Ndungu v Minister for Immigration & Anor
[2007] FMCA 217
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NDUNGU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 217 |
| MIGRATION – Application to review decision of Migration Review Tribunal – jurisdictional error. |
| Migration Act 1958, (Cth) ss.93, 350, 357A, 359A, 368, 474, 476 Migration Regulations 1994, (Cth) reg 2.27C, Schedule 2 Clause 880.222A, Schedule 6A Items 6A, 41, 42 and 81(b) |
| Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166; [2002] FCA 24 Jiang v Minister for Immigration & Citizenship [2007] FCA 907 Minister for Immigration and Ethnic Affairs v Petrovski (1997) 154 ALR 606 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | PETER MBUGUA NDUNGU |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File number: | PEG 188 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 14 November 2006 |
| Date of last submission: | 30 January 2007 |
| Delivered at: | Perth |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Lindsay |
| Solicitors for the Applicant: | Friedman Lurie Singh & D’Angelo |
| Counsel for the Respondent: | Mr J D Allanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.
That the application be dismissed.
That the Applicant pay the Respondents’ costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 188 OF 2006
| PETER MBUGUA NDUNGU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application dated 25 July 2006 under s.476 of the Migration Act 1958, (Cth) (“Migration Act”) concerning a decision made by the Migration Review Tribunal (“the Tribunal”) on 31 June 2006 and notified to the Applicant on 7 July 2006.
2.Pursuant to orders of the Court made by consent on 16 August 2006, the Applicant (Peter Mbugua Ndungu), filed an amended application (“the Application”) on 27 September 2006. The Application made under s.368 of the Migration Act is as follows:
“1.1 The Tribunal found:
a) the visa Applicant held a class WA, sub-class 010 visa (not a substantive visa) from 3 June 2002 to 18 August 2002, and that clause 880.222A and regulation 2.27C allowed only work experience on substantive visas to be counted and so the applicant’s employment during this time could not be taken into account when calculating his period of employment in Australia for the purposes of Item 6A 81(b) of Schedule 6A of the Migration Regulations (“the Regulations”) (Reasons paragraphs 39 and 52);
b) no changes were made to Item 6A 81(b) and “it only refers to being employed in Australia in a skilled occupation whilst the Applicant held a substantive visa authorising him or her to work and accordingly since the class WA, sub-class 010 visa (the bridging visa) is not a substantive visa the applicant could not count the above periods towards his employment period (Reasons paragraph 53).
1.2The Tribunal erred in law in deciding it could not take account of the employment period referred to in paragraph 1.1 because Item 6A 81(b) refers to a requirement that the visa be a “substantive visa” in that:
a) Item 6A 81(b) was amended by SLI 2006 No 159 Schedule 2 at [39] to omit the requirement that the visa be a “substantive” visa for visa holders authorised to work where visas were lodged but not finally determined before 1 July 2006 such as the applicant;
b) Regulation 2.27C of the Regulations was introduced on 1 November 2005 to allow a period of employment to be counted in relation to a subclass 010 bridging A visa holder who was authorised to work;
c) Section 350(1) of the Act states that, in reviewing an assessment of the Minister under s.93 of the Act, the regulations for the purpose of the section which apply are the regulations more favourable to the applicant, as between the regulations in force at the time of assessment by the Minister and those in force at the time of the decision of the Tribunal. The decision of the Tribunal was made after Regulation 2.27C came into force on 1 November 2005, under which regulation employment under a bridging visa counted towards the employment period and to the extent that regulation 2.27C purported to apply only to visa applications after 1 November 2005 was invalid being contrary to ss.93 and 350 of its enabling Act;
d) accordingly the Tribunal ought to have taken into account the evidence of work undertaken by the applicant during the period of the bridging visa, presented by letter and schedule to the Tribunal in March 2006 such work aggregated with other work, referred to by the Tribunal, exceeding 6 months of skilled occupation work thereby entitling the applicant to 5 additional points.
1.3Further or alternatively even if the amended clause 880.222A and regulation 2.27C only to apply to visa applications lodged after 1 November 2005 (see Tribunal Reasons paragraph 39) (contrary to the applicant’s submissions) the Tribunal erred in:
a) failing to appreciate item 6A 8(b) was amended so as to permit a person in the applicant’s circumstances to count the employment period (as stated in 1.2( a));
b) clause 880.222A and Regulation 2.27C are repugnant to item 6A 81(b) as it is a special provision and so prevails over regulation 880.222A and regulation 2.27C being regulations of general application.
1.4The Tribunal’s errors referred to in paragraph 1.2 and 1.3 above constituted jurisdictional error in that the Tribunal misdirected itself in the law; ignored relevant considerations; and asked itself the wrong question.
2.1On the 7th May 2002 the Applicant lodged a UQ 497 Visa application (being a substantive visa application) with DIMIA which may be granted as operative for a maximum period of six months.
Because DIMIA had not processed the UQ 497 application by the date of the expiry of the applicant’s student visa on 31 May 2002 (to which work rights already applied) DIMIA granted the applicant a Class WA, Subclass 010 Bridging A Visa (the Bridging Visa)( to which work rights applied) until the formal grant of the UQ497 substantive visa (the 497 Visa) on the 19th August 2002, which 497 visa continued in operation with work rights until it ceased on the 22nd November 2002 six months after the completion of the applicant’s diploma.
2.2Accordingly, during the period of the 3rd June 2002 to 18th August 2002, which the delegate and Tribunal declined to count towards the employment period for purposes of both items 6A 81(b) and items 6A 42, the applicant would have been authorised to work by virtue of the 497 visa, which he had previously lodged, and which DIMIA had not processed by the expiry date of his student visa on the 31st May 2002.
2.3By reason of the matters referred to in 2.1 and 2.2 DIMIA, through its delegate, is estopped by its conduct (in failing to process the applicant’s 497 Visa before the bridging visa came into effect) from now asserting that the employment period from the 3rd June 2002 to 18th August 2002 ought not be taken into account in assessing the applicant’s points.
2.4Alternatively to 2.3, the period from the 3rd June 2002 to the 18th August 2002 ought to be taken into account for the purposes of assessing the applicant’s points on the basis that the applicant had been constructively granted the 497 visa for a period of six months running from the award of his post graduate diploma on the 22nd May 2002 until the 22nd November 2002 when the 497 visa formally ceased.
2.5By reason of the Tribunal having failed to give consideration to the matters referred to in 2.1, 2.2, 2.3 and 2.4 and/or by misapplying the law thereto the Tribunal committed jurisdictional error.
3.1The Tribunal found that the applicant was not entitled to any points in relation to Items 6A 41 or 6A 42 of Schedule 6A (Part 4 – Employment experience qualifications) because:
a) the applicant was not employed for a total of at least 36 months in the 48 months immediately before the day on which his application was made (Reasons para 40);
b) the applicant could not rely upon the amendments to clause 880.22A and Regulation 2.27C as the amendments only apply in relation to an application for a visa made on or after 1 November 2005 and the applicant applied for a visa prior to that date (Reasons para 41).
3.2The Tribunal erred in relation to the matters referred to in paragraph 3.1(a) in failing to take into consideration skilled employment in Australia and Kenya during the total period in the preceding 48 months before 24 October 2002 (when the applicant lodged his application for a visa), which total period showed that the applicant was relevantly employed for more than 36 months.
3.3The Tribunal erred in relation to 3.1(b) above in that item 6A 42 applied to the applicant for the reasons mutatis mutandis referred to in grounds 1.2(a)-(d) and 1.3 above.
3.4The Tribunal’s errors in relation to paragraph 3.2 and 3.3 constitute jurisdictional error in that the Tribunal misdirected itself in law; ignored relevant considerations; and asked itself the wrong questions.”
(Transcribed from the Application without amendment).
Application at hearing to further amend the Application
3.Given the manner in which the argument developed, and the subsequent argument concerning the effect of a subsequent High Court judgment (referred to below) the Court has determined that the Applicant ought be granted leave to amend the Application in the manner outlined at hearing.[1]
[1] Transcript, p.3.
Orders sought by the Applicant
4.The Applicant seeks the following orders:
“1.An order in the nature of certiorari to quash the decision of the Tribunal.
2.An order that the matter be referred back to a separately constituted Tribunal for hearing afresh in accordance with the directions of this Honourable Court.
3. The first respondent pay the applicant’s costs.
4. Such further or other orders as the Court thinks fit.”
Hearings & submissions
5.Following procedural orders made on 16 August 2006 both parties in this matter filed outlines of submissions, and the matter was heard on 14 November 2006. Following the hearing, and before judgment could be delivered, Counsel for the Respondent wrote to the Court indicating that the Respondent wish to make further submissions as a consequence of the handing down of the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs.[2] Following a directions hearing on 16 January 2007 both parties filed further submissions in relation to SZBEL, the final submissions being received from the Respondent on 30 January 2007.
[2] [2006] HCA 63 (“SZBEL”)
Evidence
6.In addition to the Case Book (“CB”) affidavits were tendered and read by the Applicant as follows:
a)Sworn 25 July 2006 (“First Affidavit”);
b)Sworn 16 October 2006 (“Second Affidavit”); and
c)Sworn 13 November 2006 (“Third Affidavit”).
7.The Second Affidavit was tendered and read on the basis that the final sentence of paragraph 3 of that Affidavit was struck out (the application to strike it out by the Respondent was not opposed by the Applicant).
Relevant Facts
8.The Applicant was born in Nyandarua, Central Province, in Kenya on 18 February 1968.[3]
[3] CB 69.
9.The Applicant was admitted to the degree of Bachelor of Science (Mechanical Engineering) Second Class Honours (Lower Division) from the University of Nairobi on 8 September 1992.[4]
[4] CB 42.
10.The Applicant worked in Kenya as follows:
a)as an Assistant Engineer (Mechanical) with the Ministry of Public Works from November 1992 to May 1995;[5]
b)from 5 June 1995 to 31 January 2001 as a Field Service Engineer with General Motors Kenya Limited[6]; and
c)from 1 February 2001 to 26 July 2001 in “work for remuneration of a skilled kind” on the Applicant’s father’s farm.[7]
[5] CB 112 and 270-273.
[6] CB 112-114.
[7] First Affidavit, para 8.
11.
On 7 June 2001 the Applicant was extended an offer for studies in the Post Graduate Diploma in Electronic Commerce (“the Post Graduate Diploma”), jointly conducted by Murdoch University and Alexander Institute of Technology, commencing on
27 August 2001 and ending on 19 April 2002.[8]
[8] CB 60.
12.On 8 August 2001 the Applicant was granted a Class TU-560 visa subject to visa conditions 8101 (no work), 8202 (meet course requirements) and 8206 (no change of provider) for a period of stay until 31 May 2002.[9]
[9] CB 224.
13.The Applicant arrived in Australia on 18 August 2001.[10]
[10] CB 220.
14.On 24 August 2001 the Applicant was granted a Class TU-574 visa subject to conditions 8105 and 8206 and condition 8533 (to inform provider of address) for a period of stay until 31 May 2002.[11]
[11] CB 223.
15.It appears that the Applicant commenced the Post Graduate Diploma on 27 August 2001.[12]
[12] CB 61.
16.Between December 2001 and July 2002 the Applicant was variously employed as follows:
a)from 10-14 December 2001 by Dazebel Pty Ltd in Manjimup in the south west of Western Australia;
b)from 15 December 2001 to 28 January 2002 by the Casurina Valley Orchard;
c)from 2 -10 May 2002 by JC & LW Ryan & Sons in Manjimup;
d)on 10 May 2002 by TH & LM Lambert in Manjimup;
e)also on 10 May 2002 by RH & LM Rose & Sons (presumably in Manjimup);
f)on 1 June 2002 by L Pessotto & Sons;
g)from 2-8 June 2002 by Twin Dridge Pty Ltd;
h)also from 2-8 June 2002 by E & L Ipsen Family Trust;
i)from 10-30 June 2002 by GM Borshoff;
j)from 5-18 July 2002 by Midranch Holdings Pty Ltd;
k)on 10 July 2002 by E J & L A Ipsen in Manjimup;
l)on 12 July 2002 by G & K Nicolaou & Sons in Manjimup;
m)on 14 July 2002 by DSE Holdings Pty Ltd;
n)on 19 July 2002 by Ejopo Liddelow;
o)from 2 May 2002 to 25 July 2002 by Tobacco Park of Manjimup (in between the preceding employment, or “between jobs” as the Applicant expresses it);
p)from 26 July 2002 to 29 August 2002 by Rosehill Horticultural Pty Ltd; and
q)from 23 September 2002 to 28 March 2006 by David Gray & Co Pty Ltd in O’Connor (a southern suburb of Perth).[13]
[13] CB 152 and 309.
17.The Applicant asserts that his employment as a horticultural worker by various farmers in Manjimup in 2001 and 2002, comprising pruning, thinning and planting and harvesting, is closely related to general gardener occupation, ASCO Code 4623-11.[14] His employment by David Gray & Co is said by the Applicant to have been initially as a factory general hand/process worker, with a later promotion to an Assistant Product Maker. The Applicant asserts that this work is closely related to Trades Person and Related Workers (not elsewhere classified), ASCO Code 4999-79.[15]
[14] The Applicant also says that his work for Tobacco Park included landscaping, drainage construction, bricklaying, planting trees and taking care of lawns and gardens.
[15] CB 309.
18.On 7 May 2002 the Applicant lodged an application for a class UQ-497 visa.[16]
[16] CB 1-14 and 52-55.
19.On 8 May 2002 the Applicant was advised by The Institution of Engineers, Australia that his qualifications from the University of Nairobi, together with his demonstrated competencies, had been assessed as meeting current academic requirements for standing as a Professional Engineer in Australia. The Applicant is advised further by the Institution that the appropriate occupational classification for migration purposes is Mechanical Engineer ASCO 2126-11.[17]
[17] CB 62.
20.On 16 May 2002 the Department of Immigration & Multicultural Affairs (“the Department”) advised the Applicant that processing of his application for a Class UQ-497 visa might take up to six months.[18]
[18] CB 52-53.
21.On 22 May 2002 the Applicant completed the Post Graduate Diploma.[19]
[19] CB 19 and 58.
22.On 31 May 2002 the Applicant’s Class TU-574 visa expired.[20]
[20] CB 223.
23.On 3 June 2002 the Applicant commenced a Class WA-010 visa with condition 8501 (health cover): CB 220. That visa ceased on 19 August 2002.[21]
[21] CB 220.
24.
On 19 or 20 August 2002 the Applicant was granted a Class UQ-497 visa with condition 8501 (health cover), effective until
22 November 2002.[22]
[22] CB 222. See also CB 66-67.
25.On 19 September 2002 the Applicant made an application for general skilled migration to Australia.[23]
[23] CB 68-69.
26.On 24 October 2002 the Applicant applied for a class DD880 visa (Skilled Independent Overseas Student Resident), and was granted a Bridging A visa to permit him to remain lawfully in Australia while the Class DD 880 visa was decided, the Bridging A visa to come into effect only upon the expiry of any other current substantive visa.[24]
[24] CB 96-100.
27.On 22 November 2002 the Applicant’s UQ-497 visa expired.[25]
[25] CB 222.
28.On 14 July 2003 the Department wrote to the Applicant concerning his application for a Class DD-880 visa. The following extracts from that letter are relevant:
“In your application form … you have factored into your point allocation ten points for specific work experience. In order to claim ten points for specific work experience applicants must demonstrate that they have been employed in their nominated skilled occupation, or a closely related skilled occupation, for at least 3 of the 4 years immediately before they applied. Work experience documents recently provided by you demonstrate that you have been employed for only 27 months of the four years before the date on which you applied. Therefore you are not eligible for specific work experience points.
You now have the opportunity to make a submission to claim Bonus Points in ONE of the following categories (as per Part 3 of General Skilled Migration Booklet):
…
Work Experience
In order to claim 5 bonus points for Work Experience you must have been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising you to work.”[26]
The Applicant was advised that pursuant to Migration Regulations a response was required by 18 August 2003.[27]
[26] CB 119.
[27] CB 120.
29.On 8 August 2003 the Applicant was granted a Bridging B visa to replace his Bridging A visa.[28] The Bridging B visa replaced the Bridging A visa with effect from 24 October 2002, the date of the grant of the Bridging A visa.[29]
[28] CB 131-132.
[29] CB 131.
30.On 14 August 2003 the Applicant wrote to the Department (responding to the Department’s letter of 14 July 2003) and indicated that he was not able to claim bonus points from either work experience in Australia or community language, but that he was still pursuing the matter of bonus points for investment. He also indicated that he was actively pursuing suitable employment opportunities relating to his nominated occupation through the Regional Sponsored Migration Scheme and the Employer Nomination Scheme. The Applicant sought an extension of time until 15 December 2003 in which to provide the Department with a final response.[30]
[30] CB 133-134.
31.
On 28 May 2004 the Applicant’s employer, David Gray & Co Pty Ltd wrote a “To Whom It May Concern” letter certifying that the Applicant “was employed by David Gray & Co Pty Ltd on
23 September 2002 as a general hand on job training. He was promoted to Assistant Product Maker on 7 November 2003 a position he currently holds”.[31]
[31] CB 174.
32.On 4 June 2004 the Applicant wrote to an officer of the Department setting out his Australian work experience.[32]
[32] CB 152. That experience, and the comments of the Applicant upon it, are set out above at paras 16-17.
33.On 15 July 2004 the Department wrote to the Applicant seeking copies of various documents. The letter then went on as follows:
“Please note that to claim points for Australian Work Experience you must have been employed in a skilled occupation listed in form 1121i for a period totalling at least 6 months in the 48 months immediately before the day on which you lodged your application. That period is 24/10/00 – 24/10/02. If you can not submit all of the information requested above to support your claim you will not be awarded these points.”
34.On 27 July 2004 the Applicant wrote to the Department by email indicating that he did not intend to pursue the claim for points for Australian Work Experience. He went on to say:
“My request to be considered for the SIR visa is based on the information provided on your department website. It states that those who have already lodged their applications and score 110 points on GSM are not required to complete a new application form and/or resend any supporting documentation already submitted. They will pay a reduced visa application charge.”[33]
[33] CB 190.
35.Various other correspondence followed this email but the substantive position, expressed by the Applicant in the email of 27 July 2004 did not change.[34]
[34] CB 191-204.
36.On 8 June 2005 the Department wrote to the Applicant advising him that his application for a class DD-880 visa had been refused and that he had not been granted permanent residency.[35] The decision of the delegate of the First Respondent in relation to the application was attached to the Department’s letter of 8 June 2005 (“Delegates Decision”).
[35] CB 205-206.
37.On 4 July 2005 the Applicant lodged an application with the Tribunal for review of the Delegates Decision.[36] The Applicant submitted that the Delegate’s Decision was incorrect because:
“I was employed in my nominated occupation for almost 9 years. I was not awarded points and decision maker did not consider the weight of my specific work experience in the nominated occupation.”[37]
[36] CB 210-215.
[37] CB 214.
38.On 24 November 2005 the Tribunal wrote to the Applicant and, under s.359A of the Migration Act, invited him to comment on particular information, as follows:
“Departmental records which indicate that during the relevant period for the purposes of Part 4 of Schedule 6A (Work Experience), that is, 23 October 1998 to 23 October 2002, you held a Class WA, Subclass 010 visa from 3 June 2002 to 18 August 2002.
The significance of the above information is that any employment during the period in which you held the Subclass 010 visa cannot be taken into consideration in calculating your employment in a skilled occupation or skilled occupation as a subclass 010 visa is not a substantive visa (clause 880.222A and regulation 2.27C refers).
Information that your total period of employment that can be considered (excluding any claimed employment from 3 June 2002 to 18 August 2002) during the relevant period of 23 October 1998 to 23 October 2002 amounts to less than the required 36 months.
The above information is relevant to the review, because if true, the Tribunal may find that you do not have at least 36 months employment in a skilled occupation or skilled occupations during the relevant period of 23 October 1998 to 23 October 2002. The Tribunal would therefore find that you are not entitled to any points for Part 4 of Schedule 6A.”[38]
[38] CB 265-266.
39.On 16 December 2005 the Applicant wrote to the Tribunal in the following terms:
“In relation to work experience for the purpose of Part 4 of schedule 6A, it is true that I held a bridging Visa A from 3 June 2002 to 18 August 2002 while my visa class UQ, subclass 497 was being processed. However, when the decision to grant class UQ was made on 20 August 2002, the visa was backdated to cover the said period. Enclosed is letter from DIMIA folio f8. The UQ 497, which is supposed to be a six months visa, thus expired on 22 November 2002. I can therefore claim that I was on a substantive visa from 3 June to 18 August 2002.
Further to this, the current legislation and policy changes relating to General Skilled Migration amended on 1 November 2005 states:
Applicants can now count skilled work experience gained in Australia while holding a Bridging visa A or Bridging visa B.
In view of this, I would like to claim points for work experience gained while I was holder of bridging visa. I am currently reviewing my work experience documents and intend to send them by the 2nd week of January 2006.”[39]
[39] CB 267-268.
40.The Department’s letter of 20 August 2002 advising of the decision to grant a class UQ-497 visa does not indicate that the visa is backdated, but rather that it permits the Applicant to travel to, enter and remain in Australia until 22 November 2002.[40]
[40] CB 66-67 and 278-279.
41.
On 4 January 2006 the Applicant was invited to appear before the Tribunal on 20 February 2006.[41] A hearing was held on
20 February 2006. [42]
[41] CB 280-281.
[42] CB 284.
42.On 21 February 2006 the Tribunal wrote to the Applicant inviting the Applicant to comment in writing, under s.359A of the Migration Act on the following information:
“Departmental records which indicate that during the relevant period for the purposes of Part 8 of Schedule 6A (Bonus Points Qualification), that is, 23 October 1998 to 23 October 2002, you held a Class WA, Subclass 010 visa from 3 June 2002 to 18 August 2002.
The significance of the above information is that any employment during the period in which you held the Subclass 010 visa cannot be taken into consideration in calculating your employment in a skilled occupation or skilled occupations, as a subclass 010 visa is not a substantive visa.
Information that your total period of employment in Australia that can be considered (excluding any claimed employment from 3 June 2002 to 18 August 2002) during the relevant period of 23 October 1998 to 23 October 2002 amounts to less than the required 6 months.
The above information is relevant to the review, because if true, it indicates you have not been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months during the relevant period of 23 October 1998 to 23 October 2002. Item 6A81(b) states that an applicant for a Skilled Independent Overseas Student (Residence)(Class DD) visa is entitled to 5 points if the applicant: has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work. The Tribunal would therefore find that you are not entitled to any points for Part 8 of Schedule 6A.
At the hearing on 20 February 2006, you referred to information from the Department’s website, which indicted that applicants could now count skilled work experience gained in Australia while holding a Bridging visa A or Bridging visa B. Changes to clause 880.222A and regulation 2.27C were introduced from 1 November 2005 to this effect. However, no changes were made to Item 6A81(b) and it only refers to being employed in Australia in a skilled occupation whilst the applicant held a substantive visa authorising him or her to work.[43]
[43] CB 286-287.
43.On 22 February 2006 the Applicant wrote to the Tribunal in the following terms:
“Following the Tribunal hearing on 20 February 2006, I am submitting the following documents from my current employer:
. Letter of my current employment and job description
. Last financial year Group certificate
. Notice of Tax Assessment
The purpose is to claim bonus points for the Australian work experience as per the recent legislation and policy changes relating to General Skilled Migration amended on 1 November 2005, which states:
Applicants can now count skilled work experience gained in Australia while holding a Bridging visa A or Bridging visa B.
Any periods of work undertaken in Australia while you are on a bridging visa can be counted if you are permitted to work on your bridging visa
I am employed as a Product Formulator/plant operator, the duties and responsibilities have some common characteristics with the
. Unit group 2126 Mechanical, Production and Plant engineers
. Maintenance Fitter ASCO code 4112-11”.[44]
[44] CB 289.
44.
It is apparent that the Applicant’s 22 February 2006 letter was not intended to be a response to the Tribunal’s s.359A letter of
21 February 2006. [45]
[45] CB 294.
45.On 24 February 2006 the Applicant wrote to the Tribunal requesting that it clarify the effect of changes made to regulations 880.222A and 2.27C, and the lack of amendment to item 6A 81(b), prior to the Tribunal making a decision.[46] This was the letter of response to the Tribunal’s s.359A letter of 21 February 2006.
[46] CB 295.
46.On 3 March 2006 the Tribunal sent a further letter to the Applicant under s.359A of the Migration Act inviting him to comment on information. Relevantly, for the purposes of this appeal, that letter is as follows:
“Part 4 – Employment Experience Qualifications
The relevant period for the purposes of this Part is the 48 moths immediately before the day on which the application was made. As the application was made on 24 October 2002, the relevant period in this case is 23 October 1998 to 23 October 2002.
As noted earlier, your nominated occupation of Mechanical Engineer (ASCO code 2126-11) is an occupation specified by Gazette Notice as a skilled occupation for which 60 points are available. If you had been employed in your nominated skilled occupation, or, a closely related skilled occupation that is specified by Gazette Notice as an occupation for which 60 points are available, for at least 36 months during the relevant period then you would have been entitled to 10 points in accordance with item 6A41. If you had been employed in a skilled occupation (emphasis added) for a period of, or for periods totalling at least 36 months in the 48 months immediately before the day on which the application was made, you would have been entitled to 5 points in accordance with item 6A42.
The term ‘employed’ is defined in subregulation 2.26A(7) as follows:
employed
means engaged in an occupation for remuneration for at least 20 hours weekly.
The visa applicant listed details of your employment history up to 2001, in your Curriculum Vitae, which you provided to the Department. You also provided the Department with a statement dated 4 June 2004 in which you set out claims of work experience in Australia. In summary, you claimed the following employment during the relevant period:
[The letter then sets out the Applicant’s employment record as per paras 16-17 above.]
Clause 880.222A and regulation 2.27C provide the periods of employment in Australia that can be taken into account for the purposes of calculating employment in a skilled occupation. (Please note these provisions were amended from 1 November 2005 but the amendments only apply to visa applications made after this date.) These provisions state:
880.222AIn determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
2.27CIn determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
You arrived in Australia on 18 August 2001 as the holder of a Class TU, Subclass 560 Student visa that was subject to visa condition 8101 (No work). This visa ceased on 24 August 2001 upon grant of a Class TU, 8105 (Work limitation). This visa ceased on 31 May 2002. The Departmental records also indicate that you held a Class WA, Subclass 010 Bridging A visa from 3 June 2002 to 18 August 2002.
The Tribunal can take into consideration your employment with General Motors Kenya Limited (in Kenya) which amounts to 27 months and 8 days. The Tribunal can also take into account, for the purposes of its calculations, your claimed employment in Australia with Dazabel Pty Ltd, Casuarina Valley Orchard, JC & LW Ryan & Sons, TH & LM Lambert, L Pessotto & Sons, and David Gray & Co Pty. The Tribunal can also consider part of your claimed employment with Rosehill Horticultural Pty Ltd. These periods of employment amount to close to 4 months.
Applying clause 880.222A and regulation 2.27C, the Tribunal is not able to take account your employment during the period from 3 June 2002 to 18 August 2002 when he held a Class WA, Subclass 010 Bridging A visa. The Tribunal notes that during this period you were employed for 62 days.
This information indicates that you were not employed for a period of, or for periods totalling at least 36 months in the 48 months immediately before the day on which the application was made. As the total period your employment that can be taken into account amounts to a little over 31 months, the Tribunal has not considered whether the individual periods of employment satisfy the definition of employment in subregulation 2.26A(7), nor whether the employment was employment in a skilled occupation or skilled occupations specified by Gazette Notice.
This information is relevant because it indicates you are not entitled to any points for this Part.”[47]
[Transcribed from the original without amendment.]
[47] CB 302-304.
47.The Tribunal goes on to provide further information concerning the points assessment for the Applicant as follows:
“Item 6A81(b) states that an applicant for a Skilled Independent Overseas Student (Residence) (Class DD) visa is entitled to 5 points if the applicant: has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work.
The relevant period for the purposes of 6A81(b) is 23 October 1998 to 23 October 2002. As mentioned above in the discussion of Part 4 of Schedule 6A, you have claimed several periods of employment in Australia. However, you have claimed several periods of employment in Australia. However, you held a Class WA, Subclass 010 visa (not a substantive visa) from 3 June 2002 to 18 August 2002 and your employment during this period cannot be taken in account when calculating your period of employment in Australia. The total period of employment in Australia that can be considered (excluding any claimed employment from 3 June 2002 to 18 August 2002) during the relevant period of 23 October 1998 to 23 October 2002 amounts to less than the required 6 months. As such, the Tribunal has not assessed whether the employment was in a skilled occupation or skilled occupations. The information is relevant because it indicates you do not meet Item 6A81(b).” [48]
and goes on to say:
“The above information is relevant because it indicates that the number of points that can be awarded to you based on an assessment against the legislation in effect at the time of primary assessment or decision is as follows:
[48] CB 305.
Skill qualifications 60 points
Age qualifications 25 points
Language skill qualifications 20 points
Employment experience qualifications 00 points
Spouse skill qualifications 00 points
Australian educational qualification 05 points’
Skills targeting qualifications 00 points
Bonus points qualifications 00 points
Additional points for regional Australia and
low-population growth metropolitan areas 00 points
Total points 110 points
At the time of primary assessment both the pool and the pass mark was 115 points. On the basis of this assessment you would fail to achieve the qualifying score to pass the points test and would not meet clause 880.222.”[49]
[49] CB 306-307.
48.The Applicant responded to the Tribunal’s 3 March 2006 letter on 28 March 2006, saying that:
“I have read through assessment and I don’t think I have anything to dispute on this assessment.
However, I believe I am entitled to assessment against the regulations at the time of Tribunal’s review.”[50]
[50] CB 308.
49.The Applicant attached his schedule of Australian Work Experience to his letter of 28 March 2006.[51]
[51] CB 309 (which is set out at paras 16-17 above).
50.On 19 May 2006 the Tribunal sent a further letter under s.359A of the Migration Act inviting the Applicant to comment on particular information.[52] It appears that the only change between the letters of 19 May 2006 and 3 May 2006 is the indication in the 5th and 6th last paras. of a 7 page letter that the Tribunal considers that the Applicant has failed to score sufficient points to pass the points test “either at the time of primary assessment or at the time of the Tribunal’s decision”, and is therefore not able to meet the criteria requirements of clause 880.222.
[52] CB 312-318.
51.On 29 May 2006 the Applicant responded to the Tribunal’s letter of 19 May 2006. The Applicant relied on s.350 of the Migration Act which provides that the Tribunal is to have regard to the regulations more favourable to the Applicant when reviewing an assessment of the Minister under s.93 of the Migration Act. The Applicant contended that applying the amended clause 880.222A and regulation 2.27C he could legitimately be awarded bonus points for his Australian Work Experience.[53]
[53] CB 320.
52.The Tribunal decision was signed on 7 June 2006 and handed down on 30 June 2006.[54]
[54] CB 323-335.
53.The Applicant was advised by letter from the Tribunal that the Tribunal had decided to affirm the Delegate’s Decision.[55]
[55] CB 336.
54.The relevant parts of the Tribunal’s Decision are as follows:
“Part 4-Employment Experience Qualifications
32.The relevant period for the purposes of this Part is the 48 months immediately before the day on which the application was made. As the application was made on 24 October 2002, the relevant period in this case is 23 October 1998 to 23 October 2002.
33.As noted earlier, the visa applicant’s nominated occupation of Mechanical Engineer (ASCO code 2126-11) is an occupation specified by Gazette Notice as a skilled occupation for which 60 points are available. If the visa applicant has been employed in his nominated skilled occupation, or, a closely related skilled occupation that is specified by Gazette Notice as an occupation for which 60 points are available, for at least 36 months during the relevant period, then he would be entitled to 10 points in accordance with item 6A41. If the visa applicant has been employed in a skilled occupation (emphasis added) for a period of, or for periods totalling at least 36 months in the 48 months immediately before the day on which the application was made, he would be entitled to 5 points in accordance with item 6A42.
34.The term ‘employed’ is defined in sub regulation 2.26A(7) as follows:
employed
means engaged in an occupation for remuneration at least 20 hours weekly.
35.The visa applicant listed details of his employment history up to 2001, in his Curriculum Vitae, a copy of which can be found on the Departmental file. The visa applicant also provided the Department with a statement dated 4 June 2004 in which he sets out claims of work experience in Australia. In summary, the visa applicant has claimed the following employment during the relevant period:
[The Tribunal then sets the Applicant’s employment record as per paras 16-17.]
36.The Tribunal has had regard to the following provisions in deciding whether the visa applicant’s periods of employment in Australia can be taken into account for the purposes of calculating employment in a skilled occupation.
880.222AIn determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
2.27CIn determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
37.The Tribunal has considered Departmental records which indicate that the visa applicant arrived in Australia on 18 August 2001 as the holder of a Class TU, Subclass 560 Student visa that was subject to visa condition 8101 (No work). This visa ceased on 24 August 2001 upon grant of a Class TU, Subclass 574 Student visa that was subject to visa condition 8105 (Work limitation). This visa ceased on 31 May 2002. The Departmental records also indicate that the visa applicant held a Class WA, Subclass 010 Bridging A visa from 3 June 2002 to 18 August 2002.
38.On the basis of the above, the Tribunal finds that it can take into consideration the visa applicant’s employment with General Motors Kenya Limited (in Kenya) which amounts to 27 months and 8 days. The Tribunal can also take into account, for the purpose of its calculations, the visa applicant’s claimed employment in Australia with Dazebel Pty Ltd, Casuarina Valley Orchard, JC & LW Ryan & Sons, TH & LM Lambert, L Pessotto & Sons, and David Gray & Co Pty. The Tribunal can also consider part of the visa applicant’s claimed employment with Rosehill Horticultural Pty Ltd. These periods of employment amount to close to 4 months.
39.Applying clause 880.222A and regulation 2.27C, the Tribunal is not able to take account of the applicant’s employment during the period from 3 June 2002 to 18 August 2002 when he held a Class WA, Subclass 010 Bridging A visa. The Tribunal notes that during this period the visa applicant was employed for 62 days.
40.The Tribunal finds that the visa applicant was not employed for a period of, or for periods totalling at least 36 months in the 48 months immediately before the day on which the application was made. As the total period of the visa applicant’s employment that can be taken into account amounts to a little over 31 months, the Tribunal has not considered whether the individual periods of employment satisfy the definition of employment in sub regulation 2.26A(7), nor, whether the employment was employment in a skilled occupation or skilled occupations specified by Gazette Notice.
41.At the hearing on 20 February 2006 and in comments the Tribunal received on 28 February 2006 and 29 May 2006, the visa applicant referred to information from the Department’s website, which indicated that applicants could now count skilled work experience gained in Australia while holding a Bridging visa A or Bridging visa B. Changes to clause 880.222A and regulation 2.27C were introduced from 1 November 2005 to this effect. However, the amendments to clause 880.22A and regulation 2.27C apply only in relation to an application for a visa made on or after 1 November 2005.
42.For the reasons given above, the Tribunal finds that the visa applicant is not entitled to any points for this Part.
Part 8 – Bonus Points Qualification
…
51.Item 6A81(b) states that an applicant for a Skilled Independent Overseas Student (Residence) (ClassDD) visa is entitled to 5 points if the applicant: has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work.
52.The relevant period for the purposes of 6A81(b) is 23 October 1998 to 23 October 2002. As mentioned above in the discussion of Part 4 of Schedule 6A, the visa applicant has claimed several periods of employment in Australia. However, the visa applicant held a Class WA, Subclass 010 visa (not a substantive visa) from 3 June 2002 to 18 August 2002 and his employment during this period cannot be taken into account when calculating his period of employment in Australia. The Tribunal finds that the total period of employment in Australia that can be considered (excluding any claimed employment from 3 June 2002 to 18 August 2002) during the relevant period of 23 October 1998 to 23 October 2002 amounts to less than the required 6 months. As such, the Tribunal has not assessed whether the employment was in a skilled occupation or skilled occupations. The Tribunal therefore finds that the visa applicant does not meet Item 6A81(b).
53.At the hearing on 20 February 2006 and in comments the Tribunal received on 28 February 2006, the visa applicant referred to information from the Department’s website, which indicated that applicants could now count skilled work experience gained in Australia while holding a Bridging visa A or Bridging visa B. Changes to clause 880.222A and regulation 2.27C were introduced from 1 November 2005 to this effect. However, no changes were made to Item 6A81(b) and it only refers to being employed in Australia in a skilled occupation whilst the applicant held a substantive visa authorising him or her to work. The visa applicant commented that this was an omission by the Department and should be corrected. However, the Tribunal must apply the law as it stands.
…
60.The number of points that are awarded to the visa applicant based on an assessment against the legislation in effect at the time of primary assessment is as follows:
Skill qualifications 60 points
Age qualifications 25 points
Language skill qualifications 20 points
Employment experience qualifications 00 points
Spouse skill qualifications 00 points
Australian educational qualification 05 points
Skills targeting qualifications 00 points
Bonus points qualifications 00 points
Additional points for regional Australia and
low-population growth metropolitan areas 00 points
Total points 110 points
61.At the time of primary assessment both the pool and the pass mark were 115 points. The visa applicant has therefore failed to achieve the qualifying score to pass the points test.
62.For completeness sake, the Tribunal notes that the visa applicant is also entitled to be assessed for points under the legislation at the time of the Tribunal’s decision. However, the Tribunal finds that the visa applicant would be entitled to the same number of points based on a assessment under the legislation in effect at the time of the Tribunal’s decision.
CONCLUSION
63.After considering all of the evidence and for the reasons above, the Tribunal finds that the visa applicant is entitled to a total of 110 points under the points test as it applied under the Regulations at the date of the primary assessment and at the time of its decision. At those dates the pass mark and the pool mark was 115 points. Accordingly the visa applicant has failed to achieve the qualifying score required to pass the points test or to be placed in the pool.
64.Therefore the visa applicant fails to meet clause 880.222 to the Regulations, which is a prescribed criterion for the grant of a Subclass 880 (Skilled – Independent Overseas Student) visa.
DECISION
65.The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Skilled-Independent Overseas Student (Residence) (Class DD) visa.”[56]
[Transcribed from the original without amendment.]
[56] CB 329-33, 332, 333, 334 & 335.
The legislative scheme
55.The majority of the relevant provisions are set out in the First Respondent’s Submissions, and the Court adopts that exposition, which is as follows:
“6.Part 2, Division 3, Subdivision B of the Migration Act 1958 has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision: s92. That is one of the criteria for the Skilled Independent Overseas Student (Residence) (Class DD) visa sought by the applicant: see Migration Regulations 1994, c.880.222.
7. Sections 93, 94 and 96 then provide, in their relevant parts:
93(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.
(b) In this section:
prescribed means prescribed by regulations in force at the time the assessment is made.
94(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
96(1) The Minister may, from time to time, by notice in the Gazette, specify in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.
(2) The Minister may, from time to time, by notice in the Gazette, specify in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
(3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
(5) This Act does not prevent a pool mark and a pass mark from being equal.
(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other.
8. In undertaking its review, the Tribunal was bound by s350 by which:
(1)In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
…
9. Division 2.6 of the regulations is headed Prescribed qualifications – application of points system. At the time of the applicant’s application, reg 2.26A provided in its relevant parts in relation to an application for a Skilled – Independent Overseas Student (Residence) (Class DD) visa:
(1)For subsection 93(1) of the Act (which deals with determination of an applicant’s points score):
(a) each qualification specified in column 2 of item in Part 1, 2, 3, 4, 5 ,6, 7, or 8 of Schedule 6A is prescribed as a qualification in relation to the grant, to the applicant, of [that visa]: and
(b) each qualification specified in column 2 of an item in Part 1, 2, 3, 4, 5, 6, 7, 8 or 9 of Schedule 6A is prescribed as a qualification in relation to the grant, to the applicant, of that visa.
(2)The number of points prescribed for a qualification specified in column 2 in an item in Schedule 6A is specified in column 3 in the item.
(3) For subsection 92(1) of the Act, the Minister:
(a) must not give the applicant a prescribed number of points for more than 1 prescribed qualification in each Part of Schedule 6A; and
(b) must give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; and
(c) …
(4) …
(5) …
(6) In Parts 4, 5, and 8 of Schedule 6A:
employed means engaged in an occupation for remuneration for at least 20 hours weekly.
10. By reg 2.27C (at the time of the application)
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for certain period a period of employment in Australia must not be counted unless the applicant:
(a)held a substantive visa authorising him or her to work during that period: and
(b) complied with the conditions of that visa.
11.Between the time of the amendment and the decision of the Tribunal reg 2.27C was amended so that it now provides:
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i) a substantive visa; or
(ii) a Subclass 010 Bridging A visa; or
(iii) a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
The amendment was made by Migration Amendment Regulations 2005 (No 9), Schedule 3, Part 1[3]. Transitional provisions in regulation 6 provide
(1) The amendments made by Schedule 3 apply in relation to an application for a visa made on or after 1 November 2005.
(2) Despite the amendments made by Schedule 3, the Migration Regulations 1994, as amended by items [1] and [71] of that Schedule, are taken to apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 November 2005, as if those amendments (other than the amendment made by items [1] and [71]) had not been made.
12.Finally, there are the criteria set out in Schedule 2, Part 880. In particular, at the time of the application, cl 880.222A provided:
In determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
That clause was also amended by Migration Amendment Regulations 2005 (No 9), Schedule 3, and in similar terms to the amendment to reg 2.27C – that is, relevant employment was not limited to a period when the applicant held a substantive visa, but included periods when he held a Subclass 010 Bridging A visa, or a Subclass 020 Bridging B visa, authorising him to work during that period. The same transitional provision applies – the amendments apply in relation to an application for a visa made on or after 1 November 2005: reg 6.
13.Qualifications, and the points for them, are set out in Schedule 6A of the regulations. The applicant refers also to the amendment of Schedule 6A made by Migration Amendment Regulations 20056 (No 4). … The regulations only commenced on 1 July 2006 (reg 2) and they apply either to an application for a visa made on or after 1 July 2006, or to an application made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 July 2006: reg 4. …
14.The applicant challenges the assessment of points in Parts 4 and 8 of Schedule 6A. The relevant qualifications are:
(1)6A42The applicant has been employed in a skilled occupation for a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made.
and
(2)6A81(b)The applicant has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work.
Some other legislative provisions are incorporated directly in the reasons for judgment below.
The law – generally
56.For prerogative relief to be ordered, the Applicant must establish that the Tribunal committed jurisdictional error, so that its decision is not a privative clause decision under s.474 of the Migration Act.[57]
[57] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211CLR 476; [2003] HCA 2 (“S157”).
57.In S157 the High Court defined the role of a court in determining whether a decision involved jurisdictional error, saying it was necessary to examine the limitations and restraints found in the Migration Act, and attempt, through statutory construction, to reconcile them with s.474 to ascertain whether failure to observe procedural or other requirements in the Act constituted an error resulting in the decision-maker (in this case the Tribunal) failing to exercise or exceeding its jurisdiction.[58]
[58] S157, CLR at 506-507 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; HCA at paras 76-78 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Analysis
58.The Applicant challenges as a jurisdictional error the Tribunal’s rejection of the Applicant’s submission before the Tribunal that the Tribunal should have counted as relevant employment experience, the period of employment in Australia during which the Applicant had a sub-class 010 Bridging A visa authorising him to work. If that period were taken into account there appears to be no dispute that the Applicant’s work experience in a skilled occupation in Australia would have exceeded six months. As indicated above the Tribunal dealt with the Applicant’s claims on the basis of “Employment Experience Qualifications” (Part 4) and “Bonus Points Qualifications” (Part 8)[59]. Initially, it is convenient for the Court to do likewise.
[59] See para 54 above.
Employment Experience Qualifications
59.The Tribunal found that the Applicant’s Bridging A visa work experience was not able to be counted for employment experience qualifications because the Applicant did not have the requisite six months employment, and the amendments to clause 880.222A and regulation 2.27C only applied in relation to visa applications made on or after 1 November 2005.[60]
[60] See para 54 above, citing Tribunal Decision, para 41.
60.In submissions the Applicant says:
“Regulation 2.27C was introduced by Migration Amendment Regulation 2005 (No. 9) SLI 2005 No. 240. Under paragraph 3 of schedule 3, in determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, the applicant could now count a period of employment in Australia where the applicant was under a sub class 010 bridging A visa provided the visa authorised him to work during that period, and that the applicant had complied with the conditions of the visa. Paragraph 6 provided that the amendments made in schedule 3 applied in relation to an application made on or after the 1st November 2005 but that the previous Migration Regulations 1994 are taken to apply in relation to an application made, but not finally determined, within the meaning of subsection 5(9) of the Migration Act 1958, before the 1st November 2005.”[61]
[61] Applicant’s Submissions, para 5. The Court has assumed that the reference to regulation 2.27C should be a reference to that regulation and clause 880.222A.
61.Regulation 6 of the Migration Amendment Regulations 2005 (No. 9)[62] (“Amendment Regulations 2005 No. 9”) does not provide for the pre-amendment Migration Regulations to apply to visa applications not finally determined as at 1 November 2005. Rather, it makes provision for those amendments in Amendment Regulations 2005 No. 9 not to apply to matters not finally determined as at 1 November 2005, except for the amendments made by items [1] and [71] of Schedule 3. Regulation 2.27C and clause 880.222A are not within the exception as they are items [3] and [118] respectively of Schedule 3. Therefore, the amendments in Amendment Regulations 2005 No. 9 do not apply to the Applicant’s application, and there is no basis in this respect for counting as relevant employment experience in Australia the period during which the Applicant had a sub-class 010 bridging A visa. Hence, no question of jurisdictional error arises.
[62] Set out in para 55 above.
Bonus Points Qualification
62.The Tribunal found that the Applicant’s Bridging A visa work experience was not able to be counted for bonus points qualifications because the Applicant did not have the requisite six months employment, and because Item 6A 81(b) still required employment in a skilled occupation whilst the holder of a substantive visa, that is, not a bridging visa.[63]
[63] Migration Act, s.5(9) provides that: For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
63.On the date the Tribunal Decision was signed, 7 June 2006, the Tribunal’s view was undoubtedly correct. However, before the Tribunal’s Decision was “handed down” on 30 June 2006 the Migration Amendment Regulations 2006 (No. 4) (“Amendment Regulations 2006 (No. 4)”) were made on 22 June 2006 to commence on 1 July 2006.[64] As a consequence, the Applicant submitted:
“ … Migration Amendment Regulations 2006 No 4 SLI 159 of 2006 paragraph 39 provided that Item 6A 81(b), which relates to bonus points qualification, allowed a person, employed in Australia in a skilled occupation for a period of at least six months in the 48 months before lodging the application, to obtain 5 points while holding a visa (and not as previously required limited to substantive visa holders) authorising him to work. Again, by paragraph 4(3) this regulation purportedly to apply to visa applications made, but not finally determined, before the 1st July 2006. The decision of the Tribunal was handed down, but it is submitted was not “finally determined’, on the 30th June 2006 and if this is so item 6A 81(b) as amended applied to the applicant. The decision was not communicated to him until the following week. Section 368B(6)(a) requires that the applicant receive a copy of the decision. Where the decision made is still subject to review under part 5 there is no final determination (s.5.(9)(a) of the Migration Act).”[65]
[64] Amendment Regulations 2006 (No.4), reg 2.
[65] Applicant’s Submissions, para 5.
64.Section 368B(2) of the Migration Act provides:
“On the day, and at the time and place, specified in the notice referred to in section 368A, the decision on the review is to be handed down (on behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a person is authorised to hand down decisions.”
65.The Tribunal Decision Notification Letter dated 8 June 2006 notified the Applicant that the Tribunal Decision was to be handed down at 2.30pm on 30 June 2006 at Level 11, 83 Clarence Street, Sydney.[66]
[66] See para 53 above.
66.The Applicant has sworn three affidavits for the purposes of proceedings before this Court. Nowhere in those affidavits does the Applicant deal with the Tribunal Decision Notification Letter, and nowhere does the Applicant assert he did not receive that letter. In any event, non-receipt of the Tribunal Decision Notification Letter is probably immaterial, as s.386B of the Migration Act specifically contemplates (without descending to particularity as to the reasons why) that an Applicant may not attend the handing down of the Tribunal Decision.
67.Section 386B(3)-(6) of the Migration Act provide as follows:
“(3) The Tribunal’s decision may be handed down:
(a) by reading the outcome of the decision; and
(b) whether or not either or both the applicant and the Secretary are present.
(4) The date of the decision is the date on which the decision is handed down.
(5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 368(1).
(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 368(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 379A.”
68.There is no suggestion in the material before the Court that the Tribunal Decision was not “handed down” as prescribed by sub-ss.368B(3) and (4). Indeed, the Applicant’s Third Affidavit suggests the contrary:
“I was unrepresented at the hearing before the Tribunal and the decision was posted to me because I could not attend the handing down of the decision in Sydney.”[67]
[67] Applicant’s Third Affidavit, para 2 (emphasis added).
69.The reference to s.368B(6)(a) of the Migration Act in the Applicant’s submissions might seem to infer that the Applicant did not receive the Tribunal Decision, or did not receive it within the fourteen days specified. However, once again, the Applicant’s Third Affidavit belies any such inference. As indicated above the Applicant acknowledges the Tribunal Decision was posted to him, and that he received it on 7 July 2006, that is, seven days after it was handed down by the Tribunal.[68]
[68] Applicant’s Third Affidavit, paras 2 and 3: see para 68 above.
70.The Tribunal Decision was handed down on 30 June 2006. Amendment Regulations 2006 (No. 4) did not therefore apply to the Tribunal Decision. The Tribunal Decision not to have regard to the Applicant’s Bridging A visa work experience was therefore correct, because the amendment to item 6A 81(b) to delete the requirement for a substantive visa did not apply in this instance. The application had therefore been finally determined on 30 June 2006. Therefore, there was no jurisdictional error in this respect.
Regulations more favourable to the Applicant – Purported Invalidity - Sections 93 and 350 of the Migration Act
71.The Applicant correctly assets that by reason of s.350 of the Migration Act the Tribunal was required to have regard to whichever regulation or regulations were more favourable to the Applicant out of those applicable at the time of the Delegate’s Decision or the Tribunal Decision.[69] The Applicant appears to assert that this applies to regulations “in force”, even if the regulations are not applicable in the circumstances of the case,[70] and that to do otherwise is not to promote the purpose or object underlying ss.93 and 350, namely that an applicant “should get the benefit of any ameliorisation in the applicant’s status which occurs between the initial assessment and … [Tribunal] decision …”[71]
[69] Applicant’s Submissions, para 7.
[70] Applicant’s Submissions, paras 7-10.
[71] Applicant’s Submissions, para 10.
72.This submission must fail. Section 350 of the Migration Act does not require the Tribunal to make a more favourable determination where:
a) the relevant regulations are not applicable, as is the case here with regulation 2.27C and clause 880.222A; or
b) the relevant regulations are not yet commenced, as is the case here with item 6A 81(b), alternatively, where, if it is in force, it is not applicable, for the reasons outlined above.[72]
[72] See paras 61-70 above.
73.The operative date of a particular regulation, be it prospective or retrospective, is only relevant insofar as it fixes a point in time at which the regulation commences, and therefore determines if, in a particular case where the regulation has commenced to operate and is applicable to the circumstances, it is necessary to make the more favourable comparison for the purposes of s.350 of the Migration Act.
74.As the First Respondent so succinctly put it:
“[the regulation] … as amended … was not more favourable to the [A]pplicant than the regulation in force at the time of the assessment by the Minister, because the amended regulation did not apply to his application and never did.”[73]
[73] First Respondent’s Submissions, para 19.2.
75.In the circumstances, there is no inconsistency between the regulations and ss.93 and 350 of the Migration Act, and the Applicant’s submissions that the regulations “are invalid as being contrary to their enabling Migration Act” must fail.[74] `
[74] Applicant’s Submissions, para 8.
76.If, however, the Applicant is correct and the regulations are invalid, the Applicant’s case is not advanced. For then, the Applicant’s case falls to be determined against the unamended regulations which provide for substantive visa work experience only, and not bridging visa work experience, to be taken into account. On the Applicant’s own case he could not have succeeded before the Tribunal on that basis. Therefore, insofar as the invalidity of the regulations is concerned, prerogative relief would be futile, and ought not be granted.[75]
[75] SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at para 29 per Gleeson CJ; Gummow, Callinan, Heydon and Crennan JJ; Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at paras 24-28 per Bennett JJ.
77.The Applicant also submitted that Item 6A 81(b) was a special regulation which prevailed over regulation 2.27C and clause 880-222A. In the circumstances, the Court need not determine that issue.[76]
[76] Item 6A 81(b) is not applicable for reasons set out above. See paras 62-70 above
Analysis – Ground 2
78.
The Applicant submits the First Respondent is estopped by DIMIA’s conduct, in failing to process the Applicant’s subclass 457 visa (applied for on 7 May 2002, but not granted until
18 August 2002, and then only until 22 November 2002 in relation to the Post Graduate Diploma obtained on 22 May 2002) prior to the grant of a Bridging A visa on 3 June 2002. The Applicant says the First Respondent is estopped “from now relying upon the bridging [A] visa period as one for which work experience cannot be counted”.[77]
[77] Applicant’s Submissions, para 16.
79.The Applicant also asserts that because a visa “may be granted for a period of up to 6 months”, and the subclass 497 visa was not granted until 22 November 2002, being exactly six months after the award of Post Graduate Diploma on 22 May 2002, the only inference is that the subclass 497 visa was to run from the date of the award of the Post Graduate Diploma, and therefore the subclass 497 visa was constructively operative from 22 May 2002 for six months, and therefore applied to the Applicant’s work experience from 3 June 2002 to 18 August 2002.
80.The Applicant’s submissions on these points are as imaginative as they are wrong.
81.
Clause 497.511 of Schedule 2 of the Migration Regulations does not require a visa to be granted for six months, but rather “not longer than 6 months after the date of the grant of the visa”. There is therefore, on the applicable legislation and the facts, no irresistible inference that the subclass 497 visa was operative from 22 May 2002, that being inconsistent with the fact that that visa was granted on 18 August 2002, and inconsistent with the fact that other visas were extant from 22 May 2002 until
18 August 2002, namely a subclass 574 student visa until 31 May 2002, and a Bridging A visa from 3 June 2002 to 18 August 2002. Against that factual background, and the further statutory requirement of satisfaction of certain criteria under s.65 of the Migration Act before the First Respondent grants a visa, and no requirement to grant a visa within a set time frame, the plea of a constructive visa grant cannot stand.
82.Likewise, with estoppel: the requisite state of satisfaction based on the statutory criteria cannot be estopped by the conduct of DIMIA officers or of the First Respondent. The First Respondent is a person with statutory duties requiring the requisite state of satisfaction based on statutory criteria. That statutory duty cannot be foresworn by alleged prior representation, which prior representations are seemingly based on inferences drawn from conduct in granting other visas to which the Applicant was entitled, and failing to grant the visa in issue prior to the time at which it was granted. This is a case where a clear principle applies: “a minister cannot be prevented by conduct or representation from performing a statutory duty or exercising a statutory discretion”.[78]
[78] Minister for Immigration and Ethnic Affairs v Petrovski (1997) 154 ALR 606 at 625 per Tamberlin J (“Petrovski”); Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 17-18 per Mason CJ in the context of the remarks in Petrovski at 626-627 per Tamberlin J.
83.The Court finds that there is no estoppel in these circumstances. Ground 2 therefore fails to establish jurisdictional error, and in particular jurisdictional error by the Tribunal, such that the Tribunal Decision cannot be impeached as a non-privative clause decision on the basis set out in the Applicant’s Ground 2.
Analysis – ground 3
84.The Applicant contends that evidence concerning a period of time on which he worked on his father’s farm in Kenya, which he contends would have entitled him to an additional five points under item 6A 42 as employment in a “skilled occupation’, was not provided to the Tribunal because he did not appreciate its significance, and that it might be counted as work experience.[79] The Applicant says that the Tribunal did not “explore … the nature of my work activity in the 4-8 month period prior to the lodgement of my visa application” and that if “the Tribunal member [had] done so I would have informed her, in relation to the period of employments in which I engaged in Kenya, that I carried out work for remuneration of a skilled kind on my father’s farm between 1 February 2001 and 26 July 2001”.[80] The failure of the Tribunal to inquire about the Applicant’s employment immediately prior to leaving Kenya is said to be able to be explained, in relation to the Applicant’s omission to tell the Tribunal about it, by evidence before this Court.[81]
[79] Applicant’s First Affidavit, paras 7 and 8.
[80] Applicant’s First Affidavit, para 8.
[81] Applicant’s Submissions, para 23. The Applicant actually says “evidence to explain the omission is admissible on appeal”. Presumably the Applicant means on judicial review.
85.In support of its contentions the Applicant cites NARV and Ors v Minister for Immigration and Multicultural and Indigenous Affairs.[82] NARV did not concern information known to the Applicant, but unknown to the Tribunal, and about which an unknowing Tribunal member failed to make inquiry. Rather, it concerned the failure of a Tribunal member to put to an applicant adverse independent country information upon which it relied. Perhaps unsurprisingly, both generally and in light of the relevant statutory provisions under the Migration Act, as they stood at that time, the majority of the Full Court of the Federal Court found that:
a)the applicant had been denied procedural fairness;[83] and
b)an applicant not provided with information of a type difficult to controvert, may, where a court is unable to see how the applicant has suffered “practical injustice”, require the applicant to lead evidence of the applicant’s treatment so as to attempt to establish the injustice.[84]
[82] (2003) 133 FCR 89; [2003] FCAFC 262 (“NARV”).
[83] NARV, FCR at 100, 101 and 106 per Ryan and Finklestein JJ: FCAFC at paras 15, 17, 20 and 32.
[84] NARV, FCR at 101 per Ryan and Finklestein JJ: FCAFC at para 18 per Ryan and Finkelstein JJ.
86.NARV is not on point with the Applicant’s case, is distinguishable, and can not be applied by the Court.
87.The Applicant also relied on Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor.[85] In NAFF the applicant was advised at the end of the Tribunal hearing that the Tribunal would write to the applicant concerning alleged inconsistencies in the applicant’s evidence, and afford the applicant the opportunity to respond and, if necessary, provide further information. The Tribunal failed to do so, and made a decision without further input from the applicant. The High Court found that the applicant had been denied procedural fairness, by reason of the deprivation of the opportunity to deal further with the Tribunal’s foreshadowed request for further information.[86]
[85] (2004) 221 CLR; [2004] HCA 62 (“NAFF”).
[86] NAFF, CLR at 15 per McHugh, Gummow, Callinan and Heydon JJ; HCA at para 43 per McHugh, Gummow, Callinan and Heydon JJ.
88.The principle behind this conclusion is outlined in NAFF as follows:
“One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.”[87]
[87] NAFF, CLR at 10 per McHugh, Gummow, Callinan and Heydon JJ; HCA at para 43 per McHugh, Gummow, Callinan and Heydon JJ.
89.The principle was followed in this case by the Tribunal. The arguments were presented by the Applicant. The Tribunal listened to them. No question of inadequacy arose warranting further inquiry, in the manner outlined in NAFF. Absent the somewhat exceptional circumstances in cases like NAFF, the Tribunal has no general duty to make independent inquires in the manner suggested by the Applicant’s submissions.[88]
[88] Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166 at 187-189 per Allsop J; [2002] FCA 24 at paras 102-114 per Allsop J; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (Gleeson CJ agreeing at 13); [2004] HCA 32 at paras 42-43 per Gummow and Hayne JJ (Gleeson CJ agreeing at 1).
90.In all the circumstances the Applicant’s argument on this ground is not made out. The Tribunal did not commit jurisdictional error by failing to consider evidence not before it, and which it had no duty to inquire about. For this Court to do so now would amount to no more than impermissible merit review.
91.There being no jurisdictional error, ground 3 fails.
The SZBEL Submissions
92.In SZBEL the High Court found that there had been a denial of procedural fairness to an applicant by the Tribunal.[89] The Tribunal had found that specific written and oral evidence by the applicant was implausible, and made the findings without challenging the plausibility of the applicant’s account.[90]
[89] SZBEL at para 44 per Gleeson CJ, Kirby, Hayne, Callinan and Heydan JJ.
[90] SZBEL at paras 3 and 10 per Gleeson CJ, Kirby, Hayne, Callinan and Heydan JJ.
93.The High Court identified as critical the obligation under section 425(1) of the Migration Act for the Tribunal to invite the applicant to give evidence and present arguments, “relating to the issues arising in relation to the decision under review.”[91]
[91] Migration Act, s.425(1); SZBEL at para 33 per Gleeson CJ, Kirby, Hayne, Callinan and Heydan JJ. See in this context, Migration Act, s.360.
94.The High Court in SZBEL made it apparent that it is necessary to identify the particular issue or issues arising in the decision under review assuming that it can be so identified and has been identified as important.[92]
[92] SZBEL at pras 35, 39 and 43 per Gleeson CJ, Kirby, Hayne, Callinan and Heydan JJ.
95.In this case the Applicant says that he has been denied procedural fairness because the Tribunal did not “explore the nature of the applicant’s work activity throughout the 48 month period prior to lodgement of his visa,” and that had it done so it might have discovered that the Applicant worked on a farm with his father in Kenya, and therefore would have addressed the issue under item 6A42.[93]
[93] Applicant’s Submissions on SZBEL, paras 9 and 10.
96.The Respondent, in summary, says that:
a)this case is governed by s.357A of the Migration Act, which directly affects the content of the obligation to afford natural justice; and
b)in any event, there is no breach of procedural fairness where the Applicant did not raise, nor present evidence of his Kenyan farm employment with his father, before either Delegate or Tribunal.[94]
[94] Respondent’s Submissions on SZBEL, para 2.
97.Dealing with the latter issue first, it is clear that this case is to be distinguished from SZBEL, on the facts. In SZBEL the evidence was before the Tribunal, and before finding it implausible the Tribunal failed to allow the applicant the opportunity to deal with that issue of implausibility, in relation to the particular issues in the evidence, on which the Tribunal found the applicant implausible. SZBEL is thus distinguishable because it dealt with, and the principle arising from it, relates to the Tribunal’s obligation in circumstances where there is evidence before the Tribunal, and the issue or issues arise from that evidence.
98.Further, in this case, the question of the Applicant’s farming work experience in Kenya was never in issue, either before the Delegate or the Tribunal. It was not in issue because the Applicant did not give any evidence concerning that work experience. SZBEL does not require the Tribunal in exercising it’s inquisitorial function to explore every gap or vacuum in an applicant’s work experience in order to determine if that experience might fit into a category from which an applicant might benefit by the award of points towards the relevant pass mark for a visa. That proposition, which is essentially what is put by the Applicant in this case, would constitute an unheralded and unwarranted expansion of the requirement to afford procedural fairness. The Tribunal cannot be expected to afford procedural fairness in circumstances where an applicant has put before it no evidence of the issue which it is now said the Tribunal should have regard to.
99.Finally, SZBEL was not a case governed by s.357A of the Migration Act. Having regard to s.357A of the Migration Act there is nothing in that Act which requires, or would require, the Tribunal to make inquiry into matters which are not in evidence, and therefore not in issue, before the Tribunal (or the Delegate).[95]
[95] NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 441 per Young J; [2006] FCAFC 195 at para 85 per Young J.
Conclusion
100.The Applicant’s three grounds of appeal fail. So too do the Applicant’s submissions on SZBEL. The Application will be dismissed. The Applicant must pay the Respondent’s costs. The Court will hear from the parties as to form and quantum.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of LUCEV FM
Associate: M Hewitt
Date: 3 August 2007
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