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. The relevant provisions of the Regulations are as follows: "PART 816 - CLASS 816 (SPECIAL (PERMANENT)) ENTRY PERMIT) 816.1 INTRODUCTION ... 816.12Purpose of grant: To provide for permanent residence in Australia by: (a) certain persons who have applied for determinations that they are refugees; and (b) ... 816.13Interpretation 816.131 In this Part: "accredited course" means a tertiary course that is: (a) accredited as a tertiary course by a Commonwealth, State or Territory authority; or (b) offered and accredited by a tertiary institution that is authorised to accredit its own courses by a Commonwealth, State or Territory authority; ... "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. ... 816.7 SPECIAL (PERMANENT) ENTRY PERMIT (AFTER ENTRY) ... 816.72Criteria 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 subclauses 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 [National Office of Overseas Skills Recognition] 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. ... (4) An applicant meets the requirements of this subclause if: (a) the applicant applied in accordance with subclause (5) for a determination that the applicant was a refugee.... (5) For the purposes of paragraph (4)(a), an application for a determination that the applicant is a refugee: (a) must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993; .... 816.722(1) If the applicant is a principal person, he or she is in Australia. ... 816.723 If the applicant is a principal person, on 1 November 1993 he or she either was in Australia or was the holder of a return visa. ... 816.73Criteria to be satisfied at time of decision (entry permit - after entry) ... 816.732(1) If the applicant is a principal person, he or she has the ability to communicate in English in a mix of social and work situations.... ... 816.734(1) If the applicant is a principal person: (a) he or she satisfies [specified] public interest criteria...; and (b) each member of his or her family unit in Australia who is an applicant for a Class 816 entry permit satisfies [specified] public interest criteria...." The IRT noted that the applicant applied to the National Office of Overseas Skills Recognition ("NOOSR") to have her overseas qualifications assessed and in a letter dated 30 June 1995 the Assistant Secretary of that institution stated in part: "ASSESSMENT On the evidence available, the National Office of Overseas Skills Recognition assesses the certificate in Hotel and Restaurant Management - as described in the documents submitted - as comparable to the level of an Australian Technical and Further Education (TAFE) Certificate, (Stream 3100)." The applicant, through her agent, claimed that she held 'an overseas trade qualification in hotel and restaurant management, assessed as meeting Australian standards for that trade' and went on to claim that, as 'the training requirements for this trade is a minimum of a 2 year certificate, the NOOSR's assessment of the applicant's qualification should satisfy the Minister that the criterion (reg 816.721(2)(b)(ii)) is satisfied'. However, the IRT noted that: ".. there is no evidence on file that the applicant's qualifications were assessed by NOOSR or anyone else as 'meeting Australian standards for that trade'; they were simply assessed as being comparable to the level of a TAFE Certificate." Evidence before the Tribunal shows that the applicant gained her overseas qualification in Hotel and Restaurant Management in Manila in March 1983, after studying for one year. At the IRT hearing the applicant told the IRT she had worked in "buying and selling business" from 1983 until 1989. The IRT then noted that: "... she does not have work experience in Hotel and Restaurant Management or as a Hotel/Motel Manager, as claimed in submissions to MIRO and the Tribunal. In any event, even if she were found to have such work experience, the occupation of Hotel/Motel/Restaurant Manager is not defined as a trade for the purposes of the Regulations." After referring to a discussion of 'trade qualification' in His Honour Moore J's decision in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313, and considering the Australian Standard Classification of Occupations (ASCO) on this matter, as prepared by the Australian Bureau of Statistics, the Tribunal said: "Although the Tribunal is not bound by ASCO, it is taken as a useful guide to the accepted meaning in Australia of occupational definitions. I note that in Australia the occupation of Hotel/Motel Manager requires the completion of a 3-year diploma or a 2-year certificate plus on-the-job training of 3-5 years. It is clear from the NOOSR assessment above, that the Applicant's qualifications are equal only to an Australian TAFE Advanced Certificate. From her evidence, it is clear also that the Applicant does not have 3-5 years experience in Hotel Management. The Tribunal is of the view, from the evidence above, that the Applicant's qualifications cannot be assessed as a 'trade qualification' and her work experience cannot be considered as meeting Australian education or training standards of trade. ... In relation to the criteria for a Class 816 entry permit relating to qualifications, work experience, enrolment in an accredited course and business, I find, from the oral and documentary evidence, that the Applicant does not satisfy 816.721(2) or (3)." At the IRT hearing the applicant also submitted that she had work experience in Australia as a sewer and embroiderer. The IRT gave her an adjournment to apply to the relevant authority to have her work experience assessed for trade qualification purposes. In a letter dated 15 May 1997, the Trade Certification Officer, the Office of Training and Further Education, Victoria stated that: "the trade experience detailed in the application cannot be classified under any of the trades covered under our Certification of Trade Skills program." With respect to the Class 818 entry permit, the evidence before the tribunal was that the applicant did not meet any of the educational requirements set out in the alternative in Part 818.721.(2) through to 818.721(5) of the Regulations. No written or oral submissions were made at the IRT hearing that the applicant met the education requirements for a Class 818 entry permit. The Submissions Two submissions on behalf of the applicant were made in the initial application. However, at the hearing the applicant applied to amend her application to add an additional ground, namely, the procedures required to be observed by the Tribunal in its decision making process were not adhered to. The particulars to support that additional ground were that the assessment of trade qualifications required to be performed in accordance with the terms of Regulation 816.712 (2)(d)(ii), were not correctly performed in respect of either the applicant's Hotel Restaurant Managers Certificate or her work experience as a sewer and embroiderer. The applicant submitted that the IRT decision involved an incorrect interpretation of the applicable law in that the IRT misinterpreted the term "trade" in reg 816.721(b)(ii) of the Regulations by applying to it a definition which was too narrow. Also the IRT decision involved an incorrect application of the applicable law to the facts as found by the IRT. The findings of fact made by the Tribunal concerning the applicant's occupation could only have led to the conclusion that the occupation was a "trade" within the meaning of reg 816.721(2)(b)(ii). By arriving at a different conclusion, the IRT must not have correctly applied the law to the facts. The applicant's submissions amount to two issues: · the Tribunal had approached the concept and definition of "trade" in the relevant Regulation too narrowly, and; · the Tribunal had not followed the procedures required by the Regulation. In relation to the definition of "trade", the applicant adopted a position which has been considered and adopted in a number of decisions of the Court namely, that, because the visa here being considered is a "refugee based" one, it is appropriate that the concept of "trade" be not read too narrowly. The IRT applied the principles enunciated in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR at 313. The Court has however, considered the issue of the meaning of "trade" within this Regulation a number of times since that decision was made. If the construction adopted by Moore J in Subraju is correct, it would give "trade" in paragraph (b)(ii) a narrow meaning, since it would apply only to work experience in a trade of a type in which trade-skills might be obtained by "on-the-job training as an apprentice". The applicant submitted that the preferred approach to the Tribunal's task is summarised in Rahim v Minister for Immigration and Ethnic Affairs 148 ALR 432, at 439, where Sackville J said; "In summary, it seems to me that para (b)(ii) requires the decision-maker in a work experience case to undertake what might be described as a three stage process, as follows: The first task is to ascertain whether the applicant has work experience in a "trade". In undertaking this task a broad construction of the term "trade" should be adopted. Part of the first task is to identify the "trade" in which the applicant has had work experience. The second task is to ascertain whether there are Australian eduction or training standards for the trade in which the applicant has work experience. The third task (which arises only if the second is resolved in the affirmative) is to ascertain, in accordance with the process set out in para (b)(ii), whether the applicant's work experience is assessed as meeting the Australian education or training standards for the particular trade. I should make clear that, by describing the process as a three-staged one, I do mean to imply that there must always be a rigid division in the decision-maker's reasons. Obviously, there is a close relationship between ascertaining whether the applicant has work experience in a trade and determining whether the relevant trade has Australian eduction or training standards. There are likely to be factual issues common to both questions. The precise approach taken by decision-makers may vary from case to case, depending on the issues and the nature of the evidence. However, I think that in a given work experience case, if the applicant is to satisfy the requirements of para (b)(ii), each of the questions I have identified must be answered favourably to the applicant." The applicant also submitted that the procedures required under this regulation were not followed by the decision-maker in assessing whether this applicant fell within the Regulation. The Tribunal referred (at Page 5) to the fact that the applicant sought to have her certificate assessed by the National Office of Overseas Skills Recognition (NOOSR) but this organisation did not perform the assessment process required by Regulation 816.721(2)(b)(ii). The Tribunal therefore proceeded to perform its own assessment by reference to a definition found in the ASCO dictionary. The submission is that the IRT was required under the Regulation to return the matter to the institution referred to above for assessment if it had not been carried out. To do otherwise is a breach of s 353 of the Migration Act 1958 (a mirror of s 420 which was the subject of Eshetu v Minister for Immigration and Ethnic Affairs(1997) 71 FCR at 300). As the Tribunal had allowed the applicant to make enquiries and obtain an assessment in relation to sewing and embroidery, it should have allowed for or organised for itself, a proper assessment from NOOSR in relation to the other trade and not undertaken the task itself. The applicant based its submission upon a decision in the Chief Constable of North Wales v Evan (1982) 1 WLR 1155. This decision considered the function of the courts conducting judicial review. At page 1160, Lord Hailsham said: "...is important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law." and at page 1173 Lord Brightman said: "Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power." By analogy, in this case of merits review, the applicant submits it is not open to the IRT to undertake functions which are properly done by other authorities. The Tribunal by accepting the basis that the Office of Training and Further Education, Victoria, stated regarding her work experience as a sewer, as embroiderer (Tribunal page 7): "that the trade experience detailed in the application cannot be classified under any of the trades covered under our Certificate of Trade Skills Program", committed an error of law reviewable under s 476(1)(a), because the Tribunal did not have power to merely accept that report from the Victorian office. Under Regulation 816.721(2)(b)(ii)(C), it was necessary if neither the Commonwealth department nor a State body nominated by the Minister is able to make an assessment, that the assessment must be made by the Minister and this should have been arranged by the IRT. The respondent however submitted that the IRT had found, as a fact, that although the applicant held a degree gained in 1983 after a years' study in Manilla, she had no work experience as a Hotel and Restaurant Manager or as a Hotel/Motel manager and the IRT had noted that there was no evidence before it that the applicant's qualifications were assessed by NOOSR or anyone else as meeting Australian standards for that trade. The delegate of the Minister in his decision, which was on the file before the Tribunal, stated that "The occupation of Hotel/Motel manager is not assessable as a trade by the Commonwealth Department of Industrial Relations, nor any appropriate State nor Territory Authority". The applicant, although it disputed the decision, did not dispute this fact at any time. The respondent also submitted that the advice given by NOOSR, which is part of the Commonwealth Department of Employment, Education and Training, although not expressly contemplated by reg 816.721(2)(b)(ii), could still be used by the Minister in making an assessment if no assessment is available from the Department of Industrial Relations or a State or Territory Authority. The IRT had found that: "It is clear from the NOOSR assessment above, that the applicant's qualifications are equal only to an Australian TAFE Advanced Certificate. From her evidence, it is clear also that the Applicant does not have 3-5 years experience in Hotel Management. The Tribunal is of the view, from the evidence above, that the Applicant's qualifications cannot be assessed as a 'trade qualification' and her work experience cannot be considered as meeting Australian education or training standards of trade". The IRT also found that the applicant did not meet Australian education and training standards for the other trade relied upon by the applicant, ie. that of a sewer and embroider. The conclusion, it was submitted, must be that the IRT has correctly applied the requirements of reg 816.721(2)(b)(ii) in rejecting the applicant's application on the basis that her experience and qualifications were insufficient to meet the Australian standards in the trades she had identified. Furthermore, as for this purpose the IRT assumed the occupations identified by the applicant were trades, the question of whether the IRT misconstrued the meaning of "Trade" as used in the Regulations is irrelevant to the review sought here. The respondent also submitted that there had been no procedural error in the way in which this decision-maker had made its decision. The Tribunal had properly identified the relevant trade as being a Hotel/Manager (although the Tribunal's primary finding is that a Hotel/Manager is not a trade for the reason given in Subraju) and further that the Tribunal had properly identified the Australian standards for that trade. It was entitled to use ASCO to determine the Australian standards and this would particularly apply because no standards for this trade were set by the Department of Industrial Relations or the other State bodies (the Delegate having decided this and this not being contested by the applicant). Having identified the standards, the Tribunal then, as it was entitled to do, had taken the third step of assessing the applicants qualifications against the Australian standards it had identified and found that the applicant did not meet these standards. Decision Both parties agree, at least implicitly, that the approach to the operation of paragraph (b)(ii) in this Regulation should be as is set out at page 439 of Rahim v Minister, (referred to above). The first task of the decision-maker is to ascertain whether the applicant has work experience in a trade and this requires a consideration of the meaning of the phrase "trade qualification" used in the regulation. Somewhat unfortunately, the term "trade qualification" is not defined and the difficulty created by this omission is illustrated by the range of opinions as to its meaning which have been expressed by individual Judges when called to consider it. In Tanchiatco v Minister of State for Immigration and Multicultural Affairs (unreported, 20 August 1997), Branson J said that, "the notion of a trade involves recognition of a category or body of practical vocational skills of some difficulty and some generality." Her Honour applied in that case a broader approach to the definition than that taken in Subraju. The definition in Subraju was also disapproved by Tamberlin J in Pillay v Minister of State for Immigration and Multicultural Affairs (unreported, 29 July 1997), where he expressed the opinion that the word "trade" was a distinct and discrete expression which could not be construed narrowly by connecting it to the definition of a different term used elsewhere in the Regulations, ie. "trade certificate". In Tay v the Minister for Immigration and Multicultural Affairs, (unreported, 16 December 1997), Foster J also expressed criticism of the definition in Subraju. In His Honour's opinion this definition could no longer be accepted as providing a test appropriate for application by the IRT in Class 816 cases because it is too narrow and does not allow the Tribunal applying it any capacity to consider all of the factual matters relating to the second limb of an application for a Class 816 visa. Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544, stated: "I see no warrant in the regulations for a narrow interpretation of "trade". In particular, I do not think that the word should be confined 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 program, 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, "trade", such as typewriting or shorthand, is enough." The gist of this meaning of "trade", (which is based upon a dictionary definition, distinguishing "trade" as a skilled handicraft from a profession), is that it should not be interpreted as a word used to describe only skilled handicrafts which are achieved by a means of apprenticeship. If one interpreted Moore J's decision in Subraju as limiting the expression "trade qualifications" only to areas where apprenticeship were available, I would agree that such a definition is too narrow. However, the approach annunciated by Tamberlin J in Pillay is in my view too wide. Trade qualification must be given an objective meaning and the approach in Kumar is, in my view, the correct one. The decision in Subraju emphasises the acquisition of skill and on-the-job training as components of a trade qualification. There must also be, for the purpose of this Regulation, an objective measure for the qualification as certified by an authority competent to do so. However, in the light of the view I take of this matter, it is not necessary for me to determine this issue. The findings of fact made by the Tribunal in relation to this applicant's experience and qualifications were open to the Tribunal. The Tribunal concluded that this applicant did not have appropriate experience and was not qualified to meet the Australian standards in the trades she had identified, namely, Hotel/Manager and Sewer and Embroiderer. Also I am unable to identify any error in procedure made by the Tribunal in coming to this conclusion. The inadequacy of Hotel/Manager qualifications had been found by the Delegate of the Minister some three years before the review which is currently under challenge. In my view, after having given the applicant an opportunity to present alternative evidence about this matter, the Tribunal Member was entitled to have regard to the ASCO definition and had the power to make a determination in the process of merits review. The IRT gave the applicant the benefit of any doubt as to the meaning of the term by accepting that it could be regarded as a trade for the purpose of the Regulation. The Tribunal then found as a fact that in relation to this occupation the applicants experience, on her own evidence, did not amount to her meeting the Australian standards. In relations to the second category, ie. sewer and embroiderer, the applicant was given an opportunity to have this occupation classified for the purpose of consideration under the Regulation. The Tribunal (at page 7 of its decision), relied upon the letter from the Trade Certification Officer of the Office of Training and Further Eduction in Victoria, that the applicant's experience as a sewer and embroiderer could not be classified under any of the trades covered under its Certification of Trades-skills Program. On the basis of this evidence, the Tribunal was entitled to come to the conclusion which it did, that the applicant did meet Australian education or training standards for that trade. Applying the three stage process enunciated at p 439 in Rahim v Minister, the decision-maker has identified the "trade" in which the applicant has had work experience, then the Tribunal ascertained whether there are Australian education or training standards for the trades in which the applicant had work experience. The Tribunal then determined whether the applicant's work experience meets the Australian education or training standards for the particular trade. In relation to both the classification of Hotel/Manager and the classification of sewer and embroiderer the Tribunal came to the conclusion that this applicant did not meet the Australian education or training standards for these particular trades. In my view the Tribunal was entitled to make the findings that it did based on the assessments that it made and no procedural or substantive error of law is made out. The application is dismissed with costs. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor Associate: Dated: 25 June 1998 Counsel for the Applicant: S.C. Churches Solicitor for the Applicant: Nancy Walker Counsel for the Respondent: D Godwin Solicitor for the Respondent: S Kavallaris Date of Hearing: 13 March 1998 Date of Judgment: 25 June 1998