Islam v Minister for Immigration & Multicultural Affairs [2000] FCA 1183

FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration & Multicultural Affairs [2000] FCA 1183 MIGRATION – points test – skill sub-factor – whether delegate erred by determining the applicant was a "waiter" not a "formal service waiter" – whether delegate erred by referring to the second edition of the Australian Standard Classification of occupations – second edition published after the visa application but before the delegate's decision – first edition of ASCO recognised the occupation of "formal service waiter" – second edition did not Migration Act 1958 s 93 Migration Regulations 1994 sub-reg 2.26(5), Items 6102, 6103 and 6107 in Schedule 6 Australian Standard Classification of Occupations Wang v Minister for Immigration & Multicultural Affairs (Wilcox J, 30 January 1999, unreported) cited MOHAMMED SAIFUL ISLAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1204 OF 1999 TAMBERLIN J SYDNEY 23 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1204 OF 1999

BETWEEN: MOHAMMED SAIFUL ISLAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 23 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed with costs. 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 N1204 OF 1999

BETWEEN: MOHAMMED SAIFUL ISLAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 23 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a "points" assessment decision made on 7 September 1999 by a delegate of the Minister under s 93 of the Migration Act 1958 ("the Act") by a departmental officer, Mr Brown ("the delegate"). 2 The original visa application was for what is known as an Independent (Migration) (Class AT) Visa. The application was lodged on 23 February 1996. This visa class includes sub-class 126 (Independent). Applicants are eligible to be granted an Independent (Migrant) (Class AT) Visa only if they meet the legislative criteria including, relevantly, the requirements of sub-class 126. Satisfaction of these criteria involves the attainment of qualifying points based in part on applicants' skills. 3 The points for the skill element of the points test are awarded on the basis of the applicant's "usual occupation" and the qualifications necessary to practise it in Australia. This expression is defined in sub-regulation 2.26(5) of the Migration Regulations 1994 ("the Regulations") to mean: "… 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 a visa." 4 Since the application was made on 23 February 1996 the relevant period is a continuous six month period in the two years from 23 February 1994. 5 The applicant was awarded 25 points in relation to the Skill sub-factor by the delegate on the basis that his usual occupation was a waiter, and accordingly he fell within Item 6107 of Schedule 6 of the Regulations. The gravamen of the applicant's case is that he should have been credited with more than 25 points on the basis that his usual occupation was a "Formal Service Waiter" or a "Silver Service Waiter" and that this occupation required a "trade certificate." Once these qualifications were required, it was submitted, the applicant met the requirements of Item 6103 of Schedule 6 of the Regulations and was entitled to 60 points. 6 When assessing the applicant's usual occupation the delegate consulted the July 1996 edition of Australian Standard Classification of Occupations ("ASCO 2") which lists only "Waiter (General)" as a specific occupational classification. The applicant submits his application should have been assessed according to the earlier edition of ASCO ("ASCO 1") which lists "Formal Service Waiter" (aka "Silver Service Waiter") as an occupation. The relevant ASCO extracts are also set out below. 7 The decision in respect of which judicial review is sought is brief and relevantly reads: "THE POINTS TEST You applied for what is now known as a Class AT Independent Skilled Migration Visa on 23 February 1996. This visa class includes visa subclass 126 (Independent) and subclass 135 (State/Territory Nominated Independent). An applicant is eligible to be granted a Class AT Independent Skilled Migration Visa only if they can meet all the legislative criteria relating to either subclass 126 or subclass 135. Points for the Skill sub-factor of the Points Test are awarded on the basis of the applicant's usual occupation. The term "usual occupation" is defined in Sub-regulation 2.26(5) as meaning an occupation in which the applicant has engaged in for gain or reward for a continuous period of at least 6 months in the two-years preceding the application. The numbers of points to be awarded are specified in Schedule 6 of the Regulations. Based on the information provided in your application and supporting documents, I assessed that you have a "usual occupation" as defined in Sub-regulation 2.26(5) since you have been employed as a waiter since June 1990. To classify your usual occupation, the Australian Standard Classification of Occupations (ASCO) Dictionary (Second Edition) was consulted. Based on the information provided in your application and supporting documents, for the purpose of allocating points for the Skill sub-factor, your usual occupation is considered to be that of a Waiter (ASCO 6323-11). According to the relevant Procedures Advice Manual (PAM) and ASCO, the minimum educational entry requirement for a Waiter is an Australian Qualification Framework (AQF) Certificate 11 or higher qualification. Schedule 6, Part 6107 states, amongst other things, that: The applicant who: (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 is to be awarded 25 points for the Skill factor. Accordingly, you have been awarded 25 points under the Skill Factor. The point allocation is based on the skill level of your occupation and not the academic qualifications you hold. I have awarded you 30 points under the Age sub-factor on the basis that you were 27 at the time of your application (Item 6201 of Part 2 of Schedule 6) and, based on your IELTS Language test result, 20 points under the Language sub-factor (Item 6304 of Part 3 of Schedule 6). You, therefore, have obtained a total score of 75 points which is less than the Gazetted Pool (95 points) and Gazetted Pass (105 points) marks. As such you are unable to satisfy the prescribed requirement of Clause 126.221 and 135.223. As you fail to meet one of the Legal requirements for the grant of a Class AT Migrant Visa, you are not eligible to be granted a class AT Migrant Visa and I have refused your application. Minimum points required for further processing: 95 Actual points scored: 75 Breakdown of score Skill 25 Age 30 Language 20 Bonus 0 ___ Total: 75" (Emphasis added)