FEDERAL COURT OF AUSTRALIA

Pabani v Minister for Immigration & Multicultural Affairs [1999] FCA 268

MIGRATION – Migration Regulations - review of decision of Immigration Review Tribunal – entitlement to a transitional permanent visa equivalent to a class 816 special permanent entry permit – whether applicant satisfies the requirement to have work experience in a trade assessed to meet the relevant educational training standards for that trade

Migration (1993) Regulations 1992 (Cth),  cl 816.721(2)

Tanchiatco v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 298, applied

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223, applied

Azarcon v Minister for Immigration and Multicultural Affairs [1999] FCA 145, applied

AZIZ PABANI v MINISTER for IMMIGRATION and MULTICULTURAL AFFAIRS

No. NG 747 of 1998

BRANSON J

SYDNEY

11 MARCH 1999

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Immigration Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the respondent that the applicant is not entitled to a transitional permanent visa equivalent to a class 816 special permanent entry permit.  It is crucial to the applicant's claim to be entitled to such a visa, that he satisfies sub-clause 816.721(2) (a) or (b) of the Migration (1993) Regulations 1992 (Cth) (“the Regulations”). 

2                     Sub-clause 816.721(2), so far as is here relevant, provides:

“(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 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)        …”

3                     The applicant declared that he had completed a commerce degree at the Osmania University between 1986 and 1988.  The Tribunal had before it material which suggested that the certificate allegedly issued to the applicant by the University was not genuine.  Ultimately, the Tribunal was unable to be satisfied that the applicant held a degree awarded by the Osmania University.  It concluded that the applicant did not meet any of the requirements of sub-clauses 816.721(2)(a), 816.721(2)(b)(i), or 816.721(2)(c) of the 1993 Regulations.  There is no challenge to these conclusions.

4                     The issue in dispute on this application is that of whether the Tribunal should have been satisfied that the applicant satisfied sub-clause 816.721(2)(b)(ii) in that the applicant had work experience in a trade that is assessed as meeting Australian educational training standards for that trade. 

5                     Incidentally, I note that in my view the Tribunal was wrong in asserting that earlier decisions of this Court in considering the boundary of the word “trade” give little significance to the requirement prescribed by clause 816.721(2)(b)(ii) that the relevant work experience be assessed as meeting Australian educational training standards by the appropriate person or body as required by sub-clause (2)(b)(ii). In Tanchiatco v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 298 at 301 I expressly referred to this requirement, as did Sackville J in Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223.  I note also that the Full Court in Azarcon v Minister for Immigration and Multicultural Affairs [1999] FCA 145 has recently expressed agreement with the view expressed in Tanchiatco that the trade in question under sub-clause (2)(b)(ii): “must be one in respect of which Australian education or training standards can sensibly be identified”. As Sackville J pointed out in Rahim’s case at 231, a decision-maker concerned with sub clause (2)(b)(ii) is required to follow a three stage process. His Honour identified the three stages as follows:

·        the first task is to ascertain whether the applicant has work experience in a “trade”. In understanding 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 is unresolved in the affirmative) is to ascertain, in accordance with the process set out in par (b)(ii), whether the applicant’s work experience is assessed as meeting the Australian education or training standards for the particular trade.”

His Honour went on to explain that the three stages may not be able to be rigidly separated but may involve overlapping considerations.

6                     The trade in this case, identified as the trade in respect of which the applicant had work experience which could be assessed as meeting Australian educational training standards for that trade, was the trade of storeman warehouse supervisor.  The particular storeman warehouse supervisor's job held by the applicant is not a trade.  The distinction between a job and a trade was discussed by me in Tanchiatco at 301-302 where I expressed the view that the notion of a trade involves recognition of a category or body of practical vocational skills of some difficulty and some generality.  Sackville J endorsed this view in Rahim’s case at page 237. 

7                     In this case the Tribunal said that it had given careful consideration to the relevant work experience of the applicant and I see no reason to conclude that it did not. The Tribunal had earlier in its reasons set out evidence concerning the nature of the applicant's work experience.  It concluded that the work experience did not relate to a handicraft or skilled calling.  I do not accept the submission that no reasons are given by the Tribunal for this conclusion.  The issue was ultimately one of judgment for the Tribunal.  The Tribunal was entitled to make this judgment on the evidence before it; that is by looking at the evidence as to the work experience and forming a view whether it was of the required character. As I understand the Tribunal's reasons, the Tribunal was not satisfied, having considered the nature of the applicant's work experience, that it was work experience in respect of an area of vocational skills of some difficulty. 

8                     Reliance was sought to be placed before this Court on the relevant award.  The award was not before the Tribunal.  However, even if it had been, in my view it would not have assisted the applicant's case.  The skills referred to in the award are largely skills incapable of being regarded as trade skills, and those which are more technical are limited in their nature.  Moreover, I note that it is sufficient for a person working under the award to be able to perform any one or more of the relevant skills.  This, in my view, adds strength to the finding of the Tribunal that the position of a storage warehouse supervisor is not itself a trade, the individual skills referred to in the award themselves being too narrow to constitute a trade.

9                     I am satisfied that the Tribunal properly understood the test for a trade as explained in Tanchiatco and in Rahim, now affirmed in Azarcon, and that it found that crucial aspects of that test were not satisfied in this case.  The Tribunal further found that the work experience of the applicant was peculiar to the dental equipment sold by the applicant's employer, and thus of insufficient generality to be work experience in a trade.  In view of the first finding of the Tribunal, this was not a necessary finding to support its conclusion.  However, in my view, it was a conclusion open to the Tribunal.

10                  Other matters were also referred to by the Tribunal.  Again it was not necessary, in view of the Tribunal's earlier finding, for it to reach a conclusion on these matters. In my view, it has not been established that in reaching its decision the Tribunal did not take into account the evidence before it, or that it exercised its powers improperly.  It has not been established that the Tribunal relevantly made any error of law or that it failed to give proper consideration to the merits of the case having regard to the applicant's specific situation.

11                  The decision of the Tribunal is affirmed.

Associate:

Dated:              6 May 1999