He, Zhilin v Minister for Immigration & Multicultural Affairs

[1997] FCA 273

C A T C H W O R D S

MIGRATION - Appeal from decision of Immigration Review Tribunal - application failed to name Minister as respondent - Commissioner for Vocational Training assessed work experience of applicant as not meeting Australian Educational Training Standards - Tribunal found applicant failed to meet criteria for grant of a class 816 entry permit - whether error of law. 

PRACTICE & PROCEDURE - Application failed to name Minister as respondent - whether substantial compliance with procedure.

Migration Act 1958 (Cth) - ss 476, 478, 480
Migration Regulations - para 816.721(2)

Barzideh v Minister for Immigration and Ethnic Affairs (Unreported, Hill J, Federal Court of Australia, 12 February 1997)
Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at pages 357-358

ZHILIN HE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No NG 874 of 1996

Davies J
25 February 1997
Sydney

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG 874 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:               ZHILIN HE

Applicant

AND:  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Coram:           Davies J
Date:              25 February 1997
Place:              Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent's 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     )  No NG 874 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:               ZHILIN HE

Applicant

AND:  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Coram:           Davies J
Date:              25 February 1997
Place:              Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Immigration Review Tribunal.  There is an objection to competency.  This is based upon the fact that the application, when lodged, referred to the respondent as the Immigration Review Tribunal.  Subsequently, I ordered during an interlocutory hearing that the Minister for Immigration and Multicultural Affairs be substituted.  The point which is now taken is that in accordance with Barzideh v Minister for Immigration and Ethnic Affairs (Unreported, Hill J, Federal Court of Australia, 12 February 1997) the application was invalid.

I have some doubts about that case, which did not on the point refer to any authorities.  I would be inclined to apply the principles which were set out in Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at pages 357-358. It seems to me to be strongly arguable that there was substantial compliance with the provisions of s 478 of the Migration Act 1958 (Cth) ("the Act"). Section 478 requires that an application under s 476, which is the relevant provision, must be (a) made in such manner as specified in the Rules of Court and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of that decision.

The application is an application for the review by the Federal Court of a judicially reviewable decision, a decision of the Immigration Review Tribunal. On its face, the application lodged with the Court was precisely that, an application to review a decision of the Immigration Review Tribunal. It therefore seems to me to be strongly arguable that there was substantial compliance with the provisions of s 478 of the Act. That brings me then to s 480, which specifies who are to be the parties to the review. One of the parties is to be the Minister, and the other party is to be the applicant. One party here was wrongly named and accordingly to comply with s 480 the proper party was substituted. That seems to be not a matter which is vital to the time limit which s 478 prescribes, and there was substantial compliance with s 478.

I make these remarks merely as introduction, as I have not found it necessary to form any concluded view on the point. This appeal is brought under the Act and requires relevantly that there be an error of law in the decision of the Immigration
Review Tribunal.  I am not persuaded by what the applicant has had to say that there was any error of law on the Tribunal's part. 

The applicant first referred me to two letters, one of 17 June 1994 from the Department of Immigration and Ethnic Affairs and the second of 25 January 1995 from the same Department.  The applicant alleged that there was an inconsistency between those two letters.  It may be that that there was such an inconsistency.  However, neither letter constituted a relevant decision.  Both letters required the provision of further information or the taking of necessary steps.  Therefore it seems to me that those letters do not suggest any error of law on the Tribunal's part. 

The Tribunal's decision was given after there had been a hearing in which the applicant gave evidence.  The reasons for decision are carefully expressed, the relevant provisions of the legislation and regulations are attached and the central points of those regulations are further set out in the reasons. 

The crux of the matter arises from para 816.721(2) of the provisions governing a class 816 entry permit.  That paragraph requires that there be educational qualifications or a technical qualification or general academic qualification.  This qualification must be assessed by the National Office of Overseas Skills Recognition ("NOOSR") as being comparable to an Australian Associate Diploma, Degree or Higher Degree, the holding of an overseas trade qualification, or the holding of work experience that was assessed as meeting Australian Educational Training Standards for that trade.  That assessment was to be made by the Department of Industrial
Relations or, if that Department was unable to make an assessment, by the State or Territory Authority designated by the Minister or, if neither of those was able to make an assessment, by the Minister.  In the subject case, NOOSR had not made a relevant assessment.  As the trade of cook was not a trade which was assessed by the Department of Industrial Relations, the matter was then put before the New South Wales Commissioner for Vocational Training, who was thought to be the State authority that was appropriate to make the determination to the trade relied upon by the applicant.  The determination of the New South Wales Commissioner for Vocational Training was adverse to the applicant. 

It was on these facts which lead the Immigration Review Tribunal to conclude that the applicant did not satisfy the criteria necessary for the grant of the entry permit.

The applicant, in the course of his address, has mentioned the experience he has had as a cook.  However, such matters are matters of fact and degree and the determination of the issue of fact is for the decision-makers of fact, which in this case would be both the Commissioner for Vocational Guidance and the Immigration Review Tribunal.  A wrong finding of fact, if it occurred, is not in itself is an error of law. 

Having read the decision and having heard what the applicant has to say, I am not satisfied that there was any error in the decision of the Immigration Review Tribunal.  Accordingly the application must be dismissed with costs.

I certify that this and the preceding 4 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.

Associate:

Date:  25 February 1997

For the applicant:  In person.  

Counsel for the respondent:               V.A. Hartstein

Solicitor for the respondent:              Australian Government Solicitor       

Date of hearing:  25 February 1997       

Date of judgment:  25 February 1997