Singh, R.K. v Immigration Review Tribunal
[1993] FCA 681
•10 SEPTEMBER 1993
RAJBINDER KAUR SINGH and SALINDERA and CO PTY LTD v. IMMIGRATION REVIEW
TRIBUNAL and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG866 of 1992
FED No. 681
Number of pages - 6
Immigration
(1993) 117 ALR 687
(1993) 44 FCR 495
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WILCOX J
CATCHWORDS
Immigration - Application for extended eligibility temporary entry permit - Criterion that applicant be nominated by an employer for a specified position that is "a position in respect of a highly skilled occupation" - Whether or not it is inherent in this requirement that the applicant carry out duties requiring the possession of the relevant high skill during a major portion of the working day.
Migration Act 1958
Migration Regulations, regs.51 and 128.
HEARING
SYDNEY, 10 September 1993
#DATE 10:9:1993
Counsel for the Applicant: J R Young
Solicitors for the Applicant: Newman and Associates
Counsel for the Respondent: E Wilkins
Solicitors for the Respondent: Australian Government
Solicitor
ORDER
The Court orders that:
1. The decision of the Immigration Review Tribunal made on 29 October 1992 be set aside.
2. The matter be remitted to the Tribunal to be decided again, either with or without the taking of further evidence.
3. On the remittal, the matter be determined by a differently constituted Tribunal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
WILCOX J This is an appeal under s.138 of the Migration Act 1958 against a decision of the Immigration Review Tribunal constituted by Mr Steve Karas, Senior Member. Mr Karas affirmed a decision made by an officer of the Department of Immigration, Local Government and Ethnic Affairs refusing to grant the first applicant, Rajbinder Kaur Singh, an extended eligibility temporary entry permit in the economic category. The second applicant is Ms Singh's employer, Salindera and Co Pty Ltd. The respondents to the appeal are the Tribunal and the Minister for Immigration and Ethnic Affairs. The Minister appeared by counsel to support the Tribunal's decision.
In his reasons for decision, Mr Karas referred to reg.128, which sets out the criteria applicable to an extended eligibility temporary entry permit. Paragraph (a) of reg.128(1) requires that the applicant not be, and has not been during the previous 10 years, a prescribed non citizen; not be the holder of a visitor visa or entry permit or an illegal entrant; and has held one of three different types of temporary permits.
Mr Karas found that the first applicant satisfied these requirements. However, he held that she failed to satisfy the prescribed criteria in relation to the class of visa which she sought: see reg.128(1)(a)(iv)(A). The relevant class of visa was employer nomination visa. The requirements for such a visa are set out in reg.51. At the time of the application the regulation read as follows:
"51.(1) The additional criteria in relation to an employer nomination visa are the following criteria:
(a) the applicant is nominated, in accordance with the approved form, by an employer operating in Australia, for a specified position, or a position in a group of specified positions, sought to be filled by that employer, being:
(i) a position that is to be filled on a permanent, full-time basis; and
(ii) a position in respect of a highly skilled occupation;
(b) the qualifications and experience of the applicant are suitable for the position;
(c) the employer satisfies the Minister that the employer has an acceptable record in the training of employees and is committed to the further training of local employees;
(d) the employer satisfies the Minister that it has not been possible at the time of the nomination to find a suitable applicant for the position in Australia;
(e) unless exceptional circumstances apply, the applicant has not turned 55 at the time of application.
(1A) The criterion specified in paragraph (1)(d) does not apply if the Minister is satisfied that there is no need to find a suitable applicant within Australia for the position referred to in that paragraph.
(2) In this regulation:
'highly skilled occupation' means an occupation requiring
(a) formal training, or equivalent experience, relating to that occupation, for a period of not less than 3 years; and
(b) an appropriate record of employment in that occupation."
The critical question for determination by the Tribunal was whether the first applicant was nominated by her employer for "a position in respect of a highly skilled occupation". Regulation 51(2) defined the term "highly skilled occupation" as being one requiring formal training, or equivalent experience, relating to that occupation for a period of not less than three years and an appropriate record of employment in that occupation.
The only evidence given to the Tribunal was that of the first applicant and Salinder Singh Salindera, the principal of Salindera and Co Pty Limited. It appears that Salindera and Co Pty Limited (or, perhaps, Mr Salindera personally) some years ago commenced to develop a tourist resort at Woolgoolga, near Coffs Harbour on the north coast of New South Wales. The facility was intended to evoke an Indian atmosphere. The building followed an Indian architectural style and contained a museum of Indian artefacts. In anticipation of the opening of the resort, Mr Salindera travelled to India in 1988. He wished to recruit an Indian dancer to perform at the resort. Mr Salindera interviewed a number of people trained in classical Indian dancing and selected the first applicant. He told the Tribunal that he chose the first applicant because she was a talented dancer and had a good command of English. The Tribunal accepted evidence that the first applicant studied Indian dancing over a four-year period concluding in June 1988, apparently at an institute in Bombay. The first applicant held a certificate as to her training. Mr Karas described the type of dancing which the first applicant studied as "the specialised Kahtak classical dancing of Northern India". He said that she regarded herself as a professional dancer. He referred to evidence, I think from Mr Salindera, "that the Kahtak dancing of North India is similar to western classical ballet dancing and is highly skilled".
The first applicant came to Australia about the beginning of 1989. There was apparently some delay in the opening of the resort caused by weather and building problems. The resort eventually opened in September 1989. Since that time, the first applicant has regularly performed classical Indian dancing for the benefit of people visiting the resort. These people are mostly tourists, but Ms Singh gave evidence to the Tribunal of performing for school children who came to the resort to study Indian culture. The evidence is that the first applicant dances seven days a week during busy periods and five days a week at other times. The dance routine is apparently fairly short, being of some 10 or 15 minutes in duration, and the number of performances depends upon the number of people visiting the resort. Apparently, in busy periods it is common for there to be three performances a day; perhaps fewer at other times.
The first applicant also assists in the management of the resort. Although she is very young (she was born only in 1969) she appears to be a capable person. The first applicant has managed the resort during overseas trips made by Mr Salindera.
The basis upon which the first applicant sought a visa was that classical Indian dancing is a highly skilled art in which she had received four years training, and in which she has worked regularly in Australia over the last few years. She argued, therefore, that she came within the definition in reg.51(2); that the position she occupies, of which dancing is an integral part, is "a position in respect of a highly skilled occupation". As I have said, Mr Karas found against the claim.
As counsel for the Minister has pointed out, the right of appeal to this Court is on a question of law only. The Court is not entitled to substitute its own view of the facts. It is necessary to consider Mr Karas's reasons in order to determine whether or not he fell into an error of law.
Mr Karas set out in his reasons for decision a summary of the evidence pertaining to the first applicant. He also referred to advertising carried out by Mr Salindera, in Australia, in order to determine whether any Indian dancers were available in this country. That advertising proved unsuccessful. Mr Karas stated:
"The advertisements referred to above were for 'competent Indian classical dancers ... for live entertainment shows'. Yet in fact the Indian dancing was only a small part of the duties performed by the applicant. In certain circumstances, the occupation of classicial Indian dancer could be regarded as a highly skilled position. However in the circumstances of this case, as well as the exact nature of the activities performed by the applicant, the Tribunal is not prepared to find that the position and her duties constitute that of a highly skilled position. The duties performed by the applicant which involve assisting in many aspects of running the centre, indicates that she in fact is only engaged in dancing for a relatively minor part of her overall work day. The actual position carried out by the applicant does not appear to require the level of skill of a classical Indian dancer. Indeed, the position and level of skill appears to reflect that of a less than professional dancer who is used for tourist purposes at the Woolgoolga complex.
The Tribunal on the evidence was not entirely satisfied that the position as a dancer met the requirements of paragraph 51(1)(a) of the Regulations. Although elements of the job (dancing) required some skills, it is questionable if the 'position' is a highly skilled one. Indeed, the job position in this case was clothed as being one for a highly specialised and apparently 'uncommon' occupation in Australia. The reality of the position from the evidence appears quite different. The Tribunal therefore concludes from the facts and circumstances of this case that the requirements of regulation 51 of the Regulations are not satisfied."
With respect to Mr Karas, I find the reasoning in this passage difficult to follow. Mr Karas seems to have accepted that Indian classical dancing is a highly skilled art and that a person who is employed as an Indian classical dancer is employed in a highly skilled occupation. He stated that: "In certain circumstances the occupation of classical Indian dancer could be regarded as a highly skilled position". He then contrasted those circumstances with the circumstances of this case, without specifying the relevant point of distinction. He said: "the Tribunal is not prepared to find that the position and her duties constitute that of a highly skilled position".
Mr Karas referred to the facts that the first applicant carried out duties other than dancing and that she was engaged in dancing for only a relatively small proportion of her work day. That statement accorded with the evidence. He then went on:
"The actual position carried out by the applicant does not appear to require the level of skill of a classical Indian dancer. Indeed the position and level of skill appears to reflect that of a less than professional dancer who is used for tourist purposes at the Woolgoolga complex."
I do not understand the foundation for these two sentences. The only evidence Mr Karas had as to the first applicant's dancing was that provided by herself and her employer. As Mr Karas noted, Ms Singh regarded herself as a professional dancer, having successfully completed a four-year course in the art. Her employer continued to employ her as a dancer and spoke well of her in his evidence to the Tribunal. There was no evidence entitling Mr Karas to say, in effect, that she is not a good dancer, or does not dance at the level of skill required by a classical Indian dancer. I do not understand the significance of Mr Karas' reference to her work being "used for tourist purposes". There is no inherent conflict between the exercise of a classical dancing skill and the provision of entertainment for tourists.
The only way in which I can make sense of this passage is to read it as a statement that Mr Karas accepted that Indian classical dancing is a highly skilled occupation, but that the first applicant's position was not a "highly skilled position" because she only danced for a small portion of the day. This interpretation is reinforced by the next paragraph in the quoted passage. Mr Karas there said he was "not entirely satisfied" that the position met the requirements of paragraph 51(1)(a) of the regulations. (A question arises as to the standard of proof applied by Mr Karas. His choice of words was criticised by counsel for the applicants, who suggested that he was applying the criminal standard of proof. Counsel's criticism is supported by the following sentence, in which Mr Karas says "it is questionable" if the position is a highly skilled one.)
Mr Karas concluded with a comment that the position in this case "was clothed as being one for a highly specialised and apparently 'uncommon' occupation in Australia. The reality of the position from the evidence appears quite different". This last comment conveys the suggestion of a degree of deception about the application; that Miss Singh held herself out as a dancer when, in fact, she was working as something else. But I am not willing to attribute that meaning to it. Such a suggestion is without any basis in the evidence. No allegation of deception was put to Ms Singh or Mr Salindera during the course of their evidence.
Reading the reasons as a whole, the only conclusion I can reach is that Mr Karas took the view that it was fatal to her claim to come within reg.51(1)(a) that Ms Singh was only exercising her high skill for a minor portion of the day.
If this was the approach taken by Mr Karas, it seems to me that he fell into an error of law. The question that Mr Karas had to ask himself was whether the position in which the applicant was employed was a "position in respect of a highly skilled occupation"; that is to say, was it a position requiring the engagement of a person having appropriate formal training and employment experience? If that question is answered in the affirmative, reg.51(1)(a)(ii) is satisfied. It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day.
Nothing I have said is meant to suggest that a person in the position of Mr Karas is bound to accept without inquiry a claim regarding the nature of the work that a visa applicant carries out; or to do other than consider carefully the question whether or not a particular position requires possession of a particular skill. The category "a position in respect of a highly skilled occupation" should not be allowed to be used as a subterfuge by people who carry out a different form of work. But in this case there was no challenge to the the evidence given by the first applicant and Mr Salindera. The evidence accepted by Mr Karas showed that Mr Salindera regarded it as highly desirable, at least, to have a classical dancer who could perform at the resort; that he had gone to India for the purpose of recruiting a suitable person and that he had recruited the first applicant in what might be called "arm's length" negotiations. This is not a case of an employer spuriously presenting somebody, whom he wishes to retain in Australia for another reason, as having a particular skill.
Provided that it is found that the position is one where the necessary skill is required, it does not matter that a particular employee may have proved competent to do other work not requiring the specified high skill and may spend a good deal of his/her time on that work. The regulation is intended to look at the matter from the employer's point of view. It envisages an employer who has a vacancy for a position requiring the possession of a particular skill. The questions then are whether or not the particular applicant was employed in that position because of his/her high skill; and, if so, whether he/she uses the skill in that position. If the answers to these questions are in the affirmative, it does not matter that the skill is only used during part of the working day.
I find it unnecessary to deal with counsel's argument about standard of proof. Mr Karas' language was more consistent with the application of the criminal standard of proof than the civil standard, but I think that this may simply have reflected the underlying error which I have already discussed.
The approach taken by Mr Karas involved a fundamental error of law. Accordingly, his decision should be set aside and the matter remitted to the Tribunal to be decided again, either with or without the taking of further evidence. On the remittal, the matter should be determined by a differently constituted Tribunal.
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