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Chen v Minister for Immigration & Anor [2011] FMCA 859 (8 November 2011)

Last Updated: 10 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 859

MIGRATION – Review of Migration Review Tribunal Decision – refusal to grant visa applicant a Skilled (Provisional) (Class VC) visa – no reviewable error - application dismissed.

Migration Act 1958 (Cth), ss.45, 46B, 51, 53, 54, 359AA
Migration Regulations 1994 (Cth), regs 1.15I, 2.07, 3

Bodruddaza v Minister for Immigration [2007] HCA 14; (2007) 228 CLR 651
Martinez v Minister for Immigration and Citizenship [2009] FCA 781; (2009) 110 ALD 540
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Applicant:
MIN CHEN

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2451 of 2010

Judgment of:
Lloyd-Jones FM

Hearing date:
2 March 2011

Delivered at:
Sydney

Delivered on:
8 November 2011

REPRESENTATION

Counsel for the Applicant:
Mr L. J. Karp

Solicitors for the Applicant:
Mr V. Cheng of Berrigan Doube Lawyers

Counsel for the Respondents:
Ms R. Francois

Solicitors for the Respondents:
Clayton Utz Lawyers

ORDERS

(1) The Amended Application filed on 4 February 2011 is dismissed.
(2) The Applicant is to pay the First Respondent’s costs, of and incidental to the Amended Application, fixed in the sum of $6,000.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2451 of 2010

MIN CHEN

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. In accordance with orders made at the First Court Date directions hearing on 7 December 2010, the solicitor for the First Respondent was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit ‘A’.
  2. At the First Court Date directions hearing the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The Applicant elected to pursue this option and filed an Amended Application on 4 February 2011 in the following form:

Background

  1. In setting out the following background material I have either paraphrased or quoted directly from the written submissions prepared by Mr Karp who appears as counsel for the Applicant. Ms Francois, appearing for the Respondent agrees that this is an effective summary of the background material but raises one issue which is addressed below. I have not made any further direct attribution as this would make the summary unwieldy. This information is provided to assist in the understanding of the nature of the Application and not to establish any evidentiary point.
  2. The Applicant, Mr Chen, applied for a Subclass 485 (Skilled-Graduate) visa by Application lodged electronically on 9 March 2009 (CB 1-11). The validity requirement of this visa (i.e. those in schedule 1) including sub-paragraph1229(4)(b)(ii) to the effect that the Applicant must have nominated a skilled occupation in his application for which at least 50 points are available as specified in an instrument in writing for that paragraph.
  3. Schedule 2 ‘Time of Application’ requirements include the following:
  4. The time of decision criteria includes:
  5. The term, ‘skilled occupation’ was defined, as relevant, in reg.1.15I as follows:

It is noted that reg.1.15I came into effect on 1 July 2010 (see SLI133/2010 reg.3 Sch. 1[7]). However, by reg.3(4) it applied to applications made but not finally determined by that date.

  1. The relevant instrument for both paragraphs is found in Sch.1, sub-item 1229(4)(b)(ii), and for the definition of ‘skilled occupation’ in Sch.2 was IMMI08/004 dated 23 April 2008. Both the occupations of “Chef ASCO3322-11” and “Cook ASCO4513-11” are listed for each provision. Mr Chen wrote that his nominated and skilled occupation was “Chef” in his visa application (CB 9). He stated that he had an AQF Certificate III in Hospitality (Commercial Cookery) and a Diploma of Hospitality Management (CB 9) and that he had worked for two employers in Australia. He described his employment as “Chef” and his duties as among other things, cleaning utensils, preparing food and Cooking it (CB 10). Also submitted in his visa application was a IELTS test result sheet which he scored 5.0 for each of listening and writing, 5.5 for reading and 6.0 for speaking (CB 21).
  2. On 13 April 2010, the Minister’s delegate refused to grant the Applicant a visa because she found that Mr Chen had not applied for a skills assessment for his nominated skilled occupation as required by Sch.2 485.214 (CB 23 – 28). Mr Chen applied for a review of this decision on 23 April 2010 (CB 29).
  3. It is submitted on behalf of the Applicant that contrary to the delegate’s decision, Mr Chen had indeed applied for recognition of his nominated skilled occupation prior to 11 February 2009 (CB 48). On 16 April 2009, Trades Recognition Australia (TRA) assessed him as a “Cook 4513-11” (CB 49 – 50). Beneath the assessment is the notation:
  4. Thus, Mr Chen found himself in a situation where he had obtained TRA recognition for a skilled occupation which was sufficient to gain him a Subclass 485 visa however, that occupation was not the one he had applied for on his visa application form.
  5. Ms Francois raises an issue in respect of the above statement, in that she submits that the Applicant failed to provide any information to the delegate of the First Respondent that he had applied for an assessment of his skills at the time of his application (see CB 1 – 21) noting that he answered “no” to the second question on p.1, and para.20 of the Tribunal decision at (CB 109). Only when the matter went to the Tribunal was that evidence produced.
  6. On 7 September 2010 Mr Chen’s newly appointed solicitor and migration agent wrote to the Tribunal stating that Mr Chen had mistakenly nominated “Chef” rather than “Cook” on his visa application (CB 85[1.4]). This was because he did not realise the difference between a “Chef” and a “Cook” as in the Applicant’s native language there is only one word to describe the position responsible for food preparation and cooking (CB 86 [2.2]). It is also submitted that Mr Chen’s qualifications and work experience as mentioned in his visa application, were all “with respect to Cook” (CB 86 [2.4]). In her decision, the Tribunal member stated that at the hearing she disclosed to Mr Chen that the Tribunal had independently verified with TRA that “...the applicant had nominated Chef in his application for assessment”. She continued (at CB 109 at [18]) as follows:
  7. Mr Chen was given an opportunity to obtain a migration skills assessment as “Chef”. The solicitors wrote to the Tribunal on
    3 September 2010 stating that they were unsuccessful in obtaining that assessment (CB 99). They submitted that there is no reason why a person would purposely nominate himself as a Chef as opposed to a Cook and as a result be subject to more stringent criteria on TRA (CB 99). He submitted that the Applicant has not been assisted in making the Application and had made a bona fide mistake (CB 100).

Tribunal decision

  1. In the decision record (CB 105 – 113) it is noted that the Tribunal set the matter down for hearing on 6 September 2010. A request for postponement was made and granted. The hearing was postponed until 9 September 2010. On 6 September 2010, the Tribunal was notified that the Applicant had appointed a new representative who provided further submission to the Tribunal on 7 September 2010. At the hearing on 9 September 2010, the Applicant gave evidence and the Tribunal decision was issued on 20 October 2010. The Tribunal noted that the term ‘nominated skilled occupation’ was not defined in the Act or regulations, but that ‘skilled occupation’ was defined in reg.1.15I.
    It noted that both “Chef” and “Cook” are specified as skilled occupations in the relevant legislative instruments (CB 111). It found Mr Chen to be a frank and honest witness and accepted that he had not differentiated in his own mind the two skilled occupations of “Cook” and “Chef” when he nominated the latter for the purposes of his visa application. He continued at CB 112 at [31]:

Applicant’s submissions – ground 1

  1. Mr Karp, of counsel, appearing for the Applicant, assisted the Court with setting out the legislative regime that is applicable to these proceedings. Commencing at s.45, and in particular, he submits, s.46B of the Migration Act 1958 (Cth) (“Migration Act”) which states:
  2. Mr Karp submits that those sections relate to reg.2.07 which states:

Of particular relevance is sub-section (3) which states:

(3) An applicant must complete an approved form in accordance with any directions on it.

The Schedule 1 criteria at sub-para.1229(4)(b) relevantly states:

(b) the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i) must be less than 50; and
(ii) must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this subparagraph.
  1. Mr Karp submits that it is acknowledged and common ground that both “Chef” and “Cook” were skilled occupations in terms of regulation 1.15I. Therefore, the Applicant must nominate a skilled occupation in his application. The criteria for the visa are set out in Schedule 2 and the reference to nominating a skilled occupation appears at cl.485.213(b), which states:
  2. Relevant to the decision under review is cl.485.214 which states:
  3. Further, cl.485.221 which is a time of decision criteria, states:
  4. In the General Skilled Migration Application Form completed by Min Chen dated 9 March 2009, under the heading Nominated Occupation: “Chef” was entered (CB 9). That is followed by his qualifications. He states that his duties as a “Chef” (CB 10) with a particular employer were to:

And further reiterates that he was employed as a “Chef”.

  1. In the International English Language Test System (IELTS) – Test Report Form (CB 21) the Applicant has achieved scores of 5; 5.5; 5.0 and 6 and the overall band score of 5.5 is his IELTS test dated 30 August 2008. He has also undertaken a Trades Recognition Australia Assessment (CB 49). It is noted in a letter from the Department of Education, Employment and Workplace Relations that his Application for Recognition of his skills were considered successful if his occupation was that of Cook – ASCO4.513-11. Immediately below that skills rating a paragraph states:

It is submitted that so far as the TRA was concerned, if an applicant satisfied the requirements for something other than that which he requested recognition, he was assessed as meeting the requirements for the other occupation.

  1. Mr Karp then referred the Court to the letter from Berrigan Doube Lawyers Group written by Jenny Wang, Associate Director dated
    7 September 2010 (CB 85) addressed to Tribunal member Rowena Irish. This letter was sent two days before the Tribunal hearing. At para.1.4 the letter states:
  2. Then at 2.4 the Applicant’s qualifications are set out:

Then at 2.6 the letter states:

The applicant relies on MRT decision 0903118 [2010] MRTA 44 (8 January 2010) by Tribunal Member Carney for a finding that the applicant intended to nominate Cook (ASCO4513-11) and accordingly the matter be remitted with a direction that the applicant has satisfied sub-class 485.222(1).
  1. In the Tribunal decision in the findings and reasons at [13], the Tribunal member states:

Mr Karp acknowledges that the MRT decision is not binding on this Court but it was simply what the Applicant relies on.

  1. In a letter from Heng Australia Pty Ltd dated 7 September 2010, from the Applicant’s employer, (CB 97) in the second last paragraph states:
  2. In the Tribunal decision of Rowena Irish MRT Case number 1002980 dated the 19 October 2010 at [18] the member states:
  3. Then at [20] of the decision record, it states:
  4. The applicant provided to the Tribunal a copy of a print-out showing the document that he had uploaded on 13 July 2009 and this did not include any letter from TRA. At [22] of the decision record it states:
  5. Mr Karp referred the Court to reg.1.15B which defines vocational English and sub-paragraph (3) states:

Whereas competent English requires a score of at least 6 in each of the four test components. Mr Karp submits that it is quite clear from [22] above that the Applicant did not understand the difference between vocational and competent English which supports the Applicant’s case.

  1. Mr Karp submits that in the Tribunal’s findings and reasons at [31] initiates what he believes to be the crux of the errors in the Tribunal decision. Then the paragraph commences:
  2. Mr Karp submits that the Tribunal accepted that the Applicant was a frank and honest witness and carries with it an acceptance that he did not look past Chef on the list of skilled occupations (see decision at [20]). This also carries with it an implication of acceptance that the words ‘Chef’ and ‘Cook’ are used interchangeably in his language and also that he did not know the difference between ‘vocational’ and ‘competent’ English and that also comes from [22] of the Tribunal decision. The Tribunal continues at [31] and it is submitted by Mr Karp that this is where it starts to be erroneous:
  3. Mr Karp argues that this reasoning is untenable and asks the rhetorical question of ‘how can it be if the applicant did not know the difference between a Cook and a Chef and he did not know the difference between competent and vocational English, that he intended to nominate one rather than the other’?. He submits that this does not make sense and is the basis for his submission that the Tribunal decision was “illogical and irrational”.
  4. Mr Karp indicated that there was a disagreement between himself and Ms Francois as to the interpretation of the High Court judgment in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 in which there is no majority on any question of principle. In the judgment of Gummow ACJ and Keifel J at [40], where their Honours cited with approval the High Court judgment of Gummow and Hayne JJ in the Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, their Honours stated:
  5. Mr Karp contends that their Honour’s Gummow ACJ and Keifel J endorse the proposition that a determination that:

is jurisdictional error.

  1. In the judgment of Crennan and Bell JJ at [129] their Honours discussed the history of ‘illogicality’ or ‘irrationality’ in the following terms:
  2. Mr Karp submits that Ms Francois, in her written submissions, draws the distinction between the decision of Crennan and Bell JJ and what Gummow ACJ and Keifel J hold in dissent. Mr Karp submits that they are essentially saying the same thing and the invocation of ‘irrationality and illogicality’ in the judgments in that case say no more than that illogicality or irrationality is a ground of judicial review but it must be manifest and must be essentially “arbitrary, capricious or unreasonable”. Mr Karp contends that collection of terms add up to the same thing.
  3. In summary, Mr Karp submits that the Tribunal’s findings that the Applicant intended to nominate ‘Chef’ rather than ‘Cook’ in his visa application form when he did not know the difference between them and did not understand that they required the satisfaction of slightly different criteria is unreasonable or irrational or capricious in the terms of the judgments in Minister for Immigration and Citizenship v SZMDS (supra).

Respondent’s submissions – ground 1

  1. Ms Francois submits that the crux of the first ground is located in para.31 of the Tribunal decision where the Tribunal’s acceptance that the Applicant never differentiated in his mind between ‘Cook’ and ‘Chef’ leads to the finding that, nonetheless, he intended to nominate Chef. The Applicant was clearly unaware of the distinction and intentionally chose ‘Chef’ on his visa application. Had he been advised and told that he would be better off using ‘Cook’ no doubt he would have taken that course but he did not and he chose ‘Chef’.
    Ms Francois submits that in hindsight he now wishes he had chosen ‘Cook’ and he wishes that he had understood the difference.
  2. Ms Francois submits that in hindsight, the Applicant wishes he knew the difference between ‘Cook’ and ‘Chef’ so that he could have chosen differently. It is submitted that it is not a mistake. A mistake is when you know there are two choices and you intend to choose one and instead pick the other. This Applicant never realised that there are two choices so there is, relevantly, no mistake. It is an intentional act that with hindsight he wishes he had done differently and it is submitted that is what para.31 of the Tribunal decision establishes.
  3. Ms Francois submits that the Tribunal does not doubt that the Applicant had no idea that there was a difference between the two. The Tribunal just does not say that it is relevantly, a mistake and that is open to the Tribunal. It is submitted that is the only logical inference because to make a mistake a person needs to know that they had two options and have intended to pick one, but mistakenly put down the other. This Applicant cannot make that out that he made a mistake. It is submitted that he called himself a Chef and applied to the TRA for the skills assessment as a ‘Chef’. He meant to use the word ‘Cook’.
    In hindsight he wishes he had selected ‘Cook’ but that is not a mistake, it is submitted that it is an intentional act that, with hindsight, he wishes he had done differently. Even if a different Tribunal might have come to a different conclusion, that is not enough to make out ‘illogicality’ as a ground of review.
  4. Ms Francois contends that there is a difference between the judgments of Gummow ACJ and Keifel J and that of Bell and Crennan JJ in Minister for Immigration and Citizenship v SZMDS (supra). The dissenting judgment looks at the reasoning of the Tribunal and how the Tribunal formed its reasons and said the reasoning was illogical. Whereas, the judgment of Bell and Crennan JJ does not look to the reasoning, they look at whether or not the decision was open on the evidence. The Tribunal can be, in its reasons, as unusual as it likes, but if the Tribunal finding is open on the evidence then it is a decision that cannot be impugned. The difference in that the minority would look to the reasons and scrutinise the reasons whereas Wednesbury unreasonableness and the type of review propounded by Bell and Crennan JJ look to the substance. Ms Francois raises the question as to whether it is a decision that no reasonable decision-maker could make. Ignoring the reasoning and just looking at the evidence and what the Tribunal concluded was open on the evidence, the decision should stand, whereas the minority looked at the reasoning which is critical because in this case there is no illogicality in the reasoning. It is open on the evidence to accept that this Applicant had no idea about the differences between ‘Chef’ and ‘Cook’ but finds that he did an intentional act being that he intended to nominate ‘Chef’ and this, it is submitted, is very different to the earlier decision referred to by Mr Karp which Ms Francois maintains is incorrect. Ms Francois refers to the decision of 0903118 of [2010] MRTA 44 at para.12 that when the Applicant in that matter went to the TRA she referred to herself as both ‘Chef’ and ‘Cook’ as she had been aware of both designations and had been using them. That Applicant would not meet the time of application criteria because she applied to the TRA for both ‘Chef’ and ‘Cook’ but she had also been using those terms together unlike the Applicant in the matter before this Court. Consequently, it is a very different decision. Further, in any event, it is submitted that is no mechanism in the Act or Regulations to change a visa application of this kind.

Consideration – ground 1

  1. I note the submissions advanced by both parties however believe the issues are effectively summarised by the Tribunal at [31] of their findings and reasons where it states:
  2. I agree with the observation made by the Tribunal member that it was unfortunate that Mr Chen did not obtain advice from either a registered migration agent or competent person with a detailed working knowledge of skilled occupation applications under the Migration Act prior to lodging his visa application and therefore proceeding to lodge the visa application under the mistaken belief that “Chef” was the appropriate nominated skilled occupation for him. The Tribunal in the following paragraph then considers the request for leniency based on the Tribunal exercising its discretion due to the Applicant’s lack of understanding and being unable to differentiate between “Cook” and “Chef”. This case is different from others in this area where people have nominated “Chef Cook” for example on their application: Martinez v Minister for Immigration and Citizenship [2009] FCA 781; (2009) 110 ALD 540. Clearly, the structure of the legislation requires the nomination of a single skilled occupation. There is no mechanism in the Act or the Regulations to change this nomination once the application has been lodged. Neither party have advanced any authority which supports the argument that a discretion can be exercised in this specific area of the Act or regulations.
  3. In the absence of authority in respect to a discretion in relation to sub-paragraph 1129(4)(b)(ii) of Sch.1, the Tribunal member resorted to the department policy guideline with the acknowledgement that they were advisory and were not binding on the Tribunal. I accept the Tribunal’s reasoning at [32] that:
  4. Mr Karp submits that the guidelines in respect to this interpretation are not correct but does not advance any authority to support the contention that the Tribunal had a discretion that could be exercised.
    In these circumstances, I do not believe that the argument advanced in respect of ground 1 can be sustained and should be dismissed.

Applicant’s submissions – ground 2

  1. Mr Karp further referred the Court to the Tribunal decision at para.32 (CB 112) where it states:

Mr Karp contends that this interpretation is not correct.

  1. In cl.485.213 and cl.485.214 the reference to nominated skilled occupation in those paragraphs has to relate back to the occupation which is nominated on the application. These regulations are time of application criteria which relate to the occupation nominated on the form and they relate back to sub-para.1229(4)(b)(ii) of Sch.1 which takes place at the same time. Mr Karp submits that the time of decision criteria in cl.485.221 is post-assessment and it must be post-assessment because it refers to the Applicant’s nominated skilled occupation having been assessed. There is no reason why a person cannot have applied for an assessment under one nominated skilled occupation thereby satisfying the Schedule 1 criteria and the time of application criteria which can then be changed for the time of decision criteria. The Tribunal member says that there is no mechanism for doing this but Mr Karp disagrees with this interpretation.
  2. Section 358(1) of the Migration Act states:

(1) An applicant for review by the Tribunal may give the Tribunal:

(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
  1. Mr Karp submits that the terms of s.358(1) are wide enough to encompass a change of nominated skilled occupation. Similarly, if the matter was still before the delegate and even if it is not, he submits that s.54 and s.55 of the Migration Act permit at least by implication a change of nominated skilled occupation. Mr Karp submits that any additional relevant information would include a statement that the Applicant wishes to change his nominated skilled occupation.
  2. Section 54 of the Migration Act states:
  3. Section 55(1) of the Migration Act states:
  4. Mr Karp contends that when the time for decision and time of application criteria are raised, the High Court judgment in Bodruddaza v Minister for Immigration [2007] HCA 14; (2007) 228 CLR 651 can be distinguished as the facts are different from the facts in this case.

Respondent’s submissions – ground 2

  1. Ms Francois submits that the difficulty with this ground is that there is only one occupation nominated in the Application form. Consequently, this is a theoretical ground of review where an applicant says, in theory that he would like to now change his application by nominating another occupation. There is no mechanism to do that. The sections to which Mr Karp refers talk about information and issues in support of a visa application, however they do not address changing the visa Application. These sections refer to information and material in support of the visa application that was made.
  2. Ms Francois submits that it is set out in the application form that the Applicant applied for a nominated occupation of ‘Chef’ and there is no scope to get past that nomination. In the application form at para.18 (CB 109) the application for assessment requested was that of a ‘Chef’. He did not request it as a ‘Cook’. Consequently, at the time of application and in order to be assessed as to whether or not he met the time of application criteria, he applied to the TRA as a Chef. Even if the Applicant could go back in time and change his nominated occupation to ‘Cook’ he cannot meet the requirements of cl.485.214 that at the time of his application, he has applied for assessment as a Cook. Although Mr Karp advances the argument that more than one occupation can be nominated, the authorities clearly establish that the accommodation of a singular option cannot include plural unless there is a clear contrary intention.

Consideration – ground 2

  1. Sub-paragraph 1229(4)(b)(ii) states:
  2. The term ‘skilled occupation’ is clearly singular. Clause 485.214 states:

Again, this clause is expressed in the singular. In cl.485.221 it states:

485.221 (1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.

Again, the clause is expressed in the singular. Given the complexity of this legislative scheme, it cannot be inferred that the plural was included given that every reference is to the singular. It would work to the disadvantage of an Applicant if the plural was implied because if you fail to meet all the necessary criteria of each nominated occupation, the visa could be refused. The structure of the Act does not give any logical basis for construing the terms to include the plural as it would in fact ultimately work to the disadvantage of an Applicant. Mr Chen, with his need for early advice that he did not obtain, now wishes to change the application that he has made.

  1. If an Applicant realises within a period of time that they had put the wrong occupation, they must make another visa application. While that obviously creates some difficulty, unfortunately, that is what is required. While that may create inconvenience for the Applicant, it is an inconvenience caused by the Applicant’s own conduct in that the Applicant chose not to get advice before he completed the form. Had the Applicant sought advice before lodging the Application, he may have done it differently. He has done it in a particular way which was deliberate and he now wishes to be relieved of the fact that had he had better advice he would have proceeded in a different manner. Such a course is not available in the legislation and the Applicant is not precluded from making another application, be it onshore or offshore. There is no mechanism within the Act to amend an application once it has progressed to this stage. Consequently, ground 2 cannot be sustained and the Amended Application filed on 4 February 2011 should be dismissed.

I certify that the preceding 58Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-eightfifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM


Date: 8 November 2011

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