Boutrous v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 621

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Boutrous v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 621

File number(s):  SYG 2139 of 2019
Judgment of: JUDGE MANSINI
Date of judgment: 4 August 2022
Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal - Employer Nomination (Permanent) (Class EN, Subclass 186) (Temporary Residence Transition stream) – where First Applicant did not meet age criteria and did not meet criteria of the age exemption in legislative instrument – question of validity of legislative instrument – application dismissed.
Legislation:

Acts Interpretation Act 1901 (Cth) s.23(b)

Legislation Act 2003 (Cth) s.13(1)(a)

Migration Act 1958 (Cth) ss.40, 45, 46, 47, 65, 140A, 245AQ as at 23 February 2017

Migration Regulations 1994 (Cth) sch 1 regs 1114B(3)(c), 1114B(4) as at 1 July 2017

Migration Regulations 1994 (Cth) sch 2 regs 186.221(a), 186.221(b) as at 1 July 2017

Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 cls.11(c), 13

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.11.10
Cases cited:

 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1

Huang v Nazaran [2021] NSWCA 243

Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508

Singh v Minister for Immigration & Anor [2017] FCCA 2470

South Australia v Tanner (1989) 166 CLR 161

Division: Division 2 General Federal Law
Number of paragraphs: 59
Date of hearing: 28 July 2022
Place: Sydney
Counsel for the Applicant Mr O Jones of Counsel
Solicitor for the Applicant Firmstone & Associates
Counsel for the First Respondent Mr T Reilly of Counsel
Solicitor for the First Respondent Australian Government Solicitor

ORDERS

SYG 2139 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IBRAHIM BOUTROUS
First Applicant
LINDA EL HACHEM
Second Applicant
EDWIN BOUTROUS
Third Applicant
LARA BOUTROUS
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

4 AUGUST 2022

THE COURT ORDERS THAT:

1.The application (as amended) be dismissed.

2.The Applicant pay the costs of the First Respondent fixed in the sum of $7,853.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MANSINI

IN SUMMARY

  1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the decision(s) of a delegate of the First Respondent to refuse: the First Applicant’s Employer Nomination (Permanent) (Class EN, Subclass 186) visa (Nomination Visa) and the secondary applications of the Second, Third and Fourth Applicants (as members of the family unit), pursuant to s.65 of the Migration Act 1958 (Cth) (Act).

  2. In summary, the Applicants complained that the Tribunal made an error of jurisdiction because a legislative instrument on which it relied was “invalid”. Essentially they contended that the invalidity arises from a combination of factors which meant it was not possible for the First Applicant to satisfy the requirements for a visa of this kind.

  3. I have determined to dismiss the application. The reasons for this decision follow.

    CONTEXT

    The facts

  4. The First Applicant, born on 8 May 1964, is a citizen of the Republic of Lebanon who has been in Australia since at least 2009. In the period from 2009 to 2013, he was the holder of a Subclass 457 visa pursuant to which he worked for Australia Wide Formwork Pty Ltd and Wideform Pty Ltd (First 457 Visa).

  5. The First Applicant was then sponsored by another nominating employer, One Coat Set Plastering Pty Ltd (Nominating Employer) and, on 13 August 2013, was ultimately granted a Temporary Business Entry (Class UC, Subclass 457) visa (Second 457 Visa). The Second 457 Visa had an expiry of 13 August 2017. The parties agreed that the First Applicant had worked as a Painting Trades Worker for the Nominating Employer as the holder of the Second 457 Visa from 13 August 2013.

  6. On 1 June 2017, at 53 years of age, the First Applicant applied for the Nomination Visa by which he sought to work in the nominated occupation of Painting Trades Worker for the Nominating Employer. By that same application form, the Second, Third and Fourth Applicants (being the wife and children of the First Applicant) applied for visas as migrating family members.

  7. On 27 September 2018, the Applicants were notified that a delegate of the First Respondent refused the application for the Nomination Visa and the related migrating family visa applications because the delegate was not satisfied that the criteria relevant to the Temporary Residence Transition stream, specifically at cl.186.221(a) and the exemption at cl.186.221(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), were satisfied.

  8. On 15 October 2018, the Applicants applied to the Tribunal for review of the delegate’s decision. On 12 July 2019, the Applicants’ representative sent to the Tribunal statutory declarations: of the First Applicant and of a Director of the Nominating Employer, respectively dated 11 July 2019.

  9. The First Applicant attended a hearing before the Tribunal by telephone on 16 July 2019. On 25 July 2019, the Applicants’ representative provided the Tribunal with a further statutory declaration of the First Applicant which annexed various tax invoices and bank statements. On 29 July 2019, the Applicants’ representative provided 2017 tax returns to the Tribunal. The hearing was resumed on 30 July 2019 and attended in-person by the First Applicant.

  10. On 31 July 2019, the Tribunal decided to affirm the delegate’s refusal of the Applicants’ visa applications and provided a 2-page statement of reasons for that decision (Reasons): Court Book, at 258-260. A copy of those Reasons was provided to the Applicants’ representative on 2 August 2019.

    The Tribunal’s decision

  11. The Tribunal found on the information before it that it was not satisfied that the First Applicant satisfied the criteria for a Subclass 186 visa in the Temporary Residence Transition stream: cl.186.221, Reasons at [15].

  12. The Tribunal found that the First Applicant was 53 years old at the time of the application and therefore did not meet cl.186.221(a): Reasons, [9].

  13. The Tribunal also considered that the First Applicant, seeking a visa in the position of Painting Trades Worker, was not in a class of persons specified in the relevant instrument for cl.186.221(b): Reasons, [10].

  14. Relevantly, paragraph 13 of those Reasons provided as follows:

    13. While the Tribunal acknowledges that the first named applicant had thought that the four years of employment had been achieved having worked for them since 2013, and claims that he has in fact worked for the nominating employer for more than four years in total as at the time of hearing, the class of persons only includes those that have worked for at least four years immediately prior to applying for the Subclass 186 visa (emphasis added). These conditions have not been met in this case. The Tribunal further acknowledges that there was a reason why the application was lodged prior to four years of employment being completed, that is prior to 13 August 2017, because the English language test would effectively be out of date. However, in those circumstances, he needed to have taken another English language test. On the evidence before the Tribunal, he had not been working for the nominating employer for at least four years as at 1 June 2017 when the visa application was made. The applicant had been working for 3 years and 9 months and 19 days. The Tribunal does not have any discretion or power to waive the four year requirement. It finds that the applicant has not worked for at least four years immediately before applying for the visa.

  15. The Tribunal concluded that, in light of those findings, it was not necessary to consider the First Applicant’s annual income and whether it was at least equivalent to the Fair Work High Income Threshold for each of the years in the relevant period: Reasons, [14]. It also noted that no other claims in respect of other visa streams were made: Reasons, [16].

  16. Accordingly, the Tribunal affirmed the delegate’s decision: Reasons, [17].

    Proceedings before this Court

  17. On 19 August 2019, the Applicants lodged this application for judicial review together with an affidavit exhibiting a copy of the Reasons and adducing no other evidence.

  18. On 3 September 2019, a response was filed on behalf of the First Respondent contending that the decision of the Tribunal was not affected by jurisdictional error.

  19. Procedural orders were made on 11 October 2019 (amended by consent on 11 and 19 December 2019), a court book was filed and the parties filed and served written submissions.

  20. On 25 October 2019, the Applicants filed an amended application.

  21. On 12 December 2019 the Applicants filed written submissions. On 17 December 2019, the First Respondent filed written submissions.

  22. On 7 July 2022, the parties were notified that this matter was listed for final hearing before the Court as presently constituted.

  23. On 20 July 2022, by consent, the First Respondent filed written submissions in substitution of those filed on 17 December 2019 and an updated list of authorities.

  24. By consent and pursuant to r.11.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), the First and Second Applicant were appointed as litigation guardians for the Third and Fourth Applicant.

  25. In the course of the hearing, on 28 July 2022, a further amendment to the application was proposed which was not opposed. Unsealed written submissions on behalf of the Applicants in reply were accepted. There was also no opposition to an amendment of the First Respondent name to reflect a recent name change. To the extent necessary, I was satisfied it was appropriate to waive compliance with the Rules in these respects and ordered accordingly. 

    THIS APPLICATION FOR JUDICIAL REVIEW

  26. The application as amended contained a single ground, with particulars, as follows:

    The Tribunal made a jurisdictional error in applying clause 11(c) of IMMI 17/058.

    a.Clause 186.221(b) of Sch 2 to the Migration Regulations 1994 (Cth) enabled the Minister to specify a class of persons aged over 50 years as eligible applicants for the Subclass 186 visa;

    b.Clause 11(c) of IMMI 17/058 purported to do so by specifying “persons who have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for the Subclass 186 visa”;

    c.The Subclass 457 visa was granted to the Applicant on 13 August 2013 and, in accordance with cl.457.511(a) of Sch 2 to the Regulations, the visa was in effect for a period of 4 years ending on 13 August 2017;

    d.The Applicant had previously held a subclass 457 visa with other nominating companies from 2009 until 2013;

    e.Item 1114B(3)(c) when read with 1114B(4) in Sch 1 to the Migration Regulations required the Applicant, at the time of applying for a subclass 186 visa, to hold a substantive visa or a subclass 010 (Bridging A), a subclass 020 (Bridging B) or a subclass 030 (Bridging C);

    f.It was not possible under the purported terms of cl 11(c) of IMMI 17/058 for the Applicant to satisfy the requirement described in paragraph (e) by holding the subclass 457 visa, as in order to have been working for the nominating employer for at least four years “immediately before applying for the Subclass 186 … visa”, it would be necessary for the subclass 457 visa to have expired;

    g.It was not possible under the purported terms of cl 11(c) of IMMI 17/058 for the Applicant to satisfy the requirement described in paragraph (e) by holding a bridging visa as the clauses relevant to those visas in the present case would require a substantive visa application to be pending before those visas can be granted and the application for the subclass 186 visa could not be made until after the subclass 457 visa had expired: see, eg, clause 010.211 of Sch 2 to the Regulations;

    h.Placing the Applicant in such an impossible position rendered cl 11(c) of IMMI 17/058 legally unreasonable or disproportionate: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 at [48], [51] and [58] per French CJ.

  27. By the amended application, the Applicants sought: an order that the decision of the Tribunal, Immigration Assessment Authority or Minister be quashed; a writ of mandamus directed to the Tribunal, Immigration Assessment Authority or the Minister requiring them to determine the application according to law; a declaration that cl.11(c) of Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 (Instrument) is invalid to the extent it applies to the Subclass 186 visa; any further order or other relief as the Court considers appropriate; and costs.

  28. The First Respondent sought the application be dismissed with costs and did not apply for any variation to the scale at Schedule 2 of the Regulations.

    Statutory framework

  29. At the relevant times, the Act provided for a temporary sponsored work visa program including Subclass 457 (Temporary Work (Skilled)) visas: Act at s.140A, Division 3A of Part 2 and Regulations at Division 2.11; and for a prescribed class of “permanent” visa on nomination by an approved sponsor – “the employer nomination scheme”: Act at s.245AQ, Division 12 of Part 2 and Regulations at Division 5.3B.

  30. The Act provided that the Regulations may provide that visas (or visas of a specified class) may only be granted in specified circumstances: s.40.

  31. Schedule 1 to the Regulations as in force at the relevant time set out the specific ways in which a non-citizen was to apply for a visa of a particular class. An application not made as set out in Schedule 1 was not valid and would not be considered: ss.45, 46 and 47 of the Act. Relevant to this proceeding, an applicant for a permanent employer nomination (Class EN) (Subclass 186) visa was required to hold a substantive visa or a “bridging” visa under any of Subclass 010, 020 or 030 at the time of making the application: Regulations at Schedule 1, cl.1114B(3)(c) and cl.1114B(4).

  32. Schedule 2 of the Regulations as in force at the relevant time also prescribed criteria for the grant of the visa of the particular class of Employer Nomination (class EN) (Subclass 186), set out in streams. The “common criteria” at cl.186.21, applicable to all applicants seeking to satisfy the primary criteria for a Subclass 186 visa, was not in issue in this case. The criteria for the Temporary Residence Transition Scheme was at cl.186.22 of the Regulations. Relevant to the present application, cl.186.221 provided as follows:

    186.221

    At the time of application, the applicant:

    (a)       had not turned 50; or

    (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

  33. On 1 July 2017, the Instrument (as earlier defined) commenced and relevantly provided:

    Part 3 – Specification of Skill, Age and English Language Requirements for Subclass 186 and Subclass 187 Visas

    11Applicants for Subclass 186 (Temporary Residence Transition stream) and Subclass 187 (Temporary Residence Transition stream) who are not required to be below the age of 50 at time of application

    For the purposes of paragraphs 186.221(b) and 187.221(b) of the Regulations, the following classes of persons are specified:

    (a)researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who are nominated by Australian scientific government agencies;

    (b) academics who are nominated by an Australian university to be employed at an Academic Level of B, C, D or E in one of the following positions:

    (i)        University Lecturer (ANZSCO: 242111); or

    (ii)       Faculty Head (ANZSCO: 134411);

    (c) persons who have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for the Subclass 186 or Subclass 187 visa; and whose annual income for each year in the four year period was at least equivalent to the Fair Work High Income Threshold; and

    (d)       persons who meet all of the following requirements:

    (i) the person is a medical practitioner (ANZSCO MINOR GROUP 253);

    (ii) the person has been employed as a medical practitioner for a period of at least four years immediately before applying for the Subclass 186 or Subclass 187 visa;

    (iii) during that period the applicant was the holder of a Subclass 457 visa;

    (iv) the person was employed in regional Australia for at least two years during the period of four years; and

    (v) the nominated position is located in regional Australia.

    […]

    13 Application

    (1) This instrument applies to applications for Subclass 186 and Subclass 187 visas made on or after 1 July 2017, and also to applications for Subclass 186 and Subclass 187 visas made before 1 July 2017 and not finally determined by that date.

    (2) This instrument applies to nominations under regulation 5.19 of the Regulations made on or after 1 July 2017, and also to nominations under regulation 5.19 of the Regulations made before 1 July 2017 and not finally determined by that date.

    The Applicants’ submissions

  34. The Applicants contended that part of cl.11(c) of the Instrument is invalid. Specifically, to the extent of the words “Subclass 186 or”.

  35. The Applicants strongly urged the Court to find that it was not possible for the First Applicant or any applicant in his particular circumstances (that is, holding a single Subclass 457 visa) to meet the requirement to hold a substantive visa or certain bridging visa (pursuant to cl.1114B of Schedule 1 of the Regulations). Their rationale was two-fold:

    ·First, in order to have been working for the Nominating Employer for at least 4 years before the Nomination Visa application was made, it would have been necessary for the Subclass 457 visa with the Nominating Employer (earlier defined as the Second 457 Visa) to have expired at the time of application for the Nomination Visa. The effect of this is that the Applicant would not have held a substantive visa at the time of the Subclass 186 application and therefore, the Subclass 186 visa application would not have been a valid application under 1143B of the Regulations); and

    ·Second, to have obtained a specified bridging visa, the substantive Nomination Visa application would have needed to have been pending and they could not apply for the Subclass 186 visa until after the Second 457 Visa had expired.

  36. The Applicants’ counsel contended that the phrase the holder of a Subclass 457 visa in cl.11(c) ought to be construed as the holder of a single visa. The question before the Court was whether it lies within the Court’s proper function of construction to accord that pluralised meaning to the expression. It was contended that the First Respondent’s reading of the expression as the holder of successive Subclass 457 visas requires the Court to accord such pluralised meaning and this is not within the Court’s interpretive function on two grounds.

  1. First, on its “ordinary meaning”, the expression is a reference to a single visa. The Applicant drew the Court’s attention to s.23(b) of the Acts Interpretation Act1901 (Cth) (which applies to a legislative instrument under s.13(1)(a) of the Legislation Act 2003 (Cth)) and submitted that s.23(b) enables the Court to read a provision which has been expressed in the singular “to embrace the plural” but does not authorise the Court to read the expression as if it is “confined to the plural”. It was accepted that the First Respondent’s proposed construction would be uncontroversial if the Minister were reading the singular as if it included or extended to the plural. Conversely, the First Respondent “is not reading the reference in cl 11(c) of IMMI 17/058 to “a subclass 457 visa” as amplified by the interpretation legislation to include the plural. Rather, he is submitting that the expression must in every case refer to the plural”. This interpretation was contended to go beyond the reach of the amplification effected by the interpretation legislation and to invite the Court to “read up” the provision.

  2. Second, the Applicant submitted that it would be an “odd” result if cl.11(c) were interpreted such that two, consecutive Subclass 457 visas (each of a 4-year term, totalling 8 years) were required in order to meet the age exemption for a Subclass 186 visa (with a 5-year term). It was noted that cl.11(c) has since been repealed and replaced with provisions requiring only three years’ employment (with reference to cl.9(c) of IMMI 18/045 Exemptions to Skill, Age and English Language Requirements for Subclass 186 and Subclass 187 Visas Instrument 2018).

  3. According to the Applicants, it follows that cl.11(c) of the Instrument is legally unreasonable or disproportionate in the sense described by French CJ in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 (Attorney-General (SA) v Corporation of the City of Adelaide) at [47]-[48] and [51]. Consequently, it is a jurisdictional error to rely on invalid law. It was contended that, like mistake and refusal to exercise jurisdiction, reliance on invalid law is an instance where materiality is not required for the finding of jurisdictional error: Huang v Nazaran [2021] NSWCA 243 at [27].

  4. Further, they said the relief sought in the form of certiorari or mandamus was available because there is an interest of the Court in correcting a reliance on an invalid instrument and it is not necessary for the Applicants to establish that a different outcome would be achieved.  Further, that the Court has the power to grant a declaration even if the Applicants could not meet all other criteria because there would be a case for Ministerial intervention.

    First Respondent’s submissions

  5. For its part, the First Respondent contended that it was possible for an applicant to meet the requirements for a Subclass 186 visa in this particular stream because a person may hold more than one Subclass 457 visa in succession over the course of their employment in Australia.

  6. In oral submissions, the First Respondent contended that cl.11(c) does not require that a single 457 visa is held. Rather, that a person, while employed by the nominating employer for the minimum 4 years, was the holder of a Subclass 457 visa. It said that the Applicant’s reading of cl.11(c) required the insertion of text to arrive at the meaning that a person be the holder of only one single Subclass 457 visa for the 4 years immediately prior to application. The First Respondent contended that this is not a necessary inference. Although it is true that someone in the First Applicant’s position could only satisfy the requirement by having more than one Subclass 457 visa, in circumstances where the legislature has set an age limit criterion, it is not contentious or unreasonable that “there are some additional loopholes that people over 50 need to get through.” It said any subsequent amendment of the Instrument was simply irrelevant.

  7. The First Respondent asked the Court to find that for these reasons alone the application must fail.

  8. In any event, as to the alleged invalidity of the Instrument, the First Respondent contended that the Applicants had not discharged their onus and the “very high” nature of the threshold in the authorities was not met. It said mere disagreement with policy behind an instrument is insufficient to establish invalidity. It also argued that an inability to meet part of an exemption might render it simply ineffective but not necessarily invalid.

  9. The First Respondent also opposed the remedy or relief sought on the basis that, even if the Applicants were able to establish invalidity of the nature contended (which was not conceded), the Applicants would not have been (and would not be) able to meet the criteria for the grant of the visas and any error on the part of the Tribunal regarding the validity of cl.11(c) would have been immaterial to its decision and jurisdictional error could not be established. Such relief would therefore be futile.

    Applicable principles

  10. The applicable principles on invalidity were helpfully summarised in the First Respondent’s written submissions at [18]-[20]:

    It was stated in Singh v Minister for Immigration & Anor [2017] FCCA 2470 (at [5]-[6]) that:

    “Proportionality” is most often used as a heuristic tool in the context of a challenge to a legislative restriction on a right or freedom. The context here is different, there being no right or freedom affected by the setting of criteria for the grant of a visa. A non-citizen has no right to enter or stay in Australia prior to the grant of a visa. For that reason, although the ultimate question of the scope of a particular power is the same, the question of proportionality here is different to those applied, for instance, in cases such as McCloy and Brown v Tasmania [2017] HCA 43 involving the implied freedom of political communication… The test for unreasonableness in this context has a high threshold.”

    In Attorney-General (SA), the “high” nature of the threshold was explained as follows (per French CJ at [48] and [51]):

    A high threshold test for unreasonableness invalidating delegated legislation was set by the Privy Council in Slattery v Naylor. Their Lordships spoke of a “merely fantastic and capricious bye-law, such as reasonable men could not make in good faith”. That criterion did not invite judicial merits review of delegated legislation. Nor has unreasonableness ever been so regarded in this Court. As their Lordships said, a by-law would not be treated as unreasonable “merely because it does not contain qualifications which commend themselves to the minds of judges”. In Kruse v Johnson, Lord Russell CJ accorded a particular respect to the authority conferred on public representative bodies in making delegated legislation which would not necessarily inform consideration of validity today. However, he did not exclude from review by-laws “partial and unequal in their operation” or “manifestly unjust” or involving “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men…

    In Brunswick Corporation v Stewart Starke J adopted the language of the Privy Council in Slattery in distinguishing between a “drastic” provision and one which was “so capricious and oppressive that no reasonable mind can justify it”. Williams J in the same case adopted the language of Lord Russell CJ in Kruse v Johnson, equating unreasonableness in a by-law with “such oppressive or gratuitous interference with the rights of those who are subject to it as could find no justification in the minds of reasonable men”

    Similarly, in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 it was stated (by Wilson, Dawson, Toohey and Gaudron JJ at 168):

    It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Nor is it enough to point ... to other provisions ... which impose only qualified prohibitions as a step leading to a conclusion that a total prohibition of the kind contained in [the regulation] is unjustified. To do that is again to substitute the judgment of the court for that of the legislator” (see also Milanes v Minister for Immigration and Border Protection [2015] FCA 1105; (2015) 234 FCR 508 at [128].

    Consideration

  11. It is not contentious that, at the time of the Employer Nomination Visa application on 1 June 2017, the First Applicant was 53 years of age and held a Subclass 457 Visa with the Nominating Employer of a 4-year duration. As the First Applicant did not meet the age criterion at 186.221(a), the First Applicant could only succeed in meeting the Subclass 186 criteria if he fell within the exemption – that is, was in a class specified by the Instrument which applied for the purposes of 186.221(b). 

  12. The argument before the Court focussed on the class of persons at cl.11(c) of the Instrument (there being no dispute that the Instrument, which commenced on 1 July 2017, applied to visa applications made by that date but not finally determined before that date and is therefore relevant to the present case: cl.13(1)). There was no suggestion that the First Applicant (a painting trades worker) could have met (or would meet) any of the other specified classes which included certain researchers, scientists, medical practitioners.

  13. The “age exemption” at cl.11(c) of the Instrument was as follows:

    (c) persons who have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for the Subclass 186 or Subclass 187 visa; and whose annual income for each year in the four-year period was at least equivalent to the Fair Work High Income Threshold.

  14. Notwithstanding a discrepancy identified in the materials before the Court as to the precise commencement date, for present purposes it was agreed (and the Tribunal had accepted) that the First Applicant worked as a Painting Trades Worker for the Nominating Employer as the holder of the Second 457 Visa from 13 August 2013. Accordingly, as the First Applicant had not been working for the Nominating Employer for at least 4 years immediately before making his Nominating Visa application on 1 June 2017, the First Applicant did not meet the requirements of cl.11(c) of the Instrument.

  15. For the following reasons, I do not accept that cl.11(c) of the Instrument was an invalid exercise of power within the meaning of Attorney-General (SA) v Corporation of the City of Adelaide because it was “not possible” for the Applicants to meet.

  16. It may be accepted that the age exemption at cl.11(c) could not be met by any applicant with a single Subclass 457 of a limited 4-year term, if the applicant was not the holder of any other substantive or specified bridging visa. However, I am not persuaded that it was not possible for an applicant in the circumstances of the First Applicant to meet the requirements.

  17. The Court was not taken to any authorities on the task of statutory construction. As I understood it, that is because both parties contended that the “plain words” of the Instrument are clear and unambiguous. In reaching this conclusion, I have preferred the construction of cl.11(c) of the Instrument for which the First Respondent contended.

  18. In my view, cl.11(c) plainly does not require an applicant to hold or have held only one or a single Subclass 457 visa. Rather, as the text of the provision says on its face, an applicant is required to have worked for a nominating employer, for a period of 4 years, and to have been a holder of a Subclass 457 visa in that time. On the materials before the Court, there is no basis to find any significance in subsequent amendment to the Instrument as relevant to the construction of the provision in question.

  19. It is at least conceivable that the First Applicant could have been working for the Nominating Employer for more than 4 years as a holder of a Subclass 457 Visa. Indeed, as the factual circumstances of this case bear out, the First Applicant had worked in Australia for more than 4 years as a holder of two, successive Subclass 457 visas – the First 457 Visa and the Second 457 Visa. He simply could not establish that he had been working as the holder of those visas for the same nominating employer, for the necessary duration of more than 4 years, at the time of his Nominating Visa application.

  20. The Applicants’ case as to invalidity relied on a positive finding that the provision of the Instrument was not possible for the First Applicant to meet. Having found to the contrary, the application is unable to succeed.

  21. Although not strictly necessary, for completeness, I would not in any event have been satisfied that the Applicants have demonstrated that cl.11(c) was so lacking in reasonable proportionality as to constitute an invalid exercise of power or invalidity. The authorities affirm that this is a high hurdle for the Applicants to overcome. In this case, the legislature fixed criteria for a non-resident to obtain a visa consistent with the objects of the Act. The First Applicant simply did not meet the criterion of the age threshold and did not satisfy but one part of the exemption to that age threshold. It is not for the Court to impose its judgment on the legislator or substitute the legislation with its own view and I would decline to do so.

    Resolution

  22. The single ground of review does not succeed.

    CONCLUSION

  23. For the foregoing reasons, the application is dismissed.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated: 4 August 2022

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Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3
McClure v Australian Electoral Commission [1999] HCA 31
Huang v Nazaran [2021] NSWCA 243