FEDERAL COURT OF AUSTRALIA

Manik v Minister for Immigration and Citizenship [2012] FCA 619

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of Federal Magistrate Smith dated 28 February 2012: Manik v Minister for Immigration [2012] FMCA 149. The matter before the Federal Magistrate was an application for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’), which was dated 22 July 2011.

2    The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Skilled (Provisional) (Class VC) visa to the appellant. The Minister’s decision was dated 11 November 2010.

3    In his application for a skilled visa, the appellant nominated his skilled profession as ‘cook’. The contentious issue in these proceedings concerns reg 485.213 of the Migration Regulations 1994 (Cth) (‘the regulation’), which states:

The following requirements are met:

(a)    the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made;

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

4    To satisfy the two year study requirement specified in the regulation, the appellant relied upon his completion of two separate qualifications. One was a Diploma of Information Technology (System Administration) (‘the IT Diploma’) which the appellant completed at Uniworld Business College on 24 April 2008. The other was a Certificate III in Hospitality (Commercial Cookery) (‘the Cookery Certificate’) which the appellant completed at The Illawarra Business College on 1 October 2008.

5    In his decision the Minister determined that the IT Diploma was not closely related to the nominated skill occupation of cook and therefore the appellant did not meet the requirements of the regulation and should not be granted a visa.

6    The appellant sought review of this decision before the Tribunal. The appellant made submissions as to what relevance the IT Diploma had to his stated profession of cook. The appellant sought to establish that there was overlap in the course contents of the IT Diploma and the Cookery Certificate. The appellant also stated that information technology has become so ubiquitous that knowledge of information technology is relevant to almost any profession. Furthermore, the appellant stated that the IT Diploma was relevant towards his ultimate ambition of owning and operating a number of restaurants.

7    The Tribunal considered the description of a cook in the Australian Standard Classification of Occupations (‘ASCO’). According to ASCO, a cook ‘prepares, seasons and cooks food in catering and dining establishments’.

8    The Tribunal considered the Procedures and Advice Manual 3 (‘PAM 3’) which is the policy manual which provides guidance to decision-makers on issuing visas. Schedule 2.485.7 of PAM 3 provides guidance to decision-makers about the meaning of ‘closely related’ for the purpose of the regulations:

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 complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.

Another instance in which policy does not consider qualifications to be 'closely related' to the nominated occupation is where the level at which the skills prescribed by the relevant assessing authority is inconsistent with the level at which the applicant is skilled to work:

[...]

Example of not closely related skill levels:

The applicant met the Australian study requirement on the basis of having completed a Certificate III in Furniture Making and a Masters of Information Technology. Although basic IT skills are generally applicable to most occupations, the high level skills gained by completing a Masters course are inconsistent with the skills that would be useful on a day to day basis as an entry level tradesperson (for a nominated skilled occupation of Carpenter and Joiner).

9    The Tribunal found that PAM 3 did not accurately reflect the wording of the legislation. The Tribunal found that the legislation required more than just a complementary relationship between the course of studies and the occupation. The Tribunal found that the words ‘closely related’ required a much stronger link between the academic qualifications and the occupation than just being complementary or useful. The Tribunal stated that it was under no obligation to have regard to PAM 3 as a condition of its jurisdiction: Pasula v Minister for Immigration [2010] FMCA 275 at [21].

10    The Tribunal decided that the focus of the IT Diploma is to equip the holder of the qualification with skills and knowledge required to maintain complex IT systems. The Tribunal concluded that such skills and knowledge were not closely related to the tasks and responsibilities of the occupation of cook. It therefore affirmed the Minister’s decision.

APPEAL TO THE FEDERAL MAGISTRATES COURT

11    The appellant appealed the Tribunal’s decision to the Federal Magistrates Court of Australia. Smith FM stated that the relevant test was not whether the two separate qualifications were related to each other, but whether each of the qualifications were closely related to the nominated skilled occupation. The Federal Magistrate found that the Tribunal had considered this issue and that there was no relevant part of the appellant’s evidence or submissions that the Tribunal failed to consider.

12    The Federal Magistrate also rejected the appellant’s second ground of appeal, namely that the Tribunal failed to give proper, genuine and realistic consideration to the appellant’s application. At [25] Smith FM stated that a failure to give proper, genuine and realistic consideration requires more than disagreement about matters of fact or evaluation upon which minds could differ. Although the Federal Magistrate acknowledged that a different decision-maker might have come to a different conclusion about the appellant’s application, his Honour found there was nothing in the reasoning adopted by the Tribunal that could satisfy the test for jurisdictional error contained in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. Consequently, the Federal Magistrate dismissed the appeal.

APPEAL TO THIS COURT

13    The appellant appealed such decision to this Court. The appellant relied upon the following grounds of appeal in his Notice of Appeal:

1.    His Honour erred by finding that the second respondent had given proper, genuine and realistic consideration.

2.    His Honour erred by finding that the argument that the second respondent failed to give proper consideration to the case bordered upon a request for merits review and the applicant (sic) education was closely related with his profession.

3.    His Honour erred by finding that the second respondent was entitled to arrive at its own conclusion as to the construction of Clause 485.213 of Schedule 2 of the Migration Regulation 1994.

14    The appellant provided written submissions to this Court. In summary, they allege a legal error in relation to the construction of reg 485.213. The appellant’s submissions state the appellant is aware of other people studying similar courses at similar institutions who have had their applications approved. Furthermore, knowledge of computers has become essential for all industries, including hospitality. The appellant implores this Court to reconsider the appellant’s case.

15    In oral submissions, the appellant stated that three years ago (namely after completion of his one year cooking course), he received legal advice that stated that the law had changed to require two years of study in a trade course, as opposed to one year of study. Although the opportunity was open to the appellant to study cooking for two years and thus qualify for the visa, the appellant’s understanding of the advice provided to him was that a one year course would be sufficient.

CONSIDERATION

16    The question of whether a matter has been given proper, genuine and realistic consideration must be considered by reference to what the decision-maker has written or said. What is required is more than mere lip service to the evidence and submissions of the applicant: Anderson v Director General of the Department of Environment & Climate Change (2008) 251 ALR 633. However, a court must be careful to ensure that in considering such a ground of appeal, it does not cross the line into impermissible merits review.

17    With respect to the appellant’s first ground of appeal, a consideration of the reasons of the court below and the Tribunal does not reveal a failure to provide proper, genuine and realistic consideration. The Tribunal and the Federal Magistrates Court took into consideration and referred to the submissions of the appellant. The reasoning reveals that Smith FM gave thorough consideration to the appellant’s submissions.

18    The appellant’s second ground of appeal does not reveal any error on any point of law. Smith FM stated in his decision at [26]-[28] that the Court could not engage in merits review by entertaining the appellant’s arguments regarding the merits of the case. This is clearly the correct position at law. The Federal Magistrate was required to consider whether there was any jurisdictional error evident from the reasoning of the Tribunal and his Honour came to the conclusion that there was none.

19    With respect to the final ground, the respondent referred the Court to Uddin v Minister for Immigration and Citizenship [2010] FCA 1281. Such case dealt with a very similar factual matrix. In fact, the appellant in that case attended the same institution and studied the same courses as the appellant in the current proceedings. In Uddin North J considered an argument that the Tribunal had erred in deciding not to follow the policy in PAM 3 which stated that the question was whether the course of study was ‘complementary’ to the stated profession. His Honour stated at [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.

20    The same observations apply to this case. Although a decision-maker’s decision to not follow the guidance in PAM 3 may indicate error in some circumstances, a decision to not follow PAM 3 does not in and of itself amount to jurisdictional error. The Tribunal supported its conclusion that the relationship between an applicant’s qualifications and stated profession must be closer than ‘complementary’ with reference to the words of the regulation and relevant case law on the subject. It was not bound by PAM 3 and therefore it was entitled to come to its own conclusion about what level of connectivity was required between the qualifications and the stated profession.

21    For the above reasons, the appellant’s appeal must fail.

22    However, the Court notes that Mr Manik is in an unfortunate position. The Court has heard how Mr Manik based his study choices on advice that was either incorrect or was subsequently overtaken by an apparent legislative change. Furthermore, Mr Manik has clearly demonstrated an aptitude for study, having completed two different qualifications, including completion of the IT Diploma on an accelerated timetable. The consequence of the Minister’s delegate’s decision is to require Mr Manik to return to Bangladesh and reapply for another visa, which the appellant has submitted would be an onerous task. Although it is obviously a matter for the Minister, this is an instance where the Minister may see fit to exercise his discretion to grant the appellant a visa.

Associate:

Dated:    15 June 2012