Trenin v Minister for Immigration & Multicultural Affairs [1999] FCA 24 (22 January 1999)

Last Updated: 27 January 1999

FEDERAL COURT OF AUSTRALIA

Trenin v Minister for Immigration & Multicultural Affairs [1999] FCA 24

MIGRATION - visa application - points system - criteria involved in determination of applicant's "usual occupation" - use of the Australian Standard Classification of Occupations - reference to Australian Institute of Management as the relevant Australian authority - no reviewable error of law

Migration Act 1958 (Cth), ss 45, 47, 65, 93, 94, 96

Migration Regulations 1958 (Cth) Sch 6

Administrative Law - Wade & Forsyth (7^th Ed)

Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 followed

Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (30 January 1998, unreported) Wilcox J cited

Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred to

Mohammad Rahman v Minister for Immigration and Multicultural Affairs (Davies J, 6 February 1997, unreported) cited

Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 1 WLR 1393 cited

Repatriation Commission v O'Brien [1985] HCA 10; (1983-84) 155 CLR 422 cited

SERGEI TRENIN v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NO. SG 72 OF 1998

O'LOUGHLIN J

22 JANUARY 1999

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 72 OF 1998

BETWEEN:	SERGEI TRENIN Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	O'LOUGHLIN J
DATE OF ODER:	22 JANUARY 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for an order of review be set aside.

2. The applicant pay the costs of the respondent which costs are to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 72 OF 1998

BETWEEN:	SERGEI TRENIN Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'LOUGHLIN J
DATE:	22 JANUARY 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant, a Latvian national, applied unsuccessfully for a Class 126 (Independent) Visa to enter Australia. A delegate of the respondent Minister having come to the conclusion that the applicant's claim could not succeed, and the Minister's decision was communicated to the applicant's Australian representative by the Australian Embassy in Warsaw by letter dated 2 June 1998. The applicant now applies for an order reviewing that decision.

2 By virtue of the provisions of s 45 of the Migration Act 1958 (Cth) ("the Act") a non-citizen who wants a visa must apply for a visa of a particular class. Section 47 states that the Minister is to consider a valid application for a visa and s 65 states that, after considering a valid application for a visa, the Minister, if satisfied that all criteria have been satisfied, is to grant the visa; but, if the Minister is not so satisfied, he is to refuse to grant the visa: par 65(1)(b).

3 Part 2 Div 3 Subdiv B of the Act is entitled "The `Points' System". Under this system, the Minister is 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": subs 93(1). If an applicant's assessed score is more than or equal to the applicable pass mark, he or she is taken to have received the qualifying score; counsel agreed that, at the relevant time, the applicable pass mark for a Class 126 (Independent) Visa was 115 points. If the assessed score is less than the applicable pass mark but more than or equal to the applicable pool mark, the Minister must put the application aside for a period of twelve months in case there is a variation proclaimed in the pool mark that is favourable to the applicant: the Minister is empowered under s 96 to vary the pool mark from time to time. On the other hand, if an applicant's assessed score is less than the applicable pool mark at the time when the score is assessed, the applicant is taken not to have received the qualifying score: see subs 94(2). The pool mark at the time when the applicant's score was assessed was ninety-five points.

4 The prescribed points and the manner of their allocation are provided for in reg 2.26 and sch 6 of the Migration Regulations. Schedule 6 is entitled "General Points Test - Qualifications and Points". Part 1 of schedule 6, which is entitled "Employment Qualification", addresses an applicant's "usual occupation", a term that is defined in reg 2.26 as meaning "an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for visa". In Mr Trenin's case, the relevant two year period commenced on 3 September 1995 and concluded on the date of the receipt of his application on 2 September 1997. Part 1 of the sixth schedule offers nine classifications of "occupation", affording the highest of them eighty points and the lowest ten points. Mr Trenin was given only twenty-five points by the respondent's delegate for his "usual occupation"; that placed him in the seventh category. His claim is that he should have been placed in the second category, thereby earning seventy points.

5 The next criterion appears in Part 2 of schedule 6; it is entitled "Age Qualification". Again there are several categories, the highest of which is that relating to an applicant aged between eighteen and thirty. Mr Trenin fitted into this category and was awarded the maximum thirty points.

6 Part 3 of schedule 6 deals with "Language Skill Qualifications". The highest category in this criterion gives twenty points. However, no formal assessment of Mr Trenin's English language proficiency was made by the delegate. As Mr Trenin has claimed that he completed a four year university course in the English language, it is more than likely that he would have a high degree of proficiency in English. According to the information in his application, he spent four years at the Latvian University at Riga graduating with a Bachelor of Philology in June 1993. But even if the task of assessing his proficiency had been undertaken and he had been awarded the maximum twenty points, his other points, (which only totalled fifty-five) would not have been sufficient to lift him up to the minimum level of ninety-five points. His application for a visa was therefore refused.

7 There are four more criteria in schedule 6 that can earn an applicant additional points, but it was not suggested that any of them are of assistance to Mr Trenin; they deal with the circumstances that exist when an applicant has been sponsored in respect of his application for a visa - but Mr Trenin did not have a sponsor.

8 As I have said, the decision of the Minister's delegate was forwarded to Mr Trenin under cover of a letter dated 2 June 1998. The relevant extract from the decision is as follows:

"Mr Trenin's usual occupation is a Finance Manager (ASCO 2^nd edition assessment occupation code 1211-11.) Mr Trenin's qualifications have not been recognised by the Australian Institute of Management. Mr Trenin was awarded 25 points on the skill sub-factor for post secondary qualifications and work experience only. Being 25 years old at time of application Mr Trenin scores 30 points on the age sub-factor. No formal assessment of his English language proficiency has been undertaken and therefore no points awarded. No assessment was made because, even if Mr Trenin obtained the maximum possible score of 20 points for this sub factor, his total score would not meet the current pool entry mark of 95 points."

The relevance of ASCO and the Australian Institute of Management is discussed later in these reasons.

9 The three grounds that were advanced in support of the application for an order of review were, first, that the information that was submitted on Mr Trenin's behalf about his "usual occupation" identified it as "Airline Finance Manager" but, so it was claimed, that information was never considered by the Minister's delegate. Secondly, it was claimed that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the delegate. The particulars that were supplied in support of this ground were as follows:

"The assessment of an application for a Class 126 (Independent Migration) visa requires that the Minister's delegate assess the usual occupation of the applicant. In assessing the usual occupation of an applicant the Minister's delegate has and had recourse to the Australian Standard Classification of Occupations (ASCO). In applying the ASCO classifications to the facts of the applicant's occupation to the Minister's delegate was in error."

Finally, it was alleged that there was no evidence or other material to justify the making of the decision. Although each of these grounds were advanced in support of the application for an order of review, the case, in reality, centred upon the correct classification of Mr Trenin's "usual occupation". Was the Minister's delegate in error in failing to place him in the second category? If Mr Trenin had achieved that classification and thereby earned seventy points, his point count of thirty for his age would have taken him past the pool mark and brought him to within fifteen points of the pass mark; that extra fifteen points might have been available to him when his proficiency in English was tested. At this stage however, the critical issue is the correct classification of Mr Trenin's "usual occupation" and nothing is to be gained from surmising what points he might have earned if his language abilities had been assessed.

10 The first task of a decision maker is to determine, as a matter of fact, whether an applicant such as Mr Trenin has a "usual occupation" as that term is defined in the regulations; if such an occupation can be identified, it then becomes necessary for the decision maker to determine the nature and extent of that occupation: Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 at 321-322. In that case, the Full Court said at p 322 that "... a person's qualifications, skills and employment history are likely to be relevant in determining that person's usual occupation". Although the weight that is to be given to these factors may vary from case to case, the Full Court was at pains to emphasise that it would amount to an error in law if the Minister's delegate interpreted the definition of "usual occupation" narrowly as requiring attention to be focussed, for example, exclusively on the tasks performed by an applicant during a particular period of employment. (at p 324) In the present case, the delegate merely identified Mr Trenin's usual occupation as being a "Finance Manager". No reasons were given in support of that conclusion but the absence of reasons was not the subject of a ground of appeal. It may be assumed that such a categorisation was based on the information that had been supplied by or on behalf of the applicant; there is nothing to suggest that the delegate made inquiries of third parties or had access to other material.

11 The classification that the applicant seeks, that is, the second category, is that which is set out as item 6102 of Part 1 of the sixth schedule. That item reads as follows:

"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."

12 It is common ground that Mr Trenin's occupation is not a priority occupation. Hence, nothing further need be said about the contents of par (a) of the item. I turn then to consider the effect of par (b).

13 In Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (30 January 1998, unreported), Wilcox J had to consider the role of the decision-maker in ascertaining an applicant's "usual occupation". As in this case, the applicant in Zeng's case was seeking a classification in the second category. His Honour identified two fundamental responsibilities; he said that:

"A decision-maker required to determine the `usual occupation' of an applicant should consider 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."

14 Because of the absence of reasons, it cannot be said with confidence that the Minister's delegate followed this process in coming to her decision. Later, his Honour added:

"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."

15 The delegate's decision did not identify whether Mr Trenin's occupation was one for which, in Australia, a degree or trade certificate was required or whether it was one that is a professional-equivalent occupation. Once the abovementioned tasks have been performed, the delegate then has to consider the requirement of par (c) of the item: was the applicant's usual occupation one in respect of which the "relevant Australian authority" had made an assessment that, at least of three years before the application was made, the applicant had obtained, either through course work or experience or a combination of both, the required educational standard? There must be a relationship or connection between the "usual occupation" and the educational standard because it must be an occupation "in respect of which" the applicant obtained or achieved that standard. Furthermore the educational standard must be assessed by "the relevant Australian authority" to be equivalent to the Australian standards for the occupation.

16 At the relevant time reg 2.26(5) defined the term "relevant Australian authority" as meaning:

"(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or
(b) the Department of Industrial Relations; or
(c) if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister;"

"NOOSR" stands for the National Office of Overseas Skills Recognition.

17 Paragraph (d) of item 6102 need not be considered. There was no suggestion by either party that any Australian occupational licence or registration applied to the applicant's "usual occupation" no matter how that may ultimately be described.

18 Paragraphs (e) and (f) can be taken in combination. The delegate has to be satisfied that Mr Trenin was employed in his "usual occupation" on 3 September 1994, (that being the day that was three years before the day on which Mr Trenin made his application) and that it has been an occupation in which Mr Trenin has worked, or is closely related to an occupation in which Mr Trenin has worked, for a period or periods that total two years in that three year period.

19 Although it is not appropriate to use the term "onus of proof" in matters of administrative decision making: (c.f. the remarks of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 283), it is, nevertheless, the responsibility of the applicant, in a case such as this, "to put forward a positive case, and that means identifying the relevant occupation and showing that the relevant authority has assessed the applicant's academic and trade training and work experience as being the equivalent of the Australian standard": Mohammad Rahman v Minister for Immigration and Multicultural Affairs (Davies J, 6 February 1997, unreported).

20 I turn then to consider the material that was placed before the delegate by Mr Trenin.

21 In his application for a visa ("the application") Mr Trenin was required to give answers to a variety of questions. The information that he offered in those answers, relative to his educational standards and work experience, may be summarised as follows: he completed ten years of primary and secondary schooling in Riga, Latvia, between 1979 and 1989, after which he attended the Latvian University where he completed a Bachelor of Philogy degree in 1993. According to Mr Trenin's answer the "Language of Instruction" for his degree was English. From 1991 until late 1992, he worked part-time as a translator at the Central Scientific Research Institute of Civil Aviation. In December 1992, Mr Trenin took up employment with Baltic International Airlines where he remained until May 1995. He described his occupation during this period of employment as "Interpreter - Marketing Finance Dept. Supervisor". In May 1995 Mr Trenin moved to his present employment with Riga Airlines; he has variously described his current occupation as "Director of Finance" and "Airline Finance Manager". In answer to a question in the application "Have you completed an apprenticeship/trade indenture?" Mr Trenin ticked the box marked "No" but in response to the next question "Have you been given any special skills training by your employer...?" he answered "Yes". He then answered a series of questions to the effect that from 11 January 1994 for a period of two months until March 1994 (when he was employed by Baltic International Airlines as a Marketing Manager) he had obtained qualifications in "Bookkeeping/Taxation" and "Airline Finance"; he described his training in these subjects as "Formal training plus on going inhouse training". He acknowledged, however, in answer to Question 30 that he did not hold any "employment licence, registration or association membership".

22 As an addendum to the application, further information was supplied with respect to Mr Trenin's duties during his former employment with Baltic International Airlines and his current employment with Riga Airlines. As to his former employment, he said that his duties comprised:

"Working as a business professional as interpreter; wholesale sales and marketing to the travel community; and liaising with other commercial businesses to promote activities through the airline company.

From 1994 supervising the finance department, being responsible for internal financial statement production, financial reporting to local agencies and interline reporting."

His duties with his current employer were described in these terms:

"Director of Airline Finance.
Supervising the accounts department: Payables/receivables control: Interline billing: IATA Clearing House documents: Revenue/expense accounting control: Liaison with foreign agents and representatives: Commercial contracts: Fare strategy."

23 That description coincided with the description of his duties as contained in a letter of reference dated 23 April 1997 from his current employer Riga Airlines. His migration agent, Ms Sutherland, submitted in the addendum to the application that there was a "relationship" between Mr Trenin's educational qualifications and his usual occupation which was described in these terms:

"DEGREE
Throughout his working experience there has been a reliance on the knowledge of the English language to a high level of sophistication. Documentation and letters from outside sources are frequently in English. Professional business demands that all translations and communication convey a high degree of competency in language. The course studied focused on the subjects : Linguistics, International Economic Relations and English Business Writing.

INCOMPANY TRAINING
Airline Finance, Bookkeeping and Taxation including attendance at University of Latvia for courses in Accountancy as supplementary to degree studies as further professional development.

IATA CERTIFICATE AIRLINE FINANCE & ACCOUNTING MANAGEMENT
Professional Development to help in his capacity as a Director of Airline Finance."

24 In addition to his University degree, Mr Trenin also received in 1994 a Certificate of Attendance from the Institute of Mathematics and Informatics of the Latvian University in respect of an Accountancy course and in 1996 he received a Certificate from the International Air Transport Association (IATA) that certified that he had passed "with distinction the examination of the IATA Course AIRLINE FINANCE & ACCOUNTING MANAGEMENT". The Certificate that he obtained from the Institute of Mathematics and Informatics stated that he had "heard a series of lectures at the courses in accountancy being new accountancy system; accounting report; drawing up of balance; (sic) preparation of annual report; tax legislation of LR."

25 The document known as the Australian Standard Classification of Occupations (ASCO) was referred to during the course of submissions in the present case; extracts only from the publication were tendered. Although formal identification of its provenance was not established by either party, its role - particularly in matters of this nature - is well known. Davies J described it as a "dictionary" that had been published by the Department of Employment and Industrial Relations and the Australian Bureau of Statistics: Mohammad Rahman v Minister for Immigration and Multicultural Affairs: (see above). Wilcox J gave some further information about ASCO in Zeng's case (see above) when he referred to an Information Paper that explained ASCO's purpose 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."

26 The utility of ASCO is that it helps the decision-maker in making a determination about a person's "usual occupation". In some cases, the nature of the duties that are set out under a particular title in ASCO might be matched, without difficulty, with the duties that are set out in an application. In such a case it can be an easy task for the decision-maker to satisfy himself or herself that the applicant's "usual occupation", as identified by the applicant in the application, accords with Australian Standards for the same occupation. However, ASCO is not the final determiner; it would be wrong for the decision-maker to approach his or her task "by asking himself which ASCO classification [an applicant's] activities seemed most nearly to fit.": Zeng's case - see above. As his Honour observed in that case:

"In considering how [the applicant's] mix of duties and experience ought properly to be described, Mr Rees [the decision-maker] 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."

27 Ms Sutherland had reservations in Mr Trenin's case about the assistance that might be obtained from ASCO. In the submission that accompanied the application, she wrote that the position of "Director of Airline Finance" did not appear in the first edition of ASCO. She added:

"Aspects of this occupation appear under the descriptions of Generic Title of Manager 1303-11 and Finance Director 1301-11, But neither of these classifications accurately fit the duties of [Mr Trenin]."

28 She then claimed that his "usual occupation" should be classified under the ASCO Code as "Professionals NEC 2999-99", adding that the "requirement for this category is a three to four year degree which the applicant was awarded in 1993". (The acronym "NEC" stands for "not elsewhere classified"). There is a fundamental flaw in this proposition. It assumes that a degree in any discipline would be sufficient for the purpose of the classification. On the contrary, it is obvious that the degree must be an appropriate degree of relevance to the "usual occupation". For example (and without, at this stage attempting an exact classification of Mr Trenin's occupation) it is obvious that a degree in Accountancy would be highly relevant whereas a degree in Medicine would equally be irrelevant. A critical question in this case - and the one which "the relevant Australian authority" had to assess - was the status (if any) that was to be afforded to Mr Trenin's degree in Philology.

29 Investigations were made on Mr Trenin's behalf to ascertain the Australian equivalent of his Latvian occupation. For that purpose, Ms Sutherland approached Qantas Airways Limited ("Qantas") who wrote her on 14 May 1997 saying:

"I refer to your fax regarding where your overseas client may `fall' within the Qantas structure.

I would suggest that from his work background the person would be employable in our Corporate Finance Department, possibly as a Finance Manager. This position title does not necessarily require formal accountancy qualifications."

A week or so later, Qantas wrote Ms Sutherland again, this time saying:

"There has been a trend over the past few years to recruit senior management positions through out `Corporate Graduate Trainee Program' (copy attached).

It would be fair to say that a `degree' would certainly be an advantage, and in some cases mandatory, for senior management positions recruited externally."

In the attached program there is a passage which reads:

"Applicants must possess a University degree with outstanding academic results (discipline not important) and be permanent residents of Australia...It is important to note that trainees work as generalists at the strategic level of the business, gaining a broad overview of the airline rather than at the operational level."

30 A second edition of ASCO was published in July 1997, shortly before Mr Trenin's application was received by the respondent, but after it had been compiled. (There was a delay of some months because the application had been forwarded to the wrong Australian Embassy). The first edition classification of "Professionals NEC 2999-99" became a partial match with the classification "Specialist Managers NEC 1299-79" in the second edition; that last mentioned classification called for a "skill level" based on a "3-4 year degree or diploma". The duties of "Specialist Managers", as set out in the second edition are as follows:

"SPECIALIST MANAGERS coordinate the administration and operation of specialised functions or fields of activity within an organisation. Under broad direction from the General Manager, they plan, administer and review the financial, corporate, personnel, supply and distribution, information technology, sales and marketing, and other specialised activities of an organisation.

Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Tasks performed by Specialist Managers typically include formulation of policy and plans for their area of control; establishing and directing operational and administrative procedures, controlling expenditure; monitoring the selection, training and performance of staff; directing strategies for overall production; analysing information technology needs; and controlling sales, marketing and promotional activities."

31 But the second edition of ASCO gave a separate classification to "Finance Manager" (also described as "Finance Director" or "Financial Controller"). Such a person is described in the second edition as one who "plans, administers and reviews the financial and accounting activities within an organisation" and whose "skill level" is described as being the holder of - at least - a bachelor's degree or five years work experience. The tasks of a finance manager were described in the second edition in this way:

" planning and overseeing the financial operations of the organisation and directing the formulation of budgetary and accounting policies in consultation with other managers

providing financial information and interpreting the implications for business performance and funding needs

coordinating the development, implementation and monitoring of accounting systems

directing the collection of financial and accounting information and the preparation of budgets, reports, forecasts and statutory returns

assessing capital finance proposals and the financial status of operational projects

advising on investment strategies, source of funds and the distribution of earnings."

32 Counsel for the applicant rejected the proposition that the classification of "Finance Director" was the appropriate classification for the work that Mr Trenin was performing: he submitted that he should be classified as an "Airline Finance Manager" and that his correct classification in the ASCO dictionary was "Specialist Manager". Whilst I agree that Mr Trenin is a Finance Manager in a company that can properly be described as an airline company - and in that sense he is an "Airline Finance Manager" - nevertheless the presence of the adjective "Airline" does not, in my opinion, without more, mean that a Finance Manager of an Airline company is different, in any material way, from a Finance Manager of another company that carries on a different business. In my opinion, this issue was a question of fact that was to be determined by the decision-maker. I do not see any justifiable reason for this Court challenging the conclusion that she reached. Using the ASCO dictionary as an evidentiary aid and the advice of the Australian Institute of Management ("the AIM") as "the relevant Australian authority", it was for her to decide whether Mr Trenin's duties with Riga Airlines accorded more with those of a Specialist Manager or more with those of a Finance Manager.

33 In my opinion there was ample material before the decision-maker, by way of the information contained in the application and the letters from Qantas that justified her conclusion that Mr Trenin had a "usual occupation" that was properly classified as a "finance manager". However, as I have said, in her reasons for her decision, the decision-maker failed to state whether the "usual occupation" was, in terms of par (b) of item 6102, of schedule 6 of the Regulations one:

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

(ii) that is a professional-equivalent occupation".

The material that was obtained from Qantas suggests that a degree might not presently be essential but that the company is moving towards that objective. In Zeng's case (see above) Wilcox J was of the opinion that if a particular qualification were necessary as a practical matter in order to obtain employment in a particular occupation, that qualification is "required" even though not by law. In any event, in the present case, the delegate was instrumental in directing Mr Trenin to forward his application to the AIM for assessment and was, therefore, operating in terms of par (c) item 6102. If she had considered that Mr Trenin's occupation was one that did not require a degree or trade certificate, she would not have, presumably, thought it necessary to refer the matter to the AIM for assessment.

34 It was the case for the Minister that NOOSR had authorised the AIM to assess the educational qualifications or work experience of Mr Trenin. That proposition was supported by a statutory declaration of a Judith Winternitz who declared:

"The National Office of Overseas Skills Recognition (NOOSR) has authorised the Australian Institute of Management (AIM) to undertake skills assessment for migration purposes of certain management related occupations. It is NOOSR's intention that the occupation of Finance Manager (ASCO Code 1211-11) be assessed by the Australian Society of Certified Practising Accountants or the Institute of Chartered Accountants in Australia except where the visa applicant does not have formal qualifications to accountancy. In this situation, applicants should be assessed by the Australian Institute of Management. This arrangement was agreed between NOOSR, AIM and the Department of Immigration and Multicultural Affairs (DIMA) in November 1997 and has been reflected in DIMA's Procedures Advice Manual Manager guideline since December 1997. It has also been agreed between NOOSR and AIM that AIM be the relevant Australian authority for the assessment of certain other management occupations. These arrangements have been in place for a number of years and are also reflected in the Procedures Advice Manual guidelines of December 1997."

35 Ms Winternitz did not identify herself or her authority to speak on behalf of NOOSR; nor did she exhibit to her declaration a copy of any written authorisation appointing AIM to be the delegate of NOOSR. However, I do not think that either of these omissions are material in the circumstances of this case. The statutory declaration was filed by the respondent at the request of the Court and with the concurrence of counsel for the applicant because neither party could identify, during the course of submissions, how and when AIM became involved in the assessment of Mr Trenin's application. Although Ms Sutherland had questioned the role of AIM from the outset, she had only done so in terms of "jurisdiction" - not in the sense that AIM lacked the necessary written authority from NOOSR. Thus she wrote the Australian Embassy in Warsaw on 26 February 1998 saying:

"We have also submitted an application to the Australian Institute of Management for assessment. However I wish to point out that his `usual occupation' is Airline Finance Manager which may not come under the jurisdiction of the AIM. It is for this reason that I obtained information from Qantas which is an international airline to match his experience and qualifications with the Australian equivalent. You will note that the Employer Relations Manager has suggested that Mr Trenin would `be employable in our Corporate Finance Department, possibly as a Finance Manager'."

I am prepared to proceed on a presumption of regularity: see Administrative Law - Wade & Forsyth (7^th Ed) at p 334:- "Judges have likewise spoken of the clearly established presumption that statutory duties are duly and properly performed": Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 1 WLR 1393 at 1399 (Goulding J), affirmed [1974] 1 WLR 1342. If at any time during the decision-making process the question of the validity of the delegation by NOOSR of its duties to the AIM had been raised, then there can be no doubt that there would have been a shift in the burden so that it would have become the responsibility of the Minister to place before the Court information and material that would satisfy the Court that there had, in fact, been such a valid delegation. But, in the absence of any such challenge at that time, it would be grossly unfair to permit the applicant to raise at this stage, the absence of evidence of the written delegation. As I have said, the Court should be entitled to proceed on a presumption of regularity.

36 Although the assessment that was made by the AIM with respect to Mr Trenin and his qualifications is lengthy, it is desirable to set it out in full for it represents the nature of the information that was before the decision-maker at the time when she made her decision. In a letter dated 3 March 1998, addressed to Ms Sutherland, the AIM wrote:

"The Manager Assessment material you have forwarded to this office has now been examined and from the information supplied I regret to advise that the applicant does not satisfy the minimum requirements for a professional manager as set out in the Manager Assessment guidelines of the Department of Immigration and Ethnic Affairs' Procedures Advice Manual. These guidelines set out the level of qualifications, training and work experience assessed by AIM as the relevant Australian authority pursuant to regulation 2.26(5) to be equivalent to the Australian standards for the occupation in accordance with the requirements in Schedule 6 of the Migration Regulations.

To satisfy these requirements applicants must hold a senior management position at the level of an Associate Fellow of AIM and for your information the criteria used is as follows:

A record of proven management achievement over a period of five years or more in a senior management position such as a chief executive, general manager or senior functional manager who delegates authority to several other managers who themselves have management responsibilities such as planning, organising, decision-making and supervision of staff.

A critical factor to be considered in assessing a position against the PAM Guidelines is whether a person delegates authority to other managers who are themselves responsible for planning, organisation, decision making, staffing and control, and who in turn delegate to others. It should be noted, however, that it is not simply that a manager has subordinate managers reporting but also the range of functions those subordinate managers themselves undertake. Further, a person having the title `manager' does not necessarily mean that they would be regarded as a manager in the terms used in the PAM guidelines.

In assessing someone at the Associate Fellow level our principal concern is to identify the exercise of management responsibilities involving managing people who themselves are managers with staff reporting to them and for whom they have the full extent of management responsibilities as well as themselves exercising a range of management functions at an advanced level of responsibility.

A senior manager at the Associate Fellow level would play a key role in shaping and influencing the development and direction of the organisation through establishing objectives, strategies and tactics.

On the evidence provided the applicant's responsibilities and the depth of those responsibilities are not commensurate with the requirements for a senior manager at the Associate Fellow level. It is the complexity and size of the management task that influences the level of management and the key tasks undertaken by the applicant are not at the relevant senior management level."

37 The first sentence of that letter is misleading for it suggests that the contents of the Department's Procedures Advice Manual ("PAM") determines the minimum requirements for a professional manager. That is not, of course, the correct position. It is NOOSR or its delegate (in this case the AIM) that is to make the assessment. It would seem, however, that this has occurred in the case of Mr Trenin's application because in the second sentence of the letter it is stated that the guidelines that are contained in the PAM set out the "level of qualifications, training and work experience assessed by AIM...". The letter from the AIM is also unhelpful in that it fails to make mention of Mr Trenin's academic background. One is left to assume that the AIM was of the opinion that qualifications in Philology were of little or no value in Australia in the occupation of a "Finance Manager" or an "Airline Finance Manager". But, having regard to the fact that par (c) of item 6102 makes specific reference to "a degree, trade certificate, diploma, associate diploma or post-trade qualification" and also having regard to the fact that Ms Sutherland had advanced a relationship between Mr Trenin's degree and his work, it would have been helpful if either the AIM in its letter, or the delegate in her reasons, had explained that no credit had been given to Mr Trenin for his degree in Philology and for his other educational qualifications. However, this factor was not the subject of a ground of appeal and I have mentioned it only for the sake of completeness.

38 It is not for this Court to express a view on the assessment that the AIM made in respect of Mr Trenin's application unless there is some identifiable error of law that may have played some part in the assessment process. For example, the AIM identified the material that was submitted to it on Mr Trenin's behalf as "Manager assessment material" and aligned it to the requirements for a "professional manager". It then had regard to "the level of qualifications, training and work experience" which the AIM had assessed as being the "equivalent to the Australian standards for the occupation...". Although the letter is silent on the subject, I take that to mean that the AIM was addressing the content of sub par (ii) of par (c), that is, was Mr Trenin's occupation one in respect of which he had "completed work experience assessed by [the AIM] to be equivalent to the Australian standards for the occupation"? Although I am critical of some omissions in the AIM's letter, those omissions were not the subject of any ground of appeal and managers may be excused for thinking of such criticisms as a lawyer's demand for a state of perfection. In short, one can assess the AIM's letter by having regard to what it says and by what it omits to say, as giving no credit to Mr Trenin's educational achievements and as reporting that the "usual occupation" of a "finance manager" equates with that of a "professional manager". The letter then sets out the standards that are required of a "professional manager" and concludes that Mr Trenin "does not satisfy the minimum requirements for a professional manager". Despite the many criticisms that I have made, not only in respect of the absence of reasons in the delegate's decision, but also in the failure of the AIM to make specific reference to the educational and academic qualifications of Mr Trenin, it must be acknowledged that this final assessment of the AIM sounded the death knell to Mr Trenin's application.

39 At this stage, it becomes appropriate to return to each of the requirements of item 6102 of Part 1 of the Sixth Schedule. The information that was before the Minister's delegate for the purpose of assessing Mr Trenin's application showed that his occupation was not a priority occupation but, in view of the second letter from Qantas, was an occupation which, if the applicant wished to remain in the airline industry, was one for which, in Australia, a degree was "required". However, in terms of par (c) of item 6102, the assessment of the AIM, as the relevant Australian authority, was that Mr Trenin had not "completed work experience ... equivalent to the Australian standards for the occupation".

Although it was not the subject of mention in the delegate's decision, there is a further impediment to Mr Trenin's application. Although the definition of "usual occupation" relates back only for the period of two years immediately preceding the application for a visa, item 6102 requires an applicant to have followed his or her usual occupation over a three year period. Thus par (c) stipulates that the usual occupation must be one in respect of which, at least three years before the relevant application was made, Mr Trenin either obtained academic or practical qualifications - or a mixture of both. Furthermore, the combined effect of pars (e) and (f) is that Mr Trenin had to be employed in his usual occupation on 3 September 1994 - that being the day that was three years before the day on which his application was made - and had to have worked in that occupation for periods totalling two years in that three year period. On 3 September 1994 Mr Trenin was still employed by Baltic International Airlines: he did not commence employment with Riga Airlines until May 1995. His whole case was presented upon the nature of his duties with Riga Airlines; no attempt was made to include his employment history with his former employer, which, as is apparent from the information in the application, contained elements of the work of an interpreter as well as that of a marketing manager. It would not have been proper for the Minister's delegate to have ignored his employment history with his former employer but it is difficult to lift it up to the status of a Finance Manager, let alone the status of a Specialist Manager (or an Airline Finance Manager) as was the submission that was advanced on his behalf.

40 It was submitted on behalf of Mr Trenin that the delegate construed her task as no more than a matching process between the applicant's work history and the occupation definitions that are contained in the ASCO dictionary; it was also submitted that the delegate did not consider whether or not the applicant's mix of duties and experience might be more properly described in another way, there being nothing in the decision to suggest that any possibility other than "Finance Manager" as defined by ASCO had been considered. I take this submission to mean that the delegate failed to consider whether Mr Trenin's occupation should have been classified as an Airline Finance Manager. I do not consider that there is any substance in this submission. It was quite clear that Ms Sutherland was attempting to emphasise that her client was something more than a mere "finance manager"; that could not have escaped the attention of the delegate. The mere fact that it was not referred to in the delegate's reasons is not a ground for inferring that it was overlooked: Repatriation Commission v O'Brien [1985] HCA 10; (1983-84) 155 CLR 422 at 445-556 per Brennan J.

41 The decision-making process was unsatisfactory in many respects in this case. But, within the framework of the grounds of appeal, I have not been convinced that any error of law has been identified. When one stands back and looks at this matter in the broad, it can be reduced to a simple factor. Mr Trenin sought to present himself as a reasonably highly qualified specialist manager. The relevant Australian authority, after having regard to his work experience and, presumably, his academic and educational qualifications, made an assessment that Mr Trenin's application did not match equivalent Australian standards. That, unfortunately for Mr Trenin, is the end of the matter.

42 His appeal must be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate:

Dated: 22 January 1999

Counsel for the Applicant:	Mr G Gibbons
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	4 November 1998
Date of Judgment:	22 January 1999