Masuoka, Hiromi v Immigration Review Tribunal

[1996] FCA 509

CATCHWORDS

ADMINISTRATIVE LAW - Migration - Employer Nomination Scheme - Approved appointment - Requirement that Minister be satisfied that employer makes adequate provision for training existing employees in work relevant to business - "Adequate provision" - "Training" - Whether provision must be made for training all employees - On the job instruction - Whether "training".

Migration (1993) Regulations, reg.7.10(2)(d)(i)

In re Sinnott [1948] VLR 279
Hughes v. National Trustees (1979) 143 CLR 134
Public Service Association (SA) v. Federated Clerks' Union (1991) 173 CLR 132
Craig v. South Australia (1995) 69 ALJR 873
Avon Downs Pty Ltd v. Federal Commissioner of Taxation (1949) 78 CLR 353

HIROMI MASUOKA and CHUJI ISHIZAKI v IMMIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 36 of 1996

CORAM:Burchett, Whitlam and Sundberg JJ

PLACE:Melbourne

DATE:27 June 1996

IN THE FULL COURT OF THE                 )

FEDERAL COURT OF AUSTRALIA        )          No VG 36 of 1996

VICTORIA DISTRICT REGISTRY            )

GENERAL DIVISION  )

BETWEEN:HIROMI MASUOKA

First Appellant

AND:CHUJI ISHIZAKI

Second Appellant

AND:IMMIGRATION REVIEW TRIBUNAL

First Respondent

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

CORAM:Burchett, Whitlam and Sundberg JJ

DATE:27 June 1996

PLACE:Melbourne

MINUTES OF ORDER

The Court orders that:

1. The appeal be allowed, and the orders made at first instance be set aside.

1. In lieu of the orders set aside, it be ordered that the decision of the Immigration Review Tribunal be set aside and that the matter be remitted to the Immigration Review Tribunal, differently constituted, to be reconsidered in the light of the Court's reasons for judgment.

1. The second respondent pay the appellants' costs of the hearing at first instance and of the appeal.

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

IN THE FULL COURT OF THE                 )

FEDERAL COURT OF AUSTRALIA        )          No VG 36 of 1996

VICTORIA DISTRICT REGISTRY            )

GENERAL DIVISION  )

BETWEEN:HIROMI MASUOKA

First Appellant

AND:CHUJI ISHIZAKI

Second Appellant

AND:IMMIGRATION REVIEW TRIBUNAL

First Respondent

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

CORAM:Burchett, Whitlam and Sundberg JJ

DATE:27 June 1996

PLACE:Melbourne

REASONS FOR JUDGMENT

THE COURT:
Background
The second appellant ("the employer") is a permanent resident of Australia of Japanese origin.  He conducts a restaurant in Melbourne known as Toki's Sushi Bar where traditional Japanese food is served.  In June 1992 the employer nominated the first appellant, who is a Japanese citizen, for entry into Australia for permanent residence under the Employer Nomination Scheme.  He nominated her because he wanted to employ her as manager of the 
restaurant.  The nomination was "refused" by a delegate of the second respondent ("the Minister").  The refusal was affirmed after an internal review, and the Immigration Review Tribunal affirmed that decision.  An application for review under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") was dismissed by Olney J. The appellants have appealed to this court.

Regulation 7.10
The question before the Tribunal was whether the employer nomination was in respect of an "approved appointment" as defined by reg.7.10 of the Migration (1993) Regulations.  Regulation 7.10(1) provides that a proposed appointment is an "approved appointment" if it is the subject of an employer nomination that meets the requirements set out in sub-reg.(2).  The requirements include the following:

...

(b)the work to be performed requires the appointment of a highly skilled person; and

(c)the appointment will provide the employer with full-time employment and:

(i)will be permanent ...

...; and

(d)the Minister is satisfied:

(i)that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

(ii)if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

(e)the Minister is satisfied that:

(i)an Australian citizen or Australian permanent resident cannot be found who is suitable for the appointment; or

(ii)in the circumstances of the case the employer should not be required to seek a suitable employee in Australia ...

....

There is a definition of "highly skilled person" which it is not necessary to set out.

The Tribunal's decision
The Tribunal set out the evidence in relation to the question of training [sub-reg.(2)(d)(i)] in these terms:

The nominated position is described in the Employer Nomination Form (Form 785) as 'Manager'.  The job description was: 'trainning [sic] workers, introducing our food beside managing of our whole restaurant's business as well as casual works'.  The qualification and essential skills required were described as 'Fluency in both English and Japanese.  Good managing experience and knowledge of the foods.  Plus good personality'.

In response to a letter from the primary decision-maker the applicant stated 'no training program has been provided'.  In the reasons for applying for review the applicant stated that 'Altough [sic] there is no specific training program provided at Toki's Sushi Bar, the employment of new staff always insists [sic] that they are given extensive training at that time'...  The oral evidence by Mr Ishizaki confirmed that no training program existed and that the training of new staff was in the nature of induction only.  Mr Ishizaki stated that the applicant had not utilised any government employment schemes nor employed apprentices and that the applicant had no training guide or manual.  Finally, Mr Ishizaki gave evidence to the effect that no employee had had enough Japanese language proficiency to be trained up to the occupation of manager.

Mr Yokoi, the proprietor of another Japanese restaurant, gave evidence to the effect that Japanese restaurants are different from others; that training is ongoing; that knowledge of culture was required; and that he had employed four apprentices but that none of them had completed their apprenticeships.

Ms Kunti, a former employee of the applicant, gave evidence to the effect that she had gained knowledge from the job as a waiter in respect of composition of meals, Japanese etiquette and manners, and Japanese language.  She also stated that the applicant had assisted her with university studies by providing her with flexible working hours.

The Tribunal then said

Having considered all the evidence in respect of training, the Tribunal finds that the employer has not made adequate provision for the training of existing employees in work relevant to the business.

As a result, the Tribunal found that reg.7.10(2)(d) was not satisfied.

Primary judge's reasoning
His Honour's views on the proper construction of sub-reg.(2)(d)(i) can be summarized as follows:

(a)The adequacy of the provision for training will depend on the circumstances of the particular business: attention must be directed to the nature of that business and in particular the number and type of employees.

(b)An employer who has not made any provision at all for the training of existing employees can never satisfy the relevant criterion: "No training at all can never be regarded as adequate training ...".

(c)Paragraph (d)(i) is concerned with the provision of training for all existing employees of the business and is not confined to training in work relevant to the position intended to be filled by the proposed appointee.

His Honour expressed the view that the Tribunal had adopted a construction of the sub-regulation consistent with his own, and that there was no error of law in that respect.  He then said that the finding that the employer had not made adequate provision for the training of existing employees was clearly open to the Tribunal on the uncontested evidence it had summarised in the passage set out earlier in these reasons.
Construction of reg.7.10(2)(d)(i)
We agree with the learned judge that sub-par.(i) is directed to the attributes of the business of the particular employer, and that the adequacy of the provision will depend upon the characteristics of that business - its nature and the number and type of its employees.  We also agree that the sub-paragraph is not solely concerned with the provision of training for work relevant to the position to be filled.  If that is not clear enough from the words "training existing employees in work relevant to the business", it is made clear by the contrast between those words and the phrase appearing in the definition of "highly skilled person" - "in respect of work of the kind to be performed under that appointment".  At the same time, the immediate context of the necessary or justified bringing to Australia of a highly skilled employee means that the focus must be on the adequacy of the training available in skills that might reduce the number of positions in respect of which the need or justification could be found.

Other features of the sub-paragraph give rise to more difficulty, a product of the draftsman's economy of language. One question is whether the words "existing employees" mean all persons employed in the business. The draftsman could have said that provision must be made for training "all existing employees" or "the existing employees". It is true that viewed in isolation "existing employees" might be taken to mean all employees. But in our view the key to the meaning of the words lies in their context as part of the phrase "adequate provision for training existing employees". A requirement to make "adequate provision" for training is not the same as a requirement that training be provided. It seems to us that the concept the draftsman is trying to convey is that provision must exist for training those employees who, having regard to their duties in the business, are in need of it and would benefit from training that is available in Australia so as to reduce any need to import specialised labour. We do not think the draftsman is concerned to require that provision be made for training all employees. Consider for example a municipal council with responsibility for, amongst other things, maintaining parks and gardens. It employs a group of people whose task is to rake up fallen leaves in the parks and gardens. The council provides no training for them, because an able-bodied person needs no instruction in how to perform the task. It does, however, provide training for its other staff. The council wants to appoint a highly skilled computer operator. Putting requirement (d) to one side, the requirements in reg.7.10 are met. Does the proposed appointment of the computer expert fail to qualify as an approved appointment because no provision is made for training those who rake the leaves? That would be a curious result. The approach we favour avoids it, and also explains the absence of the definite article or "all" before "existing employees".

The meaning attributed to "adequate provision" in the family provision legislation of the Territories and several of the States provides an instructive analogy.  The requirement in Victoria is that the will make "adequate provision for the proper maintenance and support of the deceased's widow widower or children".  See Administration and Probate Act 1958, s.91. Whether "adequate provision" has been made depends upon different factors according to whether the applicant is a widow, widower, or child, and whether the estate is large or small. A testator whose children have done well financially, and who were inattentive to him during his later years, may be held not to have failed to make adequate provision for them by leaving the whole of his modest estate to charity. In other words no provision may be "adequate provision" depending on the circumstances. Cf. In re Sinnott [1948] VLR 279, at p.280 per Fullagar J. and Hughes v. National Trustees (1979) 143 CLR 134, at pp.147-148 per Gibbs J. The same applies to "adequate provision for training".

A related question concerns the meaning of "training".  This word also derives its flavour from those surrounding it - "adequate provision" and "work relevant to the business".  We have already indicated that the sub-paragraph directs attention to the nature of the business in question, and in particular the number and type of the employees engaged in it.  At one end
of the spectrum, a job might require some formal class-room type of training before an employee can be let loose on specialised equipment.  Another position might require the employee to study a manual before entering upon the job.  A prospective operator of industrial machinery might require a period of on-site induction before being allowed to operate on his own.  At the other end of the spectrum lie the leaf rakers, or closer to the present case, those employed solely to wash up a restaurant's dirty dishes.  No training at all may be required in those cases.  We think it clear that not infrequently on-the-job training can qualify as "adequate provision for training existing employees".  Thus a restaurant waiter may be inducted into the job with a set of basic instructions about the treatment of diners, presentation of food and the pouring of wine.  He might then be told to keep an eye on the more experienced waiters and model himself on them.

The evidence was that Toki's Sushi Bar is a relatively small but highly specialised Japanese restaurant.  Whilst there was no training programme, new staff were given extensive training at the time of their employment, an experienced person teaching the newcomer.  The employer had no training manual, but the existing staff knew the ropes ("we know these jobs by heart"), and taught the new staff on the job ("we teach them properly even in the opened restaurant").  They were taught and watched all the time ("Those 'do' and 'don't' are taught and watched all the time").  The manner in which the employer conducted his training was the common method adopted by Japanese restaurants.  In Japanese restaurants experienced staff teach the new staff.  "This means that people are taught the job in the workplaces".  The employer's evidence to this effect was supported by that of Mr Yokori (referred to in the Tribunal's reasons as Mr Yokoi), an experienced Japanese restaurant manager.  There were no training courses available for specialised staff in Japanese restaurants, so training was necessarily done on the job.  None of Mr Yokori's four apprentices had completed his apprenticeship.  That new staff were "trained" in the manner described by the employer and Mr Yokori was confirmed by Ms Coultie (referred to in the Tribunal's reasons as Ms Kunti), a former employee at Toki's Sushi Bar.

The Tribunal recited most of this evidence, and then simply stated that having examined all the evidence in respect of training, it considered that the employer had not made adequate provision for training existing employees.  No reasons were given.  No reference was made to any other evidence that contradicted that set out in the Tribunal's decision.  Apart from the absence of any specific reference to on-the-job training, the Tribunal's account of the evidence is a fair rendering of both positive and negative aspects of the evidence.  It follows that the Tribunal considered that the evidence it recited did not satisfy it that adequate training was provided.  The only evidence arguably omitted from its summary was the "on-the-job" evidence.

In our view the conclusion reached by the Tribunal in the light of the evidence is explicable only on the ground that training that takes the form of "induction" and "on-the-job training" cannot be "training" for the purposes of the sub-paragraph.  For the reasons we have given, that shows an erroneous understanding of the meaning of the provision, which directs attention to the nature of the business in question, and in particular the number and type of employees employed in the business.

In our view the conclusion reached by the Tribunal shows that it misconstrued the sub-paragraph and applied a wrong test as to what constituted adequate provision for training existing employees in work relevant to the business of Toki's Sushi Bar.  See Public Service Association (SA) v. Federated Clerks' Union (1991) 173 CLR 132, at p.144 and Craig v. South Australia (1995) 69 ALJR 873, at pp.877-878, and cf. Avon Downs Pty Ltd v. Federal Commissioner of Taxation (1949) 78 CLR 353, at p.360, per Dixon J. The error falls within s.5(1)(f) of the Act.

The learned primary judge was alert to the fact that the sub-paragraph required the Tribunal to look at the nature of the particular business and the number and type of its employees.  But, with respect, he wrongly credited the Tribunal with having adopted a construction of the regulation "consistent" with his own view.  Nowhere in its decision did the Tribunal set out its understanding of what the sub-paragraph, or any of the concepts in it, meant.  It propounded no test to be applied in relation to "adequate provision for training".  All one has is a summary of the evidence and a statement of the Tribunal's conclusion.  In the light of the uncontradicted evidence, the conclusion reached discloses that a mistaken construction of the provision must have been adopted (cf. Avon Downs, supra), and the learned primary judge should have held that the Tribunal had misconstrued reg.7.10(2)(d)(i), and applied the wrong legal test to the matter before it.

We would allow the appeal, and remit the matter to the Tribunal, differently constituted, to be reconsidered in the light of these reasons.

I certify that this and the preceding eight pages are a true copy of the reasons for judgment of the Court

........ ........ ........ ........ ........ ........ .

Associate

27 June 1996

Counsel for the Appellants:  K H Bell

Solicitors for the Appellants:  Baker & Armstrong

Counsel for the Respondent:  N Mukhtar

Solicitor for the Respondent:  Australian Government Solicitor

Date of Hearing:  6 June 1996

Place of Hearing:  Melbourne

Date of Judgment:  27 June 1996