Rainin v Minister for Immigration and Multicultural Affairs

[1999] FCA 767

FEDERAL COURT OF AUSTRALIA

Rainin v Minister for Immigration & Multicultural Affairs [1999] FCA 767

MIGRATION – application for review of decision of Immigration Review Tribunal - Migration (1993) Regulations, cl 816.721(2)(b)(ii) – requirements for Class 816 entry permit – applicant failed to meet Australian educational or training standards as an electro-mechanic – applicant aware of this failure but refused to have his skills reassessed

Migration Act 1958 (Cth), ss 346(1), 348(1), 360, 368, 476(1)(a), 476(1)(e), 476(2)(a)
Migration Reform Act 1992 (Cth)
Migration (1993) Regulations, Sch 2, Pt 816, cll 816.721(2)(b)(ii), 816.732(3)
Migration Reform (Transitional Provisions) Regulations, reg 23

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, followed
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs, unreported, Federal Court of Australia, 6 May 1997, followed
Saliba v Minister for Immigration and Ethnic Affairs (1998) 159 ALR 247, cited
Bouianov v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, 26 October 1998, cited

SZCZEPAN LUCIAN RAININ V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 131 OF 1999

JUDGE:         SACKVILLE J
DATE:           7 JUNE 1999

PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 131 OF 1999

BETWEEN:	SZCZEPAN LUCIAN RAININ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE:	7 JUNE 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of these proceedings.

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	N131 OF 1999

BETWEEN:	SZCZEPAN LUCIAN RAININ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE:	7 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Proceedings

1. The applicant seeks review of a decision of the Immigration Review Tribunal (“IRT”), given on 27 January 1999.  By that decision, the IRT affirmed an earlier decision to refuse the applicant a Class 816 (Special (Permanent)) entry permit to enable him to remain in Australia.

2. In substance, the IRT’s decision was based on its finding that the applicant had failed to satisfy the requirements for a Class 816 entry permit specified in cl 816.721(2)(b)(ii) of Part 816 of Schedule 2 to the Migration (1993) Regulations. That provision was in the following form:

   “(2)An applicant meets the requirements of this subclause if, on 1 November 1993:

   ...

   (b)the applicant:

   (i)...

   (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...”.

3. The case has a long history.  The applicant was born in Poland in 1949 and is a citizen of that country.  He arrived in Australia in September 1988 and was granted a temporary entry permit valid for six months.  The applicant remained in Australia after the expiration of his visa.  Prior to 1 November 1993, he applied for a determination that he was a refugee, but this application was apparently either unsuccessful or remained unresolved.

4. On 14 July 1994, the applicant applied to remain in Australia under concessional arrangements announced by the then Minister. Under those arrangements, he was entitled to a Class 816 entry permit if he could satisfy the requirements specified in Part 816 of Schedule 2 to the Migration (1993) Regulations. In consequence of transitional arrangements accompanying the Migration Reform Act 1992 (Cth), which came into force on 1 November 1993, the application was to be decided according to the criteria that were originally applicable: Migration Reform (Transitional Provisions) Regulations, reg 23.

5. On 20 September 1994, a delegate of the Minister refused the application. That decision was affirmed by the Migration Internal Review Office on 20 October 1995, which treated the application as one both for a Class 816 permit and a Class 818 (Highly Qualified On-Shore (Permanent)) entry permit. The applicant then applied to the IRT for review of the review officer’s decision, pursuant to s 346(1)(a) of the Migration Act 1958 (Cth) (“Migration Act”).

6. On 28 November 1996, the IRT affirmed the decision not to grant an entry permit.  This decision was challenged by an application for judicial review in this Court.  On 10 July 1997, orders were made by consent setting aside the decision of the IRT and remitting the matter for reconsideration.  This appears to have been done on the basis that the IRT relied on an assessment of the applicant’s qualifications and experience by Trades Recognition Australia (“TRA”) of the Department of Industrial Relations made as at 1996, rather than at 1 November 1993, as required by cl 816.721(2).

7. In consequence of the remittal, another member of the IRT considered the application afresh.  The applicant attended a hearing on 17 December 1998 and gave evidence on oath.

   The Tribunal’s Reasons

8. In its reasons, the IRT recorded the applicant’s claims and evidence as including the following:

   “•He referred to his work in Poland as a licensed electro mechanic after 

   finishing trade school there in 1963 until coming to Australia in 1988.  He

   has not worked in that field since coming to Australia.

   ·On 1 November 1993 he was not working or studying.  He was reporting to the Department’s Parramatta office.

   ·He is self taught in English and although he sat for the STEP test twice he has not passed it.

   ·He has not formally studied in Australia.

   ·He is not in a close relationship with an Australian citizen or permanent resident.

   ·He is aware that Trade Recognition Australia (TRA) have determined that neither his overseas trade qualification or work experience meets the Australian education or training standards for this trade.

   ·He did not attend a further trade test arranged with TRA as he was ‘very frightened’.

   ·He does not want to undergo another assessment with TRA.  He does not wish to sit a trade test or be involved in an examination.  He has not worked in his trade in Australia and the requirements here are different from Poland.

   ·He reiterated and confirmed he did not wish to sit a trade test or do an examination as it was ‘futile’ and he is ‘apprehensive’ he will not succeed.  It was his final word that he did not want to sit another test with TRA.”

9. The IRT’s reasons also recorded that, on 14 April 1998, TRA had notified it that the applicant did not satisfy the Australian requirements for his trade as at 1 November 1993.  The IRT had advised the applicant of this finding by letter dated 11 May 1998 and invited his comments.  In August 1998, the IRT had again contacted TRA, which had advised that the applicant would need to sit a test to have his skills assessed once more (presumably meaning that the applicant would need to pass such a test if TRA were to change its assessment).

10. The findings of the IRT included the following:

    “The Tribunal accepts on the evidence and material before it that the Applicant’s occupation as an ‘electro mechanic’ is considered a ‘trade’ in Australia.  The Tribunal notes that TRA (the Department of Industrial Relations) has on a number of occasions indicated that as at 1 November 1993 the Applicant’s overseas technical qualifications and/or work experience did not meet the Australian education or training standards for that trade.  This was so even after TRA was requested by the Tribunal to apply the specific test set out in the Regulations.  As the Department of Industrial Relations is the assessing body referred to in clause 816.721(2)(b)(ii) of the Regulations, the Tribunal is bound by its assessment.  Furthermore, the Tribunal endeavoured to have the Applicant re-examined in relation to the TRA assessment however the Applicant refused to be reassessed by it.”

11. In these circumstances, the IRT found that the applicant had not satisfied cl 816.721(2)(b) of Part 816. Nor had he satisfied any of the alternatives specified in cl 816.721. Given these findings, it was not necessary to consider further the application for a Class 816 entry permit. However, the IRT noted that the applicant had failed the so-called “STEP” tests of English language proficiency on two occasions and therefore may not have satisfied cl 816.732(3), which required the applicant successfully to undertake a test of proficiency in English.

12. The IRT also found that the applicant was unable to satisfy the criteria for a Class 818 entry permit.  It therefore affirmed the decision under review.

    The Applicant’s Principal Argument

13. The applicant’s principal argument is that the IRT is under a special duty to assist an unrepresented applicant to make his or her case, if the circumstances indicate that the applicant does not understand a particular aspect of the case.  Mr Diab, who appeared for the applicant, submitted that the IRT must have known that the applicant’s refusal to sit for a further test organised by TRA would be fatal to his case.  It was therefore incumbent on the IRT to warn the applicant of the consequences of his refusal.

14. This argument assumes that if there is such a duty of the kind asserted, a breach is reviewable in this Court by reason of s 476(1)(e) of the Migration Act. Section 476(1) provides that application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:

    “(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, whether or not the error appears on the record of the decision.”

15. This assumption seems to be incorrect, in the light of the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21. Section 476(2)(a) of the Migration Act provides as follows:

    “(2)The following are not grounds upon which an application may be made under subsection (1):

    (a)that a breach of the rules of natural justice occurred in connection with the making of the decision....

    (b)       ...”.

    The effect of the High Court’s approval in Eshetu of the reasoning of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs, unreported, 6 May 1997 (see Eshetu, per Gleeson CJ and McHugh J, at [49]; per Gummow J, at [106]-[109]; per Callinan J, at [176]-[179]), appears to be that this Court has no power to review a decision by reason of a breach of the rules of natural justice in connection with the making of the decision, unless the breach constitutes a failure to observe procedures specifically laid down by the Migration Act or the Migration Regulations. If there is a breach of procedures specifically laid down in the Migration Act or the Migration Regulations, a ground of review is available in this Court by reason of s 476(1)(a) of the Migration Act. Examples might include a breach of s 360 (requiring the IRT in certain circumstances to give the applicant an opportunity to appear before it to give evidence) or s 368 (requiring the IRT to set out its reasons for decision).

16. The applicant’s submission appears to rest on what is said to be a failure on the part of the IRT to observe general law principles of natural justice or procedural fairness.  No breach of a specific provision of the Migration Act or the Migration Regulations is alleged. Although Mr Diab made a brief reference to s 348(1) of the Migration Act (which requires the IRT, if an application is properly made under s 347 for review of an IRT-reviewable decision, to review that decision), he did not explain how the applicant’s claim could amount to a contravention of s 348(1). In these circumstances, it would seem that this Court does not have power to grant relief on the ground relied on by the applicant.

17. If that conclusion be wrong, in my opinion the applicant must fail in any event on the facts.  On the appellant’s own argument he cannot succeed unless he can show a breach of the requirements of procedural fairness.  There are circumstances in which the IRT, in order to comply with those requirements, will be obliged to alert an unrepresented applicant to particular issues or even to consider issues not identified by the applicant: see Saliba v Minister for Immigration and Ethnic Affairs, (1998) 159 ALR 247, per Sackville J, at 258; Bouianov v Minister for Immigration and Multicultural Affairs, unreported, 26 October 1998, per Branson J, at 2.  However, those circumstances are not present in this case.

18. The applicant was informed in writing prior to the IRT hearing that TRA considered that he did not have the qualifications or experience to enable him to meet relevant Australian standards as at 1 November 1993 and thus could not satisfy cl 816.721(2)(b)(ii). There is nothing in the evidence to suggest that the applicant did not understand what he had been told. Indeed, it is scarcely likely that the applicant did not understand the position, since the first IRT decision was based specifically on the applicant’s failure to secure a favourable assessment from TRA of his qualifications and work experience. The applicant was represented before the IRT on the first occasion by a migration agent. He was subsequently represented by solicitors in connection with his application to this Court for judicial review of the first IRT decision. That application was founded on the failure of the IRT and TRA to apply correctly the test laid down by cl 816.721(2)(b)(ii) of Part 816. It hardly seems plausible that the applicant did not understand that his application could not succeed unless he secured an assessment by TRA that his qualifications or work experience met Australian educational or training standards.

19. The transcript of the IRT hearing, which took place on 17 December 1998, was not in evidence, but the file admitted into evidence includes detailed notes of the hearing prepared by an officer of the IRT.  The notes show that the member asked the applicant if it was correct that his qualifications had been assessed in Australia and been found not to satisfy the standards for his trade.  The applicant confirmed that this was so.  The member then asked whether the applicant wished to be reassessed by TRA.  The applicant replied that a reassessment would involve an examination and substantial cost and that he did not wish to “get back to that”.  He also said that his English was not very good and he did not know whether he would get through. The member persisted with the issue, asking why the applicant had not attended an appointment that had been made for a reassessment.  The applicant stated that he had been very frightened and that he did not wish to go through the testing again.

20. The IRT member then sought clarification by asking the applicant whether it was correct that he did not wish to be assessed by TRA.  The applicant restated that if he had to undergo an examination, rather than a review of his years of work, he did not want to do it.  Not content with this, the member confirmed with the applicant that he had received the advice from TRA, sent to him on 11 May 1998.  Yet again the applicant confirmed that he no longer wished to sit any test in relation to the application because (as he said) he was not ready for it and had never worked in the field in Australia.

21. On 22 December 1998, the Assistant Registrar of the IRT wrote to the applicant in the following terms:

    “I have confirmed with Trades Recognition Australia that you would need to re-sit the trade assessment exam if you wish your skills to be recognised.

    As you indicated to the presiding member Mr Karas that you did not wish to be re-examined, I have returned your cheque made out to Trades Recognition Australia for $660.

    The Tribunal will proceed to make a decision in this matter.”

    This letter was sent to the applicant a month prior to the IRT making its decision in the matter.  This account demonstrates that the IRT repeatedly put to the applicant that he had the opportunity to undertake a further test by TRA to reassess his skills.  The applicant repeatedly declined, giving as his reason that he would be unlikely to succeed. 

22. This account demonstrates that the IRT repeatedly put to the applicant that he had an opportunity to undertake a further test of his skills and knowledge by TRA. Notwithstanding that the applicant had previously provided a cheque to cover the required fees, the applicant declined to undertake the test. There is nothing in the notes of the hearing to suggest that the applicant was labouring under any misapprehension that his refusal would put paid to his chances of satisfying the criterion laid down in cl 816.721(2)(b)(ii). Nor was there any evidence to that effect. On the contrary, as I have suggested, the history of the case makes it difficult to reach any conclusion other than that the applicant was aware of the significance of TRA’s unfavourable assessment.

23. In these circumstances, it is difficult to see what more the IRT could reasonably have been expected to do.  It gave the applicant an opportunity for a further test and he resolutely declined to take advantage of it.  Assuming that the Court has jurisdiction to entertain the applicant’s principal submission, it must fail.

    Alternative Submission

24. Mr Diab put an alternative submission to the effect that the IRT, given the applicant’s express refusal to take a further test with TRA, should have pursued with TRA the question of whether a fresh assessment of the applicant’s qualifications could be undertaken without the need for further testing.  The submission asserted, without any supporting evidence, that there was a “real possibility” that, if the applicant submitted fresh material to TRA, his qualifications would be recognised.

25. This submission overlooks the fact that the IRT, as it recorded in its reasons, had already communicated with TRA in August 1998 and had been told that a further test was necessary.  Mr Diab conceded that the applicant had not put any fresh material to the IRT that would or might enable TRA to reach a different conclusion on the critical issue, namely whether the applicant’s trade qualifications or work experience was to be assessed as meeting Australian educational and training standards.  In these circumstances, the IRT was not under any obligation to make a further inquiry of TRA to seek a reassessment of the applicant without him being required to submit to a test of his skills.

    Conclusion

26. The application must be dismissed, with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             7 June 1999

Solicitor for the Applicant:	John H Maait & Co
Solicitor for the Respondent	Australian Government Solicitor
Counsel for the Cross Respondent:	Ms V A Hartstein
Date of Hearing:	7 June 1999
Date of Judgment:	7 June 1999