FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The First and Second Appellants pay the First Respondent’s costs in the sum of $5,000.

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

REASONS FOR JUDGMENT

MURPHY J:

introduction

1    Before the Court is an appeal by the first and second appellants, Jatinder Singh and his wife Paramjit Kaur, from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): see Singh & Anor v Minister for Immigration [2017] FCCA 192.

2    The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant the first and second appellants Skilled (Provisional) (Class VC) Subclass 485 visas (the visas), doing so on the basis that the Advanced Diploma of Marketing qualification Mr Singh obtained is not “closely related” to his nominated occupation of Motor Mechanic. Mr Singh therefore did not meet the requirements for the grant of a visa under cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). As the primary requirements for such a visa must be satisfied by at least one of the applicants in a family unit, Ms Kaur did not satisfy the secondary criteria for the grant of the visa: cl 485.311.

3    To succeed in the appeal the appellants must establish that the Tribunal fell into jurisdictional error in making the decision that it did, and that the Federal Circuit Court erred in failing to set aside the decision. I am not satisfied that the Tribunal made a jurisdictional error and I made orders to dismiss the appeal and for the appellants to pay the Minister’s costs.

THE FACTS

4    The appellants are citizens of India. Mr Singh came to Australia in 2009 on a student visa, he says to make a career as a Motor Mechanic. He enrolled in and completed a Certificate III course in Automotive Specialist in April 2010 and completed a Certificate IV in Business in May 2011. He worked as a Motor Mechanic for about 11 months from January 2011 until November 2011. He says that he decided that he wanted to be self-employed and to run his own workshop.

5    Mr Singh then undertook a Diploma of Management which he completed in December 2012, and then enrolled in and completed a Diploma of Automotive Technology in February 2013. He returned to work as a motor mechanic from October 2014. He then enrolled in an Advanced Diploma of Marketing which he completed on 19 April 2015.

6    On 27 May 2015 the appellants applied for the grant of a Subclass 485 Temporary Graduate (Class VC) visa. On 12 August 2015 the delegate refused to grant the visa to Mr Singh on the basis that the Advanced Diploma of Marketing he had completed was not “closely related” to his nominated skilled occupation of Motor Mechanic (General), as required by cl 485.222 of Schedule 2 to the Regulations. The delegate also refused to grant the visa to Ms Kaur because Mr Singh was the primary applicant and Ms Kaur’s application was made as a member of his family unit. Because Mr Singh’s application was unsuccessful, her application did not meet the criteria in cl 485.311 of Schedule 2 to the Regulations.

7    On 14 August 2015 Mr Singh and Ms Kaur filed an application for review in the Tribunal, seeking review of the decision to refuse to grant Skilled (Provisional) (Class VC) visas. On 18 November 2015 the Tribunal affirmed the decision not to grant the visas, doing so on the same basis as the delegate.

THE LEGISLATIVE FRAMEWORK

8    Clause 485.221 of Schedule 2 to the Regulations provides that the visa applicant must have satisfied the “Australian study requirement” in the six month period before the application is made.

9    The meaning of “Australian study requirement” is defined in reg 1.15F of the Regulations:

1.15F    Australian study requirement

(1)    A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

(a)    that are registered courses; and

(b)    that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total of at least 2 academic years study; and

(d)    for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

Note    Academic year is defined in regulation 1.03.

(2)    In this regulation:

completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

degree has the meaning given in subregulation 2.26AC(6).

diploma has the meaning given in subregulation 2.26AC(6).

trade qualification has the meaning given in subregulation 2.26AC(6).

10    It is uncontentious that the Advanced Diploma of Marketing Mr Singh obtained satisfies the Australian study requirement. This was the only qualification which Mr Singh completed in the six month period before his visa application.

11    Clause 485.222 of Schedule 2 to the Regulations provides:

Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closed related to the applicant’s nominated skilled occupation.

12    “Skilled occupation” is defined in reg 1.15I of the Regulations:

1.15I    Skilled occupation

(1)    A skilled occupation, in relation to a person, means an occupation of a kind:

(a)    that is specified by the Minister in an instrument in writing to be a skilled occupation; and

(b)    if a number of points are specified in the instrument as being available – for which the number of points are available; and

(c)    that is applicable to the person in accordance with the specification of the occupation.

(2)    Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:

(a)    that an occupation is a skilled occupation for a class of persons;

(b)    that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.

13    It is uncontroversial that Mr Singh’s nominated occupation of Motor Mechanic (General) is a skilled occupation for the purposes of cl 485.222, as defined in reg 1.15I of the Regulations.

THE TRIBUNAL DECISION

14    It is plain from the Tribunal decision that it understood that the question before it was whether an Advanced Diploma of Marketing is “closely related” to the occupation of Motor Mechanic (General) (ANZSCO 321211).

15    “ANZSCO” is an acronym for Australian and New Zealand Standard Classification of Occupations, 1st Edition (ANZSCO). All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in ANZSCO. It classifies occupations according to their attributes and groups them on the basis of their similarity. It then groups them into increasingly broader categories on the basis of similarity in terms of skill level and skill specialisation. “Occupation” is the most granular level of classification, and they are grouped together into “unit groups”, which are in turn grouped into “minor groups”, in turn grouped into “sub-major groups”, and in turn grouped into “major groups”. Under the various listings of occupations and groups ANZSCO sets out information as to the skill levels, qualifications and tasks involved in different occupations.

16    Before the Tribunal Mr Singh submitted that his Advanced Diploma of Marketing is closely related to the nominated occupation of Motor Mechanic in ANZSCO because:

(a)    the Job Outlook for Motor Mechanics (as published by the Commonwealth Department of Employment) says that 41% of the knowledge necessary to successfully work as a Motor Mechanic is in Sales and Marketing;

(b)    most motor mechanic workshops are small businesses owned and operated by motor mechanics themselves, and marketing their business is an important aspect of any success and business growth;

(c)    the Advanced Diploma of Marketing gave him skills in providing organisational leadership, managing innovation and continuous improvement, developing and implementing a strategic plan, developing and implementing a business plan, managing a marketing process, managing market research, developing an organisational marketing objective and developing a marketing plan. He submitted that such skills are highly relevant to his occupation as a motor mechanic and directly transferable to his current and future self-employment as such; and

(d)    the Advanced Diploma of Marketing had given him the marketing knowledge which assisted him to obtain his current employment as a motor mechanic.

17    Under the heading “Is the qualification ‘closely related’ to the nominated occupation?” the Tribunal said (at [11] of its reasons):

The leading authorities on this issue establish that:

•    The words ‘closely related’ are not defined in the legislation but they require and call attention to the connection between two things. They do not require an exact correspondence, however the relationship must be more than merely complementary.

•    In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ASCO/ANZSCO descriptions. More recent authority suggests that the nature of the nominated occupation must be determined by reference to ASCO/ANZSCO, and, further, that the ASCO/ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation.

•    It is appropriate to objectively consider the relationship of the applicant’s qualification to the ASCO/ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or the applicant’s own view of the proximity of the qualifications to the nominated occupation.

•    It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian studies are ‘closely related’ to the nominated skilled occupation, and in carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.

(Citations omitted.)

18    The Tribunal had regard to the ANZSCO listing for Unit Group 3212 Motor Mechanics and the details specifically relating to the nominated occupation of Motor Mechanic (General). The Tribunal then compared those to the units completed by the applicant in his Advanced Diploma of Marketing.

19    The Tribunal noted the applicant’s argument that his marketing skills will assist him to become a self-employed mechanic one day, but took the view (at [13]) that the skills and tasks of a motor mechanic as listed in ANZSCO “are practical and technical and do not imply or suggest that marketing one’s own business is an integral part of those tasks.” It decided that there was virtually no overlap between the skills and tasks of a Motor Mechanic in ANZSCO and the subjects Mr Singh undertook as part of the Advanced Diploma of Marketing.

20    The Tribunal said that while the skills acquired in the Advanced Diploma of Marketing could, in the future, benefit Mr Singh in marketing a motor mechanic business, it was not satisfied that qualification is objectively closely related to the tasks of Motor Mechanic in ANZSCO. The Tribunal said that Mr Singh’s marketing knowledge may have assisted him to obtain his current employment as a motor mechanic, but considered that showed no more than that marketing skills are complementary and useful to some of Mr Singh’s duties as a motor mechanic, not that they are “closely related” to that occupation.

21    Therefore, the Tribunal found that Mr Singh did not meet the requirements of cl 485.222 and did not satisfy the criteria for the grant of a Subclass 485 visa. It also found that Ms Kaur could not be granted a Subclass 485 visa as she did not satisfy the secondary visa criteria in cl 485.311 by being a member of the family unit of a person who holds a subclass 485 visa. It said that there was no evidence that Ms Kaur met the primary criteria for the visa in her own right.

THE APPEAL

22    The Notice of Appeal alleges:

Grounds of appeal

1.    That the Federal Circuit Court Judge erred in failing to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error in considering whether or not the appellant’s Australian study qualifications were “closely related” to his nominated skilled occupation of motor mechanic.

Particulars

a.    The Tribunal misconstrued clause 485.222 of Schedule 2 to the Migration Regulations 1994 in that it considered that the clause required that the skills obtained from the study could be used only for the purpose of the nominated skilled occupation.

b.    Misunderstood the significance of the ANZSCO descriptions, in that it wrongly considered that these descriptions contained the totality of the skills required of the nominated skilled occupation, and therefore ignored evidence advanced by the appellant that his nominated skilled occupation required skills in addition to those set out in the ANZCO description.

c.    The Federal Circuit Court erred in failing to find the decision of the Migration Review Tribunal was affected by jurisdictional error, on the grounds that the Migration Review Tribunal misconstrued the ANZSCO description of the appellant’s nominated occupation of motor mechanic, in that it confined its attention in determining the content of the nominated occupation to the text under 321211 Motor Mechanic (General) without reference to the whole of the ANZSCO description, which included the content under the heading 3212 Motor Mechanics and Unit Group 225 Sales, Marketing and Public Relations Professionals.

d.    The diploma or trade qualifications relied upon by the appellant to satisfy the Australian study requirement was ‘closely related” to his nominated occupation as Motor Mechanic as required by cl485.222 applying Tobon v Minister for Immigration & Anor [2014] FCCA 2208.

e.    The Tribunal’s task was to conduct a “review” and was obliged to consider and accept the appellants submissions that sales and marketing were ranked 41% importance on job outlook listings.

f.    The Tribunal failed to consider or draw its attention to the fact that the appellant had completed the following courses which are closely related or applicable to the nominated occupation;

i.    Certificate Ill in Automotive Specialist

ii.    Certificate IV in Business

iii.    Diploma of Management

iv.    Diploma of Automotive Technology

v.    Advanced Diploma of Marketing

The appellants’ submissions

23    The appellants are not legally represented and did not file written submissions in support of the appeal. Mr Singh’s oral submissions were essentially the same as those he advanced before the Tribunal and then before the Federal Circuit Court.

24    Mr Singh submitted that the Department website, its publications and other skills assessment websites did not clearly convey that an Advanced Diploma of Marketing was not closely related to the occupation of motor mechanic. He claimed that when he enrolled in that course it was not clear which occupations were related to his diploma and that he, and the migration agent who advised him, did not find any information which said that the Advanced Diploma of Marketing was not closely related to the occupation of motor mechanic. He said that he enrolled in the Advanced Diploma of Marketing believing that he would be able to obtain the visa in doing so and if he had known that qualification was not closely related to his occupation as a motor mechanic, he would have enrolled in a different course. He reiterated the submissions regarding the Job Outlook website page as to the importance of marketing skills to success as a motor mechanic, and that he knew a number of people in a similar position to himself who had been granted visas.

CONSIDERATION

New grounds of appeal

25    I commence by noting that all of the grounds of appeal are new in that they were not advanced before the Federal Circuit Court. Mr Singh did not seek leave to advance new grounds of appeal and he did not put on any submissions directed to the grounds. On the other hand, counsel for the Minister did not raise any objection to the new grounds.

26    In Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at 497 Mason CJ, Wilson, Brennan and Dawson JJ observed:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71; Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7-8; O’Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319.

27    In the present case in circumstances where the appellants did not have the benefit of legal representation before the Federal Circuit Court or before this Court, the Minister raises no objection, the new grounds could not have been met by calling evidence before the Federal Circuit Court, and the new grounds involve questions of law, I am satisfied that it is expedient and in the interests of justice to permit the new grounds to be advanced.

Relevant principles

28    In Prasad v Minister for Immigration & Citizenship [2012] FCA 591 at [4] Logan J noted that the relevant Department’s “Procedures Advice Manual” provided:

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 qualifications/s are complimentary [sic] and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained.

(Emphasis in original.)

His Honour said (at [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.

29    In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [20] (Allsop CJ, Murphy and Pagone JJ) the Full Court said:

The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26].

Particulars 1(a) and (d)

30    Particular 1(a) of the appeal alleges that the Tribunal erred by construing the expression “closely related” to require that the skills obtained from the relevant study could be used only for the purpose of Mr Singh’s skilled occupation. Particular 1(d) alleges that the Advanced Diploma of Marketing qualification is “closely related” to the nominated occupation of Motor Mechanic as required by cl 485.222 and as applying the decision of Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (Tobon).

31    The two particulars cover similar ground. In Tobon the Tribunal found that the applicant’s nominated skilled occupation of “civil engineer” was not closely related to the course of a Diploma of Human Resources Management because that course provided “generic skills in business, team leadership and management” and would therefore be capable of being used in connection with a number of skilled occupations. Manousaridis J held (at [33]-[34]) that the Tribunal fell into error by construing cl 485.213(b) of the Regulations as requiring that the skills or at least a substantial proportion of the skills for which a qualification is awarded “are skills that can only be used in the nominated skilled occupation.”

32    In submissions Mr Singh did not take the Court to anything to show that the Tribunal erred as alleged, and there is little in the Tribunal’s decision to support this allegation. As I have said, the Tribunal had regard to ANZSCO in relation to the skills and tasks in respect to the occupation of Motor Mechanic (General). It compared those skills and tasks to the subjects completed by Mr Singh in the Advanced Diploma of Marketing. It concluded that there was almost no overlap between the skills and tasks of a Motor Mechanic in ANZSCO and the subjects in an Advanced Diploma of Marketing. While the Tribunal accepted that the skills Mr Singh acquired in the Advanced Diploma could benefit him as a self-employed mechanic and were complementary, it did not consider marketing to be an integral part of the skills and tasks of a motor mechanic in ANZSCO and did not consider the Advanced Diploma of Marketing was objectively closely related to such skills and tasks.

33    In doing so the Tribunal compared the entirety of Mr Singh’s relevant Australian studies with the entirety of his nominated occupation, and gave consideration to the whole of the relevant ANZSCO description as required: see Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 at [53] (Griffiths, Mortimer and Beach JJ). I do not accept that the Tribunal construed the expression “closely related” to mean that the skills Mr Singh obtained through the Advanced Diploma of Marketing were unique to the occupation of Motor Mechanic or could only be used in such an occupation. Instead, the Tribunal decided that there was not sufficient overlap between the skills and tasks of a motor mechanic in ANZSCO and the subjects in the Advanced Diploma course for them to be “closely related”.

34    The Tribunal’s task involved an evaluative exercise. Reasonable minds might differ on whether a qualification and an occupation are “closely related” and in my view the Tribunal had a wide scope to determine that question. I am not persuaded that the Tribunal misapplied cl 485.222 and satisfied that the Tribunal’s conclusion was open to it.

Particular 1(b)

35    Particular 1(b) alleges that the Tribunal wrongly considered that ANZSCO described the totality of the required skills for the nominated occupation, and failed to consider evidence that the nominated occupation required skills outside of these descriptions.

36    The Tribunal’s task was to decide whether Mr Singh’s Australian studies are “closely related” to his nominated skilled occupation. In carrying out that evaluative exercise it was required to compare the whole of his relevant Australian studies (being only the Advanced Diploma of Marketing) with the whole of his nominated occupation, and in doing so to have regard to the relevant information in ANZSCO regarding that nominated occupation, the relevant unit group and other potentially relevant tasks applicable to the occupation described elsewhere in ANZSCO: Talha at [52]. Other skills which an applicant submits are relevant to the nominated occupation are not irrelevant to the Tribunal’s task but the central consideration is the information in ANZSCO.

37    The Tribunal did not fail to consider Mr Singh’s evidence that the marketing skills he had acquired were relevant to the occupation of Motor Mechanic. It accepted that those skills may be a benefit to Mr Singh in working as a motor mechanic and that they are complementary to the occupation. However, in the Tribunal’s evaluation, the Advanced Diploma of Marketing did not teach skills which are “closely related” to the occupation of Motor Mechanic (General) in ANZSCO. The Tribunal had a wide scope to determine that issue and that conclusion was open to it.

Particular 1(c)

38    Particular 1(c) alleges that the Tribunal misconstrued the ANZSCO description of the nominated occupation of Motor Mechanic by confining its attention to the text under Motor Mechanic (General) (ANZSCO 32121) without reference to the whole of the ANZSCO description, which included the content under the heading Motor Mechanic (ANZSCO 3212) and Sales, Marketing and Public Relations Professionals (ANZSCO 225).

39    Mr Singh put on no submissions addressed to this allegation and did not take the Court to the part of ANZSCO upon which he relied or the basis for doing so. The Tribunal said (at [12]) that it had regard to the Unit Group 3212 Motor Mechanics which also contained the more specific description for the occupation Motor Mechanic (General). There is nothing in the Tribunal’s reasons to indicate that Mr Singh submitted that the Tribunal should have regard to information in ANZSCO beyond those parts. I can see no basis for the allegation that the Tribunal was required to consider ANZSCO descriptions which fell outside Mr Singh’s nominated occupation such as Sales, Marketing and Public Relations Professionals (ANZSCO 225).

Particular 1(e)

40    Particular 1(e) alleges that the Tribunal was obliged to consider and accept that the Job Outlook for Motor Mechanics (as published by the Commonwealth Department of Employment) stated that 41% of the knowledge necessary to successfully work as a Motor Mechanic is in sales and marketing. There is no merit in this submission. The Tribunal specifically referred to Mr Singh’s contention in this regard (at [6]) and it is plain that the Tribunal gave consideration to the relevance of sales and marketing skills to the occupation of a motor mechanic. The Tribunal accepted that such skills may be a benefit in working as a motor mechanic, that they assisted Mr Singh to obtain his present employment as a motor mechanic and that they are complementary to such an occupation, but did not consider that an Advanced Diploma of Marketing is closely related to the occupation of Motor Mechanic (General) in ANZSCO. As I have said, that conclusion was open to the Tribunal and I am not satisfied that it shows that the Tribunal misconstrued cl 485.222.

Particular 1(f)

41    Particular 1(f) alleges that the Tribunal failed to consider other relevant courses that Mr Singh had completed, which were closely related to his nominated occupation.

42    There is no merit in this allegation. Clause 485.221 provides that the visa applicant must have satisfied the “Australian study requirement” in the six month period before the application is made. Mr Singh was required to use the Advanced Diploma of Marketing to satisfy that requirement as it was the only course he completed within six months of the visa application. The issue for the Tribunal was whether the Advanced Diploma of Marketing met the requirements of cl 485.222 by being “closely related” to the nominated occupation of Motor Mechanic. Whether or not Mr Singh had completed other qualifications outside the six month window (which qualifications may have been “closely related” to the occupation of Motor Mechanic) was not relevant to the Tribunal’s consideration.

Costs

43    The Minister proposed that costs be set at $5,000, which is less than the applicable amount on scale. Mr Singh accepted the appropriateness of an order in that quantum.

44    I made orders to dismiss the appeal and for Mr Singh to pay the Minister’s costs fixed in the amount of $5,000.

Associate:

Dated:    19 September 2017