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[2000] FCA 293
Federal Court of Australia
2000-03-15
French J
Original judgment source is linked above.
Introduction 1 A Sri Lankan national who came to Australia on a student visa in 1994 has worked since 1995 as a chef at two Curry Houses in food halls in Perth shopping centres. He had formal qualifications and cooking experience from Sri Lanka before he came to Australia. He evidently impressed his employers here with his level of skill as a cook of Sri Lankan and other Asian foods. In 1997 he applied for a visa to enable him to stay permanently in Australia. The class of visa for which he applied required that he demonstrate "an exceptional record of achievement" in his occupation. In a decision making process that dragged on from August 1997 to May 1999, he was successively refused by a delegate of the Minister, by an internal Departmental Review Officer and, ultimately, by the Immigration Review Tribunal. He now applies for a review of the decision of the Immigration Review Tribunal. 2 The case raises a question about the proper construction and application of the legal criteria for the grant of the relevant visa.
Factual Background 3 Mohamed Azfar Gaffar was born on 17 April 1972 in Sri Lanka. After completing secondary schooling in Sri Lanka he undertook studies in the hospitality field, specialising in cooking. In 1993 he was awarded a certificate by the Asia-Lanka International Hotel School for having successfully completed a program of studies in international cookery for the academic years 1991-1993. During that time he also worked at the Republic Holiday Inn. Mr Gaffar came to Australia on a student visa in March 1994. After arriving in Western Australia he undertook a six month English language course at a TAFE College. In December 1994 he applied for and was granted a Subclass 435 Sri Lankan visa. This visa was extended more than once up until its most recent expiry date on 31 July 1997. The provision of the Migration Regulations creating the Subclass 435 Sri Lankan visa was repealed in 1998 by SR 104 of 1998, reg 23. 4 On 6 August 1997, Mr Gaffar lodged an application to remain permanently in Australia. He applied under the class of visa designated "General (Residence)". He sought a visa of that class under the subclass "skilled". Since 1995 until the present time Mr Gaffar has worked as a chef. His first employer was a Mrs Che who operated the Governor's Curry House at the Whitfords Shopping Centre. In May 1996 the business was purchased by a Ms Wensinger. At the time of the purchase Mr Gaffar was employed as a specialist chef cooking Sri Lankan and Indian cuisines. He was later employed by Mrs Che in her new business, also known as the Governor's Curry House, at the Galleria Shopping Centre in Morley. 5 On 12 August 1998, more than a year after Mr Gaffar had lodged his application to remain permanently in Australia, a decision was made to refuse it because he did not meet the requirements for the class of visa for which he had applied. He sought review by the Migration Internal Review Office, but on 27 October 1998 the office affirmed the decision for the same reasons as the primary decision maker. 6 On 23 November 1998, Mr Gaffar filed an application for review of the decision by the Immigration Review Tribunal. The Tribunal refused his application and affirmed the decision under review that he was not entitled to the grant of a Subclass 805 (Skilled) visa. Evidence was heard from Mrs Che who had been the owner of the Governor's Curry House at Whitfords City Shopping Centre when Mr Gaffar was first employed there. Mr Gaffar was employed in that business for two years. According to Mrs Che, after Mr Gaffar started working for her the business improved so much as a direct result of his cooking that she sold it and acquired a new business under the same name at the Galleria Shopping Centre in Morley. She sold the Whitfords' business in May 1996 to Luchie Wensinger who kept Mr Gaffar on as a specialist chef, cooking Sri Lankan and Indian cuisines. She also made a statement which was before the Tribunal that Mr Gaffar's cooking gained a reputation in the Whitfords area and that his skills contributed to the success of the business and the creation of employment for staff in the business. Ms Wensinger said: "As a business owner it is very difficult to employ local residents with the skills of Sri Lanka and North Indian Cooking, particularly highly skilled people such as Mr Gaffar. These skills are not available in Australia, people like Mr Gaffar should be looked after to teach and train others and pass on the knowledge and knowhow etc." 7 Mr Gaffar left Ms Wensinger's employment in March 1998 and resumed employment with Mrs Che at her new business, the Governor's Curry House at the Galleria Shopping Centre in Morley. Mrs Che's evidence was that she had had another chef for sometime after the move to Morley and that the business was reasonable. After Mr Gaffar had rejoined her, the business improved more than could have been anticipated as a direct result of his ability and high skills. She said, in a statement before the Tribunal: "Our business has now obtained a reputation as being the best for curries in Perth. Mr Azfar Gaffar excels in his field, he holds skills that are not available in Australia and I would know owning two of these types of restaurants and having had another employees. (sic) Mr Azfar Gaffar's skills as a chef in Sri Lankan and North Indian Cuisine are of the highest standing and we need people with this type of ability to train Australian, to give business people like us a fair go." 8 Also before the Tribunal was an assessment by Mr John Pass, a Senior Lecturer in Hospitality and Tourism at the South East Metropolitan College. That assessment was dated 16 September 1997. Mr Pass assessed Mr Gaffar's skills and knowledge in the discipline of Commercial Cook Level 3 (Trade). Mr Pass reported that during his studies Mr Gaffar had covered a range of modules covering food hygiene, food preparation and presentation, principles of food cooking and provodoring. His skills were applied to Western as well as Asian cuisine but there was a strong emphasis on Sri Lanka/Indian cookery techniques. In this area Mr Gaffar had been able to demonstrate "a superior knowledge and technical competence". 9 On observing Mr Gaffar at work at the Governor's Curry House, Mr Pass observed that "…he was a very organized and skilful worker insomuch as he was able to demonstrate suitable skills to indicate a good tradesman like application to the tasks at hand." Although his place of employment somewhat limited the style and type of dishes that he could prepare, his previous experience at the Republic Holiday Inn compensated for the lack of depth in the position he held at the time of the assessment. Mr Pass concluded his assessment saying: "I believe that Mr Gaffar is currently working in a specialized area of cuisine that we in WA have not yet been able to meet. He certainly has the skills expected of a trades person cook and I recommend that he be considered accordingly." Also before the Tribunal were testimonial statements from customers of the Governor's Curry House at the Galleria.
Statutory Framework 10 It is not necessary to set out the complete statutory framework for present purposes. The visa for which Mr Gaffar applied was in a subclass of the General (Residence) Class AS visa and is that designated 805 (Skilled). The relevant provision has now been repealed. In order to qualify for a visa of this class, an applicant was required to meet criteria set out in cl 805.21 in Schedule 2 to the Migration Regulations. In particular an applicant was required to meet the requirements of subclause 805.212(6), which was in the following terms: "805.212(6) An applicant meets the requirements of this subclause if: (a) the applicant produces written testimony given by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to a profession, occupation or other activity as to the applicant's standing in that profession, occupation or activity; and (b) either: (i) the applicant: (A) has an exceptional record of achievement in that occupation, profession or activity; and (B) would be an asset to the Australian community; and (C) would have no difficulty in obtaining employment or in becoming established independently in Australia in that occupation, profession or activity; or (ii) the applicant has a record of outstanding achievement, and is still prominent in the arts or in sport."
The Tribunal's Reasoning 11 After reviewing the evidence the Tribunal, in brief reasons, found that Mr Gaffar was "…a chef in a food hall environment and [that] his position requires him to cook a range of dishes in the Sri Lankan, Thai and Indian style." That food was to be taken away or eaten in the food hall. The dishes were generally of low cost to the customer and he was paid at a rate of $13 per hour. The subclass of visa for which Mr Gaffar had applied required him to demonstrate an exceptional record of achievement in his occupation, profession or activity. The Tribunal held that this required something that made his record unusual or special or out of the ordinary. The fact that he was competent, reliable and industrious would not be sufficient to bring him within the criteria applicable to the visa. Reference was made to a decision of the Tribunal in a matter of Re Chen Kwong Phang (IRT Decision 11917, 26 May 1998) where it had found that an applicant qualified to cook South East Asian cuisine in a food hall environment only required a cooking trade certificate to obtain employment as a chef, whereas a chef in a restaurant or hotel supplied meals of a higher standard. The Tribunal had found further in that case that the work could also be performed by a person experienced in that type of cooking but who had no formal training. 12 The core of the Tribunal's reasoning in this case was contained in its last two paragraphs: "On the evidence before it the Tribunal finds that the assessment of Mr Pass in which he described the Applicant as 'trades person cook' and a 'good tradesman' who had 'suitable skills' fall far below what the legislation contemplates as an 'exception record of achievement'. As he is unable to satisfy paragraph 805.212(6) he would not meet the higher requirement set out in paragraph 805.212(7)(a) or (b) and no claim has been made that he meets paragraph 805.212(7)(c). Furthermore, no claims have been made that the Applicant meets any other subclauses of paragraph 805.212. The Applicant having failed to meet the legislative criteria for this class of visa is not entitled to the grant of a visa under Subclass 805." The Tribunal affirmed the decision under review that Mr Gaffar was not entitled to the grant of a Subclass 805 (Skilled) visa. 13 On 12 May 1999, Mr Gaffar lodged an application for an order of review, said to be an application "…to review the decision of the delegate of the respondent that he be refused General (Residence) (Class A5) Sub-class 805 Skilled permanent visa". This application was misconceived and was amended on 15 June 1999 to an application to review the decision of the Tribunal.
Grounds of Review 14 The grounds stated in the application were as follows: "(a) the decision involved an error of law and/or fact being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both when the Tribunal in interpreting the words 'an exceptional record of achievement' set out in part 805.212 (6) or (7) of the Migration Regulations should have accepted that the food the applicant cooks requires unusual or special skills not in the grasp of an ordinary cook and the Tribunal was of the mistaken belief that because the applicant cooked in a food hall as distinct from an hotel or restaurant which supplied meals of a higher standard he did not meet the criteria. (b) on the evidence presented the Tribunal should have been satisfied that the applicant did meet the requirements of paragraphs 805.212(6) or (7) of the regulations."
Only the first ground raises questions of law which may be reviewed under the Migration Act 1958.
Exceptional Record of Achievement 15 It does not appear that Mr Gaffar was well advised to apply for a skills-based visa given the criteria which it was necessary for him to satisfy in order to succeed in his application. His prospects of success may have been attended with less difficulty had he made his application under the Employer Nomination Scheme. However, it appears that his employer, Mrs Che, was not aware of that scheme at the time that he made his visa application. 16 The criterion in subclause 805.212(6) contains two limbs. The first, set out in par (a), requires the production of written testimony as to the applicant's standing in the relevant profession, occupation or activity. The written testimony must be given by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to the relevant occupation. The Tribunal appears to have assumed, in favour of Mr Gaffar, that written testimony from an Australian citizen or permanent resident would meet the requirement of par (a) notwithstanding the want of any national reputation on the part of that citizen or resident. In other words, the Tribunal appears to have assumed that the requirement for a national reputation attached only to an organisation providing written testimony. Although not in issue in these proceedings, I think that assumption was correct. 17 It was submitted for Mr Gaffar that the Tribunal treated the written testimony from Mrs Che, an Australian citizen, as tendered in support of his contention of an exceptional record of achievement in his occupation of chef and the other requirements of par (b). In this respect it was submitted that the Tribunal erred because all that Mr Gaffar needed to do in respect of par (a) was to produce written testimony as to his standing. That written testimony, it was submitted, did not have to specifically answer the criteria in par (b). In the event, in my opinion, this objection is academic as the Tribunal went on to assess Mr Gaffar against the criterion in par (b) on a different basis than the statement from Mrs Che. It is, however, hard to see what useful purpose would be served by a written testimonial which did not support the proposition that the applicant met one or more of the criteria in par (b). 18 In relation to the application of par (b), it was submitted that the Tribunal had not analysed each of the requirements of that paragraph as required by the legislation and did not make a finding on each of them. It is true that the Tribunal did not address the question whether Mr Gaffar would be an asset to the Australian community and whether he would have no difficulty in obtaining employment or becoming established independently in Australia in his occupation. However it was not necessary for the Tribunal to take that step if it were satisfied that he lacked the necessary requirement of "an exceptional record of achievement" in his occupation. 19 It is the Tribunal's treatment of that criterion that raises a concern in this case. The Tribunal dealt with Mr Pass's evidence of Mr Gaffar's competence and industry as though it were exhaustive of the evidence of his level of skill or achievement in his occupation. It is true enough, that mere competence and industry in an occupation will not amount to "a record of exceptional achievement". Such a record plainly requires something out of the ordinary. The Tribunal stopped at Mr Pass's assessment in its consideration of the evidence against that criterion. There was a curious brevity in this aspect of its reasoning. 20 More importantly, and relevantly to the grounds of review allowed by s 476, the Tribunal seems to have applied, at least by implication, a limitation that a food hall chef could never be said to have an exceptional record of achievement in the occupation as chef. It relied upon a view expressed in an earlier Tribunal decision of Re Chen Kwong Phang that "…an applicant who was qualified to cook South East Asian cuisine in this environment only required a cooking trade certificate to obtain employment as a chef, whereas a chef in a restaurant or hotel supplied meals of a higher standard". The requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions and activities. Some will require far greater levels of knowledge and skill than others in order to rise above the ordinary and the merely competent. And while the applicant for such a visa is required to be "an asset to the Australian community" it is not required that he or she be a "national living treasure". The Tribunal in this case, in my opinion, has taken an unduly restrictive approach to the criterion of "exceptional record of achievement". That criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary. On that basis there was evidence before the Tribunal from Mr Gaffar's former employers and from some of their customers which might have satisfied that requirement. That evidence was never really assessed against the requirement properly construed. I do not suggest, of course, that that evidence must lead to the conclusion that Mr Gaffar answers the criterion for a skilled visa in the relevant subclass. That is a matter for the Tribunal. But in my opinion the Tribunal erred in its interpretation and application of the law in this particular case. The application will be allowed, the Tribunal's decision set aside and the matter remitted to the Tribunal to be decided according to law. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Solicitor for the Applicant: Rikhraj, Barristers and Solicitors
Solicitor for the Respondent: Australian Government Solicitor
Gaffar
Minister for Immigration & Multicultural Affairs