Muralidharan, Nagarajapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 947

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 91 of 1998

BETWEEN: nagarajapillai Muralidharan

Applicant

AND: minister for immigration

and multicultural affairs

Respondent

JUDGE: WHITLAM J

DATE OF ORDER: 7 august 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 91 of 1998

BETWEEN: nagarajapillai Muralidharan

Applicant

AND: minister for immigration

and multicultural affairs

Respondent

JUDGE: WHITLAM J

DATE: 7 august 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This case concerns the "points" system provided for in Subdivision B of Division 3 of Part 2 of the Migration Act 1958. The legislative framework of the system has been recently described and explained by Wilcox J in Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (unreported, 30 January 1998). Part 1 of Schedule 6 of the Migration Regulations prescribes employment qualifications in relation to the grant of a Subclass 126 (Independent) visa. Each qualification requires determination of a visa applicant's "usual occupation". In Wang Wilcox J held that the respondent's delegate erred in his approach to this issue "by asking himself which ASCO classification [the visa applicant's] activities seemed most nearly to fit". Counsel for the applicant submits that in the present case the respondent's delegate has fallen into the same error. ASCO is an acronym for Australian Standard Classification of Occupations, which is a publication of the Australian Bureau of Statistics. It comprises an explanation of the conceptual basis of the classification, the classification structure and definitions for all levels of the classification (major, sub-major, minor and unit groups and occupations). The detailed information in the publication defines and describes different categories of occupations, which are identified by six-digit codes. In the present case the applicant is an Indian national. His application for a Subclass 126 (Independent) visa was made on 29 June 1995. The approved form of application was lodged on the applicant's behalf by his solicitors who are also migration agents. He did not answer the question about his usual occupation, but gave details of his employment history showing his most recent occupation as that of sales manager. The applicant's solicitors asked that consideration of the visa application await their further submissions. These were received on 17 November 1995. The applicant's solicitors submitted that their client should be assessed by giving him the points prescribed in relation to the employment qualification specified in item 6103 of Schedule 6. Items 6102 and 6103 of Schedule 6 specify two employment qualifications in the following terms: "6102 The applicant's usual occupation: (a) is not a priority occupation; and (b) is an occupation: (i) for which, in Australia, a degree or trade certificate is required; or (ii) that is a professional-equivalent occupation; and (a) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant: (i) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or (ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or (iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and (a) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and (b) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and (c) is an occupation: (i) in which the applicant has worked; or (ii) is closely related to an occupation in which the applicant has worked; for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made. 6103 The applicant would meet the qualification specified in item 6102 except that: (a) the applicant did not obtain or complete the qualification referred to in paragraph (c) of that item at least 3 years before the application was made; or (b) the applicant was not employed in the occupation on the day that is 3 years before the application was made; or (c) the applicant had not worked in the occupation or a closely related occupation for a period of 2 years, or periods totalling 2 years, in the period of 3 years ending on the day before the application was made." So far as the applicant's usual occupation was concerned, his solicitors said that he was a marketing officer. Having set out the definition of "usual occupation" in subreg 2.26(5), they referred to the definition of public relations officer under code 2703-11 in the first edition of ASCO's occupation definitions. This described marketing officer as a specialisation in the category of public relations officer. The applicant's solicitors said that the description of tasks under that code was inadequate to describe those tasks performed by a marketing officer. They preferred the description of a marketing officer's occupation in the 1994 Job Guide published by the Victorian Department of Education, Employment and Training, which they attached to their submissions. Significantly, the solicitors then said: "The skill level required for this occupation is a 3-4 year degree or diploma." This is the language used to describe the "skill level" in ASCO code 2703-11. Details of the applicant's education and employment were furnished together with copies of academic transcripts, testamurs and employment references. The solicitors drew attention to the assessment by the National Office of Overseas Skills Recognition of the Indian university degrees held by the applicant in support of a submission that his "academic qualification is therefore comparable to at least the educational level of an Australian Bachelor degree and an Australian two-year Associate Diploma". (The expressions "associate diploma" and "degree", used in Part 1 of Schedule 6, are also defined by subreg 2.26(5)). On 9 December 1997 the applicant was interviewed at the Australian High Commission in New Delhi. (A case office's file note dated 3 November 1997 indicates that the interview was arranged because that officer was unable to determine the applicant's usual occupation.) The interview notes show that the applicant was extensively questioned about his past employment and management experience. During the interview the applicant produced a hand-drawn chart of the management structure in his father's firm where he was employed. The interviewing officer did not accept that the applicant had a usual occupation in the managerial field. He considered the applicant's duties to be more consistent with those of a supervisor of sales representatives and noted that "as such he scores 25 only for skill". The interviewing officer recommended that the application be refused. On 30 December 1997 the respondent's delegate wrote to the applicant's solicitors informing them that the application had been refused. She enclosed "a decision record which will help you to understand the reasons for the decision". The decision record relevantly stated: "[1] Points for the Skill sub-factor of the Points Test are based on your "usual occupation". The term "usual occupation" is defined in the Regulations as meaning an occupation which the applicant has engaged in for gain or reward for a continuous period of at least 6 months in the 2 years preceding the application. The points which may be awarded are specified in Schedule 6 of the Regulations. [2] Based on the information provided in your application and at your interview on 9 December 1997 your usual occupation was assessed as a supervisor of sales representatives. This occupation falls within the new ASCO code 6211-11 Sales Representatives (Personal and Household Goods). ASCO states that in Australia the skill level for this occupation is an AQF Certificate II or higher qualification or a[t] least one years [sic] relevant experience. You have a Master in Business Administration degree from Bharathiar University. This degree is comparable to an Australian Master degree. You therefore meet the requirements for your occupation. [3] Under schedule 6 of the Migration Regulations where an AQF certificate II is required (equivalent to a RATE certificate) the maximum points which can be awarded on the skill sub-factor of the points test is 25 points. You have been awarded therefore 25 points under Item 6107 of Schedule 6 of the Migration Regulations." (The paragraph numbers have been supplied for ease of reference.) Item 6107 of Schedule 6 specifies an employment qualification as follows: "6107 The applicant: (a) applies to enter Australia: (i) on the basis of an occupation that is the applicant's usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and (ii) as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and (iii) as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; or (a) has an occupation: (i) that is the applicant's usual occupation; and (ii) entry to which in Australia requires a degree, diploma, associate diploma or trade certificate, and (iii) in respect of which the applicant has a degree, diploma, associate diploma or trade certificate, or possesses work experience, assessed by the relevant Australian authority as not equivalent to Australian Standards for that occupation." The applicant's solicitors requested by fax on 28 January 1998 a copy of the interview notes. Copies of those notes and of the organization chart provided by the applicant at interview were faxed to his solicitors on 5 February 1998. The application for review presently before the Court was then filed on 13 February 1998. By virtue of subss 66(2) and (3) of the Migration Act, the respondent was not obliged to give reasons why the applicant did not pass the points test. The case notes were admitted in evidence over the objection of counsel for the applicant. There can be no doubt they formed part of the material before the decision-maker. In Zeljana Velmir v Minister for Immigration and Multicultural Affairs (unreported, 9 July 1998) Emmett J observed (at p 7) that such notes may comprise, at least in part, reasoning of the decision-maker. From the second edition of ASCO, counsel for the applicant tendered, without objection, the definitions for unit groups 1231 (sales and marketing managers), 2221 (marketing and advertising professionals) and 6211 (sales representatives) and for occupation categories 1231-11 (sales and marketing manager), 2221-11 (public relations officer) and 6211-11 (sales representative - personal and household goods). This last category is referred to in paragraph 2 of the decision record excerpt. Counsel for the applicant submits that this case is "on all-fours with" Wang. In that case Wilcox J identified (at p 8) the error of law this way: "The nature of Ms Wang's usual occupation is a matter of fact. It was something to be determined by . . . the delegate of the Minister. However, a determination about that matter that reflects an erroneous legal approach is bad in law and liable to be set aside on review. The reasons given by [the delegate] for determining that Ms Wang's usual occupation was importer and exporter are sparse in the extreme. But it is apparent [the delegate] approached his task by asking himself which ASCO classification her activities seemed most nearly to fit. This approach was incorrect. Item 6102 of Schedule 6 made no reference to ASCO. The item referred to an applicant's "usual occupation". In considering how Ms Wang's mix of duties and experience ought properly to be described, [the delegate] was entitled to consult ASCO or any other relevant reference work. But he was not bound by the classifications contained in ASCO; there must always be a possibility that the usual occupation of an applicant will not aptly be described in ASCO at all. . . . A decision-maker required to determine the "usual occupation" of an applicant should consider the nature of the duties currently being undertaken by the applicant and his or her training and previous work experience and then determine how this composite of duties, training and experience would be described in Australia. In relation to some occupations, the particular industry in which the person is engaged may be significant; in others it may not. For example, "journalist" may be a sufficient description of the usual occupation of a person trained in journalism and working as such, without reference to whether the person is working in the print or electronic media. Similarly, perhaps, with a human resources officer of a company. As I have said, in determining an applicant's usual occupation, the decision-maker may gain assistance from reference works such as ASCO, but it is important the decision maker not feel bound by any of them." In Wang Wilcox J was able to infer that the decision-maker had simply determined which of the ASCO definitions most nearly described the visa applicant's occupation. In my opinion, the language used in the decision record excerpt in the present case does not compel the conclusion that the respondent's delegate adopted a similarly erroneous legal approach. In the first sentence in paragraph 2 of the decision record excerpt, the basis of the determination is explained. It is not necessary further to canvass in detail the information there referred to. However, the interview notes demonstrate how keenly the applicant was pursued about his claimed managerial experience and what exactly his job involved. The organisation chart provided by the applicant also shows him "above" the sales representatives. The use that the delegate made of all this material was a matter for her in finding as a fact the applicant's usual occupation. Indeed, so far from the delegate simply choosing an ASCO classification, counsel for the applicant concedes that an occupation category of supervisor of sales representatives is not included within ASCO's unit group 6211. The primary ground of challenge to the delegate's decision accordingly fails. Once the decision-maker has determined what Wilcox J described (at p 8) as "the proper description in Australian parlance of the applicant's usual occupation", she must ascertain the Australian standards for that occupation. His Honour said (at p 9): "If a particular qualification is necessary, as a practical matter, in order to obtain employment in a particular occupation, that qualification is 'required', even though not by law." Counsel for the applicant submits that in the present case the delegate erred in finding the educational qualification "required" by his client. This is a curious submission in view of the finding by the delegate explicitly made in the last sentence in paragraph 2 of the decision record excerpt. It apparently rests on a misunderstanding of the effect of a provision in the Migration Regulations, upon which counsel relied. Regulation 2.26(3) relevantly provides: "(3) For the purposes of subsection 93(1) of the Act (which deals with determination of an applicant's points score), the Minister: (a) is not to give an applicant a prescribed number of points for more than one prescribed qualification in each Part of Schedule 6; and (b) is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant's

circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; . . . " Counsel for the applicant submits that par (b) requires a visa applicant to be "scaled" upwards. Implicit in this submission, it seems to me, is the suggestion that a visa applicant with educational or trade qualifications beyond those required for his usual occupation must be treated as being notionally employed in some other occupation for which he has obtained a qualification equivalent to the Australian standard. (This is a view the migration officer noted the applicant putting at the interview in this way: "Although he had no [management experience], he did have formal [qualifications] and was therefore qualified to do [the sales manager's] job.") The submission must be rejected. In Schedule 6 the highest number of points are given for the lower item numbers. It may be seen, for example, how the same "usual occupation" attracts fewer points under item 6103 than it does under 6102. This shows how the decision-maker may be required to move down the scale, not up it, once the usual occupation has been found. Leapfrogging by reference to superfluous educational qualifications in the manner urged by counsel for the applicant would completely vitiate the first step in assessing the prescribed qualification in Part 1 of Schedule 6 "that meets the applicant's circumstances", namely, finding the applicant's "usual occupation". It remains to deal with one other matter that was only lightly touched upon in address. It is apparent from paragraph 2 of the decision record excerpt that the delegate did have regard to the ASCO code definition for the purpose of considering the skill level required for the applicant's usual occupation. The implicit finding that in Australia entry to the applicant's usual occupation requires a "certificate or advanced certificate" (being the qualifications referred to in subpar (i) of par (a) of item 6107) is entirely consistent also with the material in the Job Guide submitted by the applicant's solicitors. Under the heading "Education and Training", that guide stated: "It is not necessary to have a tertiary qualification to enter this occupation [marketing officer], however many employers prefer those who have completed the VCE." It continued: "For entry to this occupation at executive level a degree or diploma in arts, economics or commerce is usually required." The delegate must be taken to have accepted the interviewing officer's assessment that the applicant did not have a usual occupation "in the managerial field". Once that view was taken, the finding of the Australian standard required for his usual occupation was well open on the material before the delegate. The skill level suggested by the applicant's solicitors back at the end of 1995 was hardly necessary. The use of the ASCO code information about skill levels does not demonstrate any error of law. The application will be dismissed with costs. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated: 7 August 1998 Counsel for the applicant: M A Robinson

Solicitors for the applicant: Barlow and Company

Counsel for the respondent: Tim Reilly

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 28 July 1998

Date of judgment: 7 August 1998