Kidner v Secretary, Department of Social Security

[1993] FCA 587

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS v. SOMAN
PLATHARA
No. G945 of 1992
FED No. 587
Number of pages - 5
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Heerey(1) and Beazley(1) JJ

CATCHWORDS

Immigration - application for Permanent Resident Status on occupational grounds s.6A(1)(d) Migration Act 1958 - whether appellant fulfilled criteria for chef/cook - whether findings of officer perverse or capricious - whether exercise of a discretionary policy without regard to the merits of the particular case s.6(2)(f) Administrative Decisions (Judicial Review) Act

Administrative Decisions (Judicial Review) Act 1977 s.6(2)(f)

Migration Act 1958 s.6A(1)(d)

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

HEARING

SYDNEY, 19 May 1993

#DATE 30:8:1993

Counsel for the Appellant: Miss R.M. Henderson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr. M.B. Smith with Mr. M.A. Robinson

Solicitors for the Respondent: Parish Patience

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The respondent pay the appellant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

KEELY, HEEREY AND BEAZLEY JJ This is an appeal from the decision of a judge of this court, remitting for reconsideration, according to the reasons for judgment, an application under the Administrative Decisions (Judicial Review) Act 1977, for review of a decision of the Immigration Review Panel (IRP) refusing the respondent the grant of resident status and requiring the respondent to depart Australia within 28 days of being so advised.

1. The appellant was born in India on 6 November 1961 and arrived in Australia on 28 October 1989. Upon arrival he was granted a Temporary Entry Permit for one month. Prior to the expiration of the entry permit, he made application for the grant of permanent resident status upon occupational grounds under the provisions of s.6A(1)(d) of the Migration Act 1958. The respondent rejected the application on the basis that the applicant did not fulfil the relevant policy criteria for chef/cook. This decision was internally reviewed by the IRP, which confirmed the departmental decision.

2. Between 1974 and 1982, the respondent had been employed by the parish priest of a village church in India and it was he who had sent the respondent for training at the Holy Cross Vocational Institute. A reference from the parish priest described the respondent as "a cook of mine ... for all our various gettogether (sic) and parties ...".

3. The respondent's formal training commenced in about 1983, when he undertook a two year catering and institutional management course at the Holy Cross Vocational Institute, Hazaribag, India. He was awarded his certificate of completion on 15 May 1985, achieving a first division pass. During the course, he underwent two periods of summer training at the Hotel Taj Ganges, Benares, India, between 14 February and 27 March and 7 May and 10 June 1984. A reference provided to the respondent by the hotel stated the respondent had "shown keen aptitude to learn during these periods". He had another period as a vacation trainee at Narangs Motels Pty. Limited from 27 November to 31 December 1984. Between 1 January and 7 April 1985, the respondent had a period of vocational training at the Taj Mahal Hotel, Bombay. His performance there was found to be good. He was subsequently appointed as a trainee cook at that hotel, commencing on 10 June 1985. His contract was renewed in June 1986 and in September he was confirmed as "assistant cook" in the Hotel's "main kitchen department". During his period of employment with the Hotel Taj Mahal the respondent took part in a 3 week Indian food festival in Switzerland. The promoter of the festival gave the respondent a reference in which he said he had "done his work perfectly". Between 13 September 1987 and 12 November 1989 the respondent was employed by the Al-Mansour Hotel in Baghdad in the capacity of chef de partie (food and beverage).

4. After the respondent arrived in Australia he commenced employment as a chef at the Bukhara Indian Restaurant, in the southern suburbs of Sydney. The proprietor of this restaurant supported the respondent's application for the grant of resident status. In a statutory declaration lodged in support of the application, he stated that he found it impossible to obtain a qualified Indian chef in Australia, and that if the respondent was not allowed to remain, he would suffer "substantial financial hardship" in the operation of his business. The respondent's application for resident status was also supported by other, highly commendatory references.

5. On 15 August 1990, the respondent was granted a "craft certificate under the Industrial and Commercial Training Act 1989 (NSW)". That Act permits the issue of a craft certificate where a person has satisfied the vocational training board established under the Act that he or she has acquired skills sufficient to pursue a particular trade. It appears that when making application for the craft certificate, the respondent provided a reference from the head of the division of commercial cookery at The Food School, Department of Technical and Further Education in which, on the basis of his experience in the various establishments are referred to above, he was recommended for "Professional Cook's Status". In making this recommendation, the experience at the parish church in India between 1974 and 1982 was not taken into account "as not being conducted in a professional establishment".

Departmental decision
7. On 24 July 1990, the respondent was advised that his application for grant of resident status had been rejected. The respondent lodged a request for reconsideration of the decision. That application was reviewed internally by the Immigration Review Panel which also rejected the application. The IRP considered and adopted the departmental report which contained the reasons for the original decision. The report made reference to the departmental policy that:

"applicants being assessed on occupational grounds should meet specific policy requirements which are uniform with those of the Employer Nomination Scheme (ENS). ... (This scheme) is designed to enable Australian employers to recruit highly skilled workers when they have been unable to fill their needs from the Australian labour market or through their own training efforts".

1. The policy, which was set out in the GORS Integrated Departmental Instructions Manual (IDIM) provided that the essential requirements to be satisfied for an application on occupational grounds were:
   

". the nominated vacancy must be for an occupation which is highly skilled

. the nominee's qualifications and experience must match the requirement of the vacancy . the employer must be able to demonstrate that labour market testing has yielded no suitable local applicants"

Clause 2.8 provided:

"An occupation may be considered highly skilled when it is normally expected that a person will require the following in order to reach an average level of competence in the occupation: . either 3-5 years formal training or 3-5 years on the job training;

AND

. a minimum of 3 years work experience."

Clause 2.8.4 provided that officers might have resort to the ASCO dictionary for guidance in determining whether or not an occupation could be considered highly skilled. The entry for chef/cook was in these terms:

"Personal Characteristics

Trade qualification plus at least three years of post-trade experience in international standard hotels or restaurants (or equivalent), preferably in French or Asian cuisines, OR on-the-job trained chef with minimum of five years experience as chef in international standard hotels or restaurants in Asian cuisines."

Clause 4.10 then specifically dealt with the acceptable level of skill for chefs/cooks. It was in slightly different terms from the ASCO dictionary, stating:

"An acceptable level of skill includes the following: . for a cuisine where trade training is the standard method of entry (eg. French, Swiss, Austrian), the nominated position should require a chef with trade qualifications and at least 3 years' work experience . for a position in a cuisine where trade training is not common (eg. most Asian cuisines), the position should require a chef with 5 years' on-the-job training and an additional 3 years' work experience - the employing establishment (hotel, restaurant or club) should be of a high standard, preferably international standard. Assessing officers should consult local diners' guides and tourism authorities for an assessment of the quality of the establishment . the position should be at a responsible level, ie. in small establishments the chef/cook should have responsibility for organising the kitchen, planning menus and supervising kitchen staff. In large establishments the chef/cook should be at the executive chef level or a specialist chef eg. chef de partie".

1. The departmental officer accepted that the occupation of chef/cook was on the Priority Occupations List at the time the application was lodged and identified the issue raised by the application for resident status as being whether the respondent could be "regarded as highly skilled in his profession". The respondent's craft certificate was accepted as recognition of the respondent's qualifications in Australia. However, the departmental officer did not accept that the respondent had at least three years of post-trade work experience in international standard hotels or restaurants, as for the purposes of the grant of the craft certificate the respondent's term of employment at the Al-Mansour Hotel, Baghdad was not taken into account. Thus, it was only his post-trade experience gained since the grant of the certificate, which was taken into consideration in determining whether he satisfied the "work experience" criteria of at least three years. The applicant did not meet this policy requirement.

2. The respondent contended that this finding was unreasonable, as there was no basis upon which the craft certificate could be construed as only operating from 15 August 1990, the date it was granted, and that it should be construed as operating from an earlier date. However, there was nothing on the face of the craft certificate, and no other evidentiary material to require such a finding to be made. In any event, this was a finding of fact which is not open to this court to disturb.

3. The officer next looked at the respondent's occupational circumstances to determine whether he could be considered a "highly skilled" on-the-job chef/cook". This criteria required five years on-the-job training and at least three years work experience in high or international standard hotels. The officer took into account the vocational, vacation and summer training that the respondent had at the Hotel Taj Ganges, the Narangs Motels and the Hotel Taj Mahal, and both the trainee and assistant cook positions at the Hotel Taj Mahal. However, the period spent as an assistant cook was only accepted as on-the-job training rather than work experience, as paragraph 4.10.3 of IDIM referred to the position of an assistant cook as being a person who can "prepare food and cook simpler dishes under supervision". An assumption was then made that he worked in this position until he accepted employment at the Hotel Al-Mansour, Baghdad in September 1987. It was calculated that this gave him on-the-job training for a period of two years and ten months. There was then added to that period the two years at the Holy Cross Vocational Training Institute, which was accepted as a "compliment" (sic) to the respondent's on-the-job training.

4. The officer next considered the respondent's work experience as a chef. For this purpose the two year two month period spent at the Al-Mansour Hotel and the employment at the Bukhara Restaurant was considered. However, the officer did not accept the period at the Bukhara Restaurant as relevant experience as he did not consider the restaurant to be of a high or international standard as it only rated 13 points out of a possible score of 20 points in the Sydney Morning Herald Good Food Guide.

5. Two criticisms of this finding were made by counsel for the respondent. First, it was said that it was perverse and capricious. Secondly, it was said that the departmental officer had "merged" the test that the employing establishment should be of a "high standard, preferably international standard". We do not agree with either contention. The rating system in the Good Food Guide was such that 10 points were attributed to "good food" and 5 to each of "service" and "ambience". Restaurants which obtained 15 points or more were awarded "hats" with a possibility of scoring up to 3 "hats". The Bukhara did not score a "hat", although it has been described elsewhere as the second best Indian restaurant in Sydney. Nor do we consider that the officer merged the test specified in the policy. In the early part of the departmental report the references are as already set out. In our opinion, the phraseology "high/international standard" used in the latter part of the report was merely a shorthand reference to the policy requirements. The finding that the Bukhara was not a high/international standard restaurant was clearly open and in no way could be described as capricious.

6. The departmental officer dealt next with the Al-Mansour Hotel and noted that it was not listed as a "high/international standard hotel" in the January to June 1991 edition of the Travel Trade Year Book. On this basis, the officer still found that the respondent did not meet the ""highly skilled" requirements of an on-the-job trained chef/cook" as he did not have the minimum three years experience in an international standard hotel or restaurant.

7. The Minister was entitled to adopt a policy as a guide to the exercise of the discretion under s.6A(1)(d). The policy in fact adopted was designed to ensure that only persons with a high level of work skills would be granted permanent residence. This was a legitimate objective and not inconsistent with the terms of the legislation. The contrary was not suggested.

8. In formulating a policy to give effect to that objective in relation to chefs, the policy maker adopted criteria relating to trade qualifications and work experience. In the case of the latter, a particular kind of work experience was stipulated by reference to the kind of establishment at which the applicant worked, viz "high standard, preferably international standard" hotels and restaurants.

9. The appellant did not argue that this policy was unlawful. It was plainly a rational way of achieving the policy objective and, one would think, from the standpoint of fair and consistent decision making, preferable to a policy which would leave each individual's cooking skills to be assessed on a case by case basis.

10. The classification of a given hotel or restaurant as "international standard" is a question of fact. To some extent it is a value judgment. Reasonable people might in some cases differ as to whether a particular establishment answered that description while in other cases the answer would be so obvious that a finding to the contrary would be perverse.

11. In the present case the decision-maker took the view that neither the Hotel Al-Mansour in Baghdad nor the Bukhara Restaurant in Caringbah were of "international standard". In each case a reason was given - the Hotel Al-Mansour did not appear in a travel industry publication and the Bukhara scored 13 out of 20 in a well known Sydney restaurant guide (a publication tendered by the respondent in support of its case).

12. These reasons do not appear to us to be in themselves irrational or perverse. The decision that neither establishment met the criteria of "international standard" was one of fact and one to which a reasonable person could come. A court exercising the limited function of judicial review is not authorised to reconsider this question afresh and make its own assessment of the facts. (Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321)

13. Once it is accepted that (i) the policy was a lawful one and (ii) by a process of legitimate administrative fact finding the decision-maker found that the respondent did not come within that policy, we do not think the decision was unlawful as involving an exercise of a discretionary policy without regard to the merits of a particular case: AD(JR) Act s.5(2)(f). It is inherent in any policy which includes criteria expressed in terms of time periods for training or work experience that there will be cases which fall close to the line, but on the wrong side.

14. In the present case, the closest the respondent got was four years ten months on-the-job training (including two years at the Holy Cross Institute), which is very close to the five years required, but without the additional three years work experience in an establishment "of a high standard, preferably international standard". Even if the Hotel Al-Mansour qualified, he only had two years two months there.

15. The respondent is clearly a skilled cook. The decision-maker took into account quite impressive references, some of which appear to be from persons well qualified to assess the respondent's work. The decision-maker might have come to the conclusion that the respondent's personal skills outweighed his failure to comply with the policy guidelines, but did not. That was a decision we think was legally open.
    

16. In the circumstances we uphold the appeal. The orders we make are:
    

1. That the appeal be upheld.

2. That the respondent pay the appellant's costs.