FEDERAL COURT OF AUSTRALIA Bae v Minister for Immigration & Multicultural Affairs [2001] FCA 578 MIGRATION – review of decision of Migration Review Tribunal – General (Residence) (Class AS) visa sub-class 805 – exceptional record of achievement in an occupation, profession or activity Migration Act 1985 (Cth) s 476(1)(e) SANG DEOK BAE & ORS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 800 OF 2000 HEEREY J 18 MAY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 800 OF 2000 BETWEEN: SANG DEOK BAE FIRST APPLICANT SUN IEE BAE SECOND APPLICANT HEE WON BAE THIRD APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 18 MAY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision under review is set aside. 2. The application under review is remitted to the Migration Review Tribunal differently constituted for reconsideration according to law. 3. The respondent pay the applicant's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 800 OF 2000 BETWEEN: SANG DEOK BAE FIRST APPLICANT SUN IEE BAE SECOND APPLICANT HEE WON BAE THIRD APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 18 MAY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants seek review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Migration Review Tribunal made on 3 October 2000 affirming a decision to refuse the grant to the first applicant of a General (Residence) (Class AS) visa sub-class 805. The second and third applicants are the wife and son of the first applicant, to whom I shall refer simply as "the applicant". 2 The applicant is a welder. He is a Korean national. Amongst other things, the conditions he had to satisfy was that, as at the date of his visa application (2 May 1997), (a) he had an exceptional record of achievement in an occupation, profession or activity: 805.212(7)(a)(i) (b) he would be asset to the Australian community: 7(a)(ii) (c) he would have no difficulty in obtaining employment: 7(a)(iii). 3 The Tribunal found that the applicant satisfied 7(a)(ii) and (iii) but failed to satisfy (i). Evidence before the Tribunal 4 There were before the Tribunal several references from Mr John Bristow, the General Manager of the applicant's employer Cook's Body Works Pty Ltd. In a written reference dated 17 February 1997 Mr Bristow stated that the applicant had worked with the company from February 1988 until April 1992 and then again from August 1995 until the date of the reference. It was stated that the applicant "… is a valued, loyal employee in our welding department and he always puts in an amazing effort. He is well liked by his fellow workers. It is a pleasure to have him working for our company." 5 On 20 August 1998 Mr Bristow wrote to the Department stating, amongst other things: "Mr Bae has always been a very skilled welder, who has such experience that he was able to work with very little supervision building the truck bodies. In December 1996, we also discovered that Mr Bae had experience with silver brazing involved with the welding of copper. We had been trying to employ such a silver brazer for several months, without any success. When we found that Mr Bae had this ability, we gave him a try at the job and found him to be a most exceptional brazer. He now does this job on a full-time basis and we are very pleased that Mr Bae had this unique ability that had eluded us for so long." 6 On 8 December 1999 Mr Bristow wrote again: "8.12.99 To Whom it May Concern Further to my letter dated 20th August 1998, I am writing to attest that Mr. Bae has exceptional and unique skills in silver brazing involved with the welding of copper. Since December 1996, Mr. Bae has been assigned to do silver brazing to produce a hot and cold water mixing line, which is one of the most important parts of our export quality and award winning hot water unit. He has demonstrated exceptional skills to produce an average of 120-130 pieces of the highest quality mixing lines per day (ie 8 hours work). Such record of achievement is indeed 'exceptional'. A highly competent 1st class welder is normally expected to produce no more than 90 pieces per day. I would like to reiterate that Mr. Bae is a most exceptional brazer. Furthermore I do not have any doubt that Mr. Bae would be an asset to the Australian community in that he is professionally qualified to be able to transfer his exceptional silver brazing skills to the Australian residents who are employed by Cook's Body Works. Please contact me if you should need any further information." 7 In oral evidence before the Tribunal Mr Bristow said that the company employed between fifteen and twenty-five people and that the applicant was regarded as an "above average welder". Mr Bristow described the company's work on developing a stainless steel hot water service that could heat water to a higher temperature than vitreous enamel or copper cylinders. Manufacture commenced in 1992. The process of manufacture includes silver brazing in which the copper mixing line is welded to the brass valve. The brazing, a crucial operation, is performed manually. Mr Bristow found that silver brazers were either not of the required standard or "became bored and left". He then thought of the applicant. Mr Bristow's evidence, as summarised by the Tribunal, was as follows: "He said that the primary visa applicant struggled at first to produce the required 95 units per day, but they built a new jig for him and, after four weeks training, he achieved the target, producing work of good quality. He said that the primary visa applicant now makes 130 to 135 units per day and is the only silver brazer employed by Aquamax [an associate of the Cook's company]. He said that there are ten other welders working on robotic machines. The lowest is paid $404 gross per week and the highest is paid $456 gross per week so the primary visa applicant pay is in the top 25%. He said that Aquamax had not given consideration to the primary visa applicant training others, but was confident that, if the situation did arise he could train another silver brazer." 8 There was before the Tribunal a certificate of the Welding Technology Institute of Australia dated 28 January 1998 to the effect that the applicant had satisfied the requirements of AS 1796-1993 of certification of welders and welding supervisors for Certificate no. 4. 9 In a reference dated 8 December 1999 Mr Robert Vernon, the national examiner of the Institute, stated that the applicant had completed an assessment under his supervision on silver soldering of components for the manufacture of hot water services and was "exceptionally competent in silver soldering component parts for these hot water service components. His application to detail and his enthusiasm towards his work is highly commendable and contribute to a valuable resource in the manufacturing industry." 10 Mr Vernon gave evidence before the Tribunal. He has been a national examiner of welding qualifications for the Institute for fourteen years. He said that the applicant had "an exceptional record of achievement as a welder". Certificate no. 4 is for manual arc-welding of alloy steel pipe that requires the weld to be of x-ray quality. It allows the holder to weld on pressure and structural equipment such as Colonial Stadium in Melbourne. The certificate requires a high level of skill and the fail rate is about 50 per cent. He said that in his assessment the applicant displayed a sound knowledge of the process and that silver brazing used in the development of the applicant's steel interceptor trap is a new concept. 11 Mr Daryl Mills, Cluster Manager of Fabrication at Noble Park and Moorabbin campuses of Chisholm Institute since January 1999, told the Tribunal that he was an Advanced Skills Teacher when the applicant was studying for his Certificate no. 4 and was very impressed with his method of construction and economy in developing the steel interceptor trap. 12 The steel interceptor trap referred to by the witnesses was explained by the applicant in a letter to the Tribunal dated 8 May 2000. He has developed a steel grease interceptor for restaurant use. It has been approved for use by South East Water Limited. The steel grease interceptor he constructed for his own restaurant had been installed above ground at a cost of $2,500. For a small concrete grease interceptor he had been quoted $8,000. In a written reference dated 8 May 2000 Mr Vernon said the applicant ".. has demonstrated exceptional skills as a welder, which would be an asset to any employer. He has demonstrated practical skills in welding and fabrication that would well be sought after by many employers. What Mr Bae has demonstrated is, whilst not a new process, a new concept which has been applied to a new product. The process normally applied is to copper or copper alloy components with low grade silver solder. The process has been applied to low carbon steel and copper pipe with a higher grade of silver solder. This enables a stronger joint to be made. This application is a [sic – presumably 'new'] concept in Australia and requires greater accuracy to the components being joined. Mr Bae has been able to use his practical welding skills to change the design of a product for the food industry that could be marketed throughout the industry. Mr Bae can make a significant contribution to the further development of fabrication and welding in Australia." Reasons of the Tribunal 13 After noting that the applicant had been employed continuously in Australia since 1995 the Tribunal found he would have no difficulty in obtaining employment. The Tribunal then turned to the "asset to the Australian community" condition. It said: "26. Subclause 805.212(7)(a)(ii) requires the primary visa applicant to demonstrate that he would be an asset to the Australia [sic] community. The Tribunal notes the guidance in PAM 3 that describes benefit to the Australian community as the betterment of the community economically, socially or culturally, for example by introducing and transferring new skills or significantly raising local standards. The Tribunal notes the opinion of the National Examiner for the WTIA that the primary visa applicant is exceptionally competent in silver soldering and can make a significant contribution to the further development of fabrication and welding in Australia. The Tribunal notes the primary visa applicant's development of a product for the food industry that has been approved by the relevant water authority, is claimed by the primary visa applicant to have cost and environmental advantages over the traditional medium of construction, and is considered by the National Examiner for the WTIA as suitable for marketing throughout the industry. Having regard also to the primary visa applicant's evidence regarding transfer of his skills to the Australian community, the Tribunal finds that he would be an asset to the Australian community, so he satisfies subclause 805.212(7)(a)(ii)." 14 The Tribunal then discussed the condition requiring an "exceptional record of achievement" as follows: "27. The difficulty for the primary visa applicant is that he needs to demonstrate that, at the time of application in May 1997, he had an exceptional record of achievement in his field as a welder. The Tribunal notes the guidance in PAM 3 that consideration should be given, but not limited to, supporting statements from the applicant outlining their qualifications and achievements, any relevant qualifications or awards received from internationally recognised institutions and statements from government, professional, scientific or other relevant bodies in Australia. For the primary visa applicant to demonstrate that his skills are exceptional, he must show that his record of achievement distinguishes him as exceptional above other practitioners in the field. In Gaffar v Minister for Immigration and Multicultural Affairs (2000) FCA 293 (15 March 2000), French J. stated:- 'The requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions and activities. Some will require far greater levels of knowledge and skill than others in order to rise above the ordinary and merely competent. And while the applicant for such a visa is required to be an 'asset to the Australian community' it is not required that he or she be a 'national living treasure'. The [IRT] has taken an unduly restrictive approach to the criterion of 'exceptional record of achievement'. The criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.' 28. It follows from this and by comparison with the much higher standard required under regulation 805.212(6)(b)(ii), that the test of what is 'exceptional' cannot be raised to an unreasonably high level. It also follows from the tenor of the regulations themselves and the rationale underpinning the skilled migration system that the threshold should not be set too low. Otherwise it would bring the system envisaged by the regulations under consideration into conflict with the working of the regulations dealing with the other arms of the skilled migration scheme and detract from the operation of the scheme itself. It follows that in these cases there is a range of excellence in which the visa scheme can work, but that undesirable consequences can follow if it is applied outside this range. 29. The primary visa applicant submitted that he was a skilled welder. He provided evidence that as at May 1997, he was qualified as a welder in Korea and had 15 years' combined experience as a welder in Korea and Australia. In addition, he claimed to have invented a mixing tank in Korea for pharmacy use. The Tribunal notes that all of the primary visa applicant's qualifications in Australia were obtained subsequent to the lodging of the visa application, at which time his skills as a silver brazer had only recently been discovered. The Tribunal further notes that his employer regards him as an above average welder, a fact that is reflected in his level of remuneration. Having regard to the evidence, and applying the test in Gaffar, there is nothing to indicate that, at the time that the matter must be assessed, the primary visa applicant had attained an exceptional record of achievement as a welder. He therefore does not satisfy subclause 805.212(7)(a)(i) and so does not satisfy the requirements of subclause 805.212(7)." Conclusion 15 The findings in par 26 (in the context, the use of the expression "The Tribunal notes …" indicates acceptance by the Tribunal) must be taken to be referring to the applicant's exceptional competence in silver soldering and the development of his steel grease interceptor device as at the date of the visa application, since that is the date at which this condition must be satisfied. 16 But in considering the "exceptional record of achievement" condition the Tribunal appears to have disregarded those same facts. This indicates an error of law, being an incorrect application of the law to the facts as found: s 476(1)(e). 17 The decision under review will be set aside and the application for review remitted to the Tribunal differently constituted for determination according to law. There will be an order that the respondent pay the applicant's costs, including reserved costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 18 May 2001 Counsel for the Applicants: R M Niall Solicitor for the Applicants: Erskine Rodan & Associates Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2001 Date of Judgment: 18 May 2001