B&G Green Trading Pty Ltd (Migration) - [2018] AATA 2801

B&G Green Trading Pty Ltd (Migration) [2018] AATA 2801 (10 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B&G Green Trading Pty Ltd
CASE NUMBER:  1620400
DIBP REFERENCE:  BCC2016/2413392
MEMBERS:Deputy President J Redfern (Presiding)

Member A Mercer
DATE:10 August 2018
PLACE OF DECISION:  Melbourne
DECISION ON
PRELIMINARY ISSUE:  The Tribunal decides that there is no prescribed criteria against which to assess the applicant’s nomination for the purposes of section 140GB(2) of the Migration Act 1958 (Cth).
The Tribunal directs that the application for review be adjourned for 14 days to allow the applicant to make written submissions in relation to the further conduct of the review.

Statement made on 10 August 2018 at 11:52AM

CATCHWORDS
MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – nomination refusal under section 140GB of the Migration Act 1958 and regulation 2.72 of the Migration Regulations 1994 – where nomination application was made before 18 March 2018 and an associated subclass 457 visa application had not been made prior to 18 March 2018 – whether the applicant meets the prescribed criteria for approval of the nomination – consideration of the effect of the repeal and replacement of regulation 2.72 – impact of the transitional provisions – statutory interpretation – scope and content of a nomination to be assessed at the time of application for the purposes of determining the application of r.2.72 – accrued right to have nomination assessed according to the law – no contrary intention evinced by the scope and apparent intent of the amending regulations – no prescribed criteria against which to assess the nomination for the purposes of section 140GB(2)(b)
LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140GB, 349, 358(2)
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (Cth), cl 2; Schedule 1 - item 79, 80; Schedule 2 - items 167, 168
Legislation Act 2003 (Cth), s 13(1)
Acts Interpretation Act 1901 (Cth), s 7
Migration Regulations 1994 (Cth), Compilation No. 191 dated 1 July 2018, rr 1.03, 2.72, 2.73, 2.73AA; Schedule 1 - cl 1240(3)(f)(ii); Schedule 2; Schedule 13 - cls 6702(2), 6704
Migration Regulations 1994 (Cth), Compilation No. 187 dated 5 December 2017, rr 2.72, 2.73; Schedule 2 - Part 457
CASES

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
Downey v Pryor [1960] HCA 49
SECONDARY RESOURCES
Dutton P, (Minister for Immigration and Border Protection; Minister for Home Affairs), Putting Australian Workers First (Joint Media Release, Parliament House, Canberra, 18 April 2017).
Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to approve the applicant’s nomination of a non-citizen for a visa permitting that person to travel to and remain in Australia under the employer sponsored temporary and permanent skilled work visa scheme. This scheme was established under the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations) and its purpose is, broadly, to enable Australian employers to fill labour market shortages by employing skilled overseas workers.
There are three critical aspects to the temporary skilled work visa scheme. First, a sponsor must be approved under s.140E of the Act. Secondly, the approved sponsor must nominate an occupation, program or activity which must be approved under s.140GB of the Act. The nomination must be approved if the prescribed criteria are satisfied and those criteria are set out in r.2.72 of the Regulations. Thirdly, the visa applicant must satisfy the relevant criteria set out in Schedule 2 of the Regulations that applies to the class of visa in respect of which the sponsor has approval. Until 18 March 2018 one of the visas that could be approved as part of the scheme was a Temporary Work (Skilled) visa (subclass 457 visa).
The applicant, B & G Green Trading Pty Ltd (trading as Aussie Greenmarks), applied for approval of a nomination for a subclass 457 visa on 20 July 2016. The delegate decided not to approve the nomination on the basis that the delegate was not satisfied the nomination satisfied certain criteria in r.2.72, namely the delegate was not satisfied the position associated with the nominated occupation of ‘Contract Administrator’ was genuine. The nominee, Mr Irfanullah Baig, was the brother of a director of the nominating company and the delegate concluded that the reason for the existence of the nominated position was primarily to facilitate the entrance of the nominee into Australia, rather than to fill a genuine vacancy within the business and/or skills shortage in Australia.
The applicant lodged a review application on 1 December 2016. As part of the review process, the Tribunal invited the applicant to provide updated and current information addressing all of the criteria in r.2.72. The Tribunal received a response from the applicant’s migration agent together with various supporting documents on 2 March 2018.
On 18 April 2017, the Government announced changes to the employer sponsored temporary and permanent skilled work visa arrangements which included repealing the subclass 457 visa and introducing a new Temporary Skill Shortage (TSS) visa in March 2018 (known as a subclass 482) and implementing complementary measures for the Employer Nomination Scheme (subclass 186) visa and the Regional Sponsored Migration Scheme (subclass 187) visa.[1]
[1] Dutton P, (Minister for Immigration and Border Protection; Minister for Home Affairs), Putting Australian Workers First (Joint Media Release, Parliament House, Canberra, 18 April 2017).
The subclass 482 visa was introduced effective from 18 March 2018. As a result, the Regulations were amended to repeal r.2.72 and replace it with a new provision. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The effect of the amendments and the transitional provisions are unclear in respect of nominations that were lodged but not finalised before the amendments came into effect where the nominee for the proposed occupation is a ‘proposed applicant’ for a subclass 457 visa but the application for that visa was not made before subclass 457 visas were repealed. The amendments raise a preliminary issue about how these amendments impact such nominations and, in particular, which version of r 2.72 applies, if at all, in these circumstances.
The Tribunal, as presently constituted, requested submissions about this issue from the Secretary of Home Affairs under s.358(2) of the Act. The Tribunal also requested submissions from the applicant on this preliminary issue. The applicant and its legal representatives appeared before the Tribunal on 16 May 2018 to present arguments. The representatives also provided detailed written submissions following the hearing.
RELEVANT LAW AND PRELIMINARY QUESTIONS FOR DETERMINATION
Section 140GB of the Act provides:
(1)An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i)     the applicant or proposed applicant's proposed occupation; or
(ii)    the program to be undertaken by the applicant or proposed applicant; or
(iii)   the activity to be carried out by the applicant or proposed applicant; or
(b)a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b)in any case--the prescribed criteria are satisfied.
Note: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
(3)The regulations may establish a process for the Minister to approve an approved sponsor's nomination.
(4)Different criteria and different processes may be prescribed for:
(a)different kinds of visa (however described); and
(b)different classes in relation to which a person may be approved as a sponsor.
Section 140GBA sets out the circumstances in which a sponsor must undertake labour market testing for a nominated position and the process for doing so. The prescribed criteria for nominations under s.140GB(2)(b) are set out in r.2.72. As contemplated by s.140GB(3), r.2.73 establishes the process for the Minister to approve an approved sponsor’s nomination. Subregulation 2.72(3) provides that one of the criteria for approval is satisfaction that the person has made the nomination in accordance with r.2.73. Regulation 2.73 only applies to nominations made under s.140GB(1)(b). There are no regulations that establish a process for approval in respect of nominations made under s.140GB(1)(a). Accordingly, even though an approved sponsor may make a nomination under s.140GB(1)(a), r 2.73 does not provide any process for approval of a nomination under s 140GB(2)(a). It is therefore apparent, consistent with the standard business nomination application form, that sponsors will invariably seek approval for nominations of a ‘proposed occupation, program or activity’ under s 140GB(1)(b). How these provisions work together is pivotal to the preliminary issue and is outlined in more detail later in this decision.
On 18 March 2018 the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the amending regulations) were introduced.
The amending regulations repealed rr.2.72 and 2.73 and replaced these provisions with the amended rr. 2.72 and 2.73 (refer items 79 and 80). Part 457 of Schedule 2, which set out the criteria for subclass 457 visas, was repealed and provisions relating to the new subclass 482 – Temporary Skill Shortage visa were inserted in Schedule 2 (items 167 and 168). Transitional provisions were inserted into Schedule 13 of the Regulations, at Part 67 (item 178). According to cl.2, each provision of the amending regulations is taken to have commenced on 18 March 2018. The transitional provisions have the effect of preserving the operation of rr.2.72 and 2.73 in certain circumstances. Because this goes to the heart of the issue it is convenient to set out the key differences and relevant provisions.
The old version of r.2.72 set out detailed criteria for approval of a nomination an occupation in respect of a subclass 457 visa including requirements in relation to the form and fees applicable for a nomination, the information about the occupation that had to be included in the application, a requirement that the nominated position had to be genuine and have terms and conditions no less favourable than would be offered to an equivalent Australian employee and not be less than a specified income threshold, and that labour market testing under s.140GBA had been undertaken in the specified period in the specified manner.
The amended r.2.72 largely replicates the criteria in the old r.2.72, with some additional requirements. In summary, the most notable changes are that occupations that may be nominated will now be specified by reference to an instrument in force at the time of the nomination application (rather than the time of decision); requirements relating to salary have changed and are now assessed with reference to a new term, ‘annual market rate salary’ (now defined in r.1.03); the requirement that there be no adverse information known about the nominator or anyone associated with it has been expanded; and there is a new requirement that the nominator must not have engaged in discriminatory recruitment practices. The amended r.2.72 criteria also reflects the division of the subclass 482 visa criteria into short term occupation and medium-term occupation streams and the corresponding division of specifications of occupations, with some variation in the nomination criteria, depending on the applicable stream.
The old r.2.72 relevantly provides:
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.
(2)For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
…
The amended r.2.72 relevantly provides:
(1)This regulation applies in relation to a person who:
(a)is a standard business sponsor or a party to a work agreement (other than a Minister); and
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee ):
(i)     a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)    a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)   an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
The old r.2.73 sets out the ‘Process for nomination – Subclass 457 (Temporary Work (Skilled)) visa’. It relevantly provides as follows:
(1A) Subregulations (1) to (6) and (9) apply to a person:
(a)who is nominating an occupation under paragraph 140GB(1)(b) of the Act; and
(b)who identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa as the person who will work in the occupation.
(1)For subsection 140GB(3) of the Act, the person may nominate a proposed occupation in accordance with the process set out in this regulation.
(2)The nomination must be made using the internet.
(3)The approved form for the nomination is the form specified by the Minister in an instrument in writing for this subregulation.
…
The amended r.2.73 sets out the ‘Process for nomination – Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa’ This regulation recognises that when a person is nominating a proposed occupation the nominee may be an existing subclass 457 visa holder as well as an existing subclass 482 visa holder or an applicant or proposed applicant for a subclass 482 visa under the new regime. Regulation 2.73 relevantly provides:
Process for nomination- Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
Application of this regulation
(1)This regulation applies in relation to a person who is nominating a proposed occupation under paragraph 140GB(1)(b) of the Act in relation to any of the following (the nominee ):
(a)a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(b)a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(c)an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of subsection 140GB(3) of the Act, the person may nominate a proposed occupation in accordance with the process set out in this regulation.
General requirements for nominations
…
(6)Unless the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream, the occupation must be nominated for a Subclass 482 (Temporary Skill Shortage) visa in:
(a)if the occupation is a short term skilled occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made--the Short-term stream; or
(b)if the occupation is a medium and long term strategic skills occupation specified in the instrument made under subregulation 2.72(9) in force at the time the nomination is made--the Medium-term stream. [Emphasis in original]
Part 67 of Schedule 13 comprises application and transitional provisions arising from the amending regulation.
Subclause 6702(2) provides:
(2)Despite the repeal of the following provisions by the amending regulations, those provisions (including any instruments made under them), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to an application for a visa made before the commencement day:
(a)the definition of base rate of pay in regulation 2.57;
(b)item 1223A of Schedule 1;
(c)Part 457 of Schedule 2;
(d)clause 4006A of Schedule 4.
Thus it is clear from cl.6702(2) that, while Part 457 was repealed effective from 18 March 2018, those provisions in force before 18 March 2018 continue to apply in relation to an application for a subclass 457 visa made before 18 March 2018. It is also clear that if there was no such application made before 18 March 2018, any right to apply for a subclass 457 visa is lost.
Clause 6704 sets out the provisions relating to the application and transitional provisions in relation to the amendments of Part 2A. Part 2A of the Regulations contains provisions in relation to the sponsorship of certain temporary work, training and special program visas. Part 2A sets out provisions in relation to classes of sponsors, the approval of sponsors or sponsorships, sponsorship obligations, cancellation of approval and bars and nominations. Subclauses 6704(1) to (5) deal with the operation of the amendments made in respect of the approval of sponsors. Subclauses 6704(6) to (15) deals with the operation of amendments made in respect of nominations. Subclause 6704(6) relevantly provides:
(6)Despite:
(a)the repeal of the definition of base rate of pay in subregulation r.2.57(1); and
(b)the amendments of r.2.72;
by the amending regulations, those provisions (including any instruments made under them) as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to a nomination of an occupation made before the commencement day in relation to:
(c)a holder of a subclass 457 (Temporary Work (Skilled)) visa; or
(d)an applicant, or a proposed applicant for a subclass 457 (Temporary Work (Skilled)) visa, if the applicant or proposed applicant applied for a subclass 457 (Temporary Work (Skilled)) visa on the basis of a nomination before the commencement day. [Emphasis in original]
Subclauses 6704(7) to (10) provide:
(7)Despite the amendments of regulation 2.73 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day of an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.
(8)Regulation 2.73AA, as inserted by the amending regulations, applies in relation to a nomination made on or after the commencement day.
(9)The Minister may refund the fee paid in relation to a nomination made before the commencement day of an occupation in relation to a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa if:
(a)the nomination is approved under section 140GB of the Act before the commencement day; and
(b)the proposed applicant did not apply for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination before the commencement day; and
(c)the Minister:
(i) receives a written request for a refund from the person who paid the fee; or
(ii) considers it is reasonable in the circumstances to refund the amount to the person who paid the fee without receiving a written request for a refund.
(10)The Minister may refund the fee paid in relation to a nomination made, but not finally determined, before the commencement day of an occupation in relation to a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa if the proposed applicant did not apply for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination before the commencement day.

It is relevant to note that cl.6704(6) does not extend the savings provisions in respect of r.2.72 to nominations which were made prior to 18 March 2018 where a proposed applicant for a subclass 457 visa did not apply for the subclass 457 visa on the basis of a nomination before 18 March 2018. It is also relevant to note the transitional provisions in respect of r.2.73 provide that the old version of r.2.73 continues to apply in relation to all undetermined nomination applications made before 18 March 2018, regardless of whether an application for a subclass 457 visa was made before 18 March 2018.
Regulation 2.73AA, which was inserted as part of the amendments, provides for the refund of the nomination fee but only applies to nominations made on or after 18 March 2018. Subclause 6704(9) provides for a refund where there is a nomination approved prior to 18 March 2018 and the proposed applicant did not apply for a subclass 457 visa on the basis of the nomination before 18 March 2018. Subclause 6704(10) provides for a refund in respect of an undetermined nomination where the proposed applicant did not apply for a subclass 457 visa before 18 March 2018.
If the old r.2.72 provision does not apply to nominations where a proposed applicant for a subclass 457 visa did not apply for the visa on the basis of the nomination before 18 March 2018, the question is: what happens to such nominations? Do the amended provisions apply? If the amended r.2.72 does not apply and the old r.2.72 does not apply, there would be no criteria against which to assess such nominations. As such, unless either the old or the amended version of r.2.72 apply to these nominations, they are trapped in a legislative lacuna and cannot be assessed. This is either the result of oversight, unclear legislative drafting or intentional. If there is no prescribed criteria against which these nominations can be assessed, the further question that arises for determination is what impact this has on the Tribunal’s exercise of powers under ss.140GB(2) and 349 of the Act. For instance, does this mean the power to approve a nomination cannot be exercised in the absence of ‘prescribed criteria’?
Accordingly, the construction of s.140GB, the effect of the transitional provisions and the operation of the amending regulation is at the heart of this preliminary question.
The questions for determination of this preliminary question are therefore:
(1)What is the impact of amendments to the Regulations on undetermined nominations made before 18 March 2018 which identified a proposed applicant for a subclass 457 visa and a related occupation but no application had been made for such a visa prior to 18 March 2018?
(2)Having regard to (1), what is the impact on the exercise of the Tribunal’s powers under ss.140GB(2) and 349 of the Act?
Prior to the hearing, the Tribunal requested submissions from the Department in relation to the following issues:
(1)What is the effect of the amendment to r.2.72 on nomination applications made before 18 March 2018 where an associated Subclass 457 (Temporary Work (Skilled)) visa application has not been made, having regard to item 79 of Schedule 1 in Part 1 to the amending regulations and cl.6704(6) in Part 67 of Schedule 13 to the amending regulations? In particular, does the amended r.2.72 apply to nomination applications made before 18 March 2018 in circumstances where there is no associated Subclass 457 visa application?
(2)If the amended r.2.72 does apply to these applications, what is the effect of rr.2.72(1) and 2.72(2)? In particular:
(a) Could a nominee, who was a proposed subclass 457 visa applicant, subsequently apply for a subclass 482 visa, and the existing nomination be assessed under the amended r.2.72?
(b) If not, or if the nominee does not apply or propose to apply for a subclass 482 visa, do the terms of r.2.72(1), which effectively provide that r. 2.72 does not apply to proposed Subclass 457 applicants, mean that there are no prescribed criteria for these nomination applications?
(c) If there are no prescribed criteria, what impact does this have on the Tribunal’s exercise of the powers under ss. 140GB and 349 of the Migration Act? For example, could the Tribunal approve the nomination in these circumstances?
(3)If the amended r.2.72 does not apply what impact does this have on the Tribunal’s exercise of powers under ss.140GB and 349 of the Migration Act?
The Department provided submissions and these submissions were provided to the applicant’s representative. Written submissions were also provided by the applicant’s representative both prior to and after the hearing.
SUBMISSIONS
Submissions from the Department of Home Affairs
In response to the first set of questions about the effect of the amendments to the Regulations and the impact on nomination applications made before 18 March 2018 where an associated subclass 457 visa application had not been made prior to 18 March 2018, the Department responded to the following effect.
It is submitted that the effect of item 79 of Schedule 1 to the Amending Regulations is that the nomination criteria that related to nominations for the subclass 457 visa were repealed and replaced by new criteria that related to nominations for the Subclass 482 (Temporary Skill Shortage) visa. This is explained in the Explanatory Statement in the following terms:
This item repeals regulation 2.72 and substitutes a new regulation 2.72. The old regulation contained the criteria for the approval of a nomination of an occupation in relation to the holder of, or an applicant or proposed applicant for, a subclass 457 (Temporary Work) (Skilled)) visa. The new regulation contains the equivalent criteria for the subclass 482 (Temporary Work (Skilled)) visa. The regulation sets out the criteria which apply to a nomination of an occupation, made from 18 March 2018, in relation to the holder of a subclass 457 or a subclass 482 visa, or an applicant or proposed applicant for a subclass 482 visa. The reference to subclass 457 is included because, although the visa has been repealed, holders of subclass 457 visas will require a new nomination if they change employer. In order to obtain a new nomination for a subclass 457 visa holder, a nomination must be applied for and approved under the new criteria. The old criteria continue to apply to nominations made prior to 18 March 2018.[2]
[2] Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa And Complementary Reforms) Regulations 2018, p.28.
It is further submitted that cl.6704(6)(d) includes the proviso that the old version of r.2.72 continues to apply to a nomination in relation to an applicant or proposed applicant for a subclass 457 visa ‘if the applicant or proposed applicant applied for a subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination before commencement day.’ The paragraph does not apply to a nomination in relation to an individual who had not applied for a subclass 457 visa on the basis of the nomination before 18 March 2018. This reflected the repeal of the subclass 457 visa by item 167 of the amending regulations. As a result of this repeal, a subclass 457 visa application could not be made as at 18 March 2018 and, as a consequence, a nomination without an associated subclass 457 visa application is redundant. This redundancy is also recognised in the provision for a refund of the nomination fee in cls.6704(9) and 6704(10). In this respect, the Explanatory Statement stated:
Subclauses 6704(9) to (12) provide for refunds of the fee paid in relation to a nomination lodged prior to 18 March 2018 in relation to a proposed applicant for a subclass 457 visa. The refund is available if the proposed applicant did not lodge a visa application prior to 18 March 2018 when the subclass 457 was repealed. In this situation, the nomination serves no purpose.[3]
[3] Ibid p.53.
Subclause 6704(10) is directly relevant to an unfinalised nomination in relation to a ‘proposed applicant’ who did not apply for a subclass 457 visa before 18 March 2018.
The refund provision at cl.6704(10) reflects an assumption that the Minister and Tribunal would not be required to make decisions about unfinalised nominations that became redundant on 18 March 2018. The Department proposes to administratively finalise these nominations (that is, without making a decision to refuse or approve) and provide a refund of the nomination fee. However, the Department accepts that, as a matter of law, a nominator might be entitled to require the processing of the nomination, including Tribunal review of a refusal decision, even though the nomination is redundant. If this were to occur, the Department would process the nomination. In this situation, the repeal of the old version of r.2.72 would not affect nominations made before 18 March 2018 by reason of s.13(1) of the Legislation Act 2003 and s.7(2) of the Acts Interpretation Act 1901. As a result, it was possible that the nomination would be approved but it would be effectively redundant if a subclass 457 visa application had not been made before 18 March 2018.
As a corollary to the above, it is submitted that the amended r.2.72 does not apply to nominations made before 18 March 2018. There is nothing in the amending regulations or Explanatory Statement to support the application of the amended r.2.72 to nominations made before 18 March 2018.
The amended r.2.72 expressly states that it applies to nominations of proposed occupations in relation to holders of subclass 457 and subclass 482 visas. There is no scope for an argument that the amended r.2.72 includes a nomination made before 18 March 2018 as a nomination relating to an applicant or proposed applicant for a subclass 457 visa. It was further submitted that it is not possible to characterise a nomination made before 18 March 2018 as a nomination relating to an applicant or proposed applicant for a subclass 482 visa. Express provisions would have been necessary to allow a nomination made before 18 March 2018 to be used for the purpose of a subclass 482 visa application. This was not the intention, nor the effect, of the legislation.
For completeness, it is also noted that some of the criteria for approval in the amended r.2.72 could not be met if the nomination was made before 18 March 2018. For example, the nomination must be made in accordance with the process set out in r.2.73. This must be read as a reference to r.2.73 as in force from 18 March 2018, when the regulation was repealed and substituted. A nomination made before 18 March 2018 could not have been made in accordance with that regulation, which did not exist at the time the nomination was made.
In summary, the thrust of the Department’s submission appears to be that while the old version of r.2.72 is not expressly saved in respect of undetermined nominations made before 18 March 2018, where there is no associated subclass 457 visa or application on foot as at 18 March 2018, the old r.2.72 nonetheless applies to assess those nominations because of the effect of s.13(1) of the Legislation Act 2003 and s.7(2) of the Acts Interpretation Act 1901. While it is acknowledged there is a valid application that falls to be determined, it is submitted that any assessment would be futile where a proposed applicant did not apply for the subclass 457 visa on the basis of the nomination before the repeal of the visa. The only available remedy for the sponsor would be to seek a refund and make a new application under the amended provisions. It is submitted this is clear from the transitional provisions in cl.6704(10) that specifically provide for a refund of fees paid in respect of a nomination made but not determined before 18 March 2018 for an occupation where there is a proposed applicant for a subclass 457 visa but there was no application made before the amendments took effect.
What is not explained by the submission is reasoning process by which s.13(1) of the Legislation Act 2003 and s.7(2) of the Acts Interpretation Act 1901 is said to apply.
In answer to the second question about the effect of the amended r.2.72, the Department submits that given the Department’s response to the first question, this issue does not arise.[4] However, the Department submits that a subclass 482 visa application could now not be made where the nomination had proceeded on the basis of a proposed subclass 457 visa application. A subclass 482 visa application had to be made for ‘the stream for which the nominated occupation was nominated’: cl.1240(3)(f)(ii) of Schedule 1 to the Regulations. This was a reference to the streams in the subclass 482 visa. A nomination made before 18 March 2018 could not meet this requirement.
[4] Department’s submissions provided pursuant to s.358(2) of the Migration Act 1958 (Cth) dated 10 May 2018 at [12].
It is further submitted that the question of what happens in relation to nominations made before 18 March 2018 where there is no associated subclass 457 visa or application on foot and the amended r.2.72 does not apply, that:
A construction that resulted in there being no prescribed criteria for a nomination would be anomalous. Section 140GB of the Migration Act assumes that there will be prescribed criteria.[5]
[5] Ibid Q2(b).
In answer to the question of what would happen if there were no prescribed criteria and how this would impact on the exercise of powers under s.140GB, the Department submits that this would be ‘anomalous’ and was ‘not contemplated by the legislation’.[6]
[6] Ibid.
In response to the third question, the Department submits that the old version of r.2.72 continues to apply, but the review application to the Tribunal in this case serves no purpose because, even if the nomination is approved, the nominee could not apply for a subclass 457 visa as a result of the repeal of that visa class.[7] There is no provision in the Regulations to treat the nomination as a nomination relating to an applicant or proposed applicant for a subclass 482 visa. In these circumstances, the appropriate course would be to invite the applicant to discontinue the review and request a refund of the nomination fee from the Department pursuant to cl.6704(10). If the applicant chose to continue the review, the Tribunal should assess the application against the old version of r.2.72 and make a decision to affirm the Department’s decision, or if the criteria are met, approve the nomination. The Department submits that ‘[i]n either case, the only subsequent action that the Department would take is to provide a refund of the nomination fee in accordance with cl.6704(10) as there is no associated subclass 457 visa application and the nomination cannot be used for an application for a subclass 482 visa.’[8]
[7] Ibid [13].
[8] Ibid.
Applicant’s submissions
The applicant’s representative provided written submissions to the Tribunal on 14 May 2018 and after the hearing. They also provided oral submissions at the hearing.
In summary, it is submitted that the amended version of r.2.72 applies to this application and that the proposed application for a subclass 457 visa should be taken and assessed as a proposed application for the new subclass 482 visa.
In response to the first question, it is submitted that the savings provision in cl.6704(6) of the amending regulations do not apply to nominations where there is no associated subclass 457 visa or visa application on foot. It is difficult to identify a scenario in which there could be a ‘proposed applicant’ for a subclass 457 visa.[9] If a nominee had applied for a subclass 457 visa before 18 March 2018, he or she would have ceased to be a proposed applicant and would become the applicant. As such, cl.6704(6) therefore would be ‘non-operational’.[10] As such, cl.6704(6) does not apply to nominations made before 18 March 2018 which do not identify a subclass 457 visa holder, or in relation to which there was no lodged subclass 457 visa application identifying the nomination.[11]
[9] Applicant’s submissions dated 14 May 2018 at [6](a).
[10] Ibid
[11] Ibid [6](b).
It is further submitted that it is necessary to have regard to cl.6704(7) when construing cl.6704(6).
Subclause 6704(7) provides that the old version of r.2.73 applies to nominations made before 18 March 2018 in relation to the holder of, or an applicant, or a proposed applicant for, a subclass 457 visa. The Department submission asserts that the criteria in the amended r.2.73 could not be satisfied because the nomination must be made in accordance with the process set out in r.2.73. The applicant submits that ‘this contention is plainly wrong when read in conjunction with cl.6704(7).’[12] It is clear cls.6704(6) and (7) apply differently to nominations made before 18 March 2018.[13] Subclause 6704(6) provides that the old version of r.2.72 applies to nominations made before 18 March 2018 if an associated subclass 457 visa application had been lodged prior to that date; whereas cl.6704(7) makes it clear that old version of r.2.73 applies to all nominations made before the commencement date.[14]
[12] Ibid [8].
[13] Ibid [9].
[14] Ibid.
It is submitted that the practical application of this difference between cls.6704(6) and (7) is that nomination applications made before 18 March 2018 can be assessed against the old r.2.72 if the nomination identifies a subclass 457 holder, or an associated subclass 457 visa application has been made, but cl.6704(7) allows for a valid nomination to be processed under r.2.73 if it is made prior to 18 March 2018, whether or not an application for a subclass 457 visa had been made.[15] It is submitted this indicates an intention of the legislature to permit nominations made before 18 March 2018 to be assessed under the amended r.2.72 if they are not otherwise permitted to be assessed under the old r.2.72 by virtue of cl.6704(6).
[15] Ibid [10].
It is therefore submitted that the effect of item 79 of Schedule 1 in Part 1 to the amending regulations and cl.6704 is that nominations made before 18 March 2018 are effectively split into two regimes:
(1)nominations which identify an existing subclass 457 visa holder, or which have an associated subclass 457 visa application, which are to be assessed under the old r.2.72; and
(2)nominations made before 18 March 2018 which do not identify an existing subclass 457 visa holder and do not have an associated subclass 457 visa application (the orphan nominations), which are to be assessed under the amended r.2.72.[16]
[16] Ibid [11].
The Department’s concession that, as a matter of law, a nominator would be entitled to require the processing of a nomination is accepted.[17] However, the contention that the nomination is ‘redundant’ is rejected. Contrary to the Department’s contentions, it is submitted that ‘there is clear scope for argument that [the new] r.2.72(1) contemplates a nomination made prior to 18 March 2018 when the words of the sub-regulation are afforded their ordinary and natural meaning.’[18]
[17] Ibid [12].
[18] Ibid.
The Department’s contention that ‘the refund provision at cl.6704(10) “reflects an assumption” that the Minister and the Tribunal would not be required to make decisions about unfinalised nominations that became redundant on 18 March 2018’ is also rejected.[19] It is submitted that ‘this clause merely provides a mechanism for the Minister to refund nomination fees for those who wished to withdraw a nomination in the situation where no associated subclass 457 visa application was lodged.’[20] If this assumption that the Tribunal would not be required to make decisions about such nominations was properly based, the transitional arrangements would have expressly provided for this. It is ‘improper’ for the Department to propose a course of action (specifically, to administratively finalise nominations in these circumstances) that would deprive a nominator of the legitimate expectation the nomination would be assessed according to the law.[21]
[19] Ibid [13].
[20] Ibid.
[21] Ibid.

The applicant’s representative rejects the Department’s contention that ‘there is nothing in the Amending Regulations or Explanatory Statement to support the application of the new version of r.2.72 to nominations made before 18 March 2018.’[22] It is submitted that a plain reading of cls.6704(6)(c) and (d) ‘utterly refuted this contention’.[23]
[22] Ibid [14].
[23] Ibid.
The nomination that is the subject of these proceedings does not fall into either cls.6704(6)(c) and (d). Therefore, it is not possible for the applicant’s nomination to be assessed under the old r.2.72.[24] On the other hand, there is nothing in the amended r.2.72 that prevents a valid nomination application being made and this intention is evinced through the related operation of the amended r.2.72(3) and cl.6704(7).[25] As such, the nomination made by the applicant in this case is to be properly assessed under the amended r.2.72.
[24] Ibid [15].
[25] Ibid [16].
In response to the second question, it is submitted that the applicant satisfies the amended r.2.72(1)(a). While it is conceded the applicant’s nomination cannot satisfy rr.2.72(1)(b)(i) or (ii), it is submitted the nomination satisfies r.2.72(1)(b)(iii) on the basis that the business had nominated a ‘proposed applicant for a subclass 482 visa’.[26] At the time that the nomination was made the applicant made the nomination in relation to ‘a proposed subclass 457 visa applicant’ and this would have satisfied old r.2.72(1)(b)(iii).[27] The subclass 457 visa has been repealed and so it is not possible to be a proposed applicant for that visa. Therefore, the nominee is now properly characterised as ‘a proposed applicant for a subclass 482 visa’.
[26] Ibid [20].
[27] Ibid.
The ordinary and natural meaning of the word ‘proposed’ is to put forward a person for consideration and/or to intend to do something.[28] While the proposed nominee had the intention to apply for a subclass 457 visa at the time that the nomination application was made, he now has an intention to apply for a subclass 482 visa. It is submitted that a proper reading of the old r.2.72 or the amended r.2.72 do not impose ‘a temporal limit on the nominee’s intention to apply for a certain type of visa. Essentially, the amending regulation forced the hand of the proposed nominee and his intentions have changed from a proposed applicant for a subclass 457 visa to a proposed applicant for a subclass 482 visa. This reading of [the new] r.2.72(1) is consistent with s.140GB.’ [29] Moreover, there is nothing identifiable in the amending regulations or current legislation which rebuts this presumption.
[28] Ibid [20] citing Oxford Dictionary (Oxford University Press, online ed, 2018) < Applicant’s submissions dated 14 May 2018 at [20]
Accordingly, for the purposes of s.140GB(2)(b), the criteria set out in the amended r.2.72 are the prescribed criteria for this nomination.[30]
[30] Ibid [21].
While not directly relevant to this preliminary question, the representative noted the Department’s contention that a subclass 482 visa application by the nominee could not satisfy cl.1240(3)(f)(ii) of Schedule 1 to the Regulations.[31] The nominated occupation for this nomination was Contract Administrator (ANZSCO code 511111). This occupation is in the short-term stream of the subclass 482 visa: see Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018. Accordingly, the nominator nominated an occupation that falls within the short-term stream of the subclass 482 visa.[32]
[31] Ibid [23].
[32] Ibid.
In response to the third question raised by the Tribunal, it is submitted that if the Tribunal finds that the amended r.2.72 does not apply to this case, the Tribunal should not assess the nomination under the old r.2.72 and rejects the contention made by the Department to this effect.[33]
[33] Ibid [24].
Section 140GB does not impose a temporal limit on the nominee’s intentions to propose to apply for a prescribed visa and this does not preclude the Minister, or the Tribunal in these proceedings, from approving a nomination that was made before 18 March 2018.[34] The applicant made a nomination in accordance with s.140GB(1) and it is for the Tribunal to determine whether the applicant ‘satisfied the labour market testing criteria as in force at the time the nomination was made’ and whether the applicant satisfies the prescribed criteria in the amended r.2.72.[35]
[34] Ibid [26].
[35] Ibid [27].
The representative provided supplementary submissions after the hearing to the following effect.
The issue regarding the operation of the amended r.2.72 centred on ‘two competing interpretations of this provision in relation to nominations made by a standard business sponsor prior to 18 March 2018.’[36] The critical question is whether an undetermined nomination can be assessed under the amended r.2.72 where a nomination has been made before 18 March 2018 and there was no accompanying subclass 457 visa application but a nominee is proposed under subclass 457.
[36] Applicant’s further written submissions dated 13 June 2018 at [2].
It is submitted that this depends on how the amended regulation is construed. If a narrow interpretation is taken, a nomination is ‘fixed in time’ when it is made.[37] If the sponsor identifies a proposed applicant for a subclass 457 visa at that time but no application has been made before 18 March 2018, because the subclass 457 visa has been repealed, the amended r.2.72(1) cannot apply to the nomination. The nomination cannot be assessed against amended r.2.72 and the practical effect of this is that there are no criteria prescribed for the nomination. If a broad interpretation is taken, a nomination is not fixed in time at the time it is made.[38] If the sponsor identifies a proposed applicant for a subclass 457 visa at the time of the nomination application but the nomination is assessed after 18 March 2018, the proposed applicant is properly characterised as a ‘proposed applicant for a subclass 482 visa’ due to the repeal of the subclass 457 visa and therefore would fall within the amended r.2.72.
[37] Ibid [2](a).
[38] Ibid [2](b).
It is submitted that ‘the broad interpretation should prevail.’[39]
[39] Ibid [3].
First, it is clear that the transitional arrangements found in cl.6704(6) specifically carve out nominations that are to be assessed under old r.2.72[40]. The nomination made by the applicant in this case did not fall within these carve outs. Further, as conceded by the Minister, the applicant has a right, as a matter of law, to have the nomination assessed. As the nomination could not be assessed under old r.2.72, it has to be assessed under the amended r.2.72.
[40] Ibid [4].
Subsection 140GB(2)(b), clearly contemplates that there would be prescribed criteria to satisfy a nomination made by a sponsor and the amended r.2.72 should be afforded an interpretation that would give effect to the enabling legislation[41]. This proposition supported the broad interpretation of the amended r.2.72(1).
[41] Ibid [5].
Secondly, there is no temporal element reflected in the language of s.140GB, r.2.73 or the amended r.2.72 that would result in the nomination being ‘fixed in time’ at the time it was made.[42] Relevantly, the language of both the amended and old r.2.72 is in the present tense. The amended r.2.72 applies to a sponsor who ‘nominates’ a proposed occupation. It is submitted that if the making of the nomination was ‘fixed in time’, r.2.72(1)(b) would read, when referring a person who is a standard business sponsor, as a person who:
(b)under paragraph 140GB(1)(b) of the Act, nominated a proposed occupation in relation to any of the following (nominee)… [Emphasis added]
[42] Ibid [6].
Accordingly, there is no language or mechanism in the relevant legislation that fixes a nomination to the time it was made.[43] This is consistent with the previous changes of the relevant legislative instrument amending the Skilled Occupation Lists (that is, on 18 April 2017) whereby, if the nominated occupation was removed from the relevant skilled occupation list, the nomination made under s.140GB was refused as those nominations did not satisfy the criteria contained in r.2.72 as in force as at the time the relevant decision maker made the decision.[44] Essentially, the criteria in r.2.72 is a ‘time of decision’ criteria in the assessment of nominations made under s.140GB(1)(b).
[43] Ibid [10].
[44] Ibid.
The amended r.2.72(1) should be read ‘beneficially to the nominator’.[45] It is not disputed that at the time the nomination was made, the nominee was a proposed applicant for a subclass 457 visa but the applicant submits:
The nominator’s hand has been forced by the repeal of the subclass 457 visa and we submit that the proposed visa the applicant was to apply for can reflect the state of the relevant legislation at the time the decision maker commences assessment of the nomination. Accordingly, the nominee should now be properly considered as ‘a proposed applicant for a subclass 482 visa’.[46]
[45] Ibid [11].
[46] Ibid.
It is submitted that ‘the making of a nomination does not confer on the nominator any rights or privileges apart for a right under law to have the nomination assessed under the relevant criteria if the nomination was made under the prescribed process.’[47] Consistent with this, the nominator’s rights were preserved throughout the operation of the transitional provisions in cls.6704(6) and 6704(7).[48]
[47] Ibid [8].
[48] Ibid[12].
It is also submitted that s.7 of the Acts Interpretation Act1901 is relevant in construing the amended r.2.72.
The representatives accept the Department’s contentions that ‘a nominator has a right to have the nomination processed and that a construction that resulted in there being no prescribed criteria would be anomalous.’[49] Subsection 7(2) would therefore have ‘work’ to do in ‘enlivening the right of the nominator to have the nomination processed’.[50] Presumably this means that s.7(2) supports the contention that the broad interpretation of the amended r.2.72 should be adopted.
[49] Ibid [13].
[50] Ibid [14].
It was submitted that there was no need to read any words into cl.6704(6) to give them operative effect, because the amended r.2.72 properly applies to the present nomination on the basis of either a broad construction of the transitional provisions or a beneficial interpretation of s.7 of the Acts Interpretation Act1901.[51]
[51] Ibid [17].
CONSIDERATION
The Tribunal does not accept all of the contentions of either the Department or the applicant but has concluded that neither the old nor the amended r 2.72 apply to the applicant’s nomination. Our reasons follow.
There is no dispute that even though a proposed applicant for a subclass 457 visa was identified by the applicant in respect of the proposed nomination, no application for such a visa was made before 18 March 2018. It is common ground between the Department and the applicant that cl.6704(6) does not apply to such a nomination. We accept this as cl.6704(6) is clear in its terms. As such, on the face of it, cl.6704(6) does not preserve the application of the old r.2.72 to nominations made but not finally determined before 18 March 2018 which do not have an associated 457 visa or application on foot as at that date.
Given this, there are three possibilities. The old r.2.72 still applies to these nominations, the amended r.2.72 applies or no regulation applies against which such nominations can be assessed.
Does the amended r.2.72 apply to this nomination?
The applicant contends that the old r.2.72 does not apply. Subclause 6704(6) could have expressly saved its operation in this circumstance but did not do so. The applicant contends that the amended r.2.72 applies because these nominations are preserved by reason of cl.6704(7) and the old r.2.73. Subsection 140GB(2) contemplates that a prescribed criteria must apply. There is no temporal element to the amended r.2.72 or s 140GB and as nominations are not fixed in time, they fall for consideration at the time of the decision.
It is submitted that the amended r.2.72 applies to nominations made where the sponsor nominates a proposed occupation in relation to a proposed applicant for a subclass 482 visa. The intention of the nominee and the sponsor is critical and this intention can change over time to ‘reflect the state of the relevant legislation at the time the decision maker commences assessment of the nomination’.[52] This means that the nomination may change from a nomination for a proposed occupation in relation to a proposed applicant for a subclass 457 visa to a nomination for a proposed occupation in relation to a proposed applicant for a subclass 482 visa. The proposed occupation remains the same but the intention of the nominee and the terms of the nomination may change.
[52] Ibid [11].
This is the crux of the applicant’s submission.
We do not accept that the question of whether there is a temporal element to the amended r.2.72 is relevant to the issue in dispute. Regulation 2.72 sets out the provisions dealing with its application. It applies to nominations that fall within r.2.72(1) and establishes the criteria against which nominations are to be assessed for the purposes of s.140GB(2)(b). This assessment will be at the time of the decision. Submissions about the ‘narrow’ or ‘broad’ interpretation of the amended r.2.72 do not advance the determination of the preliminary question. We do not consider an argument that the amended r.2.72 should be interpreted broadly based on ‘accrued rights’ to be persuasive. This contention is predicated on the notion that the old r.2.72 does not apply and, as this would be anomalous, the amended r.2.72 must apply. We reject this contention. Subsection 7(2) of the Acts Interpretation Act 1901 cannot be used to read in words to an amended provision to preserve what is said to be an ‘accrued right’. The operation of this provision and the concept of accrued rights are complicated and, for the reasons later outlined in this decision dealing with the Department’s submission, there must first be a careful analysis of the amending provisions and the relevant legislative framework to determine its possible application.
The application of the amended r.2.72 is clear on its face and the interpretation contended in respect of r.2.72(1)(b)(iii) strains the ordinary meaning of the provision. In our view, the provision cannot be interpreted or characterised as extending the application of the amended r.2.72 to include a nominee who is ‘an applicant or proposed applicant for a subclass 457 visa’. In any event, an accrued right could not be based on a nomination in respect of a subclass 482 visa when this visa was not in existence at the time of the application.
Accordingly, we find that the amended r.2.72 only applies to a nomination made under s.140GB(1)(b) where the sponsor nominates a proposed occupation in relation to a nominee who is the holder of a subclass 457 visa, a holder of a subclass 482 visa or is an applicant or a proposed applicant for a subclass 482 visa. It cannot be construed any other way.
However, this is not the end of the matter. When the applicant’s submission is analysed it is apparent that the critical question is whether there is a temporal element to the application for nomination under s.140GB(1) of the Act. If the essential nature of the nomination is fixed as at the time of application, there is considerable difficulty in construing the amended r.2.72 to apply to a nomination where an associated subclass 457 visa has either not been granted or not been made prior to the time of the amendments and the repeal of the subclass 457 visa. In contrast, if a nomination made under s.140GB(1) is fluid and can be changed up until the time of decision, a sponsor could change the nomination and the nominee’s intention could change to contemplate a proposed application under subclass 482. If this was the case the amended r.2.72 would apply.
In our view, the scope and content of a nomination application must be assessed at the time it is made. Subsection 140GB(1) provides for the circumstances in which a sponsor may make a nomination and the criteria relevantly speaks of a ‘proposed’ applicant, a ‘proposed’ occupation. This subsection is framed in terms of the future. While s.140GB(1) envisages that certain things will happen in the future in respect of the nomination, the reference point is, and must be given the words and the practical operation of the section, the time of the nomination. This is because there must be a means to be able to assess whether a nomination is validly made, as opposed to whether it should be approved. For instance, to assess whether a nomination can be made under s.140GB(1)(b) it would be necessary to form a view about whether the sponsor was approved and whether the sponsor had nominated a ‘proposed occupation, program or activity’.
Regulation 2.73 establishes the process for nomination, compliance with which is a criterion for approval under both versions of r.2.72. While this regulation has been amended, both versions have a provision dealing with the application of the regulation. In the case of the old r 2.73(1A), the regulation applies to a person who is nominating an occupation under s.140GB(1)(b) and who identifies in the nomination a holder, applicant or proposed applicant for a subclass 457 visa as the person who will work in the occupation. The amended r.2.73(1) provides that the regulation applies to a person who is nominating a proposed occupation under s.140GB(1)(b) in relation to the holder of a subclass 457 or a subclass 482 visa or an applicant or proposed applicant for a subclass 482 visa. While these regulations refer to a person ‘nominating’ rather than having ‘nominated’ a proposed occupation, this recognises that the process of nomination is continuing until it has been finalised by an approval or a refusal. It does not support a contention that the nomination application does not have a temporal element. The process under r.2.73 contemplates a point of time application. The process applied in respect of nominations cannot be at large. This would create uncertainty and confusion. The old r 2.73 applies to nominations in respect of subclass 457 visas or proposed subclass 457 visas and, by reason of cl.6704(7), continues to apply if the nominations have not been finalised by 18 March 2018. The amended r.2.73 applies to nominations in respect of subclass 457 and subclass 482 visas but only in respect of subclass 457 visas where the nomination was made after 18 March 2018. This is clear from cl.6704(7) which provides that the old r.2.73 continues to apply to nominations made but not finalised before 18 March 2018.
Regulation 2.72 raises similar issues of construction and application. There are provisions in both versions about its application. The old r.2.72 refers to a standard business sponsor who has ‘nominated’ an occupation in relation to a holder of a subclass 457 visa or an applicant or proposed applicant for such a visa. This supports the contention that the nature and scope of the nomination must be assessed at the time of application for the purposes of determining the application of r.2.72. While the amended r.2.72 speaks of a standard business sponsor who ‘nominates’ this change in wording does not support the contention that the nomination application itself has no temporal element. As already noted in respect of r.2.73, this merely signifies that the nomination is a continuing process, which will culminate in its approval or refusal. As such, while the approval process under s.140GB(2) is a time of decision assessment, we find that the application of the relevant regulations must be assessed by reference to the nomination which was made at the time of the application.
We therefore reject the applicant’s contention that s.140GB(1) does not have a temporal element. We also reject the notion that s.140GB(1) contemplates that the nomination or the intention of the sponsor or nominee may change depending on ‘the state of the legislation’ at the time the nomination falls for consideration. If this had been the intended effect of s.140GB(1) this could have been expressly stated. While s.140GB(1) refers to a ‘proposed occupation, program or activity’ and a ‘proposed’ applicant it does not speak of the ‘intention’ of the sponsor or the nominee. The subsection directs attention to the approved sponsor and the nomination, not to the nominee or the intention of either. In our view, s.140GB(1) does not contemplate that the proposed applicant or proposed occupation, program or activity should be a fluid concept. At the time of application the sponsor must nominate an applicant, a proposed applicant or a proposed occupation, program or activity. Regulations 2.72 and 2.73 are critical to the nomination and approval process and, for the reasons we outline above, it is clear that the application (as provided for under the old rr.2.72(1) and 2.73(1A), and the amended rr.2.72(1) and 2.73(1)) must be assessed at a point of time, most logically at the time of the nomination application is made.

Accordingly, we find that the amended r.2.72 does not apply to nominations which were not finalised as at 18 March 2018 where there was a proposed applicant for a subclass 457 visa but no such application had been by 18 March 2018. We therefore find that the amended r.2.72 does not apply to the assessment of the nomination of the applicant.
Does the old r 2.72 apply to this nomination?
The Department contends that the old r.2.72 applies to such nominations and it also seeks to rely on s.7(2) of the Acts Interpretation Act 1901.
We apprehend that the Department contends that a nomination made under s.140GB(1) of the Act gives the sponsor an ‘accrued right’ within the meaning of s.7(2) to have the nomination assessed according to law. However, the nature of this accrued right, how this arises given the terms of the transitional provisions and whether s.7 of the Acts Interpretation Act 1901 operates to preserve the old r.2.72 for the purposes of assessing the nomination has not been explained.
According to the simplified outline in s.1A of the Acts Interpretation Act 1901, this Act ‘is like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts’. Section 2 deals with the application of the Acts Interpretation Act 1901 and provides:
(1)This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2)However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
Relevantly, s.7(2) provides:
(2)If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
…
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; [Emphasis in original]
Subsection 13(1) of the Legislation Act2003 provides that if enabling legislation confers a power to make a legislative instrument, then, unless the contrary intention appears the Acts Interpretation Act applies to that instrument.
As such, the effect of ss.13(1) of the Legislation Act2003 and 7(2) of the Acts Interpretation Act 1901 is that unless there is a contrary intention, the operation and application of instruments can be affected by the terms of s.7(2).
Having regard to the Department’s submissions, the issues are whether there is an accrued right that is affected by the amending regulation and whether there is a contrary intention. In this case, these two issues are inter-related.
The reason why this preliminary question has arisen is because cl.6704(6) does not deal with nominations that were not finalised as at 18 March 2018 in respect of which a ‘proposed applicant’ for a subclass 457 visa was identified in the nomination but there was no associated 457 visa or application on foot before subclass 457 visas were repealed effective from 18 March 2018.
Part 67 of Schedule 13 to the amending regulations contains the transitional and application provisions for the amended regulations. It is comprehensive and appears to be intended to cover all contingencies. However, cl.6704(6) is silent on how these nominations should be treated. Was this intentional or an oversight? If it is intentional there is no scope for s.7(2).
Both the Department and the applicant have identified the ‘accrued right’ to be the right to have the nomination assessed according to the law. The right came into existence at the time the nomination was made and existed up until the amending regulation and beyond. This right was not extinguished by the amendments. In fact the process for these nominations was expressly preserved under cl.6704(7). Arguably, the right to have the nomination assessed is based on s.140GB of the Act and not the Regulations. On one view, rr.2.72 and 2.73 merely provide the mechanism to process then assess the nomination. Relevantly, s.7(2) directs attention to amendment or repeal made to an Act or instrument that affects accrued rights under the amended or repealed Act or instrument, not another Act or instrument. However, this is a narrow approach given the terms of s.140GB.
Subsection 140GB(2) provides that the nomination of an approved sponsor must be approved if the labour market testing condition under s.140GBA is satisfied (where the section applies) and if ‘the prescribed criteria’ are satisfied. It is clear from its terms that s.140GB(2) is to be assessed at the time of the decision. The nomination will either be approved or not approved by reference to, relevantly, the prescribed criteria. The ‘prescribed criteria’ are the criteria that are prescribed and which apply at the time of decision. If there is no prescribed criteria, there is an issue about whether a nomination can be approved under s.140GB(2). As such, any amendments to the Regulations which fundamentally impact on the right to have a nomination assessed under s.140GB(2) must be taken to affect an accrued right. Taking a beneficial construction, it could be said that the old r.2.72 provided for a sponsor to have their nomination assessed for the purposes of s.140GB(2)(b) under ‘prescribed criteria’. This was an accrued right in itself as if there were no such criteria; the nomination could not be assessed and approved. If this is accepted, it is possible s.7(2)(c) of the Acts Interpretation Act 1901 may be invoked where there have been amendments to the Regulations that affect rights accrued under s.140GB. However, it is still necessary to consider whether there was a contrary intention.
Whether there is a contrary intention will be ascertained having regard to the amending regulations, the transitional provisions and, if appropriate, extrinsic material such as any explanatory statements.
As already noted, cl.6704(7) provides that the process for nomination under the old r.2.73 is expressly preserved in respect of these nominations. This suggests the drafters turned their mind to the issue of what would happen to nominations which were made before 18 March 2018 but not finalised where there was a ‘proposed applicant’ for a subclass 457 visa identified in the nomination but there was no subclass 457 visa or application on foot at the time subclass 457 visa were repealed.
While the Department submits it would be anomalous to have a valid nomination which is yet to be determined but to have no prescribed criteria against which the nomination can be assessed, it does not follow that s.7(2) applies to preserve the old r.2.72 for these nominations. The difficulty is that any right to have these nominations assessed became futile after the amendments came into effect. Even if a nomination without an associated 457 visa or application made before 18 March 2018 could be assessed under a prescribed criteria, the nominee could not be granted a subclass 457 visa after 18 March 2018 and the sponsor could not use the nomination for a subclass 482 applicant or proposed subclass 482 applicant. The old r.2.73 specifically links the nomination and the occupation nominated to a subclass 457 visa and there is no scope in the process for nomination of an applicant or proposed applicant for a subclass 482 visa.
The preservation of the old r.2.73 in respect of these nominations but their exclusion from the old r.2.72 is puzzling but is perhaps explained by the fact that the assessment of the criteria cannot achieve any outcome and would be a waste of time for both the applicant and the Tribunal. On one view, the inclusion of a ‘proposed applicant’ for a subclass 457 visa in cl.6704(7) must have been in error because it would serve no purpose. On another view, the error of omission in cl.6704(6) would seem more likely than the error of inclusion in cl.6704(7). Either way, the intended effect of the transitional provisions in respect of these nominations is unclear. Relevantly, cls.6704(9) and (10) specifically provide for the Minister to refund the fee paid in respect of a nomination where the proposed applicant did not apply for a subclass 457 visa on the basis of the nomination before 18 March 2018.
The Explanatory Statement to the amending regulations does not assist. In respect of item 80 (being the amendment to r.2.73) there is no reference to the old r.2.73 continuing to apply to nominations made prior to 18 March 2018. In relation to item 79 (being the amendment to r.2.72) it is simply noted that ‘[t]he old criteria continue to apply to nominations made prior to 18 March 2018’.[53] In relation to item 178 (being the transitional provisions in Schedule 13) it is noted:
Further context for Schedule 13 is provided by paragraph 13(1)(a) of the Legislation Act 2003, which has the effect that the Acts Interpretation Act 1901 applies to this Regulation as if it were an Act. Paragraph 7(2)(c) of the Acts Interpretation Act 1901 is particularly relevant, as it has the effect that the repeal and amendment of provisions of the Migration Regulations made by this Regulation do not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Migration Regulations.
As a preliminary point, it can be noted that no application provisions are required for the new Subclass 482 (Temporary Skill Shortage) visa, as it only comes into existence on 18 March 2018 when this Regulation commences.
…
Clause 6704, entitled Application and transitional provisions in relation to amendments of Part 2A, has the effect that changes to regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018. There are two exceptions…[54] [Emphasis in original]
[53] Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, p.28.
[54] Ibid pp.52-53.
The exceptions referred to are not relevant for purposes of this issue.
The Explanatory Statement therefore restates the position set out in the submissions without identifying any accrued right that may be affected by the amendments.
While the position is not free from doubt, we conclude that the old r.2.72 does not apply to these nominations. We find there is an accrued right to have the applicant’s nomination assessed according to law and it is arguable that this right, which has been impacted by the amending regulation, is an accrued right for the purposes of s.7(2)(c) of the Acts Interpretation Act1901. Notwithstanding this, given the scope and apparent intent of the amending regulation we find there is a contrary intention about whether s.7(2)(c) of the Acts Interpretation Act1901 should be invoked to preserve the operation of the old r.2.72 in respect of these nominations. Subclause 6704(6) does not include these nominations, there would be no utility in the old r.2.72 applying, there is a specific provision to cover refunds in respect of these nominations in cl.6704(10) and it is not anomalous that the drafters did not provide for criteria to assess nominations when any assessment process would ultimately be futile. Having regard to the transitional provisions as a whole it seems more likely that the inclusion of these nominations in the saving provisions for r.2.73 was an error and that their exclusion from cl.6704(6) was intentional.
What if neither the old nor amended r 2.72 applies?
As already noted, s.140GB(2) provides for the Minister to approve a nomination. Whether the nomination can be approved is to be assessed at the time of the decision. The nomination can either be approved or not approved by reference to, relevantly, the prescribed criteria. The ‘prescribed criteria’ are the criteria that are prescribed in the Regulations and which apply at the time of decision. Subsection 140GB(2) is couched in mandatory terms and specifically provides that the Minister must approve the nomination if paragraphs (a) and (b) are satisfied. Subparagraph (b) provides for approval of a nomination if ‘the prescribed criteria’ are satisfied. However, we have found that there are no prescribed criteria in force at the relevant time in respect of these nominations.
As observed by Collier J in Bautista v Minister for Immigration and Border Protection [2018] FCA 1114 at [59] to [70] where a power created by legislation is ‘subject to a prescribed qualification which is defective’ it is relevant to consider whether the power is affected or whether there is discretion to exercise the power in the absence of the prescribed matters. Her Honour referred to Downey v Pryor [1960] HCA 49 in which there was a discussion by the High Court as to whether what is prescribed is an essential part of the power. As noted by Kitto J (at 361-362) this will depend on ‘consideration of the words themselves, the context, and the nature of the provision’.
The question is whether subparagraph (b) is discretionary or essential to the exercise of the power to approve in s.140GB(2).
Subsection 140GB(2)(b) refers to ‘in any case’ rather than ‘if any’ and the criteria under both the old and the amended r.2.72 are comprehensive and substantive. This suggests that the prescribed criteria are essential to the approval process. It is also relevant that the Minister must approve, and has no discretion, if the prescribed criteria are satisfied. As such, we conclude that approval is conditional on there being criteria prescribed against which a nomination can be assessed. If there is no prescribed criteria, a nomination cannot be approved under s.140GB(2) of the Act.
We find that neither the old nor the amended r.2.72 apply to the applicant’s nomination and, as such, there are no prescribed criteria against which the nomination can be assessed. The Tribunal can conduct a review of the application but will not be able to approve the nomination. This is not a perverse outcome given any assessment would ultimately be futile.
CONCLUSION
Having regard to the matters set out in our reasons, we find that neither the old nor the amended r.2.72 apply to the applicant’s nomination. This being the case there are no criteria against which to assess the nomination. As s.140GB(2) is conditional on such an assessment based on the prescribed criteria, the nomination cannot be approved. If the applicant wishes to proceed with the application for review, the Tribunal would have no choice but to affirm the decision under review. Alternatively, the applicant can withdraw its application, apply for a refund given the terms of cl.6704(10) and make a fresh nomination application under the new provisions for the same proposed occupation.
To allow the applicant to make written submissions in relation to the further conduct of the review the Tribunal adjourns the review for 14 days.
Jan Redfern
Deputy President

Alison Mercer
Member