See, R. v Minister for Immigration & Ethnic Affairs

[1994] FCA 786

ROLAND SEE v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG984 of 1993
FED No. 786/94
Number of pages - 8
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
MOORE J

CATCHWORDS

Immigration - application for concessional family visa - points for qualification (suitability of employment) - whether paragraph of regulation identifies one or two qualifications

Migration Regulations (1989), reg146(g)

Hunter Resources Ltd v Melville (1988) 164 CLR 234

HEARING

SYDNEY, 12 October 1994
#DATE 28:10:1994

Counsel for the Applicant: Mr C.R. de Robillard

Solicitor for the Applicant: Parish Patience

Counsel for the Respondent: Mr N. Williams

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The appeal is dismissed.

2. The costs of the appeal to be reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

MOORE J This is an appeal, so styled, under s138 of the Migration Act 1958 ("the Act") against a decision of the Immigration Review Tribunal ("the Tribunal") affirming a decision not to grant Mr Choon Ling See ("the principal") a concessional family visa. This appeal is brought by Mr Roland See who is the principal's brother and sponsor.

The Background
2. The principal is a citizen and resident of Singapore and was born in 1951. He applied for the visa in Singapore in March 1990. In the application he described his occupation as that of finance clerk and stated that he had undertaken seven years education at primary school and four years at secondary school. He had been employed by Philips Singapore Pty Ltd as an accounts clerk from March 1972 to December 1989 and as a finance clerk from December 1989 to June 1990. His application was refused and that refusal was affirmed by the Tribunal. I will deal shortly with the basis, for relevant purposes, of the Tribunal's decision.

Legislation
3. An application for a concessional family visa is assessed by reference to the Act and the regulations made under the Act. Those regulations were relevantly made in 1989 (Statutory Rules 365 of 1989) but have since been repealed by the Migration (1993) Regulations (Statutory Rules 367 of 1992). However the 1993 regulations preserve the operation of the earlier regulations in relation to any application for an entry permit or visa made prior to the 1993 regulations coming into force (viz. on 1 February 1993) both when considering the application and any review of it (reg8.2). The parties agreed that the relevant regulations were the 1989 regulations as published in a consolidated form on 3 April 1990.

1. An applicant for a concessional family visa must satisfy the criteria prescribed in item 3 in Pt3 of Sch 2 of the Regulations. They include a requirement that the applicant has received the necessary score when assessed under subdivision B of Div2 of Pt2 of the Act. Points are given for each qualification prescribed by the regulations. In this matter the contentious qualification is that relating to educational qualifications which is dealt with by regulation 146. It provides:
   

"Qualification - suitability for employment

146. For the purposes of sections 30 and 41 of the Act, and Schedule 5, the qualification specified in each of the following paragraphs is to be taken to be a qualification in relation to the suitability of a person for employment:

(a) the applicant:

(i) applies to enter Australia on the basis of an occupation:

(A) that is the applicant's usual occupation; and

(B) that is included in the priority list of occupations; and

(C) for which, in Australia, a degree or trade certificate is required; and

(D) in respect of which the applicant has a degree or trade certificate that meets Australian standards for the occupation, or experience assessed by the relevant Australian authorities to be equivalent to such a degree or trade certificate; and

(ii) has qualifications or experience (or both) that meet any Australian licensing and registration requirements for that occupation; and

(iii) has worked in that occupation, or a closely related occupation, for not less than 3 years immediately before the date of the application (unless some other period is specified by CTC or NOOSR);

(b) the applicant possesses all the attributes in respect of the qualification under paragraph (a) except that he or she does not apply to enter Australia on the basis of an occupation that is included in the priority list of occupations;

(c) the applicant:

(i) possesses the attributes referred to in subparagraphs (a)(i) and (ii) except that he or she does not apply to enter Australia on the basis of an occupation that is included in the priority list of occupations; and

(ii) has worked in that occupation, or a closely related occupation:

(A) if a period of employment is specified by CTC or NOOSR for the purposes of this provision - at least for a shorter period immediately before the day of the application; or

(B) if no such period is specified - for a period of less than 3 years immediately before the day of the application;

(d) the applicant:

(i) applies to enter Australia on the basis of an occupation:

(A) which is the applicant's usual occupation; and

(B) for which, in Australia, a diploma or an associate diploma is required; and

(C) in respect of which the applicant has a diploma or an associate diploma that meets Australian standards, or experience assessed by the relevant Australian authorities to be equivalent to such a diploma or associate diploma; and

(ii) possesses, in relation to the relevant occupation, the attributes referred to in subparagraphs (a)(ii) and (iii);

(e) the applicant:

(i) possesses the attributes referred to in subparagraphs (a)(ii) an (d)(i); and

(ii) has worked in that occupation, or in a closely related occupation:

(A) if a period is specified by CTC or NOOSR for the purposes of this provision - at least for a shorter period immediately before the day of the application; or

(B) if no such period is specified - for a period of less than 3 years immediately before the day of the application;

(f) the applicant:

(i) applies to enter Australia on the basis of an occupation which is the applicant's usual occupation, being an occupation:

(A) for which, in Australia, a degree, diploma or trade certificate is required; and

(B) in respect of which the applicant possesses a degree, diploma or trade certificate which qualifies the applicant to be employed in such an occupation in his or her usual country of residence but not in Australia; and

(C) in respect of which the degree, diploma or trade certificate possessed by the applicant could be upgraded to meet Australian standards by a supervised course lasting not more than 6 months;

(ii) possesses, in relation to such an occupation, the attributes referred to in subparagraph

(a)(iii);

(g) the applicant:

(i) applies to enter Australia:

(A) on the basis of an occupation which is the applicant's usual occupation; and

(B) as a person who has educational qualifications equivalent to completion of secondary education in Australia and in addition qualifications at a higher level;

(ii) had an occupation:

(A) which is the applicant's usual occupation; and

(B) for which, in Australia, a degree, trade certificate, diploma or associate diploma is required; and

(C) in respect of which the applicant possesses a degree, diploma or trade certificate which qualifies the applicant to be employed in such an occupation in his or her usual country of residence but not in Australia; and

(D) in respect of which the applicant's qualifications could be upgraded to meet Australian standards by a supervised course lasting not more than 6 months; and

(E) has worked in that occupation, or in a closely related occupation:

(a) if a period is specified by CTC or NOOSR for the purposes of this provision - at least for a shorter period immediately before the day of the application; or

(b) if no such period is specified - for a period of less than 3 years immediately before the day of the application;

(h) the applicant has an occupation which is the applicant's usual occupation and has educational qualifications equivalent to 6 years of secondary education in Australia;

(i) the applicant has an occupation which is the applicant's usual occupation and had educational qualifications equivalent to 4 years of secondary education in Australia."

The Tribunal's decision
5. The Tribunal dealt with the question of the educational qualifications of the principal in the following passage from its decision:

"The Applicant's advisers submitted that Mr See should be found to be a credit officer or credit and loans analyst as defined in ASCO and, further, that this should entitle him to 30 points pursuant to r.146(g)(i) as in force at the date of application. That provision referred to applicants seeking to enter Australia:

'(A) on the basis of an occupation which is the applicant's usual occupation; and

(B) as a person who has educational qualifications equivalent to completion of secondary education in Australia and in addition qualifications at a higher level.' Secondary education in Australia is generally accepted to extend for 6 years. Singapore has a 12-13 year schooling system, consisting of primary, secondary and higher secondary education: see 'Country Education Profiles. Singapore. A Comparative Study' published by the National Office of Overseas Skills Recognition in the Department of Employment, Education and Training (1991). Mr See has only 4 years of secondary education in Singapore which, in the absence of any evidence to the contrary, I take to be equivalent to four years of secondary education in Australia. At the time of application his only other formal study had been a 56 hour course in Information Technology run by 'Dot Computer Services'. I cannot find that he has educational qualifications which are the equivalent of completion of secondary education in Australia. Therefore the first limb of r.146(g)(i)(B) is not satisfied."

1. The Tribunal went on to consider whether the applicant satisfied the provisions of reg146(c)(i) into which is imported the requirement of reg146(a)(i)(C). The Tribunal concluded that the principal did not satisfy this requirement.

The Issues
7. The notice of appeal was amended at the hearing and identified the following alleged errors of law:

(i) The Tribunal erred in interpreting the term "completion of secondary education" in reg146(g)(i) to mean six years of secondary education instead of four.

(ii) The Tribunal failed to comply with the provisions of s135(1)(d) of the Migration Act.

(iii) The Tribunal failed to afford the applicant procedural fairness.

The Construction of Regulation 146(g)
8. It appears that both the solicitors representing the applicant and the Tribunal proceeded on the basis that subparagraphs (i) and (ii) of reg146(g) identified separate qualifications and should not be read cumulatively. In my opinion, this construction of reg146(g) is not correct and could have a material bearing on how the words "completion of secondary education" in reg146(g)(i) should be construed. However as will shortly be apparent, the resolution of whether subparagraphs (i) and (ii) are cumulative determines the appeal.

1. Regulation 146 identifies in separate paragraphs a number of qualifications which attract points and does so on the basis that the qualification in the first paragraph, (a), attracts the largest number and the qualification in the last paragraph, (i), the least. That regulation has to be read in conjunction with reg145 and Sch4 which forms part of the regulations. Regulation 145 attributes to each qualification listed in Sch4, the points identified in the schedule. Schedule 4 treats each of the paragraphs in reg146 as identifying one qualification only which is apparent from the heading of the schedule and the way in which it is set out.

2. Similarly the opening words of reg146 are in terms that indicate comparatively clearly that each paragraph relates to one qualification only. Those prefatory words include "...the qualification specified in each of the following paragraphs is to be...". In that expression "the qualification" is in the singular and is a reference to what is to be found in each paragraph. I see no scope for the application of s23 of the Acts Interpretation Act 1901 (Cth) so as to treat the words "the qualification" as including the plural having regard to the context within which they appear.

3. A number of the paragraphs in reg146 are divided into subparagraphs: see reg146(a), (c), (d), (e), (f) and (g). In relation to pars (a), (c), (d) and (e) it is clear that the subparagraphs in each are to be read cumulatively as they are linked by the word "and". This is not so of pars(f) and (g). However it is clear from the terms of par(f) that subparagraph (ii) cannot be treated as a separate qualification and must be read in association with subparagraph (i). While the same is not obviously so of par(g) that, in my opinion, is what is intended.

4. The applicant submits that subparagraphs (i) and (ii) of reg146(f) identify separate qualifications. The applicant points to the repetition in reg146(g)(i)(A) and (ii)(A) of the reference to the "applicant's usual occupation". However, while reg 146(g)(i)(A) and (ii)(A) both refer to the occupation of the applicant, they do so for quite different purposes. The purpose of the reference to the occupation of the applicant in reg146(g)(i)(A) is to identify one of the elements which establishes the character of the application. The repetition of the reference to "the applicant's usual occupation" in reg146(g)(ii)(A) is the first step in listing a number of characteristics of that occupation which is found in reg146(g)(ii)(B) to (E) and which must be satisfied before the entire qualification is satisfied. Regulation 146(f) follows the same general format. The purpose of reg146(g) is to establish whether the application is made on the basis that the applicant has a usual occupation and has post secondary qualifications. It then goes on to identify the required link between the occupation and the qualifications: see reg146(g)(ii)(A) and (B), the nature of which are then set out: see reg146(g)(ii)(C). The remainder of the paragraph deals with related matters: see reg146(g)(ii)(D) and (E).

5. The applicant refers to reg146(f) to show that there is no repetition of the words appearing in reg146(f)(i), "the applicant's usual occupation", in reg146(f)(ii) which says "such an occupation" and submits a similar formulation would have been used if reg146(g)(i) and (ii) were to be read cumulatively. However the fact that this formulation is not used in reg146(g)(ii) is, in my opinion, of no real moment as there is no consistency in the way all the paragraphs are drafted. If they had been, one could have expected the format used in pars(a) and (d) to have been used in par(f) but it is not. In reg146(d)(i) the opening words identify generally the basis upon which the application is made, namely on the basis of an occupation. Characteristics of that occupation are then listed and the first, in reg146(d)(i)(A), is that it is the applicant's usual occupation. Yet in reg146(f) that characteristic of the occupation also forms part of the qualification but appears as an adjectival clause in the opening words of reg146(f)(i) and not as a separate clause even though two of the following characteristics in clauses (A) and (B) of reg146(f)(i) are in substantially the same terms as those in reg146(d)(i).

6. Regulation 146 is made for the purposes of ss30 and 41 of the Act. So much is apparent from the opening words of the regulation. The applicant submits that s41 is directed to persons who have already entered Australia and that this indicates that reg146(g)(i) should be treated as applying to persons who are seeking to enter Australia and reg146(g)(ii) as applying to persons who have already entered Australia. For my part I fail to see how this supports the construction advanced by the applicant. Some paragraphs in reg146 are clearly directed only to persons who have not yet entered Australia, such as (a), (d) and (f) while others are not so restricted. I see no reason why reg146(g) should not be treated as part of the same class as paragraphs (a), (d) and (f).

7. Lastly the applicant refers to a manual published by the Minister, the "Procedures Advice Manual", to show that the construction of reg146(g) it advances has been adopted in the manual when it sets out how the regulations should be applied. In my opinion this material is not of the class comprehended by s15AB of the Interpretation Act (Cth) as it does not "relate to the legislative history or antecedents of" the provision and "amount to nothing more than an expression of opinion of what the relevant legislation means": see Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241 per Mason CJ and Gaudron J in which their Honours were considering s14 of the Interpretation Act 1984 (W.A.) which is in essentially the same terms as s15AB of the Interpretation Act (Cth). In any event, even if I can pay regard to the Manual, the views of the authors of the manual do not carry the applicant's submissions very far in displacing what appears to me to be the reasonable clear meaning of reg146(g).

1. If, as I have concluded, subparagraphs (i) and (ii) of reg146(g) are cumulative in their effect then the principal does not satisfy one of the elements of that qualification, namely the element in reg146(g)(ii)(B) which is that the principal "has an occupation for which, in Australia, a degree, trade certificate, diploma or associate diploma is required". Though the failure of the principal to satisfy a similar, though not identical, requirement was determined by the Tribunal in the context of considering reg146(c), it appeared to be accepted by the applicant that the principal would not satisfy the requirement for the purposes of reg146(g). The applicant also appeared to accept that even if the Tribunal had erred in the way alleged in the notice of appeal, those errors would not be material to its decision if s146(g)(i) and (ii) are cumulative. They would not be material because the principal would not satisfy the requirements of either reg146(g) or reg146(c) which was the relevant determination of the Tribunal founding the decision it made to affirm the delegate's decision to refuse the visa. Accordingly the appeal must fail.

2. I dismiss the appeal. The question of costs was not the subject of submissions and, if necessary, I will relist the matter for the purposes of determining that issue. However I am presently inclined to the view that each party should bear their own costs.