Ganesh Rao & Others v Minister for Immigration & Multicultural Affairs

[1998] 193 FCA

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(Judgment by: Davies J)

Between: Ganesh Rao First Applicant Zahida Begum Rao Second Applicant Elisha Sonal Rao Third Applicant
And: Minister for Immigration & Multicultural Affairs Respondent

Court:

Judge:
Davies J

Subject References:
immigration
Appeal from Immigration Review Tribunal decision affirming decision to refuse grant of a Class 816 (special (permanent)) or a Class 818 (highly qualified on-shore (permanent)) entry permit
whether applicant had been enrolled in an accredited course leading to a trade certificate
meaning of 'leading to'
whether error of law
whether failure by Tribunal to make adequate enquiries
whether breach of the procedures required to be observed

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 (Cth) - Schedule 1, par (e)
Migration Act 1958 (Cth) - s 420; s 476(1)(a); s 476(1)(e)
Migration Regulations - par 816.721(2)(c)

Case References:
Australian Gas Light Co v Valuer-General - (1940) 40 SR (NSW) 126, refd
Collector of Customs v Pozzolanic Enterprises Pty Ltd - (1993) 43 FCR 280
Deputy Commissioner of Taxation v Clarke & Kann - (1984) 1 FCR 322
New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation - (1956) 94 CLR 509
Sharp Corporation of Australia Pty Ltd v Collector of Customs - (1995) 59 FCR 6
Waterford v Commonwealth - (1986) 163 CLR 54

Hearing date: 23 February 1998
Judgment date: 6 March 1998

Sydney

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Judgment by:
Davies J

REASONS FOR JUDGMENT

This is an appeal from a decision of an Immigration Review Tribunal given on 29 November 1996 in which the Tribunal rejected the claims made by the applicants that Mr Ganesh Rao was entitled to a Class 816 (special (permanent)) entry permit or a Class 818 (highly qualified on-shore (permanent)) entry permit and that his spouse, Mrs Zahida Begum Rao and his daughter, Miss Elisha Sonal Rao, were entitled to visas accordingly. The appeal is brought under s 476 of the Migration Act 1958 (Cth) ("the Act"). Many heads of claim were pressed before the Tribunal but only one is relied upon in this proceeding.

Paragraph 816.721(2)(c) of the Migration Regulations provides:

"(2)

An applicant meets the requirements of this subclause if, on 1 November 1993:

...

(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." (emphasis added)

At the relevant time, Mr Rao was enrolled at the Bankstown College of TAFE in a course or for modules of a course entitled "National Metal and Engineering Fabrication and Welding Stream", course number 4224. The course comprised a large number of subjects or modules, the passing of any of which entitled the student to a statement of attainment. The course was open to everyone. Another course provided by the Bankstown College of TAFE at the same time was entitled "Fabrication Engineering - Trade", which was course number 8267. The TAFE handbook described this course as follows:

"This course is for metal fabrication apprentices. You may choose to learn either light or heavy metal fabrication.

This course replaces the old trade classifications:

boilermaking, metal fabrication and welding and sheetmetal.

The course is made up of a bank of National Metal and Engineering modules You must complete at least 24 full modules to get a trade certificate. You will choose your modules according to your industry classification.

Your college will provide you with further details and assist you with selecting appropriate modules.

For a full listing of the bank of modules refer to the course National Metal and Engineeering 4224 modules in this Handbook.

Note: The National Metal and Engineering 4224 is available to non-apprentices who want to learn single or groups of modules.

Entrance Requirements: This course is open to everyone but you have a better chance of getting into this course if you are an apprentice." (emphasis added)

As can be seen, to complete course 8267, a student was required to complete at least 24 of the course 4224 modules chosen according to an industry classification. On completion, the student would obtain a trade certificate.

Another part of the handbook described the difference between certificate courses and courses which led to a statement of attainment as follows:

"Certificate courses

These courses are for people who want to be trained in trades, crafts and areas where you need a high level of skills. These courses also prepare you for more study at TAFE or university. Certificate courses have different lengths and entrance requirements.

Statements of Attainment

These courses are for people who want to do short courses that train them for work. You can do these courses if you want to prepare yourself for a higher level TAFE course. Or you may do these courses to get extra skills in your area."

In 1993, Mr Rao was enrolled for two modules in course 4224 and, at the end of that year, obtained a statement of attainment for passing the module 8264J, "Welding and Thermal Cutting", and module 8267C, "Manual Metal Arc Weld 1".

When the applicants' claims came before it, the Department of Immigration and Ethnic Affairs on 21 March 1995 sent a facsimile message to the Bankstown TAFE requesting the following information:

"As per our telephone conversation, can you please advise the following:

When Mr Rao enrolled in the National Metal & Engineering Fabrication & Welding Stream course. (Course number 4224)

Whether this course leads to a trade certificate or an advanced certificate; and

Whether Mr Rao is meeting course requirements thus far.

Mr Rao has presented a Statement of Attainment in National Engineering Training Program for the 1993 year. Can you please advise whether this is part of the above course (Modules?)". (emphasis added)

The Bankstown TAFE responded as follows, inter alia:

"The above student is enrolled in National Metal & Engineering Fabrication & Welding course 4224.

For the 4224 course, is the award of a Statement of Attainment. However Mr Rao may apply for Tradesmans Right Certificate (DIR) after six years work experience.

...

The Statement of Attainment presented to Mr Rao is part of the above course (modules)." (emphasis added)

The reference to a Tradesman's Right Certificate may be ignored for present purposes.

Further information was given by the Bankstown TAFE on 5 April 1995 as follows:

"This is to state Ganesh Rao is currently enrolled in the course National Training Program (4224). This course has the same weighting content as Fabrication Engineering 8267 (ie, Trade Apprentice Boilermaking) however is only awarded Statement of Attainment." (emphasis added)

As can be seen, Mr Rao was at the relevant time enrolled in course 4224 or in modules thereof, on the completion of which modules he was entitled to a statement of attainment, not to the trade certificate or advanced certificate of which regulation 816.721(2)(c) spoke.

The Tribunal had this information before it. In the course of the hearing, the member constituting the Tribunal explained to Mr Rao that he was enrolled in study that would result in a statement of attainment, not a trade certificate. Mr Rao gave evidence that, when he finished 24 modules, he would be a boilermaker/welder. Although the evidence is a little unclear, I read Mr Rao's evidence as saying that, in 1996, he enrolled in the boilermaker/welding course which I would take to be the necessary modules, the successful passing of which would entitle him to the appropriate trade certificate. This apparently was how the member constituting the Tribunal understood the evidence for, towards the end of the hearing, he said:

"You see it doesn't help you because it's too late."

The member concluded the hearing by saying:

"Well look, the only thing I'll do is I still see we have the same problem when he had your application when I spoke to you, but what I will try and do, I'll talk to some of my colleagues here and see if they can see any way around with your statement of attainment - I don't know. I can't myself, I could try writing to TAFE but it is, it's the statement of attainment, that's not the trade certificate. I can't at the moment see any way around it, but I will talk to some of my colleagues and have a look at some other decisions that they made in this area and see if there is anything possible I can do."

The Tribunal's reasons for decision in relation to this particular point were brief. The Tribunal said:

"To satisfy the requirements of 816.721(2)(c) the Applicant must at 1 November 1993 have been enrolled during the 1993 academic year in an accredited course for at least an Advanced Certificate and have met the academic progress requirements. In 1993 Mr Rao passed two modules of TAFE course number 4224. I find that successful completion of this course would not have resulted in Mr Rao receiving an Advanced Certificate or Trade Certificate - he would have obtained a Statement of Attainment. I find that Mr Rao is unable to satisfy 816.721(2)(c)."

The appeal is brought on two grounds, first, that there was an error of law in the Tribunal's approach and in its understanding of the words "leading to" and, secondly, that the Tribunal breached the procedural requirements of s 420 of the Act in that it failed to make enquiries which would have elicited the fact that Mr Rao was in 1993 enrolled in an accredited course leading to a trade certificate.

One criticism made of the Tribunal is that, in the passage I have set out above, the Tribunal did not use the words "leading to" but used the words "for at least". It is, of course, always unwise not to use the precise words of a section or regulation at a critical point of reasons for decision. However, I cannot conclude from that substitution that there was any error in the Tribunal's approach. The Tribunal went on to make it perfectly clear why, in the view of the Tribunal, Mr Rao's circumstances did not meet the terms of the regulation.

Ms Elizabeth Wilkins, counsel for the applicants, submitted that the words "leading to" in the regulation import an element of flexibility and that the regulation should not be understood as if it read "... had been enrolled during the 1993 academic year in an accredited trade certificate course ...". This point was not entirely rejected by Mr Robert Beech-Jones, counsel for the respondent, who said that the regulation required that the applicant for the visa be enrolled in a course the inevitable or likely result of which would be the grant of a trade or advanced certificate.

Both counsel accepted that the words "leading to" imported a causal connection between the course in which the applicant was enrolled and the ultimate achievement of a trade certificate or an advanced certificate. Neither counsel gave a technical meaning to the words "leading to" but Mr Beech-Jones found some restriction in the words in the remarks of Bowen CJ, Lockhart & Fitzgerald JJ in Deputy Commissioner of Taxation v Clarke & Kann (1984) 1 FCR 322 where their Honours said, in relation to paragraph (e) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (Cth) at 325 that:

"The decisions which are excluded from review by par. (e) of the Schedule are decisions making assessments, decisions forming part of the process of making assessments, and decisions leading up to the making of assessments. Each category provides for some extension of the former, but the overall effect is to emphasise the essential need for a connection between the decision and an assessment.

It is inappropriate to attempt to define the boundary between those decisions which are and those which are not "decisions leading up to" the making of an assessment. However, a decision does not lead to the making of assessment merely because it precedes the making of an assessment or because its purpose is to enable or facilitate the making of any assessment which may be made. A decision is not a decision leading up to the making of an assessment unless the making of an assessment has followed or will follow from the decision." (emphasis added)

In my opinion, the words "leading to" are ordinary words of the English language and should be given their ordinary meaning in the interpretation of reg 816.721(2)(c). I would eschew any attempt to substitute other words for the words which the regulation has adopted. The general meaning of the words is clear enough. I consider that it was the task of the Tribunal, as the decision-maker of fact, to decide whether or not on the facts which were before it Mr Rao's circumstances met the requirements of the regulation.

The meaning of an ordinary English word used in its ordinary sense is a question of fact and so is the question whether a particular set of facts comes within that description. See eg. Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 at 512; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287-8; Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 11-14, 15-16. Accordingly, in a case such as the present, no error of law will be found unless one of the traditional grounds of judicial review, for example, that the Tribunal's decision was not open to it, is established. Under s 476(1)(e) of the Act, the error must be such that it can be postulated that the decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

In the present case, I am satisfied that the Tribunal's decision was open to it. Indeed, on the material which was before the Tribunal, I would not have expected it to come to any other decision. The evidence from the Bankstown TAFE was that Mr Rao was not in 1993 enrolled in a course which would lead to a trade certificate or an advanced certificate but rather was involved in the study of modules of course 4224, the successful passing of each of which would entitle him to a statement of attainment. I see no error in the Tribunal's decision.

Ms Wilkins put the point that the modules which Mr Rao studied in 1993 were also modules for course 8267 and that the passing of the modules in course 4224 could be taken advantage of at a later time when Mr Rao became enrolled in course 8267, for credit would be granted for them. That may be so but, in 1993, Mr Rao was not enrolled in course 8267. He was merely enrolled for modules in course 4224. It was not sufficient for the operation of reg 816.721(2)(c) that the applicant be studying subjects which may be of use to him in an accredited course leading to a trade certificate; it was necessary that in 1993 he be enrolled in a course leading to a trade certificate. On the evidence, Mr Rao was not so enrolled.

I would accept that the words "leading to" import some flexibility into the regulation. The words "leading to" are not technical words. Nevertheless, the course in which the student is enrolled must lead to one of the nominated certificates. The evidence from the Bankstown TAFE was to the contrary.

The regulation requires that one can postulate of the course in which the student is enrolled that it leads to one of the specified certificates. It is not sufficient that the student is studying with the ultimate aim of achieving such a certificate. The regulation specifies not the intent of the student but a characteristic of the course in which the student is enrolled. That is why, in Deputy Commissioner of Taxation v Clarke Kann, in an analogous context, Bowen CJ, Lockhart & Fitzgerald JJ used the expression "will follow", not the expression "may follow".

In my opinion, the Tribunal's understanding of the regulation was correct. I am not satisfied that there was any error of law in the Tribunal's decision, let alone an error falling within s 476(1)(e) of the Act.

On the issue raised under s 476(1)(a) of the Act, it was submitted by Ms Wilkins that in failing to make adequate enquiries the Tribunal did not comply with s 420 of the Migration Act by providing "a mechanism of review that is fair, just, economical, informal and quick" and did not act "according to the substantial justice and the merits of the case."

However, enquiries had been made of the Bankstown TAFE and those responses were before the Tribunal. One of the questions which the Bankstown TAFE had been asked was whether course 4224 led to a trade certificate or to an advanced certificate. In both responses, the answer to that was that it did not do so but only to a statement of attainment. It does not appear to me that there was any ambiguity in the responses from the Bankstown TAFE or that there was any need for the Tribunal to initiate further enquiries. What the member constituting the Tribunal did was to explain to the applicants during the hearing the problem which faced them by reason of the evidence which was before the Tribunal. In my opinion, the Tribunal was fair and just in its procedure and the steps which it took enabled it to deal with the merits of the case.

Ms Wilkins read a letter from the Senior Head Teacher, Fabrication & Welding of the Western Sydney Institute of TAFE which had been written to the applicant's solicitors on 8 April 1997 after the decision had been given. The letter said:

"Mr Rao is currently enrolled in the national Engineering Training Program (Course No. 4224).

This course is designed for students that wish to obtain training at Advanced Certificate, Post Trade Certificate, Trade (Certificate) or just to complete modules in any of the National Engineering Fields, ie Boilermaking, Sheetmetal, Fabrication, Welding, Fitting & Machining, Electrical Trades or Drafting.

The specific outcome for this course is 'Statement of Attainment'. Appropriate Modules from this Statement of Attainment can then be transferred to Trade or Advanced Course Numbers to obtain the appropriate Trade, Post Trade or Advanced Certificates. This Course is recommended to all overseas and mature aged students that are seeking recognition or equivalent trade status in Australia.

The Modules that Mr Rao has completed and is currently enrolled in are appropriate for him to apply for a Fabrication heavy (Boilermaking) Trade Certificate in (Course No 8267) on completion."

Had that material been before the Tribunal, then the Tribunal may have thought fit to make further enquiries. However the letter was not before the Tribunal. It does not seem to me that there was anything in the material which was before the Tribunal which placed upon it any responsibility to make any further enquiries.

Had the letter of 8 April 1997 been before it, the Tribunal may have thought it appropriate to enquire what was encompassed by the statement that course 4224 was recommended to all overseas and mature aged students who were seeking recognition or equivalent trade status in Australia. However, the mere fact that appropriate modules from course 4224 could be transferred to the trade certificate course 8267 would not of itself show that Mr Rao was, in 1993, enrolled in a course which met the regulatory prescription. The letter is ambiguous. It speaks of the modules of course 4224, amongst which we know students could choose. The letter implies that when Mr Rao had finished the modules for which he was then enrolled, he would be entitled to a trade certificate. However, the letter does not state that, in 1993, Mr Rao was enrolled for the 24 modules which would entitle him to such a certificate. There is a distinction between a course such as course 8267 in which enrolment involves enrolment for a set of 24 modules and enrolment in course 4224 in which a student may enrol for one or more of the very great range of modules offered.

In any event, the letter was not before the Tribunal and it does not throw doubt upon the validity of the Tribunal's decision or upon the procedure adopted by the Tribunal. If the Tribunal made a wrong finding of fact because of the responses it had from the Bankstown TAFE, and I do not suggest it did, that would not invalidate its decision. The making of a wrong finding of fact is not of itself an error of law. See Waterford v The Commonwealth (1986) 163 CLR 54 at 77.

In the circumstances, no ground under s 476(1)(a) or (e) of the Migration Act has been established. The application will be dismissed with costs.