Azarcon v Minister for Immigration & Multicultural Affairs

THE COURT 1 The disposition of this appeal turns on two short points, neither of which was squarely raised in the court below. They concern the true construction of a prescribed criterion for a visa and the statutory obligation of the Immigration Review Tribunal ("the Tribunal") to give reasons for its decisions. 2 The criterion in question is prescribed in subclause 816.721(2) of Schedule 2 to the Migration (1993) Regulations, which relevantly provides: "(2) An applicant meets the requirements of this subclause if, on 1 November 1993: (a) . . . (b) the applicant: (i) . . . (ii) held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade: (A) by the Department of Industrial Relations; or (B) if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate; or (C) if neither that Department nor that State or Territory authority is able to make an assessment, by the Minister; or (c) . . ." 3 The appellant claimed to meet the requirements of the subclause by virtue of an overseas trade qualification in hotel and restaurant management. The Tribunal rejected that claim. However, at the Tribunal hearing, the appellant made a further claim based on her work experience. The Tribunal devoted a single paragraph to this claim in its reasons for decision. It said: "At the hearing into this matter, [the appellant] told the Tribunal that she had work experience in Australia as a sewer and embroider [sic]. The Tribunal granted her time to apply to the relevant authority to have her work experience assessed for trade qualification purposes. In a letter to the Applicant's agent dated 15 May 1997, a copy of which was sent to the Tribunal, the Trade Certification Officer, the Office of Training and Further Education, Victoria, stated in part: Re: [HA] "I refer to your correspondence of 30 April 1997 concerning the application for a Trade Certificate in the clothing trade submitted to this Office. I regret to advise that the trade experience detailed in the application cannot be classified under any of the trades covered under our Certification of Trade Skills program." 4 The excerpt from the letter dated 15 May 1997 from the Office of Training and Further Education ("OTFE") in that paragraph refers to "your correspondence of 30 April 1997". A covering letter dated 30 April 1997 from the appellant's agent to OTFE is in evidence, but the enclosures referred to in that letter are not in evidence, and the evidence does not disclose whether such material was given to the Tribunal. However, OTFE's letter went on to say in a sentence omitted from the excerpt in the Tribunal's reasons: "It is suggested, therefore, that you contact the Immigration Review Tribunal on tel. 02 9290 7222 to ascertain how an assessment of Ms Azarcon's vocational skills may be most appropriately conducted." The evidence also does not disclose whether the appellant's agent followed up that suggestion before the Tribunal found, on 28 May 1997, that the appellant did not satisfy subclause 816.721(2). 5 Counsel for the appellant submits that, faced with OTFE's inability to assess the appellant's work experience, the Tribunal had to make its own assessment. The Tribunal's reasons on the issue of the appellant's experience as a sewer and embroiderer are, he contends, so brief that it must be taken to have, in effect, deferred to the view implied in OTFE's letter that the appellant's experience was not in a "trade". 6 In Tanchiatco v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 298 Branson J said (at 300-301): ". . . The proper construction of cl 816.721(2)(b)(ii) is not easily identified. A literal construction of cl 816.721(b)(ii) would lead to the conclusion that the expression "that trade" refers to the trade to which the "overseas trade qualification" referred to in the opening words of subpar (ii) relates; there is no other mention of a trade in the subparagraph to which the word "that" can be seen to refer. Against this literal approach can be advanced arguments based on utility and apparent purpose. Such arguments might suggest, although it was not so suggested in this case, that ambiguity has crept into the subparagraph as a result of its contracted form. That is, that expressed in an expanded form, it would read: (2)(b)(ii) A. held an overseas trade qualification that is assessed as meeting Australian education or training standards for that trade; or B. had work experience [presumably whether in Australia or overseas or part in Australia and part overseas] that is assessed as meeting Australian education or training standards for that trade. In such expanded form it is easier to construe the reference to "that trade", so far as the work experience aspect of the subparagraph is concerned, as meaning the trade in which the applicant had work experience. In Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FLR 313 at 317, Moore J took the view that the "work experience" of which cl 816.721(2)(b)(ii) speaks is work experience for a trade for which there might exist a "trade qualification". The issue of the precise significance of the expression "that trade" appears not to have been argued in other cases involving cl 816.721(2)(b)(ii): see, eg, Pillay v Minister for Immigration and Multicultural Affairs (1997) 76 FCR 1 and He v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 342. However, it appears to have been assumed in such cases that the expression "that trade" means the trade in which the applicant had work experience. With a little unease, as it seems to me that it involves some disregard of the actual structure and wording of the subparagraph, I have concluded that the better view of cl 816.721(2)(b)(ii) is that an applicant meets the requirements of subcl (2) if he or she, at the relevant date, had, in a trade, work experience that is assessed as meeting Australian education or training standards for that trade. So construed, the trade in question need not be one in respect of which overseas trade qualifications might be held. Nonetheless, it must be one in respect of which Australian education or training standards can sensibly be identified. . . .". We agree with her Honour's construction. 7 Since the Tribunal itself required the appellant's agent to arrange to have the appellant's experience as a sewer and embroiderer assessed by OTFE, a division of the Victorian Department of Education, it seems plain enough that the Tribunal regarded such an occupation as a trade. However, once OTFE was unable to assess whether that experience met Australian education or training standards, then, as Hill J explained in Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 at 700: "the Tribunal, standing in the shoes of the Minister, must itself make an assessment." 8 If the only material before the Tribunal consisted of the appellant's evidence at the hearing and OTFE's letter, then it would have been open to the Tribunal to make an assessment adverse to the appellant on the basis that the Tribunal was not satisfied that her work experience met Australian training standards for a sewer and embroiderer. But in the present case one is left to speculate that whether that is what the Tribunal has done. 9 Section 368(1) of the Migration Act 1958 ("the Act") obliges the Tribunal, when stating its decision and reasons, to set out its findings on material questions of fact with reference to the evidence or other material on which such findings were based. The mirror provision in the Act governing the Refugee Review Tribunal was explained in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 by Sackville at 413-416, where the relevant authorities are collected. 10 In the present case, in the absence of findings of fact and some exposition of its reasoning process, it cannot be ascertained from the published statement whether the Tribunal has made its own assessment as required by subsubpar (C). In that respect it has failed to comply with the procedure required by s 368(1) of the Act. This was not a point taken in the court below. 11 The appeal must be allowed. The order at first instance should be set aside, and instead the decision of the Tribunal should be set aside and the matter referred to the Tribunal for further consideration. The respondent should pay the appellant's costs of the appeal. Because of the manner in which the case was conducted at first instance there ought to be no order in respect of the costs of that hearing.