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austlii:cth/IRTA/1996/7265
defendant. The Tribunal affirmed the decision under review to refuse the grant of both the Class 816 (special (permanent)) entry permit and the Class 818 (Highly Qualified On-Shore (Permanent)) entry permit.
1 cited instrument linked from this judgment.
The Immigration Review Tribunal refused the applicant's request for permanent residency under two visa categories. For the Class 816 visa, the applicant's Chinese qualification was assessed as equivalent to a TAFE certificate, which was below the required diploma level, and her job as a textile machine operator was not considered a 'trade' because she learned the skills on the job rather than through formal training. For the Class 818 visa, she was ineligible because she was not enrolled in postgraduate studies in Australia in 1993. The Tribunal followed a previous Federal Court decision that defined 'trade' broadly as any skilled handicraft, but still found that machine operation did not qualify because it lacked formal certification.
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This is an application by SBT for review of a decision to refuse the grant of a Class 816 (special (permanent)) entry permit and a Class 818 (Highly Qualified On-Shore (Permanent)) entry permit. The primary application was lodged on 8 July 1994. It was refused on 12 September 1995. An application for review of that decision was made to the Migration Internal Review Office (MIRO) on 2 October 1995. MIRO affirmed the primary decision on 8 December 1995. An application for review was made to this Tribunal on 9 January 1996.
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 Principal's application in this case is taken to be an application for a transitional (permanent) visa under the new law . For most purposes this will resemble the entry permit 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application is still to be decided according to the criteria that applied to the entry permit for which application was originally made. The Regulations which are applicable in this case are therefore the Migration ( 1993) Regulations (the Regulations).
The criteria for a Class 816 and Class 818 entry permit are set out in Schedule 2 to the Regulations. The criteria which are relevant to this application are 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
(2) An applicant meets the requirements of this subclause if, on 1 November 1993:
(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
Class 818 (Highly Qualified On-Shore (Permanent) Entry Permit)
818.721 (2) An applicant meets the requirements of this subclause if, on 1 November 1993, the applicant.
(a) had been enrolled for the 1993 academic year at an Australian post- secondary educational institution in a post-graduate course, and
(b) had satisfied the academic progress requirements of that educational institution.
(3 An application meets the requirements of this subclause if, on 1 November 1993, the applicant
(a) held an Australian bachelor's degree or an overseas qualification that is assessed by NOOSR as being comparable to an Australian bachelor's degree; and
(b) had been enrolled for the 1993 academic year at an Australian post- secondary educational institution in an accredited course for a bachelor's degree; and
(c) had satisfied the academic progress requirements of that educational institution.
(4) An application meets the requirements of this subclause if, before 1 November 1993, the applicant had completed the requirements of a bachelor's degree or higher degree in Australia, and
(a) during the 1993 academic year, had completed; or
(b) on 1 November 1993, was undertaking further study, practical training or work experience required to obtain professional registration, licensing or admission.
The Department's file was supplied to the Tribunal pursuant to section 352 of the Act and was considered in this decision.
The Department's file at Folio 128 indicates that the applicant's highest level of successfully completed education was the award of a 'Certificate of Graduation in the field of basic studies for party and government administration cadres' awarded by Guangzhou Radio and Television University, Guangzhou, China on December 1988 after the completion of a two year course of studies. According to the National Office of Overseas Skills Recognition (NOOSR) this award is assessed as comparable to the level of an Australian Technical and Further Education (TAFE) Advanced Certificate.
Accordingly, she fails to satisfy paragraph 816.72(2)(b)(i) of the Regulations.
The applicant's completed application (form 1816/1818) indicates in response to question 35 at folio 114 that she was not enrolled in a tertiary or post secondary course of study in Australia (including) TAFE on 1 November 1993. In response to question 50 the applicant stated she was employed as a 'machine operator' with A.T.I. Pty Ltd. In a submission to the Tribunal dated 4 March 1996 consisting of an employer's reference from Australian Texturizing Industries Pty Ltd, the Managing Director stated that the applicant was employed by the company as a supervisor in Texturizing Section. Her duties included 'operating and monitoring machines as well as quality control in texturizing sections'.
A hearing was held on 20 May 1996 and the applicant gave evidence confirming her employer's duty statements.
In its investigations the Tribunal discussed the applicant's work experience in the textile industry with Jack Roosenboom, Head, Fibres and Textiles Department, Melbourne Institute of Textiles (TAFE), Mr Roosenboom was of the opinion that the applicant's occupation was that of textile machine operator, the skills of which were acquired by on-the-job training and were not acquired at TAFE institutions.
The Tribunal finds that the occupation of textile machine operator does not require a 'trade qualification'. The expression 'trade' was held by Wilcox J in Kumar v Immigration Review Tribunal [1992] FCA 319; (1992) 28 ALD 201 at 208 as 'applicable to any skilled handicraft as distinct from a profession.' His Honour added at 208 that the expression 'trade certificate' should 'not be confined to traditional occupations such as those of bricklayer, carpenter and tailor...' The test for meeting Australian occupations and training standards in an occupation or a trade is measured by whether the trade certificate, at 'the end of a comprehensive training program, a reputable institution issued a certificate of competency'. As the Regulations define 'trade certificate', but not 'trade' or 'trade qualification', his Honour's observations on the broad interpretation of 'trade' is binding on this Tribunal and is apposite in this decision.
As the Tribunal finds that the occupation of machine operator is not a trade, the applicant fails to satisfy paragraph 816.721(2)(b)(ii) of the Regulations.
The Tribunal finds that the applicant fails to satisfy subclause 816.721(2) and must be refused a Class 816 (special (permanent)) entry permit.
As the applicant stated she was not enrolled in an Australian post-secondary educational institution in a post graduate course for the academic year 1993, the Tribunal finds that the applicant fails to satisfy subclause 818.72(2) which is a prescribed criterion for the grant of a Class 818 (Highly Qualified On-Shore (Permanent)) entry permit.
The Tribunal affirms the decision under review to refuse the grant of a Class 816 (special (permanent)) entry permit and a Class 818 ( Highly Qualified On-Shore (Permanent)) entry permit to SBT.
I certify that this and the four preceding pages are a true copy of the Statement of Decision and Reasons for Decision of Joseph Italiano, Presiding Member.
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The Tribunal affirmed the decision under review to refuse the grant of both the Class 816 (special (permanent)) entry permit and the Class 818 (Highly Qualified On-Shore (Permanent)) entry permit.