Lal v Residence Appeal Authority CA53/97 [1999] NZCA 371; (1999) 5 HRNZ 11 (25 February 1999)

Last Updated: 9 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 53/97

BETWEEN SURESH LAL AND PRAVEENA

DEVI LAL

Appellant

AND THE RESIDENCE APPEAL AUTHORITY

First Respondent

AND THE ATTORNEY GENERAL

Second Respondent

Coram: Thomas J Gallen J Doogue J

Hearing: 23 February 1999

Counsel: R J Hooker & A J McClymont for Appellant M Hodgen for First and Second Respondent

Judgment: 25 February 1999

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The issue

The issue in this appeal is whether the residence policy of the Minister of Immigration is in breach of s 19 of the New Zealand Bill of Rights Act 1990 in requiring a Fijian national who applies for a residence permit in New Zealand in reliance upon his trade as a tailor to hold a trade certificate, when such a certificate is not obtainable in Fiji.

The essential facts

The appellant is a Fijian citizen. He has had extensive experience as a tailor in Fiji, and his ability in that trade is not in question. He came to New Zealand in 1988 and eventually obtained employment as a tailor.

On 13 January 1992 the Immigration Service granted the appellant a work permit entitling him to work in New Zealand as a tailor. He duly applied for permanent residence. The requirements for a residence permit, however, differ from the requirements for a work permit.

The Register of Approved Occupations compiled and published by the Department of Statistics includes a classification of “tailor/dressmaker”. The Immigration Service rely upon this Register when classifying applicants. The classification of “tailor/dressmaker” requires that the person claiming that classification must be the holder of a trade certificate as a tailor. In contrast, the classification for a “sewing machinist” does not require a trade certificate. Six months “on the job training” will suffice.

The appellant claims that he does not have a trade certificate in tailoring simply because such certificates are not available in Fiji. It is the practice in that country for a tailor to be trained by a master tailor and to develop his or her skills by gaining experience in the trade.

In the result, the Immigration Service classified the appellant as a “sewing machinist”, and not a “tailor/dressmaker”. Because of this classification he was unable to obtain sufficient points under the Immigration Service’s points system to be granted a residence permit. His application was therefore declined. An appeal to the Residence Appeal Authority also failed.

In a proceeding seeking judicial review the appellant challenged the decisions of both the Immigration Service and the Appeal Authority. Through his counsel he contended that the Immigration Service’s policy is discriminatory and a breach of
s 19 of the Bill of Rights in that it is not possible for the appellant to obtain a trade certificate in his country of origin. He claims, however, to have the same skills as a tailor with a trade certificate from other countries. The effect of the requirement, counsel argued, is to impose an undue burden on persons coming from Fiji and thus to discriminate against them on the basis of their national origin.

The proceeding came before Temm J on 3 December 1996. In a reserved decision dated 21 February 1997, the learned Judge dismissed the application for judicial review. The essence of his reasoning is summed up in the following passages. On the question of whether the requirement was unreasonable, he said (at 5):
It was submitted for the appellant that it was unreasonable for the Immigration Service to require the appellant to hold a trade certificate when such a certificate cannot be obtained in Fiji. But that misfortune for the appellant does not make the requirement unreasonable. In many skilled trades the line between a skilled and an unskilled worker can be very difficult to draw. Acquisition of a trade certificate is a useful objective standard of skill (and probably experience as well, especially in trades where the only entry is through an apprenticeship).

And again in respect of the charge of discrimination (at 7):

The requirement to hold a trade certificate to be classified by the Immigration Service as a tailor is not directed at Fijians or any other national or ethnic group. It is a requirement directed at those applicants for a residence permit in New Zealand who apply to be credited with points for their past work experience. Any Fijian citizen who is the holder of a trade certificate as a tailor would be entitled to apply to be so classified. The requirement does not create discrimination on grounds of ethnic or national origin.

The appellant, represented by Mr Hooker and Mr McClymont, has appealed against Temm J’s decision.

The Minister’s policy

A number of provisions in the Immigration Service’s instructions issued pursuant to s 13A of the Immigration Act 1987, and current at the time of the appellant’s application, were drawn to our attention. In terms of s 13A the
instructions represent the Government’s policy relating to the rules and criteria under which eligibility for the issue of a permit is to be determined. There is one respect, however, in which the instructions may require clarification. We will mention the point briefly. As it was not fully argued or pressed by Mr Hooker before us our views are necessarily tentative.

The “points test” for assessing a general application has three “points factors”: “employability”, “age” and “settlement factors”. Employability is divided into “qualifications” and “work experience”. Utilising the schedule provided, the Residence Appeal Authority assessed the appellant’s points as follows:

Qualifications		0
Work experience		0
Age		8
Settlement factors		5
Total		13

A total of 13 points was insufficient to qualify the appellant for residence. Our concern is that, accepting that he does not have a trade qualification, no account appears to have been taken of the appellant’s work experience. Mr Hooker was called upon to explain this apparent defect in the calculation of his client’s points. He referred us to an instruction relating to “Experience relevant to qualifications”. The instruction states that to receive points for this factor an applicant’s experience must be sound and continuous, relevant to the qualification for which he/she received points, and obtained after the qualification was gained. As his client’s work experience was not obtained after any qualification, he concluded, it did not count.

This interpretation seemingly ignores a subsequent instruction relating to “Skilled work experience”. Under this heading it is provided that applicants who do not claim a formal qualification above secondary schooling may claim points for skilled work experience. Occupations which are considered to be skilled are listed in the Register of Approved Occupations. The occupation of tailor/dressmaker is so listed. Indeed, the instruction repeats verbatim the Register of Approved Occupations. As the appellant does not have a formal qualification above secondary
schooling he might therefore be thought to be eligible for points for skilled work experience.

If Mr Hooker’s interpretation is adopted, however, it would appear that there is a conflict between the two instructions. We do not consider that this is necessarily the case. The first instruction relates to experience “relevant to qualifications”. It applies to experience gained by an applicant after he or she has obtained a qualification. In other words, it applies to qualified work experience. The second instruction applies where no formal qualification above secondary schooling is claimed. The work experience which is then taken into account is “skilled work experience”, that is, unqualified but skilled experience. Looked at in this way the two instructions can be readily reconciled. No hardship occurs as both the qualifications and work experience come under the one heading of “employability”.

The apparent consequence of this approach would be that the appellant should have been credited with points for his skilled work experience. In terms of that instruction his points would be calculated as follows:

Qualifications	0
Work experience	7
Age	8
Settlement factors	5
Total	20

It may well be, as counsel were inclined to acknowledge, that this total would have been insufficient for the appellant to qualify for permanent residence as a tailor. For that reason and because, as we have said, the point was neither fully argued nor pressed before us, we do not express a final opinion on it. The relevance of the point for present purposes, however, is that if the interpretation we have suggested is correct the points system does not deprive an applicant who does not have a trade qualification of the advantage of obtaining points to reflect the skilled experience he or she has acquired in their trade. They are not necessarily denied any points under the heading of “employability”.
Before leaving the point, it is to be noted that the view we have advanced accords with the position originally adopted by the appellant’s solicitors. In a letter dated 6 April 1992 recording an appeal to the Residence Appeal Authority, the appellant’s solicitor explained that the appellant qualified for work experience as he did not have a formal qualification above secondary school level and had five years continuous work experience as a tailor. Seven points were then claimed for this experience. It was only after the Residence Appeal Authority had decided that the appellant could not be construed to fall within the definition of tailor/dressmaker because he did not have a trade certificate, that his legal representatives shifted the focus of the complaint to the alleged discrimination. We now turn to that issue.

The question of discrimination

Mr Hooker renewed his argument in this Court to the effect that the Minister’s policy amounted to discrimination against the appellant on the ground of his national origin in requiring a trade certificate for the classification of “tailor/dressmaker” when no such qualification is available in Fiji. He confirmed that his argument was, in essence, an allegation of indirect discrimination. The Minister’s policy, he contended, had a disproportionately severe impact on Fijian tailors because no trade certificate was available in Fiji. The discrimination is to be found in the effect of the operation of the policy, its impact, because no such trade qualification is available in Fiji, being inherently unequal. See Quilter v Attorney General [1997] NZCA 207; [1998] 1 NZLR 523.

In elaborating his argument Mr Hooker submitted that the policy would be discriminatory for so long as it failed to provide a method for testing the applicant’s skills as a tailor as an alternative to the requirement of a trade certificate. He envisaged that an applicant from Fiji - or any country not making a trade certificate available - would be able to satisfy the Minister as to the level of his or her skills by meeting this alternative test.

We are not persuaded that Mr Hooker’s argument is well-founded.
In the first place, we do not accept that the requirement that an applicant for the classification of tailor/dressmaker must have a trade certificate is discriminatory of the appellant either per se or in its effect upon him. The stipulation of a trade certificate is the means by which the Government sets an objective standard by which to ensure that those entering the country relying upon their employability as tailors have the requisite level of tailoring skills. Such qualifications will necessarily form an integral part of any immigration regime, and it is to be expected that a trade qualification will command a higher number of points than experience alone. Moreover, it is to be noted that the requirement of a trade certificate has been fixed by the New Zealand Qualifications Authority. The Immigration Service have adopted, rather than devised, that classification. In our view, therefore, the requirement of a trade certificate must be regarded as a legitimate distinction as between applicants. This point can be illustrated by postulating a more extreme example: an applicant who has practised as a legal executive for many years in another country could not claim discrimination in seeking to enter New Zealand as a lawyer by virtue of the fact that his country did not have a law school.

Secondly, we are not satisfied that the necessary nexus exists to constitute discrimination between the Minister’s policy and the reason why it affects the appellant. We acknowledge that it is somewhat unreal to suggest that it is open to the appellant to obtain a trade certificate in another country. He would first need to obtain entry to that country. But apart from that obstacle, the additional burden is then such that, if it could be said to arise because of any of the grounds referred to in s 19, the policy could fairly be described as discrimination. In this case, however, the inability of the appellant to obtain a trade certificate is not due to any of the specified grounds. It clearly cannot be said to be due to colour or race, ethnic origin, sex, marital status, or religious or ethical belief. Nor, notwithstanding Mr Hooker’s urgent submission, can it be fairly said to be discrimination on the ground of the appellant’s national origin. It is not the fact that he is a Fijian national which gives rise to the difficulty the appellant faces, but the fact that Fiji as a country does not provide the facilities for issuing a trade certificate. This omission, as Temm J said, may be seen as a misfortune for the appellant, and one can have some sympathy for him in that regard, but it is not discrimination due to his national origin.


Thirdly, as we have indicated above, it is only if no points are awarded for the appellant’s work experience that the Minister’s policy can be said to unfairly ignore the appellant’s claim to be a skilled tailor. If, as we have suggested, he is entitled to points for his work experience those points are available as an alternative, although a less valued alternative, to the possession of a trade certificate.

Finally, we consider that, if accepted, Mr Hooker’s argument would effectively undermine the Minister’s attempt to place a value on degrees and other qualifications in assessing the merits of an applicant’s claim for permanent residence. An individual assessment of an applicant to ascertain his level of skills would necessarily tend to erode the effectiveness and objectivity of the points system which is presently (save for exceptions granted by way of discretion) universal in its application. Alternative tests, such as suggested by Mr Hooker, could be accommodated in the points system but would again tend to undermine the Minister’s policy of seeking to set a uniform standard for those seeking to enter New Zealand and obtain employment as tailors. The value of the trade certificate would be diluted.

For these reasons the appeal is dismissed.


Costs are awarded against the appellant in favour of the respondent in the sum of $2,500, together with reasonable disbursements which, failing agreement, are to be fixed by the Registrar.

Solicitors

Vallant Hooker & Partners, Auckland for Appellant
Crown Law Office, Wellington for First and Second Respondent