Zeng Guang Wang v Minister for Immigration & Multicultural Affairs [1998] FCA 30 (30 January 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Visa application - Points system - Determination of "usual occupation" of applicant - Determination made by reference to Australian Standard Classification of Occupations - Whether determination exhibited error of law.

Migration Act 1958, ss 92-96

Migration Regulations reg 2.26, Sch 6

ZENG GUANG WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG242 of 1997

JUDGE: WILCOX J

PLACE: SYDNEY

DATE: 30 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG242 of 1997

BETWEEN:	ZENG GUANG WANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	30 JANUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision made on 22 February 1997 to refuse the applicant's application for a subclass 126 [Independent] visa be set aside.

2. The said application be remitted to the respondent Minister for determination according to law.

3. The said respondent pay the applicant's costs of this proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG242 of 1997

BETWEEN:	ZENG GUANG WANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	30 JANUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J: This case concerns provisions in the Migration Regulations relating to the points system used to determine applications for Australian entry visas.

The legislative framework

Part 2 of the Migration Act 1958 is entitled "Control of Arrival and Presence of Non-Citizens". It includes Division 3, headed "Visas for Non-Citizens". This Division contains Subdivision B (ss 92-96) which establishes the "points" system. Section 92 provides the Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is "that the applicant receives the qualifying score when assessed as provided by this Subdivision". Section 93(1) requires the Minister to "make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant". If the score of an applicant is more than, or equal to, the applicable pass mark at the time when the score is assessed, the applicant is taken to have received the qualifying score: see s 94(1). If not, but the applicant achieves a score more than, or equal to, "the applicable pool mark", the application is put in a pool (see s 94(3)) and may ultimately be successful: see s 95. From an applicant's point of view, a correct points assessment is of cardinal importance.

Division 2.6 of the Migration Regulations prescribes qualifications for visas and the number of points obtainable in relation to each of those qualifications. Regulation 2.26(3)(a) provides that, for the purposes of s 93(1) of the Act, "the Minister ... is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant's circumstances and for which the prescribed number of points is the highest for any such prescribed qualification". In other words, an applicant who satisfies more than one qualification is entitled to receive the highest number of points available under any of the qualifications.

Regulation 2.26(1) refers to Schedule 6 of the Regulations. This Schedule contains several Parts, each of which prescribes the points available to applicants who claim a particular type of visa qualification. Part 1 of the Schedule relates to "Employment Qualification". It contains nine items, numbers 6101 to 6109. A specific number of points is attributed to each item, reducing from 80 points for item 6101 to 10 points for item 6109. The item with which this case is concerned is item 6102, which attracts 70 points. That item reads:

"6102 The applicant's usual occupation:

(a) is not a priority occupation; and

(b) is an occupation:

(i) for which, in Australia, a degree or trade certificate is required; or

(ii) that is a professional-equivalent occupation; and

(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:

(i) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or

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

(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and

(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and

(e) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and

(f) is an occupation:

(i) in which the applicant has worked; or

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

for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made."

At the material time reg 2.26(5) defined the term "relevant Australian authority" as meaning the National Office of Overseas Skills Recognition ("NOOSR"), the Department of Industrial Relations or, if the circumstances of a case preclude those authorities, the Minister.

The facts

The applicant, Zeng Guang Wang, is a citizen of the People's Republic of China. She lives in Fuzhou City, Fujian Province. She was born in December 1961. In July 1986 Ms Wang graduated from Fuzhou University with a Bachelor Degree of Arts, a degree said to be comparable to an Arts degree at an Australian university. Almost immediately, Ms Wang became employed by her present employer, Mindong Industrial Co Ltd ("Mindong") of Fuzhou City. In a curriculum vitae submitted with her visa application, Ms Wang explained the company's activities in this way:

"Mindong Industrial Co. Ltd. is a comprehensive trading corporation with its main business focusing on import and export of light industrial products, chemical products, household electronic appliances, foodstuff, etc. The company consists of two subsidiaries in Fuzhou city, Xiamen city, China and one subsidiary in Malaysia. The company was established in 1984 and has since developed to a comprehensive manufacturing, trade and retail commercial body with its [sic] being successfully exported to USA, Japan, Canada, Korea, Philippines, Hong Kong, Taiwan, Russia and other southeast Asian and European countries. In addition to export and export business, the company has now developed its new markets and business venture in finance, stock exchange and real estate development."

Ms Wang described her position with Mindong as "marketing officer". In her curriculum vitae she itemised her duties as:

"* assisting in establishing market policies, sales targets and marketing operation to promote company's business;

* responsible for sales and marketing of wide range of light industrial, chemical and foodstuff products;

* liaising with agents in other domestic cities or overseas countries in relation to import and export business;

* identifying business opportunities in both domestic and international markets;

* introducing new technology and new products into Chinese markets;

* translating commercial documents and conducting business promotion activities;

* representing the company to promote company's and to conduct trade negotiations at domestic and international trade fairs;"

Ms Wang said her work "covers all aspects of marketing operation, trade negotiation and execution concerning import and export business, international investment and various joint venture projects as mentioned above".

On 10 March 1995, through Australian solicitors, Ms Wang applied to the Australian Consulate General in Shanghai for a visa to migrate to Australia pursuant to Subclass 126 of Schedule 2 of the Migration Regulations. The criteria for such a visa included that "(t)he applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act".

At the time, the relevant priority pass mark was 100 points and the pool entrance mark was 95 points. Ms Wang was eligible for 25 points on account of her age and at least 15 points arising out of her command of the English language. Accordingly, if she qualified under item 6102 in relation to employment, and thereby earned 70 points, she more than achieved a priority pass mark.

On 15 March 1996 John Rees, Consul (Visas) in the Shanghai Consulate General, wrote to Ms Wang seeking further information, including an official reference from her employer indicating her position and duties of employment. This was promptly supplied, in the form of a letter headed "To Whom it May Concern". The letter itemised Ms Wang's duties in the same terms as she had done in her curriculum vitae.

On 24 April 1996 Mr Rees sought "evidence to support that Ms Wang has performed the full rank of tasks as Marketing Officer to the same depth and degree of complexity as would be required in Australia". On 3 December 1996 the solicitors replied enclosing a statement by Ms Wang as to her daily duties, photographs relating to her work and further information about Mindong. The last item included an organisational chart from which it appeared the company maintained a separate import and export department answerable to one of the company's three vice-general managers. Ms Wang was marketing officer in this department. The company had 136 employees and, in 1995, an annual turnover equivalent to $US9,600,000.

Mr Rees interviewed Ms Wang. On 22 February 1997 he wrote her a letter advising that her application for a subclass 126 visa had been refused on the basis that she failed to satisfy the relevant requirements. He attached a statement of reasons in which he awarded 25 points in respect of Ms Wang's age and 20 points because of her language skills, but only 25 points because of her employment qualification. In relation to that matter, Mr Rees said:

"In the employment qualification, I am required to determine your `usual occupation'. `Usual occupation' means an occupation the applicant has performed for gain or reward for at least 6 of the 24 months immediately before lodging the migration application. I am then required to assess if your qualifications, skills and employment history meet the standard skill requirements for entry into this occupation in Australia.

Your usual occupation has been classified as Importer and Exporter (ASCO 1601-11). The Australian Standard Classification of Occupations (ASCO) provides the guidelines for this occupation. The ASCO states that the minimum eligibility requirement in Australia to perform this occupation is possession of 6 month[s] on-the-job training and had 5 years previous experience as an import-export clerk.

As your occupations does not require any formal training at the associate diploma level or above, you are entitled to a maximum of 25 points for the employment qualification based on item 6107 of Schedule 6 of the Migration Regulations.

I note that your [sic] claim that your occupation is a marketing officer. However, based on all the information you have provided, and the details you gave to me at interview, I do not accept this claim. You [sic] daily duties and responsibilities are directly aligned to that of an importer and exporter, and not a marketing officer. I do not accept that you have provided any credible evidence to support your contention."

Ms Wang's solicitors had submitted she met the ASCO definition of "Marketing Officer".

It appears there have been two editions of ASCO. The first edition was compiled in the late 1980's by the Australian Bureau of Statistics and the Department of Employment and Industrial Relations. Apparently it was widely used from about 1990. The second edition was published in July 1997, so it was not available in final form when Mr Rees made his decision. However, the second edition was preceded, one year earlier, by a document bearing the title "Australian Standard Classification of Occupations" and the sub-title "Information Paper". The Information Paper explained the purpose of ASCO in this way:

"ASCO is a skill-based classification of occupations which covers all jobs in the Australian work force. The concepts of `job' and `occupation' are fundamental to an understanding of the classification. For the purposes of ASCO, a job is defined as the set of tasks designed to be performed by one individual while an occupation is a set of jobs with similar sets of tasks. Within ASCO, occupations are classified according to two criteria - skill level and skill specialisation."

The terms "skill level" and "skill specialisation" were explained. The document contained an appendix (Appendix 2) listing nine groups of occupations. They were divided into five skill levels, ranging from "managers and administrators" and "professionals" in skill level 1 to "labourers and related workers" in skill level 5. In Appendix 3 each of the nine groups was further divided into sub-groups. Appendix 4 set out the specific occupations thought to be included in each sub-group. None of the appendices referred to "Importer and Exporter" or included an item numbered 1601-11. However, item 1601-11 appears in the first edition of ASCO. The item bears the title "Importer-Exporter", the sub-title "Import-Export Business Manager" and is described as including the following tasks:

". Performs tasks covered by the generic title Managing Supervisor.

. Identifies local demand for overseas produced goods or overseas demand for domestically produced goods, and negotiates conditions of sale with producers.

. Arranges shipping of goods to and from Australia.

. Receives and checks orders.

. Liaises with customs officers and other government representatives to ensure that goods being imported are legal, and meet Australian standards.

. May organise and arrange promotional campaigns for imported goods."

On 2 April 1997 Ms Wang's solicitors filed an Application in this Court seeking review of Mr Rees' decision.

The contentions of counsel

The grounds of review stated in the Application were repetitive in nature and remained so even after an amendment made at the hearing. In reality, the applicant's case came down to one contention: that Mr Rees erred in law in his interpretation of item 6102 of Schedule 6 and, in particular, his approach to the term "usual occupation".

The fundamental contention of counsel for the applicant, Mr Mark Robinson, is that it was erroneous for Mr Rees to determine Ms Wang's "usual occupation" by reference to ASCO; he should have appreciated that the term "usual occupation" is concerned with the provision of skills or services in return for remuneration and examined what skills Ms Wang possessed and what work she actually performed. Mr Robinson also submits Mr Rees erred in himself assessing Ms Wang's qualifications and work experience; he should have referred those matters to NOOSR or the Department of Industrial Relations.

Mr G T Johnson, counsel for the respondent, the Minister for Immigration and Multicultural Affairs, argues Mr Rees did not misconstrue the expression "usual occupation"; he considered all the information supplied by, or on behalf of, Ms Wang but did not accept her claim to be a "marketing officer".

Authorities

During the course of argument, counsel referred to several cases relating to the points test. I will mention two of them. The first case is Rahman v Minister for Immigration and Multicultural Affairs (6 February 1997, unreported). Davies J held the decision maker had erred in having regard to a document issued by the Department of Immigration and Multicultural Affairs called "Procedures Advice Manual" which contained instructions as to the interpretation and application of ASCO. His Honour said it was "not for the Minister or any member of his department to lay down what is the standard for a relevant occupation" -

"If there is an occupation for which in Australia a trade certificate is required, it is plain that standards for that occupation will be laid down either in a document such as the dictionary or in other documents such as awards or in the publications of educational authorities."

Davies J said that, ultimately, the facts are for those who must determine the application; if it happens that a standard set out in ASCO is obsolete, the case must be determined by reference to a more up-to-date standard.

Ye Hu v Rees (Einfeld J, 4 March 1997, unreported) also concerned a decision made by Mr Rees. Mr Ye was trained as a scientist but had been working in the field of electrical engineering. The issue was the nature of his "usual occupation". It is not necessary to recite the facts of the case but it is relevant to note this observation of his Honour:

"The determination of such an application requires more than a narrow matching process between an applicant's tasks and an Australian Standard Classification of Occupations (ASCO) occupational definition. The sensible and correct approach requires the ascertainment of the skills of an applicant and how those skills are being applied in the workplace for remuneration."

Later, Einfeld J pointed to the problem of reverse reasoning:

"In my opinion, the decision-maker fell into error by employing a reverse reasoning process. He started by classifying the applicant as an engineer because some of the duties performed by the applicant happened to coincide with some of the duties listed for an engineer. But he did not consider the applicant against the more sensible classification of being a physicist, having regard to the fact that his qualification was a Bachelor of Science majoring in physics. Secondly, the decision-maker ignored possible alternatives including obvious scientific alternatives. These two factors amount to errors of law."

The decision of Einfeld J was upheld on appeal: see Minister for Immigration and Multicultural Affairs v Ye Hu (von Doussa, Moore and Sackville JJ, 7 November 1997, not reported). The Full Court cited with approval the observations of Kiefel J in Morais v Minister for Immigration, Local Government and Ethnic Affairs [1995] FCA 1074; (1995) 54 FCR 498 at 500 concerning the relationship between the qualifications held by a person and that being the person's "usual occupation". Their Honours made the point that two people may be performing substantially the same duties on behalf of an employer, yet their qualifications and employment history may mean they each have a different "usual occupation". It is important to note that, in Ye Hu, the Court regarded the determination of an applicant's "usual employment" as a finding of fact, to be made having regard to the whole of the material before the decision-maker. The Court gave no support for the view that it was appropriate for a decision-maker simply to determine which of the occupations set out in a compendium such as ASCO appeared most nearly to describe an applicant's occupation.

Conclusions

The nature of Ms Wang's usual occupation is a matter of fact. It was something to be determined by Mr Rees, as the delegate of the Minister. However, a determination about that matter that reflects an erroneous legal approach is bad in law and liable to be set aside on review.

The reasons given by Mr Rees for determining that Ms Wang's usual occupation was importer and exporter are sparse in the extreme. But it is apparent Mr Rees approached his task by asking himself which ASCO classification her activities seemed most nearly to fit. This approach was incorrect. Item 6102 of Schedule 6 made no reference to ASCO. The item referred to an applicant's "usual occupation". In considering how Ms Wang's mix of duties and experience ought properly to be described, Mr Rees was entitled to consult ASCO or any other relevant reference work. But he was not bound by the classifications contained in ASCO; there must always be a possibility that the usual occupation of an applicant will not aptly be described in ASCO at all.

I have mentioned Mr Robinson's argument that Mr Rees should not himself have determined Ms Wang's usual occupation, but should have referred that question to NOOSR or the Department of Industrial Relations. That is incorrect. Item 6102 of the Regulations requires that the applicant's "usual occupation" be "not a priority occupation (para (a)) but be an occupation for which, in Australia, a degree or trade certificate is required or is a professional-equivalent occupation" (para (b)). In determining whether a particular applicant meets those requirements the departmental decision-maker necessarily has to determine the applicant's "usual occupation". It is only at the next stage, in considering the application of para (c) of the item, that the decision-maker is bound to seek an assessment by the "relevant Australian authority". That division of function is logical; para (c) is concerned with matters needing a degree of expert judgment, whereas paras (a) and (b) involve mere findings of fact.

A decision-maker required to determine the "usual occupation" of an applicant should consider the nature of the duties currently being undertaken by the applicant and his or her training and previous work experience and then determine how this composite of duties, training and experience would be described in Australia. In relation to some occupations, the particular industry in which the person is engaged may be significant; in others it may not. For example, "journalist" may be a sufficient description of the usual occupation of a person trained in journalism and working as such, without reference to whether the person is working in the print or electronic media. Similarly, perhaps, with a human resources officer of a company.

As I have said, in determining an applicant's usual occupation, the decision-maker may gain assistance from reference works such as ASCO, but it is important the decision maker not feel bound by any of them. Once the decision-maker has determined the proper description in Australian parlance of the applicant's usual occupation, he or she must then ascertain whether this is an occupation for which, in Australia, a degree or trade certificate "is required" or is a "professional-equivalent occupation", that is an occupation specified as such in a Gazette notification.

There was some discussion at the hearing about the meaning in para (b) of the phrase "is required". So far as counsel are aware, there is no authority on the matter. Mr Robinson submitted the word "required" does not necessarily refer to a legal requirement; the requirement might be one imposed by the marketplace. If, in practical terms, it is not usually possible to obtain employment in a particular occupation in Australia without a degree or trade certificate, Mr Robinson argued this is an occupation for which a degree or trade certificate "is required".

The Minister accepted this approach. In a written submission forwarded after the hearing, the solicitor for the Minister drew attention to the definition of "require" in the Macquarie Dictionary and suggested the applicability of the first three meanings:

"1. to have need of; need;

2. to call on authoritatively, order, or enjoin (a person etc) to do something;

3. to ask for authoritatively or imperatively; demand;"

I am content to apply the first of these meanings. If a particular qualification is necessary, as a practical matter, in order to obtain employment in a particular occupation, that qualification is "required", even though not by law.

As I have indicated, Mr Rees' error was to approach the determination of Ms Wang's occupation, not as a matter of fact but as a matter of classification in ASCO. This was an error of law. It may have affected his ultimate decision. Accordingly, the decision refusing Ms Wang's application must be set aside and the application remitted to the Minister for a fresh determination in accordance with law.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated: 30 January 1998

Counsel for the Applicant:	M Robinson
Solicitor for the Applicant:	Barlow & Co
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 1997