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

CWDS
  Administrative Law - Judicial Review - breach of natural justice - improper
and unreasonable exercise of powers by decision-maker - error of law -
Wednesbury unreasonableness
  Migration - working holiday entry permit - refusal of grant of resident
status - legal prerequisites for entitlement satisfied - whether entitlement
as of right to permanent residency - interpretation of policy guideline
requirements applicable to employer nomination scheme - skilled waiter -
definition of "highly skilled" - failure of nominee and nominated vacancy to
meet required skill levels - whether policy guidelines applied unreasonably
and restrictively - limited availability of Wednesbury principle
  Words and Phrases - "highly skilled" - "unreasonable" - "prescribed
criteria"
  Administrative Decisions (Judicial Review) Act 1977 section 13
  Migration Act 1958 sections 6A(1)(d), 33(2)(b), 34(1)(a), 34(3)
  Migration Legislation Amendment Act 1989 section 6(4)
  Migration Regulations 1989 regulations 34A, 173A
  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
  Attorney-General (NSW) v Quin (1990) 170 CLR 1
  Taveli v Minister for Immigration, Local Government and Ethnic Affairs
(1989) 86 ALR 435
  Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1
KB 223
  Ho v Minister of Employment and Immigration et al (1990) 8 Imm LR (2d) 38
(Canada)
  Tan Immigration Review Tribunal 26 July 1990

HRNG
SYDNEY
#DATE 6:2:1992
  Counsel and solicitor
for the applicant:                 Mr John Basten instructed
                                   by Elsworthy Jones Solicitors
  Counsel and solicitor
for the respondents:               Mr Stephen Gageler instructed by
                                   Australian Government Solicitor

ORDER
  Application dismissed with costs.
Note:  Settlement and entry of orders are dealt with in Order 36 of the
Federal Court Rules.

JUDGE1
  The applicant, a British citizen aged 26 years, applies for an order of
review of the decision of the first respondent, made by his delegate, the
second respondent, on 17 April 1991 refusing the applicant a grant of resident
status in Australia (the decision).  He alleges that in making the decision
there was a breach of natural justice and improper and unreasonable exercise
of powers by the decision-maker, and that the decision involved an error of
law.  The applicant seeks orders that the decision be set aside and that it be
returned to the respondents for reconsideration.  In the events that occurred,
natural justice was not argued.
2.  The applicant arrived in Australia on 27 August 1988 from the United
Kingdom on a working holiday entry permit valid for 12 months which he had
obtained on 14 August 1988.  The applicant had commenced work at the Holiday
Inn, Bristol on 23 November 1981 as a commis waiter when aged 16 years.  After
18 months, when he was nearly 18 years of age, he joined the trainee
management scheme, proceeding through different sections - room service, bar,
banqueting, kitchen, wine waiting and cost control.  In each area he reached
the required standard.  During his year in kitchen, he attended technical
college where he gained his City and Guilds Certificate (1 year course) for
"Catering in Industry".  From June 1986 to his departure for Australia, he
held the position of cellarman where he was responsible for all beverage
stocks in the hotel, including their cost control in conjunction with a
computerised system.
3.  In November 1988, nearly 3 months after arriving in Australia, he obtained
a position as a bar attendant at the Holiday Inn Menzies Sydney (the Hotel).
He has continued to be employed by the Hotel in a variety of positions since
that time.  At the time of the hearing he was a food/beverage supervisor.
4.  On 14 August 1989, almost a year after his arrival in Australia, and
before the extensive 1989 amendments to the Migration Act 1958 (the Act), the
applicant lodged applications for a further entry permit and the grant of
permanent resident status.  These were based on occupational grounds under the
Employer Nomination Scheme (ENS) as the applicant had been made an offer of a
permanent position as a skilled waiter by the Hotel.  The applicant says that
he was originally employed as a bar attendant rather than as a skilled waiter
because of the restrictions imposed by his temporary working visa.  It seems
that the Hotel could only grant him the permanent position as a skilled waiter
if his application for resident status was approved.  Nevertheless, the Hotel
had been grooming the applicant for a supervisory management position and he
had received several promotions during his time with them.
5.  In support of his application the applicant submitted:
  .   his Certificate of Secondary Education 1981   .   his GCE 'O' level
result June 1981   .   his City and Guilds Certificate - Part One - in Cookery
for the
      Catering Industry, awarded in May/June 1985
  .   a certificate from Holiday Inns UK dated 22 February 1985 in
      respect of a course of study in the Junior Supervisory Training
      Programme
  .   a statement (undated) from Holiday Inn Bristol certifying that he
      had carried out module training for the Together We Care programme
  .   a statement (undated) from Holiday Inn Bristol confirming that he
      had completed training as a silver service waiter in the
      Restaurant Panache
  .   a statement dated 21 July 1988 from Holiday Inn Bristol that he
      was employed from 23 November 1981 until 19 August 1988 and
      outlining his programme under the trainee management scheme
  .   a reference (undated) from Robert M. Price, Food and Beverage
      Department, Holiday Inn Menzies Sydney
  .   a letter dated 4 June 1989 from Holiday Inn Menzies Sydney
      acknowledging him as a "most accurate attendant"
  .   a letter dated 11 August 1989 and a statutory declaration from the
      Assistant Personnel and Training Manager, Holiday Inn Menzies
      Sydney, Louise Nash, advising that the Hotel wished to sponsor him
      for the position of skilled waiter
  .   organisation chart, Food and Beverage, Holiday Inn Menzies Sydney   .
job description for the position of waiter at Holiday Inn Menzies
      Sydney
  .   personal reference dated July 1989 from Mr H.M. Jaffe.
6.  Ms Nash's letter placed emphasis on the position being that of a Skilled
Waiter, and also pointed out that:
      We experience great difficulty in recruiting locally for the
      position of Skilled Waiter as there is a severe shortage of
      people who are trained in this specialised area of food service.
7.  The Hotel's job description for the position in question was:
      POSITION:        Waiter
      REPORTS TO:      Supervisor/Maitre D'
      DEPARTMENT:      Food and Beverage
      LOCATION:        Archibalds
      JOB OBJECTIVE:   To serve food and beverage to restaurant
                       guests in accordance with service rules,
                       policies, procedures and etiquette.
      DUTIES AND RESPONSIBILITIES
      1.    To give superior customer satisfaction at all times.
      2.    Project a friendly image to guests.
      3.    Provide courteous service to guests in relation to
            enquiries, complaints and requests.
      4.    Set tables as by direction of restaurant policy.
      5.    Assist Supervisor with customer seating.
      6.    Relay orders to Kitchen.
      7.    Serve courses according to service procedure.
      8.    Refill station supplies as assigned.
      9.    To perform cleaning duties as assigned.
      10.   To maintain a positive working relationship with
            colleagues.
      11.   To greet customers and seat at table when no
            Supervisor available.
      12.   Remove dirty dishes and silverware from tables.
      13.   Comply with Holiday Inn policies and procedures.
      14.   Perform any other duties as required by management staff.
      PERFORMANCE STANDARD
      1.    Always check personal hygiene and be well groomed in
            appearance.
      2.    Always wear a clean and tidy uniform.
      3.    Always be friendly and smiling.
      4.    Give guests immediate and complete attention to requests.
      5.    If guest complains refer immediately to Supervisor.
      6.    Ensure all table settings and glassware placed on the
            table are cleaned according to Holiday Inn Menzies
            standard requirements.
      7.    Ensure captain order pads are completed in capital letters.
      8.    When clearing crockery and glassware always use a tray.
      9.    Make sure proper food is picked up and counter check
            with order slips.
      10.   Know how food should be presented.
      11.   Refill condiments after each shift.
      12.   Ensure dummies are properly stocked after each shift.
      13.   Clear dirty plates, cutlery, silverware and glasses as
            per service policy.
      14.   Utilise social skills as per Holiday Inn Menzies
            standard requirements.
8.  Presumably, either Archibalds is a superior quality restaurant within the
Hotel or a skilled waiter has high capacities in these fields.  Ms Nash's
evidence was that the Hotel employed only 2 foreigners in a workforce of 600
of whom 10 were professionals, 90 were skilled, and 50 were technical workers.
She said that the position in question required completion of a technical
college course (City and Guilds - UK), 3-5 years hotel food and beverage
experience and a minimum of 2 years experience as a skilled waiter.  There
seems no reason to minimise her belief in the applicant's skills or to reject
her contention that these skills were not readily available within Australia.
No doubt the applicant's familiarity with Holiday Inn practices, procedures
and standards, and the organisation's knowledge of his qualities and
reliability, were also of significance.
9.  The application was made at a proper time but was refused on 2 October
1990 by Ms Soo, an officer of the Department who was the initial
decision-maker.  The applicant was notified by letter on 3 October 1990. The
relevant findings were that the legal requirements for the grant of resident
status under the former section 6A(1)(d) of the Act were met but that the
applicant failed to comply with the policy guidelines applicable to the ENS.
Section 6A(1)(d) provided:
  (1) An entry permit shall not be granted to a non-citizen
      after his entry into Australia unless one or more of
      the following conditions is fulfilled in respect of
      him, that is to say-
      ...
      (d)   he is the holder of a temporary entry permit
            which is in force, is authorized to work in
            Australia and is not a prescribed non-citizen;
10.  The nature and operation of the ENS are set out in the "Integrated
Departmental Instructions Manual - Grant of Resident Status - Number 12".
Paragraph 2.5.1 of these guidelines states that the aim of the scheme is:
      to enable Australian employers to recruit highly skilled
      workers when they have been unable to fill their needs from
      the Australian labour market or through their own training efforts.
11.  However, the purpose of the scheme is not simply to allow Australian
employers to recruit highly skilled workers from overseas.  It is meant to
supplement the Australian workforce from non-citizens legally in the country
when employers have been unable to fill their needs from it.
12.  Paragraph 2.6.1 sets out the essential requirements of the scheme.  The
relevant provisions for this case are:
  i)    the nominated vacancy must be for an occupation which
        is highly skilled;
  ii)   the nominee's qualifications and experience must match
        the requirement of the vacancy;
  iii)  the employer must be able to demonstrate that labour
        market testing has yielded no suitable local applicants.
13.  The third requirement can be dispensed with under paragraph 2.7.3:
      Unless otherwise required by the relevant Regional Office of DEET,
      full labour market testing is not necessary for occupations
      appearing in the current OSS schedule.  However, assessing
      officers should use their discretion in seeking evidence from
      employers that they have tried to fill their vacancies locally and
      that suitable applicants are unavailable.
14.  The OSS schedule was a list of occupations for which there was a
recognised shortage of persons in the Australian labour force.  It was
continually updated and is now known as the Priority Occupation List (POL).
At the time of the original application in this case, the occupation of waiter
appeared on the list.  Thus at that time there was no requirement of the
Department of Employment, Education and Training (DEET) for full labour market
testing in respect of the position in question here.
15.  In what is called a "Dictionary", the Australian Standard Classification
of Occupations (ASCO), published by the Australian Government, provides a
description of the skill level required for a Supervisor of Waiters and
Waitresses, a Headwaiter/waitress or a Maitre D' Hotel in Unit Group 6505-01
as follows:
      Previous Experience:   3-5 years as a waiter or waitress
      On-the-Job Training:   2 months
16.  The skill level for Formal or Silver Service Waiter/Waitress includes at
item 6505-11:
      Education and Training: a trade certificate
17.  The applicant seems to have had the required experience and work training
but had no trade certificate in waiting.
18.  The definition of "highly skilled" for the purposes of the ENS is
essential to the scheme and is set out in paragraph 2.8.1:
      An occupation may be considered highly skilled when it is
      normally expected that a person will require the following
      in order to reach an average level of competence in the
      occupation:
      .     either 3-5 years formal training or 3-5 years on the
            job training; AND
      .     a minimum of 3 years work experience.
19.  Normally, a visitor to Australia could not meet these requirements unless
they had been largely derived outside the country.
20.  In determining whether an occupation can be considered highly skilled,
paragraph 2.8.4 provides that assessing officers may be guided by the
following:
      .     salary level
      .     "Occupational Outlook"
      .     "ASCO Dictionary"
      .     advice from the Department of Employment, Education
            and Training (DEET)
21.  Paragraph 2.8.6 requires that:
      Nominees must have qualifications and experience which meet
      the requirements of the nominated position.
22.  It is not clear whether the "requirements" are those of the employer or
the guidelines.  The specific requirements of the guidelines applicable to the
category of waiter/waitress are set out in paragraph 4.11.1:
      In general, nominations for waiter/waitress would not meet
      the skill criteria as defined in para 2.8, as such positions
      usually require a limited period of on-the-job training.
      However, positions which meet the skill criteria applying to
      skilled waiters/waitresses in "Meeting Australia's Skill
      Needs" are sufficiently skilled for approval under ENS.
      These criteria are:
      .     the position requires a trade certificate as a
            waiter/waitress, and at least 3 years' post trade experience
      .     the position should require a waiter/waitress with
            formal service skills ie silver service, table
            cooking, wine waiting
      .     the employing establishment (hotel, restaurant or
            club) should be of a high standard.  Assessing
            officers should consult local diner's guides and
            tourism authorities for an assessment of the quality
            of the establishment
      .     the position should be at a responsible level ie head
            or senior waiter/waitress
23.  The purpose of the skill test is to ensure that the scheme is only
invoked in the national interest where a particular occupation is shown to be
highly skilled, where it cannot be filled locally in the immediately
foreseeable future, and where it is necessary to look overseas to find someone
to fill the position.  There is provision for exceptional cases but the
applicant does not claim any special circumstances suggesting that his case
ought to be considered outside the normal operation of the ENS.
24.  Ms Soo's decision to refuse the application was made following a Grant of
Resident Status ("GORS") Assessment Report.  This report found that:-
  (a) the position was not highly skilled;
  (b) the applicant's qualifications were not recognised;
  (c) the employer had not undertaken labour market testing to
      demonstrate an absence of suitable applicants; and
  (d) the pay and conditions did not comply with Australian awards.
25.  In assessing the skill level of the nominated position based on the job
description, the requisite qualifications, the skills and experience required,
and the salary level, Ms Soo was of the opinion that:
      ... the nomination does not fully satisfy the skill level
      for silver service waiters.
26.  It is not clear whether the word "nomination" meant the applicant rather
than the position, because although Ms Soo did not accept that the applicant
had the essential skills to be a silver service waiter, she thought that he
would "probably meet the requirements of the vacancy" (sic):
      I accept that Mr Skidmore may be reasonably experienced to
      work in the hotel industry however when looking at his work
      experience as a 'cellarman' and 'barman' in the past four
      years I do not accept that Mr Skidmore would have the
      required skills to work as a silver service waiter.  While
      the nomination is seeking to recruit a skilled waiter, Mr Skidmore
      is presently employed as a 'barman' and as depicted in the ASCO
      (Australian Standard Classification of Occupations) Dictionary the
      skill level of a 'cellarman' and a 'barman' are much lower than a
      silver service waiter.  More importantly Mr Skidmore has not had
      any relevant and recent working experience as a silver service
      waiter and therefore it would not be unreasonable to assume that
      Mr Skidmore could perform at a competent level in the position
      sought as there are substantial differences in the duties of a
      cellarman and a barman in comparison to a silver service waiter.
27.  Ms Soo concluded that (sic):
      ... the position of a 'Skilled Waiter' is not a highly
      skilled occupation within the guidelines of the ENS for
      skilled waiters and that Mr Skidmore would not have the
      skills and experience to be a skilled waiter as defined in
      ENS policy.  I appreciate that policy requirements should be
      applied inflexibly however in taking full consideration of
      the objectives of the ENS and sub-section 6A(1)(d), and the
      merits of the application I can not find any justification
      nor any exceptional circumstances to warrant the grant of
      resident status.
28.  At the hearing, the use of the word "inflexibly" was stated to be an
error.  The complaint in this case is the lack of flexibility and Ms Soo would
surely have meant "policy requirements should be applied flexibly".
29.  The grant of a further temporary entry permit, an unconditional temporary
entry permit and permission to work were also refused.
30.  On 31 October 1990 the applicant lodged an application for
reconsideration of Ms Soo's refusal decision by the Department's Immigration
Review Panel (IRP).  In support of the reconsideration, the applicant
submitted up-to-date information about his current position as follows (sic):
      This decision should be reconsidered due to changed
      circumstances and the fact that several major points in the
      first decision are incorrect.
      Since my first application I have been promoted from a
      waiter to a Food and Beverage Supervisor. My Employers as per
      my first application were hesitant to use me to my "full
      potential" due to the fact that I was on a "work visa".
      However, with the dearth of suitable applicants it became
      necessary to utilize my skills in a more senior position.  I
      am now responsible for the operations of 18 outlets and
      staffing of 103.  The Holiday Inn has the largest Food and
      Beverage Operation in the Southern Hemisphere therefore
      their supervisors do need to be highly skilled due to the
      size and nature of the operations.  The skills I have gained
      with my City Guilds qualification and my 7 years on-the-job
      training is proving vital as I am also responsible for the
      training programmes.  I train up staff to supervisory and
      management positions as well as in customer service skills.
      I feel that, as I meet my employers requirements as a
      skilled waiter (as per page 2 para 9 of Assessment Report)
      and I am recognised by the Catering Institute of Australia,
      (see attached letter from Mr W. Galvin, President, Catering
      Institute of Australia), contrary to your decision that they
      do not recognise City and Guild Qualifications, I should at
      least be given the opportunity for the Department of
      Employment, Education and Training to deem whether my
      position is skilled.  With my City Guilds qualifications and
      7 years on-the-job training I feel I do meet the G.O.R.S.
      Para 2,8,1 definition of highly skilled.
      Other points which are incorrect is that my pay and
      conditions do not meet Australian Awards and Standards.  I
      am covered by the Hotels, Resorts and Hospitality Industry
      Award of 1990 and am in fact paid above the award rate.
      (see attached award).
      I feel I have the necessary skills that my employer has
      difficulty in recruiting and believe that I will make a
      positive contribution not only to my work place but the
      Australian Society as a whole.
      Please Note:     My employer fully supports this review and
                       will be forwarding in supporting letters
                       and documentation at a later date.
31.  In general terms, this account of the applicant's abilities and
contribution to his employer's establishment has not been challenged. However,
although the Catering Institute of Australia recognised the applicant's City
and Guilds qualifications, in a letter dated 17 July 1991 DEET reported to the
second respondent in relation to those qualifications that:
      The documents faxed by you indicate that Mr Skidmore has been
      awarded the City and Guilds Certificate (Part I) in Cookery for
      the Catering Industry.  The NOOSR Panel in Technical
      Qualifications has indicated that this certificate is awarded upon
      completion of the first stage of a three-part course for cooks at
      the trade level.  The aim of the course is to provide cooks rather
      than waiters.  NOOSR does not have guidelines for the assessment
      of qualifications at this level.
32.  The application for reconsideration was supported by a letter dated 1
March 1991 from the Assistant Personnel Manager of the Hotel outlining the
Hotel's need for the applicant's services.  In this letter, the sponsor stated
that it was implicit in its description of the qualifications and experience
required for the position that its requirement was for skilled silver service
waiters.
33.  On 11 March 1991 the IRP recommended that the Departmental decision be
maintained, finding that the nominee did not satisfy the required skill
levels.  In coming to this recommendation the IRP considered the following
material:
   i) the Department's refusal letter of 3 October 1990 to the
      applicant;
  ii) the application for reconsideration of 31 October 1990; and  iii) the
departmental report of 4 March 1991.  This does not seem to
      have been evidenced in the proceedings before me but may merely be
      a comment on the material submitted for the reconsideration.
34.  The IRP stated:
      While the Holiday Inn, Menzies wish to employ Mr Skidmore as
      a waiter, his background and experience is not that of a
      waiter.  His background is hotel management.  It is not
      accepted that Mr Skidmore is a skilled waiter (silver
      service) in migration terms.
      ...
      Mr Skidmore is unable to meet the requirements of the
      Employer Nomination Scheme as his qualifications and
      experience are insufficient for recognition as a formal
      waiter (silver service) ASCO 6505.
35.  On 17 April 1991 the second respondent refused the application for a
grant of resident status in Australia.  A statement of reasons pursuant to
section 13 of the Administrative Decisions (Judicial Review) Act 1977 was
requested on 14 May 1991 by the solicitor for the applicant and was given on
19 June 1991.  It emphasises the matters previously explained.
36.  It is the refusal of 17 April 1991 and that decision alone that is the
subject of review by this Court.  When the second respondent made the
decision, the evidence before her consisted of the material constituting the
original application and decision, including the GORS Assessment Report, the
material submitted in support of the application for reconsideration, the
recommendation by the IRP on 11 March 1991, the ENS guidelines, the ASCO
Dictionary and what is known as the Migrant Entry Handbook.
37.  In her assessment, the second respondent noted that the employer/sponsor
did not require the applicant to:
  .   hold a trade certificate as a waiter, and at least 3 years, 1
      post, trade experience
  .   have formal service skills, i.e. silver service, table cooking,
      wine waiting
  .   be at a responsible level, i.e. head or senior waiter
as required under the ENS.
38.  She therefore concluded that the nominated vacancy, although styled as a
"skilled waiter", did not reach the requisite skill level to be recognised as
a highly skilled occupation for the purposes of the ENS. The second respondent
concluded:
      ... that his employment background was more suited to that
      of hotel management.  I also concluded that Mr Skidmore's
      employment experience was insufficient for his recognition
      as a skilled waiter (silver service).
39.  By the time the applicant lodged his application for a reconsideration of
the 2 October 1990 refusal, the occupation of waiter was no longer on the POL
shortage list and therefore the third ENS requirement, labour market testing,
was necessary to be satisfied.  No evidence of such testing was submitted, but
as the second respondent reached the view that the applicant did not meet the
criteria for a silver service waiter, this requirement was not considered
relevant.  No evidence or circumstances suggested that the applicant was
eligible for the grant of resident status under any other sub-section of what
was then section 6A(1) of the Act.
40.  The dispute in this case primarily revolves around the second
respondent's finding that the position did not qualify as "highly skilled", or
if it did, that the applicant did not qualify for the position.  Rather than
an unreasonable failure to take account of some particular matter, the
applicant's essential submission is that the second respondent erred in
applying the ENS guidelines unreasonably.  In other words, the applicant says
there was an error of law under the principles of Wednesbury unreasonableness
(Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB
223) viz. that no reasonable person could have applied the guidelines in the
way they were applied by the second respondent in this case.  In what is
essentially the same assertion although put a little differently, the
applicant pleads that either the second respondent took an unreasonably
restrictive view of what the sponsoring employer was saying, or that she
ignored or misunderstood the skills and requirements of the sponsor.
41.  In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
at 42, Mason J. drew a very strong analogy between "judicial review of
administrative action and appellate review of a judicial discretion". His
Honour stated:
      ... it has been held that an appellate court may review a
      discretionary judgment that has failed to give proper weight
      to a particular matter, but it will be slow to do so because
      a mere preference for a different result will not suffice
      ...
      So too in the context of administrative law, a court should
      proceed with caution when reviewing an administrative
      decision on the ground that it does not give proper weight
      to relevant factors, lest it exceed its supervisory role by
      reviewing the decision on its merit.
42.  As to the way such matters should be approached in reviews of
administrative decisions, Mason J. said at page 41:
      ... both principle and authority indicate that in some
      circumstances a court may set aside an administrative
      decision which has failed to give adequate weight to a
      relevant factor of great importance, or has given excessive
      weight to a relevant factor of no great importance.  The
      preferred ground on which this is done, however, is not the
      failure to take into account relevant considerations or the
      taking into account of irrelevant considerations, but that
      the decision is "manifestly unreasonable".
43.  However, this case is not a matter of weight.  Quite rightly, as it seems
to me, there is no challenge to the second respondent's application of the ENS
guidelines as such.  It is not said that she misread or misunderstood them or
that she applied them in an erroneous way on their terms.  The applicant's
particular complaint is that a restrictive, perhaps legalistic, approach was
taken to the phraseology in ENS guideline 4.11.1.  He argued that the
definition in 4.11.1 was presumably intended to be an expansion of the general
definition in paragraph 2.8.1 which does not specifically require any formal
training at all if there is adequate on-the-job training.  In other words, the
guidelines do not generally demand a paper qualification.  Moreover, he
criticised the failure of the second respondent to give attention to and make
use of the "discretion to waive requirements if the merits of the case
justifies it" provided for in paragraph 3.1.  What is therefore said is that
the ENS guidelines should have been more generously or flexibly applied
because of the facts of this particular case, and that any reasonable person
would have done so.
44.  Reference was made to a decision of the Immigration Review Tribunal of 26
July 1990 in the matter of Tan for the approach that should be taken in
relation to ENS decisions.  Tan was concerned with an application by an
Australian-based multinational consulting engineering firm to nominate a
Malaysian national for permanent residency under an employer nomination visa
(class 121).  The decision looked at the way in which the Migration
Regulations in general are to be interpreted and how the Tribunal as a
decision-maker should approach the task.  At pages 9-10 in Tan, the views of
Jerome A.C.J. in the Canadian case of Ho v Minister of Employment and
Immigration et al (1990) 8 Imm LR (2d) 38 at 40 were quoted with approval:
      It is important to bear in mind that Parliament's intention
      in enacting the Immigration Act is to define Canada's
      immigration policy both to Canadians and to those who wish
      to come here from abroad.  Such a policy cannot exist
      without complex regulations, a good many of which appear to
      be restrictive in nature, but the policy should always be
      interpreted in positive terms.  The purpose of the statute
      is to permit immigration, not prevent it, and it is the
      corresponding obligation of immigration officers to provide
      a thorough and fair assessment in compliance with the terms
      and the spirit of the legislation.
45.  Like the Tribunal in Tan, I am of the view that this statement of
principle is appropriate to guide the approach of Australian immigration
decision-makers.  The Tribunal stated at page 14:
      The primary decision-maker appears again to have relied
      exclusively on the Procedures Advice Manual which defines a
      highly skilled occupation as requiring a minimum of 3 years
      formal training (or 3 years on-the-job training) and a
      minimum of 3 years work experience.  This last requirement
      conflicts with the more liberal criterion in Subregulation
      51(2)(b).  Whilst the words "appropriate record of
      employment in that occupation" could require 3 years work
      experience, they could equally require none, since some
      occupations include periods of training or experience prior
      to graduation which would be perfectly "appropriate" for the
      purpose of engaging in that employment in Australia.  In
      that respect, an employer's judgement of what is an
      appropriate record of employment for the occupation
      nominated must normally carry great weight.  After all, it is the
      employer who is taking the chance of employing someone from
      overseas, usually at considerable extra expense to that of a
      locally engaged employee (if one could be found), and it is the
      employer who will suffer financially if the record of employment
      in the occupation nominated is inadequate.
      ...
      In our view the words "appropriate record of employment in
      that occupation" are an example of a conscious decision by
      legislators to ensure flexibility in labour market
      recruitment overseas for employers who have been unable to
      recruit locally, and are willing to go to the time, trouble
      and expense of lodging an employer nomination.
46.  The Tribunal held that the applicant satisfied the prescribed criteria
for acceptance of his employer nomination and set aside an earlier decision
rejecting the nomination.  The applicant's submission is that the approach in
Tan's case is applicable here.  The respondent submits, however, that the
decision of the delegate here was fairly open on the evidence before her and
that there was neither a failure to take account of relevant considerations
nor any unreasonableness under the Peko-Wallsend or Wednesbury principles or
their statutory expression in section 5(2)(g) of the Administrative Decisions
(Judicial Review) Act 1977.
47.  In Attorney-General (NSW) v Quin (1990) 170 CLR 1, in dealing with the
narrowness of the ground of unreasonableness as a means for overturning a
decision, Justice Brennan stated at 36-37:
      Properly applied, Wednesbury unreasonableness leaves the merits of
      a decision or action unaffected unless the decision or action is
      such as to amount to an abuse of power.  Nottinghamshire County
      Council v Secretary of State for the Environment (1986) AC 240, at
      p 249.  Acting on the implied intention of the legislature that a
      power be exercised reasonably, the court holds invalid a purported
      exercise of the power which is so unreasonable that no reasonable
      repository of the power could have taken the impugned decision or
      action.  The limitation is extremely confined.  As Professor Wade
      explains (Administrative Law, 6th ed. (1988), p 407) in a passage
      cited with approval in Reg v Boundary Commission; Ex parte Foot
      (1983) QB 600, at p 626:
            "The doctrine that powers must be exercised reasonably has
            to be reconciled with the no less important doctrine that
            the court must not usurp the discretion of the public
            authority which Parliament appointed to take the decision.
            Within the bounds of legal reasonableness is the area in
            which the deciding authority has genuinely free discretion.
            If it passes those bounds, it acts ultra vires.  The court
            must therefore resist the temptation to draw the bounds too
            tightly, merely according to its own opinion.  It must
            strive to apply an objective standard which leaves the
            deciding authority the full range of choices which the
            legislature is presumed to have intended."
      If it be right to say that the court's jurisdiction in judicial
      review goes no further than declaring and enforcing the law
      prescribing the limits and governing the exercise of power, the
      next question immediately arises: what is the law?  And that
      question, of course, must be answered by the court itself.  In
      giving its answer, the court needs to remember that the judicature
      is but one of the three co-ordinate branches of government and
      that the authority of the judicature is not derived from a
      superior capacity to balance the interests of the community
      against the interests of an individual.  The repository of
      administrative power must often balance the interests of the
      public at large and the interests of minority groups or
      individuals.  The courts are not equipped to evaluate the policy
      considerations which properly bear on such decisions, nor is the
      adversary system ideally suited to the doing of administrative
      justice:  interests which are not represented as well as interests
      which are represented must often be considered.  Moreover, if the
      courts were permitted to review the merits of administrative
      action whenever interested parties were prepared to risk the costs
      of litigation, the exercise of administrative power might be
      skewed in favour of the rich, the powerful, or the simply litigious.
48.  The points made by his Honour are, as usual, lucid and powerful.  First,
the test is a stringent one.  The question of whether the decision is so
unreasonable that no reasonable person could have made it is not some type of
casual and regularly available litigious finding.  Secondly, there are major
constitutional, policy and public interest considerations that underlie the
narrowness of the test to be applied. The respondent submits that this case is
one that highlights the fact that the Department is a branch of government
charged with balancing the interests of the community against the interests of
the individual in a matter more appropriately dealt with by the administration
rather than the courts.  I am not sure that the matter can be put quite so
grandly and with such appealing faith in government officials, but there can
be no doubt that legitimate policy considerations will limit the availability
of the ground relied on by the applicant here to relatively few cases.
49.  In Taveli v Minister for Immigration, Local Government and Ethnic Affairs
(1989) 86 ALR 435, Justice Wilcox also emphasised the difficulty of
establishing the ground of unreasonableness.  At page 453 he said:
      Probably the ground has its most frequent application in
      cases in which the challenger can demonstrate an
      illogicality in, or misapplication of, the reasoning adopted
      by the decision-maker; so that the factual result is
      perverse, by the decision-maker's own criteria.  Parramatta
      City Council v Pestell (1972) 128 CLR 305 and Prasad v
      Minister for Immigration and Ethnic Affairs (1985) 6 FCR
      155; 65 ALR 549 constitute examples of this type of case.
50.  His Honour went on to point out that such cases are rare and that
"ordinarily there will be factors pointing in each direction".  In relation to
these types of cases, he said:
      ... the weight of those factors is a matter for evaluation
      by the decision-maker.  In such a case, even though a
      particular judge might feel that the preferable decision
      would have been otherwise, that feeling would not be
      sufficient to justify the condemnation of the decision as
      unreasonable, in the relevant sense.  As Menzies J. said in
      Pestell (at 323):
            "There is, however, a world of difference
            between justifiable opinion and sound opinion.
            The former is one open to a reasonable man; the
            latter is one that is not merely defensible - it
            is right.  The validity of a local rule does not
            depend upon the soundness of a council's
            opinion; it is sufficient if the opinion
            expressed is one reasonably open to a council.
            Whether it is sound or not is not a question for
            decision by a court."
51.  An analogy with Pestell is in my view correctly drawn.  It might also be
added that as long as the terms of the ENS guidelines render the conclusion
reasonably available, a finding that the decision was unreasonable equates to
a conclusion that the guidelines are themselves unreasonable.  This is not an
option open to a court on judicial review.
52.  The applicant did not adduce evidence to establish that any particular
part of the second respondent's conclusion was so unreasonable that it could
not have been made by a reasonable person.  In the circumstances, having
regard to the limits of the applicability of the Wednesbury principle, it is
my view that the second respondent's decision must be upheld.
53.  On the second respondent's failure to exercise the discretion to waive or
vary the strict requirements in this case, I can find no basis for valid
complaint.  Where a conclusion is clearly available on the facts, it will
surely be rare that a court will overturn the non-exercise of a discretion to
change the conclusion merely because there is provision that this can be done.
There can be no doubt that in many trades and professions, special talent will
manifest itself in many individuals who have no formal qualifications and a
minimum of experience.  Clearly trade certificates, even university degrees,
are not the determinants of competence in every person.  Some non-graduates
are skilled and some graduates are not particularly so.  But short of testing
every person who applies for residence under this heading, in areas in which
the respondents' department has no special expertise and too few resources to
obtain it, some objective criteria must be prescribed and applied. When they
are applied and the particular person or position is found wanting, little
challenge can be effectively made, short of special non-occupational
circumstances, that the criteria should have been waived or varied in the
particular case.  If this were not the situation, consistency and certainty
could not easily be achieved and the guidelines might for all practical
purposes not exist or be applied at all.
54.  I accept that the applicant is a capable hotel worker with a considerable
range of experience, and apparent leadership and organisational skills.  He
has obviously made an impact on his employer and is regarded highly by Holiday
Inns in general.  No doubt he would make a contribution to the expertise
Australia needs in the all important industries of tourism and hotel service.
However, the evidence does not show him to have special skills or
qualifications as a waiter - and that is the position under consideration
here.  Perhaps if the position offered to him had been in some other area of
hotel conduct, supervision and management, or under some other heading of
entitlement, the department's decision may have been different.  Perhaps this
can still be done. But this is not a case of an employer nominating someone
who is overseas and undertaking or offering to undertake the expense of the
person's transportation and integration in Australia in return for acquiring
skills required by Australia.  The case is simply one of an Australian member
of an international operation, having given temporary vacation work to an
experienced person from a foreign arm of the same operation, understandably
finding him very suitable for their needs.
55.  This type of circumstance is not what the ENS is apparently designed to
facilitate.  From the applicant's point of view there is no reason why he
would not find a similar niche in Britain or perhaps be able to migrate to
Australia under another scheme.  In my opinion, there is no ground compelling
the exercise of a discretion to waive the ENS guidelines on the facts
presented to the second respondent.
56.  There is a second issue, one of statutory construction, to be determined
by the Court.  The applicant submits that because he had an unresolved
application on foot at the time of the commencement of the Migration
Legislation Amendment Act 1989 (the amending Act), he is required to be
granted a permit as of right.
57.  It is common ground that the provisions of the former section 6A of the
Migration Act 1958 remained in force for the purposes of the applicant's
application by virtue of section 6(4) of the amending Act.  As previously
noted, the parties also agreed that subsection (1)(d) of section 6A applies to
this applicant who, in accordance with its terms, was entitled to be
considered for permanent entry because he held a current temporary entry
permit, was authorised to work and was not a prescribed non-citizen.  But
section 6A is in negative form and merely provides for a series of exclusions
from consideration for entry to or residence in Australia.  It does not
provide for an entitlement.  The requirements of the ENS still need to be
satisfied.
58.  The applicant submitted that section 6A(1) applications are now picked up
by the current regulation 34A of the Migration Regulations which requires an
applicant seeking an entry permit to satisfy, at the time of the application,
what are called the "prescribed criteria".  Where the prescribed criteria are
met, there is an entitlement to the grant of the appropriate entry permit
because of section 34(3) of the Act.  The applicant's argument is that because
he satisfied the requirements of section 6A(1)(d), he met the criteria
prescribed at the relevant time.
59.  The parties also agreed that regulation 173A applied to this application
because that regulation is said to apply to applications made before 19
December 1989 and refused after 18 September 1989.  It provides for one
application for reconsideration of a prior refusal.  The second respondent's
decision, as delegate for the Minister, must thus be taken as a rejection of
the reconsidered application.  I should add that were it not for the
concession by the respondents, I would have had some doubt about the
applicability of regulation 173A here.
60.  The applicant argued that he is entitled to the application of section
34(3) and regulations 34A and 173A in conjunction with the old section 6A as a
route to an automatic or compellable grant of permanent entry. This submission
is untenable and must be rejected.  By its effect section 34(3) of the Act,
and by its terms regulation 34A of the Migration Regulations 1989, apply only
to applications made after 19 December 1989.  This is not such an application.
The reference in regulation 34A to the "prescribed criteria" is a reference to
the criteria prescribed in the regulations: section 33(2)(b) of the Act, not
in the former section 6A which does not prescribe criteria for entry. Section
34 of the Act applies only where a person makes an application for an entry
permit of a particular class in accordance with the regulations: section
34(1)(a), not pursuant to the former section 6A which said nothing about
classes of entry.  Only then is the Minister bound by section 34(3) to grant
entry to a qualified applicant.  This applicant is not in this category.
61.  The application is dismissed with costs.