Kaur v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 230

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 230

MIGRATION – BN subclass 136 visa - nominated occupation on Migration Occupations in Demand list at time of application but not at time of decision – visa refused - construction of item 6A72 of Schedule 6A of the Migration Regulations 1994 – whether criterion to be satisfied at time of decision is whether occupation nominated in application was then a migration occupation in demand

STATUTORY INTERPRETATION – item 6A72 of Schedule 6A of the Migration Regulations 1994

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 93, 94(1) and (2), Part 8
Migration Regulations 1994, Part 136 Schedule 6A: Reg 2.26A, Clause 136.22 of Schedule 2

Aomatsu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1544 not followed
Craig v The State of South Australia (1995) 184 CLR 163 cited

SHINDER JIT KAUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No Q 159 of 2004

SPENDER J
14 MARCH 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 159 OF 2004

BETWEEN:	SHINDER JIT KAUR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	14 MARCH 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

(1)The decision of the delegate of the Minister made on 10 September 2003 be set aside. 

(2)The matter be remitted to the respondent for consideration according to law.

(3)The respondent pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 159 OF 2004

BETWEEN:	SHINDER JIT KAUR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	14 MARCH 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application made under s 39B of the Judiciary Act 1903 (Cth) and Part 8 of the Migration Act 1958 (Cth) (“the Migration Act”) in which the applicant seeks to challenge the decision by a delegate of the respondent (“the Minister”) that she was not entitled to a visa Class BN, subclass 136, Skilled Independent. The basis of the challenge is that the delegate failed properly to exercise the jurisdiction conferred on her pursuant to the Migration Act.

2. Part 136 of the Migration Regulations (“the Regulations”) sets out the criteria to be met for the grant of a subclass 136 visa. Clauses 136.2 and 136.3 of the Regulations require that an applicant for a Class BN Skilled Independent visa have the necessary qualifying score when assessed under Subdivision B of Division 3 of Part 2 of the Migration Act (“the points test”). Under the points test, the delegate of the Minister allocated 110 points to the applicant and, pursuant to the Regulations, the pass mark was 115 points.

3. The decision maker gave no points in respect of the criterion “Occupation in Demand”.  The letter notifying the decision said in respect of this criterion ‘Claimed but not allowable at date application filed’.  If points were properly allowable for this criterion, the applicant would have been entitled to a visa.  The decision maker’s decision as to whether or not the applicant fulfilled that criterion was thus crucial to the refusal decision. 

4. The contention of the applicant is that the decision maker misunderstood the requirements of item 6A72 of Schedule 6A of the Regulations, and thus misapplied a significant factor going to the grant of a visa. I am satisfied that if such error is established, it constitutes jurisdictional error within the description set out in Craig v The State of South Australia (1995) 184 CLR 163.

5. The relevant points system is to be found in Schedule 6A of the Regulations: Reg 2.26A, and s 93(1) of the Migration Act. Section 93 of the Migration Act provides:

   ‘Determination of applicant’s score

   (1)The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.

   (2)In this section:

   prescribed means prescribed by regulations in force at the time the assessment is made.’

6. The issue upon which this present application depends is the proper construction of the criterion in respect of the points to be allocated for “Occupation in Demand”. That criterion, central to this case, is item 6A72 of Schedule 6A of the Regulations, which provided:

   ‘

Column 1 Item	Column 2 Qualification	Column 3 Number of points
6A72	The applicant has nominated a migration occupation in demand in her application	10’

1. The term “migration occupation in demand” is defined in Reg 1.03 as:

   ‘migration occupation in demand means a skilled occupation that is specified by Gazette Notice as a migration occupation in demand.’

2. The question of the proper interpretation of item 6A72 arises in the following circumstances.

3. The applicant lodged her application for a subclass 136 Skilled Independent visa on 16 October 2002, nominating her occupation as “accountant”.  The Migration Occupations in Demand list, which was in operation at the time of her application, was that specified in Special Gazette Notice 363 of 2 October 2002 – Specification of migration occupations in demand for the purposes of regulation 1.03(1).  That list included “accountants”.

4. On 12 March 2003 Gazette Notice 10 was published which revoked the Gazette signed on 25 September 2002.  That later Gazette omitted “accountant” as an occupation in demand.  It was that Gazette which was in force at the time of the decision on 10 September 2003.  In Gazette Notice 36 signed on 31 August 2004, the occupation of “accountant” again was included in the list of the Migration Occupations in Demand. 

5. The decision of the delegate in this case proceeded on the basis that the occupation nominated by the applicant in her application had to be in the list of Migration Occupations in Demand applicable at the time of the decision; it was not satisfied if the nominated occupation was on the Migration Occupations in Demand list in operation at the time of the application but was no longer on the list at the date of decision. 

6. Justice Selway in Aomatsu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1544, an extempore decision of 27 October 2004, concluded that the relevant Migration Occupations in Demand list was that at the time of decision, and not that at the time of application. An appeal has been filed from that decision, but has not yet been argued.

7. Selway J said at par 5:

   ‘The applicant says that the clear words and understanding of those words [of item 6A72] is that the relevant nomination is to be understood as at the date the application is lodged.  I do not read those words that way.  It seems to me those words leave open the question of what the date of assessment of the ‘migration occupation in demand’ should be.’

   And at par 12 said:

   ‘Putting all those matters together, in my view it is clear that the Act contemplates that the criteria to be applied in calculating the relevant entitlements, at least in relation to the criteria specified in par 136.22, are the criteria in existence at the time of assessment, not at the date of application (contrast par 136.21 of Sch 2 of the Migration Regulations).’

8. While any judgment of Selway J is entitled to the greatest of respect, I am regretfully of the clear view that item 6A72 of Schedule 6A of the Regulations, on its proper interpretation, directs enquiry to the question of whether, at the time of his or her application, the migration occupation in demand nominated by the applicant in that application is a migration occupation in demand at that time. The fact is the criterion in existence at the time of assessment is the same criterion at the date of the application.

9. I respectfully agree, as the provisions of s 93 of the Migration Act earlier set out demand, that the assessment of the prescribed number of points is the assessment which is prescribed by the Regulations in force at the time the assessment is made. The prescribed regulation in the present case requires, at the time of the assessment, a determination of whether ‘the applicant has nominated a migration occupation in demand in her application’.   The regulations did not change that criterion between the time of application and the time of assessment.

10. I also respectfully agree with Selway J’s observations about s 93 and subss 94(1) and (2) that:

    ‘Those provisions do not seem to direct attention to the regulations but to the time of assessment of the score.  They seem to me to give rise to an implication, at the least, that the calculation is to be made as at the date of assessment.  That view would seem to be confirmed, at least to a degree, by the provisions of s 350(2) of the Act.’

    It therefore follows that the criteria to be satisfied has to be determined as at the date of the assessment. 

11. The criterion, however, is not whether at the time of the determination of the application the occupation which the applicant nominated in her application is then a migration occupation in demand; the criterion is that which is specified in the very words of item 6A72: whether the applicant has nominated a migration occupation in demand in her application. 

12. The words in item 6A72 are in the past tense.  This indicates that the proper test is whether the occupation nominated by the applicant in her application was a migration occupation in demand.  In my opinion, this means that, in determining the question of satisfaction of that criterion at the time of the decision, the decision maker is directed to the application and is required to identify what occupation was nominated by the applicant in that application, and whether her nomination was then a migration occupation in demand.  The contrary view seems to me to require item 6A72 to read ‘the applicant’s skilled occupation is specified by gazette notice as a migration occupation in demand.’

13. The contrary view seems to me to produce capricious, unpredictable and random  outcomes.  If the requirement is that the occupation be on the Migration Occupations in Demand list which is in operation at the time of decision, if the decision on the applicant’s application had been made before 12 March 2003 she would have been successful.  If it had been made between the period of 12 March 2003 (after which the occupation “accountant” was removed from the list) and before 8 September 2004 (when the occupation of “accountant” was again restored to the list), she would have been unsuccessful.  If the decision had been made after 8 September 2004, when accountants had again been restored to the list, she would have been successful.  The position, shortly, is that one could never know, at the time one applied for a subclass 136 visa, whether one met the criteria relevant for the grant of such a visa.

14. To give an illustration of the perversity that would flow from the adoption of the reasoning of the decision maker in the present case, “accountants” were included in the Migration Occupations in Demand list that was in effect at the date of the applicant’s application, but “occupational therapists” were not on that list.  On the Migration Occupations in Demand list that was in effect at the date of decision in the applicant’s case, namely 10 September 2003, “accountants” had been removed from the list but “occupational therapists” had been included in it.  An accountant such as the applicant, it would seem, would have to anticipate the possibility that between the time of her application and the time a decision was made in respect of it, the occupation of “accountant” might be removed from the Migration Occupations in Demand list, and suffer the consequence, so it is said, that she was not then entitled to the points which are allocated in satisfaction of item 6A72.

15. Conversely, a person who was an occupational therapist might apply, nominating “occupational therapist” as her migration occupation in demand occupation at the date of an application on 16 October 2002, even though at that time occupational therapists were not on the Migration Occupations in Demand list.  Yet, because she was sufficiently prescient to know that that list would be repealed and replaced by a list which included “occupational therapists”, and trusting that a decision on her case would not be made before such repeal and replacement, namely 8 September 2004, (or indeed at any time after 12 March 2003), she would satisfy the criterion item 6A72, and would be rewarded with ten points for her extraordinary prescience. 

16. In my respectful opinion, the conclusion of Selway J may have been clouded by an application made to his Honour based on the contention that the applicant had an “accrued right” to have a visa application determined in accordance with the law as at 16 October 2002, the date of her application. The submission based on “accrued rights” is a clear distraction. Section 93 makes plain that the assessment is to be made of the prescribed qualifications, which means the qualifications prescribed by the regulations in force at the time the assessment is made. There was no change in the regulations between the time of application and the time of decision in the present case. Nor was there any change in the description of the criterion item 6A72.

17. The conclusion that item 6A72 requires an applicant to have nominated in her application an occupation that was on the Migration Occupations in Demand list at the time of her application has a practicality and certainty in its approach. Applicants on that construction would know in advance whether their application satisfies the points test required by Part 136 of the Regulations.

18. There is no inconsistency between criteria that is required to be satisfied at the time of the decision and a particular criterion directing attention to the position at the time of the application. 

19. Other items in Schedule 6A refer the decision maker to the situation at the time of the application.

20. Clause 136.22 of Schedule 2 of the Regulations expressly provides for ‘the criteria to be satisfied at time of decision’.  I accept that this requires an applicant to have the qualifying score at the time of decision, and not at the time of lodging the application.  The crucial question is, however, what is the criterion that has to be satisfied at the time of decision. That criterion, in its terms, is whether the applicant has nominated a migration occupation in demand in her application.  This focuses on the occupation which was nominated by the applicant in her application, and whether that nomination was of an occupation which was a migration occupation in demand.  In my view, that directs attention to the Migration Occupations in Demand list at the time of her application.

21. Clause 136.22 of Schedule 2 dealing with subclass 136 visas is headed “Criteria to be satisfied at the time of decision”. Paragraph 136.223A in that clause provides:

    ‘(1)   The applicant has been employed in a skilled occupation:

    (a)if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application – for at least 12 months in the 18 months immediately before the day when the application was made; or

    (b)if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application – for at least 24 months in the 36 months immediately before the day when the application was made.’

22. In my opinion, the decision maker in the present case misapplied the statutory requirements for the grant of a subclass 136 visa. 

23. For the above reasons I make the following orders:

    (4)The decision of the delegate of the Minister made on 10 September 2003 is set aside. 

    (5)The matter is remitted to the respondent for consideration according to law.

    (6)The respondent is to pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate:

Dated:            14 March 2005

Counsel for the Applicant:	Mr Lorenzo Boccabella
Solicitor for the Applicant:	Clifford Lawyers & Migration Agents
Counsel for the Respondent:	Mr Scott McLeod
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 February 2005
Date of Judgment:	14 March 2005