Ye Hu v John Rees & Minister for Immigration & Ethnic Affairs [1997] FCA 160 (4 March 1997)

CATCHWORDS

MIGRATION - application for independent entry visa - refusal - application to court for review of decision - usual occupation - failure to observe procedure - decision not authorised

Migration Reform Act 1992

Migration Reform (Transitional Provisions) Regulations

Migration Act 1958 ss 476, 475

Migration Regulations Part 126, Schedule 7

Mahboob v Minister for Immigration and Ethnic Affairs [1996] 135 ALR 693

Yao Dai Xing v Minister for Immigration & Ethnic Affairs & Refugee Review Tribunal, unreported 18 September 1996

Morais v Minister for Immigration & Ethnic Affairs [1995] FCA 1074; [1995] 54 FCR 498

YE HU v JOHN REES & MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG 763 of 1995

EINFELD J

SYDNEY

4 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 763 of 1995

GENERAL DIVISION )

Between: YE HU

Applicant

And: JOHN REES

First Respondent

And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

MINUTE OF ORDERS

The Court

1. Declares pursuant to section 481(1)(c) of the Migration Act 1977 that the applicant's application was not determined according to law.

2. Sets aside the decision of the first respondent pursuant to section 481(1)(a).

3. Orders that the applicant's application be remitted to the respondents for redetermination according to these reasons for judgment.

4. Orders the costs of the applicant to be paid by the second respondent.

Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

EINFELD J

SYDNEY

4 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 763 of 1995

GENERAL DIVISION )

Between: YE HU

Applicant

And: JOHN REES

First Respondent

And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 4 MARCH 1997

Introduction

The applicant is a Chinese citizen living in or near Shanghai where he applied on 8 July 1994 for a Class 126 (Independent Entrant) visa and entry permit or a Transitional (Permanent) visa to Australia. He paid the prescribed fee. The first respondent as delegate of the Minister refused the application on 31 August 1995. Notification of the refusal was received by the applicant on 11 September 1995. By application of 9 October 1995, the applicant sought review of this decision.

The review

The applicant's substantive relief was sought under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) and section 39B of the Judiciary Act 1903 . Despite the commencement of the Migration Reform Act 1992 on 1 September 1994 which removed the Court's jurisdiction to deal with migration decisions under the Judicial Review Act, the applicant sought to invoke some of the Judicial Review Act grounds by virtue of the operation of the savings provisions in regulation 22 of the Migration Reform (Transitional Provisions) Regulations which provide:

22.(1) Subject to this Part, Division 2 of Part 2 of the old Act, and Regulations made for the purposes of that Division, continue to apply to a primary application for a visa made on or after 19 December 1989 and before 1 September 1994.

(2) If, on or after 1 September 1994, the Minister or a review authority decides that a non-citizen is entitled to be granted a visa under the provisions referred to in subregulation (1), the visa to be granted is:

(a) if the application was for a temporary visa - a transitional (temporary) visa; or

(b) if the application was for a permanent visa - a transitional (permanent) visa.

In Mahboob v Minister for Immigration and Ethnic Affairs [1996] 135 ALR 693, Justice Lehane held that where an application for refugee status had been made and refused prior to 1 September 1994 and an application for review of that decision had been made to the Refugee Review Tribunal before that date but not determined by that date, the Court had no jurisdiction under the Judicial Review Act to determine an application for review of the subsequent decision of the Refugee Review Tribunal affirming the primary decision. This decision of Justice Lehane is the subject of an appeal, but in the meantime, a Full Court of this Court (Black CJ, Davies and Sundberg JJ) in Yao Dai Xing v Minister for Immigration & Ethnic Affairs & Refugee Review Tribunal, unreported 18 September 1996, has agreed with his Honour's decision. The applicant sought to distinguish the present case from Mahboob, but in light of my decision in respect of the application for review under Part 8 of the Migration Act 1958 , it is not necessary to decide this issue.

The legislation

The applicant also sought relief under Part 8 of the Migration Act which allows the review by this Court of certain decisions:

475 (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a) decisions of the Immigration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

(c) other decisions made under this Act, or the regulations, relating to visas.

In this instance, the decision of the first respondent is a judicially reviewable decision within the meaning of subsection 475(1)(c). The grounds upon which a person aggrieved by a decision may seek a review of a decision may be found in section 476:

476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

The applicant submitted that the procedures required by the Migration Act 2105 to be observed in connection with the making of the decision were not observed and were contrary to section 476 (1)(a) of the Act. The applicant's alternative submission was that the decision involved an error of law by incorrectly interpreting or applying the law to the facts contrary to section 476(1)(e).

Factual background

Mr Hu attended the Fudan University in Shanghai Province as a student enrolled in a Bachelor of Science degree between September 1979 and July 1983. As a student, he specialised in laser physics within the Physics Department. After four years of study, the degree of Bachelor of Science was conferred on him. A booklet published by the Australian National Office of Overseas Skills Recognition (NOOSR) entitled Country Education Profiles: China (annexure R to application) indicates that Fudan University is regarded as a "key institution" in the Shanghai Province. The booklet makes a comparative study of Australian and Chinese Degrees and states in relation to Bachelor Degrees from Chinese Universities:

A bachelor degree, requiring four or more years of full-time study, awarded in or after 1981, and endorsed as awarded 'according to the Regulations concerning Academic Degrees in the People's Republic of China' is assessed as comparable to the educational level of an Australian Bachelor degree.

The 'usual occupation' test

The criteria for a visa to be satisfied by this applicant are contained in Part 126 of the Migration Review (1993) Regulations which require the satisfaction of a points system:

126.32 Criteria to be satisfied at time of application (visa - before entry)

126.321 The applicant is of working age.

126.322 If the usual occupation of the applicant is an occupation included in the Occupations Requiring English list, the applicant satisfies the Minister that he or she has the ability to speak English in any situation and to write English in any context.

126.33 Criteria to be satisfied at the time of decision (visa - before entry)

126.331 The applicant has the necessary score when assessed in relation to the visa under Subdivision B of Division 2 of Part 2 of the Act.

The Migration Act provides that points may be allocated for different attributes and assessed against the relevant pool entrance priority and pass marks. On 2 February, 1994, the Minister specified in the Commonwealth of Australia Gazette number GN4 that the pool entrance mark for a Class 126 visa is 95 points and priority and pass marks 100 points.

Applicants for a Class 126 (Independent Entrant) visa must achieve the minimum point score of 95 points in the independent entrant points test. Points are allocated for a range of factors to applicants who have a 'usual occupation' which is defined in regulation 126.13, in relation to an applicant, to have the same meaning as set out in regulation 2.4(4). That meaning is:

an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa or entry permit.

The period for assessing the "usual occupation" of the applicant in this instance is therefore 8 July 1992 to 8 July 1994.

The expression "usual occupation" was the subject of consideration in Morais v Minister for Immigration & Ethnic Affairs [1995] FCA 1074; [1995] 54 FCR 498 where Justice Kiefel said at 500:

The word "occupation" is defined by the Shorter Oxford English Dictionary as: "The being occupied with, or engaged in something; that in which one is engaged; employment, business" and by the Macquarie Dictionary: "One's habitual employment; business, trade or calling". The occupation the regulation is concerned with is clearly not just any undertaking, pursuit, or activity which occupies one's time, but one which has been pursued in the context of employment. An essential feature of such an occupation is the receipt of income or other form of reward, something given or acquired in exchange for the provision of skills or services. A person's occupation would, I consider, ordinarily be understood to refer to that employment, trade or business in which that person is habitually engaged and by which that person earns a livelihood or receives some form of remuneration ... The practical importance of this, in a regulation concerned, as it is expressed, with a person's suitability for employment in Australia in the event of migration is relatively clear. The mere holding of qualifications is not considered sufficiently indicative of prospective employment. The fact however that those qualifications and associated skills have been taken up in the market for them for the requisite period, that an employer or other party has been prepared to pay in some way for them, might furnish a more reliable indication. It may also be seen to overcome any need for an individual assessment of a person's ability to carry out the work, or of their skills.

And, in conclusion, at 501:

In the context of reg 146 I consider the words "occupation ... engaged in ... for gain or reward ..." convey something undertaken, some skill or service provided in consideration of or in exchange for some recompense, something of value given or paid. It does not extend to the acquisition by the person of work-related experience only, preparatory to employment and the provision of which may be seen as itself the gain or reward.

It is apparent from this decision that the term 'usual occupation' is concerned not with the mere possession of skills nor with the mere performance of tasks. Rather, the term is necessarily concerned with the application of skills to tasks in an employment environment. Hence a person trained as a scientist and possessing scientific skills may be remunerated for applying those skills in different environments such as within an electrical engineering environment as in the case of the applicant.

The determination of such an application requires more than a narrow matching process between an applicant's tasks and an Australian Standard Classification of Occupations (ASCO) occupational definition. The sensible and correct approach requires the ascertainment of the skills of an applicant and how those skills are being applied in the workplace for remuneration. This approach is consistent with the object of the term "usual occupation" as enunciated by Justice Kiefel which is to provide a reliable indicator of an applicant's suitability for prospective employment in Australia.

The decision

On the basis of this definition, the only employment engaged in for a period of six months or more within the two year period preceding lodgment of his application was the applicant's employment with Da Tong Electrical Machinery Co. Limited (Da Tong Co). The decision-maker decided accordingly and applied the points test to that work.

The applicant's primary application argued that he was a Research Worker -- not elsewhere classified [ASCO 2999-15] which is described by the guidelines as an occupation which:

Undertakes research in a variety of fields for academics, parliamentarians or other professionals.

The applicant's submission was noted by the decision-maker in his decision:

I note that the submission from the applicant's solicitor states that Mr Hu is not an engineer, but indicates that he should be considered to be a Research Worker. This is based on claims that during his period of employment at the Da Tong Mechanical Electrical Machinery Co., the duties he performed were of such a nature that "such responsibility must involve carrying out research into aspects such as the equipment's suitability for the company's use; the safety standard; the feasibility of manufacturing the equipment." (AB 27)

The decision-maker then proceeded to analyse the main tasks for a Research Worker according to ASCO 2999-15 which include:

. gathering information and data through observation, interviewing, searches of documents or experimentation

. makes preliminary analysis and evaluation of data

. reports findings verbally or in writing

The skill level required for the occupational category of Research Worker is a three or four year degree in the relevant field of knowledge.

The decision-maker concluded, however, that the applicant was not working as a Research Worker but as an engineer:

While I agree that Mr Hu may have been involved in undertaking some field experiments and research work while redesigning the power generator from direct current to alternative current, it is my view that this research was undertaken in the field and was part of the normal duties that would be performed by a (sic) engineer carrying out the task described in his reference letter.

I do not accept that these duties were performed as a Research Worker. (AB 27)

The reference letter to which the decision-maker was referring was provided by Da Tong Co. in support of the applicant's application. From the content of the letter it is apparent that the managers at Da Tong Co. were of the opinion that Mr Hu was one of two engineers responsible for the design and manufacture of a generator:

Since our dominating product -- generator of YEJ series doesn't meet the requirements in quality, we employed in April, 1993 two engineers aiming to better our products.

Mr Hu Ye is one of the engineers responsible for the making and designing of the generator. Through tough experiments, Mr Hu redesigned the original direct current generator into the alternative current generator, which after tests, proves to be reliable in quality, prolonged in usage and thus wins our firm consecutive orders.

.....

With a good command of technology and devotion in his work, Mr Hu is indeed a highly qualified engineer.

The decision-maker extrapolated the applicant's duties as follows:

- to redesign an original direct current generator into an alternative current generator (which after tests, proved to be reliable in quality, prolonged in usage). (AB 27)

The decision-maker was of the view that the tasks performed by Mr Hu at Da Tong Co. and earlier at the Shanghai Medical Laser Instrument Factory were more correctly viewed as the duties of an Electrical Engineer [ASCO 2211-11], and he so determined the applicant's usual occupation. According to ASCO, the decision-maker stated the duties performed by an electrical engineer as including:

. performing tasks covered by the generic title Engineer;

. planning and designing the manufacture and installation of electric power equipment and facilities;

. developing products;

. interpreting specifications, drawings, standards and regulations relating to electrical power equipment and use;

. possibly specialising in research in areas such as power generation and transmission systems. (AB 28)

The Procedures Advice Manual (PAM) provided by the Department to guide decision-makers outlines the guidelines for the occupation of Electrical Engineer. The PAM states that the level of skill required to perform the occupation of engineer in Australia is the possession of a recognised four-year degree in Engineering from a University or College of Advanced Education.

On 24 March 1995 the first respondent wrote to the applicant and notified him that his qualifications needed to be assessed in Australia and that it was the responsibility of the applicant to apply for this assessment by forwarding the enclosed 'Application for Assessment of Education Qualifications' (Form E2) to the Institution of Engineers in Australia. The applicant did so and on 13 June 1995 was advised by the Institution:

The Institution requires applicants for Graduate membership to hold a professional engineering qualification which has been awarded on completion of an engineering course of approved standard in a university or institute of technology.

From the documents you have provided, it appears you are trained as a scientist and not as an engineer, applying your scientific skills in an engineering environment. Your application should therefore be made to the National Office of Overseas Skills Recognition (NOOSR). (AB 30)

Item 7102 in the 1993 reprint of the Schedule 7 to the Migration Regulations states in part:

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

(c) is an occupation in respect of which the applicant has:

(i) a degree, trade certificate or post-trade qualification that is assessed by the relevant Australian authority as meeting Australian educational or training standards for that occupation; or

(ii) experience assessed by the relevant Australian authority to be equivalent to the Australian standards for that occupation;

(d) 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

(e) is an occupation in which the applicant has worked or (on any occasion when not working in the usual occupation) that is closely related to the occupation in which the applicant has worked:

(i) for not less than 3 years, or such longer period as is specified by a CTC or by NOOSR, (except for periods of absence that, in total duration, have not exceeded 12 months) immediately before making the application;

.....

The applicant submitted that he had an occupation which required a three to four year degree, that he has a degree comparable to an Australian degree, and that he has at least three years relevant post- qualification experience. He was at the time of his application 33 years of age and was therefore eligible for 25 points in the age qualification section of the test (Schedule 7 Item 7201).

The applicant submitted that although his occupation of Research Worker is not listed in the Occupations Requiring English list, he has a vocational level of English. The applicant gained his knowledge of English through the reading of numerous research papers and technical material published in English and available to him through his university studies. The applicant submitted that the highly technical nature of the information which he read is indicative of a high level of understanding of the English language. He therefore submitted that he was eligible for 20 points in this category. He had no criminal record and was in good health.

The usual occupation of the applicant

From July 1983 to October 1992 the applicant worked for the Shanghai Laser Instrument Factory, after which he was employed by the Shanghai Optical Fibre Communication Engineering Company until January 1993. In and from April 1993 up to the time of his application for permanent entry, the applicant worked approximately 30 hours per week as an electric-motor designer for Da Tong Co. a town-run small workshop with 10 staff located in Xian Shan, Zhe Jiang.

In 1992 and again in 1993 the applicant applied unsuccessfully for a student visa to Australia. Then in October 1994 the applicant attended an interview at the Australian Consulate General in Shanghai for the purpose of clarifying his 'usual occupation' for his visa application. The interviewer requested further information including documents detailing the applicant's employment details since he left the Laser Instrument Factory. Mr Hu supplied these documents to the Consulate General. Included in the bundle supplied was a document from Da Tong Co. dated 3 November 1994 which stated:

This is to certify that Mr Hu Ye has been engaged as an engineer in our company since April last year. He is responsible for the assistant design of electrical machinery. He is an outstanding engineer (AB 47).

The applicant based his assertion that he was a research worker upon the extensive experience he had in laser research at the Laser Instrument Factory. From the information supplied it appears that in the two years preceding the lodgment of his permanent visa application, Mr Hu had been employed for a period of only three months at the Laser Instrument Factory. He was, however, also employed as an engineer, and undertook research work on the multiple access radio system project, for the Optical Fibre Communications Company. This project required the applicant to carry out research into optic fibres, their uses and applications, and to assist in the implementation of optic fibre communication networks. The applicant submitted that these duties fell within the occupation of Research Worker.

It was further submitted by the applicant that he could be considered to be a Research Worker at Da Tong Co. even though he was engaged as an 'engineer' according to the reference supplied by that company. In that position he was responsible for assisting in the design of machinery and, the applicant submitted, by necessity such responsibility involved carrying out research into matters such as the equipment's suitability for the company's use, the safety standards, and the feasibility of manufacturing the equipment.

It is apparent that the decision-maker made the determination as to the usual occupation of the applicant on the basis of a factual finding that the duties he performed equated to those listed in the ASCO publication for electrical engineers. Prima facie there is no error of law to that stage. The decision-maker then listed the duties performed under that classification in the ASCO publication and stated that the duties listed were some of the duties that the applicant had been performing -- thus apparently confirming his view that the applicant is an electrical engineer. According to the applicant, the error occurred when the decision-maker dealt with the guidelines for electrical engineers and referred to the assessment by the Institution of Engineers that the applicant was a scientist and not an engineer.

The applicant submitted that the decision-maker's finding that he was "not satisfied that Mr Hu performs the full range or complexity of duties normally performed by a professional engineer in Australia" was in error, in that there was a tension between the classification of the applicant as an engineer because he performs some of the duties of an engineer, and the finding that, for the purpose of whether the applicant has enough relevant experience to satisfy the qualifications component, the applicant does not perform the full range of duties of an engineer. This tension could be resolved, the applicant suggested, if the decision-maker had had regard for the fact that it is possible for a person who is not an engineer to perform activities which are performed by engineers.

This seems to be rather circuitous reasoning. It is undoubtedly the case that a lesser qualified person can often perform some of the tasks ordinarily associated with an occupation. Multi-skilling has become a hallmark of the modern day workplace. This concession does not assist the applicant, however, because the fact is that the applicant does not have the requisite skill level, namely an engineering degree, to be regarded as an engineer.

In my view, however, the error that the decision-maker made is that the applicant could never properly have been regarded as an engineer - - he was a physicist. It was made perfectly clear to the decision- maker by the Institution of Engineers that the applicant was not an engineer but a scientist. Rather than pursue this, however, the decision-maker ceased his enquiry at that point and omitted to consider further alternative classifications.

The difficulty is that there exists no classification for scientists as such. The applicant stated that his occupation was Research Worker and he should have been assessed as such. Alternatively, the applicant should have been assessed in accordance with his educational qualification as a physicist.

The decision to put the applicant under the heading of Electrical Engineer was not wrong per se merely because he could not meet the Australian degree qualification. That was indeed the very task of the decision-maker, it being a two tier process. However, the ultimate outcome did depend upon what standard was assessed as being relevant to the applicant. In my opinion, the decision-maker fell into error by employing a reverse reasoning process. He started by classifying the applicant as an engineer because some of the duties performed by the applicant happened to coincide with some of the duties listed for an engineer. But he did not consider the applicant against the more sensible classification of being a physicist, having regard to the fact that his qualification was a Bachelor of Science majoring in physics. Secondly, the decision-maker ignored possible alternatives including obvious scientific alternatives. These two factors amount to errors of law.

When an applicant has a science degree and is working as a scientist in an engineering field, the correct process is to at least look at the possibility that the person is in an occupation other than an engineer, for example Research Worker, Physicist or Other Professional within the ASCO criteria.

The ASCO criteria classify occupations as varied as Apiarist [1401- 35] and Railway Station master/mistress [1599-21]. However, the occupation of scientist is not specifically covered. Thus an in-depth search for an appropriate category for the applicant must be undertaken. In the category of Professional, sub-category Natural Scientists, there exists a category called Physicist [2105-11] which is described as:

-11 PHYSICIST

Studies physical phenomena to extend the knowledge of physics and to develop and improve materials, products, industrial and other processes.

SKILL LEVEL

Education: 3-4 year degree.

TASKS include:

. Performs experiments, tests and analyses to investigate the structure and properties of matter, transformation and propagation of energy, relationships between matter and energy and other physical phenomena, in fields such as mechanics, heat, light, sound, electricity and magnetism, electronics, and nuclear and solid-state physics.

. Conducts experiments to discover and develop industrial, medical, military and other practical applications of laws and theories of physics.

. Maintains and develops standards for measurements such as length and time.

. Applies mathematical techniques to express and analyse observations and to formulate conclusions, and relates conclusions to known laws of physics, or proposes new hypotheses to explain them.

. Prepares or supervises the preparation of, scientific papers and reports.

. May supervise and co-ordinate the work of technical officers and technicians.

. May specialise in one of a number of fields such as atomic, condensed matter, optical, plasma or atmospheric physics. (Exhibit A6 at 46)

There is also the possibility that the applicant may be able to meet the occupational definition for "professional NEC":

2999-99 PROFESSIONALS NEC

This residual grouping covers Professionals not elsewhere classified.

SKILL LEVEL

Education: 3-4 year degree or diploma. (Exhibit A6 page 98)

It is not necessary for me to assess the applicability of the various criteria. The Court is charged merely with the task of assessing whether the approach taken by the decision-maker evinced errors of law. For the reasons stated, I find this to be the case.

There have been a number of cases before the Immigration Review Tribunal which have held that an applicant may hold concurrently more than one usual occupation. In Re Scudder (V91/002470), it was stated:

In that respect the principles also provide the answer to the question posed earlier, as to how a decision-maker goes about choosing an applicant's 'usual occupation' when it appears that there are two or more of them. The answer would seem to be that a decision-maker should choose the occupation that maximises an applicant's chance of entry.

In Re Milton Wong (V92/00440) the Tribunal held:

In Re Scudder, IRT decision no. V91/02470, delivered 14 June , 1991, the Tribunal observed that where the applicant has two or more usual occupations concurrently or sequentially then (sic) both occupations are utilised for a significant proportion of a principal's workload, then the principal has an entitlement to be assessed under the occupation which awards him or her the greatest number of points under the employment qualification.

In Re Tabrizi (V92/00203), the applicant had described his occupation as a Civil Engineer, yet the Tribunal in its decision of 26 February 1993, found that his occupation was in fact that of a Para- professional Engineer or Associate Engineer. The Tribunal also accepted the proposition that a highly skilled person can fill a lower level position.

I agree with the general thrust of these decisions. In other words, an applicant's own description of his or her occupation need not necessarily be correct and the actual duties and qualifications must be considered when deciding what is the correct occupation for the purpose of an application for an entry visa.

The issue was discussed again in a case before the Tribunal Re Huynh (V93/01687) delivered on 7 June 1994, where the Tribunal found that the applicant had three "usual occupations":

In particular, he has conducted research and applied the results of his research to the manufacture of rubber/plastic products. He is also engaged as a 'Technical Adviser', in relation to enterprises not directly connected with his own business nor the activities of polytechnic universities.

It is obvious from the documentation that a discrete and substantive amount of Mr Vo's time is spent in the occupation of Industrial Chemist, in his capacity as a Production Manager in his own enterprise, as a Lecturer and as a Technical Adviser to either enterprise.

Previous Tribunal decisions have found that it has been possible to have more than one "usual occupation". It is a question of fact, based on the evidence before it, for the Tribunal to determine the relevant "usual occupation". In these circumstances, the Tribunal is satisfied that Mr Vo has three "usual occupations", these being Industrial Chemist, University Lecturer and Production Manager.

From this applicant's file it is clear that the decision-maker did not adequately consider whether the applicant qualified for a low skills occupation such as associate engineer. A file note made by the decision-maker that discusses issues raised by the applicant's solicitor stated (AB 9)"

i) that we should have considered Mr Hu's occupation as either a "Research Worker or a low skills occupation - Associate Engineer"

......

I do not accept that Mr Hu has carried out all the tasks of an Electrical Engineering Associate (ASCO 3201-11) either, and therefore the same points for skill apply. The reference to this issue is in the solicitor's submission of 18 January 1995, where they states (sic) "Both employers had involved him in the design of equipment, which is one of the duties of an Associate Engineer". It is noted that one of the duties of an Engineer is also the design of equipment. In considering ALL the duties performed by the applicant, I am still of the view that the usual occupation assessment we have made is correct. (emphasis in original)

However, on the decision record itself, there is no mention of any such consideration of alternative occupation classifications.

Failure to observe procedure

There are other matters which support this interpretation. The policy guidelines issued by the department and set out in Migration Series Instruction No. 98 - The General Points Test (1 June 1995 edition) states in relation to the determination of an applicant's usual occupation:

4.2.3 In classifying an applicant's usual occupation(s) it is important that the decision-maker look beyond the title of the occupation given by the applicant or their employer, to actual duties that are performed.

Similarly, the PAM and the Immigration Review Tribunal (IRT) have recognised in a number of authorities that it is possible for an applicant to hold more than one usual occupation:

In some cases an assessment from NOOSR or DIR may specify that although the applicant's qualifications are not acceptable at the level applied for, they are acceptable at a lower skills level. For example not acceptable as an engineer but acceptable as an engineering technician. In such cases, the applicant's ASCO occupational classifications should be amended and points awarded accordingly to the acceptable qualifications level as advised by the assessing authority.

Furthermore, the Regulations themselves recognise albeit indirectly that an applicant may hold more than one occupation (Item 6102 (f), Schedule 6, Migration Regulations Reprint 1995):

(f) is an occupation:

(i) in which the applicant has worked; or

(ii) is closely related to the occupation in which the applicant has worked.

Exhibit A4 in these proceedings being part of PAM's Assessment of Skills and Qualifications, states in part that NOOSR is responsible for (at 5):

... the planning and policy direction of professional skills and qualifications assessment in Australia. NOOSR works through a system of expert and advisory panels, autonomous examining councils and referrals. The expert and advisory panels:

. make comparative and competency assessments of overseas and Australian qualifications;

. provide expert advice to State or Territory registration authorities and professional bodies to enable them to make comparative assessments of overseas qualifications;

. assess individual applications for skills and qualifications assessment.

Subdivision AB of Part 2 Division 3 of the Act entitled 'Code of procedure for dealing fairly, efficiently and quickly with visa applications' prescribes the responsibilities of decision-makers under the Act. Sections 54 and 55 command:

54 (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2) For the purpose of subsection (1), information is in an application if the information is:

(a) set out in the application; or

(b) in a document attached to the application when it is made; or

(c) given under section 55.

(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55 (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

The decision-maker must not by a process of factual findings on particular elements of the material provided in support of the application, foreclose reasonable speculation upon the likelihood that the applicant is qualified for entry on the basis of another occupation from consideration of the whole of the material presented.

The decision record reveals that the application was refused because the applicant's educational qualification were not recognised by the Institution of Engineers. Whilst the applicant may not be considered as an engineer in Australia, there is no evidence that the decision- maker assessed the applicant as having another occupation such as Research Worker, a physicist, or a lower skills occupation such as Associate Engineer. As I read his decision, the decision-maker failed to take into consideration the fact that the applicant is entitled to have one or more usual occupations concurrently. It would appear that undue weight has been placed on PAM instead of the Act and Regulations.

Relief

I declare pursuant to section 481(1)(c) of the Migration Act that the applicant's application was not determined according to law. The decision of the first respondent is set aside pursuant to section 481(1)(a). The applicant's application is remitted to the respondents for redetermination according to law. The costs of the applicant are to be paid by the second respondent.

For the applicant Ms L. McCallum instructed by Barlow & Co Solicitors

For the respondents Mr G.T. Johnson instructed by Australian Government Solcitor

Date of hearing 8 August 1996

Date of judgment 4 March 1997