FEDERAL COURT OF AUSTRALIA

Shandil v Minister for Immigration and Multicultural Affairs [1999] FCA 941

MIGRATION –  application to review decision of Immigration Review Tribunal – whether applicant’s work experience as cook met trade qualifications requirement – whether Tribunal provided reasonable time for applicant to provide evidence – whether Tribunal required to call oral evidence – whether the Tribunal properly assessed the applicant’s trade qualifications in accordance with the regulations

Migration Act 1958 (Cth),s 476(1)(a), s 476(1)(e)

Migration Regulations (Cth), Sch 3, Pt 816. Pt 818

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

ATESH SHANDIL and AMRITA SHANDIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1085 of 1998

O'CONNOR J

SYDNEY

9 JULY 1999

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Immigration Review Tribunal (“Tribunal”) made on 17 September 1998 to refuse a visa to Atesh Shandil (the applicant) and his wife Amrita Shandil.

2                     The Tribunal affirmed a decision made by the delegate of the Minister 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 29 September 1997.

BACKGROUND

3                     The applicant was born on 4 June 1997 and is a citizen of Fiji and arrived in Australia on 10 February 1989.   At that time the applicant stated that he had attended nine years of school in Fiji and his occupation was a “welder/leading hand”.  After assessment, the Department of Industrial Relations (“DIR”) advised the applicant that he was not eligible for recognition as a tradesperson in any trade covered by the Tradesman’s Right Regulation Act (“TRRA”).  In 1995 the applicant completed a Manual Metal Arc Welding Certificate at TAFE but was still advised by the DIR that he was not eligible for recognition as a First Class Welder (Engineering) nor any other TRRA trade.

4                     However by the time of the Tribunal hearing on 11 May 1998 the applicant had advised the Tribunal that he had applied to TAFE for a trade test in ‘Indian cuisine’ cooking.  The applicant passed the test and eventually submitted a copy of a Craft Certificate in Cookery (Eastern) awarded by the NSW Commissioner for Vocational Training on 18 May 1998 to the Tribunal.  The Tribunal asked the applicant to produce further evidence in relation to his claimed occupation as a cook prior to 1 November 1993 including if possible evidence from a former employer Mr Rajendra Singh at whose restaurant he claimed he had worked from 1983 to 1987, sample menus, accounts and wage records in relation to his employment with Mr Singh.  No further evidence of this kind was provided.

5                     The applicant’s Department file (in relation to an earlier refugee application) indicated that he left school in 1984 and then joined the ANZ Bank in Suva where he worked as a bank officer until his arrival in Australia.  There was no reference in the departmental file to employment as a cook.

REGULATIONS

6                     The Migration Regulations (“the Regulations”) prescribe criteria that must be satisfied before a Class 816 or 818 entry permit can be granted.  The relevant criteria 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.

7                     The relevant provisions of the Regulations are as follows:

“PART 816 - CLASS 816 (SPECIAL (PERMANENT)) ENTRY PERMIT)

816.1   INTRODUCTION

...

816.12             Purpose of grant: To provide for permanent residence in Australia by:

                        (a)        certain persons who have applied for determinations that they are refugees; and

                        (b)        ...

816.13             Interpretation

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....”

IRT DECISION

8                     The Tribunal summarised the criteria which must be satisfied under the Regulations before a Class 816 visa 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.”

9                     It summarised the criteria which must be satisfied under the Regulations before a Class 818 visa can be granted as follows:

“1.       Age (818.721(1)(a)).

2.         Academic/Skill (818.721(2), (3), (4) or (5)).

3.         Applicant not received financial assistance from the Commonwealth or other government (818.722).

4.         Date of grant of visa and arrival in Australia (818.723).

5.         Presence in Australia (818.724).

6.         Public interest criteria (818.732).

Criteria 1 to 5 are to be satisfied at the time of application, while 6 is to be assessed at time of decision.”

10                  In relation to the applicant’s claim for a class 816 entry permit the Tribunal found that he did not meet Australian standards for a trade on 1 November 1993 because it did not accept that the applicant held an overseas trade qualification or had work experience, assessed as meeting Australian education or training standards for any of the trades relied upon as at 1 November 1993.

11                  In relation to the applicant’s claim for a class 818 entry permit the Tribunal found that the applicant did not meet any of the educational requirements set out in Part 818.721(2) through to 818.721(5).

GROUNDS OF REVIEW

12                  In the written application, the applicant claimed relief under s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act").   Particulars of that claim, in summary, are that

(a)        The Tribunal incorrectly claimed the applicant had only raised trade qualifications as a cook at the oral hearing and drew an adverse inference from this.

(b)        The Tribunal failed to refer in its reasons to all of the affidavit material and the evidence provided by the applicant.

(c)        The Tribunal allowed insufficient time to provide the further evidence it required and refused to hear the oral evidence of a particular witness, namely the applicant’s mother.

(d)        The Tribunal failed to accept the grounds on which the DTEC Trade certification, as an Indian cook, was granted.

13                  At the hearing, the applicant sought to amend the application to allege procedural errors, under s 476(1)(a) relying on the same particulars.  Leave was granted.

PROCEDURAL ERRORS

14                  As the provisions indicate, the Tribunal in a case such as this is required to be satisfied that the applicant had, at the relevant time i.e. prior to 1 November 1993, either an overseas trade qualification or relevant work experience.   In relation to Indian cooking, the trade ultimately relied on in this case, only the latter is relevant because the qualification relied on was acquired in 1998.

15                  The Tribunal was required to consider material before it which was relevant to the applicant’s work experience as an Indian Cook prior to 1 November 1993.   The applicant’s 1998 TAFE test result is not evidence of such work experience and failure to accept the grounds on which the DTEC Trade certification was granted, does not of itself amount to an error of law.

16                  The applicant has argued the Tribunal had wrongly concluded that the application in so far as it relied on work experience as a cook, was only made at the hearing and subsequently the Tribunal drew an adverse inference from this fact.   The reference to this matter in the reasons for decision is somewhat ambiguous and reveals a degree of scepticism, however no adverse inference was, in fact, made in relation to this issue.   In light of this conclusion the respondent submission that, in any event, such an adverse inference was open to the Tribunal, had it cared to make it, because this claim, prepared by an expert migration agent, had been on foot for four years before this particular claim was made has no relevance.

17                  The Tribunal did, however, express dissatisfaction with the evidence provided to it in relation to work experience as a cook.  At the hearing the Tribunal asked for evidence from the employer or documentary evidence to support the applicant’s claim.  The applicant declined to provide evidence from his former employer who is resident in Australia because, the employer a Mr Singh was not aware of his current immigration status and he feared exposure.  Consequently only a general affidavit from Mr Singh prepared for TAFE, to support the cookery qualification was provided to the Tribunal.   This affidavit did not address the specific work experience.  By letter dated 24 June 1998 (folio 52) the Tribunal sought further material in the following terms.

“The Tribunal seeks further evidence in relation to Mr Shandil’s experience and training as a Cook prior to 1 November 1993.  This evidence could include any or all of the following:

(1)       Details of the restaurant where Mr Shandil worked for Mr Singh from  1983 – 1987 including letterhead, menus, employment records, accounting records, payment receipts or other relevant materials.

(2)       Evidence of any training provided to Mr Shandil either by Mr Sing or anyone else.

This evidence if available and any further submissions you may wish to make should be provided within 14 days of the date of this letter.  After 14 days the Tribunal will proceed to a decision.”

18                  This material was not provided within the specified time, or later (the decision not being made until September 1998).  The applicant claims this required timetable amounted to procedural error because it was “unreasonable and impossible to perform what was required within the time permitted”.

19                  This submission is not sustainable on the facts of this case.  The former employer was always available to give this evidence either in writing or orally.   The applicant chose not to provide it in this way for personal reasons.  In any event the time provided for alternative ways to provide the evidence was, in all the circumstances, reasonable.

20                  The applicant further submits that the failure to hear oral evidence from the applicant’s mother as a supplement to her affidavit evidence amounts to procedural error.  The Tribunal preferred to take this evidence by means of a statutory declaration.  It is noted that the applicant did not take advantage of the procedures provided by ss 361 and 362 of the Act in respect of calling witnesses.   However, even if he had done so these provisions do not require the Tribunal to comply with any requests made to call witnesses there being no duty on the Tribunal to call oral evidence at all.  Its failure to do so in this case does not in my view amount to an error of law.

21                  Finally the applicant submits that the Tribunal did not accept the grounds on which the TAFE Craft Certificate in Indian Cooking was granted as determining the issue of work experience.  The full application made to TAFE was not provided to the Tribunal.  Only the statutory declarations by Mr Singh and Mr Naidu were provided and they were in general terms without details of actual work experience.     The conclusions of the TAFE examiner are not binding on the Tribunal.   It is required to come to its own conclusions as to the level of the applicant’s work experience.   Indeed the respondent submitted that merely accepting the TAFE Certificate without being aware of the whole basis for its grant, might, of itself, amount to legal error.   I agree with that submission.   The Tribunal is obliged to consider the merits of each individual case before it and must be satisfied that the criteria laid down in the regulations are fulfilled.

22                  In Tanchiatco v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 298, Branson J said, when considering the proper construction of cl 816.721(2)(b)(ii) at 300:

“… The proper construction of cl 816.721(2)(b)(ii) is not easily identified.  A literal construction of cl 816.721(b)(ii) would lead to the conclusion that the expression “that trade” refers to the trade to which the “overseas trade qualification” referred to in the opening words of subpar (ii) relates;  there is no other mention of a trade in the subparagraph to which the word “that” can be seen to refer.  Against this literal approach can be advanced arguments based on utility and apparent purpose.  Such arguments might suggest, although it was not so suggested in this case, that ambiguity has crept into the subparagraph as a result of its contracted form.  That is, that expressed in an expanded form, it would read:

(2)(b)(ii) A.      held an overseas trade qualification that is assessed as meeting   Australian education or training standards for that trade;  or

              B.       had work experience [presumably whether in Australia or overseas or part in Australia and part overseas] that is assessed as meeting Australian education or training standards for that trade.”

23                  In such expanded form it is easier to construe the reference to “that trade”, so far as the work experience aspect of the subparagraph is concerned, as meaning the trade in which the applicant had work relevant experience.

24                  This approach was approved by the Full Court in Azarcon v Minister for Immigration and Multicultural Affairs [1999] FCA 145.

25                  Applied in this case, it requires that the Tribunal first be satisfied as to the relevant work experience of this applicant.  Only then would the question of whether this experience met Australian standards arise.

26                  The Tribunal considered the material provided to it by the applicant, conducted a hearing and then gave a further opportunity to the applicant to provide additional material which would be evidence of the required work experience.   The Tribunal concluded, as it was entitled to do, that it was not satisfied, on having considered all of the material actually provided to it, as to that issue.   None of the matters raised as procedural errors have any substance.  The relevant evidence of Mr Singh, the applicant’s former employer, was not provided for reasons given by the applicant.  The other evidence was not sufficient to convince the Tribunal as to the issue of work experience.  There are, in my view, no demonstrated errors of procedure or law in the conduct of the case or the conclusions drawn.

27                  The application is dismissed with costs.

Associate:

Dated:              9 July 1999