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[2004] FCA 92
Federal Court of Australia
2004-02-13
Selway J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant and his family have applied to this Court seeking orders for mandamus, certiorari and injunctions against the respondent ('the Minister') on the basis that the decision of the Migration Review Tribunal ('the Tribunal') given on 7 May 2003 affecting them was invalid. The Tribunal confirmed the previous decision that they not be granted a transitional (permanent) visa. The Tribunal was not satisfied that the applicant's trade qualifications or experience had been relevantly assessed as meeting Australian standards. For the reasons given below, there was jurisdictional error in the process of the Tribunal and the matter should be returned to the Tribunal for further hearing in accordance with these reasons. 2 The applicant is a citizen of Indonesia. He arrived in Australia on a visitor's visa in 1989. On his own behalf and that of his family he subsequently applied for and was refused a refugee visa. On 29 July 1994, he applied for a Class 816 Special (Permanent) Entry Permit. He was informed that that application had been refused by letter dated 15 January 1996. On 19 January 1996, the applicant applied for an internal review of that decision. On 3 May 1996, the applicant was advised that the original decision had been affirmed. He then applied for review of that decision by the Immigration Review Tribunal. On 7 May 2003, the Tribunal affirmed the previous decisions. It is that decision of the Tribunal which is under challenge in this Court. 3 The visa sought by the applicant was apparently that which could be granted under Pt 816 of Sch 2 of the Migration Regulations. Part 816 was introduced by the Migration (1993) Regulations Amendment (No 11 of 1994). The commencement date of the amendment Regulations was 1 March 1994. The decision to refuse the applicant a 'Class 816' visa was a decision which was reviewable by the Immigration Review Tribunal pursuant to Regulation 36(3) of the Migration (Review) (1993) Regulation. 4 Part 816 was repealed by Regulation 40 of the Migration Reform (Transitional Provisions) Regulation (No 261 of 1994). The commencement date of that Regulation was 1 September 1994. However, under Regulation 23 of the Transitional Provisions Regulations an application for a 'Class 816' visa made between 19 December 1989 and 1 September 1994, but not determined by the latter date, was to be taken as an application for a transitional (permanent) visa, although the application was to be determined under the criteria for the grant of a 'Class 816' visa. 5 Pursuant to the transitional provisions in Sch 1 of the Migration Legislation Amendment Act (No 1) 1998 (Cth) (No 12 of 1998) an application to the Immigration Review Tribunal was to be treated as an application to the Tribunal. 6 The effect of all this is that the applicant's application for a Class 816 visa was to be treated as an application for a transitional (permanent) visa. The criteria for the grant of that visa was the same as for a Class 816 visa immediately before Pt 816 was repealed on 1 September 1994. 7 In order to grant that visa the Minister had to be satisfied that the criteria specified in the Regulations in relation to that visa have been satisfied: s 65(1)(ii) of the Migration Act 1958 (Cth) ('the Act'). The relevant criteria for a Class 816 visa were summarised by the Tribunal (and accepted by the parties) as follows: 'i. As at 1 November 1993 Applicant must be under 45 years of age (816.721 (1)(a)(i)) ii. Employment qualifications/work experience (816.721 (2)) or business interests (816.721(3)) as at 1 November 1993. iii. Refugee Application or class 435 or 443 entry permit lodged on or before 1 November 1993 (816.721(4) or (6)) iv. Applicant must be in Australia (816.722). v. Date of grant of visa prior to 12 March 1992 and arrival in Australia prior to 1 November 1993 (816.724) (subject to some exceptions). vi. English proficiency (816.732). vii. Public interest criteria (816.734). Criteria 1 to 5 are to be satisfied at the time of application, while 6 and 7 are to be satisfied at the date of decision.' 8 In this case the critical issue was whether or not the applicant had relevant trade qualifications. Those qualifications were specified in Pt 816.721(2)(b) which provided: '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; …' 9 That is clearly what the delegate, the internal review officer and the Tribunal purported to do. The Tribunal had power to determine the application for review that had been made by the application to the Immigration Review Tribunal. 10 In considering the application for review the Tribunal determined that the applicant satisfied all of the criteria for the grant of a Class 816 visa except the employment/skill criteria set out at Pt 816.721(2) and quoted above. 11 The history of the attempts by the applicant to establish that he met the employment/skill criteria are detailed in the reasons of the Tribunal. Initially the applicant had claimed that he had the necessary skills of a motor mechanic. When this was not accepted he argued that he had the necessary skills of an oilerman, and then of a greaser and finally of a welder. 12 The applicant's claim that he had the necessary skills to be a 'welder' was referred to the 'Trades Recognition Authority' ('TRA') by the Tribunal. It would appear the TRA is part of the Commonwealth Department of Employment and Workplace Relations. It would also appear that that Department is the successor to the Department of Industrial Relations, being the Department referred to in Pt 816. Although I have not been referred to the relevant order substituting the names of the relevant Departments pursuant to s 19B(2) of the Acts Interpretation Act 1901 (Cth) (see s 46(1)(a) of that Act in relation to Regulations) everyone seems content to assume that a relevant assessment by the TRA is sufficient to meet the requirements of Pt 816.721(2)(b)(ii)(A). 13 On 27 August 2002, the Tribunal wrote to the TRA asking it to advise 'whether [the applicant] held an overseas trade qualification or had work experience that met Australian training standards for the occupation of welder (or for any other occupation) as at 1 November 1993'. On 10 September 2002, the TRA advised the applicant that his 'qualification and/or experience meets the requirements for migration purposes as a: Tradeperson and Related Workers nec [4122-15]'. The Tribunal then wrote to the TRA on 17 September 2002, drawing its attention to the previous correspondence and stating, '[t]he crucial issue for this review is when did [the applicant] meet Australian standards for his occupation. Did he meet these standards as at 1 November 1993? If not, when did he meet these standards?' The Tribunal renewed this request by facsimile dated 2 December 2002. 14 The TRA responded to that letter by a facsimile dated 6 January 2003. That facsimile stated: 'I refer to your letter of 17 September and fax of 2 December, about the above applicant, seeking an appropriate deeming date. I apologise for the delay in replying. As [the applicant] had obtained a Certificate III in Fabrication Engineering from NSW Tafe he was classified for migration purposes as a Tradesperson and Related Workers nec. In the above circumstances TRA does not issue a deeming date. However to assist you with the MRT process TRA deems [the applicant] met the relevant standard for his occupation on the date the certificate III was issued ie. July 2002. Consequently [the applicant] did not meet the relevant standard at 1 November 1993.' 15 Against this background the Tribunal proceeded to review the delegate's decision. The Tribunal noted the above correspondence and noted that the TRA had concluded that the applicant met Australian standards as at July 2002. In relation to that conclusion, the Tribunal made the following findings: 'No positive trade assessment was given by TRA until its letter of 6 January 2003. This assessment gives a deeming date of July 2002 (the date he was issued a Certificate III from TAFE). On the basis of all of this correspondence it cannot be said that TRA has assessed the applicant as meeting Australian standards for the trade of welding as at 1 November 1993. The precise words of the relevant stipulation were addressed in our letters to TRA of 27 August 2002 and 17 September 2002 and their replies of 10 September 2002 and 6 January 2003. …Clearly in this case TRA was able to make some kind of assessment, as they have done so. The TRA assessment of 10 September 2002 gives a positive assessment for the trade of welder (first class) as set out in ASCO (2nd edition). It is noted that the tasks of welder as set out in ASCO (2nd ed) are almost identical with these as set out in ASCO 1st ed at 4205-17. However in the 2nd edition the skill level is AQF III Certificate while in the 1st edition it is a trade certificate. It would not be surprising if the way of teaching and assessing these types of trades changed over these 10 years. As it would not be surprising if the applicant's skills in the trade of welding improved significantly over this period of time, particularly as he has attended TAFE courses in this area and gained more practical experience in this field. …Granted that the qualifications needed now may be different from those in place in 1993, the point is that there is no material before me that satisfies me that the applicant, as required, met the 1 November 1993 standards…TRA has…refused to give the relevant assessment as at 1 November 1993.' 16 The Tribunal affirmed the decision under review. 17 The parties are agreed that in order to succeed in these proceedings the applicant must first establish that there is a jurisdictional error in the process, reasoning or decision of the Tribunal: see Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. The applicant says that there were two relevant jurisdictional errors. First, the applicant says that the Tribunal was required to determine what the relevant Australian skill requirements were as at 1 November 1993 and that it failed to do so. Second the applicant says that, in the absence of a determination by the TRA or by a State authority of whether the applicant had the relevant Australian skill requirements as at 1 November 1993, the Tribunal itself was required to determine that matter and it failed to do so. The applicant argued that these respective failures each involved jurisdictional errors. 18 The basis of both of these grounds for review is the legal argument that the requirement in Pt 816.721(2) that 'as at 1 November 1993 the applicant held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade' refers to Australian education or training standards as at 1 November 1993. The Tribunal seemed to accept that this was so. In its reasons it noted that '[i]n making these claims [the applicant] had to establish…that he had qualifications which [we]re comparable to an Australian trade certificate as at 1 November 1993. For that is the date (according to the Regulations) when the assessment must be made'. In my view the Tribunal was correct in accepting that legal argument. As the Tribunal noted, Pt 816 drew a clear distinction between decisions that were required to be made as at a particular date (1 November 1993) and those that were required to be made as at the date of decision (those being the only relevant dates). The criteria in relation to skill standards is expressly made 'as at 1 November 1993'. In my view a fair reading of the provision, in its context, is that it is referring to 'Australian education or training standards' as at 1 November 1993. It was so held in Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 ('Bellaiche'); see also Grey v Minister for Immigration and Multicultural Affairs [2000] FCA 209 at [47]-[48]. 19 It would appear that the TRA did not understand this. This may be because the correspondence from the Tribunal did not make it clear that the assessment had to be made in relation both to the applicant's skills and experience and to the Australian requirements as at 1 November 1993. For whatever reason, it would appear that the TRA determined that the applicant's skills and experience as at 1 November 1993 did not meet the Australian requirements as at the date of its assessment. This would seem to be plain from the facsimile provided by the TRA to the Tribunal on 6 January 2003. 20 Although the respondent has put to me that the TRA did make the assessment as at 1 November 1993, nevertheless it would seem that the Tribunal accepted a submission made on behalf of the applicant that the assessment by the TRA involved a comparison between the applicant's skills as at 1 November 1993 with the Australian standards as at the date of its assessment. In my view the Tribunal was correct to do so. Those standards were those contained in ASCO (2nd ed), rather than those contained in ASCO (1st ed) which (at least by implication) would seem to be the relevant standard as at 1 November 1993. Whilst the Tribunal noted that the tasks involved in the two standards were 'almost identical' it nevertheless acknowledged that the standards were different and indeed appeared to accept that the then current Australian standards for welders were higher than those applicable as at 1 November 1993. 21 Consequently it would appear that the Tribunal accepted that the TRA assessment should have been directed to the Australian standards as at 1 November 1993. It would also appear that the Tribunal accepted that the TRA assessment was, in fact, directed to the Australian standards as at the date of its assessment in July 2002. The Tribunal resolved this apparent difficulty by referring to the onus of proof. As the Tribunal put it, '[g]ranted that the qualifications needed now may be different from those in place in 1993, the point is that there is no material before me that satisfies me that the applicant, as required, met the 1 November 1993 standards'. Although the grounds of review do not identify it, the essential question in these proceedings was whether there was any jurisdictional error in the Tribunal resolving the apparent difficulty that it faced in this manner. 22 The Tribunal was required to be satisfied that the applicant held a qualification or had experience which 'had been assessed' as meeting the relevant Australian standards by the TRA, or, 'if it is unable to make an assessment' by a State body that the Minister decides is appropriate, or, 'if neither [the TRA] nor [the State body] is able to make an assessment, by the Minister.' It is clear that the TRA did not make the relevant assessment. The assessments it made were that, as at July 2002, the skills the applicant then had met the requirements that were then applicable and that the skills he had had before that time did not meet the requirements that were applicable in July 2002. As discussed above these assessments were not relevant assessments for the purpose of the Regulations. Consequently, on the information that was before it, the Tribunal could not be satisfied that the TRA had assessed the applicant's qualifications as meeting the relevant Australian standards as they were at 1 November 1993. 23 In the absence of any relevant assessment by the TRA the next question was whether it was necessary to seek an assessment by a relevant State body. The answer to that is that the assessment by the State body only arises where the TRA 'is unable to make an assessment.' Clearly enough the TRA was not 'unable' to make a relevant assessment - it simply failed to do so because it did not appreciate what assessment it was required to make. The Tribunal made this point: 'Finally, this is not a matter in which the Tribunal can invoke 816.721(2)(b)(ii)(C) and make its own assessment as to trade qualifications. This is because with the trade at issue, welder, and the facts of this case, TRA is not, in the words of the provision "unable to make an assessment". And if I am wrong about this…[the relevant State body] is not for the trade of welder or the facts of this case "unable to make an assessment".' 24 This involves reading the words 'unable to make an assessment' as referring to the capacity of the organisation, rather than to the correctness of the assessment it actually makes in a particular case. It seems to me that this is the appropriate way to read the relevant words. They refer to the capacity and (perhaps) willingness of the relevant organisation to make the required assessment. So considered a body will be 'unable to make an assessment' if it lacks the relevant skills or if the relevant trade is not one upon which the body makes assessments: see Grey v Minister for Immigration and Multicultural Affairs [2000] FCA 209 at [41]; Mejia v Minister for Immigration and Multicultural Affairs [1999] FCA 855 at [20]. On the other hand, it could not be said that a body is 'unable to make an assessment' merely because it has not been asked the correct question or because it has made an error. 25 This is also an answer to the argument by the applicant that, in the absence of any relevant assessment by the TRA or by the State body, the Tribunal was required to determine for itself what were the relevant Australian qualifications as at 1 November 1993. Neither the TRA nor the State body were 'unable to make an assessment', so the issue does not arise.
26 If the TRA had been 'unable to make an assessment' then it would have been necessary to consider whether the Tribunal could proceed to determine the issue for itself, as the applicant submitted it should. The possibility that the Tribunal might need to make the assessment itself arises because Pt 816.721(2)(b)(ii)(C) refers to a classification by 'the Minister'. In Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 ('Ranatora') at 699-700, Hill J discussed the various steps that the Tribunal should take in determining whether a Class 816 visa should have been granted. The final two steps in the outline suggested by Hill J were:
'4. The Tribunal must then find whether trade qualification or work experience which the applicant has undertaken has been assessed as meeting the Australian Education or Training standards for that trade by the authorities in either (A) or (B) of the subparagraph. 5. If neither of the bodies referred to in (A) or (B) are able to make an assessment of the overseas trade qualification or work experience then the Tribunal, standing in the shoes of the minister, must itself make an assessment.' 27 If the issue were free from authority I am not certain that I would have reached the view that the Tribunal, in reviewing a decision to refuse a Class 816 visa, could itself make the relevant assessment. At the very least it would seem to me that some further evidential material would be required to establish that the original decision maker had the delegated power to make the relevant assessment. In considering the application before it the Tribunal could exercise 'all the powers and discretions that are conferred by this Act on the person who made the decision': s 349(1) of the Act. (Apart from the change from the Immigration Review Tribunal to the Tribunal this section has not changed since the applicant first sought review from the Immigration Review Tribunal). The relevant 'person' for this purpose was the internal review officer. Under s 341 of the Act as it then applied, the internal review officer could exercise 'all of the powers and discretions that are conferred on the person who made the decision'. The 'person who made the decision' was a delegate of the Minister. The delegation was made under s 496(1) of the Act, which subsection was then in the same terms as it is now. That subsection provides: 'The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act.' 28 There is no evidence before me or, it would appear, before the Tribunal which identifies what delegations were held by the delegate. Given that the delegate purported to exercise the Minister's powers under s 65 of the Act to refuse to grant the relevant visa it is appropriate to rely upon the presumption of regularity so as to presume that the Minister had granted a delegation for that purpose: see, for example, Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 130. However, the same is not true in relation to the power of assessment of trade qualifications under Pt 816.721(2)(b)(ii)(C) of Sch 2 of the Regulations. There is no evidence in this case that the Ministerial delegate or the internal review officer purported to assess for themselves the trade qualifications of the applicant. Nor, given the obviously different skills involved, would there be any obvious reason to assume that the Minister would delegate to the same person the power to determine if a visa should be granted and the power to assess trade qualifications. In the absence of at least some evidence that the original delegate had a delegation from the Minister to assess trade qualifications and in the absence of any basis to presume any such delegation had been given, it would seem to me to be at least arguable that the Tribunal did not have the power to make that assessment for itself. 29 On the other hand, the decision in Ranatora is directly on the point. The approach of Hill J that the Tribunal was required to make its own assessment was expressly endorsed by the Full Court in Azarcon v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 257 ([1999] FCA 145) ('Azarcon') at [7], [10]. In these circumstances I would be bound to follow Ranatora if the issue had arisen. However, for the reasons already given, the issue does not arise. 30 The consequence of the above was that there was no evidence before the Tribunal of a relevant assessment by the TRA or even by the State body. Given that they would have been able to make an assessment if they had been asked to do so, the circumstances did not call for the Tribunal to make its own assessment. 31 This was not the end of the matter. There remains the question whether the Tribunal was under any obligation to adjourn the hearing so that a further assessment could be sought from the TRA as to whether the applicant's skills as at 1 November 1993 met the Australian standards as at that date. This was not raised as a specific ground of review. It was not argued before me at least until the Court sought further written submissions in relation to this issue. Nor was any request made to the Tribunal that it seek any further assessment, notwithstanding that it is clear from the submissions made to the Tribunal by the agent acting for the applicant that the agent was well aware of the deficiencies in the TRA assessment. Nevertheless, there is clear authority in this Court that the Tribunal was under such a duty. In Bellaiche the applicant had applied for a Class 816 visa. The Department of Industrial Relations ('DIR') misconstrued the regulatory requirements and wrongly decided that the applicant did not have the appropriate qualifications. Because the DIR informed the Minister that the applicant did not possess the relevant requirements he was refused a Class 816 visa. The applicant applied to the Immigration Review Tribunal for review of that decision. The Immigration Review Tribunal held itself bound by the erroneous decision of the DIR and affirmed the decision under review. On review to the Federal Court, it was held (per Sackville J) that, because the DIR assessment on its face did not constitute an assessment of the kind required by the Regulations, the Tribunal was bound to defer its decision until the DIR properly considered the question, and that a failure to defer in those circumstances amounted to a reviewable error of law. Sackville J said, at 370: 'In order to determine whether the tribunal should have affirmed the decision of the review officer it was necessary, in my opinion, for the tribunal to be satisfied that an assessment of the kind contemplated by para (b)(ii) had taken place. It was not necessarily the tribunal's role to reconsider an assessment made by DIR to determine whether its decision was correct. But I think the tribunal had to satisfy itself that DIR had purported to undertake the assessment contemplated by para (b)(ii). If DIR asked the wrong question (as I think occurred in this case), the tribunal was bound as a matter of law to request DIR to consider the right question. In such circumstances, the tribunal was obliged to withhold its decision until DIR undertook the necessary inquiries and provided an assessment (whether favourable or unfavourable to the applicant) of the kind contemplated by para (b)(ii). Once DIR asked and answered the correct question, it may be that the tribunal was bound to accept the answer (although I need not resolve that issue).' 32 I am bound to follow Bellaiche unless I am satisfied that it is plainly wrong. I am not so satisfied. Unless there is such a duty in the context of the particular terms of Pt 816.721(b)(ii) the result would be that the Tribunal could proceed to dismiss an application simply because the TRA had asked itself the wrong question and therefore its assessment could not be relied upon. Indeed, that is exactly what occurred in this case. That result could not have been intended. The conclusion reached by Sackville J that it is implicit in Pt 816.721(b)(ii) that, in circumstances where it is apparent from the assessment of the TRA that the TRA has misunderstood what assessment it should make there is a legal duty upon the Tribunal to 'withhold its decision' until the TRA has been requested to make a relevant assessment for the purposes of that Part, may well be the preferable interpretation of the provision. It is clearly open. It is also fair. 33 Given the existence of this legal duty and the failure of the Tribunal to comply with it in this case then in my view there was a jurisdictional error in the process adopted by the Tribunal. Certiorari must go to quash the decision of the Tribunal. The matter should be returned to the Tribunal for further hearing in accordance with these reasons. 34 The result is that the applicant has been successful. On the other hand, the reasons for that success bear little resemblance to any grounds or submissions put to me on behalf of the applicant. In these circumstances I can see no reason why the applicant should have his costs and I make no order in relation to them. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.
Chatib
Minister for Immigration and Multicultural and Indigenous Affairs