Tanchiatco, Zenaida v Minister for Immigration& Multicultural Affairs

[1997] FCA 806

FEDERAL COURT OF AUSTRALIA

MIGRATION - Migration Act 1958 (Cth) - application for review of decision of Immigration Review Tribunal - Migration (1993) Regulations, cl 816.721(2)(b)(ii) - definition of “that trade” - whether applicant was engaged in a “trade” - whether the applicant had “work experience” in a trade.

Migration Act 1958 (Cth), s 476(2)(c)
Migration (1993) Regulations, cl 816.721(2)(b)(ii) of Schedule 2

Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313, considered
Pillay v State for Immigration and Multicultural Affairs (Tamberlin J, 29 July 1997, unreported), cited
He v Minister for Immigration and Multicultural Affairs (Davies J, 25 Feb 1997, unreported), cited

ZENAIDA TANCHIATCO v
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 836 of 1996

BRANSON J
SYDNEY
20 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 836 of 1996
)
GENERAL DIVISION	)

BETWEEN:	ZENAIDA TANCHIATCO Applicant
AND:	MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
PLACE:	SYDNEY
DATED:	20 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision of the Immigration Review Tribunal be affirmed.

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	)   NG 836 of 1996
)
GENERAL DIVISION	)

BETWEEN:	ZENAIDA TANCHIATCO Applicant
AND:	MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
PLACE:	SYDNEY
DATED:	20 AUGUST 1997

REASONS FOR JUDGMENT

This is an application under s 476(2)(c) of the Migration Act 1958 (Cth) (“the Act”) for review by the Court of a judicially reviewable decision of the Immigration Review Tribunal (“the Tribunal”) on the grounds:

(a)that the decision involved an incorrect interpretation of the applicable law; and

(b)that the decision involved an incorrect application of the applicable law to the facts as found by the Tribunal.

Central to the application for review is the proper interpretation of the term “trade” in cl 816.721(2)(b)(ii) of Schedule 2 of the Migration (1993) Regulations (“the Regulations”).

Part 816 of Schedule 2 of the Regulations provides for a class 816 Special (Permanent) Entry Permit. Clause 816.721 specifies criteria to be satisfied by an applicant for a class 816 entry permit at the time of application. Relevantly, the applicant was required to satisfy the requirements of either subcl (2) or (3) of cl 816.721. It is accepted that the applicant did not, and does not, satisfy the requirements of subcl (3). Consideration need only be given to subcl (2). It is necessary to set it out in full.

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

(a)the applicant in Australia had obtained, or had completed the requirements of, a post-secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; or

(b)       the applicant:

(i)held an overseas technical qualification or general academic qualification that is assessed by NOOSR as being comparable to an Australian associated 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)       the applicant:

(i)has been enrolled during the 1993 academic year in an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; and

(ii)has met the academic progress requirements of the institution at which he or she was enrolled.” (emphasis added)

It is contended on behalf of the applicant that she met the requirements of subcl (2) of          cl 816.721 in that, although she did not, and does not, hold an overseas trade qualification, she had, at the relevant time, work experience appropriate to be assessed as meeting Australian education or training standards for a trade.  The applicant has not nominated the trade for which she asserts that she had work experience appropriate to be assessed as meeting Australian education or training standards for that trade.

The findings of the Tribunal as to the relevant work experience of the applicant are not challenged.  That work experience was found by the Tribunal principally to be experience as a process worker or machine operator of a squash ball assembly machine (“SAM”).  The Tribunal found that the applicant had experience operating the SAM to make squash balls and, from time to time, other types of sporting balls.  In addition, the Tribunal found that the applicant supervised the operation of the SAM by others, and performed tasks which included routine maintenance of the SAM, quality control, operating a machine which prints a logo on sporting balls, the hand assembly of certain types of sporting balls and organising and co-ordinating monthly stocktakes.

The Tribunal proceeded on the basis that the expression “that trade” appearing in cl 816.721(2)(b)(ii) referred to the trade (ie any trade) in which the applicant had work experience. The proper construction of cl 816.721(2)(b)(ii) is not easily identified. A literal construction of cl 816.721(2)(b)(ii) would lead to the conclusion that the expression “that trade” refers to the trade to which the “overseas trade qualification” referred to in the opening words of subpar (ii) relates; there is no other mention of a trade in the subparagraph to which the word “that” can be seen to refer.  Against this literal approach can be advanced arguments based on utility and apparent purpose.  Such arguments might suggest, although it was not so suggested in this case, that ambiguity has crept into the subparagraph as a result of its contracted form.  That is, that expressed in an expanded form, it would read:

(2) (b)(ii)       A.       held an overseas trade qualification that is assessed as meeting Australian education or training standards for that trade; or

B.had work experience [presumably whether in Australia or overseas or part in Australia and part overseas] that is assessed as meeting Australian education or training standards for that trade.

In such expanded form it is easier to construe the reference to “that trade”, so far as the work experience aspect of the subparagraph is concerned, as meaning the trade in which the applicant had work experience.

In Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FLR 313 at 317, Moore J took the view that the “work experience” of which cl 816.721(2)(b)(ii) speaks is work experience for a trade for which there might exist a “trade qualification”.  The issue of the precise significance of the expression “that trade” appears not to have been argued in other cases involving cl 816.721(2)(b)(ii) (see, for example, Pillay v Minister of State for Immigration and Multicultural Affairs (Tamberlin J, 29 July 1997, unreported) and He v Minister for Immigration and Multicultural Affairs (Davies J, 25 Feb 1997, unrep).  However, it appears to have been assumed in such cases that the expression “that trade” means the trade in which the applicant had work experience.

With a little unease, as it seems to me that it involves some disregard of the actual structure and wording of the subparagraph, I have concluded that the better view of cl 816.721(2)(b)(ii) is that an applicant meets the requirements of subcl (2) if he or she, at the relevant date, had, in a trade, work experience that is assessed as meeting Australian education or training standards for that trade.

So construed, the trade in question need not be one in respect of which overseas trade qualifications might be held.  Nonetheless, it must be one in respect of which Australian education or training standards can sensibly be identified.  Whether, as Moore J suggested in Subraju’s Case, this means a trade for which there might exist trade qualifications is an issue which it is not necessary for me to determine in this case.  I note, however, that the provision for the Minister to assess such work experience where neither the Department of Industrial Relations nor an appropriate State or Territory authority is able to do so, might be thought to suggest against the necessity for formal qualifications (and see Pillay v Minister of State for Immigration and Multicultural Affairs).

The decision of the Tribunal in this case turned on the question of whether the applicant had work experience in a trade.  Had the Tribunal found that she did have work experience in a trade, the assessment of whether that work experience met Australian education or training standards for that trade was one to be made by others (see subpars 816.721(2)(b)(ii)(A),(B),(C)).  Although the Tribunal expressed itself somewhat awkwardly in this regard at p 11 of its reasons, I do not understand it to have suggested to the contrary.  In any event, since its actual decision was based on a finding that the work experience of the applicant upon which reliance was placed was not work experience in a trade, any misapprehension which the Tribunal may have had as to the identity of the appropriate assessing body is immaterial.

The Tribunal gave careful consideration to the work experience of the applicant which it was contended was work experience in a trade.  It considered the tasks performed by her and the training which she had received to enable her to perform such tasks.  No challenge is made to the Tribunal’s findings in that regard.

The Tribunal expressed its conclusion as follows:

“There is no magic test that can be applied to decide if a job is a trade, and to some extent all of the definitions tend to be circular.  Eventually, a decision maker has to look at all of the circumstances and make a decision based on the relevant authorities and guides, provided by the courts, policy and statistical documents, and other IRT decisions.  It is my view that the work done by ZT [the applicant] involved skilled labour in order to do a relatively small number of tasks.  Those tasks required expertise but they were neither numerous enough nor demanding enough to be considered to constitute a trade.”

In my view, by adopting the above approach, the Tribunal took an approach unduly favourable to the applicant.  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. So much may readily be inferred from the reference in cl 816.721(2)(b)(ii) to “Australian education or training standards for that trade”. 

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.  In Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 552, Wilcox J, considering earlier regulations than those with which this case is concerned, adopted the Shorter Oxford Dictionary definition of “trade” , namely “any skilled handicraft, as distinct from a profession”.  Whether such definition is too broad to reflect the intention of the regulations with which this case is concerned (see Moore J in Subraju at 317) may depend on the meaning attributed to the word “handicraft”.  It seems to me that the approach which I have here adopted is consistent with the approach of Wilcox J in Kumar as is illustrated in the following passage from his Honour’s judgment at 552-553:

“The work of a secretary, under modern conditions at least, is a skilled handicraft.  Accordingly, if at the end of a comprehensive training programme, a reputable institution issued a certificate of competency to be a secretary, I would regard that certificate as a ‘trade certificate’.  But I do not think that a certificate as to competency in one particular aspect of a secretary’s trade, such as typewriting or shorthand, is enough.”

The Tribunal in this case concluded that the relevant work experience of the applicant did not involve her undertaking tasks of a sufficient level of difficulty and generality to enable her work experience to be appropriately described as work experience in a trade.

Although arrived at by a route which was, in my view, unduly favourable to the applicant, no relevant error in the Tribunal’s approach to its determination that the relevant work experience of the applicant was not work experience in a trade has, in my view, been identified.

The decision of the Tribunal will be affirmed.          

I certify that this and the preceding four (4)
pages are a true copy of the Reasons for
Judgment of the Honourable Justice Branson.

Associate:

Date:

Counsel for the applicant:  Mr M. Jones
Solicitors for the applicant:  Parish Patience

Counsel for the respondent:  Ms L. McCallum
Solicitor for the respondent:  Australian Government Solicitor

Hearing date:  17 June 1997