FEDERAL COURT OF AUSTRALIA

Prasad v Minister for Immigration and Citizenship [2012] FCA 591

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

1    The appellant, Mr Prasad, on 6 March 2009, lodged an application for that class of visa under the Migration Act 1958 (Cth) (Migration Act), known as a subclass 485 (skilled-graduate) visa. Materially, cl 485.213 in sch 2 to the Migration Regulations 1994 (Cth) provided, in respect of eligibility criteria, for that visa:

485.213. The following requirements are met:

(a)    the applicant satisfied the two year study requirement in the period of six months ending immediately before the day on which the application was made;

(b)    each degree, diploma or trade qualification used to satisfy the two year study requirement is closely related to the applicant’s nominated skilled occupation.

2    The criterion specified in cl 485.213 was one which had to be satisfied at the time of the application, namely as at 6 March 2009. It has never been controversial that Mr Prasad met cl 485.213(a) as at 6 March 2009. That he did so was the product of his nominating two separate master’s degree level courses, each of one and a half year’s duration, but which, in total, exceeded the two year study requirement. Those master’s degree courses were a Master of Business (International Hotel Management) at the University of Queensland and a Master of Management (Marketing) at the Griffith University. Mr Prasad’s nominated skilled occupation was that of market research analyst.

3    A delegate of the first respondent, the Minister for Immigration and Citizenship (Minister), decided that Mr Prasad did not meet the requirements for a subclass 485 (skilled-graduate) visa, because he did not satisfy cl 485.213(b). As was his right, Mr Prasad under the Migration Act, sought the review of the Minister’s delegate’s decision by the Migration Review Tribunal (Tribunal). That Tribunal’s role, akin to that of the Administrative Appeals Tribunal, was to review the decision and to make, itself, on the merits, the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at 419, Bowen CJ and Deane J (Drake’s Case).

4    At the time, the Minister had promulgated a policy known as the Procedures Advice Manual, or colloquially, within public administration, “PAM 3.” That policy provided at para 7:

Study and nominated occupation must be closely related

7.1    Purpose

The intention of the ‘closely related’ criterion in 485.213(b) is to support the policy objective that skilled migrants be “job-ready” for the Australian labour market and make a positive contribution to the Australian economy and society as soon as possible.

7.2    Closely related

…

The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complimentary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.

5    The tribunal member addressed himself both to the terms of cl 485.213 as well as to the policy and the particular circumstances of Mr Prasad’s application. In so doing, the tribunal member formed the view (at para 34 of the Tribunal’s reasons):

Where PAM3 ‘policy’ is not consistent with, or does not accurately reflect the regulations, the policy is unlawful and the regulation must prevail.

6    The result of that was that the tribunal member did not apply to his assessment of the review of the decision the construction of the regulation promoted by the Minister in his then policy. Rather, the tribunal member assessed for himself, and using the language of the clause in the regulations, namely “closely related”, whether or not, in particular, the Master of Business (International Hotel Management) fell within the terms of that clause and having regard to the nominated occupation. For this purpose, the Tribunal assessed the objectives of the Master of Business (International Hotel Management) as described in the plan description for the course on the University of Queensland website. The Tribunal concluded (at para 36) that:

These objectives appear to have very little, if any, relationship to the occupation of a market research analyst.

7    In the result, the Tribunal concluded that this particular degree was not closely related to Mr Prasad’s nominated skilled occupation.

8    The tribunal member did not, in terms, assess whether the other master’s degree was “closely related.” It was not necessary for the Tribunal so to do, having regard to the conclusion reached by the member in respect of the absence of a requisite “close relationship” between the Master of Business (International Hotel Management) and the nominated skilled occupation of market research analyst. In light of this the Tribunal determined that the decision under review should be affirmed.

9    The Tribunal’s decision was communicated to Mr Prasad under cover of a letter from the Tribunal, dated 4 July 2011. Mr Prasad then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.

10    On 3 February 2012, for reasons published that day, the Federal Magistrates Court dismissed with costs Mr Prasad’s judicial review application: see Prasad v Minister for Immigration & Anor [2012] FMCA 57. In so doing the Federal Magistrates Court accepted (at para 19) a submission made by Mr Prasad that:

… in determining that the policies set out in the guide was “unlawful” the MRT fell into error.

11    There was some debate before me as to what was the meaning of this particular paragraph within the reasons for judgment of the Federal Magistrates Court. Mr Boccabella, who appeared for Mr Prasad, submitted that when one read that paragraph of his Honour’s reasons for judgment in conjunction with that part of para 34 of the Tribunal’s reasons, which I have quoted, a fair, if not the only, meaning of it was that the learned federal magistrate was disagreeing with the Tribunal’s view that the construction of the clause contained in the PAM was not a lawful construction of that regulation.

12    I agree with that submission. Read in isolation, Mr Prasad was, in my respectful opinion, perfectly entitled to conclude that the Federal Magistrates Court had agreed with the proposition that the Tribunal should have construed the clause in the way set out in the policy advice manual, and assessed his application accordingly.

13    It is true, as was submitted on behalf of the Minister, that in the balance of the para 19, his Honour stated:

The MRT was not bound to apply it. The MRT was bound to come to its own conclusion as to whether the Master of Business (International Hotel Management) was “closely related” to the nominated skilled occupation.

The latter part of para 19 seems though to be referable to the Tribunal’s role of sitting in the shoes of the primary decision-maker.

14    There is, with the very greatest respect, an inherent tension in para 19 between an acceptance of the construction of the clause promoted both by the Minister in the PAM and, in turn, by Mr Prasad on the judicial review application, and the magistrate’s statement that the Tribunal was not bound to apply the policy.

15    Of course, insofar as the PAM contained only matters of policy, the Tribunal was not bound to apply it: see Drake’s case. However, the policy manual here promoted a particular construction of the legislation, and it was that particular construction which was, in turn, promoted by Mr Prasad, and which the learned magistrate plainly regarded as a correct critique of the Tribunal’s view of the meaning of “closely related”.

16    Later in his reasons for judgment the learned magistrate (at para 25) stated:

Characterising the PAM requirements as unlawful was probably an error, but the error had no effect upon the decision that was made on the review.

If, truly, the learned magistrate was of the view that the construction of the clause adopted by Tribunal was in error, then it must axiomatically have had an effect on the review.

17    The grounds of appeal in one way or another were directed to that very subject. Mr Prasad challenged the construction of cl 485.213, adopted by the Federal Magistrates Court (of which more shortly), as well as, seemingly, by the Tribunal. On that basis he contended that the Magistrates Court had erred in failing to appreciate that the Tribunal had directed itself to the wrong question and thereby committed jurisdictional error.

18    Notwithstanding those particular passages of the reasons for judgment to which I have drawn attention, namely, those in para 19 and para 25, and again, with respect, somewhat inconsistently, the learned federal magistrate expressed a preference for, and stated that the reasoning adopted by the Tribunal reflected, reasoning of that court in Uddin v Minister for Immigration [2010] FMCA 553, affirmed on appeal by North J in Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 (Uddin [2010] FCA 1281). In dismissing the appeal in Uddin [2010] FCA 1281, North J, at para 12, stated:

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.

19    The federal magistrate’s conclusion was that the Master of Business (International Management) was not closely related to the nominated skilled occupation of market research analyst was a decision of fact by the Tribunal, which was concluded against Mr Prasad, and that no jurisdictional error had been demonstrated. The latter conclusion could only, in the circumstances, be correct if indeed the terms of cl 4.85.213(b) were to be construed other than in the way promoted by the Minister in the PAM and instead construed in the way adopted by North J in Uddin [2010] FCA 1281.

20    On the hearing of the appeal, the Minister, though afforded an opportunity to consider his position, remained unable or unwilling to concede, notwithstanding his submission that the court should follow Uddin [2010] FCA 1281, that his then policy as to the construction of the legislation was wrong. However, much one might deprecate that lack of forensic courage and model litigant behaviour, the position remains that the Minister’s submission is that the construction of the legislation adopted by the Tribunal and, albeit inconsistently internally in reasoning, also adopted in part of the reasons for judgment in the court below was the true construction of cl 4.5.213(b). It is, of course, axiomatic that the visa application fell for determination according to the regulations properly construed, not how the Minister said they ought to be construed in a policy document.

21    This is a case where the Minister ought properly, in my opinion, to have filed a notice of contention, contending that, notwithstanding the federal magistrate’s adoption of the criticism of the Tribunal by Mr Prasad on the judicial review application, the appeal should nonetheless be dismissed because the Tribunal’s construction of the legislation and its rejection of the Minister’s view of the construction of the regulation was correct.

22    My task is to determine whether the Federal Magistrates Court fell into error in the way contended for by Mr Prasad in his notice of appeal.

23    A judge of this Court in Uddin [2010] FCA 1281 has already offered a construction of cl 485.213(a) in the passage which I have quoted. I would only depart from that construction if I were of the view that it was clearly wrong. I am not of that view. To the contrary, approaching the clause by reference to its subject matter, scope and purpose and the language employed, my opinion is that “closely related” does not bear the meaning set out in the passage which I have quoted from the PAM.

24    “Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.

25    The result of that particular construction is, for example, an outcome whereby a person such as the late Lord Bingham KG, perhaps the greatest English judge of modern times, who had no degree at all in law but rather high academic attainment at Oxford in the study of History and bar exam qualification would not have engaged at university in a field of study which was “closely related” to a nominated occupation of barrister. Such outcomes, though, are nothing to the point so far as this Court is concerned. It is for the Executive to determine by regulations made pursuant to the Migration Act what are the criteria for a particular class of visa.

26    The result therefore is that the Tribunal applied correctly the legislation. The Tribunal did not err in its approach to the construction of the regulation. The Tribunal was correct in rejecting the Minister’s construction as promoted in the PAM. Having so done, all that remained was an unremarkable, although for Mr Prasad unfortunate, determination on the facts that the Master’s degree study in hospitality management was not “closely related” to the occupation. It also follows that at least in terms of outcome, the Federal Magistrates Court was correct in dismissing the judicial review application. The result of the foregoing is that the appeal must be dismissed.

27    As to costs, in the ordinary course of events, and while the discretion as to costs is one which is not fettered, the discretion will be exercised in a way in which costs follow the event, such that the party who or which has enjoyed forensic success will receive an order for costs in his, her or its favour. That discretion, nonetheless, is one which must be exercised in the circumstances of a particular case.

28    As will be apparent from the reasons for judgment in respect of the merits of the appeal, the reasons of the court below were, with respect, replete with inherent tensions. Parts of those reasons suggested acceptance of the Minister’s submission that Uddin [2010] FCA 1281 should be followed; other parts suggested acceptance of Mr Prasad’s submission that the construction found in the then PAM was open and that the magistrate’s view and that the Tribunal’s view that that construction was unlawful was wrong.

29    The present is a case where, as I have said, the Minister ought properly to have filed a notice of contention, particularly having regard to para 19 and para 25 of the reasons of the Federal Magistrates Court that that court’s decision was correct, notwithstanding its apparent acceptance of a construction which was wrong in law, ie, its acceptance, contrary to the Minister’s submission, based on Uddin [2010] FCA 1281 that the construction in the Minister’s own manual was wrong.

30    On the hearing of the appeal, the Minister as I have observed, seemed unable or unwilling to face that inherent tension in the reasons for judgment of the court below and unable or unwilling to concede error on his part on his published policy as to the construction of the legislation. In my opinion, there were reasons and they were quite readily understandable reasons why, in the face of the reasons for judgment of the Federal Magistrates Court, Mr Prasad brought this appeal. Had he been confronted directly with a notice of contention, he would have been given the opportunity to have pause for thought as to whether further to prosecute the appeal. He was not given that courtesy, because of non-compliance with this requirement in the rules.

31    The Minister, in my opinion, ought plainly to have stated by notice of contention that particular parts of the Federal Magistrate’s reasons were wrong, that his policy was wrong and that the construction in Uddin [2010] FCA 1281 would be promoted on the appeal. This he did not do. In these circumstances, my opinion is firmly that the costs discretion should be exercised such that there is no order as to costs in respect of the appeal.

32    As to costs below, there was a submission that these ought to be disturbed. The outcome, though, in effect is that of upholding the judgment below, albeit for more precise reasons. I do not propose to disturb the costs order made below.

33    The orders therefore are:

1.    The appeal is dismissed, and

2.    no order as to costs.

Associate:

Dated:    6 June 2012