Masuoka, Hiromi & Anor v Immigration Review Tribunal & Anor [1996] FCA 509

Masuoka, Hiromi & Anor v Immigration Review Tribunal & Anor [1996] FCA 509

The Tribunal's conclusion that Toki's Sushi Bar had not made adequate provision for training was explicable only on the basis that it treated induction and on-the-job instruction as incapable of being training under reg.7.10(2)(d)(i). That was a misconstruction of the regulation and the application of a wrong legal test, because the regulation requires attention to the nature of the employer's business and the number and type of employees, and on-the-job training may be adequate in that context.

Jurisdiction
Australia
Judgment Date
27 June 1996
Procedural Posture
Migration Administrative Law Appeal Concerning an Employer Nomination Scheme Nomination / Full Court Appeal From the Dismissal by Olney J of an Application for Review Under the Administrative Decisions (judicial Review) Act 1977
Outcome
Appeal allowed; first instance orders set aside; Tribunal decision set aside and remitted for reconsideration by a differently constituted Tribunal.
Legal Topics
['employer Nomination Scheme' 'approved Appointment' 'adequate Provision for Training Existing Employees' 'on the Job Training' 'error of Law']
['administrative Law' 'migration Law'] ['employer Nomination Scheme' 'approved Appointment' 'adequate Provision for Training Existing Employees' 'on the Job Training' 'error of Law']

Case Brief

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Procedural Posture

Migration Administrative Law Appeal Concerning an Employer Nomination Scheme Nomination / Full Court Appeal From the Dismissal by Olney J of an Application for Review Under the Administrative Decisions (judicial Review) Act 1977

Legal Issues

  1. 1 ['Whether the Immigration Review Tribunal misconstrued reg.7.10(2)(d)(i) of the Migration (1993) Regulations.' 'Whether adequate provision for training existing employees requires provision for training all existing employees.' 'Whether induction and on-the-job instruction can constitute training for the purposes of reg.7.10(2)(d)(i).' 'Whether the Tribunal applied the wrong legal test and thereby made an error within s.5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977.']

Ratio Decidendi

The Tribunal's conclusion that Toki's Sushi Bar had not made adequate provision for training was explicable only on the basis that it treated induction and on-the-job instruction as incapable of being training under reg.7.10(2)(d)(i). That was a misconstruction of the regulation and the application of a wrong legal test, because the regulation requires attention to the nature of the employer's business and the number and type of employees, and on-the-job training may be adequate in that context.

Court Disposition

Appeal allowed; first instance orders set aside; Tribunal decision set aside and remitted for reconsideration by a differently constituted Tribunal.

Orders

  • ['The appeal be allowed, and the orders made at first instance be set aside.' "In lieu of the orders set aside, it be ordered that the decision of the Immigration Review Tribunal be set aside and that the matter be remitted to the Immigration Review Tribunal, differently constituted, to be reconsidered in the light...