Appasami-Gounder, Alemelu Magamma v Minister for Immigration & Multicultural Affairs [1998] FCA 186

FEDERAL COURT OF AUSTRALIA MIGRATION LAW - visa application - points system - determination of points to be awarded for visa applicant's "usual occupation" - determination made by reference to Australian Standard of Classification of Occupations - whether determination exhibited error of law - whether failure to consider more favourable classification of employment qualification - whether remittance to Immigration Review Tribunal futile - appeal allowed. Migration Act 1958 (Cth), ss 93, 96 Migration Regulations, reg 2.26, Pt 1 Sch 6 items 6107 and 6104 Zeng Guang Wang v Minister for Immigration and Multicultural Affairs (Wilcox J, 30 January 1998, unreported), applied ALEMELU MAGAMMA APPASAMI-GOUNDER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SG 84 of 1997 MANSFIELD J ADELAIDE 5 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 84 of 1997

BETWEEN: alemelu magamma appasami-gounDer

Applicant

AND: minister for immigration and multicultural affairs

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 5 March 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application allowed. 2. Application be remitted to a differently constituted Immigration Review Tribunal for further hearing and determination in accordance with these reasons. 3. Respondent pay to the applicant her costs of the application to be taxed. 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 84 of 1997

BETWEEN: alemelu magamma appasami-gounDer

Applicant

AND: minister for immigration and multicultural affairs

Respondent

JUDGE: MANSFIELD J

DATE: 5 March 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT BACKGROUND The applicant is an Australian citizen. Her nephew Dharmendran Murgesan ("the visa applicant") was born in Fiji on 12 April 1963. He is a Fijian citizen. He is not married. Both his parents are deceased and he has no siblings resident in Fiji. On 24 November 1995, the visa applicant applied to migrate to Australia. He was sponsored by the applicant. His application was for a Concessional Family (Migrant) (Class AJ) Subclass 105 (Concessional Family) visa. The Migration Regulations ("the Regulations") have been amended in some respects subsequent to his application. Since 1 July 1997, the equivalent visa is now called a Skilled — Australian Linked (Migrant) (Class AJ) Subclass 105 — Skilled — Australian Linked visa. It is common ground that the change is of no especial significance in the resolution of this application. I shall therefore refer generally to "the visa" or "the visa application" to encompass both those descriptions. On 4 March 1996, the visa application was refused. Subsequently, following internal review of the visa application under Pt V of the Migration Act 1958 (Cth) ("the Act"), on 20 November 1996 that decision to refuse him a visa was affirmed by the Migration Internal Review Office. On 31 January 1997, the applicant sought review of that decision. On 30 September 1997, the Immigration Review Tribunal ("the Tribunal") affirmed the decision under review to refuse the visa applicant the grant of the visa. This is an appeal from that decision. The appeal lies under s 475 of the Act, but the grounds of review are limited to those identified in s 476 of the Act. Those grounds include that the procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed: s 476(1)(a) - see Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and that the decision involved an error of law: s 476(1)(e). It is principally because of an alleged error of law that this application is brought. It was not contended by the respondent that the ground of review raised did not properly fall within that description. THE "POINTS" SYSTEM Section 29 of the Act entitles the Minister to grant a non-citizen a visa to travel to and into Australia, and to remain in Australia. The classes of visa are those prescribed in the Regulations, as well as those provided for in ss 32-38 of the Act. The visa in question is one prescribed by the Regulations. The Regulations also prescribe criteria for the grant of the various classes of visa. It is contemplated that, for the purposes of some visas, the prescribed criteria may include a criterion that the applicant receives a certain score ("the qualifying score") when assessed to determine whether that person is eligible for the particular class of visa sought. That "points" system applied to the visa sought by the visa applicant. Section 93 of the Act requires that an assessment be made of "the prescribed number of points" for each prescribed qualification that is satisfied in relation to the visa applicant. Section 96 enables the Minister, from time to time, by notice in the Gazette, to specify in relation to a class of visa the relevant mark which must be achieved to qualify for further consideration of that applicant's visa application. The current determination of the Minister effective from 1 July 1997 in relation to the visa which the visa applicant sought is one hundred and fifteen points. At material times prior to that date, the specified qualifying score in relation to the visa applicant was ninety points. Section 350 of the Act, in the present circumstances, obliged the Tribunal to have regard to the Regulations in force at the time of the initial assessment of the visa application, or at the time of the decision made by the Tribunal about the assessment, whichever is the more favourable to the applicant. It is accepted by the respondent, in those circumstances, that the more favourable "pass mark" to the applicant is that which was obtained at the time the visa application was first assessed, namely ninety points. Regulation 105.22 of the Migration Regulations specifies the criteria to be satisfied at the time of the decision in relation to visas of the kind for which the visa applicant applied. They include, under reg 105.222 that the applicant have the qualifying score when assessed in accordance with the "points" system. Regulation 2.26(1)(a) of the Regulations prescribes, in respect of the visa for which the visa applicant applied, that the seven qualifications in Sch 6 to the Regulations is each a prescribed qualification for the purposes of the "points" system, and reg 2.26(2) directs that the points prescribed in Sch 6 apply. Those qualifications are: employment qualification, age qualification, language skill qualification, relationship qualification, citizenship qualification, settlement of sponsor qualification, and location of sponsor qualification. Both the initial decision-maker, on review, and then the Tribunal all approached the quantification of the points to which the visa applicant was entitled in accordance with those provisions. With one exception, which gives rise to the present appeal, there is no dispute as to that process. In each instance the total points to which the visa applicant was found to be entitled was eighty points, so that he did not reach the qualification level which s 93 and reg 2.26 contemplated and as determined by the respondent. His application was therefore refused. It is only in respect of the employment qualification that there is an issue before the Court. Under Pt 1 of Sch 6 to the Regulations, there are alternatively nine items for the employment qualification, attracting points ranging from eighty to ten. The relevant items for present purposes are items 6107 and 6104. Item 6107, which the Tribunal found to be the appropriate item, and which attracts twenty-five points, reads as follows: "The applicant: (a) applies to enter Australia: (i) on the basis of an occupation that is the applicant's usual occupation, being an occupation entry to which in Australia requires a certificate or advanced certificate; and (ii) as a person who has educational qualifications equivalent to completion of 4, 5 or 6 years of secondary education in Australia; and (iii) as a person who has a certificate or advanced certificate that meets Australian standards for that occupation, or has work experience that is assessed by the relevant Australian authority to be equivalent to a post-secondary qualification of that kind; . . ."