Tay, Chew Kiat Joseph v The Minister for Immigration and Multicultural Affairs
[1997] FCA 1500
•16 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
CITIZENSHIP, IMMIGRATION AND EMIGRATION - application for class 816 transitional (permanent) visa - where applicant must seek trade accreditation from State authority - where avenues of appeal within that authority not exhausted at time Tribunal rejected application - whether Tribunal failed to act according to substantial justice - meaning of “trade” in cl 816.721(2) of Sch 2 Migration (1993) Regulations.
Migration Act 1958 (Cth) - s 476(1)(a), s 476(1)(e)
Migration (1993) Regulations - Sch 2 Pt 816
Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 - not followed
Kalaivani Pillay v Minister of State for Immigration and Multicultural Affairs (Tamberlin J, Federal Court of Australia, unreported, 29 July 1997) - followed
Rahim v the Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432 - followed
CHEW KIAT JOSEPH TAY v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 598 of 1997
FOSTER J 16 DECEMBER 1997 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 598 of 1997
BETWEEN:
CHEW KIAT JOSEPH TAY
APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
FOSTER J
DATE OF ORDER:
16 DECEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be allowed.
The decision of the Tribunal be set aside.
The matter be remitted to the Tribunal for its further consideration according to law.
There be no order as to costs.
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 598 of 1997
BETWEEN:
CHEW KIAT JOSEPH TAY
APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FOSTER J
DATE:
16 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Extempore)
This case has been very ably argued on behalf of the respondent by Ms Wilkins and I mean no disrespect to her by not calling upon the applicant. The applicant, Chew Kiat Joseph Tay (“Mr Tay”), seeks review of a decision of the Immigration Review Tribunal (“the Tribunal”) affirming an earlier decision of a review officer of the then Minister for Immigration and Ethnic Affairs. The review officer had affirmed a decision of a delegate of the Minister refusing to grant Mr Tay what was known as a class 816 entry permit but which is now referred to as a transitional (permanent) visa. Mr Tay has not been represented at any stage of the proceedings, including the hearing before me today.
It appears that Mr Tay has been in Australia since 1990 and has established a successful business which employs two to three people. Ironically, he cannot rely on this fact as establishing any entitlement to the visa which he seeks because the business was not established at 1 November 1993. In applying for a visa Mr Tay must rely upon cl 816.721(2)(b)(ii) of Sch 2 of the Migration (1993) Regulations. The legislative scheme that governs his application is fairly elaborate, but there is no need to set it out here as there is no contest that this is the regulation which must be considered. It is a fairly lengthy regulation but I need refer only to the relevant part, which is subpar (b)(ii) of subcl 816.721(2). This provides that in order to obtain the relevant visa an applicant must establish that as at 1 November 1993 he or she:-
“(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;”
In this case, the appropriate authority for making the assessment is the Vocational Training Board, an organ within the New South Wales Department of Training and Education Co-ordination.
It appears that the applicant has, in order to comply with subcl 816.721(2), put himself forward as having trade qualifications or work experience as a waiter and as a commercial laundry manager. It has been accepted at all stages that waiting is relevantly a trade within the meaning of subpar (b)(ii). Accordingly, Mr Tay applied to the Vocational Training Board for an assessment as to whether his qualifications or work experience meet Australian training standards for that trade. It appears from what has been placed before me that Mr Tay made this application after it was suggested to him, quite properly, during the course of an interview with officers of the Department of Immigration and Multicultural Affairs, that he seek such an assessment.
Mr Tay was assessed but the result of that assessment was, at least in the first instance, that he did not meet the necessary standards. The decision of the Tribunal was made in the context of this result.
The decision of the Tribunal is only a short one. I think it desirable that I quote from the passage in the Tribunal's reasons which deals with Mr Tay’s failure to show that his experience as a waiter or commercial laundry manager met Australian Standards. The Tribunal had this to say:-
“The Visa Applicant claimed these requirements were satisfied on the ground that the Visa Applicant had overseas qualification or had work experience, in the occupation of waiter and commercial laundry manager.
To succeed on this ground, the Visa Applicant must have held, as at 1 November 1993, an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade, by the relevant body, as set out in subclause 816.721(2)(b)(ii).
With respect to the occupation of waiter this is a trade. The relevant body to assess this trade is the Vocational Training Board (VTB) of New South Wales. This is because the Department of Industrial Relations does not assess the trade of waiting.
The VTB assessed the qualifications and experience of the Visa Applicant as not being equivalent to Australian standards for that trade.
The Visa Applicant also claimed that he had the occupation of commercial laundry manager. The issue to be decided now, is whether this occupation is a trade.”
The Tribunal then cited from the decision of Wilcox J in Kumar v The Immigration Review Tribunal & Anor (1992) 36 FCR 544 and from the following passage from the decision of Moore J in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 at 317:-
“For reasons which I discussed earlier, the expression ‘trade qualification’ in reg 816.721(2)(b)(ii) does not, in my opinion, have as wide a meaning as ‘trade certificate’ as that expression appeared in reg 146 of the earlier Regulations. The expression ‘trade qualification’ in reg 816.721(2)(b)(ii) relates to trades of the type in which the trade skills might be gained by on the job training as an apprentice. The reference to ‘work experience’ in reg 816.721(2)(b)(ii) is similarly limited. It concerns work experience for ‘that trade’, that is, a trade for which there might exist a ‘trade qualification’.”
The Tribunal concluded:-
“Following the reasoning of the above cases, the Tribunal finds that the qualifications and work experience of the Visa Applicant are a profession rather than a trade. They do not relate to ‘trades of the type in which the trade skills might be gained by on the job training as an apprentice’, and similarly, the Visa Applicant’s work experience does not relate to a ‘trade for which there might exist a “trade qualification”’. In other words, the training and skills required for the Visa Applicant’s occupation are not skills which might be gained by formal study and/or on-the-job training as an apprentice in order to qualify as a trade so as to satisfy the relevant requirements of the Regulations.”
The Tribunal consequently refused Mr Tay’s application for review of the delegate’s decision to reject his application. Mr Tay has appealed to this Court.
The notice of appeal has not been drawn with any professional assistance. However, it appears to rely upon two of the grounds of judicial review enumerated in s 476(1) of the Migration Act 1958 (Cth) (“the Act”). The first is that “procedures that were required by [the] Act or the regulation to be observed in connection with the making of the decision were not observed” (s 476(1)(a)). The second, which is not specifically spelt out in the notice of appeal but is accepted as a ground, is that “the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law” (s 476(1)(e)).
The first of these grounds relates to his application to the Vocational Training Board for an assessment of his qualifications. As I have already indicated that assessment was refused. However, the Industrial and Commercial Training Act 1989 (NSW) under which that application was made provides not only for primary assessment but also for a reasonably elaborate system of review and appeals. It is quite clear that Mr Tay, having had his application for an appropriate craft certificate or certificate of proficiency under s 83(6) of that Act rejected, has instituted an appeal under Pt 6 of the Act. Again, ironically enough, I have been advised that that very appeal is to be heard later today. The point, however, is that the process by which Mr Tay is seeking an assessment of his skills which might entitle him to a class 816 visa has not been exhausted and was not exhausted at the time when his application for the visa was refused by the Tribunal.
I must, of course, note that it would appear that Mr Tay did not appeal from the decision of the Vocational Training Board before the decision of the Tribunal was made. I think it appropriate only that I express some concern that the procedure followed by the Tribunal in relation to this matter was somewhat informal. It seems that when Mr Tay apprised the Tribunal that his application to the Board had been refused, which he appears to have done quite promptly, he was told by the Tribunal in a telephone conversation that the Tribunal would await formal notification in writing from the Board of the refusal before proceeding further. Such notification does not appear to have been received. Furthermore, where as part of the procedure before the Tribunal there is a reference to a State authority, it might be thought to be more appropriate that there be borne in mind that if there is provision for appeals within the decision-making apparatus of that authority then the entire process of accreditation may not be complete until all those avenues have been exhausted.
I have come to the conclusion, however, that I need not further discuss this aspect of the case because, in my opinion, the second ground of review has been clearly made out. It has been very properly conceded, both in oral argument and in the written submissions which Ms Wilkins has provided, that the Tribunal applied the test enunciated by Moore J in Subraju v The Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 to Mr Tay’s claim that he met Australian standards in the trade of commercial laundry manager. As a result of applying that particular test, the Tribunal concluded that the occupation of commercial laundry manager was not a trade and therefore did not find it necessary to enter into any findings of fact in relation to Mr Tay’s claim.
It has been brought to my attention that in portions of the documents which Mr Tay filed with the Department in support of his application for a visa, he made reference to facts relating to his skills in the field of management of commercial laundries. The Tribunal, as I have said, has made no finding of fact whatsoever in relation to this area of Mr Tay’s claim. I did, indeed, consider for a while whether this failure to make findings of fact might itself have involved a failure to comply with s 368 of the Act in that the Tribunal had not set out “findings on a material question of fact” nor referred to “the evidence or other material on which the findings of fact were based”. As I have mentioned, however, I think the more probable situation is that the Tribunal did not consider it necessary to do so because of its application of the Subraju test.
The question for my consideration is whether the Tribunal’s reliance upon the Subraju test has led it into an error of law within the meaning of s 476(1)(e) of the Act. I have come to the conclusion, with great respect, that it has. The Subraju test has been the subject of consideration in other first instance cases in this Court and, in my opinion, the result of that consideration is that it can no longer be accepted as providing a test appropriate for application by the Tribunal in cases such as the present.
The significant statements from the judgment of Moore J have been set out in the passage that I have already cited from the judgment of the Tribunal. I will not refer any further to them but merely make reference to some later cases in this Court which have called the Subraju test in question. The first to which I wish to make reference is the case of Kalaivani Pillay v Minister of State for Immigration and Multicultural Affairs, an unreported decision of Tamberlin J given on 29 July 1997. His Honour undertook an extensive consideration of the regulation in question and also of earlier cases that had dealt with associated regulations and which could cast some light upon its construction. His Honour said:-
“Regulation 816 is expressed to be for the purpose of providing permanent residence in Australia for persons who have applied for determinations that they are refugees. It also relates to applications for temporary entry permits by Sri Lankans or citizens of the former Republic of Yugoslavia. There was nothing in this objective to support a narrow interpretation of the undefined expression ‘trade’. Moreover, if the intention had been to constrict the meaning of the term ‘trade’ to skilled handicrafts, were an apprenticeship is appropriate, then it would have been a simple matter to insert a specific limited definition in the expression ‘trade’ into the regulation. This has not been done.”
His Honour then, after consideration of some authorities, continued by saying:-
“It is difficult to see that the objectives expressed in reg 816.12 would be advanced by inferentially adopting a narrow interpretation of the word ‘trade’ as a consequence of the specific definition of ‘trade certificate’ especially in circumstances where the related expression ‘trade qualification’ is not defined in a narrow way. Nor is there any compelling reason why the exercise of the wide discretion conferred by the Act should be foreclosed by a restrictive interpretation of the fields of endeavour in which a person can satisfy the sub-clause. The broader emphasis in the provision is on skills, education, training and experience in the interests of encouraging migrants who can bring these benefits to the Australian community. No doubt the decision-makers will give due weight to relevant matters when examining these skills and work experience. They should not, in my view, be constrained in the exercise of their discretion by a narrow interpretation of the regulation.
For the above reasons, my view is that the expression ‘trade’ where used in reg 816.721(2)(b)(ii) of the Migration Regulations is not limited to occupations where an apprenticeship is necessary nor where skills used in employment are those required in a trade characterised by the exercise of skilled manual labour.”
I am in respectful agreement with what his Honour says in this passage.
I would refer also to what was said by Sackville J in Rahim v the Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432. His Honour in that case also undertook an extensive consideration of previous authority, including the principles of construction of the section which had been enunciated in Subraju. His Honour said this (at 443):-
“It follows that the only case inconsistent with what I consider to be the correct construction of para (b)(ii) is Subraju. As I have explained, I agree with Tamberlin J in Pillay that Subraju adopts a somewhat narrower interpretation of the word ‘trade’ than is warranted. None of the cases has directly addressed the significance of the presence or absence of Australian education or training standards for a particular occupation, where an applicant relies on work experience in that occupation to support a claim that the requirements of para (b)(ii) have been satisfied.”
His Honour (at 439) had set out in considerable detail his view of the construction of the section. I will not repeat what his Honour said there in these short reasons.
Reference to these authorities is sufficient, in my view, to require the conclusion that the Tribunal, by applying solely the test in Subraju, unnecessarily narrowed the question for its determination. The result is that it did not enter upon any consideration at all of the factual matters relating to the second limb of Mr Tay's application for a class 816 visa.
It may well be that considerations of factual matters such as what is involved in the work of a commercial laundry manager and of Mr Tay’s experience in that role, may throw up questions of significance as to whether that occupation can properly be categorised as a trade within the meaning of cl 816.721(2)(b)(ii). It follows from what I have said that, as those considerations have not been addressed in the determination of Mr Tay’s application, there has relevantly been an error of law in the Tribunal’s decision.
I should say that in the course of her careful argument, Ms Wilkins suggested that I could approach the matter by applying the Rahim test or the tests which are adumbrated if not enunciated in other decisions of this Court. In my view that is simply not possible because there is no factual basis which I could adopt for the purpose of applying those tests. In my view, the inevitable result is the matter must go back to the Tribunal for further consideration.
In these circumstances I allow the application. I set aside the decision of the Tribunal and I remit the matter to the Tribunal for its further consideration according to law. I make no order for costs in the circumstances.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Associate:
Dated: 16 December 1997
The Applicant appeared in person. Ms E. Wilkins of counsel, instructed by the Australian Government Solicitor, appeared on behalf of the Respondent Date of Hearing: 16 December 1997 Date of Judgment: 16 December 1997
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