Azarcon v Minister for State for Immigration & Multicultural Affairs [1998] FCA 732

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 510 of 1997

BETWEEN: HERMINIA AZARCON

Applicant

AND: MINISTER FOR STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE OF ORDER: 25 JUNE 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed with 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 510 of 1997

BETWEEN: HERMINIA AZARCON

Applicant

AND: MINISTER FOR STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE: 25 JUNE 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HER HONOUR: This is an application to review a decision of the Immigration Review Tribunal ("IRT") made on 28 May 1997 to refuse a visa to Herminia Azarcon (the applicant). The applicant claims that the decision of the IRT involved an incorrect interpretation of the applicable law. The IRT affirmed a decision made by the delegate of the Minister on 26 July 1995, not to grant the applicant a Class 816 (Special (Permanent)) Entry Permit or a Class 818 (Highly Qualified On-shore (Permanent)) Entry Permit. The Migration Internal Review Office ("MIRO") affirmed the delegate's decision on 31 January 1996. Background The applicant was born in the Philippines and is a citizen of that country. She was granted an overseas visitors visa on 20 December 1989. She used that visa to travel to Australia on 28 December 1989. An application for a determination that the applicant was a refugee was lodged on 21 August 1991. On 10 March 1994, through her agent, the applicant applied to remain in Australia under concessions announced by the then Minister on 1 November 1993. The applicant holds a one-year Certificate in Hotel and Restaurant Management awarded by the University of Manila and lodged a completed form seeking a Class 816 or Class 818 entry permit under the Migration (1993) Regulations ("the Regulations"). The Regulations These prescribe criteria that must be satisfied before a Class 816 or 818 entry permit can be granted. They are set out in Part 816 and 818 of Schedule 3 of the Regulations. An applicant is entitled to one of these permits only if he or she satisfies each of the various prescribed criteria. The IRT summarised the criteria which must be satisfied under the Regulations before a Class 816 entry permit can be granted as follows: "1. Age, not turned 45 before 1 November 1993, (816.72(1)(a)(ii)). 2. Qualifications/work experience/enrolment in accredited course (816.721(2)) or business interest (816.721(3)). 3. Refugee Application or class 435 or 443 entry permit on or before 1 November 1993 (816.721(4) or (6)). 4. Presence in Australia (816.722, 816.723). 5. Date of grant of visa prior to 12 March 1992 and arrival in Australia prior to 1 November 1993 (816.724) (subject to some exceptions). 6. Ability to communicate in English (816.732). 7. Public interest criteria (816.734). Criteria 1 to 5 are to be satisfied at the time of application, while 6 and 7 are to be satisfied at the date of decision." The IRT then found the applicant satisfied all the criteria except the qualifications/work experience/enrolment in accredited course criteria set out in reg 816.721(2). The IRT concluded that there was no evidence before it that the applicant had, in Australia, obtained or completed the requirements of a post secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate or higher qualification or that she had an interest in a business for the purposes of the Regulations (reg 816.721(3)). The present application for review submits that the IRT misinterpreted the term "trade" in reg 816.721(2)(b)(ii) of the Regulations by applying to it a definition which was too narrow.