Renuka Goodapatia v Minister for Immigration & Multicultural Affairs [1998] FCA 107 (17 February 1998)

Last Updated: 2 March 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG393 of 1997

BETWEEN:	RENUKA GOODAPATI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	17 february 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG393 of 1997

BETWEEN:	RENUKA GOODAPATI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	17 february 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: I have before me an application under section 476 of the Migration Act 1958 (Cth) for judicial review of a decision given under the Migration Act by a Senior Member of the Immigration Review Tribunal ("the Tribunal") on 30 April 1997. The matter concerns a decision initially made on 7 July 1995 by a delegate of the Minister not to grant the applicant a Class 818 Highly Qualified On-shore (Permanent) Entry Permit, which is generally referred to as an "818 entry permit". Such an entry permit, if granted, would have enabled the applicant the become a permanent resident of Australia.

The decision of the delegate was affirmed by the Migration Internal Review Office and by the Tribunal differently constituted. On appeal to the Federal Court the matter was remitted to the Tribunal for reconsideration by consent. Upon reconsideration, the Tribunal in the decision to which I first referred, affirmed the decision under review.

The purpose of an 818 entry permit is to provide for permanent residency in Australia by certain persons who hold or have undertaken study towards higher educational qualifications. So much appears from paragraph 818.12. The requirements for the grant of the entry permit are set out in paragraph 818.721. They are that the applicant is a person who had not turned 45 before 1 November 1993 and who meets the requirements of subclauses (2), (3), (4) or (5). The applicant contended that she met the requirements of subclause (4), it being common ground that she was not entitled to rely on subclauses (2), (3) or (5).

Subclause (4) relevantly provides that an applicant met the requirements of subclause (4) if before 1 November 1993 the applicant had completed the requirements of a bachelor's degree or higher degree in Australia and on 1 November 1993 was undertaking further study, practical training or work experience required to obtain professional registration, licensing or admission.

The applicant is a 38 year old Indian national who first arrived in Australia on 27 February 1991 under a student visa which had been issued in New Delhi on 18 February 1991. It is common ground that the applicant satisfied all of the requirements for the grant of an 818 entry permit, save for the requirement that on 1 November 1993 she was undertaking further study, practical training or work experience required to obtain professional registration, licensing or admission.

The evidence before the Tribunal was that the applicant was admitted to the degree of Master of Applied Science in Biotechnology, at the University of New South Wales on 23 October 1992. Upon completion of that course, she pursued business computing studies at a business college in Sydney. During the three month period between July 1992 and October 1992, she was employed at the CSIRO Food Research Laboratory whilst concurrently working at the International Students' Centre of the University of New South Wales.

Between September 1993 and April 1994, the applicant worked as a research assistant at the University of Western Sydney, Nepean. Her contention is that in that capacity she was undertaking work experience required to obtain professional admission. The admission relied upon was admission to membership of the Australian Institute of Biology Inc and membership of the Australian Institute of Agricultural Science. The applicant successfully applied for membership of the former in February 1996 having been admitted as a member of the latter on 20 October 1995.

The qualification for admission as a member of the Australian Institute of Biology Inc was the holding of a Doctor of Philosophy or Masters degree and one year's engagement or employment as a practising biologist. The applicant contended that her work as a research assistant at the University of Western Sydney from September 1993 until April 1994 was part of her engagement or employment as a practising biologist which qualified her for admission to the Australian Institute of Biology Inc, it being contended that she was in that capacity, undertaking work experience for professional admission to that Institute.

The Tribunal found from the inquiries which it made of the two organisations that membership of neither body was a prescribed requirement for the practice of a biologist. The Tribunal found that the organisations are professional development organisations and that the benefits of membership include networking, further education, awareness of a code of ethics regulating the profession and perhaps enhancement of employment opportunities. The Tribunal recorded that that was conceded by the applicant when the issue was discussed with her during the hearing. I was taken to a transcript of that discussion and I consider that that is a fair summary.

The applicant was informed by the Tribunal in the course of that discussion that the Tribunal had made inquiries of the organisation and confirmed that membership of the Institutes is not a compulsory registration or licensing that is required to practice as a microbiologist. Indeed, the Tribunal noted that the response from the organisations had been "absolutely not". They said they would like it to be in a few years' time and may work towards that but at the moment one can practice as a microbiologist or in one's field of work without admission to membership. The applicant was invited to make any further submissions she wished in that regard but I was not taken to any such submissions.

The question is a narrow one of statutory construction and in such matters first impressions are often the most significant. The relevant expression is "professional admission" used in conjunction with the expressions "professional registration" and "professional licensing". What is required is study, practical training or work experience which are required in order to obtain professional registration, professional licensing or professional admission.

It appears to be common ground that the expression "required to obtain" signifies a prerequisite for any of the professional registration, professional licensing or professional admission involved. The use of the phrases "professional registration" and "professional licensing" indicates to me that admission was intended to be of the same nature, that is to say that study, practical training or work experience must be directed towards being permitted to engage in the profession in question.

One can cite any number of examples by way of analogy to explain what could have been intended by such provisions. The ones which immediately come to the mind of a lawyer are admission to practice as a member of the legal profession. Until recently in New South Wales one was either admitted to the bar of New South Wales or admitted to practice as an attorney, solicitor and proctor of the Supreme Court of New South Wales. More recently, further requirements have been imposed on lawyers before they are entitled to practice, even after admission by the court which is, from one point of view, no longer of no practical consequence. It is necessary to have a practising certificate issued either by the Law Society or by the Bar Association of New South Wales.

Membership of either of those bodies is not compulsory in order to obtain a practising certificate. On the other hand, practical training and work experience and possibly study are required in order to obtain such a practising certificate. Similar examples may exist in relation to other professions such as accountancy, dentistry, medicine, architecture, engineering and the like.

Most professions have bodies who are interested in looking after the interests of their members. The Australian Medical Association comes to mind as one such example. There was no evidence before me as to the requirements for membership of that organisation but I would not have regarded, as I understand the matter, the requirements for admission to membership of the AMA as being something required to obtain professional admission. The medical practitioners legislation lays down the requirements for licensing or registration of medical practitioners, as does other legislation.

I consider that on its proper construction subclause (4) refers to the requirement which is imposed by law in order to engage in the profession. I do not consider that the bodies in question, that is the Australian Institute of Biology Inc or the Australian Institute of Agricultural Science, are organisations to which it is necessary to belong in order to practice as a microbiologist or as a biologist generally. It follows in my view that the first ground specified in the application should fail.

I should mention in passing that one of the arguments advanced in support of the application was that there is an anomaly to be observed in the way in which the provision operates as I have construed it. As I understood the argument it was said to be anomalous that people engaged in some work experience have the benefit of an 818 entry permit whereas others such as the applicant fail to have that benefit.

Insofar as there is any anomaly in the operation of these provisions, it appears to me to follow from the arbitrary nature of them. If one happens to satisfy the requirements then one is entitled to permanent residence. However, there is an arbitrariness in the choice of the date as at which something must be undertaken. If one had completed study, practical training or work experience of the sort required before 1 November 1993, this provision simply would not be attracted. Similarly, if one had not commenced such work and otherwise did not satisfy the requirements of subclauses (2), (3) or (5) then the benefit would not be conferred. In that sense these provisions are arbitrary and any arbitrary provision can lead to anomalous results.

I was also referred to a decision of the Tribunal to which reference was made in the reasons under review. In the case of XMZ, the Immigration Review Tribunal gave reasons for a decision on 29 April 1996. The Tribunal there observed that there are many professions where one's employment prospects are severely limited without the recognition of formal qualifications and related skills by admission to a relevant professional and/or industrial organisation.

On the evidence before that Tribunal the profession of journalism was considered to be a case in point. The applicant in that case undertook certain training so as to enable her to work in her profession of journalism. I am not satisfied one way or the other that the approach adopted in that case is the correct construction. What the Tribunal seemed to be saying was that if, as a practical matter, membership of a professional body is a prerequisite of one's ability to practise a profession, then that might be sufficient to satisfy subclause (4).

As I said, I am not convinced that that is the correct interpretation but I do not consider that in the present circumstances that question arises, having regard to the finding made by the Tribunal in the light of the underlying evidence to which I was taken. While the organisations in question would like to make membership a prerequisite to practice, it is certainly not at present a prerequisite and the characterisation of the function of the organisations by the Tribunal which I have set out above indicates that membership of them is not, even in a practical sense, a prerequisite to being able to practise as a biologist.

The application also specified several other grounds. In the course of address it became apparent that if I were disposed to accept the primary ground which, as I have said I reject, it is unnecessary to consider the other three grounds. On the other hand, if I reject the first ground, as I have, the other three grounds really do not lead to a different result. Accordingly it was accepted by both parties that it was unnecessary for me to deal with those three grounds.

It follows from the views which I have just expressed that the application should be dismissed.

The orders I make are that the application be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated: 26 February 1998

Solicitor for the Applicant:	L. Karp
Counsel for the Respondent:	R. T. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 February 1998
Date of Judgment:	17 February 1998