Re Pushpa Devi Kumar v Immigration Review Tribunal and Minister of Immigration and Ethnic Affairs [1992] FCA 319; (1992) 36 FCR 544 (1992) 28 ALD 201 (Extract) (3 July 1992)

FEDERAL COURT OF AUSTRALIA

Re: PUSHPA DEVI KUMAR
And: IMMIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS
No. G125 of 1992
FED No. 471
Administrative Law
[1992] FCA 319; (1992) 36 FCR 544
(1992) 28 ALD 201 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Immigration - Application for concessional family visa - Points system - Interpretation of regulations concerning employment qualifications - Regulation referring to "occupation for which, in Australia, ... a trade certificate is required" - By whom "required"? - Meaning of "trade certificate" - Command of legislation to Tribunal to "act according to substantial justice and the merits of the case" - Whether this entitles Tribunal to disregard specific criteria for grant of visas.

Migration Act 1958, s.123.

Migration Regulations reg. 145,146.

Administrative Decisions (Judicial Review) Act 1977, s.5(1)(b) and (f)

HEARING

SYDNEY
3:7:1992

Counsel for the Applicant: J. Dowd QC and

K. Pryde

Solicitors for the Applicant: A.H. Kington and Co

Counsel for the Respondent: P. Roberts

Solicitors for the Second Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the first respondent, the Immigration Review
Tribunal, dated 13 February 1992 concerning Prem Prabha
Singh be set aside.
2. The application of Prem Prabha Singh for a concessional
family visa be referred back to the first respondent for
further consideration, with such further evidence and
submissions as the parties may wish to present, and
determination according to law.
3. The second respondent, the Minister for Immigration and
Ethnic Affairs, pay the applicant's costs of this
proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 whereby the applicant, Pushpa Devi Kumar, calls into question a decision made by the first respondent, the Immigration Review Tribunal. The Tribunal does not actively defend the proceeding. However, the Minister for Immigration and Ethnic Affairs was joined as second respondent. He appeared by counsel to support the Tribunal's decision.

2. The Tribunal is constituted by Part 4 of the Migration Act 1958. Members are appointed by the Governor-General: see s.152. Division 1 of Part 3 deals with applications for review by the Tribunal of certain decisions of the Minister and departmental officers. They include decisions denying visa applications. Division 3 of Part 3 deals with the exercise of the Tribunal's powers. The opening section in that Division is s.123 entitled "Tribunal's way of operating". It reads:

"123(1) The Tribunal shall, in carrying out its functions
under this Act, pursue the objective of providing a
mechanism of review that is fair, just, economical, informal
and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or
rules of evidence; and
(b) shall act according to substantial justice and
the merits of the case."

3. Counsel for the applicant place reliance upon this provision, especially the command of para. (b) of subs. (2) that the Tribunal "act according to substantial justice and the merits of the case".

4. Unlike the situation in most migration cases which come before the Court, the applicant is not an illegal migrant. She is an Australian citizen who sponsored an application for a concessional family visa made by her sister, Prem Prabha Singh. Mrs Singh is a Fijian national. She has, apparently, always resided in Fiji. So far as I am aware, she is there now.

5. The primary facts of the case are set out in the Tribunal's statement of decision and reasons. They are not in dispute. The Migration Act and Regulations together provide for classes of visas, permitting persons resident abroad to migrate to Australia. By a tortuous trail a points system applies to the class of visa sought by Mrs Singh, the concessional family visa. Section 23(2) of the Act permits the making of regulations for different classes of visas. It provides that, subject to s.28 of the Act allowing suspension of processing of visa applications, "a person is entitled to be granted a visa of a particular class if a person satisfies all the prescribed criteria in relation to that class". Regulation 10 establishes the classes of visas specified in Schedule 2 of the regulations. Item 3 of Part 3 of that Schedule refers to the concessional family visa and specifies certain criteria; including, by symbol G, that "the applicant has received the necessary score when assessed in relation to the relevant class of visas under Subdivision B of Division 2 of Part 2 of the Act". This reference takes the reader back to ss.29-32 of the Act. Sections 29-31 provide for a "points system". Section 32 authorises the Minister to specify from time to time, in relation to a class of visas, a pool entrance mark and a priority mark and, in relation to applications for visas, a pass mark. Regulation 145 requires that an applicant for a concessional family visa have one of the employment qualifications specified in paras. (a) to (k) of reg. 146(1) - points (ranging from 75 down to 10) being allocated depending on which paragraph applies. Regulation 145 also refers to other criteria (age, language skill, relationship, sponsor citizenship and residence), allocating various points for each of those criteria. I am not concerned with those other criteria. It is common ground that the case turns on the application of the employment criteria referred to in reg. 146(1). The parties agree that, at the dates of the decisions of both the Minister's delegate refusing the application and the Tribunal, the priority and pool entrance marks were set at 85 points and that Mrs Singh was entitled to 45 points for criteria other than employment criteria. Accordingly, in order to qualify for a visa, she needed to attain not less than 40 employment qualification points. This she could do only by bringing herself within one of paras. (a), (b), (c), (d), (e) or (k) of reg. 146(1). At relevant times, the points allocated to the various paragraphs in reg. 146(1) were: (a) 75, (b) 70, (c) 60, (d) 55, (e) 50, (f) 30, (g) 25, (h) 20, (i) 10, (k) 40. Mrs Singh was assessed as falling within para. (g), an assessment which gave her insufficient points. Accordingly, her application was refused.

6. The present applicant sought review by the Tribunal of the delegate's decision to refuse a visa. She contended that her sister ought to have been treated as falling within para (b) of reg. 146(1); alternatively, within (k). But the Tribunal upheld the delegate's view that para. (g) applied. The primary submission put to the Court is that, in so doing, the Tribunal erred in law; the argument being that it misconstrued the regulation. Counsel relies on s.5(1)(f) of the Administrative Decisions (Judicial Review) Act. Alternatively, counsel say that, even if the Tribunal's construction of the regulation was correct, it failed to comply with a procedure required by law, namely s.123 of the Migration Act (s.5(1)(b) of the Administrative Decisions (Judicial Review) Act).

7. In dealing with the first point, it is desirable to set out paras. (a) to (k) of reg. 146(1). Not all these paragraphs are directly relevant. But counsel for the Minister says that the paragraphs constitute a gradation of qualifications, with a descending number of points allocated for each; except for (k) which was added by amendment. He argues that the interpretation of any particular paragraph ought to be guided by consideration of others.

8. The wording of the various paragraphs has varied from time to time. However, counsel agree that, at the dates of both the delegate's and the Tribunal's decisions, they read as follows:

"146.(1) For the purposes of sections 30 and 41 of the Act,
and Schedule 4, the qualification specified in each of the
following paragraphs is to be taken to be a qualification
prescribed in relation to the suitability of a person for
employment:
(a) the applicant:
(i) applies to enter Australia on the basis of an
occupation:
(A) that is the applicant's usual occupation; and
(B) that is a priority occupation; and
(C) for which, in Australia, a degree, trade
certificate, diploma, associate diploma or
post-trade qualification is required or that is a
professional-equivalent or technical-equivalent
occupation; and
(D) in respect of which the applicant has a degree,
trade certificate, diploma, associate diploma or
post-trade qualification that meets Australian
standards for the occupation, or experience
assessed by the relevant Australian authority to
be equivalent to the Australian standards for the
occupation; and
(ii) has, in respect of that occupation, qualifications or
experience (or both) required for the purpose of any
Australian occupational licence or registration (or
both); and
(iii) has worked in that occupation, or, on any occasion when
not working in the usual occupation, a closely related
occupation:
(A) for not less than 3 years, or such longer period
as is specified by a CTC or NOOSR, (except for
periods of absence that, in total duration, have
not exceeded 12 months) immediately before making
the application; and
(B) in the case of a person who has a qualification
referred to in sub- subparagraph (i)(D) - after
acquiring that qualification;
(b) the applicant's usual occupation:
(i) is not a priority occupation; and
(ii) is an occupation:
(A) for which, in Australia, a degree or trade
certificate is required; or
(B) that is a professional - equivalent occupation;
and
(iii) is an occupation in respect of which the
applicant has:
(A) a degree, trade certificate or post-trade
qualification that is assessed by the relevant
Australian authority as meeting Australian
educational or training standards for that
occupation; or
(B) experience assessed by the relevant Australian
authority to be equivalent to the Australian
standards for that occupation;
(iv) is an occupation in respect of which the applicant has
qualifications or experience (or both) required for the
purpose of holding any Australian occupational licence
or registration (or both); and
(v) is an occupation in which the applicant has worked or
(on any occasion when not working in the usual
occupation) that is closely related to the occupation
in which the applicant has worked:
(A) for not less than 3 years, or such longer period
as is specified by a CTC or NOOSR, (except for
periods of absence that, in total duration, have
not exceeded 12 months) immediately before making
the application; and
(B) in the case of an applicant to whom
sub-subparagraph (iii)(A) applies, after acquiring
the qualification referred to in that
sub-subparagraph;
(c) the applicant meets the qualification specified in paragraph
(b) except that, in respect of subparagraph (b)(v), he or
she has worked immediately before making the application:
(i) for a period of less than 3 years; or
(ii) if a longer period of relevant work is specified by a
CTC or NOOSR for the purposes of this provision - for a
period less than that specified period;
(d) the applicant's usual occupation:
(i) is not a priority occupation; and
(ii) is an occupation:
(A) for which, in Australia, a diploma or associate
diploma is required; or
(B) that is a technical-equivalent occupation; and
(iii) is an occupation in respect of which the applicant has:
(A) a diploma or associate diploma that is assessed
by the relevant Australian authority as meeting
Australian educational or training standards for
that occupation; or
(B) experience assessed by the relevant Australian
authority to be equivalent to the Australian
standards for that occupation;
(iv) is an occupation in respect of which the applicant has
qualifications or experience (or both) required for the
purpose of holding any Australian occupational licence
or registration (or both); and
(v) is an occupation in respect of which the applicant has
worked or (on any occasion when not working in the
usual occupation) that is closely related to the
occupation in which the applicant has worked:
(A) for not less than 3 years, or such longer period
as is specified by a CTC or NOOSR, (except for
periods of absence that, in total duration, have
not exceeded 12 months) immediately before making
the application; and
(B) in the case of an applicant to whom
sub-subparagraph (iii)(A) applies, after acquiring
the qualification referred to in that
sub-subparagraph;
(e) the applicant:
(i) possesses the attributes referred to in
subparagraphs (d)(i), (ii), (iii) and (iv); and
(ii) has, immediately before making the application, worked
in the applicant's usual occupation, or, on any
occasion when not working in the usual occupation, a
closely related occupation:
(A) for a period of less than 3 years; or
(B) if a period of relevant work is specified by a
CTC or NOOSR for the purposes of this provision -
for a period less than that specified period;
and
(C) in the case of a person who has a qualification
referred to in sub- subparagraph (d)(iii)(A) -
after acquiring that qualification;
(f) the applicant:
(i) applies to enter Australia on the basis of an
occupation which is the applicant's usual occupation,
being an occupation:
(A) for which, in Australia, a degree, diploma,
associate diploma or trade certificate is
required; and
(B) in respect of which the applicant had a degree,
diploma, associate diploma or trade certificate
that qualifies him or her to enter that
occupation in the foreign country of his or her
usual residence; and
(C) in respect of which the qualifications of the
applicant are assessed by the relevant Australian
authority as requiring upgrading by a course of
training lasting not more than 6 months before
being equivalent to Australian standards for that
occupation;
(ii) possesses, in relation to such an occupation, the
attributes referred to in subparagraph (a)(iii);
(g) the applicant:
(i) applies to enter Australia:
(A) on the basis of an occupation that is the usual
occupation of the applicant, being an occupation
entry to which in Australia requires a
post-secondary educational qualification other
than a degree, diploma, associate diploma or
trade certificate; and
(B) as a person who has educational qualifications
equivalent to completion of 4, 5 or 6 years of
secondary education in Australia; and
(C) as a person who has post-secondary educational
qualification, other than a degree, diploma,
associate diploma or trade certificate, that
meets Australian standards for that occupation,
or has work experience that is assessed by the
relevant Australian authority to be equivalent to
such a post-secondary qualification; or
(ii) has an occupation:
(A) that is the usual occupation of the applicant;
and
(B) entry to which in Australia requires a degree,
diploma, associate diploma or trade certificate;
and
(C) in respect of which the applicant has a degree,
diploma, associate diploma or trade certificate,
or possesses work experience, assessed by the
relevant Australian authority as not equivalent
to Australian Standards for that occupation;
(h) the applicant has an occupation which is the applicant's
usual occupation and has educational qualifications
equivalent to 12 years of primary and secondary education in
Australia;
(i) the applicant has an occupation which is the applicant's
usual occupation and has educational qualifications
equivalent to 10 years of primary and secondary education in
Australia;
(Paragraph (j) has been repealed).
(k) the applicant:
(i) has an occupation that is the applicant's usual
occupation; and
(ii) is the holder of a degree, diploma, associate diploma
or trade certificate that:
(A) was awarded in the period of 5 years ending on
the day before the application is made; and
(B) is of equivalent standard to a degree, diploma,
associate diploma or trade certificate awarded by
an Australian educational institution; and
(iii) does not have the qualifications described in
any of paragraphs (a) to (e) inclusive."

9. A "priority occupation", referred to in paras. (a) and (b), is an occupation specified by the Minister by Gazette notice as a priority occupation: see reg. 146(2). It is agreed between the parties that Mrs Singh's occupation, that of a secretary, is not a "priority occupation". Accordingly, para. (a) does not apply. A "professional-equivalent occupation" is an occupation so specified by the Minister, by Gazette notice: see reg. 146(2) on this matter also. Once again, it is agreed that this concept does not apply. So Mrs Singh does not fall within the second alternative, presented by para. (b)(ii)(B). However, the applicant contends that the occupation of a secretary is one for which, in Australia, a "trade certificate" is required: see para. (b)(ii)(A). She also argues that Mrs Singh fulfils the requirements of subparas. (iii), (iv) and (v) of para. (b).

10. It appears that Mrs Singh holds two Certificates in Typewriting, and a Certificate in Book-keeping, awarded by The Royal Society of Arts Examination Board, a certificate of Pitman Examinations Institute certifying a shorthand speed of 50 words per minute, a certificate of the Fijian Ministry of Education Computer Studies Centre for having passed at credit level an examination at that institution and a certificate in Word Processing (editing) issued by the Commercial Education Society of Australia. According to references included in the application papers, Mrs Singh was employed by Lautoka General Transport Co Ltd as a secretary from March 1981 to 30 April 1987 and from August 1988 to 26 March 1990. She is apparently still employed by that company and regarded highly.

11. The certificates and references to which I have referred bear upon the question whether Mrs Singh satisfies the requirements of subparas. (iii), (iv) and (v) of para. (b). But it is not for me to say that this material satisfies those requirements. That would be a conclusion of fact. Conclusions of fact are for the Tribunal, not the Court. The Tribunal's finding that Mrs Singh falls within para. (g) - apparently para. (g)(i) - suggests that the Tribunal would have found compliance with subparas. (iii), (iv) and (v) of para. (b) if it had reached the point of considering them. But it did not do so, the reason being that it concluded that the occupation of secretary is not one for which, in Australia, a "trade certificate" is required. Accordingly, it did not need to consider the remaining limbs of para. (b).

12. The Tribunal's explanation of the critical element in its decision was relatively short:

"According to the Australian Standard Classification of
Occupations, Occupations Definitions (the ASCO dictionary)
published by the Australian Bureau of Statistics, the
occupation of 'office secretary' is listed (code 5101-11) as
being one that requires an education level of a 1 year
certificate or 2-3 year degree or diploma. The Tribunal
regards the ASCO dictionary as authoritive guide on the
entry level for occupations. In the case of the occupation
of 'office secretary' the Tribunal considers it an
occupation which requires a post-secondary qualification or
equivalent experience: a secretary is generally required to
have administrative skills, ability to operate a typewriter
or wordprocessing system, keyboard skills and, less
frequently, shorthand skills. The level on training and/or
experience required at the entry level of this occupation,
however, would not generally be equivalent to a degree,
diploma, associate diploma or trade certificate. It is not
an occupation which 'requires' such an educational
qualification."

13. One question of construction potentially arising under para. (b)(ii) is the meaning of "required"; in particular, whether or not this is a reference to a legal requirement. As it happened, this question did not loom large in the argument. Counsel for both parties agreed that the word "required" does not refer to an requirement of the law, but rather to a requirement in fact, or of actual practice. Thus the relevant occupation is one for which it is, in practice, necessary to have a degree or trade certificate.

14. It is common ground that a secretary's occupation does not require a degree; but the parties divide on the question whether the Tribunal should have held that the occupation is one for which a trade certificate is required in Australia. Counsel for the applicant place reliance upon the Tribunal's finding that, in this country, the occupation of "office secretary" requires an educational level of, at least, "a 1 year certificate". They say that such a certificate is a "trade certificate" within the meaning of para. (b)(ii)(A); a "trade certificate" being a certificate issued by a relevant institution certifying that a person has the qualification or qualifications required, as a matter of practice, for engagement in a particular trade. The term "trade", say counsel, is not confined to traditional male-oriented callings such as carpentering and plumbing; it includes all skilled occupations. In aid of this submission they refer to two dictionaries and a decision in the House of Lords, National Association of Local Government Officers v Bolton Corporation (1943) AC 166. The Macquarie Dictionary definitions of "trade" include "a form of occupation pursued as a business or calling, as for a livelihood or profit" and "some line of skilled mechanical work". The Shorter Oxford Dictionary gives, as one meaning of the word: "The practice of some occupation, business, or profession habitually carried on, esp. when practised as a means of livelihood or gain; a calling; now usu. applied to a mercantile occupation and to a skilled handicraft, as dist. from a profession, and spec. restricted to a skilled handicraft, as dist. from a professional or mercantile occupation on the one hand, and from unskilled labour on the other". In the Bolton Corporation case the question was whether a dispute between local government officers and a local authority was a "trade dispute". The House held that it was. During the course of his speech, at 184-185, Lord Wright dealt with the meaning of "trade" in this way:

"Trade and industry are thus treated as interchangeable terms. Indeed,
'trade' is not only in the etymological or dictionary sense, but in
legal usage, a term of the widest scope. It is connected originally
with the word 'tread' and indicates a way of life or an occupation. In
ordinary usage it may mean the occupation of a small shopkeeper equally
with that of a commercial magnate. It may also mean a skilled craft.
It is true that it is often used in contrast with a profession. A
professional worker would not ordinarily be called a tradesman, but the
word 'trade' is used in the widest application in the appellation 'trade
unions'. Professions have their trade unions."

15. Counsel for the Minister claims that a secretary's calling is not a "trade". But his primary submission, like the decision of the Tribunal, does not rest upon that claim; but rather on the proposition that this is not an occupation that requires a "trade certificate". A "trade certificate", says counsel, is more than a certificate as to the possession of particular skills which, in practice, enable people to obtain employment in a particular calling; it is a certificate which declares the person's overall competence to engage in a particular trade. Counsel says that, although it is usual - as the Tribunal found - for a secretary to have particular skills such as typing or word processing, keyboard, shorthand and administrative skills, and although each of such skills is usually gained by attending a course of instruction at the end of which a certificate issues, there is in Australia no concept of a certificate as a secretary, in the way that certificates issue to people who undertake a course of instruction or apprenticeship in other areas. Central to counsel's argument is a submission that a construction of para. (b) which treats a mere skills certificate as a "trade certificate" would be inconsistent with the structure of reg. 146(1). It is said, for example, that it would be anomalous if paras. (d) and (e), which refer to an occupation for which a diploma or associate diploma is required, carried fewer points than an occupation requiring merely a particular skill. Furthermore, counsel suggests that para. (f) would be redundant. That paragraph relates to an occupation for which, inter alia, a trade certificate is required and held but in respect of which the applicant's qualifications are assessed as requiring upgrading. If a mere skills certificate was enough, counsel argues, this paragraph could never apply. Finally, para. (g) refers to a "person who has a post-secondary educational qualification, other than a ... trade certificate, that meets the Australian standards for that occupation". On the applicant's interpretation of "trade certificate", says counsel for the Minister, there would never be such a person; any post-secondary educational qualification that meets the Australian standard for an occupation would be a trade certificate.

16. There is force in the matters put on behalf of the Minister. The hierarchical structure of reg. 146(1) is striking. Leaving aside para. (k), the various paragraphs attract descending numbers of points. It would be strange if a person with a mere occupation skills certificate could earn the same number of employment qualification points as a person who held a relevant university degree; and a higher number of points than a diplomate. Moreover, para. (b)(iii)(A) casts additional light on the notion of "trade certificate". It refers to a "trade certificate ... that is assessed by the relevant Australian authority as meeting Australian educational or training standards for that occupation". A skills certificate in typing or shorthand, for example, would not be sufficiently comprehensive to be capable of meeting Australian educational standards for the occupation of secretary; it would be only part of the educational background required for the job. An assessment could only be applied to a certificate covering all aspects of the occupation.

17. I see no warrant in the regulations for a narrow interpretation of "trade". In particular, I do not think that the word should be confined to traditional occupations, such as those of the carpenter, bricklayer and tailor, as suggested by counsel for the Minister. As the Shorter Oxford Dictionary definition makes apparent, "trade" is a word applicable to any skilled handicraft, as distinct from a profession. The work of a secretary, under modern conditions at least, is a skilled handicraft. Accordingly, if at the end of a comprehensive training program, a reputable institution issued a certificate of competency to be a secretary, I would regard that certificate as a "trade certificate". But I do not think that a certificate as to competency in one particular aspect of a secretary's "trade", such as typewriting or shorthand, is enough.

18. Notwithstanding my acceptance of aspects of the Minister's case, I have difficulty in accepting his submission that the Tribunal did not err in law. The Tribunal took its information about the educational skills required for secretaries in Australia from the ASCO dictionary. The Tribunal said that this work lists the educational qualification of an "office secretary" in Australia as "a 1 year certificate or 2-3 year degree or diploma". What does this mean? Leaving aside the reference to a degree or diploma, is the ASCO dictionary referring to a mere skills certificate, such as the various certificates held by Mrs Singh and which, I think, do not answer the description "trade certificate"? Or is the dictionary referring to a certificate of overall competence in the occupation of office secretary? If the latter, and if I am right in thinking that a secretary's avocation is a "trade", this would seem to be a "trade certificate". It does not matter, that it is issued after a comparatively short period of study; that only means that the trade of a secretary is one in which it is possible to gain competence comparatively quickly. Nor does it matter, for the purposes of para. (b)(ii), that Mrs Singh does not possess such a certificate. At this point in the exercise the decision-maker is concerned only with the classification of the occupation. The identity and qualifications of any particular applicant are irrelevant. It is true that a person who does not hold a comprehensive certificate would not be able to satisfy subpara. (iii)(A); but she or he may satisfy subpara. (iii)(B). In the ordinary case subparas. (iv) and (v) would not present a problem.

19. The problem about the Tribunal's reasoning is that it contains two successive contradictory sentences. After stating the ASCO dictionary requirement, a requirement which is not said to be subject to any exception, the Tribunal adopted its guidance: "The Tribunal regards the ASCO dictionary as authoritive guide on the entry level for occupations"; not a mere guide, to be taken into account, but the "authoritive guide" beyond which it was inappropriate to go. But, in the following sentence, the Tribunal immediately stated a contradictory view: that the educational level for an office secretary "requires a post-secondary qualification or equivalent experience". In other words, the Tribunal said that a potential office secretary does not necessarily require a one year certificate or two to three year degree or diploma. The Tribunal then applied this second alternative to reach the conclusion that the occupation does not require the requisite educational qualification stipulated by the ASCO dictionary. What happened to the authoritative guidance provided by the dictionary?

20. I do not suggest that the Tribunal is bound to restrict itself to the ASCO dictionary. It is required to find the relevant facts. It may be the fact that persons becoming secretaries in Australia are not currently required to have undertaken a one-year comprehensive training program, or more; I do not know. (The relevant question is, of course, the qualification for entrance into the occupation, not the qualifications which may be held by some existing secretaries. And attention should be directed to secretaries, as such, not mere typists or clerks). If that is the fact, the Tribunal could properly find that the occupation of secretary is not one for which a "trade certificate" is required in Australia. If the Tribunal does so find, the matter being critical to its decision, it ought to state the source of its information. If, on the other hand, the Tribunal does treat the ASCO dictionary as authoritative, there would appear to be no room for the conclusion that the occupation of office secretary is not one for which, in Australia, a trade certificate is required.

21. I have considered whether the defect in the Tribunal's reasoning is a mere error of fact, in relation to which the Court is unable to intervene under the Administrative Decisions (Judicial Review) Act. But, on reflection, I think not. If the one year certificate is provided in respect of a comprehensive course of instruction its adoption of the ASCO dictionary requirement ought to have led the Tribunal to decide the matter in Mrs Singh's favour. The Tribunal's failure to appreciate the significance of that adoption can only have stemmed from a misconstruction of the term "trade certificate". Accordingly, the Tribunal's decision ought to be set aside and the matter remitted for reconsideration.

22. Two other matters should be mentioned. As I have indicated, the applicant relied also on para. (k) of reg. 146(1). I do not see how she can qualify under that paragraph. That paragraph requires that the visa applicant be the holder of a degree, diploma, associate diploma or trade certificate. If I am right in my understanding of the meaning of "trade certificate", Mrs Singh does not meet this requirement. She does not hold a comprehensive certificate of competency, merely a series of skills certificates. The issue is distinct from that arising under para. (b)(ii), dealing with educational requirements for the trade in Australia as distinct from the applicant's own qualifications.

23. Secondly, strong reliance is placed upon s.123(2)(b) of the Act. Counsel for the applicant say that, even if Mrs Singh was unable to satisfy para. (b) or para (k), and therefore earn the required number of points, "substantial justice" required the grant to her of a visa. The argument is that Mrs Singh is a person with substantial secretarial qualifications and experience who would make an excellent migrant.

24. I cannot accept this submission. I agree with counsel that s.123(2) is not concerned only with procedural matters, as is subs.(1). But I do not think that the subsection provides a warrant for the Tribunal to ignore the nicely-calculated visa categories, and their criteria, and to grant a visa on the simple basis that the particular applicant would be likely to make a good migrant. The reason for the elaborate structure put into place by the 1989 statutory amendments and regulations is that the number of persons who, considered as individuals, are likely to make desirable migrants greatly exceeds the number which Australia is able to accept. The 1989 legislation was designed to put into place criteria by reference to which choices might be made.

25. Although s.123(2) is new to the Migration Act, similar language has been used in other Commonwealth legislation, notably that concerned with war veterans. The Australian Soldiers' Repatriation Act 1920 (as that legislation was originally known) provided by s.45W that, subject to the Act, an appeal tribunal shall not, in the hearing of appeals, "be bound by any rules of evidence but shall act according to substantial justice and the merits of the case and shall give to an appellant the benefit of the doubt". Notwithstanding this, in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, nobody suggested that the appeal tribunal was free to disregard the entitlement limitations contained in the Act. Only Evatt J, who dissented, thought the reference to "substantial justice" significant; and then only because he thought the procedure adopted by the appeal tribunal failed to accord to the appellant a fair opportunity of meeting the case made against him: see 256. Of course, as mentioned, in that case the relevant provision was introduced by the words "Subject to this Act", a phrase not found in s.123 of the Migration Act. But subsequent war veterans' cases show that this makes no difference. For example, in Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198, Fisher J considered the reference to "substantial justice and the merits and all the circumstances of the case" which had by then been inserted into s.107VG of the Repatriation Act, as the legislation considered in Bott had then become. Section 107VG contained no limitation "Subject to this Act". Nonetheless, Fisher J rejected the Commission's submission that the review tribunal was not bound to decide the application in accordance with law. After referring to cases in which the legislature had stated criteria such as "equity, good conscience and the substantial merits", and noting the limiting words in Bott, his Honour said at 209:

"However, when the legislature goes to lengths and in particular to such
considerable lengths as it does in the present Act to prescribe in great
detail the amount and the circumstances of entitlements, it would be
surprising indeed if these prescriptions could be ignored in reliance
upon the 'substantial justice and merits' provision. Rather one would
expect to find express introductory words such as introduce the 'equity,
good conscience and substantial merits' provision in s.51 of the
Industrial Code, 1967 (S.A.), namely, 'notwithstanding anything in this
Act or in any other law or any practice to the contrary'."

26. In Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404, a case arising under the Veterans' Entitlements Act 1986, Lee J rejected the argument that the requirements of natural justice are "technicalities" which a board might ignore. His Honour thought the obligation of "substantial justice" imported a requirement of procedural fairness. He did not need to consider whether it went farther.

27. Two decisions of the Administrative Appeals Tribunal under the Veterans' Entitlement Act reflect my understanding of the limitations of the injunction to do "substantive justice". In one case Deputy President Thompson presided over a board of three members. In the other, he was the sole member of the board. In the first case, Pash and Repatriation Commission (No. V87/89, unreported 22 January 1988), the Tribunal used the reference to "substantial justice" to justify declining to assess the applicant's incapacity in accordance with a non-statutory guide approved by the Commission. The Tribunal thought that the guide underestimated the applicant's degree of incapacity. In the second case, McKay and Repatriation Commission (No. V87/234, unreported 4 February 1988), Mr Thompson rejected an invitation by counsel to use the "substantial justice" provision so as to make benefits available to a veteran on an earlier date than provided by the Act. Mr Thompson said that the provision:

"... does not empower, authorise or permit the Commission, the VRB
or the Tribunal to decline to apply a relevant provision of the
Veterans' Entitlements Act. If the relevant provision leaves it to
exercise a discretion, it certainly should choose the course which
results in substantial justice being done; but it cannot, in order
to do what it believes to be substantial justice, refuse to apply a
relevant provision or go outside what it is authorised to do by the
terms of the Veterans' Entitlements Act."

28. Finally, I refer to a statement made by Gray J in Sherman v Repatriation Commission (6 June 1991, not reported):

"The 'substantial justice' argument rested on the proposition that
the applicant was one of a class of persons intended to be benefited
by the Act, and that his past hardships should have produced a
decision in his favour. The flaw in this argument is that it
overlooks the terms of the Act itself. The extent to which the
class of veterans is intended to be benefited is to be gleaned only
from the terms of the Act. It is not possible for the Tribunal, or
the Court, to ignore a provision of the Act in favour of a veteran,
simply because of hardship. It is unnecessary to explore the
meaning of 'substantial justice'. That task can be left to the
future, and to full and proper argument on the point. Whatever
'substantial justice' means, it clearly does not mean setting aside
a provision of the Act, so as to favour one party, because of
circumstances external to the facts which fall within the scope of
the matter to be determined."

I respectfully agree. Whatever may be the significance of s.123(2) of the Migration Act for other situations, I do not believe that the subsection authorises the Immigration Review Tribunal to grant a visa to an applicant who is unable to satisfy the criteria established by the Migration Act and regulations.

29. The order that I propose to make is that the decision of the Immigration Review Tribunal dated 13 February 1992 concerning Prem Prabha Singh be set aside and that the application then before the Tribunal be referred back to the Tribunal for further consideration, with such further evidence and submissions as the parties may wish to present, and determination according to law. The Minister must pay the costs of this proceeding.