Reddy v MIMA
[1998] FCA 482
•6 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 488 of 1997
BETWEEN:
CHANDRA SEGAR REDDY
APPLICANTAND:
MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
WHITLAM J
DATE OF ORDER:
6 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 488 of 1997
BETWEEN:
CHANDRA SEGAR REDDY
APPLICANTAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
WHITLAM J
DATE:
6 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT (EX TEMPORE)
This is an application to review a decision made by the Immigration Review Tribunal (“the Tribunal”) on 29 July 1997.
The background to the matter coming before the Tribunal may be briefly sketched. Under cover of a letter dated 3 June 1994 from his solicitors, the applicant made application for a Class 816 special (permanent) entry permit under the Migration (1993) Regulations.
The relevant statutory provisions are contained in Pt 816 in Schedule 2 of those regulations. This case is concerned with Div 816.72 that sets out the criteria to be satisfied at the time of application for such an entry permit. Clause 816.721(1)(a)(ii) requires the applicant to be a person who meets the requirements of subclause (2) or (3) of that clause. Subclause (2) was invoked by the applicant. It relevantly provides:
“(2) An applicant meets the requirements of this subclause if, on
1 November 1993:
(a) . . .
(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) . . . ”
By letter dated 24 January 1995 the applicant’s solicitors submitted to the National Office of Overseas Skills Recognition (“NOOSR”) material in support of a request for assessment of the applicant’s qualifications. The documents included Teachers Certificate No 7081 (Provisional) dated 6 December 1972. It purported to be signed by the Secretary for Education, Youth and Sport and was headed “Education Department Government of Fiji”. The certificate stated: “This is to certify that Chandra Segar Reddy has been registered as a Teacher with effect from 1st January, 1973 under the provisions of the Education Ordinance. The holder may teach in primary schools only.” They also forwarded copies of an offer of permanent appointment as a school teacher, which was evidently accepted by the applicant on 8 December 1972, and of a reference dated 31 July 1987 from the head teacher at a primary school in Lautoka, at which the applicant had apparently taught since the previous year.
The crucial document for the purposes of the present application before the Court is NOOSR’s reply of 28 February 1995. It stated:
“I refer to your application for an assessment of your qualifications from Fiji as part of the application procedure for permanent residence in Australia.
The documents submitted describe a Teacher’s Certificate, issued in 1972, by the Education Department, Fiji. NOOSR does not regard such documentation described above as lending itself to comparison with Australian educational awards, and is unable to provide an assessment.
As NOOSR is unable to provide an assessment, the one hundred dollar ($100.00) assessment fee will be refunded to you. Refund of the fee will be made separately.”
The respondent’s delegate relied on that advice to find that the applicant did not meet the requirements of subpar (b)(i) of clause 816.721(2). Accordingly, on 11 April 1995 he refused the application. The Migration Internal Review Office subsequently affirmed that decision, and on 21 June 1995 an application for review was made to the Tribunal.
Following the receipt of submissions dated 7 July 1995 from the applicant’s solicitors, the review then appears to have stalled until a preliminary meeting was held between those solicitors and Tribunal staff on 11 March 1997. Notes of that meeting are in evidence. They show that the applicant sought an opportunity to obtain documentation about his teaching qualifications and experience “for submission to NOOSR”, and that any further material would be given to the Tribunal within six weeks. On 9 April 1997 the applicant’s solicitors wrote to the Tribunal seeking a delay in making a decision until they obtained documentation requested from the Education Department in Fiji. They were informed that the Tribunal would extend the time for submissions until 11 May 1997. On 12 May 1997 the Tribunal, having received no further submissions, notified the applicant of its intention to hold a hearing on 29 May 1997. That hearing was cancelled when the applicant informed the Tribunal in writing on 16 May 1997 that he did not think it necessary for the Tribunal to hold a hearing. However, by letter dated 23 May 1997 his solicitors wrote to the Tribunal asking that a decision be delayed until they obtained documentation requested from the Permanent Secretary of the Ministry of Education in Fiji. In response, on 27 May 1997, the Tribunal allowed four weeks to submit any further material. Finally, on 3 July 1997 the Tribunal wrote to the applicant’s solicitors informing them that a decision would be made in seven days. The applicant submitted no further material, and on 29 July 1997 the Tribunal made its decision affirming the decision under review.
The amended application to this Court relies essentially on two matters to challenge the Tribunal’s decision. The first allegation is pithily expressed in the application as follows: “The duty imposed on NOOSR to assess the applicant’s qualifications remains to be discharged.” The second criticism is that the Tribunal failed to interpret broadly the concept of “trade” in subpar (b)(ii) of clause 816.721(2). Specifically, it was alleged that the Tribunal had not addressed “the evidence” that the applicant had been a primary teacher for fourteen years and that he therefore had “work experience” that could meet Australian standards for the relevant “trade”. Presumably, this “evidence” is the material forwarded to NOOSR and its reply, combined with the assertions made in later submissions on behalf of the applicant by his solicitors.
These allegations are advanced with the framework of the grounds specified in pars (a), (e) and (g) of s 476(1) of the Migration Act 1958 (“the Act”). But I think that consideration may be safely confined to error of law under par (e). Counsel for the applicant did not identify for the purposes of par (a) any procedure that was not observed by the Tribunal, nor was there any real question of making out the limited “no evidence” ground under par (g). Approaching the case in this way, in order to succeed, the applicant must establish that an error of law was involved in the Tribunal’s finding that the applicant’s occupational and academic qualifications did not meet the requirements of par (b) of clause 816.721(2).
Those requirements were explained by Sackville J in Rahim v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432. His Honour said (at 437-438):
“Regulation 816.721(2) covers applicants who have educational, trade or technical qualifications that either have been obtained (or are being obtained) in Australia, or have been obtained overseas. An applicant with overseas qualifications satisfies reg 816.721(2) only if the qualifications are assessed as comparable to or meeting Australian educational or training standards. (Overseas technical or general academic qualifications are to be assessed by NOOSR, while overseas trade qualifications are to be assessed by the bodies nominated in para (b)(ii).)”
Counsel for the applicant submits that subpar (b)(i) requires the Tribunal to have before it an assessment by NOOSR stating, one way or the other, whether the qualification in question is comparable to an Australian testamur of one of the specified kinds. He contends that the letter dated 28 February 1995 from NOOSR is not such an assessment on account of its equivocal terms. Therefore, it is said, the duty imposed on NOOSR remains to be discharged and the application must be referred back to the Tribunal for the purpose of obtaining a proper assessment from NOOSR.
I reject that submission. Counsel for the respondent submits, correctly in my view, that s 65 of the Act plainly requires that an application be refused if the Tribunal is not satisfied that the relevant criteria have been met. By virtue of the Migration Reform (Transitional Provisions) Regulations the application in the present case was to be decided according to the criteria in Pt 816. The Tribunal cannot be satisfied that those criteria have been met unless there is an appropriate assessment by NOOSR. Speaking in Rahim of the assessment referred to in subpar (b)(ii), Sackville J (at 439) leaves no doubt that the Tribunal’s task is to ascertain, as an objective fact, whether such an assessment exists. The obligation rests upon the applicant to pursue any application for assessment by NOOSR of his qualifications: reg 5.40 of the Migration Regulations. In the absence of a favourable assessment, the Tribunal could not be satisfied that the applicant had met the requirements of subpar (b)(i). In this respect, therefore, its decision did not involve any error of law.
The applicant also submits that the Tribunal has misconstrued the concept of “trade” in subpar (b)(ii). There are a number of difficulties with this submission. It is true that, at the stage of the internal review, the applicant’s solicitors made a rather confusing submission that their client’s qualifications could be assessed as a “trade certificate” in the light of the decision in Kumar v Immigration Review Tribunal (1992) 36 FCR 544. The internal review officer took the view that the occupation of primary school teacher was not a “trade”. Nonetheless, the solicitors made the same submission once more to the Tribunal in their letter of 7 July 1995. However, nothing was apparently said on this topic at the preliminary meeting with the Tribunal on 11 March 1997 or in subsequent correspondence, and this specific issue was not accordingly addressed in the Tribunal’s decision.
The phrase “trade certificate” is, of course, not employed in subpar (b)(ii). The words “that trade” derive their meaning from the expression “trade qualification”, and any assessment of work experience must relate to such a trade. In Rahim Sackville J collects (at 439-443) the authorities on the meaning of the word “trade” in the migration legislation. I am prepared to accept for the purposes of this case the broad approach to the interpretation of that word favoured by his Honour. However, it is a big leap from such a construction to suggest that the occupation of a primary school teacher can fall within the concept of “trade”. Indeed, for my own part, I would not even regard the work experience of a teacher in a technical institution who actually had a trade qualification as necessarily involving, by itself , the pursuit of that trade.
Be that as it may, the insuperable obstacle facing the applicant in respect of subpar (b)(ii) remains s 65 of the Act. There simply was no evidence before the Tribunal which could have led it to find that the applicant’s work experience had been favourably assessed by the Department of Industrial Relations. (There was never a question raised by the applicant at any stage that the Department was unable to make such an assessment.) Like the assessment by NOOSR, the assessment by that Department of his occupational experience remains a matter for the applicant to arrange. The assessment forms an integral part of the criteria in subclause (2). The impossibility of satisfying those criteria in the absence of such an assessment meant that the application was bound to be refused.
The applicant has failed to demonstrate any error of law in either of the two respects upon which the decision has been challenged. The application will be dismissed with costs.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam
Associate:
Dated: 6 March 1998
Counsel for the applicant: T V Hurley Solicitors for the applicant: Barlow & Co Counsel for the respondent: M E Kennedy Solicitor for the respondent: Australian Government Solicitor Date of hearing: 6 March 1998 Date of judgment: 6 March 1998
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