FEDERAL COURT OF AUSTRALIA Mejia v Minister for Immigration & Multicultural Affairs [1999] FCA 855 MIGRATION – trade qualifications – whether applicant's work experience as a sheet metal worker met trade qualification requirements – whether Tribunal properly assessed the applicant's trade qualifications in accordance with the regulations. Migration Act 1958 (Cth) Migration Reform Act 1992 (Cth) Rahim v Minister for Immigration & Ethnic Affairs (1997) 148 ALR 432 cited Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 cited EVANGELINE MEIJA AND CONRADO MEJIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1021 of 1998 HILL J SYDNEY 25 JUNE 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1021 of 1998 BETWEEN: EVANGELINE MEIJA AND CONRADO MEJIA Applicants AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: HILL J DATE OF ORDER: 25 JUNE 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application be 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 NG 1021 of 1998 BETWEEN: EVANGELINE MEIJA AND CONRADO MEJIA Applicants AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: HILL J DATE: 25 JUNE 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicants apply to this Court for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") affirming decisions of both the delegate of the Minister ("the Minister") and the Migration Internal Review Office ("MIRO") refusing the applicants' visa application for a Class 816 Special (permanent) Entry Permit. 2 The applicants, Mr and Mrs Mejia and their two daughters, are citizens of the Philippines and entered Australia prior to 1 November 1993. They applied for a Class 816 Special (permanent ) Entry Permit. 3 Mrs Mejia claimed she was entitled to such an entry permit as she held a Bachelor of Science in Home Technology. Her qualification was assessed by the National Office of Overseas Skills Recognition, the relevant Australian authority in assessing tertiary qualifications. It found Mrs Mejia's qualification was comparable to the level of an Australian Technical and Further Education (TAFE) Advanced Certificate, and did not meet the Class 816 permit requirements. 4 Although Mrs Mejia applied to the Tribunal in her own right for review it was conceded on her behalf that the MIRO's decision rejecting her application was not erroneous. In consequence the present application to the Court, along with the previous application to the Tribunal, was concerned solely with the position of Mr Mejia. He claimed to be entitled to a Class 816 Special (permanent) Entry Permit, on the basis that he had a trade classification which qualified. His claim was rejected by the Tribunal. The Relevant Legislation 5 The application to this Court is made under s 476(1)(a) and (e) of the Migration Act 1958 (Cth) ("the Act") which relevantly provides: "… application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures required by this Act or the regulations to be observed in connection with the making of the decision were no observed; (b) … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision…" 6 The application for a Class 816 Special (permanent) Entry Permit by Mrs and Mr Mejia was made on 5 May 1994 four months before the Migration Reform (Transitional Provisions) Regulations made under the Migration Reform Act 1992 (Cth) ("the Migration Act") came into force and is therefore affected by transitional arrangements. Regulation 23 of the Migration Reform (Transitional Provisions) Regulations states that the application is to be taken to be an application for a transitional (permanent) visa under the new law. However the criteria for determining the application remain those that applied at the time the application was originally made. Thus the applicable criteria are the Migration (1993) Regulations ("the Regulations"). 7 The Regulations applicable in determining whether Mr Mejia had the necessary trade qualifications are found in subclause 816.721: "(2) An applicant meets the requirements of this subclause if, on 1 November 1993: (a) … (b) the applicant: (i) … (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 the 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; …" The Tribunal's Reasons 8 The Tribunal commenced by stating, correctly, the "main issue" for decision, namely whether or not Mr Mejia could be considered to have trade qualifications which would satisfy 816.721 (2)(b)(ii). However, it then went on to say, not accurately as will be seen, that: "To succeed on this ground, Mr Mejia 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). In this case the relevant body is the Department of Industrial Relations (DIR), now named the Department of Workplace Relations and Small Business." 9 Mr Mejia's adviser had claimed that he had four years and more than seven months work experience in Australia as a Sheet Metal Worker (Second Class). That occupation had originally been listed as a trade in a publication referred to as ASCO 4203-17 of the Australian Bureau of Statistics publication on Occupation Definitions, First Edition in 1990. However it is clear from the Tribunal's reasons that by the time of the hearing neither the Department of Industrial Relations nor the Second Edition of the ASCO dictionary of Occupation Definitions, 1997 recognised it as such. 10 The Department of Industrial Relations in a letter dated 12 April 1996, wrote: "The processing of your application for Assessment of Trade Qualifications has been finalised. A careful assessment of the information submitted with your application has revealed that you are unable to satisfy the criteria established for recognition under the Tradesmen's Rights Regulation Act (TRRA). Unfortunately, you do not possess an acceptable formal qualification, or have the required period of employment on the work ordinarily performed by a skilled tradesperson in Australia. Therefore, you are not eligible for recognition as a tradesperson in Australia or in any trade classification covered by the TRRA. The assessment has also revealed that you do not satisfy the requirements for recognition in any classification contained in the group of trades known as designated non-TRRA trades. Attached is a list of TRRA trades and designated non-TRRA trades. Please note that the Department of Industrial Relations does not undertake assessment of qualifications in any other trades or occupations." The attached list of TRRA and non-TRRA trades referred to Sheet Metal Worker, First Class but not to Sheet Metal Worker, Second Class. 11 Correctly the Tribunal regarded it as important to establish precisely what Mr Mejia actually did. For this purpose it consulted his Australian employer. That led it to the conclusion that he was a "process worker". Although it must be said that in a letter to the Tribunal the employer said that he had "acquired the skill of a sheet metal worker after one and a half" years, the employer accepted that he was not a first class sheet metal worker, rather "second class". 12 The Tribunal concluded that sheet metal worker (second class) was not regarded as a trade in Australia, having regard to the ASCO dictionary to which reference has already been made. As noted, the second edition made no reference to Sheet Metal Worker (Second Class) referring only to Sheet Metal Worker (First Class). The Tribunal noted that the latter occupation had in the meantime been renamed "Engineering Trade (Fabrication)". 13 The Tribunal found that Mr Mejia's occupation was that of "Engineering Production Process Worker", listed in the ASCO dictionary as "Labourers and Related Workers". It noted that this accorded with his being referred to by his employer (and himself using the phrase) as a "process worker". It repeated its observation that his qualifications and experience had been assessed and deemed not to be equivalent of Australian standards for "any" designated trade by the Department of Industrial Relations. The Tribunal accordingly rejected Mr Mejia's application. Submissions by Counsel for the Applicant 14 Counsel for the applicant submitted that the Tribunal erred in law by not following the criteria contained in subclause 816.721(2)(b)(ii) which it was required to do when reviewing the decision refusing Mr Mejia a Class 816 Special (permanent) Entry Permit. The applicants claimed that although Mr Mejia's qualifications were assessed by DIR in accordance with subclause 816.721(2)(b)(ii)(A), DIR was unable to make an assessment. The applicant relied on the letter from DIR quoted above, and in particular the passage: "Attached is a list of TRRA trades and designated non-TRRA trades. Please note that the Department of Industrial Relations does not undertake assessment of qualifications in any other trades or occupations." 15 The applicant submitted that the reference to "other trades or occupations" indicated that the attached list was not an exhaustive one. As the trade "Sheet Metal Worker (Second Class)" was not contained in the attached list of TRRA trades and non-TRRA trades, DIR was unable to undertake an assessment of sheet metal worker (second class). 16 Therefore, counsel for the applicant submitted that the Tribunal should then have considered the criteria in subclause 816.721(2)(b)(ii)(B) and (C) which it failed to do. There was no reference by the Tribunal of having referred the matter to a "relevant State or Territory Authority" for assessment as required by 816.721(2)(b)(ii)(B) or any clear indication that the Tribunal, which for the purpose of its review stands in the shoes of the Minister, had made an assessment. 17 The applicant submitted that the Tribunal, when making an assessment of whether Mr Mejia's work experience met Australian education or training standards in accordance with subclause 816.721(2)(b)(ii)(C), should have followed the three-part test proposed by Sackville J in Rahim v Minister for Immigration & Ethnic Affairs (1997) 148 ALR 432 at 439: "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 education or training standards for the trade in which the applicant has work experience. The third task (which arises only if the second task 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." 18 In this case the relevant trade in which the applicant had work experience was sheet metal worker (second class), and the Tribunal, the applicant submitted, whilst considering evidence about other trade classifications such as "process worker" did not make an assessment of the applicant's claimed trade. Submissions by counsel for the Minister 19 Counsel for the Minister submitted that DIR had assessed the applicant as a sheet metal worker, and the Tribunal had correctly based its decision on that assessment in accordance with subclause 816.721(2)(b)(ii)(A). The Minister submitted that the differentiation between "first class" and "second class" indicated the level of skill, with only "first class" sheet metal workers meeting the required level for recognition as a trade in Australia. Therefore, the fact that sheet metal worker (second class) was not on the list attached to the letter from DIR indicated that DIR had made a careful assessment of the applicant as a sheet metal worker and found that he was unable to satisfy the criteria. 20 But for one rather fundamental matter the criticism of the Tribunal's decision has some validity. It is obvious enough that the letter from the DIR clearly states that it does not assess qualifications in all trades and occupations. The attached list shows that sheet metal worker (second class) was not one of the trades assessed. Therefore, the DIR was unable to make an assessment of the applicant's qualifications in the trade in which he claimed to have work experience in. Again, but for the one qualification yet to be made, the Tribunal appears not to have referred the occupation which Mr Mejia pursued to a State or Territory in accordance with subclause 816.721(2)(b)(ii)(B) although the Tribunal mentions that: "neither the DIR nor any relevant State or Territory authority, consider Sheet Metal Worker (Second Class) to be a trade." The fundamental first question 21 With respect I have no problem with the so-called three step formulation which Sackville J offered. Perhaps I would prefer the five step formulation which I set out in Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 at 699-700, not because it is in any way inconsistent with the test formulated by Sackville J, but because in the formulation of the first three steps it deals in more detail with matters which all fall within the first step formulated by Sackville J. I said: "I should say that, in my view, in considering cl 816.721(2)(b), the tribunal should proceed on the following basis: 1. It should find and state facts which make it clear what occupation the applicant has which he claims to be a trade falling within the clause; 2. It should find what overseas trade qualifications or work experience the applicant possesses being a matter relevant to understanding the nature of the occupation which the applicant claims to be a trade; 3. The tribunal must then determine whether the occupation is in fact a trade within the meaning of the clause. In reaching this conclusion the Tribunal is not constrained to take a narrow view. An occupation may be a trade notwithstanding the absence of formal training and notwithstanding the absence of anything akin to an apprenticeship. An occupation will be a trade if it involves skilled handicraft (there is no implication as such of manual labour in the use of this expression) or perhaps as Sackville J referred to 'a skilled calling'. A distinction must be drawn at one end of the scale to an unskilled occupation which is not a trade. Further up the scale is an occupation which may be described, albeit it involves some training, as a specific job with a particular employer. It will not be a trade. The next end of the scale is the skilled calling which is a trade. Finally, further up the scale is the occupation which is properly characterised as a profession. What distinguishes a trade from a specific job is, as Branson J observed, both a category or body of practical vocational skills involved in a trade being skills of some difficulty but also the generality of those skills. A trade is not merely job specific. 4. The tribunal must then find whether trade qualification or work experience which the applicant has undertaken has been assessed as meeting the Australian Education or Training standards for that trade by the authorities in either (A) or (B) of the subparagraph. 5. If neither of the bodies referred to in (A) or (B) are able to make an assessment of the overseas trade qualification or work experience then the tribunal, standing in the shoes of the minister, must itself make an assessment." 22 The Tribunal may perhaps not have followed quite as logical an approach as I suggested. However, it found, and its finding was open to it as the arbiter of fact, that Mr Mejia was a process worker, a labourer. While, as I suggested, there is a continuum from an unskilled occupation, which is not a trade, to a skilled calling which is, a labourer or process worker is an occupation which is not, on any view of it, a trade. No doubt the question was complicated by the distinction between Sheet Metal Worker (First Class) and Sheet Metal Worker (Second Class). There seems a logical problem about whether different classes of sheet metal workers might change from trade to trade, but that need not detain us here. What is important is that once the Tribunal had found that Mr Mejia was a labourer, that was the end of the matter. Mr Mejia had no trade. 23 If Mr Mejia had no trade there can be little point in proceeding through the three steps defined in paragraphs A, B and C in clause 816.721(1)(a)(ii), which are, of course, mandatory if he had a trade. 24 For these reasons the Application must be dismissed. The Applicant must pay the Respondent Minister's costs. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 25 June 1999 Counsel for the Applicant: Robert Lee Solicitor for the Applicant: Belen Oag Solicitors & Attorneys Counsel for the Respondent: Sarah McNaughton Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 June 1999 Date of Judgment: 25 June 1999