Waiters”.  The relevant entry in ASCO 1 reads as follows:

“ 6505-11 FORMAL SERVICE WAITER/WAITRESS

Silver Service Waiter/Waitress

Serves food and beverages, in a formal dining setting, to patrons in hotels, restaurants, clubs and similar dining establishments

SKILL LEVEL

Education and Training: a trade certificate.

DUTIES

Sets tables.

Presents menus to patrons and suggests dishes.

Answers questions regarding service and food preparation.

Takes orders and relays them to kitchen or bar staff.

Carries trays or pushes carts to transport food and beverages to tables.

Garnishes dishes and carves meat.

Serves food from chafing or warming dishes at tables.

Attends to patrons to fulfil additional requests and ensure delivery of courses at appropriate times.

Presents bills to patrons and accepts payment.

Clears tables and returns dishes and cutlery to kitchens.

Removes linen and places it in containers for laundering.”  (Emphases added)

20                  ASCO 1 included a classification 6505-15 entitled “Waiter/Waitress (General)” which reads as follows:

“Serves food and beverages to patrons in dining establishments

SKILL LEVEL

On-the-Job-Training 1-6 months

DUTIES

Set tables.

Presents menus to patrons and answers questions regarding food preparation.

Takes orders and relays them to kitchen staff or bar attendants.

Serves food and beverages.

Presents bills to patrons.

Clears tables and returns dishes and cutlery to kitchens.

May move and arrange tables and chairs.

May serve drinks.

SPECIALISATIONS

Dining Room Attendant.”

21                  This latter classification makes no reference to the three duties of a “Formal Service Waiter” referred to in ASCO 1 in bold emphasis above.

22                  The relevant occupational classification under ASCO 2 was Unit Group 6323-11 “General Waiter” which reads as follows:

“6323-11        General Waiter

Serves food and beverages in dining establishments.

Skill Level:

The only requirement for this occupation is an AQF Certificate II or higher qualification or at least 1 years relevant experience.

Tasks Include

·        sets and arranges tables

·        presents menu to patrons and advises customers on menu items, food preparation and service

·        takes orders and relays them to kitchen or bar staff

·        garnishes dishes and carves meat

·        serves food and beverages

·        presents bills to patrons and accepts payments

·        clears tables and returns dishes and cutlery to kitchen

·        discusses orders with kitchen staff

·        collects payments for  sales and operates point of sale machines and cash registers

·        takes drink orders and obtains drinks from bar attendants

·        provides advice to customers on wines, bottles and pours wines

Specialisations:

Formal Service Waiter

Silver Service Waiter”

23                  There is no provision in ASCO 2 which sets out any requirements in relation to “Formal Service Waiter” or “Silver Service Waiter”.

24                  The preamble to the specific classifications under Unit Group 6323 of ASCO 2 states that the skill level or entry requirements to the Waiters Unit Group is an AQF Certificate or higher qualification or at least one years relevant experience. There is no requirement for a “trade certificate” which would be necessary to bring the applicant within Item 6103 of Schedule 6 of the Regulations. 

25                  The primary submission of the applicant is that his “usual occupation” as defined by reg 2.26 satisfied the description of the class of “Formal Service Waiter” under ASCO 1; that it was the ASCO 1 provisions which should be considered in relation to his application; and under that classification he would be entitled to 60 points.  It was said the delegate should have consulted ASCO 1 because, either, it was the current edition at the date of the visa application, or, the reference to “Formal Service Waiter” and “Silver Service Waiter” in ASCO 2 impliedly incorporated the relevant provisions in ASCO 1.

Did the deLEGATE err in applying ASCO 2?

26                  The reason the ASCO provisions are said to be relevant is because Items 6102, 6103, and 6107 of the Employment Qualifications in Schedule 6 of the Regulations refer to qualifications assessed by the “relevant Australian Authority.”  Regulation 2.26(5) includes in the definition of “relevant Australian Authority” the Department of Employment Workplace Relations and Small Business (the Employment Department).  As at February 1996, when the application was made, the Employment Department had published ASCO 1 in cooperation with the Australian Bureau of Statistics (“ABS”).  This was said to present Australia’s first comprehensive classification and dictionary of occupations.  The new classification system was said to have important applications in statistical surveys, labour market analysis, vocational guidance, education and training, employment service operations, careers information, and vocational guidance.  It is therefore said that the provisions of ASCO 1 are relevant to determining what is the assessment made by the relevant Australian Authority of the qualifications.

27                  In my view the answer to the question posed in the heading is “No”.  I am satisfied on reading the relevant provisions of ASCO 2 that, as from the date it was issued, it was intended to replace the provisions of ASCO 1 so that those latter provisions no longer applied.  The statements in Chapter 2 of ASCO 2, dealing with the basis and role of ASCO classifications, make this apparent.  In particular, I do not consider that on a correct reading of ASCO 2 it was intended that the classification of “Formal Service Waiter” or “Silver Service Waiter” referred to in ASCO 1 should continue to operate in conjunction with the classification in ASCO 2.  A decision as to the proper classification is required to be made at the time of the decision and not the date of the application: see s 93 of the Act, and sub-cl 126.21 and 126.22 of Schedule 2 to the Regulations.

28                  I note also that even if it be accepted that ASCO, editions 1 or 2, are publications of a “relevant Australian Authority”, they do not purport to “assess” the qualifications or experience of the applicant as “equivalent to the Australian standards for the occupation” for the purposes of sub-Item 6102(c).

29                  Finally, the provisions of both ASCO versions in my view are intended to only provide guidance as to the classification of occupations for statistical purposes.  They do not impose a mandatory requirement on the Minister or his officers to find that employment qualification requirements must be present to qualify for the various job classifications referred to.  They may be considered relevant when making a decision as to the appropriate occupational class but they do not prescribe any obligation to obtain the qualification or to have the experience referred to therein in order to attract points under the Act:Wang.

WAS THERE AN Error in THE WAY THE DELEGATES referrED to ProcedureS Advice Manual (“PAM”)?

30                  In written submissions, Counsel for the applicant submitted that the delegate made reference to the PAM but ignored the fact that the PAM continued to recognise the existence of a trade level qualification for waiters.

31                  As can be seen from the decision record the delegate noted that the relevant PAM said that a trade certificate was not required for waiters.  In paragraph 2.6.14 of the PAM it is stated that:

“the Australian Standard (see the ASCO dictionary) for waiters usually requires only a limited period of on the job training. However it is open to processing officers to decide that the position as a waiter [requires] a highly skilled person provided that [certain standards are met].”  (Emphasis added)

32                  Being a “highly skilled person” is not a necessary requirement to be a waiter.  Furthermore, it is quite evident that the decision-maker did not treat the guidelines set out in PAM as binding in any way.  No error of law has been made out in relation to this matter.

Did the delegate err in law by applying policy without regard to merits?

33                  The terms of the decision record make it clear that in this matter the delegate took account of the particular employment history, qualifications, circumstances and other evidence pertaining to the applicant in making the assessment.  This is not a case where it can be said that policy was applied as a matter of course, for example, to a class or groups of applicants without regard to the specific case.

DID THE DELEGATE Err in HIS application of the law?

34                  The primary question for determination is what was the “usual occupation” of Mr Islam during any continuous period of six months in the two years preceding 23 February 1996, the date of the visa application, and what consequences flow from that determination.   The delegate found that the usual occupation was that of “waiter”.  This is essentially a question of fact. On the evidence it was open to him to reach that conclusion.  The evidence before the delegate strongly points to a conclusion that Mr Islam was a “waiter” and that he did not, during any continuous six month period in the relevant two year period carry out duties which would bring him within the classification of “Formal Service Waiter” under ASCO 1 (even if ASCO 1 be relevant) or “Highly Skilled Waiter” if reference is made to PAM.  Apart from a bare assertion by his solicitor to the contrary there was substantial evidence to indicate that his position was no more than that of a waiter. 

35                  Even if it is assumed, as was submitted by the applicant, that his position with the Hotel Sofitel involved the relevant duties, the applicant did not have a continuous period of six months service there in the two years after 23 February 1994. The only establishment for which he worked for a continuous six month period in the two year qualification period was with the “Tandoori Centre” in Oxford Street, Darlinghurst.  The evidence from that restaurant, in the form of a letter, was that the applicant was employed from 8 July 1994 until 30 June 1995 as a “professional waiter”.  Some duties are spelt out in the letter but those referred to in relation to his position do not describe the higher level of service required to bring him within the class of “Formal Service Waiter”.  It is noteworthy that in his application form the applicant also refers to his employment from 8 August 1995 to the date of the application as being with the “Tandoori Centre” at Darlinghurst however the duties described in that application do not include those of a “Formal Service Waiter”.

36                  Accordingly, in my view, no error has been shown in reaching a conclusion that the applicant’s “usual occupation” was that of waiter.

CONSEQUENCES OF THE applicant’s USUAL OCCUPATION AS A WAITER

37                  The next question is whether the delegate erred in holding that the applicant’s “usual occupation” of waiter is not an occupation for which in Australia a degree or trade certificate is required.  ASCO 2 indicates that no trade certificate is required for the occupation of “General Waiter.”  For reasons given above ASCO 1 did not apply at that time.  However, even if, contrary to the view which I have expressed, ASCO 1 did apply, the fact is simply that there is no trade certificate required for the occupation of a “Waiter (General)”, the classification in which the applicant would fall.  Accordingly, no error has been shown in the conclusion of the delegate that the applicant did not satisfy the employment qualifications requirements.

failure to give reasons

38                  By reason of ss 66(2) and (3) the Minister is not required to give written reasons why the criterion has not been satisfied: see para 126.11.  Nevertheless, in this case the decision-maker has given reasons and they can therefore be examined by the Court on judicial review.

39                  An examination of the Decision Record indicates that sufficient reasons are therein disclosed to enable the applicant to appreciate the way in which the decision was arrived at with sufficient certainty to enable an application to be made for review of the decision.  This is not a case where insufficient reasons have been given.  I am of the view that the reasons cannot be said to be inadequate to such an extent that they give rise to an error of law.

Conclusion

40                  In my view no error has been shown and the application is dismissed with costs

Associate:

Dated:              23 August 2000