Court rejects claim for trade status in immigration case

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister for Immigration & Multicultural Affairs [1999] FCA 99

IMMIGRATION - meaning of "trade" for purpose of reg 816.721(2)(b)(ii) of the Migration Regulations – whether applies to occupations of packager and filler, and cleaner – effects of evolving technology and changing work practices. Migration Regulations 1993 (Cwth), reg 816.721(2)(b)(ii)

[NAME] v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432 [NAME] v Minister for [NAME] (1997) 47 ALD 12

[APPELLANT] v MINISTER FOR [NAME] NG 770 of 1998 Burchett J 2 February 1999 Sydney

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 770 of 1998

BETWEEN: [APPELLANT] Applicant

AND: [APPELLANT] FOR [NAME]

Respondent

JUDGE: BURCHETT J

DATE: 2 FEBRUARY 1999

PLACE: SYDNEY

EX TEMPORE

REASONS FOR

JUDGMENT 1 The question raised by this case is whether the Immigration Review Tribunal erred in law in making a finding that the occupations of packager and container filler, or liquids filler, and commercial cleaner were occupations that: "do not require sufficient skills and complexity to be considered trades. All of them only require routine tasks and are at best semi-skilled rather than skilled." The point to which the Tribunal's finding was directed was whether the applicant could bring herself within the terms of regulation 816.721(2)(b)(ii) of the Migration Regulations, as they stood at the relevant date. They have since been amended. 2 There is no dispute that the form of the regulations with which the Court is now concerned is the form they took in 1993. At that time, the regulation to which I have referred related to a person who "held an overseas trade qualification, or had work experience that is assessed as meeting Australian education or training standards for that trade". The regulation went on to specify how that assessment was contemplated as being made; it is unnecessary to go into the details because of the finding that the occupations in question here were not trades within the meaning of the provision. 3 I have been referred to a number of decisions, but I do not think it is necessary for me to go into them all, because of the comprehensive way in which they are dealt with in the decision of [NAME] J in [NAME] v Minister for Immigration and Ethnic Affairs (1997) 148 ALR 432. I will mention one of the cases to which [NAME] J referred, [NAME] v Minister for [NAME] (1997) 47 ALD 12, a decision of [NAME] J. That case involved a secretary. [NAME] J made it clear that he saw nothing in the regulation to support a narrow interpretation of the undefined expression "trade", which he thought ought not to be narrowed. [NAME], in [NAME] at 443 - 444, reached the conclusion that the word "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." I express my complete agreement with that statement of the correct approach to the construction of the word "trade" in such a context. 4 I should add that statements of principle in the cases ought to be viewed as just that, and not slavishly applied to particular factual situations. For example, some of the cases suggest some limitation on the nature of the training a secretary might have. [NAME] said in his statement of broad principle could well be applied to such a case. Evolving technology and changing work practices in the community necessarily mean that someone who might not have been regarded as falling within any conception of a skilled secretary at one time, because he or she lacked a qualification in shorthand, might now be regarded as fully complying with what would be required of a modern secretary whose skills, perhaps, should rather be in the handling of computers. 5 Coming back to the facts of the present case, it seems to me impossible to say that there was any error of law in the Tribunal's conclusion that the particular pursuits with which this case is involved, did not constitute trades. That was a conclusion of fact which was open to the Tribunal. Indeed, it is hard to imagine any other conclusion being drawn.

Accordingly, the application will be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate: Dated: 2 February 1999

Solicitor for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 2 February 1999

Date of Judgment: 2 February 1999