Quarm v Minister for Immigration & Anor
[2008] FMCA 287
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QUARM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 287 |
| MIGRATION – MRT decision – on‑shore skilled resident visa – occupational qualifications gained in Australia – criterion requiring qualifications to be obtained in a registered course – amending regulation applied this to pending visa applications – whether amending regulation invalid – whether acquisition of property on unjust terms – whether unreasonable or disproportionate exercise of regulation–making power – application dismissed. |
Education Services for Overseas Students Act 2000 (Cth)
Legislative Instruments Act 2003 (Cth), ss.12, 12(2)
Migration Act 1958 (Cth), ss.5(9), 31(3), 45A, 45B, 46(1)(ba), 47(1), 65, 65(1), 504(1)
Migration Amendment Regulations 2005 (No. 3) (Cth), reg.4(1), Sch.2 item [38]
Migration Amendment Regulations 2006 (No. 4) (Cth), regs.4(3), 4(3)(a), Sch.2 items [33], [34]
Migration Amendment Regulations 2006 (No. 6) (Cth), Sch.2 item [50]
Migration Regulations 1994 (Cth), regs.1.03, 2.07(1)(b), Sch.1 cll.1128CA(2)(a), 1128CA(3)(j)(ii), 1128CA(3)(k), 1128CA(3)(l), Sch.2 cll.880.22, 880.211, 880.215, 880.221, 880.222, 880.230, 880.230(1), 880.230(2)
Migration (Visa Application) Charge Act 1997 (Cth), ss.3(2), 4
The Constitution, ss.51(xxvii), 51(xxxi)
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480
Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364
British Medical Association in Australia v Commonwealth (1949) 79 CLR 201
Broadcasting Company of Australia Pty Ltd v Commonwealth (1935) 52 CLR 52
City of Brunswick v Stewart (1941) 65 CLR 88
Commonwealth v WMC Resources Ltd (1998) 194 CLR 1
Dai v Minister for Immigration & Citizenship [2007] FCAFC 199
Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297
Health Insurance Commission v Peverill (1994) 179 CLR 226
Hu & Anor v Minister for Immigration & Anor [2007] FMCA 1710
John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269
Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54
Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513
Parekh v Minister for Immigration [2007] FMCA 633
Pidoto v State of Victoria (1943) 68 CLR 87
Poulton v Commonwealth (1953) 89 CLR 540
Smith v ANL Ltd (2000) 204 CLR 493
South Australia v Tanner (1989) 166 CLR 161
Thongsuk v Minister for Immigration & Anor [2007] FMCA 655
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397
Twinn v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 490
Vanstone v Clark (2005) 147 FCR 299
Williams v Melbourne Corporation (1933) 49 CLR 142
Yang v Minister for Immigration & Anor [2007] FMCA 38, (2007) 207 FLR 106
Bennion, F. A. R. (2002), Statutory Interpretation, 4th edition, Butterworths, London
| Applicant: | ADELINE QUARM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2676 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 28 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2676 of 2007
| ADELINE QUARM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this case, I must again consider the validity of a 2006 amendment to the Migration Regulations 1994 (Cth), which adversely affected the ability of persons who have studied in Australia to qualify for permanent residence under a “Skilled – Independent Overseas Student (Residence) Class DD, subclass 880” visa. The amendment to Sch.2 cl.880.230 of the Migration Regulations was made by Migration Amendment Regulations 2006 (No. 4) (Cth) in Sch.2 item [34], and required that a qualification gained in Australia, which was assessed as providing the skills suitable for the nominated skilled occupation of the visa applicant, must have been obtained as a result of full time study of a course which was registered under the Education Services for Overseas Students Act 2000 (Cth).
Not all courses studied by foreign students in Australia before the amendment had registration under the ESOS Act, since their student visas required this of only one of their courses studied at any one time (see Yang v Minister for Immigration & Anor [2007] FMCA 38, (2007) 207 FLR 106 at [40]). It therefore might appear unfair to apply the new regulation to qualifications which had been gained before the commencement of the amending regulation on 1 July 2006, and a fortiori to apply it when deciding visa applications which had been made before that date.
In Hu & Anor v Minister for Immigration & Anor [2007] FMCA 1710 at [13], I held that the transitional provision to the 2006 amendment revealed a clear intent to apply the new “time‑of‑decision” criterion in all decisions of the Minister or Migration Review Tribunal made after 1 July 2006 which addressed any un‑finalised visa application for a subclass 880 visa. I also held that the transitional provision was not invalid under s.12(2) of the Legislative Instruments Act 2003 (Cth), because it did not purport to take effect before the date of its registration, in the sense that it did not remove or alter any rights as they stood at a past date (see [24]).
The present applicant does not challenge my opinions given in Hu, but she presents three alternative arguments to establish that the transitional provision was invalid. Put shortly, these are: (i) that it was ambiguous in its relationship with a transitional provision which accompanied an earlier amendment; (ii) that it was an invalid law “with respect to … the acquisition of property” because it was not “on just terms”, contrary to the requirements of s.51(xxxi) of the Constitution; and (iii) its making was not authorised by the Migration Act due to its disproportionate or unreasonable consequences.
The applicant’s visa application
The applicant is a national of Ghana, who arrived in Australia in May 2003 on a student visa. Between 21 July 2003 and 5 August 2005, she completed a two year “Advanced Diploma of Information Technology (E‑Business Development)” course at Alpha Beta Colleges in Sydney. This was probably a course registered under the ESOS Act, so that her attendance and excellent results allowed her to comply with condition 8202 on her subclass 572 student visas.
It was a necessary precondition for applying for a subclass 880 residence visa, that she should have completed one or more courses lasting two years, and to have done so within six months of her visa application (see Migration Regulations Sch.1 cl.1128CA(3)(l)). It was therefore necessary for the applicant to have completed her information technology course before she could make her application for a subclass 880 residence visa.
However, the applicant did not present this qualification to establish her nominated skilled occupation, being one “for which 60 points are specified by Gazette Notice”, so as to meet the requirements of Sch.1 cl.1128CA(3)(j)(ii). In her visa application, she nominated as her occupation on the Gazetted “Skilled Occupations List” that of “tradespersons and related workers (not elsewhere classified) – ASCO Code 4316‑13”, which is the classification covering a “communications linesperson” (the relevant legislative scheme was explained by me in Parekh v Minister for Immigration [2007] FMCA 633 and Thongsuk v Minister for Immigration & Anor [2007] FMCA 655).
To verify the holding of qualifications relevant to her nominated occupation, the applicant presented to TRA, an agency of the Commonwealth Department of Employment and Workplace Relations, a certificate issued by the City College of Professional Development, in which she was awarded a “UTE 30699 Certificate III in Electrotechnology Data Communications (Specialisation: Networks)”. The certificate indicated that she had studied in this course between 2 August 2004 and 28 February 2005, i.e. within the period that she was also studying at Alpha Beta Colleges. The certificate indicated that it provided a qualification “recognized within the Australian Qualifications Framework”.
By letter dated 14 April 2005, a skills assessor at TRA informed her:
TRA notes your Australian Qualifications Framework (AQF) certificate and is presently required to accept this for migration purposes. Accordingly, your AQF‑based application has been accepted.
For migration purposes, you have been designated as a:
Tradespersons and Related Workers nec [4316‑13]
The applicant presented this letter with her visa application as the “assessment of her skills” by a “relevant assessing authority”, so as to satisfy the criteria for subclass 880 visa applications provided by Migration Regulations Sch.1 cl.1128CA(3)(k), and Sch.2 cll.880.211, 880.221, and 880.230, as prescribed at the date of her visa application.
It was later conceded before the Tribunal, as it is before me, that the qualification which had been gained by the applicant at the City College of Professional Development, and which had been assessed by the TRA, had not been gained in a course registered under the ESOS Act. The reasons for the absence of this registration are not shown in any evidence before me. As I have indicated, the absence of such registration did not at that time necessarily prevent a foreign student from studying in Australia to gain the qualification, nor from obtaining recognition of it by TRA for the purposes of qualifying on‑shore or off‑shore for a skilled residence visa.
The applicant’s visa application was lodged by an agent on her behalf on 26 September 2005. On that date, she also paid $1,935 to the Commonwealth as the “first instalment” visa application charge which was prescribed for this class of visa in Migration Regulations Sch.1 cl.1128CA(2)(a), pursuant to reg.2.07(1)(b), and ss.45A and 45B of the Migration Act 1958 (Cth), and which was “imposed” by the Migration (Visa Application) Charge Act 1997 (Cth), ss.3(2) and 4. The payment of the charge was a mandatory condition of making a “valid” visa application which the Minister would be obliged to determine (see Migration Act, ss.46(1)(ba) and 47(1)).
The reasons for the subsequent delay in deciding the visa application are unclear from the evidence before me. It seems to have been partly because further documents were required to establish various matters, and these were only forwarded in January and April 2006. Whatever the reason for the subsequent delay, it is clear that the visa application had not been “finally determined” within the meaning of s.5(9) of the Migration Act before 1 July 2006, when the criteria were changed so as to require that the assessed qualification for the nominated skilled occupation must have been obtained in a course registered under the ESOS Act.
A letter dated 22 August 2006 from the Department of Immigration informed the applicant’s agent that her visa application was likely to be refused under the new criteria, since her skills had been assessed on the basis of a qualification issued by a non‑registered provider. It was suggested that she should consider the options of either submitting a new skills assessment based on another Australian qualification for the nominated occupation, or of withdrawing the visa application so as to pursue further studies.
It would seem that the applicant took advice about these options from her current solicitor, and was allowed further time by the Department at the request of the solicitor. Although she subsequently submitted to the Tribunal evidence that on 15 December 2006 she completed another course in respect of the nominated occupation at a different college, there is no evidence that this was ever submitted for assessment by a relevant assessing authority.
On 14 February 2007, a delegate refused the visa application, upon the ground that she could not satisfy the requirements of cl.880.230, as amended in July 2006.
Her solicitors lodged an application for review by the Tribunal on 26 February 2007. Eventually, they conceded the disqualification identified by the delegate, and waived the applicant’s right to attend a hearing. The Tribunal then handed down a decision on 3 August 2007, which affirmed the delegate’s decision.
In earlier correspondence with the applicant’s solicitor, the Tribunal had raised whether the applicant could satisfy a criterion in cl.880.215, which required that her diploma in e‑business development obtained in her 2 year course at Alpha Beta Colleges was “relevant to the skilled occupation nominated” by the applicant, of “communications linesperson”. This raised issues such as I considered in Thongsuk (supra). However, the Tribunal did not address this issue in its statement of reasons. If its decision is set aside in the present proceeding, the matter must be remitted so that this, and any other outstanding issue, can be addressed by the Tribunal.
The basis of the Tribunal’s decision was its finding that “the TRA assessment was based solely upon the AQF certificate” which was obtained after studying at a course which was not a “registered course” under the ESOS Act, and that the requirements of cl.880.230(2) had not been satisfied.
In the present application to set aside the Tribunal’s decision, the applicant concedes that the Tribunal’s decision was based upon correct findings of fact, and that it correctly applied cl.880.230(2). The sole ground of review is that the Tribunal was in error in thinking that this criterion should be applied in a decision on the applicant’s visa application. The applicant concedes that the terms of the transitional provision accompanying the introduction of this criterion in July 2006 purported to apply it to an un‑finalised visa application such as the applicant’s. However, the three arguments which I summarised above are presented to establish that the transitional provision was invalid in this respect.
The two transitional provisions
Criteria for a subclass 880 visa were first introduced in 2001, to provide a points‑tested residence visa to persons who had obtained Australian qualifications when studying in Australia. A series of criteria were prescribed under Sch.2 cl.880.22 as “criteria to be satisfied at time of decision”. These have always included the achievement of a qualifying score assessed under the “points test” provisions, which gave substantial weight to the possession of recognised occupational qualifications (see cl.880.222). Other time‑of‑application and time‑of‑decision criteria have been added and modified over the years.
The time‑of‑decision criterion in cl.880.230 was introduced by the Migration Amendment Regulations 2005 (No. 3) (Cth) in Sch.2 item [38], which inserted after clause 880.229:
880.230A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
Regulation 4 of these 2005 amending regulations contained a transitional provision, which I shall refer to as “the 2005 transitional provision”:
(1)The amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2005.
The criterion introduced in 2005 was then amended by the Migration Amendment Regulations 2006 (No. 4) (Cth) in Sch.2 Pt.2 items [33] and [34]. Item [33] omitted “A relevant” and inserted “(1) A relevant”. In effect, this renumbered the previous clause 880.230 as a subclause 880.230(1). Item [34] then inserted a second subclause in cl.880.230:
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full time study of a registered course.
“Registered course” is defined in Migration Regulation 1.03 as “a course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students”.
Regulation 4 of these 2006 amending regulations contained a transitional provision:
(3)The amendments made by Part 2 of Schedule 2 apply in relation to an application for a visa:
(a)made but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 July 2006; or
(b)made on or after 1 July 2006.
It is subparagraph (a) of this transitional provision which is argued to be invalid. I shall refer to it as “the 2006 transitional provision”.
There has been another amendment to cl.880.230, which was made by Migration Amendment Regulations 2006 (No. 6) (Cth) in Sch.2 item [50], but it is unnecessary for me to describe its terms or its transitional provision. Neither counsel referred to these provisions in their submissions.
The applicant’s submission is that there is a manifest inconsistency or absurdity in the 2006 transitional provision, because it required all un‑finalised visa applications, including those made before 1 July 2005, to present a skills assessment based on a registered course, whereas the 2005 transitional provision had applied the new requirement of a skills assessment by a relevant assessing authority prospectively only to applications made after its commencement on 1 July 2005. The applicant’s counsel submitted: “subpara (2) may apply to a visa application made before subpara (1) has come into force. This is impossible because subpara (2) can only apply when subpara (1) is engaged”.
Counsel submitted that this inconsistency revealed drafting which was “fantastic and capricious”, or so irrational or unreasonable as to be beyond the regulation‑making power (citing Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 401, 382‑383, Williams v Melbourne Corporation (1933) 49 CLR 142 at 150, and City of Brunswick v Stewart (1941) 65 CLR 88 at 94. See also Vanstone v Clark (2005) 147 FCR 299 at [146]‑[148]).
Counsel submitted that this flaw in the 2006 transitional provision could not be answered by reading down its effect, because this would “change the meaning of the transitional provision” and this would be an impermissible act of judicial legislation (citing Pidoto v State of Victoria (1943) 68 CLR 87 at 110).
However, in my opinion, on its true construction the 2006 transitional provision did not have the effect which is submitted.
The drafting of the 2006 transitional provision must be understood to rely upon two assumptions based upon the legislative history. The first is that the text of cl.880.230 which was modified was the text inserted by the 2005 amendment. The second is that the 2005 text was qualified in its operation by the 2005 transitional provision. On these assumptions, the legislative change made by the 2006 amendments was a change to the effect of the 2005 amendments in their application according to their transitional provision. The 2006 transitional provision should, therefore, be readily seen to have had the intention that the additional requirement of new cl.880.230(2) should apply to all un‑finalised visa applications made after 1 July 2005.
Since the provision which was amended carried with it a limited operation in respect of un‑finalised applications, it was unnecessary to repeat this limitation in the 2006 transitional provision, and it was sufficient to indicate, in effect, that the 2006 amendment would apply to such applications as were subject to cl.880.230 (renumbered as cl.880.230(1)) and were un‑finalised as at 1 July 2006. There was therefore no defect in the drafting of the 2006 transitional provision, whether described as an ambiguity, inconsistency, impossibility, lacuna, or otherwise.
While I was not referred to any legal authority which has addressed an analogous question of statutory construction, I consider that my interpretation accords with the principles in relation to textual amendments and transitional provisions which are explained in Bennion, Statutory Interpretation, 4th Edn. 2002 at 240‑243, 248‑249, and 263‑265. It is not necessary, in my opinion, to invoke the maxim ut res magis valeat quam pereat (see Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 216), nor the presumption that an absurd result is unlikely to have been intended (see Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 at 376).
Moreover, if I am wrong, and the 2006 transitional provision should be read as contemplating an application of the 2006 amendments to un‑finalised visa applications made before 1 July 2005, this would not lead to its invalidity or ineffectiveness in relation to applications made after that date and before 1 July 2006. The only consequence would be that it would be ineffective in applying the new cl.880.230(2) requirement to un‑finalised applications made before 1 July 2005, since its reference to cl.880.230(1) would be inoperative in relation to those applications by reason of the 2005 transitional provision.
I therefore do not accept the first ground of invalidity of the 2006 transitional provision which was submitted by the applicant.
The Constitutional challenge
I had some difficulty in understanding the applicant’s argument that the 2006 transitional provision was invalid by reason of the implied Constitutional prohibition on the making of a law “with respect to … the acquisition of property” which was not “on just terms” (see Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 169, 177, 185‑186, 193).
The applicant’s submissions disclaimed identification of the “property” which was “acquired” by effect of the transitional provision, as being anything gained by a visa applicant when making a visa application prior to 1 July 2006. It thus appeared to accept that nothing was gained at that time, or subsequently prior to the making of a decision by the Minister, which could be characterised as “property” under s.51(xxxi) of the Constitution in the sense of a “species of valuable right or interest” (see Mutual Pools (supra) at 184). This accords with my opinion expressed, albeit tentatively, in Hu (supra) at [25]‑[27] that a visa applicant did not, by making an application, gain anything which could be described as a “right” to be granted a visa by reference to the circumstances at the time of application. My opinion was that, after visa application and before a decision is made, a visa applicant has no more than a right to compel the Minister to make a decision on whether he or she is satisfied as to the prescribed criteria which are in force at the time of decision.
The applicant’s concession that no “property” was gained by the visa applicant at the time of visa application, carried the further disclaimer that there was any “acquisition” by the Commonwealth of the applicant’s property by reason of a diminution of the valuable content of rights or interests attaching to the visa application. The applicant cannot, therefore, rely upon analogies with cases which found an acquisition of property when government diminished rights granted under a mining tenement (cf. Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513), or common law rights to damages (cf. Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297). It is also unnecessary to explore the converse authorities in the same area, which found no acquisition arising from changes to rights granted under legislative schemes which were inherently subjected to modification by government (cf. Health Insurance Commission v Peverill (1994) 179 CLR 226, or Commonwealth v WMC Resources Ltd (1998) 194 CLR 1).
The applicant’s submissions identified the visa application charge paid to the Commonwealth by the visa applicant as a condition of the making of a valid visa application, as the applicant’s “property” which was “acquired” from her. It was submitted that the weight of authority includes a payment of money within the concept of “property”, for the purpose of s.51(xxxi) (citing Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 509, and Mutual Pools (supra) at 184, cf. 196). It was then argued that the application charge should be found to have been acquired on “unjust” terms in the case of persons such as the present applicant, because the 2006 change to the item 880.230 criterion significantly diminished the value to them of the expectation which had been obtained by the payment of that charge. This was because it had removed all chances of their being granted the visa in response to their visa applications.
It was submitted:
23.However, as a matter of practical reality the fee in the current case changed character with the advent of sub para 880.230(2). That provision took away any chance of the applicant succeeding, and so the value of his access to the process was negated. In other words the amendment combined with the transitional provision and s 46(1)(ba), turned the payment of the fee into an ex post facto expropriation. That is, apart from any other character that they might have, s 46 and the regulations made under s 31(3) Migration Act giving effect to it, became laws “with respect to” the acquisition of the property.
24.Was the acquisition on “just terms”? In the applicant’s submission it cannot have been so. The visa application fee was non refundable. In normal circumstances an applicant pays his money and receives a right to have his visa application considered. That application may be successful, or it may not. If an applicant pays his money and does not meet a criterion for the relevant visa that exists at the time of application, he cannot complain. But here the only reason that the applicant failed was because the law has changed to ensure that he could not win. The change in the law has the result of the Commonwealth receiving something, and the visa applicant receiving nothing. The terms upon which the Commonwealth has acquired the visa application fee are not, “just” in any sense of the word.
(footnote omitted)
There are a variety of reasons why, in my opinion, the applicant’s submissions must fail.
They face difficulties characterising the 2006 amendment to criterion 880.230 and its transitional provision, or the legislative foundations for the visa application charge which I have identified above, or both of them considered as part of one legislative scheme, as laws “with respect to the acquisition of property”, so as to become subject to the implied requirement of just terms. The obvious characterisation of all of these legislative provisions, appears to be as laws only with respect to the topic of “immigration and emigration” within s.51(xxvii), or as laws incidental or ancillary to this topic. The imposition of a charge upon the making of an application for a visa would seem to have the latter character, whether the charge is regarded as a fee for service or a tax. If so, notions of fair compensation would appear to be irrelevant, and s.51(xxxi) would not be engaged (cf. Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 180‑182, 193‑194, 246‑252, 297‑300, 304, 312‑318).
Another difficulty faces the submission that the legislative change effected by the 2006 amendment was not on “just terms”, either in general or in the applicant’s personal circumstances. In relation to the general effect of the amendment, in my opinion, the Minister has a good argument that the possibility of an adverse change to visa criteria, after lodgement of a visa application and before decision, was inherent in the legislative scheme which governed the making of the visa application and the imposition of the charge at that time. I supported this analysis of the nature of the Minister’s power to change visa criteria in Hu (supra) at [27], and I accept it below when addressing the applicant’s third basis of challenge. It is difficult, therefore, to identify anything of value acquired by the payment of the visa application charge which was taken away by the 2006 amendments. All that was lost to persons with un‑finalised visa applications at 1 July 2006 was a chance of success on an application which always was inherently subject to no guarantee or obligation on the Minister as to the criteria which might be prescribed to be applied at the time of decision.
The applicant’s own circumstances shown in the evidence before me do not better illustrate or provide evidence of a deprivation of something of value gained at the time of visa application. This is because, on the evidence before me, I cannot make any finding that, in fact, she would have qualified to be granted the visa, if the 2006 amendments had not been made. This would require the Court to address all the other criteria for a subclass 880 visa which were never addressed by the Minister’s delegate or Tribunal, and to make a finding that the applicant would have satisfied those decision‑makers as to all of them. I am not satisfied as to this, particularly in circumstances where the Tribunal had raised a real query facing the applicant in relation to criterion 880.215.
However, I prefer to rest my rejection of the applicant’s Constitutional challenge upon my opinion that it is impossible to describe the receipt and retention by the Commonwealth of the visa application charge as involving an “acquisition” coming within the language of s.51(xxxi). The authorities establish that this requires an acquisition of property under “legal compulsion” or “expropriation” or “requisition” (see John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 at 282, British Medical Association in Australia v Commonwealth (1949) 79 CLR 201 at 270, Poulton v Commonwealth (1953) 89 CLR 540 at 573, Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 416‑417, Health Insurance Commission v Peverill (1994) 179 CLR 226 at 249‑250, and Smith v ANL Ltd (2000) 204 CLR 493 at [9], [128], [164]). In the present case, the applicant “lost” the money she paid as her visa application charge because she voluntarily chose to apply for a subclass 880 visa, which could only be done with the payment of the charge. I am unable to find in the circumstances in which she paid her money, and in which it was retained by the Commonwealth, any acquisition by the Commonwealth of property with the features of compulsion of law which these authorities require before s.51(xxxi) is engaged to require “just terms”.
I therefore do not accept the applicant’s Constitutional challenge to the 2006 amending regulations.
The regulation‑making authority
The applicant made two submissions to establish that the 2006 amending regulations, or at least the 2006 transitional provision, were not authorised by a power to make regulations under the Migration Act. Two relevant regulation‑making powers were identified:
i)The specific power in s.31(3) to “prescribe criteria for a visa or visas of a specified class”, and
ii)The general power in s.504(1) to “make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …”.
The applicant’s counsel submitted:
32.The general power to make regulations is in terms very similar to those considered in Broadcasting Company of Australia Pty Ltd v Commonwealth (1935) 52 CLR 52. Section 31(3) is merely an application of the general power. In my submission there is nothing in the Migration Act which requires or permits a regulation which retrospectively changes the criteria for a visa so that a person who has applied for that visa in good faith cannot succeed. Nor is there anything in the Act which permits the Commonwealth to change regulations with the effect of expropriating a visa application fee in such circumstances.
33.Nor, in my submission is it necessary or convenient for carrying out or giving effect to this Act to retrospectively require a person to have completed a registered course when clause 880.230 as it previously existed required an assessment of an applicant’s skills by an independent assessing authority. It cannot, of course, be necessary or convenient for the carrying out or giving effect to the Act for the Commonwealth to accept an application fee on the basis of regulations as they exist at one point in time and to retain that fee after changing the criteria for the visa in a way that meant that the applicant cannot succeed.
34.If, contrary to the above submissions the Court finds that subclause 880.230(2) and Reg 4(3)(a) of the Migration Amendment Regulations No. 4 of 2006 are within the regulation making power, then I submit that the means adopted are so disproportionate in their effect on individuals that they are not a real exercise of that power (South Australia v Tanner (1989) 166 CLR 161, 167‑8; Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54).
I do not accept these submissions. In my opinion, both wings of the applicant’s argument require her to locate an intent in the Migration Act to qualify its regulation‑making powers, by confining the Minister’s power to prescribe criteria for classes of visa so that it is unavailable to change the criteria to be applied when deciding an application for a visa in a prescribed class, after the application has been made.
Unless this intent can be found in the Migration Act, the 2006 amending regulation, and its transitional provision, would prima facie be clearly within the regulation‑making power provided under s.31(3), and be made for the purposes of that power. In its terms, the amending regulation both answers the description of a regulation authorised by s.31(3), and serves the purpose identified from that provision. Absent a confining intent found in other provisions, no added test of “proportionality” or “unreasonableness” could govern the validity of the regulation under the principle referred to in South Australia v Tanner (1989) 166 CLR 161 at 165 (as discussed in Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at 66–67, and Vanstone v Clark (2005) 147 FCR 299 at 339).
The Minister’s power to grant a visa is, in my opinion, framed to require him or her to direct attention to the prescribed criteria in force as at the time of decision, and not at any other point of time. Section 65(1) directs the Minister “after considering a valid application for a visa” to grant the visa “if satisfied that … the other criteria for it prescribed by this Act or the regulations have been satisfied”. In my opinion, in the context of the scheme and function of visas provided under Division 3 of Part 2 of the Migration Act, this is to be construed as requiring that the criteria to be addressed by the Minister are the prescribed criteria for the class of visa applied for, not the prescribed criteria for a class of visa applications. I cannot find in this provision, nor in any other provision in the Migration Act, an indication which ties the Minister’s consideration of the grant of a visa to criteria prescribed as at an earlier point of time than the time of decision.
I have found no legislative indicator allowing the reading down, or qualification, on the Minister’s power to prescribe changes to visa criteria, so as to prevent a change being made to the criteria to be applied when deciding un‑finalised visa applications. No indicator was suggested in the applicant’s submissions, such as allowed the discovery of limits on the Minister’s power to make Gazette Notices in Twinn v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 490, or to prescribe the conditions on the making of a valid visa application in Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315, or to frame conditions attaching to a visa in Dai v Minister for Immigration & Citizenship [2007] FCAFC 199.
There is no apparent incongruity or incompatibility between conferring a power to grant a visa by reference to currently prescribed criteria, and also empowering the Minister to alter those criteria in their application to un‑finalised applications. I accept that harsh consequences to a visa applicant are conceivable, and may be illustrated in the present case, but every power to alter law is capable of operating harshly. I accept that one such consequence may be that some visa applicants may have lost expectations upon which they decided to apply for a visa and to pay the necessary visa application charge. However, equally conceivable are situations where it would be contrary to valid public policies or expectations, to confine the Minister’s ability to refine or modify visa criteria in relation to outstanding visa applications before they are decided. Immigration criteria require constant modification to meet changing circumstances and government policies, and powers under the Migration Act are usually construed with a recognition of this.
Assessing these countervailing considerations in the context of the Migration Act, I cannot find in the nature of the power to grant visas a likelihood that Parliament would have intended not to give the Minister power to alter criteria after visa application and before decision. I consider it more likely that Parliament intended to give the Minister an unqualified power to prescribe visa criteria and, when doing so, to prescribe the circumstances in which any changes should be applied to un‑finalised visa applications.
It is significant that the applicant’s arguments cannot, in my opinion, draw upon any presumptions of legislative construction which would point against allowing the alteration of visa criteria before decision. In this respect, I do not consider that Broadcasting Company of Australia Pty Ltd v Commonwealth (1935) 52 CLR 52 is of any assistance to the applicant. At page 60 of the majority judgment, it was said of the regulation which they found invalid: “the essence of the regulation is its attempt to alter and set aside the accrued rights of those who had already provided a broadcasting service to the public, and for whose remuneration provision had already been made in the regulations”. They recognised that Parliament could confer a power to make regulations which operated retrospectively, but did not find this intent in a broadly framed regulation‑making power.
The present 2006 amending regulations have no such retrospective operation on an accrued right. As I have held in Hu, and would maintain, they were not rendered invalid by s.12 of the Legislative Instruments Act. Nor, in my opinion, did their operation adversely affect any accrued right of a person who had made a visa application. Once s.65 is construed to require the Minister to address visa criteria in their terms as in force at the date of decision, the only “accrued right” acquired by a visa applicant prior to decision is the right to enforce the making of such a decision. The visa applicant had no right to require the Minister to apply visa criteria in force at an earlier time.
I therefore do not accept that the 2006 amending regulations, or their transitional provision, were made without authority conferred by the Migration Act.
I have above rejected all the grounds upon which the applicant challenges the Tribunal’s opinion that the applicant did not satisfy the requirements of cl.880.230 and that the delegate’s decision should therefore be affirmed. The application should be dismissed, and it is agreed that costs should follow this event.
I certify that the preceding fifty‑nine (59) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 March 2008
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