Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562

FEDERAL COURT OF AUSTRALIA

MIGRATION – consideration of the requirements of a permanent Skilled – Australian‑sponsored (Migrant) (Class BQ), Schedule 2, sub‑class 138, Migration Regulations 1994 (Cth), visa application – consideration of the criteria applicable to such an application

Migration Regulations 1994, cl. 138-21

Kamruzzaman v Minister for Immigration & Anor [2008] FMCA 1460

Shahid v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1412

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211

MINISTER FOR IMMIGRATION AND CITIZENSHIP v MOHAMMED KAMRUZZAMAN

QUD 414 of 2008

GREENWOOD J

23 DECEMBER 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND:

MOHAMMED KAMRUZZAMAN

Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	23 DECEMBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the Federal Magistrates Court of 19 November 2008 is set aside.

3. The decision of the Migration Review Tribunal of 16 April 2008 is reinstated.

4. The respondent shall pay the costs of and incidental to the appeal and the hearing before the Magistrates Court of Australia.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Court search of the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND:

MOHAMMED KAMRUZZAMAN

Respondent

JUDGE:	GREENWOOD J
DATE:	23 DECEMBER 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This proceeding is an appeal from the decision of the Federal Magistrates Court of Australia (Burnett FM) in Kamruzzaman v Minister for Immigration & Anor [2008] FMCA 1460, made on 19 November 2008 and amended on 3 December 2008, which determined that a decision of the Migration Review Tribunal (the Tribunal) should be annulled. The Tribunal by its decision affirmed the decision of a delegate of the appellant refusing to grant a visa to the visa applicant, who is sponsored by his brother, the respondent.

Notice of appeal

2 The appellant, the Minister for Immigration and Citizenship, seeks that the decision of the Federal Magistrates Court be set aside and the decision of the Migration Review Tribunal be allowed to stand. The appellant contends in his notice of appeal that the learned Federal Magistrate erred in his application of clause 138.216 of the Migration Regulations 1994 (Cth), firstly by considering whether the visa applicant had been employed as a Business and Information Professional, which was the subject of a finding of fact by the Tribunal and not open to review; secondly, by finding that the Tribunal asked itself the wrong question or failed to give consideration to a relevant consideration, as whether the applicant was utilising “higher order skills” was not relevant; and thirdly, by misapprehending the necessary qualifications and the actual employment requirements that the visa applicant must satisfy with respect to the nominated skilled occupation.

3 The appellant also says that the learned Federal Magistrate erred in finding that the Tribunal’s conclusion was one no reasonable Tribunal would have reached, on the basis of the Tribunal failing to act upon unchallenged evidence, and on the basis of the Tribunal incorrectly focusing on a “tasks” level analysis rather than a “skills” level assessment.

4 The appellant finally says that the learned Federal Magistrate erred in finding that the Tribunal, in asking whether the visa applicant was a Bank Worker / Credit and Loans Officer rather than whether he was a Business and Information Professional, asked itself the wrong question.

Background

5 On 19 April 2005, the respondent’s brother, Mohammed Jahangir Hossain, applied for a permanent Skilled – Australian‑sponsored (Migrant) (Class BQ), subclass 138 visa, with the respondent, who is an Australian citizen, as his sponsor. He listed his nominated occupation as “Business and Information Professional”. It should be noted that some of the documents in the proceeding put the application date as 21 April 2005, notwithstanding that it is stamped 19 April 2005 (see p 277 of the Appeal Book).

6 Mr Hossain was born in February 1972. He is a citizen of Bangladesh, where he currently resides. According to his visa application, he holds a Bachelor of Arts and a Master of Social Science from Bangladesh National University and a Diploma in Computer Science and Technology from the Bangladesh National Training and Research Academy. He achieved a score of 5.0 (of a possible 9) under the International English Language Testing System (“IELTS”). Mr Hossain stated on his application that he had been employed since August of 2001 at the Arab Bangladesh Bank (“the Bank”), as an Assistant Officer.

Legal framework

7 The primary criteria to be satisfied at the time of application for a subclass 138 Skilled – Australian-sponsored visa are to be found in clause 138.21 of Schedule 2 of the Migration Regulations 1994. The relevant criterion is set out in clause 138.216, which is in these terms:

138.21 Criteria to be satisfied at time of application

138.216 (1) Subject to subclause (2), the applicant has been employed in a skilled occupation:

(a) if 60 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or

(b) if 40 or 50 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.

(2) Subclause (1) does not apply to an applicant if:

(a) each of the following subparagraphs applies in relation to the applicant:

(i) the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of at least 2 years at that institution while the applicant was present in Australia;

(ii) the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application;

(iii) all instruction for that degree, diploma or trade qualification was conducted in English; or

(b) each of the following subparagraphs applies in relation to the applicant:

(i) the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of less than 2 years at that institution while the applicant was present in Australia;

(ii) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by
that institution, or another Australian educational institution, as a result of a course of study, while the applicant was present in Australia;

(iii) the 2 or more degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) were completed as a result of 1 or more courses of study undertaken over a total of at least 2 years while the applicant was present in Australia;

(iv) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was completed at the institution at which it was commenced;

(v) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) is relevant to the skilled occupation nominated by the applicant in his or her application;

(vi) all instruction for each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was conducted in English.

8 "Skilled occupation" is defined in Regulation 1.03 as “an occupation that is specified by the Minister in an instrument in writing for this definition as a skilled occupation for which a number of points specified in that instrument are available”. By the Gazette of 1 April 2005 the Minister specified “Business and Information Professional” as a skilled occupation for the purposes of Regulation 1.03. “Bank Worker” and “Credit and Loans Officer” were not gazetted as skilled occupations.

9 Clause 138.111 defines “employed” as having the meaning set out in sub‑regulation 2.26A(7) of the Regulations which defines “employed” as “engaged in an occupation for remuneration for at least 20 hours weekly”.

10 The effect of regulation 138.216(1)(b) is that an applicant for that subclass must, apart from holding the relevant qualifications and academic credentials for the skilled occupation, also amass sufficient points to satisfy that criterion by working in the relevant occupation for a certain period of time.

11 Fifty points have been specified as available points for the description Business and Information Professional. Mr Hossain’s application fell to be assessed by the decision‑maker in accordance with sub‑clause 138.216(1)(b). He must have been employed for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.

12 The Australian Standard Classification of Occupations (ASCO) is a publication of the Australian Bureau of Statistics (ABS). The ABS defines ASCO as “a skill-based classification which encompasses all occupations in the Australian work force”. ASCO sets out the following descriptions of Bank Worker, Credit and Loans Officer, and Business and Information Professional.

13 Bank Worker has the ASCO classification code 6143-11. It falls within the major group “Intermediate Clerical, Sales and Service Workers”; the sub-major group “Intermediate Clerical Workers”; the minor group “Intermediate Numerical Clerks”; and the unit group “Bank Workers”. The level below unit group in the ASCO classification is “Occupation”, which in this case is “Bank Worker”.

6143-11 Bank Worker

Receives and pays out money, keeps records of transactions, issues receipts and cashes cheques.

Skill Level:

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

Tasks Include:

· accepts money or cheques deposited by customers, verifies records and receipts, and credits customers' accounts

· pays money to customers according to advice slips, cheques or negotiable documents, and debits customers' accounts

· provides change and cashes cheques

· records transactions

· balances cash and advises supervisors of cash position or discrepancies

· answers customer inquiries

· opens and closes accounts for customers

14 Credit and Loans Officer has the ASCO classification code 5912-11. It falls within the major group “Advanced Clerical and Service Workers”; the sub-major group “Other Advanced Clerical and Service Workers”; the minor group “Advanced Numerical Clerks”; and the unit group “Credit and Loans Officers”. “Credit and Loans Officer” is the Occupation.

5912-11 Credit and Loans Officer

Analyses and evaluates loan or credit applications.

Skill Level:
The entry requirement for this occupation is an AQF Certificate III or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Tasks Include:

· assesses credit ratings and investment risks against pre-determined policy standards

· authorises the approval of loan or credit applications or recommends loan or credit conditions and limits

· contacts financial and credit institutions to obtain information about customers

· obtains and analyses information about clients

· maintains records and prepares reports on findings and on defaulting customers

· supplies information to financial and credit institutions on customers' credit standing

· may recommend or approve and arrange mortgages

15 Business and Information Professional has the ASCO classification code 2299-79. It falls within the major group “Professionals”; the sub-major group “Business and Information Professionals”; the minor group “Miscellaneous Business and Information Professionals”; and the unit group “Other Business and Information Professionals”. “Business and Information Professional nec” is the Occupation. The List of Abbreviations in ASCO shows that “nec” means “not elsewhere classified”.

2299-79 Business and Information Professionals nec

This occupation group covers Business and Information Professionals not elsewhere classified.

Skill Level:
The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Occupations in this group include:
Business Researcher
Liaison Officer

16 Although the description above of Business and Information Professionals is not detailed, that occupation falls under Sub-Major Group 22, “Business and Information Professionals”, which offers the following guidance:

SUB-MAJOR GROUP 22

BUSINESS AND INFORMATION PROFESSIONALS

BUSINESS AND INFORMATION PROFESSIONALS plan, develop, coordinate and implement programs and systems to provide services in accounting, sales, computing, publicity, staff development and training; conduct studies of organisational structures, methods and systems; and develop new techniques and applications in these areas.

Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Tasks performed by Business and Information Professionals typically include collecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations; conducting audits and investigations and preparing financial statements and reports; establishing, controlling and reviewing treasury systems and policies; supporting business growth and development through the preparation and execution of marketing objectives, policies and programs; acquiring and updating knowledge of employer's and competitors' products and understanding of market conditions; developing methods to improve and promote business operations and effectiveness; designing or advising on computing systems and developing computer hardware and software; developing, implementing and administering staff training programs, information systems, or situational and policy reviews; and collecting, preserving, organising and disseminating information.

Decision of the Minister’s delegate

17 On 14 April 2005 Sharma Lawyers, the respondent’s solicitors, wrote to the Department enclosing application forms, a copy of Mr Hossain’s senior certificate, copies of Mr Hossain’s and Mr Kamruzzaman’s passports, a VETASSESS assessment, a letter from the Bangladesh National University confirming that the medium of instruction in Mr Hossain’s political science degree was English, Mr Hossain’s curriculum vitae, copies of Mr Hossain’s qualifications, a reference letter confirming Mr Hossain’s employment at the Bank, a statutory declaration by Mr Kamruzzaman explaining that he and Mr Hossain do not have birth certificates, and a copy of Mr Kamruzzaman’s citizenship certificate.

18 The VETASSESS assessment is a skilled migration assessment. It is dated 28 February 2005. It concludes thus:

The educational requirement for [Business and Information Professionals] is an Australian degree or a qualification assessed as comparable to the educational level of an Australian degree. Based on the documents provided, the qualification described above meets the requirements of your nominated occupation and is assessed as suitable for migration purposes.”

[emphasis in original]

19 A note on the assessment document reads thus: “Please note that the above assessment represents VETASSESS’ considered view of the comparability of your post-secondary qualification(s) to the Australian qualification standard required for your occupation.”

20 On 24 October 2005 Sharma Lawyers again wrote to the Department, enclosing a letter from Mr Payer Ahmed, Assistant Vice President and Manager of the Bank, confirming that Mr Hossain was employed at the Bank full-time and briefly setting out his duties; a letter from Mr Ahmed stating that Mr Hossain’s command of English was satisfactory; a copy of Mr Hossain’s passport; a certificate of completion for a course in spoken English; and a letter from the Bangladesh National University confirming that the medium of instruction in Mr Hossain’s political science degree was English.

21 On 7 February 2006 Sharma Lawyers again wrote to the Department enclosing a certificate showing that Mr Hossain had completed a course in General English with the British Council, and an IELTS Test Report Form showing a score of 5 for listening, reading, writing, and speaking.

22 On 12 April 2006 a representative of the Department wrote to Sharma Lawyers inviting Mr Hossain to provide further information. The letter notifies the solicitors that a Department official had contacted the Bank by telephone and had been told that Mr Hossain did not supervise any staff and that his typical duties included account opening, local remittance, telegraphic transfers, and working in the demand and draft department. The management staff who provided that information confirmed that they considered Bank Worker to be the best description of Mr Hossain’s employment.

23 On 29 June 2006 Sharma Lawyers again wrote to the Department, attaching an employment reference letter written by Payer Ahmed, Senior Assistant Vice President and Manager of the Bank. It confirms the date on which Mr Hossain took up employment at the Bank and explains that in previous contact with the Department only Mr Hossain’s current tasks were discussed rather than the tasks he had undertaken in various other positions in the Bank.

24 A delegate of the Minister of Immigration and Citizenship made a decision on 23 January 2007 to refuse the visa on the basis that Mr Hossain did not satisfy clause 138.216 of Schedule 2 to the Migration Regulations 1994 because he had not been employed in a skilled occupation. The delegate’s opinion was that Mr Hossain’s position in the Bank was not Business and Information Professional, but Bank Worker or Credit and Loans Officer, which are not skilled occupations.

Decision of the Migration Review Tribunal

25 On 13 March 2007, Mr Kamruzzaman applied to the Tribunal for review of the delegate’s decision.

26 On 15 June 2007 Sharma Lawyers wrote to the Tribunal enclosing submissions and Mr Hossain’s previous statutory declaration. Mr Hossain explains in his statutory declaration that the reference letters previously provided by the Bank were in very general terms and did not set out his responsibilities in detail. He attaches a further description of his position. He states that he believes his duties correspond more closely with Business and Information Professional than with Bank Worker, and that the duties of Bank Workers as described are undertaken by clerical staff in the Bank.

27 The correspondence also attaches a letter from Mr Ahmed. Mr Ahmed states that the employees of the Bank are divided into clerical staff, junior officers, senior officers, and management staff. Mr Hossain began employment with the Bank on 20 August 2001 as an internee. He took up a position as an Assistant Officer in May 2002 and was confirmed as a permanent employee in November 2002. He supervises up to three employees. He has worked in a number of departments in the Bank.

28 Mr Ahmed sets out the tasks Mr Hossain regularly undertakes as follows:

· Receiving and answering customer enquiries

· Opening and closing accounts

· Selling bank products and services

· Identifying customer needs and referring them to appropriate banking services

· Dealing with international finance enquiries and transactions for customers, including documentation for importing / exporting

· Conducting foreign currency transactions

· Assessing the viability and credit risk of business and consumer loan proposals

· Conducting business dealings

· Liaising with the local and business community and government agencies

· Carrying out duties as issuing bank, clearing bank, and correspondent bank

· Researching, developing, and maintaining database information

· Maintaining required documents

· Engaging in all aspects of business loans, personal loans and debts, equities, and commodities

· Acting as a contact point

· Conducting public relations activities

· Corresponding with customers, other Bank officers, other branches of the Bank, and overseas banks

· Conducting foreign-exchange dealings

29 Mr Ahmed lists the skills he believes necessary in the position: good written and verbal communication skills; liaison skills; computing skills; skills in building public relationships; business acumen; knowledge of equities, commodities, and individual, business and corporate loans and debts; and ability to research and identify development of international banking practices. He explains that as officers become more senior, they cease to be required to undertake routine clerical duties. Mr Ahmed opines that the duties Mr Hossain performs fall into the category of Business and Information Professional.

30 On 17 August 2007 Sharma Lawyers again wrote to the Tribunal enclosing a statutory declaration of Mr Kamruzzaman, Mr Hossain’s previous statutory declaration, and the letter from Mr Ahmed referred to above. The letter suggests the Tribunal might make a decision without a hearing because the letter from Mr Ahmed and Mr Hossain’s VETASSESS assessment sufficiently address the question of Mr Hossain’s duties.

31 Mr Kamruzzaman’s statutory declaration is to the effect that he is in regular contact with Mr Hossain and is aware of his employment at the bank and the changes to his responsibilities from time to time. He confirms that Mr Hossain’s statutory declaration and the letter from the bank is consistent with the information given to Mr Kamruzzaman by Mr Hossain.

32 Also attached to the letter of 17 August 2007 are a letter dated 9 August 2001 offering Mr Hossain an internship at the Bank; a letter of acceptance from Mr Hossain; a letter appointing Mr Hossain an Assistant Officer; and a document showing that Mr Hossain had been confirmed as a permanent employee.

33 The Tribunal wrote to Mr Kamruzzaman on 17 and 30 October 2007 inviting him to appear on 16 November 2007. Mr Kamruzzaman appeared on that date. Mr Hossain also appeared by telephone. The matter was listed for further hearing on 3 December 2007 but quickly adjourned when no interpreter was available. There was a further hearing at which Mr Kamruzzaman and Mr Hossain both appeared on 4 January 2008.

34 On 18 January 2007 Sharma Lawyers wrote to the Tribunal requesting an extension of time to lodge submissions. The submissions were lodged on 24 January 2008.

35 On 28 April 2008 the Tribunal wrote to Mr Kamruzzaman to notify him of its decision to affirm the decision of the Department.

36 The Tribunal referred to the following documents submitted to it on Mr Hossain’s behalf:

1. A skilled-migration assessment by VETASSESS dated 28 February 2005 certifying that Mr Hossain’s qualifications had been assessed as suitable for his nominated occupation, for migration purposes;

2. A letter from the Bangladesh National University dated 20 March 2005 showing that the medium of instruction for his Masters degree was English;

3. An IELTS Test Report Form showing a score of 5 for listening, reading, writing, and speaking;

4. Letters of 5 April and 12 October 2005 from Mr Ahmed stating that Mr Hossain had been employed as an “Assistant Officer” since 20 August 2001 and setting out the duties ascribed to that position;

5. Letter from the Department to Sharma Lawyers dated 12 April 2006 advising that Departmental officers had contacted the Bank by telephone and been informed by senior management, relevantly, that Mr Hossain’s tasks were more accurately described as those of a Bank Worker;

6. Letter dated 14 May 2006 stating that the Bank’s previous description of Mr Hossain’s employment had been provided by referring to his present job description rather than his previous working experience, and that he had been employed in various positions;

7. Statutory declaration sworn by Mr Hossain on 10 June 2007 (as attached to the letters from Sharma Lawyers dated 15 June and 17 August 2007, summarised above);

8. Letter from Mr Ahmed dated 11 June 2007 (as attached to the letters from Sharma Lawyers dated 15 June and 17 August 2007, summarised above);

9. Letters from the Bank offering Mr Hossain an internship and appointing him as Assistant Officer;

10. Statutory declaration sworn by Mr Kamruzzaman on 27 June 2007 (as attached to the letter from Sharma Lawyers dated 17 August 2007, summarised above).

37 The Tribunal discussed evidence given before it by Mr Kamruzzaman and Mr Hossain. Mr Hossain said he was currently employed in the clearing department, clearing cheque deposits. He essentially stated that he promoted personal loans and term deposits.

38 The Tribunal asked Mr Hossain to clarify the meaning of a number of the tasks in his position description. The Tribunal then read to Mr Hossain the tasks of a Bank Worker and Credit and Loans Officer and asked him how his position differed from those occupations. Mr Hossain responded that although some of his tasks did correspond with those of a Bank Worker or Credit and Loans Officer, he also had other responsibilities, such as business dealings, public relations, research and development, product promotion, and customer enquiries.

39 The Tribunal found that Mr Hossain’s explanations of the tasks assigned to his position closely aligned them with the tasks of a Bank Worker or Credit and Loans Officer. He was unable to meaningfully distinguish his responsibilities from the tasks of a Bank Worker or Credit and Loans Officer. The Tribunal accepted that Mr Hossain was employed by the Bank for 24 months in the 36 months immediately preceding the visa application; that he was positively assessed by VETASSESS; and that the tasks he undertook were at a significantly higher level than those performed by clerical staff. However, the Tribunal held that it was not satisfied that Mr Hossain had worked in any skilled occupation: it characterised his position at the Bank as that of a Bank Worker or Credit and Loans Officer. Those occupations were not skilled occupations at the time the application was lodged.

40 The Tribunal held that it was not satisfied Mr Hossain had been employed in a skilled occupation for a period of two years in the three years preceding the day of the application, and thus that he did not meet clause 138.216(1) or (2) of the Migration Regulations.

41 The Tribunal affirmed the delegate’s decision on 16 April 2008.

Decision of the Federal Magistrates Court

42 Mr Kamruzzaman applied to the Federal Magistrates Court on 13 May 2008 seeking orders quashing the Tribunal’s decision and directing the Tribunal to hear and determine the appellant’s application according to law. It was alleged that the Tribunal had fallen into jurisdictional error by failing to correctly apply the relevant regulations; finding that Mr Hossain did not satisfy clause 138.216; and failing to take account of relevant material, particularly the criteria for Business and Information Professionals.

43 With regard to the first ground, the applicant contended that the Tribunal considered the wrong issue when it found that Mr Hossain “[had] not been employed in a skilled occupation” rather than determining whether he was employed in the skilled occupation nominated in the application. The Tribunal had allegedly considered only the tasks required for Bank Workers and Credit and Loans Officers and failed to take into account the tasks required of Business and Information Professionals. It had also, in the applicant’s view, not taken into account evidence that Mr Hossain’s duties extended beyond those of a Bank Worker.

44 Federal Magistrate Burnett found that the Tribunal had noted the applicant’s assertion that Mr Hossain’s responsibilities were wider than those of a Bank Worker, and also supporting evidence including that of Mr Ahmad. However, the Tribunal did not consider whether those higher responsibilities called for the application of higher-order skills.

45 His Honour noted the particularity of the ASCO definitions and was of the opinion that the “skill levels” and “tasks” are significant and “set the parameters of relevant matters to be considered”. The definition of Business and Information Professionals is essentially a negative one – Business and Information Professionals not elsewhere classified – and, unlike other definitions, it does not contain a task list.

46 Federal Magistrate Burnett held that it was not apparent that the Tribunal considered the tasks of a Business and Information Professional. Given the lack of detail in the definition the Tribunal should have given particular consideration to the skill level associated with that occupation, particularly in comparison with Bank Workers and Credit and Loans Officers. Those two occupations required only certificate-level training; the level of skill required in the occupation could be assumed to be consistent with that training. The Tribunal did not discuss this matter.

47 Federal Magistrate Burnett observed that what the Tribunal was to consider was not any particular responsibility, but rather “the relationship between skill levels and duties and thus whether…the skill level associated with a Business and Information Professional would be exercised in the performance of the occupation.” His Honour came to the following conclusion:

[The] Tribunal needed to examine the tasks undertaken by the visa applicant and assess whether they required an application of tertiary level skills or certificate level skills before any conclusion could be reached as to whether the visa applicant was a “Bank Worker” or “Credit and Loans Officer” or a “Business and Information Professional”. The Tribunal failed to do this. In my view this omission is fatal to the Tribunal’s decision because it bespeaks either the identification of a wrong issue resulting in the Tribunal asking itself the wrong question or of it ignoring relevant material.

48 In relation to the second ground, Federal Magistrate Burnett found that had the Tribunal given appropriate consideration to the interface of skills with tasks, it would not reasonably have reached the view it did. The Tribunal’s conclusion was unreasonable in that it was against the weight of the evidence.

49 In relation to the third ground, Burnett FM agreed with the applicant that the Tribunal asked itself whether Mr Hossain was a Bank Worker or Credit and Loans Officer rather than whether he was a Business and Information Professional, and that the Tribunal thereby asked itself the wrong question and was thus in error.

50 On 19 November 2008 Burnett FM ordered that the Tribunal’s decision be annulled and set aside and the application remitted to the Tribunal. For the sake of completeness, it should be noted that the orders annulling the Tribunal’s decision were amended on 3 December 2008 to alter the amount of costs payable from $500 to $5,000, apparently due to a typographical error.

Appeal to this Court

51 The first ground of appeal is that the learned Federal Magistrate fell into jurisdictional error by failing to correctly apply clause 138.216. His Honour found, in essence, that the Tribunal committed a jurisdictional error by failing to consider whether Mr Hossain’s tasks required him to exercise his tertiary-level skills.

52 The appellant submits that the learned Federal Magistrate erred by finding that the Tribunal was required to consider whether Mr Hossain was applying higher-order skills. The appellant says the question the Tribunal was required to consider was whether Mr Hossain was employed as a Business and Information Professional, not whether he was utilising some of his skills arising out of his qualifications. The appellant submits that the Tribunal undertook the required task by examining Mr Hossain’s responsibilities, ascertaining his description of the elements of those responsibilities, and then considering whether those duties went beyond the tasks of Bank Workers and Credit and Loan Officers.

53 The appellant submits that this is a factual finding. In Shahid v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1412, Kiefel J considered a Tribunal finding as to whether a visa applicant’s duties were those of a skilled occupation under clause 138.216. Her Honour considered such a finding to be one of fact. The appellant says the Tribunal’s finding that Mr Hossain was a Bank Worker was a finding of fact open to it on the evidence.

54 The respondent submits that Shahid is distinguishable on the facts. However, her Honour’s description of a finding under clause 138.216 as a finding of fact is not dependent on the facts of the case. A decision as to whether Mr Hossain’s tasks are those of a skilled occupation requires an examination of those tasks in parallel with the tasks of the skilled and non-skilled occupations under consideration, and a conclusion as to which occupation more closely aligns with his tasks. That is a factual matter and thus not open to review.

55 Clause 138.216 requires the visa applicant to be employed in “a skilled occupation” for a specific period of time. A skilled occupation is not an occupation in which higher-order skills are utilised. A skilled occupation is an occupation which has been specified by the Minister in an instrument in writing, as a skilled occupation. It was proper for the Tribunal to examine the tasks Mr Hossain actually performed against ASCO classifications to determine which of those classifications most closely described Mr Hossain’s actual employment. Having determined that his responsibilities were most closely aligned with a Bank Worker or Credit and Loans Officer rather than with a Business and Information Professional, it was proper for the Tribunal to conclude that Mr Hossain had not been employed in a skilled occupation. Whether Mr Hossain was utilising his tertiary-level skills in undertaking the tasks of a non-skilled occupation is not relevant to that determination.

56 The learned Federal Magistrate erred in finding that the Tribunal had committed jurisdictional error by failing to consider whether Mr Hossain’s tasks required him to exercise his tertiary‑level skills.

57 In relation to the second ground of appeal, the appellant says that the learned Federal Magistrate erred in finding that the Tribunal’s conclusion was one, no reasonable Tribunal could have reached, in reliance on the failure to act upon unchallenged evidence, and on the basis that the Tribunal incorrectly focussed on the “tasks” level rather than the “skills” level.

58 The respondent submits that the Tribunal’s finding that Mr Hossain did not satisfy sub-clause 138.216 was contrary to the evidence, which it says was to the effect that Mr Hossain worked in the nominated occupation and undertook the duties required.

59 The appellant contends that the weight to be given to the evidence is a matter for the Tribunal. It says the Tribunal properly and fully examined the tasks listed as the responsibilities of a Business and Information Professional, a Bank Worker, and a Credit and Loans Officer, and concluded that the responsibilities Mr Hossain had engaged in did not go beyond those of a Bank Worker or Credit and Loans Officer. The appellant submits that this finding of fact was open to the Tribunal on the evidence.

60 The Tribunal expressly took into account the evidence submitted by the visa applicant. It is correct to say that the visa applicant’s evidence was unchallenged. However, it was not the only evidence before the Tribunal. Also the Tribunal is not required to accept or act upon unchallenged evidence. The weight to be placed on particular pieces of evidence is a matter for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464).

61 A review of the material before the Tribunal and the Tribunal’s reasons demonstrate that the Tribunal acted upon the evidence put forward by Mr Hossain. The decision sets out in considerable detail the tasks Mr Ahmad ascribes to Mr Hossain in his letter of 11 June 2007 (p 6). It also discusses Mr Hossain’s evidence as to the correct interpretation of the descriptions of his tasks. Based on that evidence, the Tribunal came to the conclusion that the tasks as described by Mr Ahmad and Mr Hossain were those of a Bank Worker or Credit and Loans Officer.

62 Federal Magistrate Burnett found that the Tribunal had committed a jurisdictional error by focusing on Mr Hossain’s tasks rather than his skills. Clause 138.216 does not specify whether, in considering whether an applicant’s occupation is a skilled one, a decision-maker is to give primary weight to the applicant’s skills, or to the tasks actually undertaken. The ASCO classifications for Bank Worker and Credit and Loans Officer contain two types of information about those occupations: “Skill Level” and “Tasks Include”. The ASCO classification for Business and Information Professionals contains information about “Skill Level” and “Occupations in this group include”, but not about tasks.

63 However, “skills” is to some extent a misnomer. The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation. Instead, it contains information as to the qualifications required for entry to that occupation. The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and / or training, and previous experience.

64 In order to determine whether an applicant’s employment fits into a particular ASCO classification, a decision‑maker is required to consider all of the details set out in that classification. However, in making such a decision, the skills that are to be considered are those set out in the “Skill Level” section of the classification to which the applicant’s position is being compared. That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation.

65 Although the Tribunal did not expressly analyse the application in terms of the “skills” criterion, it is clear from a consideration of the Tribunal’s reasons that it accepted that Mr Hossain had the relevant qualifications based on his certificates and on the VETASSESS assessment. The Tribunal, in substance, assessed and determined the particular question of “skills” for the purposes of the ASCO classifications, in reaching its decision on the facts. It was necessary for the Tribunal also to consider the “tasks” section of the classifications, and this examination is set out in some detail (p 10).

66 The Tribunal’s decision was not “so devoid of any plausible justification that no reasonable body of persons could have reached [it]” (Andary v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 211). The learned Federal Magistrate erred in concluding that no reasonable Tribunal would have reached such a conclusion.

67 The third ground of appeal is that the learned Federal Magistrate erred in finding that the Tribunal, in asking whether the visa applicant was a Bank Worker / Credit and Loans Officer, rather than whether he was a business information professional, asked itself the wrong question.

68 The appellant submits that the Tribunal considered the ASCO descriptions of a Bank Worker and Credit and Loans Officer as part of determining whether Mr Hossain was actually employed as a Business and Information Professional. It submits that it was reasonable for the Tribunal to ask whether Mr Hossain’s position could be described as one of those occupations because Mr Hossain worked in a Bank. The appellant also contends that it was reasonable for the Tribunal to focus on those occupations because the description of Business and Information Professional is not of great assistance. The appellant further says that the Tribunal did not need to enquire further into the responsibilities of a Business and Information Professional because Mr Hossain’s tasks fitted exactly within the description of a Bank Worker or Credit and Loans Officer.

69 It is clear from the Tribunal’s decision that it did emphasise the comparison between Mr Hossain’s duties and those of a Bank Worker or Credit and Loans Officer. However, the Tribunal did consider the description of a Business and Information Professional sufficiently to engage a comparison between Mr Hossain’s tasks, the tasks of a Business and Information Professional, and the tasks of a Bank Worker or Credit and Loans Officer, in order to determine the question before it. It focused on Bank Worker and Credit and Loans Officer because it found that those occupations corresponded more closely with Mr Hossain’s duties.

70 Accordingly, his Honour erred in concluding that the Tribunal asked itself the wrong question.

71 Accordingly, the appeal is to be allowed and the decision of the Federal Magistrates Court of 19 November 2008 is to be set aside. The decision of the Migration Review Tribunal is reinstated. The respondent shall pay the costs of and incidental to the appeal and the hearing before the Federal Magistrates Court.

I certify that the preceding seventy‑one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 23 December 2009

Counsel for the Appellant:	Ms A. Wheatley

Solicitor for the Appellant:	Clayton Utz

Counsel for the Respondent:	First Respondent appeared by its solicitors

Solicitor for the Respondent:	Sharma Lawyers

Date of Hearing:	19 May 2009

Date of Judgment:	23 December 2009

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