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

On the same date, the Senior Skills Assessor wrote directly to the IRT in response to a letter from the IRT regarding Mr Bellaiche's second application. (The IRT's letter was not in evidence.) DIR's letter was as follows: "Mr Belleaiche's [sic] application was considered against trade classifications under the Tradesmen's Rights Regulation Act 1946 (TRRA trades), and against non-TRRA trade classifications assessed by Trades Recognition Australia under regulations to the Migration Act 1958 on behalf of the Department of Immigration and Ethnic Affairs (non-TRRA trades). Assessments in these trades are against specified criteria; viz: · acceptable formal training outside Australia; · a specified period of employment experience undertaking the full range of work normally performed by a tradesperson in Australia, and capability of performing that work in Australia. For TRRA trades these are determined by the Central Trades Committee under the Tradesmen's Rights Regulation Act; and for non-TRRA trades they are determined by Trades Recognition Australia and are consistent with those for TRRA trades. .... The documentary evidence Mr Belleaiche [sic] submitted was assessed by a Trades Recognition Australia Skills Adviser. Skills Advisers are qualified tradespeople who are also accredited workplace assessors against competency standards endorsed by the National Training Board. The Skills Adviser considered the documentary evidence against the criteria outlined above. You may not be aware but, after considering all the evidence Mr Belleaiche [sic] provided in his first application his case was submitted to the New South Wales Local (Electrical) Trades Committee. The committee decided to refer him for a trade test as an Automotive Electrician. He did not pass that test. Our letters dated 18 December 1995 and 13 February 1996 respectively refer. In the second last paragraph of the 13 February letter, he was advised that he would have to provide documentary evidence of having gained a minimum of 12 months employment experience as an Automotive Electrician before he could be considered for another trade test. The anniversary of the trade test date is 17 November 1996. On the basis of the information provided in his second application, there is still a need for him to be trade tested to determine whether he has the skills, knowledge and experience equivalent to an Australian tradesperson. In regard to the Motor Vehicle Repair Industry Council (MVRIC) Tradesman's Certificate as an Automotive Electrician. This certificate does not satisfy TRRA recognition requirements. As previously advised, if he believes he is able to satisfy the requirements of the Tradesmen's Rights Regulation Act 1946, or for an assessment in a non-TRRA trade, he may lodge a new application at any time in the context of an application for migration to Australia." This letter suggests that the test applied for the purposes of the Migration (1993) Regulations was whether the applicant had a specified period of employment experience during which he undertook the full range of work normally performed by a tradesperson in Australia and whether he had demonstrated the ability to perform that work in Australia. The letter appears to accept that Mr Bellaiche could undertake a further test of his skills once he had gained an additional twelve months employment experience as an automotive electrician. The Third DIR Assessment Mr Bellaiche replied on 15 October 1996 to DIR's letter of 25 September 1996. He expressed his astonishment at DIR's "findings", and complained that he had not been assessed for the alternative trades nominated in his second application. His letter asked this question: "Is my case being assessed according to the 816 applicants classification?" Mr Bellaiche submitted with his letter a third application to DIR for assessment of trade training and experience. This application repeated most of the earlier information provided to DIR. In the employment section history, Mr Bellaiche stated that he had been employed as an auto electrician at a service state in Bondi from July 1992 to September 1993. The application did not explain the apparent inconsistency between this statement and his claim in the earlier application to have been self-employed since July 1992. On 17 June 1997, the IRT forwarded to DIR Mr Bellaiche's third application for an assessment of his qualifications and work experience "as an Automotive Electrician (and related trades...)". The letter requested advice as to whether Mr Bellaiche "would have had the necessary experience in order to meet the 'Australian Training Standards' for this occupation on 1 November 1993". It will be seen that this letter specifically refers to the date nominated in par (b)(ii),but in a manner that is not free from ambiguity. I shall return to this letter later. In a letter dated 27 June 1997, a copy of which was sent to the IRT, DIR advised Mr Bellaiche that his application had been finalised. The letter stated 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 training and experience in any trade classification assessed by Trades Recognition Australia." (Emphasis in original.) A Reasons for Decision Sheet was enclosed with the letter. The letter further stated that the file had been closed and no further action would be taken on the application as the outcome of the review was final. The Reasons for Decision Sheet identified the "classification sought" by Mr Bellaiche as "Electrical Fitter (Automotive)". It did not explain why it adopted this classification instead of the classifications "automotive electrician" and "electrical mechanic (automotive)" which had also sought by Mr Bellaiche. Nor did it say whether there was any relevant difference between the three classifications. The body of the document was as follows: "Is relevant formal training claimed? Yes

• are claims verified by documents? Yes Does documentary evidence demonstrate adequate relevant training/work experience? Yes
• what is the length of relevant training/work experience verified by documents? 8 years 4 months
• what is the length of relevant training/work experience required? 7 years
• are breadth & depth of skills equivalent to Australian standards? Not clear Was an interview conducted? no
• were trade level skills confirmed equivalent to Australian standards? - Was a Trade test? Yes
• were trade level skills confirmed equivalent to Australian standards? No What is the date the equivalent Australian standards are deemed to have been achieved for migration to Australia? Not attained COMMENTS This is the applicants [sic] third assessment, and the second from the IRT. He was originally trade tested on 17/11/95, at the NSW Meadowbank College of TAFE. Mr Bellaiche failed the trade test. As a result of the trade test, Mr Bellaiche was refused recognition and advised to undertake remedial training. The TAFE has specifically advised what modules he required to study to upgrade his skills. Mr Bellaiche has not provided any evidence of undertaking the skills upgrading courses. He has supplied evidence of undertaking an industry trade test. This is not recognised by TRA. In addition Mr Bellaiche has not provided any new evidence of employment as a tradesperson in Australia. In fact it appears that he has not worked in the trade since September 1993. Given that Mr Bellaiche has failed to demonstrate that he has undertaken additional training or gained additional experience that would overcome the shortcomings his trade test identified. I have again refused recognition." This document accepted that Mr Bellaiche had demonstrated "adequate work experience". It left unanswered what might be thought to have been an important question, namely, whether the "breadth & depth of skills [were] equivalent to Australian standards". That issue was said to be "[n]ot clear". However, in response to the question of what date the equivalent Australian standards were deemed to have been achieved for migration to Australia, the document recorded "[n]ot attained". The comments appear to have accepted that any upgrading of Mr Bellaiche's skills after the November 1995 test would have been relevant to his case, as would work experience as an automotive electrician after September 1993. The IRT Decision On 26 August 1997 the IRT gave its decision affirming the decision under review. The IRT addressed the question of whether Mr Bellaiche had satisfied par (b)(ii) as follows: "Mr Bellaiche was assessed by the Department of Industrial Relations (DIR) as a tradesperson for the purposes of the legislation. [The IRT then referred to the letter of 18 December 1995 to Mr Bellaiche from DIR, extracts from which have been reproduced above]. Mr Bellaiche was granted a further chance to have his qualifications and work experience assessed by DIR and in a letter dated 25 September 1996 from the Senior Skills Assessor of DIR he was advised that he was not eligible for recognition as a skilled tradesperson in Australia in any trade classification. In submissions to the Tribunal dated 15 October 1996, the Applicant claimed he had new information he could submit to DIR for further assessment and was granted leave by the Tribunal to submit a further application to DIR for assessment. In a letter dated 27 June 1997 from the Skills Adviser of the Skills Assessment Unit, DIR, Mr Bellaiche was informed that he was again considered not eligible for classification as a tradesperson because he had insufficient training and experience in any trade classification assessed by Trades Recognition Australia. ... In relation to the criteria for a Class 816 entry permit relating to qualifications, work experience, enrolment in an accredited course and business, I find that the applicants do not satisfy 816.721(2) or (3)." REASONING What is the Date by Reference to Which the Assessment is to be Made? I have referred earlier to the terms of the relevant provisions. It is convenient to repeat the language of cl 816 directly relevant to the present case. "816.72 Criteria to be satisfied at the time of application (entry permit - after entry) 816.721(2) An applicant meets the requirements of this subclause if, on 1 November 1993: ... (b) the applicant: ... (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...". The authorities indicate that "work experience" includes experience overseas or in Australia: Tanchiatco v Minister of State for Immigration and Multicultural Affairs, 20 August 1997, unreported (FCA/Branson J); Rahim v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432 (FCA/Sackville J), at 437. Despite the heading in cl 861.721, cl 816.721(2) specifically provides that an applicant meets the requirements of that subclause if, on 1 November 1993, the applicant satisfies the criteria specified therein. It is clear enough that, in a case where an applicant relies on his or work experience, the assessment contemplated by par (b)(ii) is to be undertaken by reference to the applicant's work experience on (that is, as at) 1 November 1993. This follows from the introductory language to cl 816.721(2) itself and from the use of the past tense in par (b)(ii) ("had work experience"). It is equally clear that the assessment contemplated by par (b)(ii) will take place, at least ordinarily, after an application has been lodged. This is because the assessment of whether a person's work experience meets Australian education or training standards can hardly take place, in the ordinary course, until after the lodgment of the application. This is reflected in the use of the present tense in par (b)(ii) when referring to the assessment ("is assessed as meeting Australian...standards"). What, then, is the date by reference to which Australian training or education standards are to be ascertained? Is it the date the assessment takes place, or 1 November 1993? In my view, it must be the latter. Otherwise an applicant would face the unjust prospect of being unable to rely on any work experience gained after 1 November 1993, yet being assessed by standards that may have changed considerably (for example, by reason of rapid technological developments) by the date of the assessment. Moreover, the assessment itself might be delayed for reasons completely beyond an applicant's control, thus adversely affecting his or her chances. There is nothing in par (b)(ii) to suggest that such a potentially unjust result is intended. It seems to me to follow that par (b)(ii) requires DIR's assessment to be made by reference to the position on 1 November 1993. That is, did the applicant's work experience (or trade qualifications) at that date satisfy Australian education or training standards at that date? DIR's task under the Migration (1993) Regulations, whatever its role under the TRR Act may be, is not to assess whether the applicant's work experience at the date of the assessment meets Australian training or education standards at that date. Its role is a different one. Was DIR's Assessment Made as at 1 November 1993? The question then, is whether DIR made the assessment as at 1 November 1993, as required by par (b)(ii). If it did not, the assessment contemplated by the Migration (1993) Regulations has not been carried out. A separate question then arises as to whether any review is available of the IRT's decision to affirm the refusal to grant visas. In order to answer the first of these two questions it is necessary to consider whether DIR's third and final assessment, which was made on 27 June 1997 following a request from the IRT, was correctly undertaken in accordance with the criteria laid down by par (b)(ii). However, given that DIR's third assessment referred to the earlier assessments made in 1996, it is convenient to consider the assessments in chronological order. In my view, DIR's first assessment was not made in accordance with par (b)(ii). The letter of 18 December 1995 from DIR expressly concluded that Mr Bellaiche did not possess "the skills necessary to perform the full range of duties required of a recognised tradesperson in Australia, at the present time" (emphasis supplied). The fact that DIR was concerned with Mr Bellaiche's then current skills is reinforced by the letter of 13 February 1996, which advised him to undertake TAFE courses to raise his skill levels sufficiently to enable him to pass a trade test in the future. Doubtless, DIR was endeavouring to be helpful, but (as Mr Beech-Jones accepted) any refinement of Mr Bellaiche's skills after 1 November 1993, let alone December 1995, could hardly have been relevant to the question posed by par (b)(ii). The second assessment, although not quite as clearcut, reflected a similar approach. The letter of 25 September 1996 addressed to Mr Bellaiche stated that "You are unable to satisfy the criteria established for recognition under the [TRR Act].... [Y]ou are not eligible for recognition as a tradesperson in Australia in any trade classification covered by the [TRR Act]." This letter contained no reference to the Migration (1993) Regulations, nor to the fact that the relevant date by reference to which the assessment was to be carried out was 1 November 1993. It is expressed (in the present tense) in terms of the TRR Act, not by reference to the requirements of par (b)(ii). The more detailed letter of 25 September 1996, addressed to the IRT, referred in general terms to the "regulations to the Migration Act 1958", but did not say that the assessment had to be made as at 1 November 1993. The letter also stated that, provided Mr Bellaiche obtained a minimum of twelve months employment experience after the first trade test, he could be considered for another trade test. This statement strongly suggests that DIR was considering whether, at the time of the assessment, Mr Bellaiche had "the skills, knowledge and experience equivalent to an Australian tradesperson". Work experience gained in Australia in 1995 and 1996 could hardly shed light on an assessment which had to be made as at 1 November 1993. The third assessment, made by DIR on 27 June 1997, followed a letter from the IRT requesting advice as to whether Mr Bellaiche would have had the necessary experience to meet the "Australian Training Standards" for this occupation on 1 November 1993. Despite the terms of this request, it is clear, in my view, that DIR did not direct its attention to the position on 1 November 1993. There is nothing in DIR's letter of 27 June 1997, or in the accompanying reasons, to suggest that it did. On the contrary, the covering letter is expressed in the present tense. Moreover, the comments in the accompanying reasons refer to Mr Bellaiche's failure to provide any new evidence of employment as a tradesperson in Australia, a failure that could not be relevant to any assessment made as at 1 November 1993. The last paragraph of the comments notes that Mr Bellaiche had failed to demonstrate that he had undertaken additional training or gained additional experience that would have overcome the shortcomings in his trade test. Once again, that paragraph makes sense only if the author was considering whether Mr Bellaiche's training and experience at the date of the report were such as to warrant recognition. It follows that DIR was considering whether Mr Bellaiche's work experience at the date of the assessment met standards current at that date. In his written submissions, Mr Beech-Jones pointed out that DIR's reasons included this passage: "What is the date the equivalent standards are deemed to have been achieved for migration to Australia? Not attained." He said that this should be construed as demonstrating that DIR intended to find that at no stage, including 1 November 1993, had Mr Bellaiche attained the requisite Australian training or education standards. I am mindful of the need to give a beneficial construction to DIR's reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259, at 272. However, having regard to the other matters to which I have referred, I do not think that this question and answer shows that DIR did anything other than consider the position at the date of the assessment. Did the IRT Err in Law? In Rahim v Minister, which was decided shortly after the IRT's decision in the present case, I summarised the requirements imposed by par (b)(ii) as follows (at 439): "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." In the present case, the IRT made no express finding in its reasons that Mr Bellaiche had work experience in Israel in a particular trade. Nor did it expressly make a finding as to whether there were Australian education or training standards for the trade in which Mr Bellaiche had work experience. The letter of 17 June 1997 referred to Mr Bellaiche's experience as an automotive electrician "and [in] related trades", but did not specifically identify which trade was the appropriate one. It also referred to "the 'Australian Training Standards' for this occupation" without specifying what those standards were (although it is possible that the expression has a well understood meaning not revealed by the evidence) and whether the standards were in force on 1 November 1993. I do not think it is necessary to comment further on these matters, since I think that an error of law occurred at the third stage of the process identified in Rahim v Minister. In order to understand the role of the IRT at this stage, it is necessary to recall the review process established by the Migration Act. The delegate was empowered to grant, or not grant, a visa to the applicants: Migration Act, ss 29(1), 63(1). In making that decision, the delegate had to consider whether Mr Bellaiche satisfied the relevant criteria governing a class 816 entry permit, including par (b)(ii). The role of the Review Officer was to review the delegate's decision (s 341(1)) and to affirm, vary or set aside the decision: s 341(2). The IRT's role, in turn, was to review the decision made by the Review Officer: s 348(1). It could exercise all the powers and discretions conferred on the person who made the decision (s 349(1)) and could affirm, vary or set aside the decision (s 349(2)). In my opinion, the IRT's role in the present case was not limited to referring to DIR the assessment required by par (b)(ii). It is quite true that par (b)(ii) contemplates that the assessment required by par (b)(ii) will be made by DIR (unless it is unable to do so). But it does not follow that the IRT's role is spent once it asks DIR to make the assessment, even assuming that the request made by the IRT is in the terms contemplated by par (b)(ii). In order to determine whether the IRT should have affirmed the decision of the Review Officer it was necessary, in my opinion, for the IRT to be satisfied that an assessment of the kind contemplated by par (b)(ii) had taken place. It was not necessarily the IRT's role to reconsider an assessment made by DIR to determine whether its decision was correct. But I think the IRT had to satisfy itself that DIR had purported to undertake the assessment contemplated by par (b)(ii). If DIR asked the wrong question (as I think occurred in this case), the IRT was bound as a matter of law to request DIR to consider the right question. In such circumstances, the IRT was obliged to withhold its decision until DIR undertook the necessary inquiries and provided an assessment (whether favourable or unfavourable to the applicant) of the kind contemplated by par (b)(ii). Once DIR asked and answered the correct question, it may be that the IRT was bound to accept the answer (although I need not resolve that issue). In the present case, as I have explained, DIR's response to the IRT's request showed that DIR had not undertaken the assessment contemplated and required by par (b)(ii). Thus the IRT did not have before it a document purporting to record an assessment undertaken by DIR in conformity with par (b)(ii). In my opinion, by acting on DIR's letter and reasons, without considering whether DIR had undertaken the assessment required by par (b)(ii), the IRT erred in law. Did the Error Matter? I do not think that the IRT's error was a trivial one. According to DIR's June 1997 report, Mr Bellaiche had not worked as an auto electrician since September 1993. The conclusion was consistent with the information contained in Mr Bellaiche's third application, which had been referred by the IRT to DIR. A decision-maker assessing Mr Bellaiche's work experience as at 1 November 1993, by reference to training and education standards in force at that date, might have discounted his poor performance on some aspects of the test (which was conducted in November 1995) because of his absence from the trade for over two years. I do not mean to suggest that it is necessarily inappropriate to test a person's knowledge of or skills in a trade after the date by reference to which his or her knowledge or skills are to be assessed. But a decision-maker might well make allowances for the passage of time since the relevant date. In some cases the decision-maker might consider that so much time has elapsed from the date by reference to which the assessment is to take place that a test would serve little purpose. Mr Bellaiche also claimed in the correspondence with the IRT that some aspects of the test reflected recent advances in technology and that he could not have been expected to acquire the necessary technical skills during his apprenticeship. It is not clear whether the advances in technology were reflected in Australian education or training standards in force on 1 November 1993 , since DIR did not explore this issue. If Mr Bellaiche's claims were well-founded, it is possible that he was tested on issues not forming part of the standards applicable on 1 November 1993. None of this is intended to suggest that Mr Bellaiche would necessarily have been assessed by DIR as satisfying par (b)(ii), had the IRT pointed out DIR's erroneous approach and requested a reassessment in accordance with the appropriate criteria. But it is certainly possible that a different result might have been reached. In my view, Mr Bellaiche should not be denied the opportunity to have his work experience correctly assessed in accordance with the criteria laid down by par (b)(ii). Is There Power to Grant Relief? Mr Beech-Jones submitted that, even if DIR had misconstrued its role in making the assessment required by par (b)(ii), the Court had no power to review either the IRT's decision or DIR's decision. His argument ran as follows: (i) The subject matter of the IRT's decision was to affirm the earlier decision to refuse to grant visas to the applicants. The IRT was bound to accept the assessment made by DIR of Mr Bellaiche's work experience. Thus, even if DIR had erred, there was no error of law by the IRT itself. (ii) DIR's assessment of Mr Bellaiche's work experience, made pursuant to par (b)(ii), was a separate decision from that of the IRT. Mr Beech-Jones accepted that DIR's decision was within the expression "other decisions made under this Act, or the regulations, relating to visas", used in the definition of "judicially-reviewable decisions": Migration Act, s 475(1)(c). Thus, subject to the filing of a timely application, Mr Bellaiche could seek review of DIR's decision. (Iii) However, Mr Bellaiche could not challenge DIR's decision in this case because he had failed to act within the period defined by the Migration Act. Section 478(1) requires an application for review of a judicially-reviewable decision to be lodged within twenty-eight days of the applicant being notified of the decision. Section 478(2) provides that the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the twenty-eight day period. Since Mr Bellaiche was notified of DIR's third assessment by a letter of 27 June 1997 (which, on the evidence, Mr Bellaiche had received), the time for seeking review of DIR's decision had expired before the application in the present proceedings was filed on 23 September 1997. It was too late to apply to amend the proceedings to seek review of DIR's decision. It must be said that, if the reasoning is correct, it produces remarkably harsh results. It is one thing for s 478 to impose a "stringent" time limit (Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 71 FCR 1 (FCA/FC), at 28, per Sackville J) in circumstances where an applicant for a visa is notified of the relevant decision and advised of the need for an application for review to be filed within the prescribed period. It is quite another for time to run in respect of a critical decision where the person adversely affected is simply not told of the stringent time limit. In this case, not only did the letter of 27 June 1997 to Mr Bellaiche not advise him of any right of review, but it asserted that Mr Bellaiche could lodge a new application at any time, at least if he had substantial information not previously submitted. Nonetheless, it is necessary to consider the authorities relied on by Mr Beech-Jones. He referred principally to Manokian v Minister for Immigration and Multicultural Affairs, 3 December 1977, unreported (FCA/Davies J), followed in Tam Anh Bui v Minister for Immigration and Multicultural Affairs, 9 April 1998, unreported (FCA/Mansfield J). In Manokian, the relevant criteria for a visa included the following: "The applicant ... (c) is free of any disease or condition which, during the applicant's proposed period of stay in Australia, would, in the opinion of a Commonwealth medical officer: (i) require significant care or significant treatment (or both); or ... (iv) result in the applicant becoming a significant charge on public funds." Regulation 2.25A(1) of the Migration Regulations provided that in determining whether an applicant satisfied the above criterion, the Minister "must seek the opinion of a Medical Officer of the Commonwealth". Regulation 2.25A(3) provided as follows: "The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1)...to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion." The IRT had before it two reports from Commonwealth Medical Officers ("CMOs") expressing the opinion that the applicant did not satisfy the relevant criterion. The IRT considered that it did not have power to go behind this opinion. Davies J held that ruling to be correct and said this (at 2): "In my opinion, the approach taken by the Immigration Review Tribunal was correct. The subject matter of the proceedings before the Review Officer and before the Immigration Review Tribunal was a decision to refuse to grant a non-citizen a visa. In my view, the opinions of the Commonwealth medical officers, which I would accept to be decisions for the purposes of legislation such as the Migration Act and the Administrative Decisions (Judicial Review) Act 1977 (Cth), were not decisions refusing to grant a visa. Counsel for the applicant, Mr J R Young, put the submission that, in a case such as the present, the decision to refuse to grant a visa involves the making of two decisions, one by a Commonwealth medical officer and one by an officer of the Department and that both the officer of the Department the Commonwealth medical officer participated in the making of the decision to refuse to grant a visa. In my opinion, however, the opinion of the Commonwealth medical officers cannot be given that categorisation. The function of Commonwealth medical officers is to determine whether certain health criteria which are specified in the public interest criteria of the Regulations is satisfied. Their decision is not a decision refusing to grant a visa. The visa was refused in a decision made by the officer of the Department. It was his powers which the review officer and subsequently the Immigration Review Tribunal could exercise. The primary decision-maker had no power to go behind the certificate of the Commonwealth medical officer that was before him, and in my opinion the Act gave no further power to the review officer or the Immigration Review Tribunal to go behind that certificate." I do not think that the decision in Manokian carries with it the consequence that the only remedy open to Mr Bellaiche was to seek review of DIR's decision (assuming that he was able to act within the time limit specified by s 478 of the Migration Act). In both Manokian and Tam Anh Bui the CMOs provided reports in relation to the health of the respective applicants that addressed the criteria specified in the regulations. In other words, they purported to answer the correct question, even though in each case it was said that they had erred in doing so. Moreover, reg 2.25A(3) expressly bound the Minister, and thus the IRT on an application for review, to take the opinion of the CMOs "on a matter referred to in subregulation (1) to be correct". Once the CMOs provided an opinion on whether an applicant met a criteria stated in the regulations, the IRT had no function to perform. The position in the present case is different. The assessment of Mr Bellaiche's work experience undertaken by DIR was not expressed in terms of the criteria laid down by par (b)(ii). It is fair to say that DIR's assessment, on its face, did not constitute an assessment of the kind required by par (b)(ii). Furthermore, par (b)(ii), although stating that the assessment of work experience is to be made by DIR, does not contain any direction equivalent to that in reg 2.25A(3). That is, par (b)(ii) does not expressly require the Minister or the IRT to accept the assessment of DIR as correct. As I have already explained, it may well be the case that if DIR asks the right question it is not the IRT's role to reconsider the "merits" of DIR's assessment. However, I think that if DIR does not address the correct issue, the IRT is bound to defer its own decision until DIR does apply the criteria laid down in par (b)(ii). It follows that I do not accept the first step in Mr Beech-Jones' argument. I think that the IRT erred in law in acting on DIR's assessment and that the IRT's decision to affirm the refusal to grant a visa is amenable to review pursuant to s 476(1)(e) of the Migration Act. I should mention that Mr Beech-Jones, in his written submissions, suggested that DIR's assessment "might be considered" a decision reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), because it was made under s 41 of the TRR Act. If this suggestion is correct I would have power (as Mr Beech-Jones conceded) under s 11 of the ADJR Act to grant an extension of time to Mr Bellaiche in which to lodge an application for review of DIR's decision. In my opinion, however, Mr Beech-Jones' suggestion is not correct. DIR's assessment, although on one view it purported to be made under the TRR Act, was in truth one that should have been made pursuant to the Migration (1993) Regulations. DIR's erroneous approach did not convert its assessment into one made under the TRR Act. Conclusion The IRT's decision should be set aside. The matter should be remitted to the IRT, differently constituted, for determination according to law. The respondent should pay the applicants' costs. I certify that this and the preceding twenty-six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate: Dated: 7 May, 1998 Counsel for the Applicant: Self represented

Solicitor for the Respondent: Australian Government Solicitor