Singh (Migration) - [2021] AATA 1482

Singh (Migration) [2021] AATA 1482 (28 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurpreet Singh
Mrs Sandeep Kaur
CASE NUMBER:  2008001
DIBP REFERENCE(S):  BCC2016/2837453
MEMBER:R. Skaros
DATE:28 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 28 April 2021 at 11:07am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Federal Circuit Court remittal – applicant has the qualifications and experience to work in the occupation – nomination ceased – not the subject of an approved nomination – applicant was adversely affected by the legislative changes to the temporary work program – Ministerial intervention– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 2.72, 2.75, Schedule 2, cl 457.223
CASES
BVT20 v MICMSMA [2020] FCAFC 222
James v MICMSMA [2020] FCCA 1888
Mangat v MHA [2019] FCCA 2227
Poonia v MIAC [2011] FMCA 381
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 26 August 2016.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 25 January 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
The applicant provided a copy of the delegate’s decision record with the application for review. On 31 July 2019 the Tribunal, differently constituted, found that the applicant had met the requirements in cl.457.223(4)(da) but nevertheless affirmed the Department’s decision not to grant the 457 visa on the basis that cl.457.223(4)(a), which requires the applicant to have a current approved nomination, was not satisfied at the time of decision.
The applicant applied for judicial review of that decision and on 6 May 2020 the Federal Circuit Court (FCC), by consent, remitted the matter to the Tribunal to determine the application according to law.
On 18 May 2019 the Tribunal’s legal section sought clarification from the Department regarding the consent remittal, to which the Department responded on 12 June 2020 indicating that the matter should not have been remitted by consent to the Tribunal.
The applicant appeared before the present Tribunal on 10 February 2021 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.
The Tribunal received detailed pre and post hearing submissions from the representative to which it has had regard further below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).
Background
The applicant applied for a 457 visa on the basis of a nomination in the occupation of Supply and Distribution Manager (ANZSCO 133611) made by Hamdan Bros Pty Ltd trading as Country Growers (Hamdan Bros). The nomination was approved by the Department on 18 October 2016.
The visa application was refused on 25 January 2017 because the delegate was not satisfied that the applicant met the requirement in cl.457.223(4)(da) which related to his skills, qualifications and employment background. The applicant applied for review of that decision on 6 February 2017.
During the processing of the review, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations) commenced.
On 14 March 2019 the previously constituted Tribunal wrote to the applicant pursuant to s.359A of the Act and invited the applicant to comment on information which it considered would be the reason or part of the reason for affirming the decision under review. The information was relevant to whether the applicant was the subject of an approved nomination which has not ceased. It was noted that Departmental records indicated that the last nomination approved in respect of the applicant, being the nomination by Hamdan Bros, ceased to be in effect on 18 October 2017.
In response, the applicant’s representative acknowledged that normally a nomination would cease 12 months after approval under r.2.75(2)(b) of the Regulations, but contended that this provision did not apply to the applicant in this case as his circumstances were covered by item 6704(15) of the Amending Regulations.
Relevantly, paragraphs (14) and (15) of 6704 of Schedule 13 to the Amending Regulations provide that:
(14) Despite the amendments of regulation 2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day.
(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day [18 March 2018] if:
(a) before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and
(b) within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.
After considering the representative’s submissions, the previously constituted Tribunal affirmed the decision as it was not satisfied the applicant was the subject of a current approved nomination as required by cl.457.223(4)(a). The Tribunal found that r.2.75(2)(b), as in force immediately before 18 March 2018, applied and as such, the nomination in respect of the applicant ceased 12 months after approval, being 18 October 2017. The Tribunal further noted that there was nothing in the drafting of the Amending Regulations to indicate that cl.6704(15) applied retrospectively to nominations that had already ceased before 18 March 2018.
Proceedings before the Federal Circuit Court
The matter was remitted by consent on the basis that the previously constituted Tribunal had erred in applying r.2.75(2)(b) of the Regulations and finding that the applicant’s approved nomination ceased on 18 October 2016. There appears to be an error in the reference to this date as this was the date the nomination was approved. The previously constituted Tribunal found that the nomination was approved on 18 October 2016 and had ceased on 18 October 2017.
The Notes to the consent orders indicated that the applicant’s situation is governed by item 6704(15) of the Amending Regulations which commenced on 18 March 2018 and that the applicant’s nomination did not cease to operate because on 6 February 2017 the applicant had applied to the Tribunal for review.
Communication from the Department
In responding to the Tribunal’s request for clarification regarding the basis on which the Minister chose to withdraw from the application for judicial review and concede that the Tribunal’s decision was affected by jurisdictional error, the Department informed the Tribunal on 12 June 2020 that they no longer consider the Tribunal’s decision in this matter to be in error and that they consider the approach taken in the FCC decision of Mangat v MHA [2019] FCCA 2227 (Mangat) to be correct. The reasoning in Mangat is discussed further below.
Proceedings before the present Tribunal
On 4 February 2021, the Tribunal received written submissions from the applicant’s representative in which a detailed history of the applicant’s case was provided. Relevantly, the representative submitted that the previously constituted Tribunal had erred, as found by the FCC, in concluding that the 457 nomination in respect of the applicant had ceased by operation of r.2.75(2)(b) as it was covered by the savings provision in item 6704(15).
At the hearing, the Tribunal discussed with the applicant the requirement in cl.457.223(4)(a), the Amending Regulations, and in particular the savings provision in item 6704(15) and the reasoning in the judgement of Mangat regarding the application of that provision. The Tribunal discussed with the applicant and his representative the facts and considerations in Mangat, in which the Court held that item 6704(15) does not operate retrospectively to resurrect a nomination which ceased before 18 March 2018. The Tribunal also informed the applicant about the correspondence received from the Department indicating that the remittal was in error having regard to the approach taken in Mangat.
In his evidence to the Tribunal, the applicant provided details of his employment in Australia, including for the sponsoring employer, with whom he continues to be employed. The applicant stated that his employer continues to support his application for the visa, that the previous Tribunal had found he has the qualifications and experience to work in the occupation of Supply and Distribution Manager and that mistakes were made in his case and he should have been granted the visa. The applicant expressed his frustration with the delays in his case and noted that the Court had made an order stating that his nomination was still valid.
Following the hearing, the Tribunal received the following submissions from the representative:
At the outset, we have been advised by our clients to submit that they would want to stick to the submissions that was initially submitted on 5 February 2021 because as rightly observed in the Consent Order of 6 May before Judge Street of the Federal Circuit Court of Australia, the Minister had himself conceded that the decision of the Tribunal dated 31 July 2019 was affected by jurisdictional error for wrongly applying reg 2.75(2)(b) and finding the applicant's nomination ceased on 18 October 2016. As noted by the Court, this was because the applicant's situation was governed by Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) ['Amending Regulations'], which commenced on 18 March 2018.
The applicant’s nomination therefore did not cease by virtue of him seeking review before the Tribunal on 6 February 2017 and continues as of this date.
We especially note the judgment of Mangat v Minister for Home Affairs & Anor [2019} FCCA 2227 (16 August 2019) referred to us by the member of this Tribunal in an attempt to resolve the above matter and believe such judgment will be useful for us in our future correspondence with the Tribunal in our attempt to rectify similar matters like this.
In support of the position taken by our clients and in pursuit of their best interest, we would like to submit following in relation to why the findings of Mangat is not binding in relation to the applicant's matter:
I.We understand and appreciate the effort of respected member of the Tribunal in pointing us towards the judgment of Mangat to help us understand how does the Amending Regulations, and in particular item 6704 (15) operate. We also acknowledge how the Court in that case accepted the position of the Minister who had put forward how sub-clause 6704(15) operated from 18 March 2018 and applied as if reg 2.75(2)(a) and (b) were met. It also noted how Amending Regulations do not expressly state that they operate in retrospection.
II.However, as opposed to the case of Mangat, the Minister in this matter had himself accepted that the applicant's nomination did not cease on 18 October 2017 by virtue of him seeking review before the Tribunal on 6 February 2017. His situation was deemed by the Minister to be governed by item 6704(15) of the Amending Regulations. This observation thus raises pertinent questions as to how sub-clause 6704(15) operate. More importantly, this points out in the non-uniformity in position held by the Minister in relation to the operation and application of sub clause 6704(15) because had the position taken by the Minister in relation to the application of 6704(15) in Mangat been accurate why would the Minister in a later date concede in this matter that the applicant's nomination had not ceased on 18 October 2017 and his nomination continued to exist by virtue of him seeking a review before the AAT.
III.Also, we believe the respected member of the Tribunal is well aware of how a decision of the Federal Circuit Court would not per se be binding to the decisions or orders entered by other judges of the Federal Circuit Court and would only be persuasive. Interestingly, the observation noted by Judge Street in this matter and the observation of Judge Kendall in Mangat presents with sufficient room to argue as to what would have been the right application of the Amending Regulations and in particular sub-clause 6704(15). So, unless a higher court decides on this issue and interprets the intention of the Amending Regulations and sub-clause 6704(15), we are inclined to believe that the position taken by the Minister before Judge Street in finalising the issue regarding nomination of applicant -which had not ceased by virtue of him seeking a review before this respected Tribunal, to be accurate and correct.
IV.Also, we respectfully deny with the observation of Judge Kendall in Mangat in relation to the operation of Amending Regulations. It had been noted by respected Judge at [95] that 'the Amending Regulations do not expressly state that they operate retrospectively', but if that was the case the use of word 'before' would not have been used in sub-clause 6704(15) by the legislators. Also, a plain reading of the said sub-clause in our view suggest that the law intended to operate retrospectively with an intention to finalise the visa status of those applicants who were seeking review before the Tribunal and/or waiting a final determination of their matter. His observation at [97] supports this position we are putting forward. As such, the facts materially vary in Mangat and this case.
V.In a similar vein, the Amending Regulations in our view is a law of special application that had come to finalise the visa status of people who were seeking a final determination of their matter. So, we respectfully submit the observation that was made in Mangat accepting the position of Minister who presented Amending Regulations to be treated as a law of general application to be flawed.
…..
VI.We also understand that the Tribunal is to determine this matter in accordance with law but unless the Minister comes forward to change the position it had taken before Judge Street at Federal Circuit Court of Australia, it would not be in accordance with law for the Tribunal to find more favourably for the Minister, for the Tribunal in our respected view is an independent statutory body to aid applicants like in this case who have been victimized by the incompetence in part of Minister's delegate and long-standing administrative delay.
Considerations
The submissions made by the representative raise an interesting issue about whether a Tribunal, in considering a matter that has been remitted by consent of the Minister to be determined according to law, is bound by the law set out in the consent orders.
In the case of Pooniav MIAC [2011] FMCA 381 (Poonia), which related to a matter that had previously been remitted to the Tribunal for reconsideration by consent and the Tribunal again affirmed the decision on the same basis, the Court made the following observations:
[6] The orders made by the Court last year contained a notation that reflected a view of the interpretation of the condition which the Minister accepted on that occasion. The Tribunal on review took a different view. After considering the issues of interpretation the Tribunal stated at [69] of its reasons:
The Tribunal notes that, in making its Order of 26 May 2010, the Court did not consider the matter and the note to that Order, that the Department accepted that the Tribunal erred in finding that the fact that the applicant was not an accepted student did not invalidate the certification, is not binding law, simply the department’s position on the question.
[7] That paragraph is audacious. More seriously, however, it reflects a misunderstanding of the litigation process and the Tribunal’s position in that process. The orders made by the Court in 2010 were not simply a reflection of the view of the Minister’s Department. They were orders of the Court in litigation in respect of which the Minister had the responsibility on behalf of the Commonwealth. It was the Minister who compromised that litigation by agreeing to the consent orders made by the Court.
[8] Secondly, the orders made by the Court were binding upon the Tribunal which, in accordance with usual practice, entered a submitting appearance in which the Tribunal submitted to any order of the Court save as to costs. It is not open to the Tribunal, having entered a submitting appearance, to contest on rehearing the orders made by the Court.
[9] Some years ago it was agreed between the courts exercising jurisdiction under the Migration Act 1958 (Cth) and the legal representatives of the Minister that a notation should be included in consent orders remitting a case to the Tribunal. That notation serves two purposes. First, it informs the Tribunal of the essential legal reason for a consent remittal so that the Tribunal can deal with the matter in the light of the legal reasoning agreed to. Secondly, it informs the judicial officer dealing with proposed consent orders of the basis upon which the orders are proposed to be made. The Tribunal was wrong in assuming that consent orders do not reflect a judicial consideration. A judicial officer dealing with consent orders is not a blind factotum. The judicial officer is obliged to consider whether it is appropriate to make the consent orders.
[10] I have no doubt that Lloyd-Jones FM exercised that responsibility in approving the consent orders made last year. Those orders were binding upon the Tribunal and the Tribunal erred in not proceeding to rehear the matter in accordance with those orders. That error is, in my view, a jurisdictional error which would, in itself, be sufficient to support a writ of certiorari quashing the Tribunal decision and a writ of mandamus requiring the Tribunal to re-determine the matter, according to law.
While the Court’s observations in Poonia appear to support the applicant’s contention that the Tribunal in the present case, in reconsidering this matter, is bound by the consent orders, including the notations which form the basis for that remittal, the Tribunal considers that the circumstances of Poonia are quite different from those in the present case.
Firstly, the Tribunal notes that in Poonia there had been no judicial consideration of the issue in dispute and the only authority before the Tribunal at the time it was reconsidering the case was the consent remittal itself. The consent remittal in Poonia set out the basis on which the Minister consented to a particular interpretation of the provision in issue and the Tribunal in that case, in the absence of any other judicial authority, was bound to apply that interpretation at time of its reconsideration.

Secondly, unlike Poonia, there has been judicial consideration of the provision in issue in the present case. Whether item 6704(15) of Amending Regulations, which commenced on 18 March 2018, applied retrospectively to nominations which had ceased before the commencement date was the subject of judicial consideration in the case of Mangat, which was decided on 16 August 2019, being before the date of the consent orders.
Furthermore, subsequent to the consent orders, Judge Street, in another matter before the FCC (James v MICMSMA [2020] FCCA 1888 (James)), decided on 20 July 2020, which also related to the refusal of a Subclass 457 visa on the basis that the applicant was not the subject of a current approved nomination, remarked that the Tribunal correctly identified that there was an approved nomination in respect of the employee made on 21 April 2016 and that, by operation of r.2.75(2)(b) of the Regulations, that approval ceased on 21 April 2017. And by reference to cl.6704(15), his honour remarked that the Tribunal correctly found that those provisions apply to nominations which have not yet ceased by virtue of the operation of r.2.75(2)(b) of the Regulations as at 18 March 2018 and that the Tribunal had correctly found that the nomination in the present case had ceased well before that date.
Thirdly, in the present case, the Department informed the Tribunal that they considered the findings by the Court Mangat to be correct, thereby suggesting that the Minister’s decision to concede this matter was in error.
Returning to the issue of whether the Tribunal is bound by the consent orders in the present case, the Tribunal considers that it is so bound but only to the extent that it is “according to law”. This requires the Tribunal on remittal to consider what is the correct law, which may not necessarily be the same as that stated in the Notes of the consent orders.
In the judgement of BVT20 v MICMSMA [2020] FCAFC 222 at [58]–[59] it was observed, in relation to a matter that was remitted “for determination according to law”, that the Tribunal was bound to apply the law to the determination of the matter following its remittal, and that while in the usual case the law will have been correctly stated in the judgement that remits the matter, there may be exceptional circumstances where that is not the case.
The Tribunal considers that in the present case the correct law is as stated in Mangat. The approach in Mangat that item 6704(15) does not apply retrospectively to resurrect a nomination that had already ceased before the commencement appears to have been accepted by FCC in the matter of James, which post-dated the consent orders made in respect of this case.
In Mangat, the applicant’s nomination ceased in accordance with r.2.75(2)(b) in April 2017 and the Court held that item 6704(15) did not operate retrospectively to resurrect nominations that had already ceased before 18 March 2018. At [100] and [101] the Court stated:
Sub-cl.6704(15) is directed to benefit applicants before the Tribunal whose nominations would have ceased after 18 March 2018. This is in line with the explanatory statement and the purpose of sub-cl.6704(15) as a beneficial change to “extend the validity of a nomination” to avoid situations where the applicant is successful at the Tribunal but the related nomination has ceased to be in effect and the applicant cannot obtain a new nomination. Here, the applicant could have obtained a new nomination in the eleven months between when his nomination lapsed (on 5 April 2017) and when the Amending Regulations commenced (on 18 March 2018). He did not do so.
The type of situation that sub-cl.6704(15) sought to avoid was one where an individual was unable to obtain a new nomination. The applicant here did have the opportunity to obtain a new nomination. He failed to do so.…Had the applicant taken steps to obtain a new nomination (which likely would have seen the expiry of the nomination occur after 18 March 2018) then he would have benefited from sub-cl.6704(15) of the Regulations.
The Tribunal considers that the facts of the present case are the same as those in Mangat in that the applicant’s nomination ceased on 18 October 2017, which was five months prior to the commencement of the Amending Regulations and during which the applicant could have obtained a new nomination to support his pending 457 visa application.
In applying the reasoning in Mangat, the Tribunal finds that the applicant’s nomination ceased on 18 October 2017 by operation of r.2.72(2)(b) and that the applicant is not, at the time of decision, the subject of a current approved nomination for the purposes of the 457 visa. For these reasons, the requirements of cl.457.223(4)(a) are not met.
As the Tribunal has found that the first named applicant does not meet the requirements for the Subclass 457 visa, it follows that the second named applicant also does not qualify for the visa as she is not a member of the family unit of a person who holds the relevant visa.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
Given the above findings, the Tribunal must affirm the decision under review.
Referral to the Minister
The applicant’s representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
In considering whether to refer this matter, the Tribunal has had regard to the submission that the applicant would have been granted the temporary work visa had it not been for a sequence of errors and delays in dealing with his case. The Tribunal acknowledges that, contrary to the delegate’s findings, that the applicant has been found on review to possess the skills, qualifications and employment background necessary to perform the tasks of occupation in which he was successfully nominated. The Tribunal also acknowledges that the applicant was adversely affected by the legislative changes to the temporary work program which came into effect during the processing of the review and closed off applications for nominations in respect of pending 457 visa applications.
Further exacerbating the applicant’s circumstances was the delay caused by the decision to remit by consent his application for judicial review on the basis that the nomination had not ceased and was saved by the transitional provisions, which the Department has since advised was in error. Believing that his nomination was still valid, the applicant did not pursue any other alternatives to secure another temporary work visa and given the travel restrictions due to COVID-19, the applicant may not be able to depart Australia to apply for a work visa offshore.
The Tribunal considers that the strict application of the law in the circumstances of this case would lead to an unfair result, particularly given that the applicant continues to be employed in the occupation for which he has been nominated by his approved sponsor.
Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s policy, the Tribunal will refer the matter to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
R. Skaros
Senior Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.