Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081

FEDERAL COURT OF AUSTRALIA

Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081

MINH SON DO -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 846 of 2000

RYAN J

2 SEPTEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 846 of 2000

BETWEEN: MINH SON DO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 2 SEPTEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application such costs 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

VICTORIA DISTRICT REGISTRY V 846 of 2000

BETWEEN: MINH SON DO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 2 SEPTEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks judicial review pursuant to Part 8 of the Migration Act 1958 ("the Act") of a decision made by the Migration Review Tribunal ("the Tribunal") on 5 October 2000. The decision affirmed a delegate of the respondent Minister's decision to refuse the grant of a General Residence (Class AS) visa, subclass 805. The primary decision of the delegate was made on 18 November 1999 in relation to an application for visa lodged on 21 December 1998. 2 The applicant was required to meet the criteria prescribed in Sch 2 Pt 805 of the Migration Regulations 1994 ("the Regulations") as at December 1998, in order for the Minister to grant to the applicant a subclass 805 visa. 3 The applicant is a national of Vietnam born on 15 May 1960. From 1978 to 1983 he completed a full time course at the Moscow Institute of Railway Transport majoring in the construction of bridges and tunnels. He was awarded a Bachelor Degree of Civil Engineering of Transportation from that Institute in December 1983. 4 From 1984 to 1991 he worked for Hanoi Transport Engineering and Designing Institute as a bridge designing engineer. In 1992 until 1994 he worked for Vietnam General Construction Company and worked on the Road Improvement Project in Laos for two years. 5 The applicant arrived in Australia on 18 June 1994 holding a student visa (subclass 560) permitting him to remain in Australia until 31 December 1998. He was enrolled in and completed a six month English language course at Edith Cowan University in Perth. Following that, in 1995, he moved to Melbourne where he attended a further English language course at Casey College of TAFE for six months and attained an advanced level of proficiency in English. 6 During his studies the applicant maintained part-time employment in various restaurants and worked casually for a business called "C.S. Traffic Surveys". 7 In 1997 the applicant obtained full time employment at Polar Electronic Industries Pty Ltd ("Polar Electronic") as a planner and sales engineer. The Tribunal noted:- "The visa applicant stated that he had begun working at Polar Electronic Industries as an apprentice. The company advertised a position of Technical Sales Engineer on 24 October 1998 because the employer wished to expand into Vietnam and South East Asia. The visa applicant stated variously that he approached the employer to take up the position and that the position was created for him. He stated that he began in the position at the end of 1998. He stated that he was initially training but planning towards the future when they could develop the product and try to develop other opportunities to expand into Vietnam. He had returned to Vietnam early in 2000 to set up connections and networks in Vietnam for the company. The visa applicant stated that he does not yet quite have the requisite skills to undertake his present position. He stated that he still requires a full understanding of the product so that he can introduce it to companies in Australia. He stated that he does not have enough experience yet to do so." 8 The applicant lodged an application for a General Residence (Class AS) visa, subclass 805 (Skilled) on 21 December 1998. His application was supported by an employer nomination provided by Polar Electronic. 9 The application for a General Residence (Class AS) visa, subclass 805 (Skilled) required the applicant to satisfy the criteria stipulated in Schedule 2, subclause 805.212 of the Regulations. Subclause (1) of Reg 805.212 required the applicant to meet the requirements of sub-clauses (2), (3), (4), (5), (6) or (7). Subclauses 212(6) and (7) provided as follows; "(6) An applicant meets the requirements of this subclause if: (a) the applicant produces written testimony given by an Australian Citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to a profession, occupation or other activity as to the applicant's standing in that profession, occupation or activity; and (b) either: (i) the applicant: (A) has an exceptional record of achievement in that occupation, profession or activity; and (B) would be an asset to the Australian community; and (C) would have no difficulty in obtaining employment or in becoming established independently in Australia in that occupation, profession or activity; or (ii) the applicant has a record of outstanding achievement and is still prominent in the arts or sport. (7) An applicant meets the requirements of this subclause if: (a) the applicant: (i) has an exceptional record of achievement in that occupation, profession or activity; and (ii) would be an asset to the Australian community; and (iii) would have no difficulty in obtaining employment or in becoming established independently in Australia in that occupation, profession or activity; or (b) the applicant has a record of outstanding achievement and is still prominent in the arts or sport; or (c) In the opinion of the Minister, acting on the advice of: (i) The Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or (ii) the Director-General of Security; the applicant has provided specialised assistance to the Australian Government in matters of security." 10 The Tribunal found that the applicant did not meet the requirements of subclauses 805.212(6) or (7) because he did not have "an exceptional record of achievement in an occupation, profession or activity at the date of application." 11 The applicant contended before this Court that the Tribunal had erred in law within the meaning of s 476(1)(e) of the Act, by giving an erroneous construction to the term exceptional record of achievement. 12 The applicant's record of achievement had three main elements; (i) his degree in engineering;