CATCHWORDS IMMIGRATION - whether applicant for a class 816 (special (permanent)) entry permit had work experience in a "trade" - meaning of the word "trade" and "trade qualification". Migration Regulations: regs 816.2, 816.721(1) and 816.721(2)(b)(ii) Kumar v Immigration Review Tribunal (1992) 36 FCR 544 Mak v Immigration Review Tribunal (1994) 48 FCR 314 No. NG 2798 of 1995 MOSES SUBRAJU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS MOORE J SYDNEY 31 JULY 1996 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 2798 of 1995 ) GENERAL DIVISION ) BETWEEN: MOSES SUBRAJU Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 31 July 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. 2. 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 ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 2798 of 1995 ) GENERAL DIVISION ) BETWEEN: MOSES SUBRAJU Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 31 July 1996 REASONS FOR JUDGMENT This is an application under s476 of the Migration Act 1958 ("the Act") for the review of a decision of the Immigration Review Tribunal ("the Tribunal") of 27 September 1995. The Tribunal affirmed a decision originally made by a delegate of the Minister to refuse to grant Mr Moses Subraju ("the applicant") a Class 816 (Special (Permanent)) Entry Permit. While the grounds in the application raise what might appear to be separate issues there was, in substance, only one issue. It was whether the decision of the Tribunal involved an error of law involving an incorrect interpretation of the Migration Regulations or an incorrect application of those regulations to the facts found by the Tribunal. The facts were not in issue. The applicant was a Fijian citizen who entered Australia in 1987. For a period of twenty years he had worked for Carpenters (Fiji) Limited as a credit control officer. He had, in 1972, enrolled in a part-time associate diploma course in accounting at the University of the South Pacific though he did not complete it. In Australia the applicant had several jobs. He was employed from August 1990 to February 1991 as an office supervisor for a debt collection agency. Between 8 February 1991 to 21 March 1994 he was employed by a company engaged in food processing and his duties involved filling customer orders, banking, stock control, credit management and public relations. His later employment is not presently relevant. Part 816 of the Migration Regulations deals with a special class of entry permit. The regulation relevantly provides: "816.1 INTRODUCTION 816.11 Group: 1.2 (permanent resident (after entry)). 816.12 Purpose of Grant: To provide for permanent residence in Australia by: (a) certain persons who have applied for determinations that they are refugees; and (b) certain holders of, or applicants for, Class 435 (Sri Lankan (temporary)) or Class 443 (citizens of the former Socialist Federal Republic of Yugoslavia (temporary)) entry permits. 816.13 Interpretation 816.131 In this Part: ... "trade certificate" means a certificate called by that name issued by: (a) a State or Territory training authority; or (b) a TAFE institution; following initial trade training undertaken in conjunction with an apprenticeship or following non-apprenticed entry. .... 816.72 Criteria to be satisfied at time of application (entry permit - after entry) 816.721 (1) The applicant is: (a) a person who: (i) had not turned 45 before 1 November 1993; and (ii) meets the requirements of subclause (2) or (3); and (iii)meets the requirements of subclause (4) or (6); or (b) a person who: (i) is a member of the family unit of an applicant who is a person mentioned in paragraph (a); and (ii) is included in that person's application. (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 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) the applicant: (i) had 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) had met the academic progress requirements of the institution at which he or she was enrolled. (3) An applicant meets the requirements of this subclause if, throughout the period from 2 November 1992 to 1 November 1993 (both dates inclusive), the applicant owned: (a) an interest (whether as a sole proprietor or as a member of a partnership) in a business that meets the requirements set out in Schedule 6.1; or (b) an interest as a shareholder to the extent of at least 25% of the issued capital in a corporation that owns (whether directly or through an intermediary) a business that meets the requirements set out in Schedule 6.1." .... (emphasis added) Regulation 816.721(2)(b)(ii) refers to both a "trade qualification" and "that trade". Reference is also made to "work experience". The issue raised in these proceedings is whether the employment of the applicant as a credit control officer was work experience of the type comprehended by reg 816.721(2)(b)(ii). The Tribunal concluded that "his relevant work experience is not in respect of a trade". This conclusion was based on the view that the term "trade" was a reference to any skilled handicraft as distinct from a profession. This approach was said to be based substantially upon the reasons for judgment of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544 and their adoption by Carr J in Mak v Immigration Review Tribunal (1994) 48 FCR 314. Both decisions concerned the meaning of the expression "trade certificate" in regulation 146(1) in the Migration Regulations 1959 prior to the promulgation of the regulations with which I am concerned. I will return to consider these decisions shortly. The starting point in construing regulation 816.721(2)(b)(ii) are the words used in the statutory context in which they appear. The purpose of the grant of a Class 816 permit is to provide for permanent residence in Australia of a limited class of person. Regulation 816.721(1)(a) establishes three criteria. The first concerns the age of the applicant, the second, in sub-paragraph (ii), generally concerns either the academic or work related qualifications of the applicant: see reg 816.721(2), or the business interests of the applicant: see reg 816.721(3), and the third concerns whether the applicant had either sought to establish his or her status as a refugee: see reg 816.721(4) and (5), or had been granted, or met the requirements of, a limited class of entry permit applicable to citizens or residents of Sri Lanka or citizens of the former Socialist Federal Republic of Yugoslavia: see reg 816.721(6). Insofar as qualifications are concerned, reg 816.721(2) relates to qualifications obtained in Australia: see paragraph (a), overseas technical qualifications or general academic qualifications: see sub-paragraph (b)(i), or an overseas trade qualification: see sub-paragraph (b)(ii). Unlike the first two classes of qualification, the last, overseas trade qualification, is not essential in the sense that equivalent work experience may be sufficient. However both the work experience and the overseas trade qualification must meet Australian education or training standards for the trade involved. There is a process provided for in reg 816.721(2)(b)(ii)(A) to (C) that enables an assessment to be made of either the qualification or the work experience. The requirement in sub-paragraph (b)(i) that the applicant possess a technical qualification cannot be met by equivalent work experience that might be viewed as meeting Australian education or training standards which would otherwise be evident from the formal technical qualification. The structure of reg 816.721(2) suggests that sub-paragraph (b)(ii) is directed to employment where sufficient work experience might be viewed as an adequate substitute for a more formal qualification. That equivalent work experience only arises in relation to trade qualifications and does not extend to technical qualifications indicates that what is comprehended by the expression "trade qualification" might be limited. That is, it does not include areas of employment in which a person might have technical qualifications. A further indication of the scope of reg 816.721(2)(b)(ii) is to be found in the definition of "trade certificate" in reg 816.13. The definition relates to qualifications gained in Australia, that is a certificate issued by a State or Territory training authority or a technical and further education institution. To satisfy the definition the qualification must be called a trade certificate. It is, in my opinion, because that definition relates only to qualifications gained in Australia that the reference is made in reg 816.721(2)(b)(ii) to "trade qualification" rather than "trade certificate". While there is not entire symmetry between paragraphs (a) and (b) of reg 816.721(2), the Australian qualifications referred to in paragraph (a) are repeated, with the exception of "advanced certificate", in paragraph (b), which deals with overseas qualifications, if "trade qualification" is treated as the equivalent of an Australian "trade certificate". In my opinion this is what is intended by the expression "trade qualification". That being so, what is comprehended by a "trade qualification" can be determined, in part, by reference to the definition of "trade certificate". That definition contains two elements. One is the instrument issued by an educational authority and the other is training associated with it. That training is described as "initial trade training" which is training undertaken either in conjunction with an apprenticeship or "following non-apprenticed entry". The reference to apprenticeships and non-apprenticed entry tend to suggest that the word "trade" in both the expression "trade certificate" and "trade training" is a reference to trades in the more traditional conception of skilled manual labour. That is, it is a reference to trades the skills for which might be gained by on the job training as an apprentice. I now consider the judgments of Wilcox and Carr JJ. In Kumar, Wilcox J considered whether a certificate of competency issued to a secretary was a "trade certificate" for the purposes of reg 146(1) of the Migration Regulations 1959. The expression was not defined. After discussing at length the relevant provisions of the regulations, dictionary definitions of "trade" and the decision of the House of Lords in National Association of Local Government Officers v Bolton Corporation (1943) AC 166, his Honour concluded: "I see no warrant in the regulations for a narrow interpretation of "trade". In particular, I do not think that the word should be confirmed to traditional occupations, such as those of the carpenter, bricklayer and tailor, as suggested by counsel for the Minister. As the Shorter Oxford Dictionary definition makes apparent, "trade" is a word applicable to any skilled handicraft, as distinct from a profession. 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." No explanation is given why, if this wide interpretation of "trade" is adopted, a certificate issued to a secretary after comprehensive training is a trade certificate and one that might be issued to a typist is not. For my part, and with respect to his Honour, I do not understand the basis upon which such a distinction can be drawn though I accept that in the statutory context in which the expression "trade certificate" then appeared, there was no compelling basis to construe the expression narrowly. In Mak Carr J also had to consider reg 146 though it was not then in the same terms. In issue before Carr J was whether a diploma in marketing might be a trade certificate. This issue arose in a submission, accepted by his Honour, that the Tribunal had erred in law in not addressing this matter. Carr J referred, with approval, to the passage from Kumar that I set out earlier. His Honour did not, however, express a concluded view that a diploma in marketing was a trade certificate nor that marketing was a trade. These matters, by order of the Court, were to be considered by the Tribunal when the matter was remitted to it. Plainly these authorities assist when determining what is comprehended by the expression "trade qualification" in reg 816.721(2)(b)(ii). However the width of the meaning attributed to the word "trade" in the expression "trade certificate" in earlier regulations made under the Act should not be adopted if the context in which it appears in the relevant regulation indicates it has a narrower meaning. 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 approach I have adopted in determining the meaning of the expression "work experience" differs from that adopted by the Tribunal. Moreover the construction relied upon by the Tribunal arose directly from and depended upon the construction of the expression "trade certificate" determined by Wilcox J in Kumar. The conclusion the Tribunal reached in applying the regulation to the facts it found was, in my opinion, the correct one. In reaching that conclusion it may have incorrectly interpreted the regulation, though its reasoning process is somewhat obscure. Any error was not a material one. Accordingly I dismiss the application with costs. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Dated: 31 July 1996 APPEARANCES Solicitor for the Applicant: Corby Levingston Counsel for the Respondent: Ms L McCallum Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 June 1996 Written Submissions Complete: 1 July 1996 Date of Judgment: 31 July 1996