Morais v Minister for Immigration, Local Government & Ethnic Affairs
[1995] FCA 54
•17 FEBRUARY 1995
CATCHWORDS
IMMIGRATION - appeal from Immigration Review Tribunal - meaning of "usual occupation" - whether work experience constitutes a usual occupation
Migration Act 1958 - ss 118, 138
Migration Regulations 1989 - Reg 146
Luckin v Hamlyn (1869) LT 366 Refd
Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 Refd
In Re Commonwealth Homes and Investment Company Limited (1943) SASR 211 Refd
In Re Riverton Sheep Dip (1943) SASR 344 Refd
Morais v The Minister for Immigration, Local Government and Ethnic Affairs
No QG5 of 1994
Kiefel J. Brisbane 17 February 1995
IN THE FEDERAL COURT OF AUSTRALIA No.QG 5 of 1994
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:VIRGINIA CECELIA MORAIS
Applicant
AND:THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 17 February 1995
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal of 20 December 1993 affirming the primary decision not to grant a concessional family visa (class 105) is affirmed.
The applicant pay the respondent's costs of and incidental to the appeal to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA No.QG 5 of 1994
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:VIRGINIA CECELIA MORAIS
Applicant
AND:THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Respondent
CORAM: Kiefel J.
DATE: 17 February 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
On 31 December 1991 the delegate of the Minister at the Australian High Commission in New Delhi refused the applicant's sister, Mrs Cleona D'Souza, a visa to enable her and her family to migrate to Australia. The Migration Internal Review Office affirmed that decision as did the Immigration Review Tribunal on 20 December 1993 under s.118 of the Migration Act1958. The Migration Internal Review Office had held that Mrs D'Souza was not entitled to a preferential family visa as she was not a remaining relative and this was not further pursued. The alternative visa sought, a concessional family visa (Class 105), required an assessment under the "points system". The Migration Regulations then applying have since been repealed. A similar points system however continues to operate under the new regulations. The issue before the Tribunal and here
was as to whether points ought to have been allocated for Mrs D'Souza's employment qualifications.
The prescribed qualifications in respect of which points were to be allocated (Schedule 4, Pt. 1) included the qualification of employment. The maximum points that may be awarded depend primarily upon the requirements in Australia for a person's "usual occupation", sub-regulation 146(1) ranking that occupation by reference to the necessary qualifications in a series of paragraphs. A determination as to which paragraph reflects the position pertaining to that occupation is necessary. The initial inquiry however is as to the person's "usual occupation".
Regulation 146 which is entitled "Qualifications - Suitability for Employment" provides a definition, by sub-regulation (2):
"`Usual Occupation' means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least six months during the period of two years immediately preceding the relevant application for a visa or entry permit".
It was submitted before the Tribunal that Mrs D'Souza (the "principal") had passed a course in administrative secretarial practice with the India Computer Academy at Ponda Goa in December 1990 and that she had then worked as an "Administrative Secretary" at Menimo Constructions from 10 January 1991 to 12 December 1991. She had however received no payment of money or any other form of remuneration for this work, which was undertaken "for experience". These submissions, as the Tribunal pointed out, flew in the face of the application form by which she declared that she had no usual occupation in the relevant period, that she had not worked since 1986 and in which she referred to herself as a "housewife". The Tribunal also made reference to inquiries conducted by the Australian High Commission in India by which it was sought to cast doubt upon the veracity of the principal, and concluded that there was indeed some doubt as to whether she had worked at that position and for the period referred to. The Tribunal however held that experience as a secretary without the receipt of income did not in any event constitute a "usual occupation" as defined and upon this basis awarded no points for the employment qualification. This appeal turns upon that consideration. The appeal is brought under s. 138 of the Migration Act 1958 which allowed an appeal to this Court on a question of law. The interpretation of a definition regulation clearly is such a question. If the appeal succeeds it will be necessary to remit the matter for further determination as to the questions of fact unresolved.
The word "occupation" is defined by the Shorter Oxford English Dictionary as:
"The being occupied with, or engaged in something; that in which one is engaged; employment, business"
and by the Macquarie Dictionary:
"One's habitual employment; business, trade or calling"
The occupation the regulation is concerned with is clearly not just any undertaking, pursuit or activity which occupies one's time, but one which has been pursued in the context of employment. An essential feature of such an occupation is the receipt of income or other form of reward, something given or acquired in exchange for the provision of skills or services. A person's occupation would, I consider, ordinarily be understood to refer to that employment, trade or business in which that person is habitually engaged and by which that person earns a livelihood or receives some form of remuneration. As to the implication that a livelihood is earned, Ms. Atkinson of Counsel for the respondent referred me to Luckin v. Hamlyn(1869) LT 366 per Kelly C.B. Viewed in this way "for" in the definition conveys the notion of exchange, and is to be read as "in return for, in exchange for". The practical importance of this, in a regulation concerned, as it is expressed, with a person's suitability for employment in Australia in the event of migration is relatively clear. The mere holding of qualifications is not considered sufficiently indicative of prospective employment. The fact however that those qualifications and associated skills have been taken up in the market for them for the requisite period, that an employer or other party has been prepared to pay in some way for them, might furnish a more reliable indication. It may also be seen to overcome any need for an individual assessment of a person's ability to carry out the work, or of their skills.
The submissions for the applicant had two limbs. Firstly, it was submitted that since the acquisition of work-related experience was of personal advantage to Mrs D'Souza it qualified as a "gain" within the meaning of the definition. Then, it was submitted, one ought read "for" by having regard to the person's reason for undertaking the occupation. That is to say, it ought be read as "with the object of or for the purpose of" (gain or reward).
I can however find no warrant for the second proposition in the regulation and the enquiry with which it is concerned. An enquiry as to a person's motivation would not only be attended with difficulty, it would, in the context of future employability, furnish no
meaningful information. A person's intentions are irrelevant to the enquiry, which is as to the fact of previous engagement in an occupation.
The word "reward" more clearly than "gain" conveys a return or recompense and, in the context of employment, for "service". (See Shorter Oxford English and Macquarie Dictionaries and also Commissioner for Prices and Consumer Affairs (S.A.) v. Charles Moore (Aust) Ltd.(1977) 139 CLR 449, 462, 468-9). It is commonly understood as being made by way of money. Mr Logan of Counsel, for the applicant, submitted "gain" may have a wider meaning and might refer to some "profit or advantage" (Macquarie) not limited to a pecuniary advantage. In this respect I was referred to In Re Commonwealth Homes and Investment Company Limited (1943) SASR 211, 228 and In Re Riverton Sheep Dip (1943) SASR 344. I have no difficulty in accepting, as those cases suggest, that a "gain" to a company or business may be constituted by some increase in assets or resources or some wider business advantage resulting from a transaction. Those cases were not decided in a context such as this, although in the definition a wider meaning might be given to "gain", extending to other than direct payments of money for the skills or services provided. What the applicant however contends for is a gain constituted by a personal advantage resulting from the experience had.
Mr Logan did not however suggest that every perceived personal advantage would be a relevant gain within the definition. In his submission the "advantage" obtained would need be taken as limited to matters associated with employability, such as "job skills and practical experience". Such a construction would retain the relevant gain within the context
of employability, a concession as to the matter with which the regulation is concerned. Applying the notion of advantage as limited to the ascertainment of job skills or practical experience would, the submission proceeded, necessarily exclude as activities which could be said to occupy one's time, but which might not be thought to be those connected with employment or which might furnish clear indicia as to a person's prospects of obtaining employment on an open market, such as a mere engagement in a hobby, voluntary work or non-remunerated work. Viewing the relevant "gain" in the way contended for it does not seem to me that such "occupations" would be necessarily excluded. Whilst on the one hand undertaking these activities may be seen as productive of personal satisfaction or as the fulfilment of a duty or social obligation, the tasks involved in a particular activity and the experience gained might, on a full examination, be considered as equipping a person for employment, at least to an extent. But nothing in the regulation and the definition suggests that an enquiry is to be undertaken to determine the threshold question as to what is a person's "usual occupation". Whilst some factual enquiry may be necessary, the purpose of the definition is to provide that answer by reference to the fact of employment in the sense I have outlined, which in most cases could be readily ascertained.
As I have said the words "reward" and "for", in the context of the regulation have in common the notion of a return or exchange for the occupation undertaken and, consistently, "gain" ought be viewed in the same way although it may extend beyond the more usual case of the payment of money for services to circumstances where the skills or services are provided but in exchange for something other than money or money's worth and perhaps extending to some indirect advantage such as to a business conducted by the
person but where it can be seen that something is given for the skills or services provided by the "occupation".
In the context of regulation 146 I consider the words "occupation ...engaged in ... for gain or reward ..." convey something undertaken, some skill or service provided in consideration of or in exchange for some recompense, something of value given or paid. It does not extend to the acquisition by the person of work-related experience only, preparatory to employment and the provision of which may be seen as itself the gain or reward.
The decision of the Tribunal is affirmed.
I will hear Counsel as to costs.
I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Date:17 February 1995 Associate
Counsel for the applicant: Mr J.A. Logan
Solicitors for the applicant: Rouyanian Maunsell
Counsel for the respondents: Ms R Atkinson
Solicitors for the respondents: Australian Government Solicitor
Date of Hearing: 30 November 1994
Place of Hearing: Brisbane
Date of Judgment: 17 February 1994
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