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MIGRATION - Review of Migration Review Tribunal's decision affirming a delegate's refusal to grant an Employer Nomination (Residence) (Class BW) visa - whether applicant "a highly skilled person" - whether Tribunal's preference for one expert report over another amounted to jurisdictional error - weight to be given to evidence (including expert reports) matter for Tribunal - no reviewable error found.

Tham v Minister for Immigration [2004] FMCA 626 (23 September 2004)

Tham v Minister for Immigration [2004] FMCA 626 (23 September 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THAM v MINISTER FOR IMMIGRATION
[2004] FMCA 626




MIGRATION - Review of Migration Review Tribunal's decision affirming a delegate's refusal to grant an Employer Nomination (Residence) (Class BW) visa - whether applicant "a highly skilled person" - whether Tribunal's preference for one expert report over another amounted to jurisdictional error - weight to be given to evidence (including expert reports) matter for Tribunal - no reviewable error found.




Migration Act 1958 (Cth)

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

MIMIA v SGLB (2004) HCA 32

Re: MIMA; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165

Re: MIMA; Ex Parte Cohen (2001) HCA 10

Applicant:
TJIH MENG THAM




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


WZ 44 of 2004




Final orders made on:


10 September 2004 (Perth)




Delivered on:


23 September 2004 (Melbourne)




Hearing Date:


10 September 2004




Judgment of:


Walters FM




REPRESENTATION

Counsel for the Applicant:


Mr Goldfinch




Solicitors for the Applicant:


Goldfinch & Co




Counsel for the Respondent:


Mr Allanson




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The applicant's application be dismissed.

(2) The applicant do pay the respondent's costs of and incidental to the proceedings, fixed (pursuant to Rule 21.02(a) of the said Rules) in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH



WZ 44 of 2004

TJIH MENG THAM



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant is a national of Indonesia. He was born in November 1966.

2. The applicant entered Australia in September 1996. He was then the holder of a tourist (short stay) visa. In February 1997, he was granted a temporary business (long stay) visa -- which expired in February 2001.

3. On 6 November 2000, the applicant applied for an Employer Nomination (Residence) (Class BW) visa. The application was lodged in conjunction with an employer nomination by Sun Forum Pty Ltd (the employer) for the position of chef. The employer nomination was approved by the Department on 12 October 2000.

4. On 7 May 2001, a delegate of the respondent refused to grant the applicant the visa for which he had applied.

5. On 28 May 2001, the applicant lodged an application with the Migration Review Tribunal ("the Tribunal") for review of the delegate's decision.

6. I accept the following statement of background facts contained in paragraphs 2 to 16 (inclusive) of the written submissions prepared by Mr Allanson on behalf of the respondent:

2. The visa for which the applicant applied required as part of the primary criteria to be satisfied at the time of application, that the applicant meet the criteria in 856.213:

The applicant:

(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and

(b) is a highly skilled person, within the meaning of regulation 5.19, in relation to that appointment; and

(c) unless the appointment is exceptional:

(i) has not turned 45; and

(ii) has vocational English.

3. Criteria to be satisfied at time of decision included:

(1) 856.221 that the appointment mentioned in paragraph 856.213(a) is an approved appointment; and

(2) 856.222 that the Minister is satisfied that the appointment mentioned in paragraph 856.213 (a) will provide the employment referred to in the relevant employer nomination.

4. The applicant had an employer nomination in accordance with sub-regulation 5.19(2)... The details of the position offered... included the job title of chef, and the level of formal training or equivalent experience required as "5 years fully qualified cook of Asian cuisines".

5. The application for a long stay temporary visa... question 22, gave as Educational qualifications "Form V completion" and as training a "verbal apprenticeship agreement with previous employer described his position as chef...

6. A private assessment of the applicant's competencies was carried out in June 2000 by Mr J Pass and presented by the applicant to the Department... It includes reference to the applicant having "twelve months full time formal study at the culinary school in Asia".

7. The application was first lodged in April 2000, although it was then withdrawn and a later application made in November 2000. The application was withdrawn because the applicant was unable to provide material to the Department in time.

8. In August 2000 the applicant's employer lodged a further nomination for the position of Chef. The application was approved on 12 October 2000...

9. On 3 November 2000 the applicant applied for permanent residence in Australia under subclass 856 of the Employer Sponsored class.

10. In April 2001, the applicant was assessed by Trades Recognition Australia and he was classified as a cook, with the date he was deemed to (have) achieved the equivalent Australian standard at 24 June 2000...

11. On 7 May 2001, the respondent found the applicant did not meet the criteria for the criteria of a subclass 856 visa -specifically that he did not meet clause 856.213.

12. The applicant applied to (the Tribunal) for review on 23 May 2001. On 22 July 2001 the Tribunal sent him a notice under s359A of the Migration Act 1958... The notice invited comment on:

(a) the Trades Recognition Australia assessment;

(b) the employer nomination as chef, when there was no evidence the applicant met the Australian standards for a chef;

(c) the policy that the position of cook is incapable of requiring a highly skilled person;

(d) the policy that persons claiming to be chefs without formal qualification should demonstrate 3 years experience in an international standard establishment, and that there is no evidence that the Sun Forum where the applicant worked was an international standard establishment.

13. The notice also invited the applicant to submit additional information: evidence of recognition of his qualifications or experience as a chef with Trades Recognition Australia; and a resume with details of all work experience.

14. The applicant provided a resume of his experience, (but) did not otherwise provide the information as requested. The other issues were dealt with in a submission to the Tribunal... Reference was made to the applicant seeking TRA assessment as a chef... but there seems to have been no further assessment done.

15. Following the hearing before the Tribunal, the applicant submitted a further letter from Mr J Pass dated 15 October 2003 relating to a private assessment of the applicant's competency. The letter stated that "with a new assessment to TRA he should be given a deeming date as a cook from 1996, and a deeming date as a chef from June 2000"...

16. On 28 November 2003, the Tribunal affirmed the decision under review that the applicant was not entitled to the grant of the visa.

Decision of the Tribunal

7. Under the heading "Findings", the Tribunal wrote[1]:

25. One necessary primary criterion for a subclass 856 (Employer Nomination Scheme) visa that must be met at the time of application is clause 856.213...

26. The criterion at issue is subclause 856.213(b). That is, whether the review applicant is a highly skilled person within the meaning of regulation 5.19:

5.19

(1) A person is a highly skilled person in relation to a nominated position if, in respect of work of the kind to be performed in that position:

(a) the person has completed, over a period of at least 3 years, formal training or equivalent experience; and

(b) unless the approved appointment is exceptional, the person has been employed in work of the kind for which he or she was trained, or in which he or she is experienced, for at least 3 years:

(i) after completing the training or experience referred to in paragraph (a); and

(ii) before making the application; and

(c) if it is mandatory for work of that kind in Australia that a person be the holder of a qualification of a kind specified in subregulation (3A), the Minister is satisfied that the person is, or is eligible to become, the holder of that qualification.

27. Evidence before the Tribunal includes a TRA assessment that the review applicant is deemed to have qualified as a Cook on 24 June 2000, as well as two private assessments by Mr John Pass. Despite the indication from the applicant's migration agent that a further TRA assessment would be requested in relation to the occupation of Chef, no evidence was provided that such an assessment had been requested or undertaken.

28. Mr Pass's assessment of 24 June 2000 was based on one four-hour visit to the Sun Forum restaurant, including observations of, and discussion with, the applicant. Mr Pass took into account the applicant's claim that he had completed 12 months "full-time formal study at the culinary school in Asia" in finding that the applicant qualified as a cook. In October 2003, after the applicant had advised the Tribunal at his hearing that he had not undertaken any formal culinary training, Mr Pass gave a further opinion that the applicant would qualify as a Cook from 1996 and a Chef from June 2000. He did not refer to the false information previously provided by the applicant that he completed formal culinary training in Indonesia. The Tribunal gives little weight to either of Mr Pass's assessments, as they are based, at least in part, on false information.

29. The Tribunal accepts the TRA assessment and finds that the his application for a subclass 856 visa on 6 November 2000, five months after he is deemed to have qualified as a Cook. The Tribunal finds that the applicant was employed as a cook for less than three years after completing the necessary experience to achieve that qualification and before making the application. The Tribunal must therefore determine whether the approved appointment is exceptional in order to make a finding as to whether the review applicant is a "highly skilled person".

8. The Tribunal also made findings to the following effect:

a) It was not satisfied that the position to be held by the applicant "... requires special culinary skills, experience or qualifications or is so unusual that the employer would be unable to find a person with at least three years post-training employment experience."[2]

b) As the applicant has performed all necessary duties in his nominated position (being a chef to perform the duties of a Chinese cook) since 1997 to the complete satisfaction of his employer, the duties of that position only require the skills and qualifications which are possessed by the applicant.[3]

c) At the time of the applicant's application for the relevant visa, the duties of the nominated position were performed successfully by a person qualified only as a cook with five months post-qualification experience (namely, the applicant).[4]

d) The applicant does not hold formal cooking qualifications, and is deemed to have qualified as a cook on 24 June 2000.[5]

e) The applicant was not a "highly skilled person" (as defined in Regulation 15.19(3)) at the time of his application for the relevant visa.[6]

Grounds for Review

9. The grounds appearing in the amended application for review (insofar as they are relevant) are as follows:

1. The Tribunal took into account irrelevant considerations namely, an alleged claim by the applicant that he had undertaken 12 months full time formal study at a culinary school in Asia.

2. The Tribunal 'gave little weight to either of Mr Pass's assessments' on the ground that they were allegedly based, at least in part, on false information. The conclusions in Mr Pass's assessment were not based on the alleged false information and were therefore wrongly rejected.

3. The Tribunal's rejection of Mr Pass's assessments was irrational and illogical and was a constructive failure to exercise jurisdiction.

4. The Tribunal's decision was accordingly affected by jurisdictional error.

10. Two additional grounds (contained in paragraph A(a) and (b) of the amended application filed 29 June 2004) were abandoned at the hearing.

The Law

11. Pursuant to s.483A of the Migration Act 1958 (Cth) ("the Act"), this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a "privative clause decision" that is a decision made on a review by the Tribunal. "Privative clause decision" is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

12. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

a) the decision is a bona fide attempt by the decision-maker to exercise its power;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

13. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.

14. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[7] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).

15. If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met.

16. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Act constitute inviolable limitations or restraints, may raise some complex issues[8] - but there is no need to consider such issues in the proceedings before the Court.

Applicant's Submissions

17. At the hearing, Mr Goldfinch (for the applicant) effectively relied upon a single ground -- that the Tribunal's rejection of the assessments prepared by Mr Pass "... was irrational and illogical, and was a constructive failure to exercise jurisdiction."

18. As set out in paragraphs 6 and 7 above, one of the criteria that the applicant was obliged to meet in order to qualify for the visa for which he had applied was that he is "a highly skilled person" within the meaning of Regulation 5.19.

19. Three assessments were provided to the Tribunal in relation to the question of whether the applicant met the criteria necessary to categorise him as a "highly skilled person". The three assessments were:

a) a report by Mr Pass dated 24 June 2000 (CB123), to which I shall refer as "Report P1";

b) a report from Trades Recognition Australia dated 5 April 2001 (CB173) -- to which I shall refer as "the TRA Report"; and

c) a report from Mr Pass dated 15 October 2003 (CB219) -- to which I shall refer as "Report P2".

20. Mr Goldfinch focused on the following passage from the Tribunal's Reasons:[9]

(Report P1) was based on one 4 hour visit to the Sun Forum restaurant, including observations of, and discussions with, the applicant. Mr Pass took into account the applicant's claim that he had completed 12 months "full time formal study at the Culinary School at Asia" in finding that the applicant qualified as a cook. In October 2003, after the applicant had advised the Tribunal at his hearing that he had not undertaken any formal culinary training, Mr Pass gave a further opinion (in Report P2) that the applicant would qualify as a cook from 1996 and a chef from June 2000. He did not refer to the false information previously provided by the applicant that he completed formal culinary training in Indonesia. The Tribunal gives little weight to either of Mr Pass's assessments, as they are based, at least in part, on false information.

21. Mr Goldfinch then referred to certain passages from Reports P1 and P2, and argued that the passage reproduced in paragraph 20 was somehow illogical, irrational and/or internally inconsistent. He also argued that the false information provided by the applicant (to the effect that he had completed 12 months full-time formal study at the culinary school in Asia) was irrelevant to Reports P1 and P2 -- in that the purpose of Report P1 was "... to confirm (Mr Pass's) assessment of the workplace competencies of (the applicant) as measured against the national standards of the Certification III in Commercial Cookery (Asian/Chinese) Industry Competencies", and the purpose of Report P2 was to provide "... an opinion on the likelihood of (the applicant) being assessed for migration purposes as a chef".

22. According to Mr Goldfinch, the relevant conclusion in Report P1 is as follows:

From my observations of other Asian chef's from all cuisine styles and making comparisons between them and (the applicant), I would have no hesitation in stating that he is working at a skilled trades person level and has been for at least the last six years. Three of those years have been in Perth.[10]

23. The relevant conclusion from Report P2 is as follows:

Although (the applicant) was working as a chef in so much as he had supervisory and food controlling duties and was responsible for the management of the kitchen budget, my primary purpose (in Report P1) was to assess his skills for the award of the Certificate III in Hospitality (Asian Cookery) under the Recognition of Current Competencies process. I was not doing the assessment for TRA assessment...

However, if I were to conduct an assessment for Trades Recognition of (the applicant's) competence assessed at the level of a chef today, I have little doubt that he would be able to satisfy the TRA criteria for chef for he has been working for a controller some 4 years at least in Australia.

I believe that TRA has not given the credit to (the applicant) that he is due and have only classified him as a cook on the day I did the workplace assessment. Obviously, (the applicant) was working as a cook long before that date and would have been a cook at least, in order to be employed under his current visa arrangement.

With a new assessment to TRA he should be given a deeming date as a cook from 1996 and a deeming date as a chef from June 2000.[11]

24. Mr Goldfinch argued that the Tribunal had not considered the conclusions from Report P1 and P2 referred to in the preceding paragraphs at all. He submitted that the conclusions appearing in Reports P1 and P2 were not based on any false information provided by the applicant and that they were, in fact, based upon the writer's observations of the applicant in his working environment. Further, Mr Goldfinch submitted that the applicant's experience was not dealt with by the Tribunal, and that the overall effect of the Tribunal's approach in discounting or ignoring Reports P1 and P2 amounted to a breach of procedural fairness, and hence jurisdictional error on the part of the Tribunal.

Discussion

25. I have read the applicant's statement of contentions of fact and law (filed 21 July 2004) and outline of submissions (filed 9 September 2004) carefully, and have read and re-read the Tribunal's decision. Further, I have read and re-read Reports P1 and P2 and the TRA report. I am simply unable to understand how it can be alleged that the Tribunal's decision, or any part of it, is illogical or irrational. Indeed, I am unable to identify any basis upon which the Tribunal's decision can be interfered with. The Tribunal acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded.

26. Further, in my opinion there is no apparent breach of procedural fairness which could amount to jurisdictional error.

27. The Tribunal conducted an objective inquiry into whether the condition precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptionable.

28. I agree with, and adopt, the following submissions of Mr Allanson:

24. ...(As) comments of the Tribunal showed, it did not fail to give weight to the reports of Mr Pass because it misunderstood the nature of the task, but because it saw those reports as factually flawed. The comment was as to the credibility of the information, and hence its weight. That is a matter within the jurisdiction of the Tribunal.

25. ...(The) reference by Mr Pass to the applicant's formal study, if incorrect, logically goes to the credibility or accuracy of his assessment. That is how the information was used. The use of the information in this way does not give rise to any issue of "irrelevant considerations".

26. ...(The) weight to be given to the assessments by Mr Pass was a question for the Tribunal on the material before it. The Tribunal had before it two assessments, that by TRA and the assessment(s) by Mr Pass. It was entitled to prefer one over the other and give greater weight to one rather than the other. The Tribunal gave reasons why it gave little weight to those of Mr Pass. There was material supporting that finding. Even inadequacy of material before a decision maker (which is not the case here) is insufficient to establish jurisdictional error: MIMIA v SGLB [2004] HCA 32 at [38].

27. ...(The) question of whether Mr Pass based his assessment of false information was not a matter that the Tribunal was required to determine for the purposes of the review. Its decision on that question of fact was not a condition for exercise of its jurisdiction and gives rise to no reviewable error: see MIMIA v SGLB [2004] HCA 32 at [39].

29. In MIMIA v SGLB (2004) HCA 32, the High Court said (referring to the earlier decision of the High Court in Re: MIMA; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165):

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters, but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds... If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction... However, inadequacy of the material before the decision maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.[12]

30. As was recognised by Mr Goldfinch, the Tribunal was obliged, when giving its Reasons, to determine which of two (or more) conflicting accounts it was prepared to accept.[13] The passage from MIMIA v SGLB referred to in the previous paragraph puts the obligations of the Tribunal in this regard into context. The critical question is whether the determination was irrational, illogical and not based on findings on inferences of fact supported by logical grounds. It is not to the point that one of the factual matters which must be considered as part of the overall determination may or may not be open to criticism. As McHugh J said in Re: MIMA; Ex Parte Cohen (2001) HCA 10 at [37]:

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative Tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact, or the reason or process used to find it, is usually a slender ground for concluding that a tribunal misconceived its duty.

31. It is clear from paragraphs 17, 18, 21, 22, 27, 28 and 29 of its decision that the Tribunal was well aware of the contents of Reports P1 and P2. It had to determine whether it accepted Mr Pass's opinion in preference to the TRA report. It preferred the latter. It was obviously concerned that Mr Pass had been misled in Report P1, and that he did not refer to that fact in Report P2. As Mr Allanson submitted, Mr Pass's failure to refer to the false information in Report P2 meant that the Tribunal could not discount the possibility that he remained unaware of the fact that he had been mislead in Report P1. After all, Mr Pass wrote in Report P1 that his assessment was conducted "... in four parts vise (sic): 1. Assessment of written evidence provided. 2. On job assessment of competencies. 3. Interview in person. 4. Oral cuisine knowledge test".

32. It is impossible to tell from Report P1 what weight Mr Pass attributed to each of these four parts. Given that Mr Pass did not re-assess the applicant for the purpose of Report P2, it is similarly impossible to determine what weight he gave to each of the component parts of his assessment in reaching the conclusions that he did in Report P2. The applicant's misrepresentation becomes important in this context -- particularly when regard is had to the fact that Mr Pass refers to deeming dates in the final paragraph of Report P2. Given that Mr Pass's assessment relied (in part) on his interview with the applicant, it cannot be fairly ascertained which aspects of Mr Pass's conclusions would or could have been affected by the knowledge that the applicant had been untruthful.

33. In my opinion, the Tribunal's determination was unexceptionable.

34. For the preceding reasons, the grounds for review must fail, and the application must be dismissed with costs.

I, Paul O'Halloran, certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 23 September 2004


--------------------------------------------------------------------------------

[1] CB231.

[2] CB233.

[3] CB234.

[4] CB234.

[5] CB234.

[6] CB234.

[7] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J

[8] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act.

[9] CB232, para 28.

[10] CB124.

[11] CB219.

[12] At paragraph 38.

[13] See, MIMIA v SGLB (2004) HCA 32 at 44.
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