Pillay, Kalaivani v Minister for Immigration and Multicultural Affairs [1997] FCa 682
[1997] FCA 682
•29 July 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - application for review of decision of the Immigration Review Tribunal - whether applicant’s occupation was a “trade” - where applicant employed as settlements clerk - where applicant had significant work experience as well as secretarial and accounting qualifications - whether “trade” refers to skilled manual labour where an apprenticeship is required - whether definition of “trade” should be narrowed by definition of “trade certificate”
Migration Act 1958 (Cth), s 476
Migration (1993) Regulations, reg 816.721(2)(b)(ii)
Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 at 317-318, not followed
National Association of Local Government Officers v Bolton Corporation [1943] AC 166, cited
Kumar v Immigration Review Tribunal (1992) 36 FCR 544, considered
Mak v Immigration Review Tribunal (1994) 48 FCR 314, cited
Re Alcan Australia; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, cited
KALAIVANI PILLAY v
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No NG 978 of 1996
TAMBERLIN J
SYDNEY
29 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 978 of 1996 ) GENERAL DIVISION )
BETWEEN: KALAIVANI PILLAY
ApplicantAND: MINISTER OF STATE FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 29 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal be set aside.
The matter be remitted to the Immigration Review Tribunal for determination in accordance with law.
The respondent pay the applicant’s cost of the application.
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 978 of 1996 ) GENERAL DIVISION )
BETWEEN: KALAIVANI PILLAY
ApplicantAND: MINISTER OF STATE FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 29 JULY 1997
REASONS FOR JUDGMENT
As formulated by the Immigration Review Tribunal (“the Tribunal”) in its reasons for decision the key question to be determined in this matter is whether Ms Pillay’s occupation on 1 November 1993 was one which could be considered a “trade” and one for which she was appropriately qualified.
The conclusion of the Tribunal on this question was as follows:
“The Tribunal is conscious of the certification and experience gained by Ms Pillay as a secretary in South Africa before coming to Australia and of her studies, certification, work experience and references in relation to her employment in the banking industry here before 1 November 1993. She clearly remains a talented and diligent employee.
However, mindful of the decision reached by Moore J in Subraju v Minister for Immigration and Ethnic Affairs, the Tribunal finds that Ms Pillay has not undertaken training or employment in a trade for which an apprenticeship is necessary nor that the secretarial accounting or banking skills she has used in her employment are those required in a trade characterised by the exercise of skilled manual labour.
Accordingly, the Tribunal finds that Ms Pillay does not meet the requirements of subclause 816.721(2)(b)(ii) and hence she does not meet the criterion established at subclause 816.721(1)(a)(ii).
The Tribunal finds, therefore, that Ms Pillay does not meet the requirements for the grant of Class 816 (special (permanent)) entry permit.”
The issue is one of law, namely what is the correct interpretation of sub-clause 816.721(2)(b)(ii)? The issue as to whether, in fact, Ms Pillay satisfies the requirements set out therein is a matter for the Tribunal.
It is submitted for Ms Pillay that there are at least two errors of law in the findings of the Tribunal. The first is that the Tribunal reasons required as a qualification that an applicant must have undertaken training or employment in “a trade for which an apprenticeship is necessary”. The second is that the reasons require an applicant have skills required in a trade characterised by the exercise of manual labour. Neither of these requirements are expressed in the language of the migration regulation.
The Legislative Scheme
The application to this Court is made under s 476 of the Migration Act 1958 (Cth) (“the Act”) which reads as follows:
“476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) .....
.....(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision....”
As a result of the coming into force of the Migration Reform Act 1992 (Cth) on 1 September 1994, Australian migration law has undergone significant changes, as the Tribunal pointed out.
In accordance with reg 23 of the Migration Reform (Transitional Provisions) Regulations, Ms Pillay’s application is taken to be an application for a transitional (permanent) visa.
An application that is taken to be an application for a transitional visa must, however, be decided according to the criteria which applied in respect of the entry permit for which application was made. The applicable regulations in this case are the Migration (1993) Regulations (“the Regulations”). The relevant regulation is found in Part 816 - Class 816 (Special (Permanent)) Entry Permit. The relevant provision is as follows:
“816.1 INTRODUCTION
816.11 Group 1.2 (permanent resident (after entry)).
816.12 Purpose of grant: To provide for permanent residence in Australia by:
(a)certain persons who have applied for determinations that they are refugees; and
(b)certain holders of, or applicants for, Class 435 (Sri Lankan (temporary)) or Class 443 (citizens of the former Socialist Federal Republic of Yugoslavia temporary)) entry permits.
816.13 Interpretation
816.131 In this Part:
....
“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.
........
816.72Criteria to be satisfied at time of application (entry permit - after entry)
816.721 (1) The applicant is:
(a) a person who:
(i) had not turned 45 before 1 November 1993; and
(ii)meets the requirements of subclause (2) or (3); and
(iii) meets the requirements of subclause (4) or (6); or
(b) a person who:
(i)is a member of the family unit of an applicant who is a person mentioned in paragraph (a); and
(ii)is included in that person’s application.
(2)An applicant meets the requirements 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) ...
.....” (emphasis added)
Findings
Ms Pillay had initially trained in South Africa as a typist. In 1983 she upgraded her skills through a formal secretarial studies course at the Sight and Sound Centre, Durban, which included an accounting component. Her accounting skills were used in her job at Chemical Laboratories before she left South Africa for Australia in April 1986.
In Australia Ms Pillay enrolled at Randwick TAFE for a one year course in accounting which she completed with distinction in April 1987. She then gained employment at Royal Bank as a reconciliations clerk. When Royal Bank was taken over by ANZ Banking Group (“ANZ”) in September 1989, Ms Pillay continued her work and was promoted from general clerk to settlements clerk, a high pressure and extremely responsible banking job. ANZ expressed great satisfaction with her performance over the seven years she was with ANZ, in addition to her two years with Royal Bank, and her performance assessment bears this satisfaction.
Ms Pillay was recognised as having appropriate work skills and formal qualifications for banking work when she commenced with Royal Bank in April 1987. The experience she then gained over the next two years until the takeover by ANZ made her an employee whose skills were considered most desirable at a difficult time of change and staff retrenchments. ANZ were more than happy to keep Ms Pillay on, promoting her to the significantly more responsible position of settlements clerk in their head office in Global Treasury.
As at 1 November 1993, which is the relevant date for the purposes of Part 816.721(2), Ms Pillay had been a valued employee of ANZ for more than four years. She was also a member of the Finance Sector Union. Both her employer and her union valued her contribution to the workplace. The Tribunal expressed “no doubt” that Ms Pillay had added invaluable and high pressure job responsibility to her formal qualification in accounting by 1 November 1993.
Principles
It is clear from the Tribunal’s reasoning that it was persuaded, and applied the observations made, by Moore J in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313, as to the meaning of the term “trade” in reg 816.721(2)(b)(ii). That case concerned a Fijian citizen who entered Australia in 1987. For twenty years he had worked for Carpenters (Fiji) Limited as a credit control officer. In 1972 he had enrolled in a part-time associate diploma course in Accounting at the University of the South Pacific but did not complete it. In Australia he was employed for six months as an office supervisor for a debt collection agency, and for about three years he was employed by a food processing company where he filled customers’ orders, carried out banking, stock control, credit management and public relations work.
In his reasons for decision, his Honour undertook a close analysis of reg 816. The question posed to his Honour was whether the employment of the applicant, as a credit control officer, was work experience of the type comprehended by reg 816.721(2)(b)(ii). His Honour concluded that as at the relevant date the applicant’s work experience was not in respect of a “trade” and therefore he could not come within the provision. He considered that although the AAT may have erred in its interpretation of the provision its conclusion on the facts found by it was the correct one.
The expressions “trade” or “trade qualifications” are not defined in the Regulations. However, the term “trade certificate” is defined, and his Honour derived from that definition support for his conclusion that the undefined expression “trade’” should be taken as referring to trades, the skills for which might be gained by on the job training as an apprentice. The definition of the expression “trade certificate” in reg 816.132 refers to:
“... initial trade training undertaken in conjunction with an apprenticeship or following non apprenticed entry.” (Emphasis added)
There is no definition of “trade training”. It should be noted that trade training is sufficient if it “follows” non-apprenticed entry. It need not, on a literal reading, involve an apprenticeship.
At 316-317 of the reasons in Subraju his Honour said:
“... what is comprehended by a ‘trade qualification’ can be determined, in part, by reference to the definition of ‘trade certificate’. That definition contains two elements. One is the instrument issued by an educational authority and the other is training associated with it. That training is described as ‘initial trade training’ which is training undertaken either in conjunction with an apprenticeship or ‘following non-apprenticed entry’. The reference to apprenticeships and non-apprenticed entry tend to suggest that the word ‘trade’ in both the expression ‘trade certificate’ and ‘trade training’ is a reference to trades in the more traditional conception of skilled manual labour. That is, it is a reference to trades the skills for which might be gained by on the job training as an apprentice.”
His Honour referred to earlier decisions of this Court and also to a decision of the House of Lords which favoured a broad interpretation of the term “trade”. In the two Federal Court cases, judges of the Court, sitting at first instance, favoured a broad interpretation of the term “trade” when used in relation to the expression “trade certificate”.
Moore J considered that working as a credit control officer and in various clerical positions did not involve skilled manual labour and therefore the regulation did not apply to Mr Subraju.
In National Association of Local Government Officers v Bolton Corporation [1943] AC 166, the House of Lords decision referred to by his Honour, the question was whether a dispute between local government officers and a local authority was a “trade dispute”. Their Lordships held that it was. Lord Wright said at 184-185:
“Trade and industry are thus treated as interchangeable terms. Indeed, ‘trade’ is not only in .... the dictionary sense, but in legal usage, a term of the widest scope... In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. It is true that it is often used in contrast with a profession. A professional worker would not ordinarily be called a tradesman, but the word ‘trade’ is used in the widest application in the appellation ‘trade unions’ ....”
In Kumar v Immigration Review Tribunal (1992) 36 FCR 544, the first of the two Federal Court decisions referred to in Subraju, Wilcox J decided that if a reputable institution issued a certificate of competency to a secretary at the end of a comprehensive training program, that could be considered a “trade certificate” for the purposes of reg 146(1)(b) of the Migration Regulations 1959 (Cth). However, his Honour considered that a certificate as to competency in one particular aspect of a secretary’s “trade”, such as typewriting or shorthand, would not be a “trade certificate” for such purposes.
The provisions considered by his Honour in Kumar were not on all fours with reg 816. First, because the expression “trade certificate” was not specifically defined in the earlier legislation. Second, because reg 146(1)(b) referred to an “occupation” rather than a “trade”.
At 552 his Honour said in relation to the expression “trade” as used in conjunction with the term “certificate”:
“I see no warrant in the regulations for a narrow interpretation of ‘trade’. In particular, I do not think that the word should be confined to traditional occupations, such as those of the carpenter, bricklayer and tailor as suggested by counsel... As the Shorter Oxford Dictionary definition makes apparent, ‘trade’ is a word applicable to any skilled handicraft, as distinct from a profession. The work of a secretary, under modern conditions at least, is a skilled handicraft. Accordingly, if at the end of a comprehensive training programme a reputable institution issued a certificate of competency to be a secretary, I would regard that certificate as a ‘trade certificate’. But I do not think that a certificate as to competency in one particular aspect of a secretary’s ‘trade’, such as typewriting or shorthand, is enough.”
In the later case of Mak v Immigration Review Tribunal (1994) 48 FCR 314, the second decision referred to by Moore J, which also concerned reg 146(1), Carr J agreed with the interpretation of the expression trade certificate adopted by Wilcox J in Kumar. His Honour, in Mak at 334, also noted that the Tribunal’s reasons did not determine whether either general insurance or business management was a trade and that evidence would be required on this aspect. He set aside the decision of the Tribunal and remitted the matter for further consideration.
In Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 the question was whether the use of a dwelling house for receptions and social functions was a use for the purposes of a trade. The context is, of course, different from the present case. Nevertheless, there is a helpful discussion of the term “trade” by Menzies J at 601-602 where his Honour emphasised the width and indefiniteness of the expression. He referred to the overlap in meaning between the expressions “trade” and “business” in accepted usage. Both terms could be said to indicate an “occupation”. He referred to the Oxford English Dictionary which defines one sense of “trade” as:
“The practice of some occupation business, or profession habitually carried on, especially when practised as a means of livelihood or gain.”
Reasoning
Regulation 816 is expressed to be for the purpose of providing permanent residence in Australia for persons who have applied for determinations that they are refugees. It also relates to applications for temporary entry permits by Sri Lankans or citizens of the former Republic of Yugoslavia. There is nothing in this objective to support a narrow interpretation of the undefined expression “trade”. Moreover, if the intention had been to constrict the meaning of the term “trade” to skilled handicrafts, where an apprenticeship is appropriate, then it would have been a simple matter to insert a specific limited definition of the expression “trade” into the regulation. This has not been done.
In the absence of any express restrictive definition of the term, in my view, it is unsound to seek to extract somewhat oblique inferences as to the meaning of the term “trade” from the definition of “trade certificate” in reg 816. This definition of “trade certificate” should not be taken to disclose an intention to narrow the meaning of the expression “trade” which appears as a distinct and discrete expression. This is especially so in circumstances where it is reasonable to have expected the legislature to have been aware, when drafting reg 816, of the decision of Wilcox J in Kumar, handed down on 3 July 1992. Reg 816 was made by the Governor-General on 28 January 1994.
It is a well settled principle of interpretation that where certain words in an Act of Parliament have received a judicial construction in one of the Superior courts and the legislature has repeated them without alteration in the subsequent statute, the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them. See Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106; Pearce and Geddes, Statutory Interpretation in Australia, 4th edn (1996), pars 3.25 to 3.30 inclusive. In the present case, after Wilcox J had given a broad interpretation in Kumar to the expression “trade” in a similar provision in the earlier regulation, the legislature in drafting reg 816 used the term “trade” without defining it in an any more restricted way.
In substance, I agree with the approach taken by Wilcox J that the Court should prima facie favour a broad interpretation of the expression “trade”. However, I am unable to share his Honour’s view that a certificate as to competency in one particular aspect of a secretary’s “trade” is not sufficient to come within the definition of “trade”. It is a question of fact and for evidence. In my view, it would be open to find, in appropriate circumstances, that skills such as typing and shorthand come within the definition. For example, in the case of a highly skilled typist or shorthand reporter, who undergoes a comprehensive and rigorous training, in the form of work experience, it would be open to find that the occupation could be described as a “trade” within the meaning of the provision. Moreover, the language in the sub-clause, provides no warrant for developing further sub-sets within the term “trade”. Such an approach unnecessarily raises further difficulties in applying the section. Once it is determined that it is open to find that an occupation may be a trade, it is for the Tribunal to decide on the evidence whether it is a “trade”. This is the approach adopted by Carr J in Mak, with which I agree.
It should be noted of course that the decision in the Bolton Corporation case should be approached with some caution before it is literally applied to the migration legislation in the present case. The legislation before the House of Lords, in that case, was emergency wartime legislation which is traditionally given a wider interpretation than normal peace time legislation.
The specific definition of “trade certificate” in Part 816 certainly indicates an intention to limit the ambit of “trade certificate”, but I do not consider this intent can be taken to extend to an alteration in the meaning of the expression “trade” as used as a separate term in that regulation.
It is difficult to see that the objectives expressed in reg 816.12 would be advanced by inferentially adopting a narrow interpretation of the word “trade” as a consequence of the specific definition of “trade certificate” especially in circumstances where the related expression “trade qualification” is not defined in a narrow way. Nor is there any other compelling reason why the exercise of the wide discretion conferred by the Act should be foreclosed by a restrictive interpretation of the fields of endeavour in which a person can satisfy the sub-clause. The broader emphasis in the provision is on skills, education, training and experience in the interests of encouraging migrants who can bring these benefits to the Australian community. No doubt the decision-makers will give due weight to relevant matters when examining these skills and work experience. They should not, in my view, be constrained in the exercise of their discretion by a narrow interpretation of the regulation.
For the above reasons, my view is that the expression “trade” where used in reg 816.721(2)(b)(ii) of the Migration Regulations is not limited to occupations where an apprenticeship is necessary nor where skills used in employment are those required in a trade characterised by the exercise of skilled manual labour. On a reasonable reading of the whole decision of the Tribunal, I consider that it erred in law in so interpreting the regulation.
The application for review should be granted. The determination of the Tribunal should be set aside. The applicant should recover the costs of this application.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 29 July 1997
Counsel for the Applicant: Mr J R Young Solicitor for the Applicant: Newman & Associates Counsel for the Respondent: Mr R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 July 1997 Date of Judgment: 29 July 1997
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