Hu and Another v Minister for Immigration and Citizenship and Another

[2007] FMCA 1710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1710

MIGRATION – MRT decision – overseas student on-shore residence visa – qualification assessable to satisfy skilled occupations list – required to be gained in registered course – criterion introduced after applicant completed studies in non-registered course and applied for visa – amendment intended to apply to pending applications – amendment not rendered ineffective by Legislative Instruments Act – application dismissed.

Acts Interpretation Act 1901 (Cth), ss.8, 48(2)
Education Services for Overseas Students Act 2000 (Cth)
Legislative Instruments Act 2003 (Cth), s.12
Migration Act 1958 (Cth), s.5(9), 65A
Migration Amendment Regulations 2006(No. 4) (Cth), Sch 2 Pt II, Item 33
Migration Regulations 1994 (Cth), Sch.2, Item 880.230

Attorney-General for Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485
Esber v Commonwealth (1992) 174 CLR 430
Hicks v Aboriginal Legal Service (2001) 108 FCR 589
Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 254
Lee v Secretary, Department of Social Secretary (1996) 68 FCR 491
Re Ross; Ex parte ALHMWU (2001) 108 FCR 399
Thongsuk v Minister for Immigration & Citizenship [2007] FMCA 655
Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545

First Applicant: QIONGJIE HU

Second Applicant: JIA REN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1959 of 2007

Judgment of: Smith FM

Hearing date: 3 October 2007

Delivered at: Sydney

Delivered on: 3 October 2007

REPRESENTATION

Counsel for the Applicants: Mr D Londaridze

Solicitors for the Applicants: Lin Tang & Co Lawyers

Counsel for the First Respondent: Mr S Lloyd

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants must pay the first respondent’s costs in the sum of $5,000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1959 of 2007

QIONJIE HU

First Applicant

JIA REN

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Mr Hu came to Australia to study, and between 2003 and 2004 he acquired a diploma of business and commerce at an education provider related to the University of Technology, Sydney. He then, between January 2005 and June 2005, studied a course leading to his being granted a certificate in ‘food processing (retail baking) ‑ cake and pastry’, from the City College of Professional Development. Unfortunately and, as Mr Hu now claims, unknown to him, that education provider was not registered under the Education Services for Overseas Students Act 2000 (Cth) to provide that course to overseas students.

2. Relying upon his two qualifications, Mr Hu applied on 19 October 2005 for a ‘class DD subclass 880 - skilled and overseas student’ visa, which would give him permanent residence in Australia. Ms Ren, whom he had married in Australia, was a secondary applicant for that visa. Her entitlement relied on Mr Hu's eligibility.

3. This class of visa was established to allow foreign students who gained qualifications in Australia to participate on-shore in Australia's points test recruitment of skilled labour for occupations in demand. I have previously considered aspects of the scheme in Thongsuk v Minister for Immigration & Citizenship [2007] FMCA 655. As did the applicant in that case, Mr Hu sought to rely upon a pastry cook qualification, to establish a nominated occupation in the prescribed “skilled occupations list”. Unlike that case, it is not an issue in the present case whether his business qualifications “related to” that occupation.

4. In the present case, both the delegate, who made a decision on 15 December 2006, and the Tribunal, who gave its decision at the end of a hearing on 13 June 2007, found that Mr Hu was not qualified for the visa, by reference to a criterion which had been significantly modified after the date of Mr Hu's application for the visa. This required that his relevant qualifications should have been gained only from a registered education provider.

5. At the time of both their decisions, a ‘time of decision’ criterion in item 880.230 of Sch 2 to the Migration Regulations 1994 (Cth) provided:

   (1)A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular.

   (2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full time study of a registered course.

6. Both the delegate and the Tribunal found, and it was not contested in this Court that this was factually correct, that the assessment made by the relevant assessing authority of Mr Hu’s suitability for his nominated skilled occupation, had not been made on the basis of a qualification obtained in the course of full time study of a registered course. He therefore could not satisfy item 880.230(2).

7. Mr Hu and Ms Ren have now applied to the Court to set aside the Tribunal's decision. They argue that the Tribunal was in error in thinking that the requirement that the assessed qualification should have been obtained in a registered course was applicable to its decision on this visa application. They argue that the amending regulation which introduced that requirement was given no effect in relation to a pending visa application, by reason of s.12(2) of the Legislative Instruments Act 2003 (Cth).

8. Section 12(1) provides that a legislative instrument, which includes a regulation, takes effect from a day specified in the instrument. However, the legal effectiveness of the specification of a date of effect in the instrument is “subject to (2)”. This provides:

   (2)A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

   (a)the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

   (b)liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

9. Section 12(3) says that the effect of both s.12(1) and (2) on a legislative instrument is subject to any contrary provision in the enabling legislation. However, it is common ground that there is no contrary provision relevant to the present amending regulation to be found in the Migration Act 1958 (Cth), in particular, in its provisions which authorised the making of the amending regulation, which inserted the item 880.230(2) requirement that the assessed qualification be obtained in a registered course.

10. The amending regulation was Migration Amendment Regulations 2006(No. 4) (Cth), being Select Legislative Instrument 2006 no. 159. This was made by the Governor-General on 22 June 2006, and I am informed from the bar table that it was registered on 26 June 2006.

11. The amendment to item 880.230 of Sch 2 of the Migration Regulations was found in Sch 2 Pt.2 Item [33] of the amending regulation. A transitional provision of the amending regulation provided in reg.4(3):

    (3)The amendments made by Part 2 of Schedule 2 apply in relation to an application for a visa:

    (a)made but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 July 2006; or

    (b)made on or after 1 July 2006.

12. Section 5(9) of the Migration Act 1958 (Cth) provides that “An application under this Act is finally determined” when either a decision that has been made in respect of the application is no longer subject to any form of review, or the period for an application for review has elapsed without an application being made.

13. In my opinion, it is clear that this transitional provision reveals an express intention that the change to the ‘time-of-decision’ criterion in 880.230 was intended to apply to all future decision making by the Minister or his delegate, when they addressed any undecided visa application for a subclass 880 visa. It also showed an intent that it should be applied by the Tribunal, when addressing an application for review in relation to such a visa application. The contrary was not submitted on behalf of the applicants in this case.

14. Given the absence of any ambiguity in the transitional provision of the amending regulation, the present case does not give rise to consideration of the principles of statutory construction, which presume against interference with accrued rights. No argument was presented to me which invoked the application of s.8 of the Acts Interpretation Act 1901 (Cth), as applied to regulations by s.13 of the Legislative Instruments Act 2003 (Cth), or of the equivalent common law principles of construction, in relation to the present legislative amendment.

15. The argument, which is relied upon by the present applicants, is that the Legislative Instruments Act2003 (Cth) in s.12(2) prevents this intent being given effect by decision makers, notwithstanding the expressed intention of the amending regulation to apply the changed criteria to outstanding visa and review applications.

16. It was strongly urged upon the Court that the application of the amended criterion in the present situation gave rise to a significant degree of hardship and unfairness to a student such as Mr Hu, who had studied in Australia in courses with the expectation of qualifying for permanent residence under a subclass 880 visa, and had undertaken that study and applied for a visa at a time when it was not a condition of the visa that all his qualifications were obtained in registered courses.

17. The degree of this hardship, and the strength of any public policy considerations justifying its infliction, are not matters for the Court to determine. Nor can the Court give a remedy to the applicants, if the intent of the amending regulation is clear, and if it is clear that s.12(2) of the Legislative Instruments Act has no application. Unfortunately, I have decided that both of these questions must be decided against the applicants.

18. As I have explained above, there is no ambiguity in the transitional provision which accompanied the amendment, allowing application of principles presuming against interference with accrued rights or expectations.

19. Turning to the language of s.12(2), it is clear that it raises two elements which must be satisfied before an instrument has no legal effect. One of them is that at the date of registration of the instrument there be in existence “rights of a person” which “would be affected so as to disadvantage that person” in terms of s.12(2)(a), or that the instrument would impose liabilities in respect of something done or omitted before that date in terms of s.12(2)(b). However, even if one of these situations can be found, there is also an added element found in the opening words of the s.12(2): "if, apart from this section, it would take effect before the date it is registered". In my opinion, it is clear from these words that it is not sufficient, for s.12(2) to apply, merely to show that the instrument will adversely affect the continuance or future enjoyment of a person's rights.

20. As to the meaning of the words "it would take effect before the date it is registered", the Minister relies upon a decision of Weinberg J in Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 254 at [66], as authority directly against the applicant's argument in the present case.

21. In that case, a decision-maker was required to address a time-of-decision criterion invoking a definition of a “remaining relative”. The definition had been substantially amended adversely to a visa applicant, after the making of an application for the visa. One of the arguments against the application of the new definition was that its legal effectiveness was precluded by then s.48(2) of the Acts Interpretation Act 1901 (Cth). That provision was in terms indistinguishable to the provisions of s.12(2), which I have set out above. Indeed, the legislative history of s.12(2) indicates that it is a direct translation of the previous provisions in the Acts Interpretation Act 1901 (Cth) into the Legislative Instruments Act 2003 (Cth), with some necessary modifications.

22. Weinberg J applied High Court authority in relation to a previous version of s.48(2) notwithstanding some changes in expression. In particular, in Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545, Layton CJ said at 568:

    A law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose at a past date liabilities which did not then exist.

    In relation to the change in visa criterion as a result of the amendment to the definition, Weinberg J at [66] accepted a submission that it did not “purport to” take effect before the date of notification.

23. Although Weinberg J's reasoning and his adoption of the previous High Court authorities was challenged in submissions before me, I am not persuaded that his Honour's reasoning was clearly wrong. Indeed, I would respectfully agree with, and follow, that reasoning. I consider that it should also be applied to the same language of s.12(2) of the Legislative Instruments Act 2003 (Cth).

24. In the present case, the present amending regulation did not purport to take effect before the date of its registration. It did not remove or alter any rights as they stood at a past date. It is clear from the terms of its transitional provision, that it was intended to operate only in relation to future decisions on visas which had not been granted, and without making any alteration to the past legal position of any visa applicant. For that reason, I consider that the present argument seeking to render ineffective the amendment which inserted item 880.230(2) must fail.

25. This conclusion means that I do not need to reach conclusions on whether at the date of registration of the amending regulation, the applicants had ‘rights’ within s.12(2)(a) of the Legislative Instruments Act 2003 (Cth) which were capable of being adversely affected within the intent of that provision. However, I note that submissions were presented to me on this issue, and I propose to make some observations on them.

26. Essentially, they turn upon the effect of s.65(1)(a)(ii) of the Migration Act 1958 (Cth), which imposes a duty on the Minister when addressing a valid visa application to consider whether he or she is satisfied that the “criteria for it prescribed by the regulations have been satisfied”. The applicants argue that this implies that the Minister had a duty to apply the criteria for the visa as they stood at the time of visa application, so that at the date of the amendment they at least had a ‘right’ to compel the Minister to address the former criteria, even if at the time of visa application they did not have an enforceable right to be granted the visas themselves.

27. I am not persuaded that this would be a correct construction of the Minister's duty under the Migration Act, or of the rights of a visa applicant. I am inclined to the view that, after application and before a decision is made, a visa applicant has no more than a right to compel the Minister to make a decision on whether he or she is satisfied as to the prescribed criteria which are relevantly in force at the time of decision. That is, that the Migration Act intends the regulations themselves to indicate the criteria which must be satisfied at the time of decision of any undecided or future visa application. It is then open to the Minister when making regulations, to specify whether a pending visa application must satisfy criteria as they in fact stand at the time of decision, or as they might have stood in earlier versions of the regulations. On that construction, it was open to the Minister to make an amending regulation which made clear that an amended time-of-decision criterion is applicable to decisions on outstanding visa applications. Where the legislative scheme authorised such an amendment, the applicants never acquired a right to compel the Minister to apply the previous criteria. They therefore would have no accrued rights as at the date of the amendment, which were “affected so as to disadvantage” them.

28. However, these are points which are not simple, and I do not find it necessary to decide in this case whether the amending regulation had any effect on an accrued right in relation to the making of a primary decision by the Minister on an outstanding visa application. Similarly, I do not need to address the significance of a change in criteria occurring after the making of a primary decision by the Minister, and while a matter is pending before a Tribunal - which was not, in any event, the situation in this case. However, I note that there is authority suggesting that, even if there are no accrued rights in relation to the criteria to be applied in a primary administrative decision, the bringing of an application for merits review may accrue a right to have the primary decision reviewed by reference to repealed or superseded law (see Lee v Secretary, Department of Social Secretary (1996) 68 FCR 491, applying Esber v Commonwealth (1992) 174 CLR 430, but note some uncertainty about that authority: Re Ross; Ex parte ALHMWU (2001) 108 FCR 399 at [44]-[68], Hicks v Aboriginal Legal Service (2001) 108 FCR 589 at [51]-[61], and Attorney-General for Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 at [49], [128]).

29. As I have explained, I prefer to rest my decision on my opinion that the present amending regulation did not “take effect before the date that it is registered”, rather than by deciding that at the date of registration the applicants did not have any “rights” which were capable of protection by s.12(2) of the Legislative Instruments Act.

30. Since I do not accept the submissions made by the applicants that the Tribunal's decision was affected by a misapprehension as to the law to be applied by it when deciding the present matter, I must dismiss the application.

[Recorded, but not transcribed]

1. In relation to costs, the applicants’ counsel submits that their application raised a new and important point, concerning the effects of s.12(2) in relation to changes to criteria prescribed under the Migration Act 1958 (Cth) which occur after the time of visa application. He also implicitly refers to the elements of hardship which affected the present applicants, as a result of the amendment to the regulations after Mr Hu had completed his study as a pastry cook and applied for a residence visa. He, therefore, submits that there should be no order as to costs arising from the failure of the application.

2. These arguments have some attraction. The applicants’ case was well presented, and raised points which were arguable and had some novelty, in the sense that neither counsel was able to find authority directly on point as to the effect of s.12(2) of the Legislative Instruments Act. However, it is not uncommon in migration litigation that no previous authority can be found, and that the Court must decide new points. Nor is it uncommon, that migration legislation may cause hardship in particular cases brought before the Court.

3. In the present case, I am not persuaded that the considerations which normally lead to costs following the event should not apply. There may be good reasons for the Minister to consider whether those costs should be pursued, but I do not consider that they should cause the Court to depart from the usual costs order.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  17 October 2007