FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration and Citizenship [2010] FCA 1281

FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration and Citizenship [2010] FCA 1281

CORRIGENDUM

1.    In Order 2, the sum “$4,000” should read “$4,400”.

Associate:

Dated:    26 November 2010

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $4,000.

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 Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 2 August 2010. The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal, which affirmed a decision of a delegate of the first respondent not to grant the appellant a Skilled (Provisional) (Class VC) visa.

2    The appellant applied for the visa based upon undertaking two courses, namely, a Certificate 3 in Hospitality (Commercial Cookery), from the Illawarra Business College, and a Diploma of Information Technology (System Administration), from Uniworld Business College. The appellant was required to rely on both courses in order to satisfy the two-year study requirement contained in cl 485.213 of Schedule 2 and reg 1.15F of the Migration Regulations 1994 (Cth). A requirement for the visa stipulated in cl 485.213(b) was that each degree, diploma or trade qualification used to satisfy the two-year study requirement be closely related to the applicant’s nominated skilled occupation. The Tribunal determined that the Diploma of Information Technology was not closely related to the appellant’s nominated skilled occupation for the purpose of this subclause. The skilled occupation nominated by the appellant for the purpose of his visa application was his occupation as a cook.

3    The Federal Magistrate upheld the decision of the Tribunal.

The Decision of the tribunal

4    The reasoning of the Tribunal commenced with the statement that the degrees, diplomas or trade qualifications relied upon by the appellant must be closely related to the nominated skill in the visa application. It recorded the nominated skilled occupation of a cook and that the work of a cook was defined in Legislative Instrument IMM107/058. It then stated that the Tribunal must consider whether the Diploma of Information Technology completed by the appellant is closely related to that occupation: see [24]. The Tribunal then noted that the Policy Advice Manual (PAM) indicated that the qualifications needed to be complementary to the nominated occupation and it had to be determined whether the skill set underpinning the qualification could be used in the nominated occupation. The Tribunal expressed the view that the policy approach in the PAM did not reflect the close relationship required by cl 485.213(b). The Tribunal said at [25]:

The term “closely related” is not interchangeable with, nor necessarily consistent with, being complementary or useful. It requires, in the Tribunal’s view, a much stronger link between the academic qualification and the occupation than being merely useful.

5    The Tribunal then indicated that it would not apply the policy approach in the PAM.

6    The Tribunal considered the appellant’s argument that the IT qualifications would assist him in his aim of managing a restaurant in the future. The Tribunal said that the proper approach was to compare the qualification with the work of the nominated occupation of cook, which was defined in the legislative instrument, and not with the work of a restaurant manager or business owner to which the appellant aspired. No argument was made against that conclusion.

7    The reasoning of the Tribunal then continued:

28    The applicant argues that many of the subjects he had completed in the Diploma of IT which he completed at Uniworld Business College are helpful in the field of cooking and are similar to the Diploma of Hospitality Management. The applicant presented two course outlines for the two courses and he has identified a number of subjects which he claims are the same between the two courses. The Tribunal considers the applicant’s approach in comparing the two courses to be misguided. The issue before the Tribunal is not whether the course undertaken by the applicant, the Diploma of IT, is similar to another course, such as a Diploma of Hospitality Management. The issue is whether the course that was undertaken by the applicant, the Diploma of IT, is closely related to the applicant’s nominated occupation of a Cook. The comparison must occur between the qualifications obtained by the applicant and his nominated skilled occupation, not between the applicant’s qualification and another qualification which the applicant believes to be closely related to the nominated skilled occupation.

29    The applicant argues that a Diploma in IT provides skills that are readily applicable in any workplace, such as dealing workplace safety, time management and personnel management. He also notes that the course was only at the Diploma level. While the website of Uniworld Business College no longer offers a description of this course, the Tribunal is of the view that a Diploma of IT in System Administration would normally be designed to prepare students for work in the field of IT or system administration. It is not designed to prepare students for working as cooks. Further, even if the Tribunal were to apply the broader policy interpretation of this provision, the Tribunal is not satisfied that a Diploma in Information Technology is complementary, or useful to, the occupation of a cook because the aim of the course and the skills obtained through that course are very different to those that are used by a cook.

30    While some of the subjects identified by the applicant are generic – such as, for example, applying occupational health and safety procedures, communication in the workplace and providing advice to clients – the aim of the Diploma of IT course and the course as a whole is not, in the Tribunal’s view, closely related to the tasks performed by a Cook. These are set out in ASCO 4513-11 as follows:

Cook – prepares, seasons and cooks food in catering and dining establishments

•    examines food to ensure quality

•    regulates temperatures of ovens, grills and other cooking equipment

•    prepares and cooks food

•    seasons food during cooking

•    portions food, places it on dishes, adds gravies or sauces, and     garnishes

•    stores food in temperature controlled facilities

•    may plan menus and estimate food requirements

•    may prepare food to meet special dietary requirements

•    may train other kitchen staff and apprentices

31    The applicant provided to the Tribunal the course outlines for the two courses and listed a number of subjects which he claims the two courses share. However, as noted above, it is not sufficient, in the Tribunal’s view, that some of the subjects undertaken by the applicant in the Diploma of IT are similar to the subjects the applicant would have taken in a Diploma of Hospitality Management. Considering the qualification as a whole, which is what cl 485.213(b) requires, the Tribunal is not satisfied that a course in IT with emphasis in system administration is closely related to the occupation of a cook.

32    The applicant also argues that his qualifications in IT and as a cook assisted him in his employment as a cook in that any cook requires a good knowledge of information technology. However, as noted above, the issue before the Tribunal is not whether the skills acquired in the qualification are useful to the nominated occupation. The test is that of close relevance, not mere usefulness and that test requires consideration of the qualification as a whole to the tasks that are normally performed by a cook. Neither is it sufficient, in the Tribunal’s view, for the applicant to state that the skills, learning or qualifications acquired in his Diploma of IT course benefit him in his employment as a Cook. There must be a close relationship between the study and the nominated occupation, not merely a benefit of one to the other.

33    The applicant referred to another decision of the Tribunal (0806557 [2009] MRTA 2245), which he claims were based on similar facts The Tribunal notes that Tribunal decisions have no precedential value for the Tribunal. Further, this decision related to a Subclass 880 application which was concerned with a different statutory requirement (that the qualifications must be ‘relevant’ and not ‘closely related’) to the one that applies in this case. This decision is, on that basis, distinguishable.

34    The applicant’s representative referred to the Tribunal’s discretion in finding that the Diploma of IT was closely related to the occupation of a Cook. However, there is no discretion offered by cl. 485.213(b). It calls for the decision-maker’s satisfaction. Having considered all the material before it, the Tribunal is not satisfied that the Diploma of Information Technology is closely related to the applicant’s nominated occupation of a Cook. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl. 485.213(b) and cl. 485.213 of the Regulations.

Arguments on the appeal

The Tribunal Applied the Wrong Test

8    The arguments submitted on behalf of the appellant on the appeal amount to two matters of substance. They are not well reflected in either the Notice of Appeal or the appellant’s written submissions, neither do they particularly easily relate to the judgment of the Federal Magistrate.

9    The first argument was that the Tribunal misunderstood the requirement in cl 485.213(b) that the qualification had to be “closely related” to the nominated occupation. The appellant relied on a number of statements in the decision of the Tribunal which it was contended misstated the test. For instance, the Tribunal said at [8]:

The issue in the present case is whether each of the qualifications used to meet the two year study requirement was relevant to the nominated occupation.

10    Then at [32] the Tribunal again referred to “close relevance” rather than “close relationship.” Furthermore, it was argued that the Tribunal, in rejecting the PAM requirement that the qualifications be complementary to the nominated occupation, disclosed that it did not apply the “closely related” test properly. This was again supported, it was argued, by the conclusion at [29] that the IT qualification was not complementary or useful to the occupation of cook. Each of those examples, it was argued, disclosed that the Tribunal misunderstood the appropriate test. It was contended that the proper test is the test set out in the PAM. That is to say, that the concept of close relationship is captured by the policy that the qualification must be complementary to the nominated occupation.

Consideration

11    In my view, the first ground of appeal should not succeed. The Tribunal, perhaps too loosely, used the word “relevant” at [8] and [32]. However, its constant use of the concept “closely related” throughout the reasoning process, in particular at [23], [24], [25], [28] and [30], indicate that it was aware of the test which it needed to apply. The references to “relevant” at[8] and [32] seem to be inadvertent slips.

12    At [33], the Tribunal clearly draws the distinction between the two concepts and distinguishes a case based on the pre-existing “relevant” test and thereby shows that it appreciated that the “relevance” test was different from the “closely related” test. At [34], the Tribunal expresses its final conclusion in terms of close relationship and applies the correct test. In my view, the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary. In any event, the Tribunal, at [29], makes a fallback finding of fact that the IT qualification was not even complementary or useful in the occupation of a cook, having compared the work of a cook to the aims and skills relevant to the IT qualification.

Failure to Give Proper Genuine and Realistic Consideration

13    The second substantial ground of appeal argued on behalf of the appellant was that the Tribunal failed to give proper, genuine and realistic consideration to one of the submissions advanced by the appellant. I am prepared to accept for the purposes of argument that a failure to give such consideration amounts to jurisdictional error. The submission which it is alleged the Tribunal ignored was a submission set out in a letter dated 13 January 2010 from the appellant’s migration adviser to the Tribunal. In that letter, it was contended that there were a number of elements of the appellant’s IT qualification which were “directly related” to his occupation as a cook. These elements were the application of occupational health and safety procedures, communication in the workplace, coordination and maintenance of work teams, coordination of change requests, skills in time management, skills in project integration, stress and loading test, the guidance of risk management principles, and the guidance of the application of communications management. The appellant claims that the written submission on this subject was simply not considered by the Tribunal.

Consideration

14    The extract of the decision of the Tribunal, set out earlier in these reasons, discloses that there is no basis for this argument. The Tribunal considered the relationship between the subjects taught in the IT course to the nominated occupation of cook. Indeed, it referred to some of the particular elements from the submission at [30], namely occupation, health and safety procedures, communication in the workplace and providing advice to clients. It made a determination on the facts that these elements of the qualification were not closely related to the tasks performed by a cook as stipulated by the legislative instrument. The Tribunal did not fail to give proper, genuine and realistic consideration to this part of the appellant’s submission.

15    For these reasons, the appeal must be dismissed.

Associate:

Dated:    22 November 2010