FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901

MIGRATION – review of decision of Immigration Review Tribunal – whether new ground of law should be permitted to be argued on appeal – whether Tribunal addressed the case raised by the material before it – whether Tribunal addressed the statutory requirement concerning the qualifications and experience necessary for the applicants to be licensed as a customs agent

Migration Act 1958 (Cth) ss 93(1), 475 and 476

Customs Act 1901 (Cth) ss 183C, 183CC, 183CC(1)(a)(ii), 183CC(2), 183CC(2)(a), 183CC(2)(b), 183CC(3) and 183CC(5)

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 – referred to

Estate Agents Board v Nakic [1983] 2 VR 570 – referred to

Dornan v Riordan (1990) 24 FCR 564 - referred to

Jones v Minister for Immigration (1995) 63 FCR 32 – applied

R v Refshauge (1976) 11 ALR 471 – applied

Estate Agents Board v Nakic [1983] 2 VR 570 at 577 – referred to

Ferriday v Repatriation Commission (1996) 42 ALD 526 – applied

H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 – referred to

Coulton v Holcombe (1986) 162 CLR 1 – referred to

Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 – referred to

Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 – referred to

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 – referred to

Grant v Repatriation Commission (1999) 57 ALD 1 – referred to

Brew v Repatriation Commission (1999) 94 FCR 80 – referred to

Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 – referred to

Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 – referred to

LIXIN CHEN AND ANOTHER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 618 OF 2000

JUDGE: LEE, CARR AND MERKEL JJ

DATE: 21 DECEMBER 2000

PLACE: MELBOURNE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT the appeal be dismissed with costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEE J:

1                     This is an appeal from an order made by a judge of this Court (Marshall J) dismissing an application made by the appellants under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Immigration Review Tribunal (“the Tribunal”) which “affirmed” a decision of the Migration Internal Review Office refusing the grant of a Skilled - Australian Linked (Migrant) (Class AJ) Sub-class 105 visa to the first appellant. The decision of the Tribunal was a “judicially-reviewable decision” as defined in s 475 of the Act.

2                     Relevant facts and details of the applicable legislation are set out in the reasons of Carr J and it is unnecessary to repeat them.

3                     I agree with Merkel J that the appellants should be given leave to further amend their notice of appeal to add a sixth ground in the terms sought. The ground was argued on the hearing of the appeal and the arguments were supplemented by submissions received subsequent to the hearing. In addition to the reasons stated by Merkel J for granting leave I would add that the issue raised by the further ground involves a fundamental question of construction which, if misunderstood by the Tribunal, would mean that the Tribunal did not duly perform the statutory function vested in it to review the decision made by the Migration Internal Review Office. (See: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 193 – 195 per Bowen CJ.) Furthermore, in reality Ground 6 articulates the argument the first appellant was attempting to make in Grounds 1-4.

4                     In Ground 6 the first appellant contends that the construction and application of Item 6104 of Schedule 6 (General Points Test – Qualifications and Points) of the Migration Regulations 1994 (Cth) (“the Regulations”), involved an error of law on the part of the Tribunal and ground for review of the Tribunal’s decision (s 476(1)(e)). Item 6104 reads as follows:

“6104 The applicant’s usual occupation:

(a) is not a priority occupation; and

(b) is an occupation:

(i) for which, in Australia, a diploma or associate diploma is required; or

(ii) that is a technical-equivalent occupation; and

(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:

(i) obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or

(ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or

(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and

(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and

(e) is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and

(f) is an occupation:

(i) in which the applicant has worked; or

(ii) is closely related to an occupation in which the applicant has worked;

for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made.” [emphasis added]

5                     Regulation 2.26(5) contains, inter alia, the following definitions of the terms “diploma”, “priority occupation”, “relevant Australian authority” and “usual occupation”:

“diploma means:

(a) a formal educational qualification awarded by an Australian educational institution as a diploma for which:

(i) the entry level to the course leading to the qualification is satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

(ii) 3 years of full-time study, or the equivalent period of part-time study, is required; or

(b) a formal educational qualification that is of an equivalent standard awarded by an educational institution outside Australia;

priority occupation means an occupation specified by Gazette Notice as a priority occupation;

relevant Australian authority means:

(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience; or

(b) Department of Employment, Workplace Relations and Small Business; or

(c) if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister;

usual occupation means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.”

6                     The term “the Australian standards” is not defined.

7                     It was not in issue that the first appellant had a “usual occupation” that was not a “priority occupation”. The Tribunal held that the circumstances of the case precluded NOOSR from making an assessment of educational qualifications or work experience and, therefore, for the purpose of the first appellant’s application, the Minister, whose duty in that regard was to be carried out by the Tribunal, was the “relevant Australian authority”.

8                     The Tribunal had before it a report prepared for the appellants by Mr Mack, an Industry Training Consultant. Mr Mack had been the head of the Curriculum Development Unit at the Royal Melbourne Institute of Technology and, in particular, had been involved directly in the “re-design of the Para-Professional Certificate in Business Studies (Customs) which is the forerunner of the current course for the occupation of Licensed Customs Broker”. The report prepared by Mr Mack was directed to the question whether the first appellant satisfied the requirements of item 6104.

9                     The Tribunal acknowledged that Mr Mack “had an impressive curriculum vitae and experience in the area of licensed customs broker’s work and requirements in Australia”. The tenor of the Tribunal’s reasons indicated that it accepted Mr Mack’s evidence.

10                  The report by Mr Mack implied, and the Tribunal accepted, that the “usual occupation” of the first appellant in China is an occupation for which, in Australia, a “diploma” is required.

11                  It follows that to that point the requirements of sub-items 6104(a) and (b)(i) had been met. With regard to sub-item 6104(c), the Tribunal did not determine the meaning of the term “the Australian standards” against which the Tribunal, as “the relevant Australian authority”, had to assess the equivalence of the educational qualifications or work experience of the first appellant, as required by sub-items 6104(c)(i), (ii) or (iii). The Tribunal appeared to accept that for the purpose of sub-item 6104(c)(i), and the application before it, “the Australian standards” meant the diploma to which sub-item 6104(b)(i) referred.

12                  In a paragraph in its reasons that appears to conflate the alternative requirements of sub-item 6104(c), the Tribunal stated as follows:

“Given the findings of the Customs Brokers of Australia and the evidence and material before it, the Tribunal finds on balance that the Visa Applicant’s qualifications and experience meet the Australian standards or requirements for his ‘usual occupation’ as a ‘customs broker – supervisor’ that requires a skill level or qualification at Diploma level in Australia.”

13                  The “findings of the Customs Brokers of Australia” to which the Tribunal refers, appear to be the following statements made by the Customs Brokers Council of Australia (“Council”) in a letter to the second appellant:

“In considering the academic standing of [the first appellant] in relation to the qualifications acceptable to the National Customs Agents Licensing Advisory Committee for the granting of a customs brokers licence, it would appear that his general subjects are at least equivalent to the academic level that is generally required. In addition, the Diploma and considerable experience in a working position as a customs broker appear equivalent to that of an Australian licensed customs broker. However, because of the nature of the Australian context in which the technical expertise has to be applied it would be necessary for [the first appellant] to enrol in the customs Diploma Course in Victoria to gain cross-credits and Recognition of Prior Learning for those subjects which have been completed at a higher level should [the first appellant] wish to practice [sic] in Australia.

Although [the first appellant’s] actual skills may be of a higher order, to be able to put the working experience into the Australian context and due to the lack of knowledge and application of specific Australian legislation, a need would exist to complete the technical subjects nominated by the Kangan Institute, Victoria prior to attempting the National Examination (conducted by the CBCA) and applying for a customs brokers licence.”

14                  Mr Mack gave clear evidence that the first appellant had obtained a diploma that was equivalent to the diploma required in Australia for the usual occupation of the first appellant and it was not in issue that the first appellant had obtained that diploma more than three years before the application for a visa was made.

15                  The Tribunal accepted that evidence. Therefore, it may be concluded that in the paragraph set out above the Tribunal recorded that it was satisfied that the first appellant’s application met the requirements of sub-item 6104(c)(i).

16                  It was not in issue that the first appellant had been employed in his usual occupation at least three years before the date of the application and that in that period of three years he had “worked” continuously in that occupation. Therefore, although there was no finding thereon, the Tribunal was obliged to find that the first appellant met the requirements of sub-items 6104(e) and (f).

17                  The only question remaining was whether the first appellant satisfied the requirements of sub-item 6104(d).

18                  The words “any Australian occupational licence…”, as used in sub-item 6104(d), are to be read as a reference to a licence required in Australia to carry on the occupation that is the applicant’s usual occupation. In the application before the Tribunal the occupations of customs broker and customs agent were treated as one. It was accepted that the Customs Act 1901 (Cth) required a person carrying on such an occupation in Australia to hold an “agents licence”.

19                  Section 181(2) of the Customs Act states that the chief executive officer (“the CEO”) of the Australian Customs Service (“Customs”) may, by notice published in the Gazette, declare a place specified in the notice to be a place where an owner of goods shall not authorise a person to act as agent for the purpose of customs legislation unless that person is a customs agent at that place. There was no evidence before the Tribunal of any place or places that had been so declared by the CEO. Section 180(1) defines a “customs agent” as a person who is the holder of an “agents licence” to act as a customs agent “at a place” and further defines “agents licence” as a licence to act as a customs agent granted under s 183C of the Customs Act.

20                  Section 183C(1) states that the CEO may grant an agents licence. Section 180(2) provides that in respect of, inter alia, ss 183C and 183CC (other than s 183CC(5)) a reference to the CEO includes a reference to a Regional Director of Customs for a State or Territory. Section 183CC(1) sets out matters that preclude the grant of an agents licence if the CEO forms a relevant opinion thereon. Section 183CA provides for application to be made for an agents licence.

21                  Section 183CC reads as follows:

“183CC(1) Where an application is made, the CEO shall not grant an agents licence if, in his opinion:

(a) where the application is made by a natural person:

(i) the applicant is not a person of integrity;

(ii) the applicant is not qualified to be a customs agent; or

(iii) an employee of the applicant who would participate in the work of the applicant if he were a customs agent is not a person of integrity;

(b) where the application is made by a company:

(i) a director of the company who would participate in the work of the company if it were a customs agent is not a person of integrity;

(ii) an officer or employee of the company who would participate in the work of the company if it were a customs agent is not a person of integrity; or

(iii) the company is not a fit and proper company to hold an agents licence; or

(c) where the application is made by a partnership:

(i) a partner in the partnership is not a person of integrity; or

(ii) an employee of the partnership who would participate in the work of the partnership if it were a customs agent is not a person of integrity.

(2) For the purposes of subsection (1), an applicant shall be taken to be qualified to be a customs agent if, and only if:

(a) except where he has been exempted under subsection (3), he has completed a course of study or instruction approved under subsection (5); and

(b) he has acquired experience that, in the opinion of the CEO, fits himto be a customs agent.

(3) The CEO may, by writing signed by him, exempt an applicant from the requirements of paragraph (2)(a) where, having regard to the experience or training of the applicant, he considers that it is appropriate to do so.

(4) The CEO shall, in determining whether a person is a person of integrity for the purposes of subsection (1), have regard to:

(a) any conviction of the person for a prescribed offence committed within the 10 years immediately preceding the making of the application;

(b) whether the person is an undischarged bankrupt;

(c) any misleading statement made in the application by or in relation to the person; and

(d) where any statement by the person in the application was false – whether the person knew that the statement was false.

(4A) The CEO shall, in determining whether a company is a fit and proper company to hold an agents licence for the purposes of subparagraph (1)(b)(iii), have regard to:

(a) any conviction of the company for an offence against this Act committed within the 10 years immediately preceding the making of the application and at a time when a person who is a director, officer or shareholder of the company was a director, officer or shareholder of the company;

(b) any conviction of the company for an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by a fine of $5,000 or more, being an offence committed within the 10 years immediately preceding the making of the application and at a time when a person who is a director, officer or shareholder of the company was a director, officer or shareholder of the company;

(c) whether a receiver of the property, or part of the property, of the company has been appointed;

(ca) whether the company is under administration within the meaning of the Corporations Law;

(cb) whether the company has executed under part 5.3A of that Law a deed of company arrangement that has not yet terminated;

(d) whether the company has been placed under official management; and

(e) whether the company is being wound up.

(5) The CEO may, after obtaining and considering the advice of the Committee, approve, in writing, a course or courses of study or instruction that fits or fit himto be a customs agent.”

22                  There was no evidence before the Tribunal that any course or courses had been approved by the CEO under s 183CC(5).

23                  It is clear that sub-item 6104(d) requires the Minister to be satisfied that an applicant for a visa has qualifications and/or experience that meet the requirements specified by statute for the grant of a licence to carry on a relevant occupation in Australia. The sub-item does not condition the formation of the Minister’s satisfaction upon the grant of such a licence.

24                  For the first appellant to meet statutory requirements in respect of the qualifications and/or experience required for the grant of an agents licence, it would be necessary for the CEO, under s 183CC(3) of the Customs Act, to be satisfied that by reason of the level of experience or training already attained, it was appropriate to exempt the first appellant from the requirement that he complete a course of study approved by the CEO under s 183CC(5).

25                  The issue, therefore, the Tribunal had to address, exercising the powers of the Minister, was whether the CEO, after considering the experience or training of the first appellant, could exempt the first appellant from the requirement that he complete the course of study that the CEO had determined to be the qualifying requirement for the purpose of s 183CC(2)(a) of the Customs Act.

26                  The term “experience or training” is of broad ambit, appropriate for a determination whether a person is qualified to be a customs agent for the purpose of s 183CC(1)(a)(ii) of the Customs Act. (See: Estate Agents Board v Nakic [1983] 2 VR 570 at 577.)

27                  The Tribunal set out as follows Mr Mack’s description of the first appellant’s occupation, education and experience and Mr Mack’s opinion on whether the first appellant was qualified for the purpose of holding the “licence of customs agent” - as noted earlier, the Tribunal did not reject any part of Mr Mack’s evidence:

“[The first appellant] undertook (with considerable distinction) a five-year course for the Diploma of Business (Administration at the Hubei Economic Administration University from 1986 to 1991, specialising in his later years in International Trade and Customs. In his last two years of study and in the five and a half years following he worked as a customs broker, holding the position of senior licensed Customs Broker in two customs broking firms in China. In the latter position he described himself as ‘the superintendent in the Customs Broker section and in charge for this professional business’, suggesting a supervisory or managerial responsibility. His academic qualifications and his employment experience have been held, by the National Training Manager of the Customs Brokers Council of Australia, to be equivalent to that of a licensed customs broker. Two relevant industry personnel have attested to the same.

…

As [the first appellant’s] specialisation of customs agent/broker is international, it is covered by international law and procedures. To this extent, the course he undertook in China would cover identical content to an equivalent course in any Australian educational institution.”

…

In my view, [the first appellant] has both the qualifications and the experience required for the purpose of holding the Australian occupational licence of customs agent, as defined by the Customs Act 1901, and as required under Migration Regulations 6102.” [sic]

[emphasis added]

28                  Given that the first appellant satisfied the requirement of sub-item 6104(c)(i) in that he had held for more than three years a diploma at least equivalent to “the Australian standards” for the occupation of customs agent, there was a clear possibility that the CEO may conclude that the training of the first appellant and/or the experience the first appellant obtained as a licensed customs broker over a period of approximately five years and in carrying out supervisory duties in that occupation, qualified him to be a customs agent.

29                  Mr Mack speculated that the first appellant may undertake some study in Australia “to contextualise his knowledge and skills to the Australian environment, or to improve his English language skills” but he stated that such knowledge and skills were “not central to the core functions of the occupation, but constitute local familiarisation which could be undertaken in a short period of time (possibly one semester).”

30                  It was clear that Mr Mack, who referred to the relevant provisions of the Customs Act, was of the opinion that the CEO may determine that the first appellant qualified as a customs agent by reason of the degree of “experience or training” held by the first appellant, which included a diploma equivalent to the course of study approved by the CEO and a number of years carrying out the duties and responsibilities of a licensed customs agent in international trade. The further matters to which Mr Mack referred were steps the first appellant may consider undertaking to become better equipped in the market in which he would be offering his services as a licensed customs agent. Mr Mack was not saying that the first appellant did not have academic qualification equivalent to that prescribed under s 183CC(5) nor that the first appellant had to undertake any part of the study so prescribed to fit him to be a licensed customs agent.

31                  The reasons set out by the Tribunal for concluding that the first appellant did not satisfy sub-item 6104(d) are contained in the following paragraph:

“It therefore appears to the Tribunal that both the Council and Mr Mack are indicating that the Visa Applicant would not be entitled to a license [sic] as a ‘customs broker’ in Australia without more, for example, further study of at least ‘one semester’. Therefore it appears on balance that the Visa Applicant is unable to satisfy subclause 6104(d) of the Regulations without further study in Australia for his ‘usual occupation’ to satisfy the Australian licensing or registration requirements for that occupation.”

The Tribunal seems to have misunderstood the import of the evidence before it in respect of the operation of sub-item 6104(d) and s 183CC(3) of the Customs Act.

32                  Mr Mack said that the first appellant had “the qualifications and the experience required for the purpose of holding the Australian occupational licence of customs agent”. The Council said that the academic standing of the first appellant was “at least equivalent to the academic level that is generally required…” and that in addition “the Diploma and considerable experience in a working position as a customs broker appear equivalent to that of an Australian licensed customs broker”.

33                  Mr Mack’s opinion was expressed in respect of the requirements of s 183CC of the Customs Act. The remarks of the Council were made without referring to the requirements of the Customs Act in respect of qualification for the grant of an agents licence and, in particular, to the discretion of the CEO to grant a licence where the CEO was satisfied as to the experience or training of the applicant.

34                  Although the foregoing statements by the Council supported a conclusion that the first appellant may satisfy the CEO that the first appellant qualified for the grant of an agents licence, the further remarks by the Council that it would be “necessary for the [first appellant]to enrol in the customs Diploma course” to obtain “cross-credits” and “Recognition of Prior Learning” if the first appellant “wish[ed] to practice [sic] in Australia” may have reflected a misunderstanding by the Council that qualification for the grant of an agents licence under the Customs Act was restricted to enrolment in, and completion of, a course of study prescribed pursuant to the Customs Act, credit for, or recognition of, prior study by the first appellant to be granted by the relevant educational institution conducting the prescribed course. Section 183CC(3), to which the Council did not refer, provided an alternative means for an applicant for an agents licence to qualify for the grant of the licence.

35                  The reasons of the Tribunal, perhaps led there by the remarks of the Council, suggest that the Tribunal limited its consideration of the “qualifications or experience” required for the holding of a licence referred to in sub-item 6104(d), to qualifications obtained or recognised after enrolment in, and completion of, a course of study in Australia that would “entitle” the first appellant to a licence. In doing so the Tribunal overlooked the central question to be determined, namely whether the extent of the “experience or training” the first appellant had already obtained as a licensed customs agent may cause the CEO to exercise the discretion conferred by s 183CC(3) to take the first appellant to be a person qualified to be a customs agent for the purpose of s 183CC(2)(a) of the Customs Act.

36                  The Tribunal did not refer to s 183CC nor to the question whether the CEO may grant an agents licence to the first appellant by reason of the equivalent or higher academic standard he had achieved and/or the extent of his experience as a licensed customs agent. The exclusion from the reasons of the Tribunal of any analysis of the operation of s 183CC; the scope of the power of the CEO to grant a licence; or the relationship between sub-item 6104(d) and s 183CC, compels the conclusion that the Tribunal did not address the requirements of s 183CC and the further conclusion that the Tribunal misinterpreted sub-item 6104(d), or, alternatively, applied it incorrectly to the relevant facts found or accepted by the Tribunal. It follows that the Tribunal failed to carry out the function it was required to perform by the Act. (See: Dornan v Riordan (1990) 24 FCR 564.)

37                  That the Tribunal was not assisted at the hearing by detailed submissions on the interaction of s 183CC of the Customs Act and item 6104(d) did not remove the obligation placed on the Tribunal by the Act and Regulations to ascertain the relevant law and apply it correctly to the facts.

38                  The appeal must be upheld and the matter remitted to the Tribunal for determination in accordance with the Act.

Associate to Justice Merkel:

Dated: 21 December 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

CARR J:

39                  This is an appeal from a judgment of a Judge of this Court, given on 28 July 2000, dismissing the appellants’ application for an order of review of a decision of the Immigration Review Tribunal, made on 4 May 1999. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant to the first appellant what is now referred to as a Skilled-Australian Linked (Migrant) (Class AJ) Sub-class 105 visa (“the Class AJ visa”).

factual AND PROCEDURAL background

40                  The first appellant is a citizen of the People’s Republic of China. His brother, the second appellant (an Australian citizen), is the first appellant’s sponsor for migration to Australia.

41                  The first appellant applied for the Class AJ visa on 13 June 1995. The application was based on the first appellant being a “customs broker-supervisor”. The application was refused on 4 October 1995. On 4 March 1996 the primary decision was affirmed by the Migration Internal Review Office. On 2 September 1997 the Tribunal affirmed the decision to refuse the Class AJ visa. That decision was set aside by consent in this Court by North J on 7 July 1998. On 4 May 1999 a differently-constituted Immigration Review Tribunal affirmed the decision to refuse the Class AJ visa. On 31 May 1999 the appellants applied to this Court to review the Tribunal’s decision of 4 May 1999.

the legislative framework

42                  The legislative framework, comprising various provisions of the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (Cth) (“the Regulations”) relevant to this matter, is helpfully set out in paragraphs 6 to 15 of the learned primary judge’s reasons. They prescribe for the grant of visas of the classes which include the Class AJ visa, the application of what is known as “the points test”. The short issue in this appeal is whether his Honour erred in law in concluding that the Tribunal had correctly applied the points test to the first appellant’s visa application.

43                  Whether the Tribunal (and the primary judge) erred in law depends in part upon whether the Tribunal and the primary judge misconstrued one of the sub-paragraphs which relevantly define the first appellant’s “usual occupation”. That sub-paragraph was sub-paragraph 6104(d) of Schedule 6 of the Regulations. For the purposes of this appeal, I think that it is sufficient to set out the relevant parts of 6104(b), (c) and (d). They are as follows:

“The applicant’s usual occupation:

(b) is an occupation:

(i) for which, in Australia, a diploma or associate diploma is required; or

(ii) . . .

(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:

(i) obtained a diploma or associate diploma assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or

(ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or

(iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and

(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational or licence or registration (or both); and

. . .” [emphasis added]

44                  I think that it is useful to appreciate that the above provisions are basically concerned with three matters, viz:

·          whether, for the occupation which the applicant puts forward as his or her “usual occupation”, a diploma or associate diploma is required in Australia;

·          whether, at least three years before making his or her application, the applicant had obtained a diploma or associate diploma which is assessed as equivalent “… to the Australian standards for that occupation” or has work experience or a combination of study or training and work experience assessed as being so equivalent; and

·          whether the applicant has qualifications or experience (or both) required for the purpose of holding any relevant occupational licence or registration.

45                  It is the third of these matters or, possibly, the relationship (if any) between the second and the third of these matters, which is at the centre of this appeal. I now turn to the legislative provisions relevant to the occupational licence which the first appellant would require before he could act as a customs agent in Australia.

46                  The licensing of customs agents is provided for by Part XI, Division 3 of the Customs Act 1901 (Cth), which comprises ss 183B to 183CP. Section 183C provides that, subject to Part XI, the Chief Executive Officer (“the CEO”) may grant a person a licence to act as a customs agent at a place or places specified in the licence. At the time when the Tribunal made its decision, references in the Customs Act to the office which is now the CEO were expressed as references to the Comptroller of Customs, but otherwise there have been no relevant changes to these statutory provisions. Section 183CA relevantly provides that an application for an agent’s licence shall be in writing and shall set out particulars of the matters that the CEO is required to consider for the purposes of sub-paragraph 183CC(1)(a)(ii). [Section 183CC(1)(a)(ii) relevantly provides that the CEO shall not grant an agent’s licence if, in his opinion the applicant is not “qualified to be a customs agent”.]

47                  Section 183CB(1) provides that where the CEO receives an application, he shall refer it to the National Customs Brokers Licensing Advisory Committee (“the Committee”) for a report relating to the application and shall not grant, or refuse to grant, an agent’s licence to the applicant unless he has received and considered the report. Section 183CB(2) requires the Committee, when an application has been referred to it under s 183CB(1), to investigate the matters which the CEO is required to consider in relation to the application and, after its investigation, to report to the CEO on those matters.

48                  Sections 183CC(2), (3) and (5) are in the following terms:

“(2) For the purposes of subsection (1), an applicant shall be taken to be qualified to be a customs agent if, and only if:

(a) except where he has been exempted under subsection (3), he has completed a course of study or instruction approved under subsection (5); and

(b) he has acquired experience that, in the opinion of the CEO, fits him to be a customs agent.

(3) The CEO may, by writing signed by him, exempt an applicant from the requirements of paragraph (2)(a) where, having regard to the experience or training of the applicant, he considers that it is appropriate to do so.

. . .

(5) The CEO may, after obtaining and considering the advice of the Committee, approve, in writing, a course or courses of study or instruction that fits or fit him to be a customs agent.”

the reasoning of the Tribunal

49                  The first issue which the Tribunal had to decide in applying this part of the points test was the first appellant’s “usual occupation”. The Tribunal found that the appellant’s usual occupation was that of a “customs broker-supervisor”. It then found:

“This occupation appears to usually require a formal qualification of at least a Diploma level in Australia (see TAFE requirements, Mr Mack’s letter dated 18 November 1998 and the Customs Brokers of Australia letter dated 9 July 1997).”

50                  This can be seen as a finding in terms of sub-clause 6104(b)(i). The Tribunal’s next function was to apply sub-clause 6104(c) which has three alternatives. These three provisions are concerned with assessment of whether the overseas diploma or professional study or trade training or work experience or a combination of academic or professional study or trade training and work experience are equivalent to the Australian standards for the occupation.

51                  The reference to the “relevant Australian authority” in each of these three sub-sub-clauses is a term defined by Regulation 2.26. Regulation 2.26 defines relevant Australian authority as meaning either the National Office of Overseas Skills Recognition within Education (“NOOSR”), or any body authorised by NOOSR to assess educational qualifications or work experience, or the Department of Employment, Workplace Relations and Small Business, or, if the circumstances of a case preclude any such authority from making an assessment, the Minister.

52                  It was, so we were told, common ground between the parties that the circumstances of this case precluded an authority referred to in Regulation 2.26 from making the assessment required for the application of sub-paragraph 6104(c)(i), (ii) and (iii). Accordingly the Tribunal became, pursuant to Regulation 2.26, “the relevant Australian authority” to assess the first appellant’s educational qualifications and work experience. It proceeded to do so. For that purpose, it turned to two pieces of evidence. The first was a letter from an expert, Mr Dick Mack. It is apparent from the documents that Mr Mack prefers to use the diminutive of his first name. Mr Mack is the Managing Director of a company called SkillsLink Pty Ltd which is a training consultancy. He was formerly Head of the Curriculum Development Unit in the School of TAFE at the Royal Melbourne Institute of Technology, in which capacity he directly assisted in the re-design of the para-professional certificate in Business Studies (Customs) which he described as being the forerunner of the current course for the occupation of licensed custom broker.

53                  The other piece of evidence to which the Tribunal had regard when making its assessment in its capacity of being “the relevant Australian authority” was a letter dated 9 July 1997 from the Customs Brokers Council of Australia to the second appellant. I shall refer to that letter as “the CBCA letter”.

54                  The Tribunal found:

“… on balance that [the first appellant’s] qualifications and experience meet the Australian standards or requirements for his “usual occupation” as a “customs broker-supervisor” that requires a skill level or qualification at Diploma level in Australia.”

55                  From the language which the Tribunal used in that finding I infer that it was addressing the requirements of sub-paragraph 6104(b) and (c) and was confirming its satisfaction, on the facts, that:

·          the first appellant’s usual occupation was one for which, in Australia, a diploma was required [sub-paragraph 6104(b)(i)]; and

·          at least three years before the first appellant made his application, he had obtained a diploma assessed to be equivalent to the Australian standards for that occupation and had completed work experience assessed as being equivalent to such standards [6104(c)(i) and (ii).

56                  It then became necessary for the Tribunal to consider whether the first appellant satisfied sub-paragraph (d), which is set out in bold type above. In short, did the first appellant have qualifications or experience (or both) required for the purpose of holding a licence to act as a customs agent?

57                  The CBCA letter, omitting formal parts, read as follows:

“In response to your inquiry about equivalence of training for customs brokers in Australia, the Customs Brokers Council of Australia Inc. (“CBCA”) has read Lixin Chen’s resume and academic qualifications and provides the following comments.

In considering the academic standing of Lixin Chen in relation to the qualifications acceptable to the National customs Agents Licensing Advisory Committee for the granting of a customs brokers licence, it would appear that his general subjects are at least equivalent to the academic level that is generally required. In addition, the Diploma and considerable experience in a working position as a customs broker appear equivalent to that of an Australian licensed customs broker. However, because of the nature of the Australian context in which the technical expertise has to be applied it would be necessary for Lixin to enrol in the customs Diploma Course in Victoria to gain cross-credits and Recognition of Prior Learning for those subjects which have been completed at a higher level should Lixin wish to practice in Australia.

Although Lixin’s actual skills may be of a higher order, to be able to put the working experience into the Australian context and due to the lack of knowledge and application of specific Australian legislation, a need would exist to complete the technical subjects nominated by the Kangan Institute, Victoria prior to attempting the National Examination (conducted by the CBCA) and applying for a customs broker licence.

It may be possible for Lixin to find employment in the industry at a level that equates the Customs Service Agent award level whilst studying subjects such as language skills. The knowledge of importing requirements and business practices learned in China should be of benefit to Lixin in gaining employment.”

58                  In his letter dated 18 November 1998, Mr Mack reviewed the first appellant’s qualifications and experience and then said this:

“For Mr Chen to qualify for the Australian customs agent licence, he should be able to satisfy most of the educational requirements of the approved course through the Recognition of Prior Learning (RPL) process provided by Kangan-Batman Institute of TAFE. Some study may be required to contextualise his knowledge and skills to the Australian environment, or to improve his English language skills (described in his CV as “Basic to Functional level”) to the required standard. These knowledge and skills are not central to the core functions of the occupation, but constitute local familiarisation which could be undertaken in a short period of time (possibly one semester).”

59                  The Tribunal’s conclusion in relation to the application of sub-paragraph 6104(d) to the first appellant’s case was in the following terms:

“It therefore appears to the Tribunal that both the Council and Mr Mack are indicating that the Visa Applicant would not be entitled to a license as a “customs broker” in Australia without more, for example, further study of at least “one semester”. Therefore it appears on balance that the Visa Applicant is unable to satisfy sub-clause 6104(d) of the Regulations without further study in Australia for his “usual occupation” to satisfy the Australian licensing or registration requirements for that occupation.”

60                  The Tribunal then proceeded to allocate to the applicant 30 points under clause 6106 rather than the 50 points which he had sought under clause 6104. That difference meant that the first appellant failed to reach the points score pass mark applicable at the time of the earlier assessment and that his application could not be further processed.

the decision at first instance

61                  The primary judge reviewed the competing contentions of the appellants and the respondent. The appellants contended that the Tribunal had erred by reading sub-paragraph 6104(d) too narrowly and as if the words “grant of” were substituted for the words “purpose of holding”. The respondent contended that as further study was required on the first appellant’s part before he could undertake his usual occupation in Australia, the Tribunal was entitled not to be satisfied that he had the necessary qualifications required for licensing or registration.

62                  His Honour’s reasoning was in the following terms:

“26. Sub-clause 6104(d) contains a requirement that an applicant for a visa has:

(a) qualifications which are those required for the purpose of holding an Australian licence; or

(b) qualifications which are those required for the purpose of obtaining any Australian registration; or

(c) experience of a kind required for the purpose of holding such licence or obtaining such registration; or

(d) qualifications and experience of a kind required for the purpose of holding such licence or obtaining such registration.

27. In my view, this means that the necessary qualifications or experience or both required for licensing and/or registration in Australia must be possessed by an applicant to satisfy sub-clause 6104(d). The language of sub-clause 6014(d) (sic) indicates that a test is being provided which is immediate and current. I refer in particular to the words “has” and “required”. It will be a question of fact for the IRT to determine in each case whether an applicant possesses such qualifications and/or experience. In this matter, the IRT had evidence before it upon which it formed the view that the first applicant did not possess such qualifications and/or experience which were necessary for licensing or registration in Australia and that further study would be required by the first applicant.

28. The IRT was entitled to rely on that evidence to reach the conclusion it arrived at. In so doing it committed no error of law. In my view, the application should therefore be dismissed with costs.”

the appeal and my reasoning

63                  There were five grounds of appeal in the appellants’ amended notice of appeal as that document stood at the beginning of the hearing of the appeal. Ground 5 was abandoned. Grounds 1 to 4 can be summarised as follows. Ground 1 was that the primary judge erred in construing sub-clause 6104(d) as requiring qualifications or experience that was “immediate and current”. Grounds 2 and 3 involve the proposition that sub-clause 6104(d) could be satisfied by an applicant who might have to undertake further study in the nature of familiarisation before being granted an Australian occupational licence or registration. Ground 4 was to the effect that the further study which the Tribunal had found that the first appellant would have to undertake, would not have led to the attainment of either a qualification or experience, and was thus irrelevant to the satisfaction of sub-paragraph 6104(d).

64                  I propose to deal quite briefly with Ground 1 because it became almost peripheral to the appeal as argued.

65                  I agree, respectfully, with the primary judge’s reasoning that the qualifications or experience required must be those held by the person applying for the visa at the time of such application. That is, the qualifications or experience must be, as his Honour put it, “immediate and current”. In addition to his Honour’s reasons, which were largely based upon the structure of the sub-paragraph and the tense of the verbs used in it, I would refer to s 65 of the Act which requires a Minister to grant a visa if satisfied that, among other things, the relevant criteria “have been satisfied”, and to refuse to grant the visa if not so satisfied.

66                  Regulation 105.22 lists criteria to be satisfied at the time of the decision. Sub-regulation 105.222 requires the applicant for a Class AJ visa to have the qualifying score when assessed in relation to that visa. In my view, if an applicant does not possess the requisite qualifications or experience at the time of such assessment these provisions require his application for a visa to be rejected.

67                  But, in my view, an applicant for a Class AJ visa does not have actually to hold the occupational licence or registration. Sub-paragraph 6014(d) does not say that. As I see it, the Tribunal is required to make an assessment, on the available evidence, about whether the visa applicant’s qualifications or experience (or both) would entitle him to a licence or to registration. I do not think that Ground 1 has been made out.

68                  Grounds 2, 3 and 4 can conveniently be considered together. They contain within them what became known as the appellants’ “second point”. The appellants’ second point was that the Tribunal had erred in law by finding that the further study which the first appellant had to undertake would not have led to the attainment of either “a qualification” or “experience” and was therefore irrelevant to the satisfaction of the requirements of sub-paragraph 6104(d).

69                  It was common ground that this point had not been raised before the primary judge. The respondent contended that appellants would require leave before they could rely upon Ground 4 and made what the respondent’s counsel conceded in oral argument to be a formal objection to leave being granted.

70                  I doubt whether leave is required. But if it is, I would grant leave to the appellant to raise this point for the following reasons. First, the respondent did not contend that had the point been raised at first instance he would have met it by calling evidence or might have conducted the case differently. Secondly, all the facts have been established beyond controversy, the point is one of legal construction and it is both expedient and in the interests of justice to entertain it: Jones v Minister for Immigration (1995) 63 FCR 32. Thirdly, in terms of this Court’s discretion, I think that our discretion should be exercised in favour of allowing the ground to be raised. As the appellants submitted, if the respondent is wrong in the construction which he espouses, he will continue wrongly to interpret and apply the law, with consequences beyond those of the instant case. There is a public interest in having this short point of construction resolved. I now turn to that point.

71                  The appellants submitted that the word “qualification” in sub-paragraph 6104(d) was used in its narrow sense as meaning qualification in the nature of a degree, diploma, fellowship, or membership granted by some recognised body.

72                  The appellants contended that the combination of “qualification” and “experience” in sub-paragraph 6104(d) did “… not seek to encompass the entirety of matters that may be required before a licence or registration is granted.” There might, so it was put, be other matters beyond qualifications and experience that must be considered by the relevant authority before it granted the licence or approves registration. I interpolate here to say that I accept that proposition, but the sub-paragraph still requires the applicant to have the qualifications or experience (or both) required for the purpose of holding the relevant licence or registration.

73                  Then it was said to follow from the proposition referred to immediately above that sub-paragraph 6104(d) was not “talking about an immediate right or entitlement to be licensed”. It was said to travel no further than imposing a requirement that the applicant has the required qualification or the required experience. In their written submissions the appellants conceded that the first appellant had not completed a course of study or instruction approved in accordance with s 183CC(5) of the Customs Act, but contended that such qualification was not “required for the purpose of holding” the licence, because it was open for the appellant to obtain a licence without that or any other qualification. The appellant submitted that the point of the further study was to obtain a licence without the need for, and in place of, a qualification.

74                  The appellants conceded that the first appellant could not have obtained a licence at the time when he applied for a visa and that there were a number of impediments in his way. However, so it was put, it was not necessary that he obtain a “qualification”, nor did he lack the necessary experience. At the conclusion of the further study, so the appellants contended, the first appellant would not have completed a course of study approved under s 183CC(5), nor would he have obtained a “qualification”.

75                  I do not think that there is any need, in relation to Ground 4, to consider the matter of experience. It is sufficient, in my view, for the purposes of dealing with this ground to concentrate on the argument based upon whether the further requirements identified by the Tribunal amounted to a requirement to obtain further qualifications.

76                  In my view, neither the Tribunal nor the primary judge erred in law. It was open to the Tribunal on the evidence before it to conclude that the appellant had to obtain a further qualification for the purpose of holding the relevant licence. The evidence was that he had to complete certain technical subjects nominated by the Kangan Institute in Victoria and to attempt (and presumably pass) the national examination conducted by the Customs Brokers Council of Australia. As I understand the appellant’s point, it is that passing such examinations did not amount to the obtaining of a qualification in the narrow sense discussed in R v Refshauge (1976) 11 ALR 471.

77                  In Refshauge the respondent had declined to recognise the prosecutor as a specialist surgeon because he did not hold any higher degree in surgery and was not a Fellow of any of the Colleges of Surgery. It is quite clear, in my view, that the High Court when it rejected the wider meaning of the word “qualifications” and referred to degrees, diplomas and the like was not concerned with the distinction between passing particular examinations and qualifying for particular diplomas or certificates. It was concerned with the difference between what it termed “mere academic qualifications” and the wider sense of the word “qualification”, i.e. suitability for a profession.

78                  In my view, there was ample evidence for the Tribunal to find that the requirement of further study (a semester on Mr Mack’s evidence) or two sets of examinations (on the Council’s evidence) meant that the first appellant did not have the qualifications required for the purpose of holding a Customs Brokers licence, or, more accurately, a Customs Agents licence.

79                  I acknowledge that the word “qualifications” may vary in meaning according to the particular statutory context. I regard the statutory context of Refshauge as being sufficiently similar to the present matter as to warrant direct application of what the High Court held, but I would extend the meaning of an academic qualification to include the passing of particular examinations.

80                  The Tribunal’s finding amounts, in my opinion, to a finding that the CEO would, after obtaining and considering the advice of the Committee, be likely, on the balance of probabilities, to approve [under s 183CC(5) of the Customs Act] a course or courses of study or instruction of the type identified by the Customs Brokers Council of Australia as being one that, when added to his Chinese diploma, would fit him to be a customs agent. In those circumstances, the first appellant would not be taken to be qualified to be a customs agent, in terms of s 183CC(2) until he had completed such a course of study or instruction – see s 183CC(2)(a).

81                  If I am wrong in that analysis then I think that the particular statutory context would support the wider concept of “qualifications” advanced by the respondent. As the respondent pointed out, there is no specific definition of “qualifications” in either the Act or the Migration Regulations. However, s 93(1) of the Act provides that the Minister shall make an assessment by giving a person the prescribed number of points for each “prescribed qualification” that is satisfied. Regulation 2.26(1)(a) provides that for the purposes of s 93(1) “each qualification specified in column 2” of items in Parts 1-7 of Schedule 6 is prescribed as a “qualification” in relation to the grant of a Sub-Class 105 Skilled Australian Linked visa. Every item in Schedule 6 is thus generally referred to as a “qualification”. Those items relate to employment, age, language, relationship, citizenship, settlement of sponsor, and location of sponsor. Each of the headings to the various parts of Schedule 6 is also specifically described as a “qualification”. Another indication that the concept of “qualification” is not to be used in a narrow sense is that the definitions of “associate diploma”, “certificate or advanced certificate”, and “degree” in Regulation 2.26(5) all prescribe, amongst other things, a formal education qualification. As the respondent submitted (and I agree), the addition of the words “formal education”, would have been unnecessary if “qualification” were used in the narrow sense contended for by the appellants. See also Estate Agents Board v Nakic [1983] 2 VR 570 at 577 (Full Court).

82                  On such a wider construction, the further study which the first appellant would have to undergo, would quite clearly amount to a “qualification”. In my view Grounds 2, 3 and 4 of the appeal have not been made out. As I have mentioned, the appellants abandoned Ground 5.

ground 6

83                  I think that it is fair to say that this ground did not emerge until counsel for the appellants made his oral submissions during the hearing of the appeal. The ground itself became the subject of an application further to amend the grounds of appeal only after counsel for the respondent raised what I consider to be a most proper objection. The additional proposed ground read as follows:

“6. The Tribunal erred by holding that the first appellant did not hold the qualifications required for the purposes of holding a licence without addressing the question of whether by reason of his experience or training he could obtain a licence by reference to s 183CC(3) of the Customs Act.”

84                  We reserved the question of whether leave should be granted further to amend the notice of appeal and made orders enabling the parties to file and serve further written submissions on that point and, if leave were granted, the substantive point thereby raised. The substantive point, by then, had become what was described as “the appellants’ first point”.

85                  Generally for the reasons given by Merkel J, I would join in granting the appellants leave further to amend their notice of appeal by adding Ground 6, which I now proceed to consider. There were three bases upon which the Tribunal might have found that the first appellant had the qualifications or experience (or both) required for the purpose of holding a customs agents licence. The first might have been that it was satisfied that the CEO would exempt the first appellant, under s 183CC(3), from the requirements of s 183(2)(a) of the Customs Act, having regard to his experience or training. The second might have been that it was satisfied that the applicant had gone through the processes required by s 183CC before applying for the Class AJ visa and had completed a course of study or instruction approved under s 183CC(5). The third basis might have been that the Tribunal was satisfied that the particular approved course or courses of study which the first appellant was obliged to complete did not amount to obtaining qualifications within the meaning of sub-paragraph 6104(d).

86                  The appellants were legally represented before the Tribunal. There was no suggestion to the Tribunal that the second of the above alternatives applied i.e. there was no evidence before the Tribunal to the effect that the first appellant had already invoked the processes of s 183CC and completed an approved course of study. That left the first and third alternatives. The appellants’ solicitor did not expressly put their case on the basis that the CEO would be likely to exempt the first appellant from completing an approved course of study or instruction, having regard to the experience or training of the first appellant.

87                  In my view, if the appellants had wished the Tribunal to find whether or not the first appellant was likely to obtain an exemption from the CEO, his solicitor should have raised this as a question of fact to be decided. The matter of whether the CEO would exempt the first appellant was not a clear statutory precondition for the application of sub-clause 6104(d) in conjunction with s 183CC of the Customs Act in the sense referred to, for example, in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195. As I have mentioned, there were three alternative bases upon which sub-clause 6104(d) might have been satisfied. Nor was this a threshold issue involving the construction of an act – see Ferriday v Repatriation Commission (1996) 42 ALD 526 at 532. The complaint here is that the Tribunal failed to make a finding of fact on the evidence before it.

88                  As Lee J said in Ferriday:

“… failure of a tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to “appeal” on that point, will mean that no question of law can be relied upon to ground the appeal. (See: FCT v Raptis (1989) 19 ALD 726; 89 ATC 4,994 at 4,999; Department of Social Security v Cooper (1990) 21 ALD 155; 26 FCR 13; FCT v Perkins (1993) 93 ATC 4,524 at 4,526.”

89                  In Raptis, Gummow J, having first observed that that case had been put differently on appeal than it had before the Tribual said (at 728):

“There must be some difficulty in such circumstances in finding as “error of law” in the failure in the Tribunal to make a finding first urged in this Court.”

90                  That was one of the bases in Raptis upon which his Honour declined to find any error of law. In my opinion the same reasoning applies in this appeal. Gummow J’s second reason was that if the submission were otherwise open, it was met by the Tribunal’s acceptance, in that matter, of the taxpayer’s evidence that the relevant monies were handed to him in other than a personal capacity.

91                  Likewise, in this case the Tribunal accepted the appellants’ own evidence concerning the further studies which the first appellant was likely to have to complete. The requirement of having to complete further studies was quite inconsistent, in my view, with the possibility of an exemption under s 183CC(3). Those two alternatives are expressed in mutually inconsistent terms.

92                  In any event, a survey of the materials before the Tribunal shows that the question whether the first appellant had the experience or training which entitled him to be granted a customs agents licence without completing an approved course of study or instruction was fairly before the Tribunal, and its findings on the evidence include a finding that the first appellant would not be exempted from further studies.

93                  In his submission dated 9 July 1997 to the Tribunal, the second appellant contended that his brother’s qualifications and work experience had been assessed by the Customs Brokers Council of Australia as being those required for the purpose of holding the relevant occupational licence of a licensed customs broker or agent (see AB 58). It is not to the point, in my view, that the second appellant may have been overstating what was contained in the CBCA letter.

94                  The appellants’ solicitors forwarded Mr Mack’s written opinion under cover of their letter dated 21 January 1999 to the Tribunal. In that opinion Mr Mack referred to various provisions of the Customs Act including this reference [AB 69]:

“S.183CC.(3) provides for the exemption from the requirement of 2(a) above “where, having regard to the experience or training of the applicant, [the Comptroller] considers that it is appropriate to do so.”

95                  Later in his opinion Mr Mack said this:

“In my view, Mr Chen has both the qualifications and the experience required for the purpose of holding the Australian occupational licence of customs agent, as defined by the Customs Act 1901, and as required under the Migration Regulations 6102.”

96                  He then went on to make the observation about the further knowledge and skills required, which I have set out at paragraph 19 above.

97                  In addressing the Tribunal, the appellants’ solicitor made no claim, in terms, that the first appellant would be entitled to an exemption under s 183CC(3). But he might well have implicitly been making such a submission (i.e. a submission that there would be no requirement for the first appellant to complete a further approved course of study) when he said this (at AB 86):

“… the real question on this licensed customs broker issue is, like other licensed occupations, what are the probabilities that he’d be licensed once he got here? We don’t have the standard letter like from the Australian Nurses Council that has a mandatory three months bedding-in period and of course they won’t recognise you for licensing until you’ve done that three months. We haven’t got that from the Australian Customs Council. They’re effectively saying in their letter of 9 June (sic), “look, we’d licence him if Kangan Batman Institute says he’s up to scratch in terms of his professional qualifications”.

You’ve heard evidence from Mr Mack that he has telephoned Kangan Batman Institute and as a result of that conversation it appears probable that they would recognise him. So our submission is it’s a question of probabilities and that the tribunal ought to come down in favour of the applicant, particularly in view of the other evidence that he’s clearly working at a para-professional level in a number of related occupations, like an administrative officer. No-one is saying that occupation doesn’t exist and clearly when you’re working at that management level you’d have to be doing those sorts of jobs. We’re not trying to get up on a narrow technicality, this man is working at a para-professional level, it seems abundantly clear from all the evidence. That’s the only submission I’d make.”

98                  The Tribunal had Mr Mack’s evidence before it and the more qualified evidence in the form of the CBCA letter. It chose (see the passage from its reasoning set out at paragraph 20 above) to find, as a matter of fact, that the first appellant would not be entitled to a licence in Australia “without more”. It found, again as a fact, that the first appellant would be required to complete further study. That finding was completely inconsistent with any possibility of exemption, the two alternatives being mutually exclusive.

99                  I do not think that Ground 6 has been made out. First, because no error of law was involved in not making a finding about exemption (assuming that was the case). Alternatively, because the issue of whether the first appellant would be granted an exemption was implicitly before the Tribunal in the form of evidence and a submission to the effect that the first appellant would not be required to complete any further approved course or courses and the Tribunal found differently.

CONCLUSION

100               For the foregoing reasons I would dismiss the appeal.

Associate:

Dated: 21 December 2000

REASONS FOR JUDGMENT

MERKEL J:

101               I have had the advantage of reading in draft the reasons for judgment of Carr J. I respectfully adopt, and do not repeat, his Honour’s analysis of the factual background, the legislative framework and the issues arising on the appeal. Generally, for the reasons given by Carr J, I am also of the view that the appellants have failed to make out any of the five grounds set out in the amended notice of appeal.

102               That leaves for consideration the additional proposed ground six which is as follows:

“The Tribunal erred by holding that the first Appellant did not hold the qualifications required for the purpose of holding a licence without addressing the question of whether, by reason of his experience or training, he could obtain a licence by reference to s 183CC(3) of the Customs Act 1901 (Cth).”

103               At the outset it is appropriate to determine whether leave should be granted to the appellants to rely upon the additional ground. The respondent (“the Minister”), who opposes the grant of leave, points out that although the appellants have at all times been legally represented, the issue raised in ground six was only formulated in the appellant’s reply submissions at the conclusion of the appeal. In particular, the Minister contends that to allow the amendment in such circumstances would not be expedient, and would be contrary to the public interest in the efficient administration of justice. The Minister also contends that the issue raised by the amendment raises no issue of principle and is without merit.

104               The appellants contend that leave to amend ought to be granted as the issue raised by ground six involves a question of law based upon the evidence and material before Immigration Review Tribunal (“the Tribunal”) with the consequence that, even had the issue been raised before the primary Judge, evidence could not have been adduced by the Minister which might have prevented the point from succeeding.

105               The submissions of the Minister are supported by recent observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6]-[8] where their Honours commented upon the reluctance of an appellate Court to allow a fresh point to be argued and determined on appeal in circumstances where that point ought to have been raised before the primary Judge. It is beyond dispute that it is fundamental to the due administration of justice that the substantial issues between parties are ordinarily settled at the trial: see Coulton v Holcombe (1986) 162 CLR 1 at 7. Ultimately, it is necessary for an appellate court in each case to determine whether it is expedient in the interests of justice to permit a new issue to be argued and decided on appeal: see H at [6] and the authorities there cited.

106               In the present case I have concluded that it is expedient in the interests of justice that ground six be permitted to be argued and decided on the appeal. My reasons for that conclusion are:

·        the issue raises a question of law and the Minister has not suggested that had the issue been raised before the primary judge any evidence could have been given which might have affected the outcome of the proceeding;

·        the Minister has suffered no prejudice, other than prejudice which may be compensated for by an appropriate costs order, as a result of the issue only being formulated at the conclusion of the appeal;

·        as I later explain, the issue was raised before the Tribunal implicitly, if not explicitly, albeit in the most general way;

·        the decision sought to be impugned has significant personal consequences for each of the appellants;

·        any tardiness of the appellants and their legal representatives in formulating the issue can be dealt with by appropriate costs orders (irrespective of whether the appellants succeed on the point) rather than by denying them the opportunity of having the issue argued and determined on the appeal;

·        the grant of leave will not significantly add to the time or expense involved in the hearing and determination of the appeal.

107               I turn now to consider the added ground. The Tribunal concluded that the first appellant had satisfied the requirements of reg 6104(c) of the Migration Regulations in respect of his usual occupation as a “custom’s broker – supervisor”. Ground six relates to whether the first appellant had satisfied reg 6104(d) which requires that the applicant’s usual occupation:

“(d) is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational or licence or registration (or both); and”

108               In considering whether the first appellant satisfied reg 6104(d) the Tribunal was required to determine whether the first appellant “has qualifications or experience (or both)” required “for the purpose of holding any Australian occupational licence or registration (or both)” for his usual occupation as a customs broker – supervisor. In the context of reg 6104(d) the term “qualifications or experience (or both)” is not to be given a narrow or confined meaning: cf Estate Agents Board v Nakic [1983] 2 VR 570 at 577.

109               It is significant that reg 6104(d) is concerned with an applicant’s qualifications and experience rather than with whether the applicant holds the relevant occupational licence or registration which, of course, may involve requirements additional to the qualifications and experience of the applicant.

110               Where the qualifications or experience required for the holding of a particular licence or registration depend upon an opinion to be formed by the relevant regulatory authority or person, reg 6104(d) is concerned with whether the person has the qualifications or experience that would warrant the required opinion. Thus, in order for the Tribunal to determine whether the requirements of reg 6104(d) are met in such a case, it must determine whether the applicant has the qualifications or experience required for the exercise in his or her favour of the requisite opinion by the relevant regulatory authority or person. It is not necessary for the regulatory authority or person to have been requested to form, or to have formed, the requisite opinion.

111               In the present matter the qualifications and experience required by the first appellant for the purpose of holding a licence to act as a customs agent, being the relevant Australian occupational licence or registration, are set out in s 183CC(2), (3) and (5) of the Customs Act 1901 (Cth):

“(2) For the purposes of subsection (1), an applicant shall be taken to be qualified to be a customs agent if, and only if:

(a) except where he has been exempted under subsection (3), he has completed a course of study or instruction approved under subsection (5); and

(b) he has acquired experience that, in the opinion of the CEO, fits him to be a customs agent.

(3) The CEO may, by writing signed by him, exempt an applicant from the requirements of paragraph (2)(a) where, having regard to the experience or training of the applicant, he considers that it is appropriate to do so.

…

(5) The CEO may, after obtaining and considering the advice of the Committee, approve, in writing, a course or courses of study or instruction that fits or fit him to be a customs agent.”

112               The qualifications and experience required to be held by the first appellant for the purpose of holding a licence to act as a customs agent were that he has completed the approved course of study or instruction and has acquired experience that fitted him to be a customs agent (s 183CC(2)(a) and (b)) or had experience or training which were such that it was appropriate that he be exempted from the requirement of completing an approved course of study or instruction and has acquired experience that fitted him to be a customs agent (s 183CC(3) and (2)(b)).

113               The appellants did not contend that the first appellant had completed an approved course of study or instruction. Accordingly, the provisions of s 183CC(2)(a) were not applicable to his case. Thus, the only basis upon which the first appellant could obtain a favourable decision under reg 6104(d) was if his experience and training were such as to warrant him being exempted from the requirement to have completed an approved course of study or instruction.

114               The review conducted by the Tribunal (as with the Refugee Review Tribunal) is, in substance, inquisitorial with the consequence that the Tribunal is “under a duty to arrive at the correct or preferable decision in the case before it according to the material before it”: see Estate Agents Board v Nakic [1983] 2 VR 570 at 425 per Brennan J. In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. Unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15] and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293. In arriving at its decision, an inquisitorial tribunal, such as the Tribunal, can be guided by the issues the parties choose to put before it and is to have regard to the case so put: see Grant v Repatriation Commission (1999) 57 ALD 1 at 5 to 6 and Brew v Repatriation Commission (1999) 94 FCR 80 at 84. In some circumstances a party who declines to raise an issue may have some difficulty in contending that an error in law was made as a result of a failure by the Tribunal to deal with that issue. However that difficulty does not, as such, preclude review of a decision of the Tribunal (or the Refugee Review Tribunal) as an inquisitorial Tribunal on the grounds set out in s 476(1) of the Migration Act 1958 (Cth): see for example Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 at [103] and [113].

115               Ground six requires consideration of whether the material or evidence raised an issue under s 183CC(3). The letter of the expert witness called by the appellants, Mr Dick Mack, referred to the requirements for a customs agent’s licence set out in s 183CC, including the exemption provided for in s 183CC(3), and stated that in his view the first appellant had “both the qualifications and the experience required for the purpose of holding the Australian occupational licence of customs agent, as defined by the Customs Act 1901, and as required under Migration Regulations 6102”. Although the reference was to reg 6102, rather than reg 6104, the relevant requirement appears in identical terms in each regulation: see regs 6102(d) and 6104(d). Mr Mack added that for the first appellant to qualify for the licence he should be able to satisfy most of the educational requirements of the approved course but “[s]ome study may be required to contextualise his knowledge and skills to the Australian environment, or to improve his English language skills…to the required standard”.

116               In the course of giving evidence before the Tribunal Mr Mack said that, although he believed the first appellant would have all the qualifications to meet the Australian requirements, the first appellant may have to undertake further English language studies and that there may be some need for familiarisation with the Australian regulations and situation. Mr Mack later said that it may be necessary for the first appellant to contextualise to the Australian environment and to refine his English language skills by “a little further study” although he emphasised that they were not “core” areas.

117               A letter of the Customs Brokers Council of Australia also proffered the view that “because of the nature of the Australian context in which the technical expertise has to be applied” it would be necessary for the first appellant to enrol in an appropriate diploma course to put his working experience into an Australian context.

118               The evidence to which I have referred was directly relevant to whether the first appellant had the qualifications and experience necessary to be licensed as a customs agent. The resolution of that issue in the present case required consideration of reg 6104(d) and ss 183CC(2)(b) and (3). Thus, the material and evidence before the Tribunal raised a case, which the Tribunal was required to address, of whether the first appellant has the experience or training required for the purpose of holding a licence to act as a customs agent under the Customs Act 1901 (Cth). Accordingly, the question arises as to whether the Tribunal failed to address that case.

119               In its reasons for decision the Tribunal set out reg 6104(d) and the contents of the letter of the Custom Brokers Council’s of Australia and concluded as follows:

“Mr Mack noted earlier that the Visa Applicant would need some study ‘to contextualise his knowledge and skills to the Australian environment or to improve his English skills’. It was indicated by Mr Mack that the ‘local familiarisation’ required could be undertaken in a short period of time (possibly one semester).

It therefore appears to the Tribunal that both the Council and Mr Mack are indicating that the Visa Applicant would not be entitled to a license as a ‘customs broker’ in Australia without more, for example, further study of at least ‘one semester’. Therefore it appears on balance that the Visa Applicant is unable to satisfy subclause 6104(d) of the Regulations without further study in Australia for his ‘usual occupation’ to satisfy the Australian licensing or registration requirements for that occupation.”

120               Plainly, it was open to the Tribunal, on the material and evidence before it, to find that “further study” would be required for the first appellant to satisfy reg 6104(d). Although Mr Mack preferred to refer to “further study” as a possibility, rather than a requirement, it was open to the Tribunal, in the context of s 183CC, to treat further study as a requirement.

121               The difficulty that arises in respect of the Tribunal’s conclusion is that it did not expressly address the case it was required to determine by reference to s 183CC(2)(b) and (3), to which only scant reference was made in its decision. That situation probably came about because the Tribunal appears to have been invited by the appellants’ legal representative to approach the question of the probabilities of the first appellant being licensed as a customs agent in Australia in a fairly general way.

122               It has often been noted that the reasons of an administrative Tribunal are to be read as a whole and are not to be approached in a manner which, out of context, may reveal an error of law. The task of the Court in the case such as the present was aptly described by Burchett J in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469:

“…judicial review of decisions of the Administrative Appeals Tribunal is not concerned with technical legal niceties, looseness of language, or infelicities of expression, but with whether a decision is infected in substance by some error of law. To my mind, the primary argument in the present appeal turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error.”

See also Brew at 88 and 90.

123               While I would not describe the Tribunal’s reasons as having necessarily “strayed into a measure of obscurity” it is necessary to determine whether its decision was infected in substance by its failure to expressly refer to the issue it was required to consider in terms of the requirements of s 183CC(3).

124               I have some concern about the Tribunal’s failure to refer to the issue before it in terms that reflect an awareness that it was required to decide the issue within the confines of reg 6104(d) and ss 183CC(2)(b) and (3). However, on balance, I have concluded that when the reasons are considered in the context of the manner in which the case was argued, the Tribunal must be taken to have decided, implicitly if not explicitly, that the first appellants’ qualifications and experience were not, without more, sufficient to warrant that he be exempted from the requirement for further study. Thus, the Tribunal addressed and determined the issue required to be addressed and determined under ss 183CC(2)(b) and (3). The Tribunal’s reasons therefore do not reveal the error of law contended for in ground six.

125               Accordingly, for the above reasons and the reasons given by Carr J in respect of the five grounds set out in the amended notice of appeal the appeal is to be dismissed with costs.

Associate:

Dated: 21 December 2000