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Islam v Minister for Immigration & Anor [2010] FMCA 379 (21 June 2010)

Last Updated: 25 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – Tribunal finding the applicant lacked sufficient academic training to be a cook and that his work experience record at the time of acceptance of his trade qualifications was false or misleading – no reviewable error found – application dismissed – observations on the interpretation and application of the applicable visa criteria.


Talukder v Minister for Immigration [2009] FCA 916

Applicant:
MD MONIRUL ISLAM

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 543 of 2010

Judgment of:
Driver FM

Hearing date:
1 June 2010

Delivered at:
Sydney

Delivered on:
21 June 2010

REPRESENTATION

The Applicant appeared in person


Counsel for the Respondents:
Ms A Mitchelmore

Solicitors for the Respondents:
Sparke Helmore

ORDERS

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

SYG 543 of 2010

MD MONIRUL ISLAM

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 17 February 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Islam a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
  2. The following statement of background facts is derived from the Minister’s submissions filed on 17 May 2010.
  3. Mr Islam is a citizen of Bangladesh. On 18 December 2006, he applied for a Skilled – Independent Overseas Student visa, which is a permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. There is only one subclass for this class of visa, namely Subclass 880: see clause 1128CA(4) of Sch 1 to the Migration Regulations 1994 (Cth) (“the Regulations”).
  4. The time of application criteria and the time of decision criteria for subclass 880 are set out in paragraphs [7] and [8] of the Tribunal’s decision. Relevantly, clause 880.215 of Schedule 2, which is a time of application criterion, provides:
  5. Clause 880.230(1), which is a time of decision criterion, provides:
  6. For the purposes of clause 880.215, Mr Islam relied on two educational qualifications. The first qualification was an AQF Certificate III in Hospitality – Commercial Cookery, which he undertook at Sydney International College from February to August 2006 (court book “CB” 36). The second qualification was an Advanced Diploma of Accounting at Alpha Beta College, which he undertook between March 2004 and June 2005 (CB 33).
  7. In relation to his work experience, Mr Islam relied on two unsigned and undated references from the K2 Café and Restaurant in Strathfield (CB 144-146). Initially, Trades Recognition Australia (TRA) assessed Mr Islam as not being suitable for his nominated occupation of cook because it could not verify his employment information (CB 141-142). However, on review TRA overturned its original opinion, after being able to verify its concerns with his claimed work experience (CB 230-231).
  8. The precise source of TRA’s verification of Mr Islam’s work experience is unclear. A notation on one of the references indicated that the director of the K2 Café, Mr Lee, whose name was on the references, answered the phone when an officer rang but then hung up when the officer revealed where he was from (CB 225). However, it appears that a subsequent letter was provided to TRA, which was dated 6 October 2006, seeking to explain Mr Lee’s behaviour and stating that Mr Islam had worked as a “chef” from 7 March 2005 to “now” (CB 147).
  9. On 30 June 2009, a delegate of the Minister notified Mr Islam that his visa application had been refused (CB 155).
  10. The delegate did not accept that Mr Islam satisfied clause 880.230 of Schedule 2 to the Regulations, on the basis that information that he gave as part of the assessment was false or misleading in a material particular. Of concern to the delegate were the references that Mr Islam had provided about his work experience at the K2 Café and Restaurant. The delegate was not satisfied that these were genuine, in circumstances where (CB 159):
    1. Mr Islam had admitted, in an interview with investigators from the Minister’s Department on 7 January 2009, that he had typed the documents, and as the owner had been uncooperative with the Department, the information could not be verified;
    2. Mr Islam told the Departmental investigators that he had started working at K2 Café in March 2006, when his reference stated he started in March 2005; and
    1. the reference stated that he worked in the capacity of a chef, but Mr Islam advised the officers that he worked primarily as a kitchen hand assisting the chef with some meals.
  11. On 21 July 2009, Mr Islam applied to the Tribunal for review of the delegate’s decision (CB 162).
  12. By letter dated 22 October 2009, the Tribunal invited Mr Islam to attend a hearing before it on 6 November 2009 (CB 184). He accepted the invitation (CB 187), and the hearing proceeded on that date (CB 250).
  13. At the hearing, Mr Islam’s migration agent provided a number of documents to the Tribunal on his behalf (CB 189), including materials relating to the skills assessment conducted by TRA (CB 213-231). After the hearing, Mr Islam’s migration agent sent a further submission to the Tribunal (CB 256).
  14. By letter dated 12 January 2010, the Tribunal invited Mr Islam to comment on information that would, subject to any comments or response he made, be the reason, or a part of the reason, for affirming the decision under review (CB 286). The information on which the Tribunal invited comment related to the criteria in clause 880.215 and clause 880.230 of Schedule 2 to the Regulations. On 9 February 2010, Mr Islam, through his migration agent, responded to the Tribunal’s letter (CB 292); the agent attached a number of documents, including a further declaration from him (CB 324).
  15. By letter dated 18 February 2010, the Tribunal notified Mr Islam of its decision to affirm the decision of the Minister’s delegate (CB 332).
  16. The Tribunal found that clause 880.215 of Schedule 2 was not met. While Mr Islam had completed a trade qualification, namely Certificate III in Hospitality, it was awarded as a result of less than two years full time study in an Australian educational institution. Accordingly, in order to meet the criterion in clause 880.215, Mr Islam also needed to rely on the Advanced Diploma of Accounting and satisfy the Tribunal that that qualification was relevant to the skilled occupation he had nominated, namely that of “cook” (at [63]-[64], CB 347).
  17. The Tribunal referred (at [65]) to the decision of Smith FM in Thongsuk v Minister for Immigration [2007] FMCA 665, and his Honour’s observation that the purpose of the criterion suggested that the Tribunal was intended to evaluate the relationships of the educational studies and achievement to the nominated occupation and be positively satisfied that the Australian educational achievement was occupationally relevant to the particular demands of the nominated skilled occupation as indicated in its ASCO definition. Although the Tribunal considered that the list of activities in the ASCO definition was not exhaustive, it nonetheless reflected the demands of the nominated skilled occupation (at [70], CB 348). Noting that the listed tasks for “cook” related primarily to the handling of food, menu planning and working with kitchen staff, the Tribunal stated (at [71], CB 348):
  18. The Tribunal also found that clause 880.230 was not met, on the basis that evidence had become available that the information given or used as part of the assessment of Mr Islam’s skills was false or misleading in a material particular (at [79], CB 349).
  19. The Tribunal observed that TRA’s assessment of Mr Islam’s skills relied on his personal declaration concerning his 900 hours of work experience at the K2 Café and Restaurant, and the information in his TRA application to the effect that he had been employed as a cook from 7 March 2005 to October 2006 and continued to be employed. It also observed that TRA, on the review of its original opinion, accepted the letter signed by Mr Lee in which he sought to explain the conversation where the call was abruptly terminated (at [86], CB 351). Since TRA’s decision, however, the applicant had been interviewed by officers of the Department, which gave rise to a number of concerns about the information on which TRA had relied, including (at [90], CB 351-352):
    1. in the interview with the Departmental investigators, Mr Islam had said that he worked from March 2006 to March 2007; although the Tribunal accepted that he meant to say from March 2005 to March 2006, this nonetheless gave rise to an inconsistency with his TRA application, dated 22 August 2006, in which he said he remained employed at K2 as a cook.
    2. Mr Islam’s evidence about when he ceased working at K2 was also inconsistent with the Letter of Confirmation, dated 5 October 2006, in which Mr Lee referred to Mr Islam being employed as a cook at K2 from 7 March 2005 to “now”. The Tribunal rejected the explanations that Mr Islam advanced for this inconsistency.
    1. In the interview with the investigators, Mr Islam said that of the 12 months he spent at K2, he had worked for three months as an unpaid learner, three months as a kitchenhand, and then he had assisted the chef with some meals. Again, this was different to his TRA application, in which he said he had been employed as a cook from the time he commenced at K2 in March 2005.
    1. At the hearing, Mr Islam said that he was shown how to cook over an unspecified time and that later he started cooking. In his subsequent statement, dated 9 February 2010, Mr Islam said that he was trained as a cook and also did cleaning duties. These later claims about his work experience also differed from the information that Mr Islam had provided to TRA about commencing as a cook or even a chef.
  20. The Tribunal stated (at [92], CB 352):
  21. The Tribunal rejected Mr Islam’s argument that in a small restaurant an assistant’s role was very hands on, and that he was required to perform a wide range of duties including aspects of cooking, such that his work experience was relevant and directly related to his trade skill occupation. In the Tribunal’s view, the status, skill level and tasks of a cook were significantly different to the status and tasks of a trainee or kitchenhand. Accordingly, it concluded that the information that Mr Islam provided to the TRA “which indicated he was always employed as a cook or chef” was false or misleading in a material particular (at [93], CB 353).
  22. In addition, the Tribunal concluded that Mr Islam’s changing description of his work experience was relevant to the TRA’s consideration of the 900 hours of work experience requirement. Taking the view that this was also a material particular, the Tribunal found that Mr Islam’s evidence concerning the duration of his work experience was also evidence that had become available indicating that the information given or used as part of the assessment of his skills was false or misleading in a material particular (at [95], CB 353).
  23. Having concluded that Mr Islam did not meet clause 880.215 or clause 880.230 (at [100], CB 354), the Tribunal concluded that he was not entitled to a Skilled – Independent Overseas Student (Residence) visa (at [101], CB 354). Accordingly, the Tribunal affirmed the delegate’s decision.

The application and evidence

  1. Mr Islam relies upon his show cause application filed on 15 March 2010. The only ground in that application is that Mr Islam applied for residency as a cook on 18 December 2006. Nevertheless, when I gave procedural directions in the matter on 12 April 2010 I dispensed with the requirement for a show cause hearing on the basis that it was apparent that the issue to be resolved in this case is whether the Tribunal applied correctly the relevant criteria for the class of visa sought by Mr Islam. I received two affidavits by Mr Islam filed on 8 April 2010 and 28 May 2010, to which are attached a substantial number of documents detailing the qualifications obtained by Mr Islam and his work experience. I also have before me as evidence the court book filed on 12 April 2010.

Submissions

  1. Mr Islam submits that the Tribunal erred by rejecting as inaccurate the reference from the K2 Restaurant which, on its face, appeared to establish sufficient work experience as a cook to meet the relevant visa criterion. He is concerned that he has spent two years waiting for the clarification of his visa status and considers that he has been poorly treated as his qualifications and experience were recognised by TRA but subsequently rejected by the delegate and the Tribunal. Mr Islam also expressed dissatisfaction with the performance of the migration agent who assisted him with his visa application.
  2. The Minister submits that, in making its decision to affirm the decision of the Minister’s delegate, the Tribunal complied with the provisions of Division 5 of Part 5 of the Migration Act 1958 (Cth) (“the Migration Act”). It invited Mr Islam to attend a hearing before it to give evidence and present arguments in relation to the decision under review, and in accordance with s.360 of the Migration Act, in the course of which it put the applicant on notice of the particular visa criteria that it was concerned Mr Islam had not met, namely clause 880.215 and clause 880.230. After the hearing, it sent Mr Islam a letter in accordance with s.359A, which attached a copy of the report prepared by DIAC investigators, and again identified the two criteria that were of concern to it.
  3. The Minister also submits that the Tribunal’s decision to affirm the decision of the Minister’s delegate was the product of a careful review of Mr Islam’s evidence against the criteria in clause 880 of Schedule 2 to the Regulations. Its conclusion that Mr Islam did not meet all of clause 880.215 or clause 880.230, which was fatal to Mr Islam’s review application, was open to the Tribunal and involved no error of law that is amenable to review by this Court.

Consideration

  1. This is a hard case. It is often said that hard cases make bad law. The affidavit evidence presented by Mr Islam strongly indicates that he is well qualified for his chosen occupation as a cook. He appears to have obtained ample qualifications and work experience. He is currently employed as a cook at the David Jones Food Hall at its Market Street store. Unfortunately, however, for Mr Islam, his task before the Tribunal was to satisfy it that he met the strictures of the criteria for the class of visa that he was seeking, not simply that he was well qualified and experienced in his chosen occupation. Item 1128CA(3)(l)(i)(A) of Schedule 1 to the Migration Regulations required that:
  2. The Minister conceded that this requirement could be met by a combination of courses but clause 880.215 of Schedule 2 to the Migration Regulations required that each of the degrees, diplomas or trade qualifications be relevant to the skilled occupation nominated by the applicant or his or her application. That criterion had to be satisfied at the time of application. The skilled occupation nominated by Mr Islam in his application was “cook”. It seems bizarre that the visa criteria required two years academic study, regardless of the trade nominated but that probably has more to do with a desire to ensure that the visa criteria are not too easily met than a desire to promote a coherent analysis of what academic qualifications are necessary for a particular trade. It was the Tribunal’s task to apply the relevant visa criteria, however bizarre they might seem. Mr Islam relied upon a certificate in hospitality which was obviously relevant to his trade as a cook but it was awarded as a result of less than two years full time study. He sought to supplement that qualification with his advanced diploma in accounting. However, the Tribunal was not satisfied that an accounting qualification was relevant to the trade of “cook”. It may well be that a successful cook would go on to operate a restaurant as a business where accounting qualifications would be highly relevant. However, I cannot dispute the logic of the Tribunal’s view that one does not need an accounting qualification to be a cook. It follows that the Tribunal was correct in finding that Mr Islam did not meet the visa criterion in clause 880.215 at the time of his application. That in itself would have been sufficient to deny Mr Islam the class of visa he sought.
  3. Nevertheless, the Tribunal also found that clause 880.230 (which applied at the time of decision) was not met on the basis that evidence had become available that the information given or used as part of the assessment of Mr Islam’s skills was false or misleading in a material particular. The Tribunal was aware that TRA relied upon Mr Islam’s personal declaration that he had 900 hours of work experience at the K2 Café and Restaurant. Initially, TRA did not accept that declaration but Mr Islam sought review of that decision. On review, TRA stated that it had been able to verify the accuracy of Mr Islam’s claimed work experience.
  4. I proceed on the basis that the visa criterion is valid as a similar visa criterion in clause 880.224 was found valid by the Federal Court in Talukder v Minister for Immigration [2009] FCA 916. In my view, clause 880.230(1) should be interpreted in the same way as the Federal Court interpreted clause 880.224. In particular, the use of the word “evidence” in the clause means that there is a requirement that whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of the relevant criterion were false or misleading in a material particular must be sufficiently probative to lead to that conclusion[1].
  5. A difficulty in the present case is that the Tribunal was unsure precisely what TRA relied upon in reversing its initial unfavourable assessment. Mr Islam had asserted that TRA had verified his work experience as a result of telephone conversations with Mr Lee at K2 Café and Restaurant. The Tribunal observed at [84] (CB 350) that someone at the TRA had ticked a box on a form in connection with the review stating there had been telephone verification but the Tribunal did not accept that that meant that there had been a telephone verification. The Tribunal observed that the same box was ticked in the original assessment form even though it was apparent that the attempted telephone verification was aborted when the line was disconnected. Mr Islam had submitted to TRA a letter of confirmation dated 5 October 2006 purportedly from by Mr Lee. This included admittedly misleading information concerning the duration of Mr Islam’s employment at the K2 Café and Restaurant and the Tribunal found at [91] of its reasons (CB 352) that the letter was also misleading in relation to the work undertaken at K2 Café and Restaurant while Mr Islam was employed there. In essence, the Tribunal found that Mr Islam’s work experience at the K2 Café and Restaurant was substantially that of a kitchen hand rather than that of a cook.
  6. It may well have been that Mr Islam had in fact completed 900 hours of work experience as a cook by the time the Tribunal made its decision. The Tribunal’s decision was that evidence had become available that the information relied upon by TRA in its assessment was false or misleading in a material particular. The Tribunal’s conclusion was open to it on the material before it. Mr Islam was required by the criteria relied upon by TRA to have completed 900 hours of relevant work experience at the time of the TRA assessment. It did not matter whether he had accumulated 900 hours of relevant work experience by the time of the Tribunal’s decision. I find no error in the Tribunal’s assessment that material relied upon in persuading TRA to review its assessment was false or misleading in a material particular.
  7. I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
  8. Mr Islam told me from the bar table that he has sought Ministerial intervention in his case pursuant to s.351 of the Migration Act. That is, of course, entirely a matter for the Minister and the Court cannot interfere with the exercise or non exercise of that discretion. I nevertheless observe that Mr Islam presents as a very well qualified, experienced and articulate man who has an earnest and sincere desire to contribute to this country as a resident in his chosen occupation. He was unable to meet the relevant visa criteria for the class of visa he sought at the time of the decisions by the delegate and the Tribunal. However, the very substantial material submitted to the Court by Mr Islam raises the question whether he would now satisfy those criteria and, if so, whether a different decision should be made.
  9. I will hear the parties as to costs.

I certify that the preceding 36Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-sixthirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM


Date: 21 June 2010

[1] See Talukder at [20]

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