Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 843
MIGRATION – 'skilled independent' visa – application for review – criteria for architect – where applicant highly qualified lecturer in architecture – whether work as lecturer in architecture amounts to work as 'architect' as defined – ASCO definition exhaustive – application dismissed. WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 352 OF 2005 MADGWICK J 8 JUNE 2005 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 352 OF 2005
BETWEEN: YI JUN WANG
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MADGWICK J
DATE OF ORDER: 8 JUNE 2005
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application be 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 N 352 OF 2005
BETWEEN: YI JUN WANG
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MADGWICK J
DATE: 8 JUNE 2005
PLACE: SYDNEY
REASONS FOR JUDGMENT
Madgwick J: 1 This case concerns whether a delegate of the respondent Minister fell into jurisdictional error in considering the applicant's application for a Class BN Subclass 136 Skilled – Independent (migrant) visa, which she applied for on 2 September 2004. The delegate refused the application on 9 February 2005. The delegate's decision is not reviewable by the Migration Review Tribunal ('the Tribunal') because the visa is not one that can be granted in the migration zone.
The regulatory framework 2 Subclass 136 of Schedule 2 to the Migration Regulations 1994 sets out some of the criteria to be met at the time of application for the grant of a Subclass 136 visa, which is another way of describing the visa in question. Clause 136.213(1) relevantly makes a condition of the grant of the visa that the applicant has been 'employed' in a 'skilled occupation' for at least 12 of the 18 months immediately preceding the date on which the application is made. 'Employed' is defined by regulation 2.26A of the Migration Regulations as 'engaged in an occupation for remuneration for at least 20 hours weekly'. Regulation 1.03 defines 'skilled occupation' as 'an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available'. 3 The relevant Gazette Notice specifies, as an occupation carrying sixty points for the operation of the relevant points system, 'Architect', and 'ASCO Code' 2121-11 is referred to in the notification as relevant to that occupation. An assessing authority is specified. The function of the assessing authority is to assess the skill level of the applicant as satisfying Australian standards and is otherwise, so far as I can see, not relevant. The specification has relevantly appended to it the following: 'NOTE 5: An occupation classification listed in ASCO (second edition) not referred to in the Schedule [of the skilled occupations specified] is not to be regarded as a skilled occupation for the purposes of regulation 1.03 of the Regulations.' 4 Those purposes include the presently relevant purposes. 5 The specification indicates by way of a footnote that: 'ASCO code references are those contained in McLennan, W, ASCO - Australian Standard Classification of Occupations, Second Edition, Australian Bureau of Statistics, 1997.' 6 The ASCO entry for the code given is as follows: '2121-11 Architect Designs buildings or advises on the procurement of buildings, provides concepts, plans, specifications and detailed drawings, and negotiates with builders. Skill Level: The entry requirement for this occupation is a bachelor degree or higher qualification and relevant experience in addition to the formal qualification. Registration is required. Tasks Include: · obtains advice from clients or management to determine type, style and size of buildings or alterations · provides information regarding designs, materials and estimated building times · prepares project documentation, including sketches and scale drawings, and integrates structural, mechanical and aesthetic elements in final designs · writes specifications and contract documents for use by builders and calls tenders on behalf of clients · consults with a range of engineers and experts in the fields of environmental design · develops feasibility studies jointly with quantity surveyors and other workers · inspects and oversees construction work to ensure compliance with specifications · may specialise in the design of commercial, industrial, institutional, residential or recreational buildings or in conservation architecture · may supervise and coordinate the work of architectural associates · may use computer-assisted design software and equipment to prepare project designs and documentation'
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