Kumar v Immigration Review Tribunal

The Submissions The written submissions put forward by Ms Bateman on behalf of the applicant were modified slightly in the course of oral argument. As I understood her, she made three submissions. · First, the IRT had erred in law by construing the word "trade" in reg 816.721(2)(b)(ii) (to which I refer as "par (b)(ii)") too narrowly. Its reasoning implied that, for a trade to exist, an appropriate trade certificate was necessary, and that there should be a common training scheme or a set of standards regulated by a recognised body. · Secondly, par (b)(ii)(A) required the IRT to make inquiries, in the first instance, of the Commonwealth Department of Industrial Relations, to ascertain whether the applicant's work experience as a storeperson had been assessed as meeting Australian education or training standards. The failure to undertake such inquiries constituted a failure to comply with the procedures specified by the Regulations and review was therefore available pursuant to s 476(1)(a) of the Migration Act. · Thirdly, the IRT had failed to take into account a submission on behalf of the applicant that the trade of a storeman was recognised in New South Wales as "apprenticeable" (presumably meaning that a person could qualify as a storeman by undertaking a program as an apprentice). This amounted to a failure to observe the procedures required by the Migration Act to be observed in connection with the making of a decision. Mr Beech-Jones, on behalf of the Minister, submitted that the IRT had applied a correct test favourable to the applicant to determine whether he was engaged in a "trade". He contended that the narrower test, adopted by Moore J in Subraju, was to be preferred to the broader test in Kumar. However, that issue did not arise in the present case, because the IRT had in fact applied the broader test laid down by Wilcox J in Kumar. The IRT had decided that the applicant was unable to satisfy the broader test, because the occupation of storeman lacked the characteristics of a skilled calling or handicraft. Mr Beech-Jones also put an alternative, although related argument. He submitted that, in order to determine whether an applicant has been engaged in a "trade" for the purposes of par (b)(ii), it is necessary to consider whether the applicant's occupation is one in respect of which Australian education or training standards exist. Unless that question is answered affirmatively, it is not possible for the assessment contemplated by par (b)(ii) to take place. In this case, the IRT had found that the applicant's occupation as a storeman was not one in respect of which Australian education or training standards were in force. It was then said on behalf of the Minister that the applicant's second argument did not need to be considered, because the IRT is required to inquire whether the applicant's work experience meets Australian standards only if satisfied that the applicant's work experience was in a "trade". As the IRT had rejected the applicant's contention that his occupation as a storeman was a trade for the purposes of par (b)(ii), there was no need for it to address the second question, namely, whether the applicant's work experience "is assessed as meeting Australian education or training standards for that trade". Finally, Mr Beech-Jones submitted that the applicant's third argument lacked foundation because the IRT had in fact taken into account the argument that the occupation of storeperson was the subject of apprenticeship arrangements in New South Wales. It should be noted that the Minister did not dispute, at least for the purpose of the present case, that the expression "work experience" in par (b)(ii) includes work experience in a trade in Australia; cf Mak v Immigration Review Tribunal (1994) 48 FCR 314 (FCA/Carr J), at 327. I was not informed that the question had been debated in another case, which has now been decided: Tanchiatco v Minister of State for Immigration and Multicultural Affairs (FCA/Branson J, 20 August 1997, unreported). In that case her Honour held that, despite some textual difficulties, the reference to "that trade" in par (b)(ii) include a trade in which the applicant had work experience in Australia (at 3). Construction of par (b)(ii) Before considering the authorities referred to by counsel, it is convenient to consider the language of par (b)(ii) in its context. The purpose of the Class 816 entry permit, relevantly, is to allow certain persons who, like the applicant, have applied for determinations that they are refugees, to gain permanent residence in Australia. In the circumstances of the present case, the applicant must satisfy the training or skills requirement specified in reg 816.721(2). Regulation 816.721(2) covers applicants who have educational, trade or technical qualifications that either have been obtained (or are being obtained) in Australia, or have been obtained overseas. An applicant with overseas qualifications satisfies reg 816.721(2) only if the qualifications are assessed as comparable to or meeting Australian educational or training standards. (Overseas technical or general academic qualifications are to be assessed by NOOSR, while overseas trade qualifications are to be assessed by the bodies nominated in par (b)(ii).) Under par (b)(ii), an applicant can rely on his or her work experience (which, as the Minister concedes, can be work experience in Australia), if that experience is assessed as meeting Australian education or training standards for "that trade". Paragraph (b)(ii) does not explicitly state that the work experience must be in a "trade". However, it seems clear that par (b)(ii) is framed on the assumption that the applicant's work experience must be in a "trade". Indeed, the submissions on behalf of both the applicant and the Minister assumed that this was so. The question then arises as to what criteria should be applied by the IRT in determining whether a particular applicant's work experience has been in a "trade", as that word is used in par (b)(ii). It is clear that the word "trade" as applied to an occupation, is capable of a broad meaning. The Macquarie Dictionary definition, for example, includes "a form of occupation pursued as a business or calling, as for a livelihood or profit; some line of skilled mechanical work." One of the meanings of "trade" recorded in the Shorter Oxford Dictionary is the following: "The practice of some occupation, business, or profession habitually carried on, esp when practised as a means of livelihood or gain; a calling; now usu applied to a mercantile occupation and to a skilled handicraft, as dist from a profession, and spec restricted to a skilled handicraft, as dist from a professional or mercantile occupation on the one hand, and from unskilled labour on the other." (Both of these definitions were cited by Wilcox J in Kumar, at 551.) Viewing the question independently of the authorities, there does not seem to me to be anything in the language of par (b)(ii), having regard to its context, which suggests that the broad dictionary definition of "trade" should not be accepted. In other words, a decision-maker should consider whether the applicant's experience is in a skilled handicraft or calling, as distinct from a professional occupation on the one hand and unskilled labour on the other. If the answer is in the affirmative, the applicant's work experience is in a "trade", for the purposes of par (b)(ii). However, the decision-maker's task is not confined to applying the dictionary definition of "trade" to the applicant's work experience. It is clear that par (b)(ii) contemplates that, assuming the applicant's work experience is in a trade, an assessment is to be made of whether his or her work experience meets Australian education or training standards for that trade. Before the assessment contemplated by par (b)(ii) can be made, it is necessary for the decision-maker to consider whether the trade has Australian education or training standards. Unless the trade does have such standards, the assessment (which is to be carried out by one of the bodies or persons specified in sub-pars (A),(B) or (c) cannot take place. I do not read par (b)(ii) as requiring one of the bodies or persons specified in sub-pars (A), (B) or (c) to ascertain whether there are Australian education or training standards for that trade. Rather, the language suggests that one of the bodies or persons specified in sub-pars (A), (B) or (c) must carry out an assessment of whether the applicant's particular work experience in a trade meets the existing standards for that trade. I think that the better view is that the question whether there are any Australian education or training standards in existence for that trade must first be determined by the decision-maker, in this case the IRT. It follows that, in my view, a decision-maker applying par (b)(ii) must consider, first, whether the applicant's work experience is in a "trade". Next, if the applicant does have work experience in a trade, the decision-maker must consider whether there are Australian education or training standards for that trade. This is a factual inquiry which, to use the language of Branson J in Tanchiatco v Minister, must consider whether the trade in which the applicant has work experience is "one in respect of which Australian education or training standards can sensibly be identified" (at 4). If the factual inquiry is resolved favourably to the applicant, it is then necessary for the decision-maker to consider whether the applicant's particular work experience is assessed as meeting the relevant Australian education or training standards. The last stage of the inquiry must be carried out in accordance with the process set out in par (b)(ii). In summary, it seems to me that par (b)(ii) requires the decision-maker in a work experience case to undertake what might be described as a three stage process, as follows: · The first task is to ascertain whether the applicant has work experience in a "trade". In undertaking this task a broad construction of the term "trade" should be adopted. Part of the first task is to identify the "trade" in which the applicant has had work experience. · The second task is to ascertain whether there are Australian education or training standards for the trade in which the applicant has work experience. · The third task (which arises only if the second is resolved in the affirmative) is to ascertain, in accordance with the process set out in par (b)(ii), whether the applicant's work experience is assessed as meeting the Australian education or training standards for the particular trade. I should make clear that, by describing the process as a three staged one, I do mean to imply that there must always be a rigid division in the decision-maker's reasons. Obviously, there is a close relationship between ascertaining whether the applicant has work experience in a trade and determining whether the relevant trade has Australian education or training standards. There are likely to be factual issues common to both questions. The precise approach taken by decision-makers may vary from case to case, depending on the issues and the nature of the evidence. However, I think that in a given work experience case, if the applicant is to satisfy the requirements of par (b)(ii), each of the questions I have identified must be answered favourably to the applicant. The Authorities I now turn to the authorities which were referred to in argument. The issue in Kumar, a decision on which Ms Bateman relied, was whether the occupation of secretary was an occupation in Australia for which a "trade certificate" was "required". It was accepted by the parties in that case (at 551) that the word "required" was used in the regulations in the sense of required in fact or actual practice, rather than required as a matter of law. Wilcox J held that certain skills certificates obtained by the applicant did not amount to a "trade certificate". The core of his Honour's reasoning is contained in the following paragraph (at 552-553): "I see no warrant in the regulations for a narrow interpretation of 'trade'. In particular, I do not think that the word should be confined to traditional occupations, such as those of the carpenter, bricklayer and tailor, as suggested by counsel for the Minister. As the Shorter Oxford Dictionary definition makes apparent, 'trade' is a word applicable to any skilled handicraft, as distinct from a profession. The work of a secretary, under modern conditions at least, is a skilled handicraft. Accordingly, if at the end of a comprehensive training programme, a reputable institution issued a certificate of competency to be a secretary, I would regard that certificate as a 'trade certificate'. But I do not think that a certificate as to competency in one particular aspect of a secretary's 'trade', such as typewriting or shorthand, is enough." Just as Wilcox J saw no warrant for a narrow interpretation of "trade" in the regulations with which he was concerned, I see no warrant for adopting a narrow interpretation of that word when construing par (b)(ii). But, as I have explained, par (b)(ii) requires the decision-maker to go beyond asking whether the applicant has had work experience in a trade. In Kumar, Wilcox J had to consider the meaning of the phrase "trade certificate", not merely the meaning of the word "trade". Similarly, par (b)(ii) requires the decision-maker to consider not merely whether the applicant has work experience in a "trade", but whether that trade has Australian education or training standards and, if so, whether the applicant's experience is assessed as meeting such standards. In my opinion, there is nothing in Kumar that is inconsistent with what I think is the correct construction of par (b)(ii). In Mak, one of the issues was whether certain diplomas obtained in Australia could be regarded as "trade certificates" which had been assessed by the relevant Australian authority as equivalent to a "trade certificate awarded by an Australian educational institution". (The case involved two versions of the relevant regulation, namely Migration Regulations 1989 (Cth), reg 146(1)(k)(ii). However, nothing turns on this aspect of the decision for present purposes.) The diplomas obtained by the two applicants were in marketing, business studies and general insurance. Carr J expressed agreement with the approach to the term "trade certificate" adopted by Wilcox J in Kumar. He pointed out (at 334) that the IRT had made no inquiries to obtain guidance as to the qualifications required for the trades of marketing, business management or general insurance. His Honour summarised the position as follows (at 335): "In my view the Tribunal should have given consideration to the questions (a) whether there were relevant trades and what they were; (b) what were the qualifications in Australia for entrance into that trade and (c) whether any of the principal's qualifications were assessed by the relevant Authority or would have been assessed, had such an authority been asked, as equivalent to those Australian qualifications when the original decisions were made. The Tribunal did not do so and in failing to do so, in my opinion erred in law." Of course, Mak did not involve consideration of the same regulation as the present case. However, Carr J's approach seems to me to support the proposition that par (b)(ii) requires consideration of the three questions I have identified. In Subraju, the question was whether the applicant's work experience as a credit control officer was "work experience" of the kind comprehended par (b)(ii). The IRT had decided, in reliance on Kumar, that the term "trade" referred to any "skilled handicraft". However, it found that the applicant's work as a credit control officer did not answer this description. Moore J held that the IRT had erred in the test it applied, but that its error was ultimately immaterial. His Honour pointed out (at 316) that par (b)(ii) is directed to employment where sufficient work experience might be viewed as an adequate substitute for a more formal qualification. He noted that the equivalent work experience issue only arises in par (b)(ii) in relation to a "trade qualification", as distinct from the "technical qualification" referred to in par (b)(i). He inferred from this distinction that par (b)(ii) was not intended to include areas of employment in which a person might gain technical qualifications. He considered that the expression "trade qualification" in par (b)(ii) is intended to be equivalent to the term "trade certificate", which is defined in reg 816.131. That definition refers to a certificate issued by a State or Territory training authority or a TAFE (Technical and Further Education) institution "following initial trade training undertaken in conjunction with an apprenticeship or following non-apprenticed entry". Moore J expressed the view (at 316-317) that the reference to an apprenticeship in the definition of trade certificate suggested that the word "trade" in both the expression "trade certificate" and "trade qualification" is limited to "trades of the type in which trade skills might be gained by on the job training as an apprentice". He thought that the reference to work experience in par (b)(ii) was similarly limited; that is, it is concerned with work experience for a trade for which there might exist a "trade qualification". Work as a credit control officer did not satisfy this test, since it was not an occupation in which trade skills might be gained by on-the-job training as an apprentice. If the construction adopted by Moore J in Subraju is correct, it would give the word "trade" in par (b)(ii) a narrower meaning than suggested by Kumar, since it would cover only work experience in a trade of a kind in which trade skills could be obtained by on-the-job training as an apprentice. Ms Bateman did not concede that, if Subraju were correct, the applicant had to fail, since (so she contended) the IRT had failed to take account of material suggesting that the trade of a storeman was recognised in New South Wales as appropriate for apprenticeships. Nonetheless, Moore J's construction would give the word "trade" in par (b)(ii) a considerably more restrictive construction than that suggested by the dictionary definitions. The most recent case construing par (b)(ii), referred to by counsel, is Pillay v Minister of State for Immigration and Multicultural Affairs (FCA/Tamberlin J, 29 July 1997, unreported). The applicant was an experienced secretary in South Africa. In that country, she had upgraded her skills through a formal secretarial course, including an accounting component. In Australia she completed, with distinction, a one year TAFE course in accounting. In 1987 she commenced work in Australia in a bank, and in 1989 she was promoted to the position of settlements clerk in the bank's head office, a "high pressure and extremely responsible job". She remained in that position until after 1 November 1993. The IRT rejected the applicant's claim on the basis of the reasoning in Subraju, because she had not undertaken training or employment in a trade for which an apprenticeship was necessary. Tamberlin J identified the issue for determination as whether the applicant's occupation on 1 November 1993 "was one which could be considered a 'trade' and one for which she was appropriately qualified". His Honour saw nothing in reg 816 to support a narrow interpretation of the undefined expression "trade", Pillay, at 7. Had there been an intention to restrict the expression, it would have been easy to insert a restrictive definition: ibid. Tamberlin J therefore disagreed with the approach taken in Subraju. He considered it unsound to adopt a restrictive interpretation of par (b)(ii) on the basis of "somewhat oblique inferences" from the definition of "trade certificate". The word "trade" was a distinct and discrete expression, which should not be narrowed by the definition of a different term used elsewhere in the regulation. Tamberlin J also disagreed (at 8) with aspects of Wilcox J's judgment in Kumar: "In substance, I agree with the approach taken by Wilcox J that the Court should prima facie favour a broad interpretation of the expression 'trade'. However, I am unable to share his Honour's view that a certificate as to competency in one particular aspect of a secretary's 'trade' is not sufficient to come within the definition of 'trade'. It is a question of fact and for evidence. In my view, it would be open to find, in appropriate circumstances, that skills such as typing and shorthand come within the definition. For example, in the case of a highly skilled typist or shorthand reporter, who undergoes a comprehensive and rigorous training, in the form of work experience, it would be open to find that the occupation could be described as a 'trade' within the meaning of the provision. Moreover, the language in the sub-clause, provides no warrant for developing further sub-sets within the term 'trade'. Such an approach unnecessarily raises further difficulties in applying the section. Once it is determined that it is open to find that an occupation may be a trade, it is for the Tribunal to decide on the evidence whether it is a 'trade'. This is the approach adopted by Carr J in Mak, with which I agree." I am not entirely sure that Tamberlin J is correct in attributing to Wilcox J the view that a skilled shorthand typist, as distinct from a secretary, would not be engaged in a trade. Wilcox J did not precisely address that issue, concentrating instead on the meaning of the phrase "trade certificate". Be that as it may, Tamberlin J clearly preferred a broad approach to the word "trade" in par (b)(ii) and disapproved of the restrictive interpretation adopted by Moore J in Subraju. With respect, I think that Tamberlin J's criticisms of Subraju are well-founded. It is, in my opinion, very difficult to incorporate into par (b)(ii) the definition of "trade certificate", when that expression is not used in par (b)(ii). Had the drafter intended to incorporate the definition of "trade certificate" into par (b)(ii), the obvious course would have been to employ that very expression in par (b)(ii). That course was not adopted. No issue arose in Pillay as to whether the applicant's occupation as a settlements clerk was one in respect of which Australian education or training standards existed. Tamberlin J therefore had no occasion to consider the application of par (b)(ii) to a case such as the present, where it is said that no such education or training standards relate to the occupation of storeman. There is nothing in his Honour's reasoning that is inconsistent with the approach that I think should be taken to the construction of par (b)(ii). Since the argument in the present case, par (b)(ii) has been considered by Branson J in Tanchiatco v Minister. In that case, her Honour affirmed a decision by the IRT that a person having work experience in Australia as a process worker or machine operator of a squash ball assembly machine did not have work experience in a "trade". I have already referred to her Honour's holding that the reference to "that trade" in par (b)(ii) includes a trade in which the applicant has work experience in Australia. Her Honour also said that the "notion of a trade involves recognition of a category or body of practical vocational skills of some difficulty and some generality" (at 5). The concept of a trade is distinct from that of a "job". Her Honour considered that her approach was consistent with that applied by Wilcox J in Kumar. Applying that approach, she considered that the applicant's work experience was not of a sufficient level or generality to constitute work experience in a "trade". It follows that the only case inconsistent with what I consider to be the correct construction of par (b)(ii) is Subraju. As I have explained, I agree with Tamberlin J in Pillay, that Subraju adopts a somewhat narrower interpretation of the word "trade" than is warranted. None of the cases has directly addressed the significance of the presence or absence of Australian education or training standards for a particular occupation, where an applicant relies on work experience in that occupation to support a claim that the requirements of par (b)(ii) have been satisfied. Did the IRT err? The IRT's reasons are brief and, in certain respects, not entirely clear. In the passages reproduced earlier, the IRT referred to the fact that a previous decision by the Tribunal Member had applied the interpretation of "trade" put forward by Wilcox J in Kumar. The earlier IRT decision, N95/01828, which was in evidence, concerned an applicant whose work experience was as a "fish-filleter". In that decision, the IRT ruled that the occupation of "fish-filleter" could not be regarded as a trade, having regard to the "essential qualities of the occupation and its standing in Australia". Drawing on that decision, the IRT in the present case said that the concept of a "skill, calling or handicraft as distinct from a mere occupation" required not merely that the applicant be good at his or her job or train for it, "but that the job be objectively recognised as a calling or handicraft involving training to produce the necessary skill". The IRT's reasons refer to Subraju, but do not explicitly state whether the IRT intended to follow that case. In my view, when read as a whole, the IRT's reasons apply the broader test of "trade" formulated in Kumar, which was referred to in the previous IRT decision, rather than the narrower test posited in Subraju. Had the IRT intended to apply the narrower test, I would have expected it to say (as did the IRT in Pillay) that the absence of an apprenticeship requirement was fatal to the applicant's case. The IRT did not adopt this course. Rather, it relied on a number of factors to support the conclusion that the occupation of storeman was not a "trade" for the purposes of par (b)(ii). These factors included the lack of general recognition that the occupation of storeman is a trade, a skilled calling or handicraft; the absence of a trade certificate or industry-wide training program; the fact that training as a storeman is "on-the-job" and specific to particular employers rather than possessing common features, and the absence of a recognised body responsible for regulating the conduct, competence or skill levels of storemen. Since the IRT did not apply the narrow test of "trade" formulated in Subraju, it did not fall into error in this case. But Ms Bateman submitted that, whatever the correct test of "trade", the IRT had erred by requiring an occupation to be objectively recognised as a trade by such means as trade certificates, common training schemes or regulatory standards. In my opinion, there would be some force in Ms Bateman's criticism of the IRT's reasons if they were intended to state that an occupation cannot be a trade unless there is a recognised training program or certification process applicable generally to persons seeking employment in that occupation. As Wilcox J said in Kumar (at 552), "trade" is a word capable of applying to any skilled handicraft (and, one might add, any skilled calling), other than the professions. The fact that the evidence establishes, in a particular case, that there is no recognised training scheme for a given occupation and that no recognised body regulates training standards for that occupation, is not necessarily incompatible with a conclusion that the occupation constitutes a trade. New skills and occupations are emerging continually, in response to changing technologies and conditions in the market-place. On-the-job training may be the only way of gaining the necessary skills for a particular occupation that can be described as a skilled handicraft or calling. There may simply have been no opportunity or occasion for the establishment of formal training or recognition procedures for that occupation. In my view, it is appropriate to take into account, in determining whether an occupation is a trade, that training programs are (or are not) available to potential entrants and that a particular body does (or does not) regulate standards for that occupation. But the absence of training programs or regulatory standards is not necessarily fatal to the contention that an occupation is capable of being regarded as a trade. It is, of course, necessary to give the IRT's reasons a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272, per Brennan CJ, Toohey, McHugh and Gummow JJ. Adopting this approach, I do not think that the IRT applied an impermissibly narrow or rigid test in deciding that the applicant's occupation as a storeman was not a "trade" for the purposes of par (b)(ii). The reference in the IRT's reasons to the need for "objective" recognition of the occupation as a calling or handicraft involving training seems to me to reflect the notion that, in order to constitute a trade, the occupation must be one requiring skills. It does not seem to me inappropriate to accept the importance of external recognition (that is, external to the particular applicant and his or her employer) that the applicant's occupation is a skilled calling, for which training is required. This emphasis must not preclude consideration being given to the nature of the applicant's skills and the training he or she has undertaken to acquire those skills. Nor should the absence of a particular form of recognition, such an industry-wide training program, be decisive of the question whether the applicant's occupation is a trade. Recognition that an occupation is a skilled calling or handicraft may take many different forms. In this case, the IRT did not limit its inquiry to whether the occupation of storeman was recognised as a trade in some specific way or by some particular organisation. The IRT referred to the absence of generally recognised training or regulatory standards and of an appropriate trade certificate, but expressly took into account other factors. These included its finding, not challenged in this Court, that "storemen are not recognised...generally as practising a trade, a skilled calling or handicraft". The IRT was clearly aware of the skills the applicant required to discharge his duties, since these were set out fully in the reasons. It was also aware of the on-the-job training he had undertaken, to acquire the skills necessary to discharge his duties as a storeman. It found that training as a storeman is "individual rather than possessing basic common features required of all those engaged in the trade". In the light of these matters, I think that the IRT took into account the nature and level of skills required of storemen as well as the fact (as it found) that the occupation of storeman is not recognised as a trade either by training authorities or more generally. Its approach is consistent with Branson J's comment in Tanchiatco v Minister (which, of course, was decided after the IRT made its determination) that the notion of a trade involves recognition of a category or body of vocational skills of some difficulty and some generality. I therefore conclude that, despite Ms Bateman's criticism of the IRT's reasons, the finding made by the IRT was not the product of an erroneous interpretation of the word "trade". The assessment of the evidence before the IRT was a matter for it, not for the Court. Even if the applicant's contentions regarding the word "trade" were to be accepted, the applicant must overcome another obstacle to obtain the relief he seeks. For the reasons I have explained, par (b)(ii) requires the decision-maker, after finding that the applicant has work experience in a trade, to determine whether there are Australian training or education standards applicable to that trade. The IRT did not expressly address this question. Nonetheless, it made a series of factual findings relevant to the question of whether there are Australian training or education standards applicable to the trade of storeman. I need not restate those findings, except to note that the IRT found that there was no appropriate trade certificate for storemen, no common training schemes and no "basic common features" of the on-the-job training provided by individual employees. In my view, the IRT's findings make it inevitable that, if the applicant's occupation as a storeman were to be regarded as a trade, the IRT would have to conclude that there were no Australian training or education standards applicable to the trade of storeman against which the applicant's work experience could be assessed. In this respect I note that the IRT's reasons do not assume that "Australian education or training standards" can exist only if there are formal qualifications for the particular trade: cf Tanchiatco v Minister, at 4. The powers of this Court in an application for review of a "judicially reviewable decision" are set out in s 481 of the Migration Act. Section 481(1), insofar as relevant, provides as follows: "On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: (a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) ... (d) ...." On an appeal to the Court under s 44 of the Administrative Appeals Act 1975 (Cth) ("AAT Act"), against a decision made by the Administrative Appeals Tribunal ("AAT") the general principle is that, if the AAT has erred in law, the decision is set aside and the matter remitted for redetermination according to law: Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 (FCA/FC), at 426, per Wilcox J; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 (FCA/Sackville J), at 560. However, where the Court hearing an appeal from the AAT finds that the AAT erred in law, but that, if the matter were remitted, on the facts as found the decision would necessarily be the same, it is appropriate that the decision of the AAT be affirmed: Morales, at 560-562 and authorities cited there. Of course, the language of s 481(1) of the Migration Act is not the same as that employed by s 44 of the AAT Act. In particular, s 44(4) of the AAT Act provides that the Court "shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision". Thus, the reasoning in cases decided under the AAT Act does not necessarily apply to applications for review under the Migration Act. Nonetheless, s 481(1) of the Migration Act confers a discretion on the Court to make all or any of the orders specified in the sub-section. Obviously, the discretion must be exercised judicially. But it seems to me to be a proper exercise of the discretion conferred by s 481(1) to affirm a decision of the IRT, notwithstanding that it has erred in law, if the IRT's findings of fact preclude the applicant from satisfying the criteria upon which the fate of his or her application depends. Remittal of the matter in these circumstances would be futile. This view coincides with that recently expressed by Hill J in Stone v Minister for Immigration and Ethnic Affairs (FCA/Hill J, 28 June 1996, unreported), (aff'd Stone v Minister for Immigration and Ethnic Affairs (FCA/FC, 6 February 1997)). Accordingly, in my opinion, even if the IRT had erred in its construction of the word "trade", the appropriate order would have been to affirm the decision. The Third Submission What I have said so far deals with the first two submissions made on behalf of the applicant. The IRT did not apply an unduly narrow construction of the word "trade" as used in par (b)(ii). Nor was the IRT required, in the circumstances of this case, to make inquiries of the Department of Industrial Relations to ascertain whether the applicant's work experience as a storeman had been assessed as meeting Australian education or training standards. The findings of the IRT negate the existence of any such standards in relation to the occupation of storeman. I was not clear as to whether Ms Bateman intended to press the third argument put on behalf of the applicant. In any event, the short answer to it is that the IRT did take into account the submission that the trade of a storeman was one for which persons could qualify through an apprenticeship program. The IRT referred to the evidence relied on by the applicant, namely, a document published by the Department of Training and Employment, which identified an apprenticeship program for storemen in New South Wales. The IRT pointed out that this program was confined to Storeman (Municipal Councils). The IRT clearly regarded the apprenticeships for this category of storemen as involving training different from that required for the applicant's occupation, since they (like others working as storemen) received individual training particular to the circumstances of the individual employer. Conclusion The applicant has not established that the IRT erred in affirming the delegate's decision not to grant the applicant a Class 816 entry permit. The decision made by the IRT on 16 August 1996 should be affirmed. The applicant should pay the respondent's costs. I certify that this and the preceding twenty one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 28 August 1997 Counsel for the Applicant: Ms M. Bateman

Solicitor for the Respondent: Australian Government Solicitor