LAYLA ALI KHUDAIR ALKAAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT Mrs Alkaab ("the review applicant") seeks review of a decision of the Immigration Review Tribunal ("the IRT"), which upheld a refusal by a delegate of the Minister to grant what is known as a subclass 105 visa. The application for review is made in respect of Mrs Dahrab ("the visa applicant"), who lives in Kuwait and is a citizen of that country. She is married and the application includes her husband and child. The review applicant migrated to Australia in 1992 and has been an Australian citizen since 20 July 1994. On 1 November 1994, the visa applicant lodged an application for migration to Australia with the embassy in Athens. The application was accompanied by a sponsorship form signed by the review applicant on 7 September 1994 as well as various other supporting documents. The application was assessed by a decision-maker in the Department of Immigration and Ethnic Affairs ("the Department") on 27 February 1995. The visa applicant was refused a concessional family visit because she failed to receive the qualifying score in what is known as the "points test". An internal review affirmed the original decision on 2 January 1996 for failure to obtain the necessary score. The criteria for issue of the relevant visa is provided for in Part 105 of Schedule 2 to the Migration Regulations 1994 ("the regulations"), which require the attainment of a specified number of points. The points are allocated for different attributes. The attributes in question are set out in Schedule 6 to the regulations. Section 350 of the Migration Act 1958 (Cth) requires points to be awarded in accordance with the regulations in force, either at the date of the Tribunal's assessment or the primary decision-maker's assessment, which ever is more favourable. As the IRT points out, there is considerable material on file as to the work done by the visa applicant over the two years before her application. Her occupation is that of translator to and from Arabic and English. This is the claim advanced for the visa applicant and the IRT found that it was amply supported by the documentary evidence. The IRT proceeded on the basis that the occupation of a translator is one which in Australia requires a degree or possibly a diploma. Accordingly, it has the potential to earn the visa applicant a sufficient number of points to achieve the pass mark at the time of application. In the present case, the relevant qualifications and points awarded by the delegate to Mrs Dahrab were as follows: "Qualification Visa applicant Employment 25 Age 15 Relationship 10 Citizenship 5 Settlement 0 Location 0 Total points 55" On an internal review, the reviewing officer awarded an extra 10 points for age, taking the total to 65 points, which was still below the relevant qualifying requirement of 95 points. The question raised on the review application before me is whether Mrs Dahrab should have been awarded 70 points in respect of the employment qualification in lieu of 25. If she had been awarded 70 points then she would have achieved the required number in respect of the employment qualification. The relevant criteria for the award of points in relation to employment are set out in Item 6102 of Schedule 6 to the regulations, which confers an award of 70 points if the requirements of that Item are satisfied. That provision reads: "6102 The applicant's usual occupation: 70 (a) is not a priority occupation; and (b) is an occupation: (i) for which, in Australia, a degree or trade certificate is required; or (ii) that is a professional-equivalent occupation; and (c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant: (i) obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or (ii) completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or (iii) completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and …" The expression "usual occupation" is defined in reg 2.26(5) to mean an occupation that the applicant has engaged in for a continuous period of six months during the two years immediately preceding the visa application. The term "relevant Australian authority" is defined in that paragraph to mean the National Office of Overseas Skills Recognition ("NOOSR") or any body authorised by it to assess international qualifications or work experience. In the present case, the usual occupation of Mrs Dahrab is that of a translator to and from Arabic to English. The body authorised by NOOSR to assess educational qualifications and work experience was the National Accreditation Authority for Translators and Interpreters ("NAATI"). The IRT reasons indicate that the decision-maker accepted that Mrs Dahrab was a translator and that it was an occupation which, in Australia, required a degree or possibly a diploma. It is said that this description had the potential to earn a sufficient number of points to achieve the relevant standard, which at the time of the application was a total of 95 points. The decision-maker saw the question as being whether the applicant had a degree or work experience assessed by NAATI as equivalent to Australian standards for the occupation of translator. Mrs Dahrab asked NAATI to assess her qualifications and experience as a translator. It found that she did not meet Australian standards. The decision was notified to Mrs Dahrab in a letter of 21 December 1995, which reads: "Dear Ms Dahrab, The National Accreditation Authority for Translators and Interpreters (NAATI) has received your application for assessment of overseas qualifications (Department of Immigration Form 44) submitted in association with your application for migration to Australia. Accreditation on the basis of overseas qualifications, without the need for formal NAATI assessment by testing, is at present restricted to applications eligible for Translator (formerly level 3) and for the advanced professional levels (formerly Levels 4 and 5), in accordance with current NAATI assessment criteria. Accreditation as an Interpreter (formerly level 3) on the basis of overseas assessment is not available. I regret to advise you that on the basis of the documents you have provided, NAATI has determined that your qualifications do not meet the current requirements for accreditation. Practical experience in the profession is taken into account in an assessment for accreditation only when the applicant possesses the required formal, specialised training and qualifications. If you require further details concerning NAATI accreditation as an interpreter and/or translator, please contact this office. It would be appreciated if you could quote the above applicant number in any further correspondence. Yours sincerely (signature) Anne Looker for Executive Director" (Emphasis added) The applicant says that these paragraphs disclose an important error at law in the approach taken by NAATI. The error is said to reside in the fact that NAATI was required to assess whether the applicant's completed work experience was equivalent to the Australian standard for the occupation. Instead, it is submitted, NAATI applied its own requirement for accreditation, which required that applicants should not be considered on work experience alone, because the applicants must have the necessary specialised formal training and qualifications. This is made clear in a letter from the IRT under the hand of Ms Looker on 28 July 1987, which reads: "I refer to your letter of 23 June 1997 and confirm that Ms Dahrab is not eligible for NAATI accreditation on the basis of her overseas qualifications. In response to the specific queries raised in your letter:- 1. Ms Dahrab's studies for her degree were considered to be not sufficiently specialised in translation. The degree title is in fact B.A. in English Language and Literature, and the hours of instruction in translation did not meet NAATI requirements in terms of a comparison with the guidelines for specialised courses offered in Australia. 2. NAATI accreditation is not awarded on the basis of work experience alone. Applicants must have the necessary specialised formal training and qualification. 3. On the basis of her B.A. degree Ms Dahrab would be eligible to sit the NAATI accreditation test in both interpreting and translation. I hope the above information clarifies the matter for you. If you have any further queries, please let me know. Yours sincerely, Anne Looker Assistant Registrar" It is said that the statement of Ms Looker, quoted earlier, that practical experience is only ever taken into account in assessment for accreditation when the applicant possesses the required formal, specialised training and qualifications, was a departure from the requirements of Item 6012(c). This Item requires that an assessment of work experience is to be made. Alternatively, it is submitted that an assessment of a combination of the applicant's work experience together with any courses of study or trade training is to be made. The question of work experience, it is said, was simply put aside because NAATI's approach for its own accreditation purposes did not take work experience alone into account. In response to this submission, it could be said that Item 6012(c) contemplates NAATI standards and requirements will apply and that this assessment had been delegated to NAATI and the methodology used was solely within the province of that body. In my opinion, the statements of Ms Looker and the letters written by her, taken together with the IRT file note of 13 June 1997, make it apparent that the task required by Item 6102(c) was not performed because the degree granted to Ms Dahrab was considered not sufficiently specific in that it was a general Bachelor's degree and the grades which she attained were not high enough. The conclusions reached in respect of the visa applicant's degree do not justify a failure to assess her completed work experience against Australian standards for the occupation in order to determine whether there is equivalence. This failure is a material one because the evidence discloses that the applicant has a Bachelor of Arts degree from Kuwait University specialising in English language and Literature. She claimed to have had fourteen years experience as a translator. This does not appear to have been in dispute. Her experience included the translation of documents to and from Arabic to English for the Ministry of Communications in Kuwait. This lengthy experience was not considered in order to assess equivalence as required by Schedule 6. The fact that NAATI disregarded the fourteen years experience of Ms Dahrab excited some interest in the IRT as recorded in a Minute of 13 June 1997. It is there recorded that Ms Looker agreed that the experience was disregarded because the degree did not specialise in translation and the grade average was not high enough. The failure on the part of the IRT to perform the task required by Item 6102(c)(ii) in the present case brings it within the provisions of s 476(1)(a) of the Act in that the procedure required by the regulations to be followed; namely, the assessment of work experience against Australian standards in order to determine equivalence, was not observed. Accordingly, the application for review is granted. The decision of the IRT is set aside and the matter is remitted to the IRT, differently constituted, to be considered in accordance with these reasons. The respondent should pay the costs of each of the applicants. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin