Ranatora v Minister for Immigration and Multicultural Affairs

[1998] FCA 392

WAISAKE SASALU RANATORA AND ANA RANATORA v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 820 of 1996
FED No. 392/98
Number of pages - 11
(1998) 154 ALR 693

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

HILL J

SYDNEY, 6 April 1998 (hearing and decision)

#DATE 6:4:1998

Counsel/Solicitor for the Applicant: In person

Counsel for the Respondent: Mr R. Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The Tribunal's decision be set aside.

2. The matter be remitted to a Tribunal differently constituted for reconsideration in accordance with law.

3. Respondent to pay the applicant's costs on a party/party basis but relevant to any legal advice that he may have had.

HILL J

The applicants, Mr and Mrs Ranatora, apply to the Court for review of a decision of the Immigration Review Tribunal, constituted by Ms Gabriel Fleming, refusing to grant to Mr Ranatora a Class 816 Special (Permanent) Entry Permit. A separate application was made in respect of Mrs Ranatora before the Tribunal but in this Court Mrs Ranatora's application for review succeeds or fails solely on the basis of the outcome of her husband's application.

The relevant criterion dealt with by the Tribunal for the grant to Mr Ranatora of the permit is to be found in subclause 816.721(2)(b)(ii) of the then Migration (1993) Regulations which provided:

"(2) An applicant meets the requirements of this subclause if, on 1 November 1993: (a) .... (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; ..."

There are other criteria which need to be satisfied which the Tribunal found unnecessary to consider because it had found against Mr and Mrs Ranatora on the basis relevantly, that Mr Ranatora's qualification and work experience was not such as to be a "trade" within the meaning of that regulation.

THE TRIBUNAL'S REASONS

There is scant reference in the Tribunal's reasons to the facts of Mr Ranatora's occupation while he was outside Australia. He was a Fijian citizen and had before arriving in Australia, worked in Fiji. He had, so the Tribunal said, completed the following courses:

1. Fiji Institute of Technology, July 1984 to November 1984, Certificate in Supervision, one subject completed.

   2. CPI Management Consultants Limited, July 1989, satisfactory completion of a programme in Small Business Management.

   3. Royal Fiji Military Courses of Instruction:

* Basic administration

* Junior Clerk

* Junior NCO Drill and Duties

* Senior NCOs Course

* Warrant Officer's Course

He served in the military in Fiji from 22 March 1975 to 28 May 1983 in what, for at least some of the time, was essentially the position of a sales clerk though he also saw active duty. After discharge he worked, inter alia, as a sales supervisor. The activities which he relied upon as constituting a relevant trade were Accounts-Pay Clerk and Sales Supervisor. Precisely what these occupations entailed is not stated. Both of them were occupations in respect of which he had work experience qualifying him. Some experience by way of on the job training, was recognised to be applicable in Australia for such an occupation. See in respect of Pay Clerk-Accounts Clerk ASCO Dictionary 5301-13 and as to the occupation of Sales Supervisor ASCO Dictionary 6301-01.

After setting out the brief facts to which I have referred the Tribunal adopted comments made in a former Tribunal decision in Re Singh (IRT Decision N95/01739). In a passage which it cited and which is not controversial but also not determinative of the present case, it noted as well that in the same case the Tribunal had expressed its view that a trade:

"should be a job which requires a comprehensive form of training, possible [sic] these days involving theoretical as well as practical instruction. In addition a trade can be distinguished from other work by the level of skill required for the job. Although every job calls for some skill clearly the level required for a 'trade' differs for example from that required for a 'driver or process worker'."

This passage on its own does not seem to present any problem. The Tribunal then went on to deal with the decision of Moore J in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 in which his Honour restricted the meaning of "trade" in the relevant regulation, in a passage cited by the Tribunal, to the case where skills were attained (if no formal training had been embarked upon) by on the job experience as an apprentice. The Tribunal then noted that trade apprenticeship involved three to four years of training. It reinforced this view by reference to a letter from the New South Wales Department of Training and Education which referred to indentureship for the term of an apprenticeship of usually four years.

The Tribunal referred also to evidence from Associate Professor Gonzi of the School of Adult Education at the University of Technology, Sydney, which evidence went, it would seem, to the question what a tradesman was and what levels of qualification it might require. It then said that it had taken into account the comments made in Singh and Subraju as well as the New South Wales Department of Trade and Education letter and Professor Gonzi's "general comments".

The Tribunal then made the following findings set out at pages 9 to 10 of its reasons:

" The Applicant does not have overseas trade qualifications;

The Applicant has several years work experience in Fiji as both a Pay Clerk and a Sales Supervisor. In addition he has limited experience as an active infantryman in the Fijian Army; The Applicant's occupations are best described as a Pay Clerk, Infantryman and Sales Supervisor. His duties are consistent with the duties of these occupations described in ASCO at 5301-13, 7499-19 and 6301.01. The skill level for any of these occupations does not exceed one year on the job training; None of the above occupations require a wide range of highly developed manipulative skills or competencies which require at least three years training to acquire [emphasis added]; These occupations are not a recognised 'trade' the relevant State or Federal authority [sic]; The skills required for these occupations may be acquired by a period of on the job training, no period of formal training is needed nor is there any need for an apprenticeship." [emphasis added]

It continued:

"The Tribunal finds therefore that Mr Ranatora's occupations do not require the degree of training or skill traditionally considered in the term 'trade' for which the usual recognition is a trade qualification achieved after a period of apprenticeship." [emphasis added]

GROUNDS FOR REVIEW

The application for review in various ways states that the Tribunal's reasons were infected with an error of law in the construction that it gave to the word "trade" in clause 816.721(2)(b)(ii) which is set out above. The application was apparently prepared by a solicitor then acting for Mr and Mrs Ranatora. It is not in dispute that the construction of the regulation involves a question of law and that the Court would have jurisdiction to review the Tribunal's decision on the ground that it involved an error of law, at least if that error was material to the Tribunal's decision.

In the meantime Mr and Mrs Ranatora have ceased to be legally represented and Mr Ranatora appeared in person. In the result, Mr Ranatora was unable to give a great deal of assistance to the Court in the consideration of the application, apart from re-stating the grounds set out in the application. He asked the Court to order that he be re-trained and said that the Tribunal should likewise have made such an order. Unfortunately, Mr Ranatora did not appreciate (and for a lay person a position that is well nigh impossible) that the Court has but a limited jurisdiction in undertaking judicial review in the context of Migration Law and that neither it nor the Tribunal could make such an order as he requested. I should say the Court was greatly assisted by counsel for the Minister, Mr Beech-Jones who, without any way denigrating or compromising his client's case, fairly debated the matters which were the subject of the application or arose from it.

In the end, three questions fall for decision:

1. Whether the Tribunal erred in law in following Subraju; 2. Closely allied to question 1 is whether the Tribunal, if it did follow Subraju, nevertheless found against Mr and Mrs Ranatora on some alternative basis;

   3. If the first question be answered in the positive and the second in the negative, whether the error made by the Tribunal was material. Put another way, this question amounts to whether it would be futile to remit the matter to the Tribunal when the only answer open to the Tribunal was one which was adverse to Mr and Mrs Ranatora.

THE STATUS OF SUBRAJU

Subraju has not been followed in a number of cases to which Mr Beech-Jones properly made reference and at least one case was decided in a way which could be said to be inconsistent with it. The first case to discuss Subraju appears to be Pillay v Minister for Immigration and Multicultural Affairs (unreported Tamberlin J, 29 July 1997).

Pillay was concerned with an application by a secretary with accounting training who had worked overseas as a settlements clerk for the bank. The Tribunal rejected her application on the basis that she had not undertaken training or employment in the trade for which an apprenticeship was necessary, and was not employing her skills in a trade characterised by the exercise of skilled manual labour.

The reference to skilled manual labour, although appearing in Subraju, might perhaps have come from the earlier decision of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544, a case which considered the meaning of the expression "Trade Certificate" for the purpose of the then regulation 146(1)(b) of the Migration Regulations. Kumar is referred to also by Moore J in Subraju.

In Kumar, Wilcox J suggested (at 552) that trade is a word "applicable to any skilled handicraft, as distinct from a profession". Probably the reference to skilled handicraft was not used by his Honour to equate to manual labour, as is obvious from his Honour's acceptance immediately thereafter that the work of a secretary could be called a skilled handicraft.

Tamberlin J said in Pillay - and with respect, I agree, that nothing as a matter of policy supported the view that the word "trade" should be given a narrow view. His Honour was also of the view, contrary perhaps to some comments made by Wilcox J, that it would be open to a Tribunal to find that a skilled typist or shorthand reporter was pursuing a "trade" - that being a matter of fact for decision by the Tribunal and not for the Court.

The next decision to which reference was made, although it did not directly refute Subraju, was Tanchiatco v Minister for Immigration and Multicultural Affairs (unreported, Branson J, 20 August 1997). The applicant in that case had gained experience as a process worker and machine operator of a squash ball assembly machine. Her Honour distinguished between training for a particular job and training for a trade. She said at page 4:

"A particular job can never constitute a trade. A 'trade' is a category of employment in contradistinction to unskilled labour and to the various professions. Traditional trades include hairdressing, carpentry and boilermaking. Non-traditional trades have, and, no doubt, will continue to evolve. A specified job may or may not require to be filled by a person with particular trade qualifications, whether formal or informal, but a job is distinct from a trade."

Her Honour then continued at page 5:

"In my view the notion of a trade involves recognition of a category or body of practical vocational skills of some difficulty and some generality."

Ultimately her Honour adopted an approach which she saw as being consistent with that adopted by Wilcox J in Kumar. In doing so she did not specifically say that Subraju had been wrongly decided although in Kumar Wilcox J had argued for a broad interpretation of the word "trade" albeit in a slightly different context.

The next case was Rahim v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432, a decision of Sackville J where the applicant was a storeman and later a receiving and despatching clerk. In both of these jobs he had received on-the-job training. The Tribunal, whose decision was the subject of review, referred to Subraju in the course of its reasons. Sackville J was of the view that the word "trade" had its broad dictionary meaning although the direct issue for decision included whether the work experience of the applicant met Australian education or training standards in that trade. Like Tamberlin J in Pillay his Honour refused to give the word "trade" a narrow meaning. Particularly, he refused to adopt the narrow meaning which Moore J had suggested in Subraju and said that the criticisms which Tamberlin J had in Pillay advanced in respect of Subraju were well founded.

However, his Honour found that the Tribunal's reasons had not adopted the narrower construction which Moore J had given to the word "trade" but, rather, the broad view which Wilcox J had suggested albeit in a different context. Sackville J also suggested that a recognised training program or certificate process was not an essential element of a trade. His Honour said at 443-4, as Wilcox J said in Kumar (at 552):

" 'trade' is a word capable of applying to any skilled handicraft (and, one might add, any skilled calling), other than the professions. The fact that the evidence establishes, in a particular case, that there is no recognised training scheme for a given occupation and that no recognised body regulates training standards for that occupation, is not necessarily incompatible with a conclusion that the occupation constitutes a trade. New skills and occupations are emerging continually in response to changing technologies and conditions in the market place. On-the-job training may be the only way of gaining the necessary skills for a particular occupation that can be described as a skilled handicraft or calling. There may simply have been no opportunity or occasion for the establishment of formal training or recognition procedures for that occupation. In my view, it is appropriate to take into account, in determining whether an occupation is a trade, that training programs are (or are not) available to potential entrants and that a particular body does (or does not) regulate standards for that occupation. But the absence of training programs or regulatory standards is not necessarily fatal to the contention that an occupation is capable of being regarded as a trade."

His Honour also accepted the test applied by Branson J to which reference has already been made. As an alternative ground of decision his Honour decided that even were there to be an error of law the matter should not be remitted to the Tribunal as necessarily its decision would have been confirmed: Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 at 36 (Full Court per Wilcox J); Moralas v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 (per Sackville J) and Stone v Minister for Immigration and Ethnic Affairs, unreported, 28 June 1996 (a decision of mine affirmed in Stone v Minister for Immigration and Ethnic Affairs, Full Court, 6 February 1997, unreported).

The final decision to which I was referred is that of Foster J in Tay v Minister of Immigration and Multicultural Affairs (16 December 1997, unreported). That case concerned an applicant with trade qualifications as a waiter and commercial laundry manager. It was accepted that waiting was a trade. The Tribunal had in its reasons cited what had been said by Moore J in Subraju and expressed itself that it had followed it in rejecting the applicant's claim that commercial laundry management was not a trade.

It was held that the Tribunal had erred in following Subraju. Foster J expressed agreement with the views of Tamberlin J that trade should not be given a narrow interpretation. By applying solely the test in Subraju his Honour found that the Tribunal had unnecessarily narrowed the question before it. In remitting the matter for further consideration by the Tribunal his Honour indicated that a consideration of factual matters such as what was involved in the work of a commercial laundry manager could throw light on the question whether that occupation could properly be characterised as a trade.

It follows that if the Tribunal in the present case followed Subraju as its reason for decision, without reference to another ground, it erred in law.

WAS SUBRAJU THE SOLE GROUND OR AN ALTERNATIVE GROUND?

It is difficult, when reading the Tribunal's reasons, to be entirely clear what significance it gave to Subraju. In what follows I accept the view of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 which is not only binding upon me but, with respect, correct, that the Court should adopt a restrained approach in criticising reasons of an administrative tribunal and not be quick to find error.

The Tribunal referred twice to Subraju. It did so first by setting out what Moore J had said. It did so on the second occasion by saying that it had taken into account the comments which it had earlier referred to. Second, it may be said that the Tribunal proceeded on the basis that a trade apprenticeship required a three or four year period of training, a matter which it had gleaned from the evidence of the New South Wales Department of Training and Education, evidence which could only be relevant if apprenticeship was the issue. Third, in the findings it made, which in the context of its reasons for decision (the word "therefore" introducing its conclusions makes this clear), the Tribunal took the view that the necessary skill levels of up to one year on-the-job training was far less than the three years minimum training which the board apparently thought to be necessary before a trade was undertaken. The period of three years is, it would seem, based on the apprenticeship system as emerges from a letter from the New South Wales Department of Training and Education.

Finally, the Tribunal commented that there was neither a period of formal training nor any need for apprenticeship; again, the reference to apprenticeship is obviously a reference to Subraju. Counsel for the Minister accepted that for an occupation to be a trade formal training as such is unnecessary; on-the-job training would suffice. Once Subraju is rejected, apprenticeship, while no doubt not irrelevant to the overall issue of trade, but certainly not determinative, would not be a necessary form of training or equivalent training for a trade.

I am satisfied not merely that the Tribunal referred to Subraju, a judgment which in my view should not be followed and which has now been somewhat discredited by the cases to which I have referred, but that Subraju formed a critical step in the Tribunal's reasons. I do not read the Tribunal's reasons as deciding by way of some alternative that it should reach its conclusion on some other ground. In particular Professor Gonzi's evidence is of such generality that it would hardly form the basis of any conclusion relevant to the issues before the Tribunal.

I should say that, in my view, in considering clause 816.721(2)(b), the Tribunal should proceed on the following basis:

1. It should find and state facts which make it clear what occupation the applicant has which he claims to be a trade falling within the clause;

   2. It should find what overseas trade qualifications or work experience the applicant possesses being a matter relevant to understanding the nature of the occupation which the applicant claims to be a trade;

   3. The Tribunal must then determine whether the occupation is in fact a trade within the meaning of the clause.

In reaching this conclusion the Tribunal is not constrained to take a narrow view. An occupation may be a trade notwithstanding the absence of formal training and notwithstanding the absence of anything akin to apprenticeship. An occupation will be a trade if it involves skilled handicraft (there is no implication as such of manual labour in the use of this expression) or perhaps as Sackville J referred to "a skilled calling".

A distinction must be drawn at one end of the scale to an unskilled occupation which is not a trade. Further up the scale is an occupation which may be described, albeit it involves some training, as a specific job with a particular employer. It will not be a trade. The next end of the scale is the skilled calling which is a trade. Finally, further up the scale is the occupation which is properly characterised as a profession. What distinguishes a trade from a specific job is, as Branson J observed, both a category or body of practical vocational skills involved in a trade being skills of some difficulty but also the generality of those skills. A trade is not merely job specific.

4, The Tribunal must then find whether trade qualification or work experience which the applicant has undertaken has been assessed as meeting the Australian Education or Training standards for that trade by the authorities in either (A) or (B) of the subparagraph.

5. If neither of the bodies referred to in (A) or (B) are able to make an assessment of the overseas trade qualification or work experience then the Tribunal, standing in the shoes of the Minister, must itself make an assessment.

The Tribunal erred in step 3 of this process.

WOULD REMITTAL BE FUTILE?

As Sackville J said in Rahim the Court will not remit a matter to the Tribunal if to do so would be futile. If the case is one where only one decision is open to the Tribunal it would be pointless to remit the matter to the Tribunal. If that decision is adverse to the applicant the error can also be said to have been an immaterial one.

There is much to be said for the view that it was not open, as counsel for the Minister submitted, for the Tribunal to hold that an occupation of Accounts/Pay Clerk was a trade. Reference to the ASCO First Edition Dictionary, to which the Tribunal referred, has, as I have already mentioned, a general entry for accounting clerks indicating that in Australia on-the-job training of from 1 to 12 months was usual. An entry relating to Accounts Clerk to which the Tribunal also referred, refers to on-the-job training of 1 to 4 months. The Tribunal's finding, however, seems to have been that there was a requirement of up to 12 months training.

What makes it difficult for the Court, not charged with fact-finding, to conclude that no answer is open other than one adverse to the applicants, is that in finding the facts the Tribunal did not provide any detailed facts which went to the matters which I have set out in steps (1) and (2) above. It is neither clear to me what the applicant did overseas, which is claimed to be a trade, nor what on-the-job training in Australia might be said to be relevant to that job.

His own on-the-job training for the position is likewise unknown and could throw light on both issues. All of these matters must be exposed before it is possible to conclude whether the claimed occupation is truly a trade. Matters of fact and degree are involved. They are matters clearly for the Tribunal and not for this Court. In my view, it cannot be said to be futile that the Tribunal will decide in favour of the applicant in giving the correct or preferred decision which it is charged to do, even if the applicant's case may be said not to be on its face an easy one.

I would accordingly set aside the Tribunal's decision and remit the application to a Tribunal differently constituted for reconsideration in accordance with law.

I would order the respondent to pay the applicant's costs on a party/party basis but relevant to any legal advice that he may have had.