Manokian v Minister for Immigration and Multicultural Affairs, 3 December 1997, unreported

REASONS FOR JUDGMENT INTRODUCTION This case illustrates the difficulties often confronting courts when one of the parties is unrepresented. The present applicants, who are not legally represented, seek orders, inter alia, setting aside a decision of the Immigration Review Tribunal ("IRT"), affirming a decision to deny each of the applicants a permanent visa. The specific complaints made by the applicants concerning the IRT's decision appeared to lack a sound legal foundation. Nonetheless, the material in evidence seemed to me to raise a significant legal issue, albeit one which the applicants had not identified. The role that should be played by the presiding Judge in these circumstances is a matter both of difficulty and delicacy. He or she cannot simply become an advocate for the unrepresented applicants, less advocacy intrude into the task of impartial judication. Yet if a judge does not draw to the attention of the parties, in particular counsel for the represented party, to the legal question to which the decision under review gives rise the danger is that an injustice - perhaps a serious injustice - may be caused. The issue I identified in the present case was whether the Department of Industrial Relations ("DIR") had correctly applied the criteria specified in the Migration (1993) Regulations for determining whether the male applicant (Mr Bellaiche) had work experience which met Australian education or training standards for his trade as an automotive electrician. If not, a further question arose as to whether this constituted an error of law on the part of the IRT. I put these matters to Mr Beech-Jones, who appeared for the Minister. He made helpful oral submissions, later supplemented by written submissions. In the result I have concluded that the decision of the IRT involved an error of law and should be set aside. THE APPLICATION The applicants, Mr and Mrs Bellaiche, commenced proceedings by a handwritten application filed on 23 September 1997. That application identified the decision for which an order of review was sought as "the decision of department of Immigration and Ethnic Affairs made on the 13/1/96 and the decision of the Immigration Review Tribunal (made on the 27/8/97)." The application stated that the applicant (presumably meaning Mr Bellaiche) was aggrieved by the decision because "[m]y application for permanent residence in Australia [pursuant to Part 816 of the Migration (1993) Regulations] failed because of inappropriate trade assessment when I am a licenced [sic] trade certificate holder (issued by an Australian Trade Authority) for the...trade as an Auto-Electrician". The application did not identify the source of the Court's jurisdiction to review the decisions challenged by the applicants. Mr Beech-Jones treated the application as having been made pursuant to s 476(1) of the Migration Act 1958 (Cth) (the "Migration Act"). Section 476(1) provides that, subject to s 476(2), application may be made for review by the Federal Court of a "judicially-reviewable decision" on any one or more of specified grounds, including the following: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". The term "judicially-reviewable decisions" includes decisions of the IRT: Migration Act, s 475(1). However, the expression does not include an "internally-reviewable decision": s 475(2)(b). The latter phrase is defined in a manner that excludes from the scope of s 476(1) the decision made by the Minister's delegate on 13 January 1996 to refuse the application for a visa: see s 338(1) and the definition of "Part 5 reviewable decision" in s 337. The decision made by the Review Officer on 16 May 1996, affirming the delegate's decision, is also excluded from the term "judicially-reviewable decisions": see s 475(2)(c) and the definition of "IRT-reviewable decision" in s 346(1)(a). Thus, insofar as the application is intended to seek relief in respect of the decision of the delegate or the Review Officer (bearing in mind that the Review Officer's decision is not expressly mentioned in the application), the Court is without jurisdiction to grant the relief sought. THE BACKGROUND The applicants are citizens of Israel. Mr Bellaiche, who was born on 25 February 1966, arrived in Australia in 16 July 1990. Mrs Bellaiche arrived on 14 June 1991. According to material that was before the IRT, Mr Bellaiche worked as an apprentice auto electrician in a repair shop in Beer-Sheva, Israel, from January 1985 to January 1989. After completing his apprenticeship, he was employed as an auto electrician in the same shop, from January 1989 until he left Israel in about June 1990. The Migration (1993) Regulations On 4 July 1991, the applicants applied for refugee status. On 2 March 1994, the applicants applied for a class 816 (special (permanent)) entry permit and a class 818 (highly qualified on shore (permanent)) entry permit, in accordance with the Migration (1993) Regulations. A person who had applied for refugee status was eligible, subject to meeting certain other criteria, to apply for entry permits within those two classes. There appears never to have been any issue that neither applicant satisfied the educational criteria specified in Part 818 of the Migration (1993) Regulations. Nor has there been any issue that Mrs Bellaiche did not satisfy the criteria for the grant of a class 816 entry permit. Therefore, the only disputed question before the delegate, the review officer and the IRT was whether Mr Bellaiche satisfied the criteria for the grant of a class 816 entry permit and, in particular, whether he satisfied cl 816.721(2)(b)(ii) of the Migration (1993) Regulations. I refer to this provision (including the introductory words to cl 816.721(2)) as "par (b)(ii)". The requirements for a class 816 (special (permanent) entry permit) include the following: "816.7 SPECIAL (PERMANENT) ENTRY PERMIT (AFTER ENTRY) ... 816.72 Criteria to be satisfied at time of application (entry permit - after entry) 816.721(1) The applicant is: (a) a person who: (i) had not turned 45 before 1 November 1993; and (ii) meets the requirements of subclause (2) or (3); and (iii) meets the requirements of subclause (4) or (6); or (b) a person who: (i) is a member of the family unit of an applicant who is a person mentioned in paragraph (a); and (ii) is included in that person's application; (2) An applicant meets the requirements of this subclause if, on 1 November 1993: (a) the applicant in Australia had obtained, or had completed the requirements of, a post-secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; or (b) the applicant: (i) held an overseas technical qualification or general academic qualification that is assessed by NOOSR [National Office of Overseas Skills Recognition] as being comparable to an Australian associate diploma, diploma, degree, or higher degree; or (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; or (c) the applicant: (i) had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; and (ii) had met the academic progress requirements of the institution at which he or she was enrolled." It should be noted that there are at least two dates that may be relevant to the assessment contemplated by par (b)(ii). First, cl 816.721(2) provides that an applicant complies with the sub-clause if he or she meets certain criteria on 1 November 1993. Secondly, there is the date of the assessment itself. In addition, the heading in cl 816.721 refers to criteria that must be satisfied at the time of application (in this case, 2 March 1994). I shall return to these matters later. A further point should be noted. The IRT proceeded on the basis that, notwithstanding the enactment of the Migration Reform Act 1992 (Cth) and the making of the Migration Regulations, both of which came into force on 1 September 1994, the applications made by the applicants continued to be governed by the Migration (1993) Regulations, although they were to be regarded as applications for permanent visas. In my view, the IRT was correct to take this approach: see Migration Reform (Transitional Provisions) Regulations, reg 23(1),(3). The transcript of the hearing before the IRT was not in evidence. But it is clear enough from the documents admitted into evidence that Mr Bellaiche's primary contention was that he satisfied the requirements of par (b)(ii) because he had work experience in Israel, including his period as an apprentice, that met Australian education or training standards for the trade of automotive electrician. In Mr Bellaiche's application for the class 816 entry permit, under the heading of "Trade apprenticeship or other post-secondary training" he specified "5 years of apprenticeship in the auto electrician and Auto Mecanic [sic] trade". The First DIR Assessment and the Delegate's Decision On 29 September 1995, Trades Recognition Australia, a section of the DIR, wrote to Mr Bellaiche advising him that his application for trade recognition had been considered by the Local (Electrical) Trades Committee. The letter stated that it had been decided that, in accordance with s 41(5) of the Tradesmen's Rights Regulation Act (Cth) ("TRR Act"), Mr Bellaiche should undergo a trade test in the trade of automotive electrician. The evidence does not reveal why DIR referred to Mr Bellaiche as having applied for a trade certificate, as distinct from a request having been made for DIR to assess his work experience to determine whether it met Australian education or training standards for the trade of automotive electrician. However, other documents in the file show that Mr Bellaiche, on other occasions, completed printed forms appropriate for a person applying for assessment of his or her eligibility for recognition as a tradesperson. Presumably he was supplied with these forms by DIR. Section 41 of the TRR Act provides for the recognition of "tradesmen". Local Committees are empowered to issue tradesmen's certificates (s 35(1)) and may do so if satisfied, inter alia, that "(d) that person has qualified or qualifies in a country other than Australia, by training and employment, in accordance with the laws and customs of that country, for employment in that country as a tradesman in a trade, or in a trade substantially corresponding with a trade to which this Part applies and his training and employment are such as to provide the skill necessary for the performance in Australia of work ordinarily performed by a recognised tradesman" (s 41(1)(d)). The TRR Act provides for a number of Local Committees, including Local (Electrical Trades) Committees in each State: TRR Act, s 28. Section 41(5) provides that, before granting a certificate to, or authorising the employment of, any person in accordance with s 41(1), the Committee may require the person to undergo a test of competence in the trade to which he or she seeks to be admitted. On 17 October 1995, DIR acknowledged receipt of the requisite fee from Mr Bellaiche and advised him that the testing authority, the Department of Technical and Further Education ("TAFE"), would contact him in due course and advise of the time and location of the test. Mr Bellaiche was advised in early November 1995 that the test would take place on 17 November 1995. He duly attended for the test on that day. By letter of 18 December 1995, DIR advised Mr Bellaiche that his "application for an Australian Recognised trade certificate" had been reconsidered by the Local (Electrical Trades) Committee. The letter said this: "The requirements for the issue of an Australian Recognised Trade Certificate under the Tradesmen's Rights Regulation Act, are detailed in Section 41 of the Act. One of the requirements is that you must be able to satisfy the Local Trades Committee, that you have the skills necessary to perform the full range of duties required of a recognised tradesperson in Australia. After considering all the evidence before it, including an assessment of your performance in a trade test in the classification of Automotive Electrician, the Committee decided that you do not possess the skills necessary to perform the full range of duties required of a recognised tradesperson in Australia, at the present time. The Committee has therefore refused your application. In view of the above, your file has been closed and no further action will be taken on your application. You must now await the decision of the Department of Immigration and Ethnic Affairs, on your application for permanent residence. If you are unsuccessful in that application, you will be advised by the November 1 Task Force Group, of the appeal process available." (Emphasis in original.) Two points should be noted about this letter. The first paragraph restated the requirements of s 41 in terms that differ slightly from the statutory language: compare TRR Act, s 41(1)(d). Secondly, the letter did not expressly refer to the terms of par (b)(ii), nor to the date or dates by reference to which the Local Trades Committee had made its assessment. On 13 January 1996, Mr Bellaiche was informed by the delegate that his application for a class 816 or class 818 visa had been unsuccessful. The decision of the delegate addressed the question of whether the requirements of par (b)(ii) had been satisfied: "Mr Bellaiche does not hold an overseas trade qualification or had work experience that is assessed as meeting Australian education or training standards for a trade. Mr Bellaiche was referred to the Department of Industrial Relations (DIR) to have his claimed trade as an Auto Electrician assessed. The Local Trades Committee assessed that Mr Bellaiche does not have the skills necessary to perform the full range of duties required of a recognised tradesperson in Australia and refused his application. Mr Bellaiche does not meet the requirements of paragraph 816.721(2)(b)(ii). It can be seen from this passage that the delegate assumed that DIR's assessment of Mr Bellaiche's work experience was an assessment of the kind contemplated by par (b)(ii). Mr Bellaiche subsequently requested details of the test which he had failed. By letter dated 16 February 1996 from DIR, he was informed that he had failed two of the six components of the test (starter motors and starting system and electronic fuel injection). The letter recorded the examiner's comments and recommendations as follows: "Comments 'Avraham does not display the skills of a person highly skilled with all aspects of the Automotive Electrical Trade'. Recommendations 'Recommend that he attend courses 7235H, 7235T, 7235U and 7235V of the Automotive Electrician Trade Courses'." The letter continued: "Specific details of your weak areas in the test, were not supplied. However the four TAFE [Technical and Further Education] course subjects recommended, cover the areas of Starting Systems, Electronic Fuel Injection, Integrated Engine Management and Emission Control. A successful completion of these TAFE course subjects should raise your skill level sufficiently to allow you to pass a trade test as Automotive Electrician in the future. A further trade test however, will not be considered by the Local Trades Committee until you provide documentary evidence of having gained a minimum of 12 months employment experience as an Automotive Electrician, since the date of your trade test." This letter plainly contemplated that Mr Bellaiche could undertake TAFE courses and further work as an automotive electrician in order to bring his skills to the level required for recognition. The letter did not explain why skills acquired after 1 November 1993 could assist in making the assessment contemplated by par (b)(ii). The letter did not refer to the language of par (b)(ii), but suggested that the standard applied to Mr Bellaiche was whether he had demonstrated "the skills of a person highly skilled with all aspects of the Automotive Electrical Trade". According to a letter written by Mr Bellaiche to the IRT on 16 June 1996, he acted upon the advice given in the letter of 16 February 1996, by attempting to enrol at TAFE. He was not, however, permitted to do so because he was told by TAFE that his current visa did not allow study in Australia. The IRT did not refer to Mr Bellaiche's claim and thus made no finding in respect of it. However, if true, Mr Bellaiche's comment that he found himself in a "Catch-22 situation", is entirely apt. The Review Decision Following the delegate's decision to reject the application, Mr Bellaiche applied for review of the decision. On 16 May 1996, the Review Officer affirmed the delegate's decision. The Review Officer noted that Mr Bellaiche had produced a certificate from the Institute of Automotive Mechanical Engineers ("IAME") stating that he had been accredited as an associate member of that organisation. He had also obtained a tradesman's certificate as an automotive electrician, issued by the Motor Vehicle Repair Industry Council on 2 April 1996, although it appears that that certificate was issued on the strength of the IAME certificate. The Review Officer considered that these certificates did not assist Mr Bellaiche: "The Regulations state that applicants should only be referred to other agencies where the Department of Industrial Relations are unable to make an assessment the claimed trade skills. In this case the trade skills of the applicant were examined by DIR and he was given a trade test in order to assess those skills. The result was that the applicant was found not to possess the skills necessary to perform the full range of duties of a tradesperson in Australia. I am therefore satisfied that the procedures as specified by the Regulations were followed and that the claimed trade skills of the applicant were not recognised. As the applicant has already been refused trade recognition by DIR the material which he has subsequently presented is not relevant. I therefore find that the applicant does not hold an overseas trade qualification, or have work experience, that meets Australian education or training standards for a trade." The IRT Application and the Second DIR Assessment Mr Bellaiche then applied to the IRT for review of the Review Officer's decision. In the letter of 16 June 1996, to which I have already referred, Mr Bellaiche made a number of claims. These included the following: · He had been given insufficient time to prepare for DIR's test. · A part of the test (that dealing with the electronic fuel injection and engine management computer) concerned skills that had not been part of his duties during his apprenticeship. This section of the test "had only recently [been] introduced to the auto electrical trade" and any auto electrician who had done his apprenticeship in Mr Bellaiche's time "would have struggled to pass the subject". · His performance had been adversely affected by stress. · He had been denied the opportunity to study at TAFE and, therefore, had been denied the chance to satisfy the requirements for a second test laid down by DIR. · His capabilities were shown by the trade certificates obtained from other bodies. Mr Bellaiche also provided information concerning the theoretical and practical training he received during his period as an apprentice in Israel. A letter from his employer documented in some detail the practical training Mr Bellaiche received from year to year during the apprenticeship. For example, the letter stated that, towards the end of his second and third years, Mr Bellaiche's training included "- CHANGE OF PLUGS AND POINTS, HIGH VOLTAGE LEADS, ADJUSTMENT OF IGNITION TIMING, REBUILDING AND OVERHAULING OF STARTERS AND ALTERNATORS, DYNAMOS, DISMANTLING THEM AND DETECTING PROBLEMS...". On 9 September 1996, Mr Bellaiche completed a printed form, in which he applied to DIR for "assessment of [his] eligibility for recognition as a tradesperson in the classification of auto electrician or electrical fitter (automotive) or electrical mechanic." The application set out details of his training and experience and attached the certificates to which reference has already been made. The application also provided details of his employment history. That history showed that he had worked as an auto electrician in Sydney from September 1990 to June 1992. Mr Bellaiche stated that thereafter he had been self-employed, although the form did not specify the field in which he was self-employed. On 25 September 1996, a Senior Skills Assessor at DIR advised Mr Bellaiche that the processing of his application for "Assessment of Trade Qualifications" had been finalised. The letter continued: "A careful assessment of the information submitted with your application, has revealed that you are unable to satisfy the criteria established for recognition under the Tradesmen's Rights Regulation Act (TRRA). Unfortunately, you do not possess an acceptable formal qualification, or have the required period of employment on the work ordinarily performed by a skilled tradesperson in Australia. Therefore, you are not eligible for recognition as a tradesperson in Australia in any trade classification covered by the TRRA." (Emphasis in original.)