Applicant: Millicent Claudette De Silva IRT Reference: A97/00133 #number 11355 [1998] IRTA 11355 (26 February 1998)

The Applicant is a forty-four year old national of Sri Lanka. She is married with one teenage daughter. On 6 February 1990 the Applicant, her husband and their daughter arrived in Australia under a student visas which were granted to them in Colombo on 25 January 1990. On arrival the Applicant was granted what was then known as an entry permit to remain in Australia until 15 March 1991. Since that time she has been granted various extensions of stay. The last of these enabled her to remain until 30 November 1994.

On 13 July 1994 the Applicant lodged an application ('the original application') with the then Department of Immigration and Ethnic Affairs (now known as the Department of Immigration and Multicultural Affairs ('the Department')) for a Class 816 (Special (permanent)) entry permit ('816 entry permit') and/or a Class 818 (Highly Qualified On-shore (permanent)) entry permit ('818 entry permit').

The printed application form completed by the Applicant is the approved form for both an 816 entry permit and an 818 entry permit. The criteria prescribed for the grant of those entry permits are set out respectively in Parts 816 and 818 of the Migration (1993) Regulations ('the 1993 Regulations') as in force at the time of lodgement of the original application on 13 July 1994. Although the application form completed by the Applicant is the approved form for both an 816 entry permit and an 818 entry permit both the Applicant and her migration agent has only ever contended that she is entitled to an 816 entry permit and has made no claims that she is entitled to an 818 entry permit.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994 Australian migration law has undergone significant changes. In accordance with regulation 23 of the Migration Reform (Transitional Provisions) Regulations, the Applicant's application in this case is taken to be an application for the equivalent of a transitional (permanent) visa under the new law. For most purposes this will resemble the visa that would have been granted under the law in force before 1 September 1994. However the application is still to be decided according to the criteria that applied to the entry permit sought under the original application, namely the 1993 Regulations.

Full particulars of the various documents accompanying the original application may be found in the various files (92/65929, 92/65930, 96/007391) (collectively referred to as 'the file') which the Department has on the Applicant and her husband and which have been submitted to the Tribunal pursuant to section 352 of the Act. The contents of the file together with any documents and submissions lodged in the course of this review all form a part of the evidence on which the Tribunal has relied in coming to its decision. The Applicant is represented by a migration agent.

The provisions found in Part 816.72 contain the main substantive criteria which must be satisfied at the time of lodgement of the original application. So far as relevant for present purposes they read as follows:

816.72 Criteria to be satisfied at time of application (entry permit - after entry)

(ii) meets the requirements of subclause (2) or (3); and

(iii) meets the requirements of subclause (4) or (6); or

(i) is a member of the family unit of an applicant who is a person mentioned in paragraph (a); and

(2) An applicant meets the requirements of this subclause 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

(i) held an overseas technical qualification or general academic qualification that is assessed by NOOSR 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:

(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

(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.

(3) An applicant meets the requirements of this subclause if, throughout the period from 2 November 1992 to 1 November 1993 (both dates inclusive), the applicant owned:

(a) an interest (whether as a sole proprietor or as a member of a partnership) in a business that meets the requirements set out in Schedule 6.1; or

(b) an interest as a shareholder to the extent of at least 25% of the issued capital in a corporation that owns (whether directly or through an intermediary) a business that meets the requirements set out in Schedule 6.1.

(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 (whether or not the application has been withdrawn, and whether or not the application, if not withdrawn, has been decided, and whether or not the decision, if made, was adverse to the applicant); or

(b) the applicant was granted a Class 435 (Sri Lankan (temporary)) or 443 (citizens of the former Socialist Federal Republic of Yugoslavia (temporary)) entry permit on or before 1 November 1993.

(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; and

(b) if the application was recorded by Immigration as having been received on or after 1 February 1993 - must have been made on the approved form.

(6) An applicant meets the requirements of this subclause if:

(a) the applicant applied, on or before 1 November 1993, for a Class 435 (Sri Lankan (temporary)) or Class 443 (citizens of the former Socialist Federal Republic of Yugoslavia (temporary)) entry permit; and

(c) as at 1 November 1993, the applicant appeared to the Minister, on the basis only of the written application and any supporting documents lodged with it, to meet the requirements for the grant of a Class 435 or 443 entry permit.

The Applicant meets clause 816.721(1)(a)(i) as she was forty years old on 1 November 1993. Clauses 816.721(1)(a)(ii) and (iii) respectively requires her to meet the provisions of either one of subclauses (2) or (3) and either one of subclauses (4) or (6).

The Applicant meets the requirement prescribed under clause 816.721(4) because her Application for Refugee Status ('the refugee application') was stamped as having been received by DORS (Determination of Refugee Status) on 30 September 1992. That application was unsuccessful as was her application for review to the Refugee Review Tribunal.

So far as clause 816.721 is concerned, that leaves the requirement that she satisfies either paragraph (2) or (3) of this provision. The Applicant does not meet the requirements of paragraph (3) as there is no evidence to suggest, and neither has it been contended, that she has any interest in a business.

The Applicant had declared under the original application that she had completed a total of thirteen years of primary education and secondary education between 1959 and 1971. She joined the work force as a stenographer in 1973 and continued to be so employed in various insurance companies in Colombo. In 1987 she successfully completed a three-month word processing course. She had indicated on the printed application form that she was not enrolled in any tertiary or post-secondary course of study in Australia on 1 November 1993. In reply to the question 'Are you currently employed?' she stated her occupation as 'word processor/data entry operator'.

It is not readily apparent from the evidence the basis on which the Applicant was first granted her student visa to Australia. She commenced working for FAI General Insurance Company Limited ('FAI') as a 'casual worker' in February 1990, the same month that she had arrived in Australia. She became a permanent full-time employee of FAI in June 1994. Her employer has provided a reference which indicates that she is considered a valuable employee in the organisation. The following is a letter dated 1 May 1996 and provided by the divisional manager of the sales and telemarketing division of FAI:

This is to confirm the nature of duties Mrs Millicent de Silva performed at FAI Insurance since February 1990 to December 1993.

Secretary to all meetings, takes minutes in shorthand, ensures timely distribution of minutes, and prepares meeting agendas;

oversights typing of correspondence and directs routine work;

handles the direction of external and internal mail;

responsible for the filing of correspondence and records;

performs other normal secretarial and office functions involving the use of computers and other office equipment;

oversights preparation of weekly reports/graphs for Customer Service Team using Lotus 1-2-3 for Windows. Monitors the insurance sales of each team member;

The duties performed by a secretary in this company have, given the nature of insurance, been described in terms of word processing or data entry titles. I confirm that the duties performed by Mrs de Silva since February 1990 have, however, been those of secretary/personal assistant in the sales & telemarketing division. She moved to the finance & administration division as Personal Assistant effective 16 October 1995.

For reasons already stated above the Applicant is required to meet one of the three alternative subclauses of clause 816.721(2) of the 1993 Regulations. It is readily apparent from the various submissions as well as from the evidence tendered that it is the Applicant's contention that she meets the requirements prescribed under subclause (b)(ii) of clause 816.721(2) in that she has 'work experience that is assessed as meeting Australian education and training standards for that trade [of stenographer/secretary]'.

The meaning of the word 'trade' in the context of clause 816.721(2)(b)(ii) of the 1993 Regulations has been subject to various interpretations by the Federal Court beginning with the decision in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313. Since then various Federal Court decisions have 'expanded' progressively the boundaries of the word 'trade' (see Pillay v Minister for Immigration and Multicultural Affairs, Tamberlin J, 29 July 1997, unreported, Tanchiatco v__Minister for Immigration and Multicultural Affairs, Branson J, 20 August 1997 and Rahim v Minister for Immigration and Multicultural Affairs, Sackville J, 28 August 1997). Although, as pointed out by the Tribunal in Re FR (IRT decision 10734, 11 November 1997), those decisions appear to have given little significance to the requirement as prescribed under subclause (A) of clause 816.721(2)(b)(ii) that the assessment is firstly to be assessed by the Department of Industrial Relations, a Department which traditionally oversees those trades entry to which trade certificates, founded on formal indentured apprenticeships or training contracts, are required.

His Honour Mr Justice Sackville in Rahim suggested that the question a decision maker should consider is whether,

... the applicant's experience is in a skilled handicraft or calling, as distinct from a professional occupation on the one hand and unskilled labour on the other. If the answer is in the affirmative, the applicant's work experience is in a "trade", for the purposes of par (b)(ii).

In summary, it seems to me that par (b)(ii) requires the decision-maker in a work experience case to undertake what might be described as a three stage process, as follows:

The first task is to ascertain whether the applicant has work experience in a "trade". In undertaking this task a broad construction of the term " trade" should be adopted. Part of the first task is to identify the " trade" in which the applicant has had work experience.

The second task is to ascertain whether there are Australian education or training standards for the trade in which the applicant has work experience.

The third task (which arises only if the second is resolved in the affirmative) is to ascertain, in accordance with the process set out in par (b)(ii), whether the applicant's work experience is assessed as meeting the Australian education or training standards for the particular trade.

I should make clear that, by describing the process as a three staged one, I do mean to imply that there must always be rigid diversion in the decision-maker's reasons. Obviously, there is a close relationship between ascertaining whether the applicant has work experience in a trade and determining whether the relevant trade has Australian education or training standards. There are likely to be factual issues common to both questions. The precise approach taken by decision-makers may vary from case to case, depending on the issues and the nature of the evidence.

The Tribunal is bound to apply the general principles set down by the Federal Court and must find that for the purposes of clause 816.721(2)(b)(ii) the Applicant has work experience which, adopting a 'broad construction' approach, in a 'trade'. Her work experience certainly does not relate to a professional occupation and neither is it unskilled.

The occupation of stenographer/secretary is not one which falls under the auspices of the Department of Industrial Relations. In accordance with the requirement prescribed under subclause (B) of clause 816.721(2)(b)(ii) the appropriate State or Territory authority was approached by the Applicant's agent for an assessment. On 17 April 1996 the Western Australian Department of Training advised the Applicant's agent that her experience meets Australian standards.

For those reasons the Tribunal finds that the Applicant meets the requirement prescribed under clause 816.721(2)(b)(ii) of the 1993 Regulations.

The Tribunal accordingly sets aside the decision under review and remits the matter to the Department with the direction that the Applicant satisfies the criterion prescribed under clause 816.721(2)(b)(ii) of the 1993 Regulations.

I certify that this and the 7 preceding pages are a true copy of the Decision and Reasons for Decision herein of Ms M Fadjiar, Senior Member of the Tribunal.