Autor v Minister for Immigration and Multicultural Affairs
[2001] FCA 1538
•2 NOVEMBER 2001
FEDERAL COURT OF AUSTRALIA
Autor v Minister for Immigration & Multicultural Affairs [2001] FCA 1538
IMMIGRATION – entry permit – requirement of work experience or trade qualification – applicant employed as a die setter and machine operator – whether applicant’s occupation a “trade” – relevant procedure in determining whether the applicant’s occupation satisfies the requirements of the Migration (1993) Regulations (Cth) reg 816.721(2)(b)(ii)
WORDS AND PHRASES “trade”
Migration Act 1958 (Cth), s 476
Migration 1993 Regulations (Cth), reg 816.72Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313, not followed
Rahim v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432, followed
Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693, followedHENEDINO AUTOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 782 OF 1997
DOWSETT J
2 NOVEMBER 2001
BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 782 OF 1997
BETWEEN:
HENEDINO AUTOR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
2 NOVEMBER 2001
WHERE MADE:
BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The decision of the Immigration Review Tribunal made on 26 August 1997 be set aside.
2.The claim be remitted to the Tribunal for consideration in accordance with law.
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
NG 782 OF 1997
BETWEEN:
HENEDINO AUTOR
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
DOWSETT J
DATE:
2 NOVEMBER 2001
PLACE:
BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”) for review of a decision of the Immigration Review Tribunal (the “Tribunal”) affirming an earlier decision by the Migration Internal Review Office (the “Department”).
The applicant was born in the Philippines on 6 September 1968 and is a citizen of that country. He entered Australia on 7 April 1988. On 28 July 1994 he applied for special entry permits in classes 816 and 818. Both applications were unsuccessful. In the decision under review, the Tribunal affirmed the Department’s decision. The applicant now seeks review of the Tribunal's decision in so far as it concerns his application for a class 816 permit. His application for review was made on 22 September 1997. For reasons which are not apparent, it was dismissed by Beaumont J on 2 April this year. On 11 July the parties consented to his Honour setting aside that order.
The applicant’s entitlement to such a permit depended upon circumstances as at 1 November 1993. Subclause 816.72 described the relevant criteria as follows:
(2)An applicant meets the requirement of this subclause if, on 1 November 1993:
(a)the applicant in Australia had obtained, or had completed the requirements of, a post-secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; or
(b)the applicant:
(i)held an overseas technical qualification or general academic qualification that is assessed by NOOSR as being comparable to an Australian associate diploma, diploma, degree, or higher degree; or
(ii)held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade:
(A)by the Department of Industrial Relations; or
(B)if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate; or
(C)if neither that Department nor that State or Territory authority is able to make an assessment, by the Minister; or
(c)the applicant:
(i)had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; and
(ii)had met the academic progress requirements of the institution at which he or she was enrolled.
Pursuant to sub cl 816.13, the term “accredited course” means:
… a tertiary course that is:
(a)accredited as a tertiary course by a Commonwealth, State or Territory authority; or
(b)offered and accredited by a tertiary institution that is authorised to accredit its own courses by a Commonwealth, State or Territory authority …
The term “trade certificate” means:
… a certificate called by that name issued by:
(a) a State or Territory training authority; or
(b) a TAFE institution;
following initial trade training undertaken in conjunction with an apprenticeship or following non-apprenticed entry.
These provisions have been considered by numerous members of this Court. One of the earliest cases was the decision of Moore J in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 in which (at 317) his Honour held that:
The expression “trade qualification” in reg 816.721(2)(b)(ii) relates to trades of the type in which the trade skills might be gained by on the job training as an apprentice. The reference to “work experience”… is similarly limited. It concerns work experience for “that trade”, that is, a trade for which there might exist a “trade qualification”
The correctness of this view has been doubted, particularly by Sackville J in Rahim v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432 and by Hill J in Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693. I agree that the view expressed by Moore J was too restrictive. In Rahim, Sackville J said at 438-9:
Viewing the question independently of the authorities, there does not seem to me to be anything in the language of para (b)(ii), having regard to its context, which suggests that the broad dictionary definition of “trade” should not be accepted. In other words, a decision-maker should consider whether the applicant’s experience is in a skilled handicraft or calling, as distinct from a professional occupation on the one hand and unskilled labour on the other. If the answer is in the affirmative, the applicant’s work experience is in a “trade”, for the purposes of para (b)(ii).
However, the decision-maker’s task is not confined to applying the dictionary definition of “trade” to the applicant’s work experience. It is clear that para (b)(ii) contemplates that, assuming the applicant’s work experience is in a trade, an assessment is to be made of whether his or her work experience meets Australian education or training standards for that trade. Before the assessment contemplated by para (b)(ii) can be made, it is necessary for the decision-maker to consider whether the trade has Australian education or training standards. Unless the trade does have such standards, the assessment (which is to be carried out by one of the bodies or persons specified in subpara (A), (B) or (C)) cannot take place. I do not read para (b)(ii) as requiring one of the bodies or persons specified in subpara (A), (B) or (C) to ascertain whether there are Australian education or training standards for that trade. Rather, the language suggests that one of the bodies or persons specified in subpara (A), (B) or (C) must carry out an assessment of whether the applicant’s particular work experience in a trade meets the existing standards for that trade. I think that the better view is that the question whether there are any Australian education or trading standards in existence for that trade must first be determined by the decision-maker, in this case the IRT.
It follows that, in my view, a decision-maker applying para (b)(ii) must consider, first, whether the applicant’s work experience is in a “trade”. Next, if the applicant does have work experience in a trade, the decision-maker must consider whether there are Australian education or training standards for that trade. This is a factual inquiry which, to use the language of Branson J in Tanchiatco v Minister ([1997] FCA 806 (20 August 1997)), must consider whether the trade in which the applicant has work experience is “one in respect of which Australian education or training standards can sensibly be identified” (at 4). If the factual inquiry is resolved favourably to the applicant, it is then necessary for the decision-maker to consider whether the applicant’s particular work experience is assessed as meeting the relevant Australian education or training standards. The last stage of the inquiry must be carried out in accordance with the process set out in para (b)(ii).
In summary, it seems to me that para (b)(ii) requires the decision-maker in a work experience case to undertake what might be described as a three stage process, as follows:
The first task is to ascertain whether the applicant has work experience in a “trade”. In undertaking this task a broad construction of the term “trade” should be adopted. Part of the first task is to identify the “trade” in which the applicant has had work experience.
The second task is to ascertain whether there are Australian education or training standards for the trade in which the applicant has work experience.
The third task (which arises only if the second is resolved in the affirmative) is to ascertain, in accordance with the process set out in para (b)(ii), whether the applicant’s work experience is assessed as meeting the Australian education or training standards for the particular trade.
Hill J took a somewhat different view in Ranatora at 699-700:
I should say that, in my view, in considering cl 816.721(2)(b), the tribunal should proceed on the following basis:
1.It should find and state facts which make it clear what occupation the applicant has which he claims to be a trade falling within the clause;
2.It should find what overseas trade qualifications or work experience the applicant possesses being a matter relevant to understanding the nature of the occupation which the applicant claims to be a trade;
3.The tribunal must then determine whether the occupation is in fact a trade within the meaning of the clause.
In reaching this conclusion the tribunal is not constrained to take a narrow view. An occupation may be a trade notwithstanding the absence of formal training and notwithstanding the absence of anything akin to apprenticeship. An occupation will be a trade if it involves skilled handicraft (there is no implication as such of manual labour in the use of this expression) or perhaps as Sackville J referred to “a skilled calling”.
A distinction must be drawn at one end of the scale to an unskilled occupation which is not a trade. Further up the scale is an occupation which may be described, albeit it involves some training, as a specific job with a particular employer. It will not be a trade. The next end of the scale is the skilled calling which is a trade. Finally, further up the scale is the occupation which is properly characterised as a profession. What distinguishes a trade from a specific job is, as Branson J observed, both a category or body of practical vocational skills involved in a trade being skills of some difficulty but also the generality of those skills. A trade is not merely job specific.
4.The tribunal must then find whether trade qualification or work experience which the applicant has undertaken has been assessed as meeting the Australian Education or Training standards for that trade by the authorities in either (A) or (B) of the subparagraph.
5.If neither of the bodies referred to in (A) or (B) are able to make an assessment of the overseas trade qualification or work experience then the tribunal, standing in the shoes of the minister, must itself make an assessment.
The Department’s approach to this matter appears from reasons given in its internal review process, particularly at pages 4-5 as follows:
Subparagraph 816.721(b)(ii)
The applicant has not shown that on 01 November 1993 he had an overseas trade qualification or work experience that is assessed as meeting Australian training and education standards for that trade.
The applicant has presented evidence that on 01 November 1993 he held a qualification in Refrigeration & Air Conditioning awarded by the Bataan National School of Arts and Trade. He has also presented evidence that on 1 November 1993 he had work experience as a Refrigeration and Air Conditioning Technician. As this occupation is assessed as a trade by the Department of Industrial Relations (DIR), I am satisfied that on 01 November 1993 the applicant had an overseas trade qualification and work experience in a trade.
To meet the requirements of this subparagraph, the applicant’s trade skills must be assessed by DIR as meeting Australian training and education standards. The applicant applied for an assessment of his skills by DIR, but his application was refused on 16 June 1995. DIR advised the applicant that he is not eligible for recognition as a tradesperson in Australia in any trade.
The applicant has requested that he be allowed to approach DIR for another trades assessment. He claims that he has work experience as a Dye Setter at ABB Distribution Pty Ltd in Sydney, and that this work experience should be assessed by DIR. He has submitted two references from ABB Distribution Pty Ltd, dated 27 July 1994 and 25 August 1995. These references do not say that the applicant was employed as a Die Setter, rather they state that he has worked as a Machine Operator since March 1989.
I have considered the applicant’s claims, but I am not satisfied that any further assessment by DIR is warranted. DIR have advised me that the applicant has already provided them with a reference from ABB Distribution Pty Ltd and that they considered this reference along with his documents from the Philippines. DIR did not consider that the applicant’s work experience at ABB Distribution Pty Ltd satisfied their requirements in any trade classification. Moreover, DIR do not regard the occupation of Die Setting and Machine Operating as trades. As the applicant’s work experience in ABB Distribution has already been assessed by DIR, no further assessment is required.
Furthermore, I am not satisfied that the applicant’s work experience at ABB Distribution Pty Ltd can be regarded as work experience in a trade for the purposes of this subparagraph. The references from this company which the applicant has submitted state that he has been employed as a Machine Operator, and I do not consider that this application is a trade.
The Tribunal said, at pp 4-6 of its reasons:
The file shows that the Applicant provided evidence that he held a qualification in Refrigeration and Air Conditioning by the Bataan National School of Arts and Trades in the Philippines and that, at 1 November 1993, he had work experience as a Refrigeration and Air Conditioning Technician. His qualifications and work experience were assessed by the Department of Industrial Relations (“DIR”) and on 16 June 1997 DIR advised him that he was not eligible for recognition as a tradesperson in Australia in any trade.
The Applicant, through his agent, then requested that he be allowed to approach DIR for another trade assessment, claiming that he had work experience as a die setter at ABB Distribution Pty Ltd in Sydney and he should be assessed in the trade of die setter. A reference from ABB Distribution Pty Ltd at folio 23 of the Tribunal file states in part:
‘HA has been employed by ABB since 13 March 1989 as a machine operator. In this time HA has progressed from small machine operation to operating the largest automatic power press in our Liverpool plant.
During this period HA has attended Time Based Management and Total Quality Management Awareness courses, including Customer Focus and Customer Satisfaction. HA has recently (March 1996) been promoted to the position of line supervisor/Die Setter.
HA’s position is quite demanding, as he is responsible for quality, on time production of all primary and manufactured parts for the outdoor assembly area. This involves job planning, material control, staff and machinery allocation, additional responsibilities are die setting and 1st off component checks and prior to job start by press operators.’
To satisfy the legislation, the Applicant would have to show, firstly, that the occupation of die setter, as carried out by him, was considered by DIR as a trade in Australia. The Tribunal understands from DIR and other sources that the occupation of die setter is often loosely attached to occupations in the engineering trade and can mean different things to different people. In assessing an applicant as a die setter DIR would require, amongst other things, detailed knowledge of the type of work the Applicant did plus the types of machine used, in order to classify him as a trades person or otherwise in the engineering trades. Secondly, should he be considered as fitting in to one of the engineering trades, and should he have no formal qualification, as is the case in this matter, he would be required to provide evidence that 1 November 1993, his work experience was considered by DIR as comparable to that of a tradesperson in Australia. It is common knowledge in the area of immigration legislation relating to trade qualifications that DIR policy requires that applicants should have, at the least, 6 years’ work experience in the relevant trade before that experience can be considered as comparable to trade qualifications in Australia. It was with some disquiet therefore that I read, in the submission dated 25 August 1997 of Ms Belen Oag (the Applicant’s adviser who is a registered migration agent), her claim that We submit that Regulations 816.721(2)(ii) does not require [the Applicant] to have 6 years’ work experience. The six (6) years requirement is not relevant for a Class 816 Visa … .
The evidence shows, and this was not disputed by the Applicant at the hearing, that the Applicant’s work experience at ABB commenced on 13 March 1989 as a machine operator. Even if the Tribunal were to accept that the applicant started trade training in 1989 at ABB, it is clear that at 1 November 1993 he would not have the required years of work experience in a trade to warrant consideration by DIR. In any event, the Tribunal notes that at page 4 of the MIRO decision on this matter, the decision maker stated that “DIR have advised me that the applicant has already provided them with a reference from ABB Distribution Pty Ltd, and that they considered this reference along with his documents from the Philippines. DIR did not consider that the applicant’s work experience at ABB Distribution Pty Ltd satisfied their requirements in any trade classification.
For the reasons stated before, I do not consider that further assessment by DIR is warranted in this case.
Clearly, the applicant’s case has changed substantially as the matter has proceeded. Initially, he relied upon his qualifications and experience in refrigeration and air conditioning. It was only after that basis was rendered unavailable as a result of the relevant assessment process that he sought to rely upon his work as a die setter. In his application for review of the Tribunal’s decision, the applicant alleged error of law in that the Tribunal had not sought assessment by the Department of Industrial Relations (“DIR”) of such employment. In argument before me the applicant claimed that at the relevant date, he was qualified as a fork lift driver. He produced a certificate of competency dated 15 October 1993. The applicant argued that had the Tribunal investigated his claim to be a die setter, it would have discovered that his skills and training included that of fork lift driver. In other cases, the Tribunal has held that that such occupation is a trade. I do not wish to endorse such a wide view of the Tribunal’s obligations but nonetheless, I consider that proceedings in the internal review process and in the Tribunal miscarried. I will now outline my reasons for this view.
Internal review
Having disposed of reliance by the applicant upon his experience and qualifications in connection with refrigeration and air conditioning, the reviewing officer turned to the assertion that he had experience as a die setter. The reviewing officer pointed out in his reasons that references from the applicant’s employer dated 27 July 1994 and 25 August 1995 did not refer to such experience. They indicated that he had been employed as a machine operator since March 1989. The reviewer observed that:
•DIR had previously considered a reference from the applicant’s employer, together with information from the Philippines and did not consider that his work experience and qualifications satisfied their requirements in any trade classification. DIR also did not regard the occupations of die setter and machine operator to be trades.
•He (the reviewer) was not satisfied that the occupation of machine operator was a trade.
•Pursuant to the decision in Subraju, for an occupation to be a trade, there must be provision for entry by way of apprenticeship.
I have previously indicated that I consider the view expressed in Subraju to be too narrow. Reliance upon that decision inevitably involved an error of law. There are other causes for concern in the reviewer’s reasons. He did not expressly decide whether die setting was a trade, but it is likely that he acted upon the opinion of DIR that as in the case of machine operating, it was not. It is clear from the decisions of Hill and Sackville JJ to which I have referred that it is for the Minister or relevant delegate to form a view as to whether or not an applicant’s training and experience have been obtained in an occupation which is a trade within the meaning of the regulation. That function may not be transferred to the assessing bodies referred to in par 816.721(2)(b)(ii). It may not be inappropriate to take into account information obtained from DIR in forming a view on that question, but the decision must be that of the Minister or his delegate. The reviewer may also have proceeded upon the basis that any work as a die setter was performed after the relevant date, 1 November 1993. This appears to have been the significance of the allusion to the earlier references from the employer (which did not refer to employment as a die setter). Nevertheless, it is clear from the reviewer’s reasons that the applicant was seeking to rely upon his die setting experience. One might reasonably have expected that the reviewer would have questioned the applicant about his experience in that calling prior to 1 November 1993. He seems not to have done so.
The reviewer’s conclusion that the occupation of machine operator was not a trade was presumably also based upon the views expressed by DIR. Again, this would seem to involve an impermissible abdication of responsibility. Further, it seems that DIR, in its earlier assessment, had acted upon information as to the applicant’s employment which had not been provided to it by the Department. As Hill J pointed out in Ranatora, it is for the Minister to determine the nature and extent of an applicant’s prior work experience. In summary, the reviewing officer was in error in:
•relying upon the decision in Subraju;
•not himself deciding whether die setting was a trade;
•not himself deciding whether machine operating was a trade; and
•relying upon a general determination by DIR that the applicant had no trade qualifications, based upon information as to his work history not established to the satisfaction of the Minister or his delegate.
The Tribunal
The Tribunal understood that for DIR to assess the applicant’s employment as a die setter, it would have to know the functions he had performed in that capacity. Apparently the term is used loosely to describe various occupations in the engineering trade. The Tribunal observed that it would be necessary for DIR to assess his work experience prior to 1 November 1993 “as comparable to that of a tradesperson in Australia”. This appears to be a garbled description of the test prescribed in paragraph 816.721(2)(b)(ii). The Tribunal then continued:
It is common knowledge in the area of immigration legislation relating to trade qualifications that DIR policy requires that applicants should have, at the least, 6 years’ work experience in the relevant trade before that experience can be considered as comparable to trade qualifications in Australia.
The Tribunal concluded that as the applicant had only started employment in 1989, it was impossible for him to have had six years’ training prior to 1 November 1993. Finally, the Tribunal observed that:
‘DIR have advised me that the applicant has already provided them with a reference from ABB Distributions Pty Ltd, and that they considered this reference along with his documents from the Philippines. DIR did not consider that the applicant’s work experience at ABB Distributions Pty Ltd satisfied their requirements in any trade classification’.
Whether one adopts the approach taken by Hill J or that taken by Sackville J, it was for the Tribunal to determine whether or not the applicant had acquired work experience in an identified trade. Although it seems to have understood that the applicant was, by this stage, asserting that his employment as a die setter met that description, and although it was aware that further enquiries were necessary as to the precise nature of his work in that calling, the Tribunal simply did not address the question. It appears to have assumed that it could refer the whole question to DIR. This overlooked the obligation placed upon the Tribunal to identify the relevant trade. In view of the advice as to die setting, the Tribunal should have sought further details from the applicant as to the scope of his employment. This information would be essential in the Tribunal’s discharge of its function of identifying the relevant trade and in DIR’s subsequent assessment process. The Tribunal was also satisfied to rely on the general assessment by DIR of the applicant's work history without itself first determining the extent of that history as it was required to do.
It may be that the Tribunal concluded that none of these matters was significant in the face of its belief that DIR would not accept any period of employment under six years as meeting a relevant requirement. However the regulation required DIR to assess the applicant’s training and experience, not merely to apply an arbitrary rule of thumb. The Tribunal erred in law in proceeding on the basis that DIR would so proceed.
Before me, counsel for the respondent asserted that there was no obligation upon the Tribunal to examine further the assertion that the applicant had experience as a die setter as the only evidence of his involvement in this calling was the letter of 24 July 1997 from the employer which indicated that he had only been so employed from March 1996, well after the relevant date. However the letter indicated that he had been promoted to a position of supervision. It is at least an open inference that he was qualified by his previous experience to undertake such responsibility. Further, at the time of the internal review, the applicant was claiming experience as a die setter. In those circumstances the least that should have been done was to ask the applicant when he had obtained his experience in that calling. The Tribunal appears to have been willing to assume in the applicant’s favour that he had undertaken some such work prior to 1 November 1993. At least, it did not decide as a matter of fact that he had not done so. Had the Tribunal disposed of the matter upon the basis that there was no evidence of his having performed die setting functions prior to 1 November 1993, the decision may have been beyond review. However, it did not do so. Its failure to investigate appears to have been based upon the misconceptions as to its functions to which I have referred.
In summary, the Tribunal erred in:
•failing to inquire as to experience in die setting prior to 1 November 1993;
•not itself determining whether die setting was a trade;
•assuming that it would be necessary for the applicant to have six years' work experience in any trade to satisfy DIR as to his trade qualifications; and
•relying upon a general determination by DIR that the applicant had no trade qualifications, based upon information as to his work history not established to the satisfaction of the Tribunal.
CONCLUSION
The applicant now seems to doubt his capacity to succeed in his application based on his work as a die setter. In argument he preferred to focus upon his qualifications as a fork lift driver. It might seem inappropriate that the Tribunal’s decision should be set aside for failure to investigate reliance upon experience as a die setter when the applicant no longer wishes to pursue that line. However I am by no means confident, having regard to the material before me, that neither die setting nor fork lift driving is capable of being a trade for present purposes. The decision should be set aside because there has been no real performance of the statutory function conferred upon the Tribunal.
There will be orders that:
1.The decision of the Immigration Review Tribunal made on 26 August 1997 be set aside; and
2. The claim be remitted to the Tribunal for consideration in accordance with law.
I will hear submissions as to other orders and costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate:
Dated: 2 November 2001
Counsel for the Applicant:
Mr R E Lee
Solicitor for the Applicant:
Belen Oag Solicitors
Counsel for the Respondent:
Mr J D Smith
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
22 October 2001
Date of Judgment:
2 November 2001
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