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Akbar v Minister for Immigration & Anor [2009] FMCA 279 (8 May 2009)

Last Updated: 11 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AKBAR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Migration Review Tribunal – Skilled Independent Overseas Student Visa – whether entitled to points for occupation in demand – whether nomination of occupation in demand must be made at time of application – whether entitled to bonus points – whether in a skilled occupation – whether accredited as professional interpreter or translator – whether jurisdictional error.

WORDS AND PHRASES – Computing professional – whether “specialising in” particular applications.

WORDS AND PHRASES – “is” – “is accredited”.

Migration Act 1958 (Cth), ss.65, 92-96, 347, 350, 476, Part 2, Division 3, subdivision B
Migration Regulations 1994 (Cth), regs.1.03, 2.26B, Schedule 1, item 1128CA, Schedule 2, cl.880.222, Schedule 6A, items 6A71, 6A72 and 6A81

Ahmed & Ors v Minister for Immigration and Citizenship & Anor (2008) 219 FLR 30; [2008] FMCA 811
Anthony Lagoon Station Pty Ltd & Anor v Aboriginal Land Commissioner & Ors (1987) 15 FCR 565
Attorney-General v Churchill’s Veterinary Sanatorium, Limited [1910] 2 Ch 401
Barnes v Brown [1909] 1 KB 38
Bass v Permanent Trustee Company Limited & Ors (1999) 198 CLR 334; [1999] HCA 9
Bellerby v Heyworth & Anor [1909] 2 Ch 23
Bellerby v Heyworth & Anor [1910] AC 377
Byrne v Rogers [1910] 2 IR 220
Chen v Minister for Immigration & Anor [2008] FMCA 1285
Eastman v Commissioner for Superannuation (1987) 74 ALR 221
Huckle v Lowestoft Corporation [1943] 1 KB 59
Jiang v Minister for Immigration & Anor [2007] FCA 907
Jiang v Minister for Immigration & Anor [2007] FMCA 215
Kimpson v Markham [1921] 2 KB 157
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
Ndungu v Minister for Immigration & Anor (2007) 213 FLR 123; [2007] FMCA 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Prestcold (Central), Ltd v Minister of Labour [1969] 1 All ER 69
Rana v Human Rights and Equal Opportunity Commission & Anor (1997) 74 FCR 451
Royal College of Veterinary Surgeons v Collinson [1908] 2 KB 248
Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 108 ALR 77
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZHVL v Minister for Immigration & Citizenship [2008] FCA 356
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
Williams v Tredegar Iron and Coal Co, Ltd [1948] 1 All ER 236

Commonwealth of Australia Gazette, No GN 15 (14 April 2004)
DC Pearce and R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood : Lexis Nexis Australia, 2006)
Shorter Oxford English Dictionary on Historical Principles (Vol II) (Oxford: Oxford University Press, 1973)

Applicant:
SAMEEN AKBAR

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
PEG 193 of 2008

Judgment of:
Lucev FM

Hearing date:
2 April 2009

Date of Last Submission:
2 April 2009

Delivered at:
Perth

Delivered on:
8 May 2009

REPRESENTATION

Counsel for the Applicant:
Mr P Mugliston

Solicitor for the Applicant:
Shahid Shakur

Counsel for the First Respondent:
Mr R C Hooker

Solicitor for the First Respondent:
Australian Government Solicitor

ORDERS

(1) The application is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 193 of 2008

SAMEEN AKBAR

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant, Mr Akbar, was refused a class DD, subclass 880 Skilled Independent Overseas Student Visa[1] because he did not meet the relevant criteria for grant of the Skilled Student Visa.
  2. Mr Akbar applies to this Court under s.476 of the Migration Act 1958 (Cth)[2] for judicial review of the Migration Review Tribunal[3] decision[4] affirming the Minister’s delegate’s decision[5] to refuse Mr Akbar’s application for a Skilled Student Visa.

Issue

  1. The primary issue in this application is whether the Tribunal committed jurisdictional error in the Tribunal Decision affirming the Delegate’s Decision to refuse Mr Akbar’s application for a Skilled Student Visa, and in particular whether it did so by failing to assess Mr Akbar as eligible for additional points in the points test for the Skilled Student Visa in the following categories:
    1. occupation in demand; and
    2. bonus points.
  2. A significant secondary issue arises, that is whether Mr Akbar was “specialising in” particular computer specialisations.

Factual overview

  1. Mr Akbar is a national of Pakistan who first arrived in Australia on 16 August 2004 as the holder of a student visa Class TU, subclass 573. He has held certain other substantive and bridging visas subsequent to that visa.
  2. On 13 March 2007, Mr Akbar applied for a Skilled Student Visa.[6]
  3. On 18 February 2008 the Delegate’s Decision was to refuse Mr Akbar a Skilled Student Visa on the basis that he was five points short of the “points test” for skilled migration.[7] Mr Akbar had claimed 5 points for occupation in demand and 5 bonus points – both of which were refused.[8] Thus it was found that Mr Akbar did not satisfy cl.880.222 of Schedule 2 to the Migration Regulations 1994 (Cth)[9] because he did not have the qualifying score under Subdivision B of Division 3 of Part 2 of the Migration Act.[10]
  4. The breakdown of points obtained by Mr Akbar at the time of primary assessment in the Delegate’s Decision was as follows:

Skill 60

Age 30

English Language Ability 20

Specific Work Experience 0

Occupation in Demand / Job Offer 0

Australian Qualification 5

Bonus Points 0

Regional Australia 0

Total 115

  1. On 25 February 2008, Mr Akbar applied under s.347 of the Migration Act for review of the Delegate’s Decision by the Tribunal.
  2. On 26 November 2008, the Tribunal affirmed the Delegate’s Decision, finding that Mr Akbar was not entitled to the grant of a Skilled Student Visa.[11]
  3. At all material times the relevant pool and pass marks set by Gazette GN 15 of 14 April 2004 were 120 points. As Mr Akbar did not achieve the gazetted pool or pass mark, the application for a Skilled Student Visa was refused.
  4. On 5 December 2008 Mr Akbar brought the present application for judicial review of the Tribunal Decision on 10 grounds.

Tribunal Decision

Matters referred to by the Tribunal

  1. The Tribunal’s decision was to reject the application for review and affirm the Delegate’s Decision, thereby finding that Mr Akbar was not entitled to the grant of the Skilled Student Visa.[12]
  2. In arriving at its decision the Tribunal awarded to Mr Akbar the same points score, both overall and for each of the relevant factors, as were awarded at the time of the Delegate’s Decision.[13]
  3. In arriving at its decision the Tribunal took into account the relevant legislation and policy, and set out the legislation and policy to which it had regard.[14]
  4. The Tribunal set out the documentary evidence to which regard was had, namely the materials on the Tribunal’s case file and the Department of Immigration and Citizenship’s[15] case file.[16]
  5. The Tribunal held a hearing at which Mr Akbar appeared by video with his migration agent.[17] Subsequent to that hearing various facsimile claims were submitted to the Tribunal by Mr Akbar on 16 and 24 November 2008, to which the Tribunal also had regard in making its decision.[18]
  6. The Tribunal also set out Mr Akbar’s visa history since his first arrival in Australia on 16 August 2004.[19]
  7. The Tribunal noted that the Skilled Student Visa application had a nominated occupation of Management Consultant but that the nominated code was that for “Computing Professionals nec”.[20]
  8. The Tribunal set out Mr Akbar’s employment history, including his employment as a computer professional, and as a dispatcher by GA Chambers from November 2004 to January 2007, and a cleaner by Hungry Jacks from September 2004 to February 2005.[21]
  9. The Tribunal noted that Mr Akbar was not married.[22]
  10. The Tribunal noted that the Department’s file contained the following:
    1. evidence that Mr Akbar had completed a Bachelor of Commerce (Information Technology) at Curtin University of Technology in a full time course taken over at least two years completed by 8 December 2006;
    2. evidence that Mr Akbar had received a positive skills assessment from the Australian Computer Society[23] dated 3 May 2007 which stated that on the basis of his Bachelor of Commerce from Curtin University he had been assessed as suitable for migration under ASCO Code 2231-79 (ICT Recent Graduate), that being the skilled occupation that Mr Akbar had apparently indicated to the ACS that he intended to nominate in a general skilled migration application;
    1. evidence that Mr Akbar had obtained a score of at least 6.0 in each of four test items in an IELTS test taken on 20 January 2007; and
    1. a reference from Telstra stating that Mr Akbar was employed from 5 February 2007.[24]
  11. The Tribunal noted the Delegate’s Decision and the finding of a total points score of 115 points being less than the 120 points required for the application to continue.[25]
  12. The Tribunal also noted the application for review and a letter dated 4 November 2008 in which Mr Akbar provided a statement asserting that the Delegate’s Decision was in error in not taking into account his employment as a cleaner and dispatcher as he considered that cleaner (ASCO Code 9111-79) and dispatcher (ASCO Code 6153-15) were specified “skilled occupations” at the time of his application for migration to Australia.[26]
  13. The Tribunal noted that Mr Akbar gave oral evidence at the hearing. He confirmed his qualifications and employment history.[27]
  14. The Tribunal went through the items of the points test with Mr Akbar at the hearing. At hearing, the area of disagreement was in relation to the refusal in the Delegate’s Decision to award no points for six months of employment in a skilled occupation under the bonus points item.[28] Mr Akbar claimed that being a cleaner and being a dispatcher were both skilled occupations.[29]
  15. Mr Akbar was granted seven days in which to make a further submission on the issue of skilled occupations, but by facsimile dated 14 November 2008 from his agent, indicated that no further submissions in support of the application for review would be filed and that Mr Akbar relied on submissions made earlier in the Tribunal proceedings.[30]
  16. The Tribunal then noted the receipt of facsimile submissions on 16 November 2008 from Mr Akbar’s agent which it summarised as follows:
  17. The Tribunal then noted receipt of a further facsimile submission from Mr Akbar, dated 24 November 2008, stating as follows:

Tribunal findings

  1. The Tribunal then set out its findings.[33]
  2. The Tribunal referred specifically to the relevant provisions of the Migration Act and Migration Regulations and the relevant applicable points pass mark of 120 points which Mr Akbar had not met in the Delegate’s Decision.[34]
  3. The Tribunal reassessed the factors of the points test as applied to Mr Akbar, as it was required to do.[35]
  4. For present purposes it is relevant to observe that in relation to the following factors:
    1. skill;
    2. age;
    1. English language ability;
    1. specific work experience;
    2. Australian qualification; and
    3. regional Australia,

there is no dispute or challenge to the points assessed by the Tribunal (or for that matter in the Delegate’s Decision).[36]

  1. The two points assessment areas which were ultimately in contention before the Tribunal were “occupation in demand” (as it is set out above),[37] which the Tribunal called “Skills targeting”, and “bonus points.”[38]
  2. In relation to occupation in demand the Tribunal found as follows:
  3. In relation to bonus points the Tribunal found as follows:
  4. The Tribunal went on to find that the points score to be awarded to Mr Akbar on review was 115 points.[42] He therefore did not meet the specified pool or pass mark for grant of the Skilled Student Visa which was 120 points.[43]

Grounds of application

  1. Each of the grounds of the application are separately set out and considered hereunder.[44]

Further evidence

  1. Mr Akbar swore an affidavit on 3 March 2009 in relation to the application.
  2. In anticipation of the tender of Mr Akbar’s affidavit the first respondent gave notice of its intention to object, at least to those parts of Mr Akbar’s affidavit seeking to advance further facts to support what Mr Akbar asserts is the decision that the Tribunal ought to have reached.
  3. By consent, paragraphs 1-9 and 19 of the affidavit were admitted into evidence on the hearing of the application, essentially as matters uncontested and going to what was before the Tribunal on the hearing of the application before it.[45] The remaining paragraphs of the affidavit were not sought to be admitted into evidence. Going, as those paragraphs did, to factual issues which were matters for the Tribunal to determine on the merits, the remaining paragraphs would not have been admissible in any event.[46]

Jurisdictional error

  1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[47] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    1. ignores relevant material; or
    1. relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[48]

Assessment of points for visa

  1. The Skilled Student Visa is an onshore permanent visa for eligible overseas students which allows tertiary-qualified overseas students to apply for and have their visas granted in Australia.[49]
  2. For the Skilled Student Visa sought by the applicant[50] the applicable criteria are found in subclass 880 of Schedule 2 to the Migration Regulations. The criteria to be satisfied include, in cl.880.222 of the Migration Regulations, that the applicant has a “qualifying score” when assessed pursuant to the statutory framework enacted under Part 2, Division 3, subdivision B of the Migration Act.[51]
  3. Item 1128CA of Schedule 1 to the Migration Regulations sets out the requirements for making a valid application for the Skilled Student Visa. These include that an applicant seeking to satisfy the primary criteria for the Skilled Student Visa must nominate a ‘skilled occupation’[52] and that the application be accompanied by a declaration from the applicant that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.[53]
  4. The term ‘Skilled occupation’ is defined in reg 1.03 of the Migration Regulations and means an occupation that is specified in an instrument in writing (formerly described as a Gazette Notice) as a skilled occupation for which a number of points specified in the instrument are available. Regulation 1.03 of the Migration Regulations also contains a definition of ‘relevant assessing authority’. It states that a ‘relevant assessing authority’ means a person or body specified under reg 2.26B of the Migration Regulations.
  5. The Migration Act sets out a ‘points system’ under which applicants for particular kinds of visas may be given a score based on points for particular attributes, which is then compared to ‘pool’ and ‘pass’ marks which the Minister sets from time to time.[54] The prescribed attributes or ‘qualifications’ and points for each are set out in the Migration Regulations.[55] If the applicant’s score is more than or equal to the pass mark, the applicant has received the ‘qualifying score’. If it is less than the pass mark, but greater than or equal to the pool mark, the application remains in a pool for up to 24 months, waiting for a lower pass mark.[56]
  6. Section 350 of the Migration Act requires that the Tribunal, in relation to a points assessment, must consider the Migration Regulations and the pool and pass marks in force at the time of the delegate’s assessment (primary assessment) and as in force at the time of this assessment (review assessment) and apply whichever are more favourable to the applicant. The wording of the different ‘qualifications’ in Schedule 6A to the Migration Regulations sets out the dates or periods on or over which certain facts or circumstances need to be established.
  7. In this case the determination of a “points score” for the applicant required the Tribunal to assess points by reference to Schedule 6A of the Migration Regulations for eight factors. The points assessment for the factors was undertaken by the Tribunal, and the points were then aggregated.[57]

Consideration of grounds of application

  1. Each of the grounds of the application are separately set out and considered hereunder.

Ground 1

  1. Ground 1 of the application is as follows:
  2. An assertion that a Tribunal on merits review failed to undertake a “proper, genuine and realistic” review does not, of itself, invoke a ground of jurisdictional error. Such a ground can only be determined in the light of the success or otherwise of other grounds,[58] and even then it does not necessarily mean that the Tribunal did not undertake a proper, genuine and realistic review. As the Court has previously observed the use of the conjunctive “and” in this ground of review as opposed to the disjunctive “or” makes it more difficult for the ground to be established.[59]
  3. In any event, on any reading of the Tribunal’s decision, it is clear that the Tribunal considered all matters rendered mandatory by the Migration Act and Migration Regulations and otherwise properly, genuinely and realistically undertook merits review of the Delegate’s Decision.
  4. This ground of the application is not made out, discloses no jurisdictional error, and therefore fails.

Ground 2

  1. Ground 2 of the application is as follows:
  2. The alleged errors of interpretation are not particularised. No particular foundation for the Court to find the presence of jurisdictional error is set out. The ground is not consistent with what was argued before the Tribunal, based on the Tribunal Decision. The only issues ultimately taken by the applicant before the Tribunal were particular to the occupation in demand and bonus points factors, not the interpretation of cl.880.222 of the Migration Regulations generally or the general points test. Likewise in the submissions put before this Court. To the extent that some form of error (whether jurisdictional or otherwise) is asserted in relation to the manner in which the Tribunal dealt with the occupation in demand and bonus points factors those matters are addressed specifically in other grounds below.[61]
  3. This ground of the application therefore fails as it relates to the alleged errors of interpretation in relation to cl.880.222 of the Migration Regulations and “the general points test”. For reasons set out below it also fails in relation to the occupation in demand and bonus points factors. [62]

Ground 3

  1. Ground 3 of the application is as follows:
  2. There is no dispute that:
    1. Mr Akbar clarified at the Tribunal hearing that the answer to question 54 of the Skilled Student Visa application, which asked “What is your nominated occupation?” and to which Mr Akbar responded “Management Consultant”[65] was not correct and that the correct answer was ‘Computing Professional’;[66] and
    2. the Tribunal erred in finding that “the visa Applicant did not claim any points for an occupation on MODL in his primary application”[67] as Mr Akbar in his primary application in question 71 “Points Test” did claim 5 points for the occupation in demand factor.[68]
  3. Mr Akbar submitted to the Tribunal that he was entitled to a further 5 points for his nominated occupation “Computing Professional ASCO Code 2231-79”,[69] and referred to the MODL which became effective on 30 July 2007 and was current as at 17 May 2008.[70]
  4. Mr Akbar also submitted to the Tribunal that he was a Computing Professional specialising in C#, Oracle and .Net technologies, and that all of those occupations had been and were currently (at the time of the Tribunal’s consideration) on the MODL.[71] Mr Akbar directed the Tribunal to information pertaining to his employment[72] including an offer of employment, employment contract with position description attached, and a reference, dated 16 September 2008, 19 September 2008 and 31 October 2008, respectively.[73] Mr Akbar said that under item 4 “Nature and Scope” in the “Position Description”[74] the Oracle, C# and .Net are among the computing specialisations that are required as knowledge and experience for the position he then held of Information Systems Developer.[75]
  5. Mr Akbar also submitted to the Tribunal that the ACS had assessed his computing professional skills under ASCO Code 2231-79 as suitable for migration under ASCO 2231-79 (ICT Recent Graduate).[76]
  6. For the above reasons Mr Akbar argued that he was qualified to be awarded 5 points for an occupation, namely computing professional, which was on the MODL.
  7. The first respondent admits that the Tribunal made an error in saying that the applicant did not claim any points for an occupation on MODL, but says the admitted error on the part of the Tribunal:
    1. was not material to the Tribunal’s ultimate determination on merits review; and
    2. did not, in any event, constitute jurisdictional error.
  8. The first respondent says that the Tribunal, despite its incorrect statement about Mr Akbar’s points claim, went on to consider whether his nominated profession was in fact on the MODL, and the Tribunal noted that:
    1. whilst the MODL did include a number of occupations which formed part of “Computer professional ASCO 2231-79”, those occupations were for specialised positions which Mr Akbar had not claimed in his application;[77]
    2. Mr Akbar had been assessed by the ACS as “Computer Professional (ICT Recent Graduate)” but that was an occupational category which did not appear on the MODL;[78]
    1. ACS noted in the assessment when it considered an applicant was qualified in one of the specialties;[79] and
    1. the MODL did not include the “very broad categorisation” of ‘Computer Professional’ which Mr Akbar nominated in his application.[80]
  9. The first respondent says that the Tribunal, in concluding that the evidence before it did not support Mr Akbar’s nominated profession being on the MODL:
    1. made an assessment applying the evidence to the relevant statutory provisions; and
    2. that that function fell within its jurisdiction and cannot constitute jurisdictional error.
  10. The MODL as at 30 July 2007 and 17 May 2008 was considered by the Tribunal. For present purposes it is necessary to only set out the MODL as at 17 May 2008, and then only in part, as follows:

Professionals ASCO Code

Chemical Engineer 2129-17
Civil Engineer 2124-11
Computing Professional – specialising in CISSP * 2231-79
Computing Professional – specialising in C++/C#/C * 2231-79
Computing Professional – specialising in Data Warehousing 2231-79
Computing Professional – specialising in Java * 2231-79
Computing Professional – specialising in J2EE * 2231-79
Computing Professional – Linux 2231-79
Computing Professional – .Net technologies 2231-79
Computing Professional – specialising in Network
Security/Firewall/Internet Security * 2231-79
Computing Professional – specialising in Oracle * 2231-79
Computing Professional – specialising in PeopleSoft * 2231-79
Computing Professional – specialising in SAP * 2231-79
Computing Professional – specialising in SIEBEL * 2231-79
(especially Siebel Analytic)
Computing Professional – Solaris 2231-79
Computing Professional – Unix 2231-79
Dental Specialist 2381-13
Dentist 2381-11[81]
  1. The MODL distinguishes between specialist and non-specialist occupations in demand. So, for example, it refers to non-specialist positions such as “Computing Professional – Solaris”, “Computing Professional – Unix” and “Computing Professional - .Net technologies”, and specialist positions such as “Computing Professional – specialising in C++/C#/C *” and “Computing Professional – specialising in Oracle *”. In addition, it is apparent that in regard to computing professionals specialising in particular matters that a number of different computing professional specialisations are listed.
  2. A similar distinction appears in relation to other categories of occupation. Thus the MODL refers to:
    1. “Dentist” and “Dental Specialist” distinguishing between a general dentist and a dental specialist, but without particularising any dental specialisations (as has been done for Computer Professionals); and
    2. two categories of engineer, namely, “Chemical Engineer” and “Civil Engineer”.
  3. Significantly, the MODL does not refer to a stand alone or general category of “Computing Professional”, or even “Computing Professional – Specialist” in the same way that it does for “Dentist” and “Dental Specialist”.
  4. As the Tribunal noted the MODL is a Federal Legislative Instrument under the Migration Regulations.[82] In this case, at least in relation to “Computing Professional”, it distinguishes between specific categories without specialisation and various specialisations, and it is those specified categories and specialisations which are the “occupation in demand”, not some other computing specialisation or category, or a general category of computing professional. This is a case where specific mention of the specialisations and categories referred to in relation to “Computing Professional” impliedly excludes other specialisations, categories and a general category of “Computing Professional”.[83] Thus, simply being a “Computing Professional”, or being a “Computing Professional” in a specialisation not mentioned, is not sufficient to come within the terms of the MODL.
  5. The interpretation of the MODL was specifically considered by the Tribunal, in arriving at its finding that the MODL did not include the category of “Computing Professional (ICT Recent Graduate)” or a broad category of “Computing Professional”.[84]
  6. The Tribunal also took into account that the ACS did not indicate that the applicant was qualified as a specialist.[85]
  7. The function of assessing the facts and applying the statutory criteria to them was a function within the Tribunal’s jurisdiction, and in relation to which the Tribunal, in making the above findings, does not appear to have made any error, let alone a jurisdictional error.
  8. The Tribunal also found that Mr Akbar’s claim of specialisation was not made until after the date of the application, and therefore he had not nominated a MODL in his application. The requirement to nominate a MODL in the application is specified in Item 6A71(a) of the Migration Regulations which requires that the occupation in demand, that is, the relevant computing professional specialisation or category, be “nominated” in the “application”. Mr Akbar did not do so, but rather nominated “Computing Professional” without any specialisation or category in his application.[86] Importantly, there was no submission that at the time of the application Mr Akbar was a Computing Professional in one of the specialisations or that the occupation should have been Computing Professional in one of the specialisations.
  9. That the nomination of the occupation in demand must be made at the time the application, in this case the Skilled Student Visa application, is first made is confirmed by Item 6A71(b) of the Migration Regulations which specifies that the applicant must have an offer of full time employment in the occupation in demand, or a closely related skilled occupation, in an organisation with ten fulltime employees at all times in the 24 months “immediately before the day on which the application was made”. The quoted phrase can only possibly refer to the application as originally made. Thus, when Item 6A72 of the Migration Regulations refers to an “application” nominated as a MODL in the “application” that likewise must refer to the application as originally made. The Migration Regulations must be interpreted by presuming that the relevant words have been used consistently,[87] and here where the:
    1. plain meaning applies to the application as originally made; and
    2. in the absence of any indication that the application is intended to refer to a subsequently amended application,

the Tribunal’s interpretation was correct and properly applied to the facts resulting in the conclusion that there was no claim to be employed in any capacity of specialisation until after the application for the Student Skilled Visa was made on 13 March 2007. Indeed, it is clear that the employment from which Mr Akbar’s claim to be a Computer Professional specialising in three specialties – C#/, Oracle and .Net technologies, only commenced on 8 September 2008, almost 18 months after his Skilled Student Visa application was made.[88]

  1. For the reasons set out above,[89] Item 6A71 (as well as Item 6A72) of the Migration Regulations required nomination of an occupation in demand at the time the application was made. Mr Akbar could not have made that nomination at that time because he was not employed in an occupation in demand at the time he made his Skilled Student Visa application, and would not be so employed for almost a further 18 months. The Tribunal directed itself to, and answered the correct question, namely what was the nominated occupation in the application, rather than dealing with the wrong issue identified by Mr Akbar, that being what he claimed to be his computing specialisations some 18 months later.
  2. The Tribunal’s Decision contains no error, let alone jurisdictional error in this regard.
  3. If, contrary to what the Court has determined above, the Tribunal committed jurisdictional error by failing to consider whether Mr Akbar was “specialising in” the computer professional specialisations claimed by him, the Court is entitled to consider whether prerogative relief would be granted in the exercise of the discretion to do so. [90] That raises the question of what constitutes “specialising in” and whether Mr Akbar was “specialising in” the computer professional specialisations claimed by him.
  4. Specialisation is the “action or process of specialising or of becoming specialised” in employment or by a course of study; thus to specialise is to “engage in special study or some special line of business” or to “develop in a special direction.”[91]
  5. Where a person states that he is a “specialist”, “that must mean a specialist in something”.[92]
  6. A series of cases in late Edwardian times involving veterinarians and dentists[93] resulted in the House of Lords eventually determining that the words “specially qualified” referred to qualification by diploma, certificate or other hallmark and not to competence or skill.[94] In Collinson a notice describing a person as a “canine specialist. Dogs and cats treated for all diseases” was held to mean “this man says he is a specialist in the diseases of dogs.”[95] Later in Williams v Tredegar Iron and Coal Co, Ltd in relation to workers compensation legislation establishing a medical board to consist of “specially qualified medical practitioners” it was held that “‘Specially’ obviously means specially qualified in relation to the diseases in question”;[96] while in Prestcold (Central), Ltd v Minister of Labour it was said that “a specialist is somebody who has more than normal qualifications in the activity in question.”[97]
  7. What evidence was there that Mr Akbar was, as he claimed, “specialising in” C#/, Oracle and .Net technologies, or that he was a “Computing Professional - .Net technologies” as that occupation is described in the MODL?
  8. There is no evidence that Mr Akbar was “specially qualified” by reason of completion of his Bachelor of Commerce (Information Technology) in any one of his claimed specialisations. Rather, the contrary is the case. There is no evidence of any specialised study in the Bachelor of Commerce (Information Technology) undertaken by Mr Akbar. Further, the ACS assessment does not indicate that Mr Akbar is “specialised”, or a person “specialising in” some area. Rather it indicates that he is simply a recent graduate.[98] The Tribunal considered that if the ACS considered Mr Akbar to be a specialist that would have been noted in the ACS assessment.[99] Furthermore, it is relevant to note that Mr Akbar did not seek to be assessed by the ACS as a specialist but rather as an ICT Recent Graduate under the ACS Code 2231-79 for Computer Professionals, that being the skilled occupation that he indicated to the ACS that he intended to nominate in his Skilled Student Visa application.[100]
  9. There is no evidence Mr Akbar specialised in any of the three claimed specialisations prior to being employed by EFTel, and, indeed, no such submission was made.
  10. Was there then any evidence that Mr Akbar was working as a specialist in any of the three claimed specialisations whilst at EFTel? The documents relied upon for the submission that Mr Akbar was a specialist consist of his offer of employment, employment contract with position description, and a reference from the Information Systems Manager at EFTel.
  11. The offer of employment is unremarkable: confirming Mr Akbar’s contract for a role as Information Systems Developer which had commenced on 8 September 2008 (the offer being made in writing on 16 September 2008).[101] The employment contract confirms employment as an Information Systems Developer.[102] It indicates that the position level is “Advance Role (A2)”.[103] What is meant by “Advance Role” is not explained. It is said that the primary duties are to be in accordance with the job description, and that Mr Akbar was required to learn new information and to “keep up to date in your areas of expertise and in matters generally relating to your work, the industry and the community.”[104] No area of expertise is identified in the contract of employment. It is also possible that the description of primary duties and responsibilities is a generic one applying to persons both with and without particular areas of expertise. Mr Akbar’s gross annual base salary is said to be $43,500, plus the mandatory 9% superannuation. In addition he is provided with an ADSL connection to home (if available) and a $500 per annum professional development allowance. The level of remuneration is not obviously consistent with a person with a particular professional computing specialisation.
  12. The position description identifies the position as Information Systems Developer and its purpose as being to “increase the value obtained from EFTel products, through software and database systems development”.[105] The position description sets out the “Knowledge and Experience” required for the position under the heading “Nature and Scope”, and it is these matters that were specifically referred to as evidence of specialisation in the submissions made to the Tribunal by Mr Akbar.[106] Under the heading Knowledge and Experience the following appears:
  13. There is nothing in the description of knowledge and experience which indicates that Mr Akbar was specialising in any of the matters referred to therein. No doubt he was working on and in relation to those matters, but that is not evidence of his “specialising in” any of those matters, or any of the specialisations claimed by him and referred to in the MODL.
  14. The reference provided by the Information Systems Manager of EFTel is likewise lacking in any evidence that Mr Akbar specialised in any of the three specialisations claimed by him and referred to in the MODL. Rather, the reference indicates that he “assisted in the development and improvement of numerous internal products utilising Oracle PL/SQL, ASP.Net and other related technologies.”[108] There is no evidence that Mr Akbar’s assistance in development or utilisation of technologies constituted specialisation in any of them. Likewise there was no evidence before the Tribunal that Mr Akbar was employed in the occupation of:
    1. “Computer Professional - .Net technologies” which appears in the MODL as a separate occupational category, without reference to specialisation; or
    2. “Computing Professional – specialising in Network Security/Firewall/Internet Security”, a matter not raised before the Tribunal, but raised, for the first time, in submissions before this Court, and of which there was no evidence before the Court.[109]
  15. On an overall assessment of the evidence, it is clear that:
    1. there is no express statement that Mr Akbar was “specialising in” any one of or more of the three claimed specialisations;
    2. no specialisation can properly be implied; and
    1. Mr Akbar’s qualifications and experience do not meet the description of any of the relevant occupations in the MODL.
  16. Thus, even if the Tribunal did commit jurisdictional error as alleged by Mr Akbar in failing to consider his claim of specialisation, consideration of that claim would, in the Court’s view, have resulted in the same outcome by reason of the fact that Mr Akbar was not a person “specialising in” any one of the three specialisations claimed, or otherwise employed in any relevant occupation in the MODL. For that reason, even if the Court had come to the conclusion, which it has not, that the Tribunal committed jurisdictional error, it would have exercised its discretion to refuse relief in relation to this ground, in any event.[110]

Ground 4

  1. Ground 4 of the application is as follows:
  2. No written submissions were made in relation to this ground, and when pressed as to whether this ground was relied upon by Mr Akbar, his counsel indicated that he “simply won’t be providing any further comment in relation to those. We just simply include them in the application.”[112]
  3. The first respondent submits that this ground fails for four reasons:
    1. the argument that the Mr Akbar’s positions as a cleaner and dispatcher were “skilled occupations which should have accrued five points” was formally abandoned in written submissions lodged with the Tribunal after the hearing;[113]
    2. the attribution of weight to the evidence and other material before it is a task pre-eminently for the Tribunal within its own exercise of jurisdiction;[114]
    1. Mr Akbar’s work as a cleaner and dispatcher cannot fairly be classified as a “skilled occupation” for the purposes of reg.1.03 of the Migration Regulations; and
    1. the assertion that the Tribunal erred “in not allowing the applicant to develop his argument” is not elaborated upon and cannot, in any event, be sustained on the material in the Court Book.
  4. The Court agrees with the submission of the first respondent. In particular, the Court finds that the Tribunal was entitled to inform Mr Akbar that:
    1. it did not accept his claim that his employment as a cleaner and dispatcher were “skilled occupations for migration purposes”;[115] and
    2. cleaner and dispatcher were not occupations “on the list of skilled occupations”.[116]
  5. There was no evidence before the Tribunal capable of satisfying it that this ground could succeed. There was, in the circumstances, no jurisdictional error by the Tribunal, and this ground of the application fails.

Grounds 5-9

  1. Grounds 5-9 of the application are as follows:
  2. The first respondent submits that all of these grounds advance complaints as to the weight attributed to certain parts of the Tribunal’s decision or assert a conclusion as to what the Tribunal “should have found”, and therefore do not constitute jurisdictional error.
  3. Whilst the Court agrees generally with the submissions of the first respondent, the Court finds that these grounds cannot succeed in the face of the reasons for the failure of ground 3.
  4. These grounds do not therefore disclose jurisdictional error. These grounds of the application fail.

Ground 10

  1. Ground 10 of the application is as follows:
  2. The Tribunal did consider Mr Akbar’s claim notifying his intention to sit for the NAATI Language Examination, noting that there was no relevant supporting evidence provided to the Tribunal.[119] The claim was not capable of altering the total points score as assessed by the Tribunal on the material then before it. Item 6A81(d)[120] uses the words “is” and “is accredited”. In Huckle v Lowestoft Corporation[121] it was said that “the words ‘is’ and ‘are’ must be taken to mean is or are at the material time, whatever that time may be.” In relation to an enactment that provided that “no order ... should be made unless alternative accommodation is available” it was held that “the words ‘is available’ mean at the time the order is made or the judgment is given.”[122] In relation to the words “is appointed” in a statute it was said that these words assume “the original appointment has been made.”[123] Mr Akbar was therefore required to already be accredited as an interpreter or translator. To be intending to sit for, or be studying towards, accreditation does not comply with the criteria for the award of points.
  3. The Tribunal Decision was therefore correct, and there was no denial of procedural fairness or any jurisdictional error in the Tribunal’s approach to this aspect of Mr Akbar’s application.
  4. This ground of the application fails.

Conclusion and Orders

  1. The Court has found that none of the grounds of the application have been made out, and in particular that the Tribunal considered the correct question or questions in relation to all of the grounds of the application, and committed no jurisdictional error. However, if the Tribunal did commit jurisdictional error by failing to have regard to relevant considerations in relation to ground 3 (and consequently grounds 5-9), the Court would not be prepared to grant relief, because a consideration of the materials in evidence before the Tribunal indicates that Mr Akbar’s claim to be “specialising in” certain computer specialisations could not have been made out, in any event.
  2. The application will therefore be dismissed.
  3. The Court will hear the parties as to costs.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: Sandra Gough


Date: 8 May 2009

[1] “Skilled Student Visa”.
[2] “Migration Act”.
[3] “Tribunal”.
[4] “Tribunal Decision” which appears at Court Book (“CB”) 191-201.
[5] “Delegate’s Decision” which appears at CB 110-112.
[6] CB 1-74.
[7] CB 111.
[8] CB 15 and 111-112.
[9] “Migration Regulations”.
[10] CB 112.
[11] CB 201.
[12] CB 201.
[13] CB 200.
[14] CB 192-193.
[15] “Department”.
[16] CB 193.
[17] CB 193.
[18] CB 195.
[19] CB 193.
[20] CB 193.
[21] CB 193 and 195.
[22] CB 193.
[23] “ACS”.
[24] CB 193-194.
[25] CB 194.
[26] CB 194.
[27] CB 194.
[28] CB 194.
[29] CB 194.
[30] CB 195.
[31] CB 195.
[32] CB 195.
[33] CB 195-201.
[34] CB 196.
[35] CB 196; Migration Act, s.350.
[36] The Tribunal assessed these factors at CB 196-198.
[37] See para.8 above.
[38] CB 198-200.
[39] CB 198.
[40] In context it appears to the Court that “2003” has been inserted in error and the correct year is “2007”.
[41] CB 199-200.
[42] CB 200.
[43] CB 201.
[44] See paras.51-105 below.
[45] Transcript at pages 3-4.
[46] MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at para.8 per Nicholson J; SZHVL v Minister for Immigration & Citizenship [2008] FCA 356 at paras.27-29 per McKerracher J; SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at paras.26-28 per McKerracher J.
[47] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at paras.76-77 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[48] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; Ndungu v Minister for Immigration & Anor [2007] FMCA 217; (2007) 213 FLR 123 at 143 per Lucev FM; [2007] FMCA 217 at para.57 per Lucev FM.
[49] Migration Regulations, Schedule 1, Item 1128CA.
[50] Migration Regulations, Schedule 1, clause 1128CA(4).
[51] Migration Act, ss.92-96.
[52] Migration Regulations, Schedule 1, Item 1128CA(3)(j).
[53] Migration Regulations, Schedule 1, Item 1128CA(3)(k).
[54] Migration Act, ss.92-96.
[55] See reg.2.26A and Schedule 6A to the Migration Regulations. The qualifications or attributes and range of points available for each which are set out in Schedule 6A and are relevant to subclass 880 are each item in Parts 1, 2, 3, 4, 5, 6, 7, 8, and 10 of Schedule 6A: reg.2.26A (2) of the Migration Regulations.
[56] Migration Act, ss.95 and 95A.
[57] CB 196-200. See also paras. 8, 10-11 and 31-37 above.
[58] Ahmed v Minister for Immigration and Citizenship [2008] FMCA 811; (2008) 219 FLR 30 at 40 per Lucev FM; [2008] FMCA 811 at para.28 per Lucev FM (“Ahmed”).
[59] Ahmed FLR at 40, fn 58 per Lucev FM; FMCA at para.28, fn 58 per Lucev FM.
[60] Transcribed from original application without amendment.
[61] See grounds 3-9 at paras.58-101 below.
[62] See paras.58-101 below.
[63] An acronym for “Migration Occupation in Demand List,” which refers to the list of occupations in demand for the purposes of the occupation in demand factor.
[64] Transcribed from original application without amendment.
[65] CB 12.
[66] CB 171 and 197.
[67] CB 198.
[68] CB 15.
[69] CB 171.
[70] CB 173-174.
[71] CB 171.
[72] CB 171.
[73] CB 175-182.
[74] CB 180-181.
[75] CB 171.
[76] CB 171.
[77] CB 198.
[78] CB 198.
[79] CB 198.
[80] CB 198.
[81] CB 173. At CB 174 the MODL as at 30 July 2007 appears.
[82] CB 198.
[83] Eastman v Commissioner for Superannuation (1987) 74 ALR 221 at 230 per Neaves, Beaumont and Ryan JJ (where higher duties allowance paid regularly was part of a person’s salary, higher duties allowance payable irregularly was not salary); Anthony Lagoon Station Pty Ltd & Anor v Aboriginal Land Commissioner & Ors (1987) 15 FCR 565 at 577 per Northrop J and 590 per Ryan J; Rana v Human Rights and Equal Opportunity Commission & Anor (1997) 74 FCR 451 at 455-456 per O’Loughlin J (presence of a provision in the Disability Discrimination Act 1992 (Cth) dealing with clubs and associations meant that those provisions applied to the relevant complaint, not other provisions of general application); Bass v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334 at 348-349 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9 at para.22 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (precise specification of the manner in which the relevant Act bound the Crown in right of the Commonwealth was a complete and exhaustive statement of the Act’s application to the Commonwealth and left no room for it to apply on the further basis that the word “person” extended to the Commonwealth).
[84] CB 198.
[85] CB 198.
[86] This accepts that an error was made by Mr Akbar in nominating “Management Consultant” as his nominated occupation, as he submitted to the Tribunal: CB 171, and as the Tribunal accepted: CB 197, he intended to nominate “Computing Professional”.
[87] DC Pearce and R Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood : Lexis Nexis Australia, 2006) pages 117-119.
[88] CB 171, 175 (commenced with EFTel on 8 September 2008) and 198. The Court notes that “.Net technologies” is itself a “Computing Professional” occupational category, not a “specialising in” occupational category.
[89] See para. 76 above.
[90] Having established jurisdictional error, an Applicant is, on the face of it, entitled to prerogative relief, unless the grant of relief “would lack utility”: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at para. 232 per Allsop J or “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at para. 31 per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Anor [2007] FCA 907 at para. 30 per Bennett J. In Chen v Minister for Immigration & Anor [2008] FMCA 1285 at para.47 Barnes FM said:


[91] Shorter Oxford English Dictionary on Historical Principles (Vol II) (Oxford: Oxford University Press, 1973) page 2066.
[92] Attorney-General v Churchill’s Veterinary Sanatorium, Limited [1910] 2 Ch 401 at 407 per Neville J.
[93] Including Barnes v Brown [1909] 1 KB 38; Royal College of Veterinary Surgeons v Collinson [1908] 2 KB 248 (“Collinson”).
[94] Bellerby v Heyworth & Anor [1910] AC 377 at 379 per Lord Loreburn LC and 380 per Lord Shaw of Dunfermline, with Lord James of Hereford at 379, Lord Atkinson at 379-380 and Lord Mersey at 380 concurring, and upholding the reasoning of the Court of Appeal in Bellerby v Heyworth [1909] 2 Ch 23 and specifically agreeing with the judgment of the Lord Chief Justice of Ireland in Byrne v Rogers [1910] 2 IR 220.
[95] Collinson at 250-251 per Lord Alverstone CJ.
[96] [1948] 1 All ER 236 at 237 per Scott LJ (Bucknill and Somervell LJJ agreeing at 237).
[97] [1969] 1 All ER 69 at 77 per Winn LJ.
[98] CB 78.
[99] CB 78 and 198.
[100] CB 78.
[101] CB 175.
[102] CB 176.
[103] CB 176.
[104] CB 177.
[105] CB 180.
[106] CB 171.
[107] CB 181.
[108] CB 182.
[109] See para.41 above.
[110] See the authorities referred to in fn.90 above.
[111] Transcribed from original application with minor amendments.
[112] Transcript at page 10.
[113] CB 170.
[114] It is generally for decision-maker and not court to determine appropriate weight to be given to matters required to be taken into account and court should proceed with caution lest it exceed its supervisory role: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 and 42 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed); see also Deane J at 70.
[115] CB 199.
[116] CB 199. A “skilled occupation” being one specified in writing in an instrument for which a number of points specified in that instrument are available: Migration Regulations, reg.1.03.
[117] Transcribed from original application with minor amendments.
[118] Transcribed from original application with minor amendments.
[119] CB 199-200.
[120] Item 6A81(d) is set out in the Tribunal Decision at CB 199 and is reproduced at para.36 above.
[121] [1943] 1 KB 59 at 66-67 per Tucker J.
[122] Kimpson v Markham [1921] 2 KB 157 at 165 per Avory J.
[123] Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 108 ALR 77 at 95 per Cooper J.

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