Grey v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Immigration Review Tribunal made on 7 May 1999. The Tribunal affirmed a decision made by a delegate of the respondent on 3 February 1997 ("the primary decision") not to grant the applicant a Class 816 (Special (permanent)) entry permit. The Migration Internal Review Office had affirmed the delegate's decision on 27 April 1998. 2 The following summary of the factual and procedural background is non-contentious and accordingly is taken largely from the Tribunal's reasons for decision. 3 The applicant is an Indian national who arrived in Australia on 3 April 1989 under a visitor visa, issued in New Delhi, which allowed him to remain in Australia for a period of six months. He continued to stay in Australia after the expiry of his visa. On 9 May 1990 the applicant applied for refugee status, but that application was refused on 2 June 1992. 4 On 29 July 1994 the applicant lodged an application with the Department of Immigration and Multicultural Affairs ("the Department") for a Class 816 entry permit of the type described above. The application was based on the applicant's training and work experience as a fitter. 5 The only relevant criterion for the visa with which this application is concerned is to be found in Part 816.721(2)(b) of Schedule 2 of the Migration Regulations 1993 ("para (b)(ii)") 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; . . ." 6 In his application, the applicant relied originally upon his successful completion of a three year apprenticeship as a maintenance mechanic in a chemical plant in India, and work experience in Australia comprising 4 months as a casual trades assistant and thereafter continuing employment as a trainee operator. All of that work experience was after 1 November 1993. Later, he disclosed (and relied upon) additional work experience obtained before he left India. 7 On 9 October 1995 a section of the Department of Industrial Relations ("DIR") known as "Trades Recognition Australia" wrote to the applicant informing him that the evidence which he had provided did not satisfactorily establish that he had training equivalent to an Australian apprenticeship or had six years employment on work ordinarily performed by a recognised trades person in the classification of fitter either overseas or in Australia. 8 It is apparent from the terms of that letter that Trades Recognition Australia had treated the applicant's application as being one for an Australian Recognised Tradesman's Certificate in the classification of fitter under s 41 of the Tradesmen's Rights Regulation Act 1946 (Cth) ("the TRR Act"). The terms of this letter are very similar to an assessment made by DIR on 18 December 1995 in another matter and referred to by Sackville J in Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 at 360-361 and 367-368. 9 In my view, it is quite clear from the terms of the DIR's letter of 9 October 1995 that it had not made an assessment in accordance with para (b)(ii). It had, as I have just mentioned, treated the applicant's application as one for an Australian Recognised Tradesman's Certificate under s 41 of the TRR Act. 10 On 19 October 1995 the applicant wrote to the Department providing additional information to the effect that he had had a further nine months of relevant experience in India after completing his apprenticeship. 11 In response to that letter, the Department wrote, on 31 October 1995, to the applicant in terms which relevantly provided as follows: "I refer to your application for permanent residence under class 816/818, and to your letter of 19 October 1995 to Mr Georgiou [it appears that Mr Georgiou was the Case Officer in the Department handling the applicant's application for an entry permit]. I have decided to offer you a further chance of trades assessment in the trade of Fitter. The most appropriate authority for assessment in this trade is the Overseas Qualifications Unit (OQU) in Perth. The address of the OQU is The Overseas Qualifications Unit 5th Floor, 81 St George's Terrace PERTH WA 6000 Telephone: (09) 426 8888 If you wish to undergo trades assessment in this trade, please apply to the OQU for this assessment and please then advise me within 14 days of the date of this letter that you have applied to the OQU for this assessment." 12 The applicant thereafter applied to the Overseas Qualifications Unit (which is a section of the Western Australian Department of Training) for assessment of his skills as a fitter. 13 On 20 June 1996 the Overseas Qualifications Unit wrote to the applicant, relevantly in the following terms: "RE: ASSESSMENT OF TRADE LEVEL SKILLS SPECIAL VISA CATEGORY 816 I refer to your application for assessment as a Fitter for the purpose of satisfying the requirement of the Department of Immigration and Multicultural Affairs for permanent residency in Australia. Following an assessment of your skills conducted at the Thornlie TAFE College, it is the opinion of this Department, that although you possess a good general knowledge of tools of trade and their usage, your practical skills were not of trade standard." 14 On 3 February 1997 a delegate of the respondent decided that the applicant did not satisfy the requirements for the grant of a Transitional (permanent) Class 816 visa. 15 The reason given for this part of the primary decision (the primary decision also dealt with the requirements for another class of visa) was that the applicant's training and work experience as a fitter had been assessed by the Department of Industrial Relations and the Western Australian Department of Training as failing to meet Australian education or training standards for that trade. 16 On 27 April 1998 a Review Officer affirmed the primary decision. The relevant paragraphs of that decision read as follows: "816.721(2)(b)(ii) The applicant had applied to the Department of Industrial Relations (DIR) for assessment as a Fitter. On 9 October 1995 DIR advised the applicant that he did not satisfactorily establish that he had training equivalent to an Australian apprenticeship or had six years employment on work ordinarily performed by a recognised trades person in the classification of Fitter overseas or in Australia and therefore his application was refused. The applicant was also assessed by the Western Australian Department of Training who advised the applicant on 20 June 1996 that his practical skills were not of trade standard. The applicant made an application for a review of a (sic) decision on 6 March 1997, and stated his solicitor would forward a detailed submission. On 25 March 1998 a letter was sent to the applicant and a copy to his solicitor requesting that he provide the reasons why he wanted the original decision reviewed within 14 days. The applicant contacted this office to request an extension of time until 22 April 1998, this was granted. At the time of this decision no further information has been provided. On 1 November 1993 the applicant did not hold an overseas trade qualification, or had (sic) work experience, that is assessed as meeting Australian education or training standards for any trade. Therefore, the applicant fails to meet the requirements of this paragraph." 17 On 11 May 1998 the applicant applied to the Tribunal for review of the primary decision. Shortly thereafter, on 3 June 1998, the Western Australian Department of Training wrote to the applicant in the following terms: "The Department, in reviewing the assessment in the light of the criteria applying to Category 816 applicants, is now able to make a more positive statement in judging your competence prior to 1 November 1993. The fact that you were unable to work in the metal trades area for over six years prior to the TAFE trade test would have had (sic) seriously affected your skills and abilities, particularly in the practical test. For purposes of the determining trades status (sic) under Special Visa category 816, the Department assesses your level of skill and knowledge, on or prior to 1 November 1993, as having been at the level of that required of a trades person Fitter, in Australia. We acknowledge the major injury to your right hand, sustained following your trade test, is most unfortunate and would make it extremely difficult for you to operate as a Fitter or be able to repeat a practical test. Additionally, concerning your work in Australia, we note the excellent references from the Leader Newspaper Group and your successful employment record with AMCOR Fibre Packaging and also with Australian Pacific Air Conditioning who employed you as a Forklift Driver following your accident." 18 The applicant submitted that letter to the Tribunal. 19 On 17 July 1998 the Tribunal wrote to the applicant's migration agent in the following terms: "In response to your inquiry with the Tribunal about Mr Gray's (sic) trade assessment I should advise you of the following. Irrespective of the advice offered by The Western Australian Department of Training as to Mr Gray's (sic) Trade qualifications, the Department of Workplace Relations and Small Business have reiterated that certain trades/ occupations can only be assessed by a prescribed agency. In this case, given that Mr Gray's (sic) occupation is that of Fitter, the prescribed agency is Trade (sic) Recognition Australia. To obtain a determinative outcome for Mr Gray, (sic) it is recommended that you write to TRA seeking a review of their previous decision and in particular asking them to determine his qualifications and skill ability at 1 November 1993, as required for this class of visa. There should be no fee for this particular review of the original opinion. You may wish to refer to 'Bellaiche v DIEA' a copy of which is attached. An appeal to the Minister, under s 351, would not proceed until he is satisfied that the review process has been exhausted." 20 On 25 August 1998, Trades Recognition Australia wrote to the applicant's migration agent advising that Mr Grey's training and employment experience had been assessed against a set of criteria for Indian qualifications. A two-page document setting out those criteria was enclosed in that letter. Although it was not clear whether that document had been in evidence before the Tribunal, counsel for the applicant had no objection to it being admitted into evidence. 21 The document has a reference "IND 6/92" at the top of each page and a note at the foot of the second page which reads "Note: A joint meeting of Central Trades Committees on 26 June 1992 decided that a Provisional National Apprenticeship Certificate could be accepted to satisfy the requirements of paragraph 1 of these criteria". 22 Counsel for the applicant drew my attention to the fact that there is no statement in the letter to the effect that these criteria were the criteria applicable as at 1 November 1993. 23 The applicant has adduced no evidence that there were any different criteria applicable as at 1 November 1993. 24 From the references in the document itself which I have described immediately above and from the fact that in the penultimate paragraph of the covering letter, the text of which is set out below, there is reference to "as of November 1993", I am prepared to infer, and I do infer, that the document (which became Exhibit R1) does set out the criteria which Trades Recognition Australia applied as of 1 November 1993. 25 It is apparent from a fair reading of its letter of 25 August 1998 in conjunction with Exhibit R1 that Trades Recognition Australia applied those criteria and, in particular, the first of two alternative criteria appearing on page 1 of that document. That criterion reads as follows: "The person must … have: (1) completed successfully an apprenticeship in the blacksmithing, boilermaking, engineering or sheetmetal trades pursuant to the Apprentices Act 1961, received the National Apprenticeship Certificate and, if necessary, had a period of subsequent employment on work ordinarily performed by a tradesperson in that classification, which together with the period of apprenticeship, totals not less than 4 years;" 26 The evidence shows that the applicant received a National Apprenticeship Certificate from the Minister of Labour of the Government of India as a result of apprenticeship training from 26 April 1985 to 25 April 1988 and having passed the prescribed trade test by the (Indian) National Council for Vocational Training held in June 1988. It seems clear, in my view, that the Trades Recognition Australia assessor was concerned that the total period of the applicant's employment during apprenticeship and after apprenticeship fell short of four years. The seven concluding paragraphs of the letter of 25 August 1998 were in the following terms: "A Trades Recognition Australia Skills Assessor assessed the documentary evidence submitted by Mr Grey. Skills Assessors are qualified tradespeople who are also accredited workplace assessors against competency standards endorsed by the National Training Board. The Skills Assessor considered Mr Grey's documentary evidence against the criteria outlined above. It was determined that although Mr Grey appeared to have obtained an Indian National Apprenticeship Certificate in Mechanical Maintenance of Chemical Plant he could not substantiate with verifiable evidence that he had a further 12 months employment to satisfy the assessment criteria for India. Mr Grey's skill application was refused on 19 September 1995. Consequently his application for migration was also refused. I understand he is to appeal the migration decision before the Immigration Review Tribunal. Going to your request I have reviewed all the contents of Mr Grey's file. In considering all the evidence before me I find no reason to overturn the original decision to refuse his skills application. As previously advised Mr Grey was not eligible for classification as a tradesperson because he did not meet the Australian education or training standards in any trade classification assessed by TRA as of November 1993. TRA is the assessing authority under the regulation to the Migration Act if Mr Grey still believes he is able to satisfy the requirements of the Trademen's Rights Regulation Act, or for an assessment in a non-TRR Act trade, he may lodge a new application at any time. However, a further application can only be made in the context of an active application to migrate to Australia and must be accompanied by the relevant fee." 27 On 17 September 1998 the applicant's migration agent wrote to Trades Recognition Australia forwarding evidence of the applicant's employment as a fully qualified tradesman in India after having completed his apprenticeship. The agent asked that Trades Recognition Australia reconsider its previous decision. 28 On 27 October 1998 the applicant submitted to Trades Recognition Australia a twenty-five page document. 29 The first four pages of that document comprise a printed form, issued by Trades Recognition Australia, which constituted an application for assessment of "trade training and experience". The remaining documents comprised a curriculum vitae and various certificates. The respondent accepts that those documents show that the applicant had relevant work experience in India over a period of some ten months following the completion of his apprenticeship. 30 On 9 November 1998 Trades Recognition Australia wrote again to the applicant. That letter included the following paragraphs: "The processing of your Application for Assessment of Trade Training and Experience has been finalised. A careful assessment of the information submitted with your application has revealed that you are not eligible for classification as a tradesperson because you have insufficient time, training and experience and therefore do not meet the Australian education or training standards in any trade classification assessed by Trades Recognition Australia. The attached Reasons for Decision Sheet provides a detailed explanation of this decision." 31 The "Reasons for Decision Sheet", on its first page, indicated that the applicant's claim for formal training was verified by documents, that the documentary evidence did not demonstrate adequate relevant training/work experience and that the length of relevant training/work experience was verified by documents. It is clear from the document that its author transposed the length of relevant training/work experience required ("4 yrs") with the length of relevant training/work experience claimed by the applicant (which at this stage the assessor measured at "3 yrs 8 months"). The Reasons for Decision Sheet concluded with the following: "COMMENTS Mr Gray (sic) applied for recognition as a Fitter on the grounds that he completed a 3 year formal apprenticeship training in India under the National Council for Vocational Training scheme to the level of National Apprenticeship Certificate in Mechanical Maintenance of Chemical Plant. That qualification would closely align with a trade of Fitter in Australia. Whilst such training is recognised under paragraph 1 of our criteria for recognition of formal trade training in India, the criteria stipulates a minimum 4 years of combined trade training and post training employment experience in the same work classification. For the purpose of this assessment Mr Gray (sic) is unable to meet that requirement. He is also unable to demonstrate the level and complexity of work experience which would qualify him for recognition as a tradesperson in Australia as it was already highlighted by his failure to pass a trade test in 1996 conducted by Thornlie TAFE College on behalf of WADT. Accordingly, due to already established facts, he is unable to establish a prima facie case for recognition as a tradesperson in Australia in any trade classification currently assessed by TRA." 32 On 4 December 1998 the applicant's migration agent wrote to Trades Recognition Australia. In that letter, the agent point out that their client had accumulated annual leave from the company with which he had served his apprenticeship and also with his last employer in India which would bring the total, so it was argued, of apprenticeship and post-apprenticeship employment to 3 years and 11 months. The agent also complained about what it described as the inconsistency of accepting the decision of the Western Australian Department of Training made in 1996 but not that of the same body made in June 1998. The agent submitted that: "… our client has a prima facie case and should be recognised as a trades person on 1 November 1993, based on the assessment from WADT in June 1998." 33 By a letter dated 26 March 1999, Trades Recognition Australia again informed the applicant that: "A careful assessment of the information submitted with your application has revealed that you are not eligible for classification as a tradesperson because you have insufficient time, training and experience and therefore, do not meet the Australian education or training standards in any trade classification assessed by Trades Recognition Australia. The attached Review Sheet provides a detailed explanation of this decision." 34 In the attached Review Sheet there is reference to the applicant's first application in July 1995, its refusal and the outcome of the trades assessment on 20 June 1996. I set out below some further relevant paragraphs from the Review Sheet: "His second application was made through the Immigration Review Tribunal in November 1998 and at that time we were informed that Mr Grey had sought a review of his trade test and that the Western Australian Department of Training had reassessed his skills and knowledge as being at the level of a tradesperson Fitter in Australia, on or prior to 1 November 1993. Folio 41 & 76 refer. Mr Grey was refused recognition on 9 November 1998 - had less than 4 years combined training and employment and was therefore unable to satisfy formal training requirements. It was also noted that the trade test in 1966 (sic) revealed that his level and complexity of work experience was below Australian trade standards. Folio 80 refers. The applicant is seeking a review of the decision to refuse his application for recognition as a tradesperson in Australia. The review application consisted of a statement from Todd International Pty Ltd and a copy of the recent review assessment from the Western Australian Department of Training. Todd International claim that Mr Grey should be given additional credit towards his combined training and employment experience in India and that he should be recognised as a tradesperson on November 1 1993, based on the latest assessment from the Western Australian Department of Training. Folios 82 and 84 refer." 35 There was then a summary of evidence which by way of overview, indicated that the applicant's claims for acceptable formal training were verified by documents but that the documentary evidence did not demonstrate adequate relevant training/work experience in that the period of such training/work experience was 3 years 10 months rather than 4 years as required. The document concluded in the following terms: "CONCLUSION Todd International [the applicant's migration agent] submit that Mr Grey should be recognised as a tradesperson on November 1 1993, based on the latest assessment from the Western Australian Department of Training. The assessment was based on the fact that Mr Grey had not worked in the trade since 3/89 and therefore it was considered that this would have seriously affected his practical skills and abilities in the 1996 test. Mr Grey was not refused trades recognition as a direct result of the original trade test. He was refused recognition on the grounds that he had less than 4 years combined training and employment in the trade of fitting and this situation has not changed. [Emphasis added] The original trade test indicated that in 1966 (sic) that (sic) Mr Grey's practical skills were not of trade standard and as he has not worked in the trade since 3/89, I would not be willing to speculate on the level of his trade skills as at November 1 1993." 36 On 29 April 1999 the applicant's migration agent wrote to the Tribunal referring to the fact that the decision of Trades Recognition Australia was based on the fact that their client had less than 4 years combined training and employment in the trade of fitting. The agent pointed out that the applicant had a period of 3 years and 10 months in total of such training and employment before his arrival in Australia (in April 1989) and had not been able to obtain employment until April 1994. The agent's letter contained the following passages: "We understand the Tribunal are required to accept the assessment from the Trades Recognition in Canberra, however the State body of the Western Australian Department of Training who is now doing overseas skill recognition has stated that Mr Grey did meet the criteria set down, on November 1st 1993. I believe that Trades Recognition, and the Western Australian Department of Training both agree that, Mr Grey does meet the criteria as a Trades man however he is short of an eight week period to meet the criteria set down for the purpose of Immigration. It has not been taken into consideration that there could be a few weeks annual leave in his employment in India which may bring that period into a lesser period of about four weeks. We ask the Tribunal to make a decision based that (sic) Mr Grey did on November 1st, 1993 meet the criteria set down for a tradesperson in Australia regardless of a 4 week period of not being able to be employed in that trade."