Plathara, S. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 921

Re: SOMAN PLATHARA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G 348 of 1991
FED No. 921
Number of pages - 24
Administrative Law - Judicial Review - Immigration
(1992) 29 ALD 469 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial Review - delegate's decision followed Immigration Review Panel's recommendation confirming departmental decision - no reasons given by panel or delegate - detailed submission from department - whether absence of reasons suggests that departmental submissions are sole basis of decision - whether errors of law in report infect final decision by delegate - whether failure to allow applicant prior access to departmental report and right to make oral submissions to panel were breaches of natural justice.

Immigration - whether error of law in understanding policy guidelines - discussion of situation where facts not covered by policy guidelines - application of "spirit and intent" of policy guidelines - employment duration to be viewed according to practice of country where employment undertaken - whether allowance should be made for childhood experience in India where child labour and early attainment of skills common - whether score achieved by restaurant in Good Food Guide is determinative of applicant's skill - standard not to be judged by status of restaurant but by skill of applicant.

Industrial and Commercial Training Act 1989 (New South Wales) s. 83(3) and (4)

Migration Act s.6A(1)(d) and (e)

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 31

Wickramasena v Griffin (1990) ALR 198

Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77

Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (Hill J., unreported 4 December 1991)

HEARING

SYDNEY

#DATE 3:12:1992

Counsel and solicitor : Mr M. Smith instructed by
for the applicant Parish Patience Solicitors

Counsel and solicitor : Ms R. Henderson instructed
for the respondent the Australian Government

Solicitor

ORDER

1. The determination of the respondent is set aside.

2. The applicant's application for resident status is remitted to the respondent for further consideration in accordance with these reasons for judgment.

3. The respondent is to pay the applicant's costs.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

JUDGE1

EINFELD J. The applicant is a 31 year old Indian chef who arrived in Australia on 28 October 1989 on a one month temporary entry permit. On 24 November 1989, while his permit was still valid and current, he lodged an application for permanent residence which was rejected on 24 July 1990. On 15 August he requested a reconsideration of his application by the Immigration Review Panel. This took place on 17 May 1991 but on 20 June 1991, a decision was conveyed to the applicant that the previous refusal had been maintained. On 4 July 1991 the applicant sought judicial review of the refusal. This application was amended on 2 August 1991.

1. The amended application claims breaches of natural justice, that relevant considerations were omitted and irrelevant matters considered, that the decision was tainted by unreasonable conclusions of fact, and that it was vitiated by errors of law. To understand these assertions, it is necessary to say something of the applicant's professional background.

2. He commenced work as a cook at an ashram (church) at the age of 13 years. It appears that he started as the cook for the parish priest who conducted a higher secondary school. The uncontested evidence about this aspect of the applicant's training takes the form of a reference from the priest. It is dated 15 December 1989 and says (sic):
   

This is to certify that Soman P.A. was a cook of mine from the year 1974 to 1982. He has been so dutiful in his work all through out and not only myself and all those who tasted the food prepared by him were so much pleased with his preparation. I myself send him for diploma training in catering which he successfully completed and got a good job in Taj Mahal hotel in Bombay. His preparation was so nice that for all our various get togethers and parties he took up the responsibilities to see to the good preparation of food and he did them all very nicely. From the year year 1975 to 82 he was put in charge of seeing to the various functions' food arrangements which he managed very well. We all miss him very much especially when we have public functions and gatherings. For his greater prosperity I wish him every good luck and God's blessings.

1. After about eight years in this employment, he commenced a two year catering and management course, part of which included periods of on-the-job training at major hotels in India. After completing the course, he obtained employment first as a trainee and then as an assistant cook at the prestigious Taj Mahal Hotel in Bombay, where he had done three months of his course training. In all he worked for the Taj for more than two and a half years. He then became a chef de partie (executive or specialist chef) at a five star hotel in Baghdad where he remained until his departure for Australia a little over two years later.

2. About a month after his arrival here he obtained employment at the Bukhara Indian Restaurant in the Sydney suburb of Caringbah. The owner of the restaurant and the applicant had previously worked together in Iraq. The evidence contains uncontested material from the Bukhara's owner and other persons that the applicant is a skilled chef, especially in South Indian cuisine, and that this is a rare skill which the employer could not find in others by advertising in appropriate publications. The Commonwealth Employment Service had referred to him only one person, who was unsuitable, after which the CES advised the Bukhara on 2 August 1990:
   

It is unlikely that people with the experience you require are readily available in the labour market and it is doubtful that the CES will be able to satisfy your staffing requirements in the foreseeable future.

1. Without considering his work in Sydney, the Head of the Division of Commercial Cookery of the NSW Department of TAFE considered that the applicant's qualifications and experience entitled him to the status of a professional cook which the Divisional Head described as equivalent to the completion of apprenticeship in New South Wales. A certificate to this effect was issued by the Commissioner of Vocational Training on 15 August 1990 pursuant to section 83 of the Industrial and Commercial Training Act 1989 (NSW), following consideration of the matter by the Vocational Training Board. By subsections (3) and (4) of section 83, the Board may only authorise the issue of such a trade certificate if it is satisfied that the applicant has acquired the relevant skills, having regard to the training and employment history of the applicant and any qualifications possessed.

2. The applicant evidenced an imposing and impressive array of references testifying to his culinary skills. The 1990 edition of the publication "Cheap Eats in Sydney", the entries for the ten best of which were summarised in the Sunday Telegraph on 21 October 1990, described the Bukhara as "an excellent place for an Indian Banquet...Extremely good value, high quality food". The book itself states: "... it is the food which shines above all else. Excellent quality with an imaginative and dedicated approach ... This is a restaurant everyone would like as their local."

3. The 1991 "Good Food Guide", rather ethereally sub-headed "Sydney's Food Bible", contains the following entry on the Bukhara Restaurant:
   

Drag Vijay Baboo away from being a very professional host, sit him down, probe a little and it wont be long before he talks about Bocuse, the Roux brothers, the Trois Gros brothers, and rising stars like Vigato. Talk to him about Bukhara's cuisine and he'll insist that you meet his star chef, Soman Plathara Anandan. Now, that's a rare experience in an Indian restaurant, and Anandan is a rare chef. Here you'll experience the trad international Indian litany authentically interpreted. You'll find flavours that are sparklingly fresh and complex, and new treats like Bombay fish distinguished by fruity, sour tamarind and refreshing ginger, or chicken in a sauce dense with mint and coriander. If you are really lucky, you might chance upon a southern Indian night and savour Anandan's fine and fragile dosa, his delicate idlis, his fiery samba, and his divine fresh coconut chutney. Well worth the journey.

1. This book is edited by Messrs Leo Schofield and Michael Dowe. Mr Schofield is a well known gourmet and food commentator around Sydney. There was no request to cross-examine him in these proceedings on his expertise in this area. Of Mr Dowe, Mr Schofield writes in his acknowledgments in the book:
   

... Michael is not only a gastronomic polymath, he's indefatigable, living and breathing the Guide for six months of every year. Without his enthusiasm there would be no book...

1. I am not sure whether Mr Dowe's indefatigability relates to his eating or his writing, but according to the Macquarie Dictionary, a "gastronomic polymath" is a person of great and varied learning in the science or art of good eating. These are formidable qualifications. The edition of the Sydney Morning Herald of 29 May 1990 contains a lengthy article by Mr Dowe about the Bukhara restaurant. He described the applicant as an excellent chef whose specific dishes referred to in the article met with Mr Dowe's enthusiastic, perhaps even epithelium-arousing, approval. His conclusion was:
   

Here we have Indian food not of the reheated and microwaved variety but of sparklingly fresh flavours and very high standards of preparation. Let's hope the denizens of the south soon discover Bukhara. It deserves their support.

1. Who of the denizens could resist? I should record that because of the unease with which the parties greeted my passing query as to whether a view, perhaps in this case a taste and smell would be more appropriate concepts, was in order, I have not yet made my voyage of discovery.

2. The Good Food Guide rates restaurants on a scale out of 20. Food can attain a maximum of 10 points, service 5 and ambience 5. A restaurant which obtains 15 points is earmarked with a representation of one chef's hat. 16 and 17 points scores two hats and 18, 19 and 20 points rates three hats. For its 13 points, the Bukhara sadly obtained no hats. The Guide also makes other awards including the Josephine Pignolet award for the outstanding young apprentice or young chef, the Sydney Morning Herald special award for outstanding service to the restaurant industry and awards for the best new restaurant, the country restaurant of the year, special categories, good wine lists, and for "extra sparkle". The Bukhara did not achieve any of these distinctions but was noted as a less expensive or "good value for money" establishment. However, in a letter of 8 November 1990 which was supplied to the respondent's department during the reconsideration process, Mr Dowe wrote:
   

I have no personal relationship with Soman Plathara Anandan. However, as a restaurant critic, I do have a professional association with him and his cooking.

Indian restaurants abound in Sydney. So do undistinguished Indian chefs preparing mediocre Indian food. There are exceptions. The food at The Bukhara prepared by Soman Plathara Anandan is a notable exception. Anandan's food does not follow the style of commonplace "International Indian Fare" but is rather an authentic interpretation of traditional fare married to some exemplary craft skills. So distinguished is this fare that in the 1991 edition of the Sydney Morning Herald Good Food Guide, the Bukhara received the second highest mark awarded to an Indian restaurant.

It would be a great loss to the diners of Sydney if Anandan was not allowed to continue to craft his excellent fare.

1. In the first decision to reject the applicant's application for permanent residence made on 14 July 1990, the ground given was that greater weight should be accorded to the applicant's breaches of the Migration Act (overstaying his visa and working without permission) than to his skills. A finding of fact was made that the applicant had submitted no evidence that his qualifications were recognised in Australia. The application for reconsideration of this decision by the Immigration Review Panel cited as grounds:
   

i) an inflexible or incorrect application of policy and a failure to consider the application on its merits; ii) the failure to consider the Australian recognition of his qualifications and to permit him to provide details of this recognition;

iii) the failure to permit him to answer the allegations of unlawfulness;

iv) the failure to give attention to the adverse consequences to his employer in the event of refusal; and v) a legal error in the statement that the law prevented the granting of the application when it was a matter of discretion.

1. Included in the material submitted on the reconsideration was a letter from the applicant's solicitor to the department on 28 November 1990 in which these matters were addressed in detail.

2. It appears that the Immigration Review Panel makes recommendations to the Minister's delegate. Its recommendation in this instance to maintain the refusal of permanent entry stated that the panel considered the department's earlier refusal, the application for reconsideration, and what it called "the Departmental report of 10/5/91". This was the department's submission to the panel. In fact it was both a comprehensive review of the case and a series of statements of law and conclusions of fact culminating in a very firm recommendation of refusal. The panel does not make express reference to having considered the detailed submissions of the applicant's solicitor of 28 November 1990 but did say that it considered the file and the department must have received the letter and placed it on file because its submission referred to a number of the matters raised and lists the supporting material enclosed in it. The panel's conclusion was:
   

The Panel considered the matters raised in the application and the appeal and the Departmental report. It has found no grounds upon which the Departmental decision should be reversed.

1. This recommendation was accepted by the Manager of the Migration Internal Review Office on 4 June 1991 and the decision was notified to the applicant on 20 June 1991 in part as follows:
   

The review was conducted by the Immigration Review Panel, which examined the requirements of relevant legislation and government policy and considered all the available evidence. The Panel took into account the circumstances of the case, including the information given in your request for review and in a report provided by the Department. The Panel's recommendation was that the refusal decision should be maintained.

A delegate of the Minister for Immigration, Local Government and Ethnic Affairs studied the report of the Immigration Review Panel and the other information available on the case. The panel's recommendation that the refusal decision should be maintained was accepted.

The enclosed papers set out the relevant policy issues and explain the reasons for the decision. They will help you to understand why the refusal decision has been maintained.

1. The only document enclosed that could be thought to "set out the relevant policy issues and explain the reasons for the decision" and which would "help (the applicant) to understand why the refusal decision has been maintained" was the so-called departmental report. As the panel gave in substance no reasons for its conclusions, and the delegate merely accepted the panel's recommendation, it must be assumed that the panel and the delegate adopted the departmental document. The power to draw such inferences was specifically recognised in similar circumstances in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs, unreported 4 December 1991 where Justice Hill said at page 11:
   

The only reasons that are actually shown in any enclosed papers, are those that are set out in the handwritten document, being the Departmental report. In other words, the writer of the letter, who can be presumed to be acting with the authority of the delegate who made the decision, specifically adopted the reasons in the Departmental report as the reasons of the delegate.

1. Of course there is long established authority for the proposition that the decision under review may be set aside if the recommendation so relied on was itself faulty. In Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 31, Gibbs C.J. stated:
   

... if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take the material fact into account and will not have formed his satisfaction in accordance with the law.

1. The departmental submission was a nine page document. To deal with the relevant matters in this case, it is necessary to analyse its principal features. As a general statement, the references to the Act are to its provisions as they stood prior to the 19 December 1989 amendments:
   

1. If an applicant met the policy criteria of the former section 6A(1)(d) of the Migration Act but fell short in one of its legal preconditions - in this case, he was not authorised to work - the decision maker is nevertheless bound to take into account broad public interest criteria in exercising a discretion to overlook the missing precondition so as to permit the grant of a residency permit.

2. Applicants being assessed on occupational grounds needed to meet specific policy requirements which were 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." This summary of the scheme is contained in the relevant policy guidelines applicable to the applicant which are set out in the Integrated Departmental Instruction Manual for Grant of Resident Status number 12, published in 1988 (the Manual).

3. Item 4.10 of the Manual deals with chefs/cooks. The item has four provisions:

4.10.1 Nominations for chefs/cooks need to be assessed to ensure that both the position and the nominee (where details are available) are skilled. The following guidelines are consistent with the skill criteria applying to chef/cooks under the Occupational Share system.

4.10.2 An acceptable level of skill includes the following:

. for a cuisine where trade training is the standard method of entry (eg French, Swiss, Australia), 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 of a specialist chef eg chef de partie . native language ability is not a skill criteria for chef/cook positions (see also paragraph 2.8.2).

4.10.3 Positions for assistant cooks and kitchen hands who prepare food and cook simpler dishes under supervision are not skilled chefs/cooks and should not be approved under ENS. 4.10.4 Where details of the nominee are available to the processing office, the nominee's qualifications and experience should match the specifications of the position, including training and work experience in an establishment of a high standard, preferably international standard.

5. There is no other definition of "skilled" but item 2.8 provides a definition of "highly skilled":

2.8.1 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. 2.8.2 Periods of professional training following graduation which are necessary to meet registration requirements or admission to professional associations may be counted as work experience.

2.8.3 For ENS purposes the following attributes are not regarded as skills and therefore do not by themselves satisfy the skill level test (ie they are not sufficient to convert an essentially unskilled occupation into a skilled one):

. native speaker fluency in a language other than English

. familiarity with the customs and culture of a specific country or ethnic group . specific knowledge of a company and/or its products.

2.8.4 In determining whether an occupation can be considered highly skilled, assessing officers may be guided by the following:

. salary level

. "Occupation Outlook"

. "ASCO Dictionary"

. advice from the department of Employment, Education and Training (DEET). 2.8.5 Difficult cases which appear to involve high skill level but do not match the skill definition may be referred to DEET for advice.

2.8.6 Nominees must have qualifications and experience which meet the requirements of the nominated position.

5. Item 2.9 explains the assessment of the level of skill: 2.9.1 The purpose of the skill level test is to: . protect employment opportunities for semi-skilled, unskilled and unemployed Australian residents

. protect entry level training opportunities in the skilled labour market; and . ensure that nominees would be able to secure alternative employment in Australia.

6. Thus if the applicant's application for residency is to be granted, he must be highly skilled in his position.

7. At the time of the applicant's application for resident status, the occupation of chef/cook was on what was then known as the Priority Occupation List produced by the Department of Employment Education and Training for use by the respondent's department in this type of assessment. The occupation of Chef (including Sous-chef) was later included on the Priority List of Occupations gazetted by the respondent pursuant to regulation 2 of the Migration Regulations for the purposes of regulation 146. What were called the "Personal Characteristics" for this occupation were defined in what is known as the Dictionary of the Australian Standard Classification of Occupations (ASCO Dictionary) as: Chef/Cook Personal Characteristics (ASCO 4703-11) -- 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. Conversational English is desirable. Registration/Recognition Requirements None.

8. The grant of the applicant's craft certificate by the Vocational Training Board took into account his employment as a chef de partie in the Baghdad hotel. However, only experience after the grant of the certificate on 15 August 1990 can be considered in the present assessment. The applicant has not had three years post trade experience in international standard hotels or restaurants since then.

9. The applicant's on-the-job training was a maximum of four years and ten months, against the five years referred to in item 4.10.2 of the Manual.

10. The fact that the Bukhara restaurant scored only 13 points out of 20 means that it is not of a high/international standard. The hotel in Baghdad was not listed in the early 1991 edition of the Travel Trade Year Book as a high/international standard hotel. Even if the hotel was of the requisite standard, the applicant has only worked for two years and two months at such a level, as against the three years required by item 4.10.2.

11. Item 2.4 of the Manual provides some general policy guidelines in the employment category. Three of its subparagraphs state: 2.4.2 In order to preserve the integrity of entry policies and to ensure that the less stringent requirements for temporary entry are not used as a means of circumventing migrant entry policy, certain time limits relating to conditions of entry and length of stay are imposed.

2.4.3 Thus, in addition to fulfilling the legal conditions of being in possession of a TEP which is in force and which grants the holder permission to work, applicants should also meet the policy requirements of: . having been approved for an initial stay in Australia of 12 months or more, and . having resided in Australia as a temporary resident for not less than 12 months. 2.4.4 Officers may use their discretion to waive the time limits specified at para 2.4.3 above in cases where clear benefit would result from the applicant's continued presence in Australia.

The applicant fails to meet the two dot requirements of 2.4.3 and because he is not qualified as a highly skilled chef/cook, waiver of the time limit as permitted by 2.4.4 is not warranted.

12. "On balance", the applicant does not satisfy either the legal or policy requirements of section 6A(1)(d) of the Act.

13. Consideration was also given to the availability of compassionate factors as entitling a grant of resident status under former section 6A(1)(e) of the Act. The applicant's personal circumstances were not sufficiently severe or burdensome to warrant residency.

14. The position of the applicant's employer was also considered under this heading, especially in the context of his unsuccessful advertising for someone to fill the position of chef at the Bukhara restaurant and his receipt of a waiver or release certificate from the Commonwealth Employment Service. This avenue was rejected on the ground that the applicant has never had permission to work in Australia and that both the applicant and his employer should have known that his unauthorised employment might well lead to problems and difficulties. Further, no explanation was given to the department of why the one person referred by the Service was unsuitable.

1. The applicant attacks elements of this reasoning as perverse and misconceived. He says that it was perverse to:
   

a) consider only his trade experience after the grant of the certificate by the Commissioner of Vocational Training; b) limit the applicant's training to four years and ten months; c) exclude the Bukhara restaurant from the calculation of his post training experience.

1. The applicant argued that the decision-maker misconstrued:
   

a) the requirement of trade qualifications as only applying to Australian qualifications and to qualifications obtained before work experience;

b) the standard required for establishments entitling the applicant to be called "highly skilled";

c) his obligations in relation to the assessment of the applicant's skills.

1. The applicant also claimed breaches of natural justice in:
   

a) being refused access to the department's "report" before it was presented to the Immigration Review Panel; b) being refused an opportunity to address the panel; c) being given no notice that the department in its "report" had altered the major issues in the application; d) being given no opportunity to provide reasons for the unsuitability of the one person referred to the employer by the Commonwealth Employment Service.

1. It was also claimed that the decision miscarried because the applicant's solicitor's letter of 28 November 1990 was not considered by the department or the panel.

2. The respondent conceded that the departmental assessment should be taken as the reasoning which justified or explained the decision under review. He also conceded that there were flaws in the decision but says that to taint the decision, the flaws would have to be serious and they are not. Against those concessions, the respondent submitted that there were no breaches of natural justice in the modern sense of denial of procedural fairness. I agree. The demands of procedural fairness did not require access to the department's submission to the Immigration Review Panel: Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, Davies, Burchett and Lee JJ.; Wickramasena v Griffin (1990) ALR 198 Wilcox J. Even if they did, there are no new matters now put as essential to or likely to have been influential on the decision-making process that were denied to the applicant by the refusal of access.

3. Fairness also did not require that the applicant be allowed to address the panel, an essentially administrative recommendatory body, either generally or specifically on the query concerning the problems with the unsuitable person sent by the Commonwealth Employment Service to the Bukhara restaurant on which little or nothing turns. I also do not consider that the departmental assessment materially changed the issues raised by the application. For the reasons earlier given, I believe that the letter from the applicant's solicitor of 28 November 1990 was considered.

4. There is essentially only one issue involved in this case, viz. whether the departmental submission erred in its understanding of the policy guidelines or erred in their application to the facts of this case. The facts of this particular case are highly unusual. They therefore do not permit of absolute or strict standards, and it is not surprising that the Manual therefore does not really cover them. It must therefore be applied in spirit and intent. It seems to me that the evidence before the delegate compelled or strongly supported the following approach:
   

1. The applicant is a chef skilled in his particular cuisine.

2. The 5 star hotel in Baghdad at which he worked was or should be treated as an international standard hotel. Its omission from a travel or food guide in the middle of the Gulf War should be ignored. It is unlikely that a chef de partie would be employed at an inferior establishment. If this conclusion was not to be made, the applicant and his employer who had worked together there, and the applicant's lawyers, should have been permitted to supply additional material on this point.

3. The applicant's employment at the ashram at the age of 13 should be viewed from the standpoint of Indian practice, not Australian. It is not at all uncommon, regrettably, for young Indian children to be performing important and skilled work from a very early age. Indeed, although child labour is contrary to Indian law, it is a widespread practice from ages as young as five years old: Lawson, E., Encyclopedia of Human Rights (1991) at p 168; Justice V.R. Krishna Iyer, Human Rights and the Law (1984) at pp 34-36. By the age of 13, it is common for children to have had a lot of work experience. The description of the cooking experience the applicant had at the ashram in India for eight years should have been accepted as evidence of his early professional training and acquisition of skills. Some allowance was appropriate for this time. If even one year was allowed, the suggested criteria of the Manual would have been met.

4. Strict reliance on the score achieved by the Bukhara restaurant in the Good Food Guide was inappropriate. The question to be determined was whether the applicant possessed the requisite skills. A large number of qualified people testified to the department that he did. There was no evidence of a contrary opinion. The score was marked out of 20 of which 10 was allocated for the quality of the food. The fact that the Bukhara is regarded as a less expensive establishment with outstanding food leads to an inference that of the score of 13, the highest component would have been the allocation for the food quality. This militates strongly in favour of the applicant's skills.

5. As may be implied from item 4.10.4, item 4.10.2 of the Manual should be regarded as satisfied when an establishment has a high standard of food. A chef ought not to be assessed by reference to the expensive decor or cutlery and napery of his restaurant any more than his skills should be judged by whether the waiters are in formal dress. It is inconsistent to treat a 5 star hotel as not possessing sufficient quality in restaurants but treat a restaurant with a high standard of food as not a high standard restaurant. Item 4.10.2 is not intended to be taken as excluding any person other than a person who literally complies with each of its words. Its relevant words for this case actually describe what the "position" should require, not what must be satisfied by the applicant for the position.

6. The department's assessment appears to have overlooked that item 4.10 does not require a chef/cook to be "highly skilled" but merely "skilled" as defined in 4.10.2. Moreover, item 2.8.1 of the Manual defines an occupation as highly skilled when it is "normally" expected that an applicant will have had the stated training and experience to reach an "average" level of competence. "Normally" does not mean "invariably". Moreover, by definition guidelines will be general in nature. Sensibly these guidelines allowed room for discretion, commonsense and flexibility in order to meet unusual cases like this one where a balanced assessment was required, amongst other things, of the practices and experience of a country with a very different cultural and social order to Australia.

7. I can see no reason why the department could only consider the applicant's work or trade experience as that gained after he obtained his craft certificate from the Commissioner for Vocational Training, and counsel for the respondent, correctly and very sensibly in my view, did not seek to support that approach at the hearing. Clearly the Vocational Training Board took into account the work and training done prior to its date, although it apparently ignored his work at the ashram. The certificate recognised, years after the training, that he was a trained cook. The applicant had manifestly complied with the "normal" expectations referred to in item 2.8.1 of the Manual.

8. The applicant does not comply with item 2.4.3 of the Manual but there is power in item 2.4.4 to waive these requirements "where clear benefit would result from the applicant's continued presence in Australia." The only reason given by the departmental submission for not exercising the discretion in favour of waiver was the applicant's lack of the requisite skills. As this finding was based on a misconstruction of the guidelines and the application of policy guidelines without regard to the merits of the case, the case for refusing the waiver also fails. The reconsideration of this discretion will need to give specific attention to the matters raised in the applicant's solicitor's letter of 28 November 1990 concerning the national interest especially in relation to the tourist trade, the need for quality restaurants and food, and the capacity of highly skilled cooks like the applicant to train young Australians in the art.

1. The application for review is upheld with costs. The applicant's application for resident status is referred to the respondent for further consideration in accordance with these reasons for judgment.