FEDERAL COURT OF AUSTRALIA

Mendis v Minister for Immigration & Multicultural Affairs

[2002] FCA 437

IMMIGRATION – Skilled Australian Linked Migrant (class AJ) Visa – points test – skill sub-factor – whether delegate erred by referring to the second edition of the Australian Standard Classification of Occupations rather than the first edition – where the first edition was current at the time the visa application was made and the second edition was current at the time the visa application was assessed.

Migration Act 1958 (Cth)

Migration Regulations Sch 6

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

SHEHAN BERNARD MENDIS, NIROSHA RAJINI MENDIS and PRESHAN JOSEPH MENDIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1421 OF 2001

MOORE J

11 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondent’s 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 by Mr Shehan Bernard Mendis (“the applicant”) and members of his family for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 17 September 2001 which affirmed a decision of a delegate of the respondent (“the Minister”) to refuse to grant a Skilled – Australian Linked (Migrant) (Class AJ) visa (“the visa”) to the applicants.

Background

2                     The applicant applied for a Concessional Family (Migrant) (Class AJ) visa on 3 June 1996.  The class AJ visa was renamed the Skilled-Australian Linked (Migrant) (Class AJ) visa on 1 July 1997.  The application was lodged at the Australian Embassy in Moscow, although it appears that the applicant was in Australia at that time on a different visa. As the applicant’s usual place of residence was Sri Lanka, the visa application was sent from Moscow to the Australian High Commission in Colombo for further processing. The delegate’s decision to refuse to grant the visa was made on 14 April 1998.  An internal review was unsuccessful.  The applicant then applied to the Tribunal for review of the delegate’s decision.

3                     To be eligible for the visa the applicant, relevantly, had to meet certain legislative criteria including the primary criteria set out in Parts 105 of Schedule 2 to the Migration Regulations 1994.  One primary criterion, to be satisfied at the time of decision, was that the applicant must have the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth). That Subdivision relevantly provided:

“93      (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.

94        (1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.

            (2)…

…

96                (1) …

(2)   The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the Regulations.”

4                     At the time the applicant’s application was assessed and at the time of the Tribunal’s decision it was necessary to secure 115 points.  The prescribed qualifications and points for each qualification were to be ascertained having regard to reg 2.26 and Sch 6 of the Migration Regulations.  Seven qualifications were set out in Sch 6 together with the range of points available for each.  Part 1 concerned the first employment qualification, for which a maximum of eighty points was available.  That Part contained seven items to which differing numbers of points were attributed.  Which item was the applicable item in Part 1 depended, in part, on the applicant's “usual occupation”.  Regulation 2.26(5) of the Migration Regulations provides that a person’s usual occupation is an occupation that an applicant has engaged in for gain or reward for a continuos period of at least 6 months during the period of 2 years immediately preceding the application for the visa. 

5                     In determining what was a person’s usual occupation, the Minister may compare the evidence given by a visa applicant about the tasks or duties usual undertaken in the course of their occupation with the occupation definitions in the Australian Standard Classification of Occupations (ASCO) published by the Australian Bureau of Statistics.

6                     In his visa application the applicant stated that his usual occupation was that of “silver service waiter”.  He listed the main tasks and duties performed in that occupation as:

“Serving food and beverages to hotel/restaurant customers, taking down food and beverage orders, mixing drink/cocktails, opening and service of wines, presenting ordered food items on silver platters and silver service of these items to guests, tasting and recommending correct wines with correct meals, advising about specials of the day and up-selling food and liquor items to enhance sales.”

7                     In support of his application, the applicant submitted written references indicating he had been employed by the Colombo Hilton Hotel as a Trainee Assistant Steward from 15 October 1991 to 8 August 1992, by the Galadari Hotel as a “permanent waiter with Silver Service experience, attached to the food and beverage department” from 1 September 1992 to 20 December 1995 and by the Sydney Tower Restaurant as a waiter from April 1996, shortly after his arrival in Australia. The applicant also submitted evidence indicating he had completed 12 years of schooling at St. Peters College in Colombo and a “Restaurant & Bar Service Course 126 with silver service” course conducted by the Ceylon Hotel School which the applicant claimed in his application was one year in duration.

8                     Having regard to the duties and tasks listed by the applicant and after consulting the second edition of ASCO (“ASCO 2”), the Minister’s delegate found that the applicant’s usual occupation was that of “general waiter” (ASCO 2 code 6323-11). In accordance with PAM 3 guidelines and the guidelines in ASCO which set out the minimum Australian skill level or entry requirements for that occupation, the Minister’s delegate then determined that the applicant’s employment qualification fell within item 6107 of Pt 1 Sch 6 and accordingly awarded him 25 points for that qualification.  Together with the points awarded to him in respect of the remaining six qualifications listed in Sch 6, the applicant received 90 points.  He failed to achieve the qualifying score of 115 points and did not satisfy the primary criteria for the grant of the visa.

The Tribunal’s reasons

9                     The Tribunal set out the criteria for the grant of the visa including the requirement that the applicant achieve a qualifying score having regard to the provisions of Sch 6 of the Migration Regulations.  The Tribunal considered the points available to the applicant in relation to each of the seven qualifications set out in Sch 6 and concluded that the points that could be awarded to the applicant were not sufficient to achieve a pass mark or qualifying score.

10                  The Tribunal paid particular regard to the points available to the applicant in relation to his ‘employment qualification’ because it was in relation to this matter that the applicant submitted the Minister’s delegate had allocated him the incorrect number of points.  In particular, the applicant submitted to the Tribunal that the Minister’s delegate had incorrectly categorised the applicant’s usual occupation by reference to ASCO 2 which, although current at the time of the delegate’s assessment, was not current at the time the application for the visa was made.  The applicant contended that his usual occupation should be categorised by reference to ASCO first edition (“ASCO 1”), which was current when he applied for the visa.  The significance of this was said to be that ASCO 1, unlike ASCO 2, listed “Silver Service Waiter” as a distinct occupation with greater entry level educational requirements than that of “General Waiter”.  The consequence being that a “Silver Service Waiter” was eligible for more points than a “General Waiter” under the heading ‘employment qualification’ in the general points test.

11                  In relation to that contention the Tribunal made the following finding:

As noted earlier, the DIMA delegate determined the primary visa applicant’s usual occupation after consulting the second edition of ASCO.  The first edition of ASCO was in force at the date of the visa application on 3 June 1996. The second edition of ASCO was published after the date of the visa application, however it was the edition in force at the time of primary assessment and at the time of decision.

In Islam v Minister for Immigration & Multicultural Affairs [2000] FCA 1183 Tamberlin J found that as follows:

‘… 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…’

The Tribunal has had regard to this judgement, and finds that the second edition of ASCO, rather than the first edition, is the appropriate of the two publications to be used as a guide to help determine the usual occupation of the applicants.”

12                  The Tribunal then went on to consider the applicant’s point score for employment qualification by reference to ASCO 2.  It made the following assessment:

“The Tribunal's first task is to determine the usual occupation or occupations of the primary visa applicant.

As the primary visa applicant lodged the visa application on 3 June 1996, his usual occupation is the occupation which he engaged in continuously for gain or reward for at least 6 months from 3 June 1994 until the date of application.

…

Having examined all the evidence before it on the primary visa applicant's training, qualifications and work experience during the relevant period, the Tribunal finds that his usual occupation is that of a waiter. The Tribunal finds that the duties stated to be performed by him during the relevant period are satisfactorily described by the entry relating to the occupation of `General Waiter' (code 63231-11) which appears in the second edition of ASCO (Australian Standard Classification of Occupations). This occupation includes the specialisation of `Formal Service Waiter' and `Silver Service Waiter'. The entry states that a person in this occupation serves food and beverages in dining establishments. The tasks are stated to include but not be limited to the following:

            Sets and arranges tables;

Presents menus 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 payment;

            Clears tables and returns dishes and cutlery to kitchens;

            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, opens bottles and pours wines.

ASCO states that The minimum Australian skill level and entry requirements for the occupation of `General Waiter' is stated to be an AQF Certificate II or higher qualification or at least 1 years relevant experience.

On the basis of the evidence of the primary visa applicant's relevant work experience during the relevant period provided, the Tribunal accepts that he has the required qualifications for this occupation. In accordance with item 6107 of Schedule 6 to the Regulations, the maximum points which can be awarded to the primary visa applicant for this usual occupation is 25 points.

As when combined with the points awarded for other factors on the points test, such a score would not be sufficient to enable the applicants to meet the pool or pass marks at either relevant time, the Tribunal has not requested the primary visa applicant to proceed with a costly formal assessment from the relevant assessing authority in accordance with section 2.26. Instead the Tribunal has followed the policy advice in PAM 3 and made its own assessment and allocated the maximum available points for the purposes of this application.”

Issues in the application for an order of review

13                  The application for review was filed in this Court on 15 October 2001. Five general grounds of review were set out in the application but were not particularised.  The hearing took place on 12 March 2002 and the applicant was unrepresented and appeared for all the applicants.  It was apparent from the applicant’s oral and written submissions that he raised one issue which related to the Tribunal’s reliance on ASCO 2.  It was submitted that the Tribunal erred in doing so.

14                  It was submitted by counsel for the Minister that because the present application for review was filed after the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (which commenced on 2 October 2001), it was subject to the provisions of the new Part 8 to the Migration Act as introduced by the amending act.  Under s 474(2) and (3)(d) of the Act as amended, the decision of the Tribunal sought to be reviewed is defined as a “privative clause decision’ and the review jurisdiction of this Court in respect of the decision is limited to that conferred by s 39B of the Judiciary Act 1903 (Cth): ss 475A and 476.  For reasons which will be apparent shortly it is unnecessary to consider the implications of these amendments in this matter.

15                  That is because the alleged error the applicant identifies has already been found by a single judge of this Court in a very similar factual context not to be a legal error.  In Islam v Minister for Immigration & Multicultural Affairs [2000] FCA 1183, referred to by the Tribunal in its reasons set out above at [11], Tamberlin J addressed a submission that the applicant’s “usual occupation” satisfied the description of the class of “Formal Service Waiter” under ASCO 1 and that it was the ASCO 1 provisions which should be considered in relation to his application.  That was 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. In relation to that submission, his Honour found:

“Did the deLEGATE err in applying ASCO 2?

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.

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.

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).

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”)?

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.

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)

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 HIS application of the law?

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. 

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”.

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

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.”

16                  The facts of this present application differ from those before Tamberlin J in that the applicant in that matter had not produced any material to the Tribunal to support his claim to be a silver service or formal service waiter rather than a general waiter. Accordingly, his Honour found that, even if the Tribunal should have had recourse to ASCO 1, the applicant did not, during any continuous six month period in the relevant two year period prior to his visa application, carry out duties which would bring him within the classification of “Formal Service Waiter” under ASCO 1.  The applicant in this matter has produced documentation, outlined at [6] and [7] above, which might have warranted a conclusion that this was the appropriate classification.  Nonetheless, I do not consider that this factual difference is material to the question determined by Tamberlin J, namely whether the Tribunal erred in having recourse to ASCO 2.

17                  In this area of law, the Tribunal is bound to follow the law as interpreted by this Court and, as a consequence, it is particularly important that confusion is not created by judges adopting different views on how the assessment of a visa application of the general type presently under consideration should be undertaken.  I am bound to follow the decision of Tamberlin J unless I am convinced that his Honour is plainly or clearly wrong.  I am not so convinced.  Accordingly I must follow the approach of Tamberlin J and find that the Tribunal did not err in law by having recourse to ASCO 2 when assessing the points available to the applicant for the employment qualification as provided for in Sch 6.

18                  As no other submissions were made in support of the application for review, the application should be dismissed with costs.

Associate:

Dated:              11 April 2002