Federal Court of Australia

Avala-Gurayya v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 217

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to his appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    This is another meritless appeal in this area where the underlying question has been answered adversely to the appellant at all three lower levels, albeit re-characterised and re-formulated to reflect the different levels of decision making.

2    The appellant, a Mauritian national, was refused a Temporary Business Entry (Class UC) (subclass 457 – Temporary Work (Skilled)) visa by a delegate of the Minister. This decision was affirmed by the Administrative Appeals Tribunal, which was not satisfied that the appellant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

3    The appellant sought judicial review in the court below, but the primary judge dismissed the appellant’s application for such review from which he now appeals to this Court, which in essence is the fourth level of consideration relating to the underlying question.

4    Now the appellant does not seek to re-agitate the point run below. Rather, his sole ground of appeal before me raises new matters that were not pressed at first instance such that leave is required. The new ground is as follows:

The Tribunal went beyond the scope of the power conferred to it when determining the requisite ‘employment background’ as contemplated in cl 457.223(4)(da) of Schedule 2 of the Migration Regulations:

(a)    The Tribunal despite acknowledging there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, applied a higher threshold, than was required in the circumstances.

(b)    The Tribunal had before it a Certificate III and IV in Commercial Cookery, obtained via RPL.

(c)    These facts should have been enough to establish the ‘qualifications’ element of cl 457.223(4)(da), and thereby did not require the Applicant to prove 3 years of work experience to determine the Applicant’s ‘employment background’ in satisfaction of that same clause.

(d)    The Tribunal went outside its scope to determine the weight of an educational providers certification, despite accepting the education provider was registered. This had the effect of the Tribunal, considering what was ‘more’ than necessary to perform the tasks of the nominated occupation.

(e)    It was always open to the Tribunal to request a skills assessment under cl 457.223(4)(e) to determine whether he had the skills necessary to perform the occupation.

(f)    The subsequent fact-finding mission employed by the Tribunal was an overreach of its powers, as the applicant could have been provided the same opportunity by obtaining a positive skills assessment.

5    For the reasons that follow, I would grant leave to the appellant to raise this new ground over the opposition of the Minister, but dismiss his appeal.

6    Now before proceeding further I should note that in terms of having this appeal heard there have been delays. Originally the matter was listed to be heard on 20 October 2023, which was a date chosen for the convenience of the appellant who was not otherwise available between August and October 2023. But on 18 October 2023 the appellant sought an adjournment for many months so that he could visit his sick mother in Mauritius, who he said he had not seen since 2016. I granted that adjournment and re-listed the hearing of the appeal for this afternoon.

The relevant background

7    On 29 October 2015 the appellant applied for the visa on the basis that he was to be employed as a cook by his sponsoring employer, which traded as Max Bar and Restaurant.

8    The appellant attached several certificates, including an Australian Qualifications Framework (AQF) certificate III in commercial cookery and an AQF certificate IV in commercial cookery. Both certificates were issued by an entity branded as All Australian Training, which appears to have been nationally recognised or accredited.

9    On 15 March 2016, the delegate refused to grant the visa. The delegate was not satisfied that the appellant met the relevant criteria in cl 457.223(4)(da) of Schedule 2 to the Migration Regulations 1994 (Cth), which at the relevant time provided:

Standard business sponsorship

…

(4)    The applicant meets the requirements of this subclass if:

…

(da)    the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation;

10    Now I would note at this point that the subclass 457 visa was in essence discontinued as from 18 March 2018 by operation of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). But the transitional provisions provided that the relevant criteria continue to apply to an application made prior to 18 March 2018, which of course included the appellant’s application; see cl 6702(2)(c) of Schedule 13 of the Migration Regulations 1994 (Cth) as then in force but as so amended on 18 March 2018.

11    On 29 March 2016, the appellant applied to the Tribunal for review of the delegate’s decision.

12    In early 2017 the appellant submitted various documents in support of his application to the Tribunal which included a copy of the appellant’s CV, a written reference from the executive chef at Max Bar and photographs of the appellant purportedly working at Max Bar.

13    On 12 May 2017, the Tribunal heard the application at which the appellant and two witnesses, namely, the executive chef at Max Bar and the director of the sponsoring employer, gave evidence. The appellant was represented at the hearing by a migration agent.

14    The Tribunal invited the appellant to comment on various inconsistencies in the evidence regarding his training and qualifications. This was relevant to the review including the weight that the Tribunal might give to the qualifications he had obtained on the basis of recognition of prior learning. The appellant sought and was granted an opportunity to respond in writing after the hearing.

15    On 19 May 2017, the appellant’s representative provided further documentation including details regarding the registration of All Australian Training.

16    On 23 May 2017, the Tribunal reiterated in writing a request made at the hearing for the appellant to provide PAYG summaries. No response was received by the Tribunal.

17    On 16 February 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the visa, which decision was notified to the appellant on 19 February 2018.

18    The principal question was whether the appellant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook, as required by cl 457.223(4)(da).

19    The Tribunal had regard to the relevant department policy in the Procedures Advice Manual 3 (PAM3), which provided that the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal information on the skill requirements for the nominated occupation, and that the Tribunal should ensure that the qualifications and experience of the visa applicant were relevant to the nominated occupation.

20    The Tribunal set out the ANZSCO specified skill level for the occupation of cook, which stated that the indicative skill level was an AQF certificate III including at least two years of on the job training or an AQF certificate IV or at least three years of relevant experience in substitution for formal qualifications. The ANZSCO indicative skill level also provided that relevant experience and on the job training may be required in addition to the formal qualification.

21    The Tribunal identified that both the certificate III and certificate IV qualifications from All Australian Training were granted entirely on the basis of recognition of prior learning, and not any course attendance.

22    Now the Tribunal accepted that recognition of prior learning was a valid basis for issuing an Australian qualification, and such qualifications were not excluded from the scope of cl 457.223(4)(da). And the Tribunal also accepted that All Australian Training was a registered training organisation, but concluded that the All Australian Training qualifications should be given little weight for the purposes of the qualifications element of cl 457.223(4)(da).

23    First, the Tribunal found that on the appellant’s own evidence, All Australian Training based the recognition of prior learning evaluation entirely on photographs of him working at Max Bar, a work reference and his CV. But the appellant’s CV did not refer to any work experience as a cook prior to working at Max Bar. Further, the photographs provided little insight into the duration of his employment at Max Bar or the type of duties that he performed. Further, the work reference was most likely the one given by the executive chef whom the Tribunal did not find to be a particularly credible witness.

24    Second, the Tribunal found that on the appellant’s own evidence, All Australian Training did not conduct any site visit to assess the appellant’s hospitality skills in the workplace.

25    Generally, the Tribunal was not persuaded that the assessment by All Australian Training was particularly rigorous in checking the appellant’s skills as a cook.

26    Moreover, the Tribunal was not satisfied that the appellant’s only experience as a cook, being his work at Max Bar, amounted to three years’ relevant experience.

27    More generally, and having regard to the ANZSCO indicative skill level, the Tribunal was not satisfied that the appellant met the criteria in cl 457.223(4)(da).

28    The appellant made an application for judicial review in the court below seeking to impugn the Tribunal’s findings regarding All Australian Training and its status. But the primary judge dismissed the application, finding the ground of review to be misconceived. That ground has not been re-agitated before me. Accordingly it is unnecessary to descend into the detail of the primary judge’s reasons.

The present appeal

29    Now as I have indicated at the outset of these reasons, the sole ground of appeal asserts that the Tribunal went beyond the scope of its power when considering whether the criteria in cl 457.223(4)(da) had been satisfied. Various particulars were given in support of this ground.

30    Now as I have said, the matters raised in this ground of appeal are new and do not arise out of the appellant’s ground of review at first instance nor the appellant’s submissions to the primary judge. And no satisfactory explanation has been given as to why this ground was not raised previously. But in the circumstances and over the opposition of the Minister’s counsel I will grant leave to the appellant to raise this new ground.

31    Now as to particulars (a) to (d), in essence the appellant contends that the Tribunal exceeded its powers by applying a higher threshold and assessing the weight to be given to All Australian Training qualifications, and that those qualifications should have been accepted on their face. It is said that the Tribunal had before it certificates III and IV in commercial cookery, and that it went outside the scope of its power by determining the weight to be afforded to these qualifications, and that it considered more than what was necessary to perform the tasks of the nominated occupation of cook.

32    But cl 457.223(4)(da) required the Tribunal to undertake that evaluative assessment.

33    In Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1708, Charlesworth J held at [27] and [28]:

The task to be performed by a decision-maker under cl 457.223(4)(da) has three elements:

(1)    identification of the tasks required to be performed by a person in the nominated occupation;

(2)    consideration and determination of the skills, qualifications and employment background necessary to perform the tasks so identified; and

(3)    an assessment of whether the visa applicant has the skills, qualifications and employment background that the decision maker has determined to be necessary.

The first element of the task gives rise to an objective factual question. The second and third elements involve evaluative assessments as to factual matters in respect of which reasonable minds may differ.

34    In the present case, the Tribunal undertook the evaluative assessment required by the second and third elements. The second was largely answered by the ANZSCO indicative skill level. It remained for the Tribunal to assess whether the appellant had the qualifications necessary for the appellant to perform the tasks of the nominated occupation of cook, as well as the necessary skills and employment background.

35    Moreover, the Tribunal could not reach that state of satisfaction without assessing and evaluating whether the All Australian Training qualifications demonstrated that he could perform the tasks of the nominated occupation. And as identified by the Tribunal, the weight to be given to the evidence of qualifications was a matter for the Tribunal.

36    Now given the Tribunal’s concerns with the basis on which the All Australian Training qualifications were awarded, it was open to the Tribunal to place lesser or little weight on those qualifications as evidence that the appellant could perform the tasks of a cook.

37    Now particular (a) contains a discrete assertion that the Tribunal applied the PAM3 guidelines in a manner that went beyond the wording of cl 457.223(4)(da) and applied a higher threshold than was required in the circumstances. But I reject that assertion.

38    The PAM3 guidelines contemplated the Tribunal assessing whether a particular qualification was a qualification necessary to perform the tasks of the nominated occupation. The guidelines did so by directing the relevant person to consider whether the qualifications of the visa applicant were relevant to the nominated occupation, in addition to the indicative skill level specified in the nominated occupation for the ANZSCO.

39    The indicative skill level for cook specified in the ANZSCO relevant code provided that in some instances, relevant experience and on the job training may be required in addition to the formal qualification. The ANZSCO indicative skill level itself contemplated that a formal qualification may not be enough on its own to demonstrate the requisite level of skill. That is consistent with the assessment required by cl 457.223(4)(da) and does not impose a higher threshold than what is required by that clause.

40    So in my view the Tribunal did not exceed its powers or apply a higher threshold than was required by cl 457.223(4)(da). Rather, it undertook the assessment required by the criteria and found itself not satisfied that the All Australian Training qualifications demonstrated that the appellant could perform the tasks of the nominated occupation of cook.

41    Further, as to particulars (e) and (f) of the new ground of appeal, these two particulars assert that the Tribunal went beyond the scope of its power in assessing the weight to be given to the All Australian Training qualifications because the Tribunal could have requested a skills assessment under cl 457.223(4)(e) to determine whether the appellant had the skills necessary to perform the occupation. It was said that the Tribunal engaged in “an overreach of its powers”.

42    Now cl 457.223(4) contains a number of different requirements that a visa applicant must satisfy. Subclause (4)(e) is a separate and distinct requirement from subclause (4)(da), which provides:

Standard business sponsorship

…

(4)    The applicant meets the requirements of this subclass if:

…

(e)    if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and;

43    Clause 457.223(4)(e) only applies if the Tribunal requires a visa applicant to demonstrate that they have the skills necessary to perform the occupation. Now of course the Tribunal may exercise all powers conferred on the Minister for the purposes of reviewing the Minister’s decision or that of the Minister's delegate. If so, it operated as an additional requirement that the visa applicant had to meet. It did not condition or restrict the Tribunal’s assessment of subclause (4)(da) or relieve the visa applicant of having to satisfy that separate criteria, although the same evidence may go towards satisfying each criteria.

44    Now in the present case the Tribunal did not require the appellant to demonstrate that he had the skills necessary to perform the occupation in a particular manner under cl 457.223(4)(e). That subclause therefore has no application. Moreover, there was nothing unreasonable or irrational in not exercising that power in the circumstances of the present case.

45    The Tribunal was not obliged to require a skills assessment under cl 457.223(4)(e) in order to perform its function of review. It was for the appellant to provide evidence to satisfy the Tribunal that he met cl 457.223(4)(da). The Tribunal afforded him multiple opportunities to do so, including after the hearing. Further, it is not open to the appellant to assert an error in the Tribunal’s assessment of that evidence by now pointing to the option of a skills assessment, particularly where the appellant did not raise that option with the Tribunal.

Conclusion

46    For the above reasons the appeal should be dismissed with costs.

47    Notwithstanding my observation at the outset, on my review of the material the appellant appears to be a hardworking individual and it may be that the Minister could give consideration to reviewing the suitability of the appellant for another appropriate visa. But of course that is a matter for the Minister.

Associate:

Dated:    8 March 2024