Singh v Minister for Immigration
[2014] FCCA 347
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 347 |
| Catchwords: MIGRATION – Validation of assessments of Trade Recognition Authority – effect of validation by legislative instrument of first positive assessment and later revocation of that assessment – whether there was a positive assessment before the Migration Review Tribunal when it found there was not – application for review dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.33(3) Legislative Instruments Act 2003, ss.12(2)(a), 13(1)(a) Migration Act 1958 Migration Regulations 1994, cl.485.221(1) Trade Recognition Authority, r.2.26B |
| Cases cited: Carr v Finance Corporation of Australia (1982) 150 CLR 139 at 151 Martinez v Minister for Immigration & Citizenship (2009) 117 FCA 337 McLachlan v Australian Securities Commission (1998) 52 ALD 298 Octavia v Minister for Immigration [2011] FMCA 16 at [83]-[86], [96]-[106] Shoebridge v Pasta Master Pty Ltd [2000] VSC 14 at [18]-[34] Silveira v Australian Institute of Management [2001] FCA 803 Singh v Minister for Immigration & Anor [2012] FMCA 145 at [65], [66] and [69] |
| Applicant: | KULJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 414 of 2012 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 13 September 2012 |
| Date of Last Submission: | 13 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 12 April 2012, as amended, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 414 of 2012
| KULJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 20 August 2012, the Applicant seeks to review the decision of the Migration Review Tribunal
(“the Tribunal”) dated 14 March 2012; which decision affirmed an earlier decision of a delegate of the First Respondent (“the Minister”) to refuse to grant the Applicant a skilled visa.
Background
The Applicant is a citizen of India, from the Punjab region. He first entered Australia on 19 April 2007 as the holder of a subclass 573 (Higher Education Sector) student visa valid to 30 April 2009. On 30 April 2009, the Applicant lodged an application for a Skilled (Provisional) (Class VC) 485 visa on the basis of his skilled occupation as a “graphic pre-press trades person”.
Clause 485.221(1) of the Migration Regulations 1994
(“the Regulations”) states that a successful application must provide evidence that:
“the skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.”
On 8 October 2008 the Trade Recognition Authority (“TRA”) gave a positive assessment of the Applicant’s skills in relation to his nominated occupation of graphic pre-press trades person.
However, by a letter dated 18 May 2009, the TRA informed the Applicant that following an investigation by the Department of Education, Employment and Workplace Relations (“DEEWR”) that the employment statements forming the basis for the positive assessment from his purported employer may not be genuine and invited him to respond.
Thereafter, by a letter dated 30 July 2009 the DEEWR informed the Applicant that the TRA had revoked the earlier positive assessment, effective 7 July 2009, and that “therefore your application [for the assessment] is unsuccessful” and that the Department of Immigration and Citizenship (as it was then known) had been notified.
At these times, however, through an apparent administrative oversight, the specification of the TRA as a relevant assessing authority had not happened. Regulation 2.26B provided, in part, as a prerequisite for the valid specification of the TRA as a relevant assessing authority the following was required:
(1A) the Minister must not make an instrument under subsection 1 unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:.
(a)the education Minister; or
(a)the employment Minister.
This had not been done and at the time of the Applicant’s original assessment the TRA was not properly specified as a relevant assessing authority.
The administrative oversight was corrected and that correction had retrospective application for all assessments by the TRA from 1 July 2007 to 30 September 2011.This period of retrospectivity covered the time of the original assessment and the subsequent purported revocation of it.
When the visa application came before the Minister’s delegate, it was refused on the basis that there was not a positive assessment pursuant to Clause 485.221(1).
On review to the Tribunal, it affirmed the decision of the delegate as it too found that at the time of the Tribunal’s decision, there was not before it an assessment from the TRA in conformity with clause 485.221(1).
Ground for review
In his amended application there was only one ground for review; namely,
1.The Tribunal erred in concluding that the Applicant did not satisfy 485.221(1)
Particulars
(a) The Applicant satisfied 485. 221(1) because at the time of the Tribunal’s decision, the skills of the Applicant had been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation.
(b) The Trade Recognition Authority issued a valid and favourable skills assessment to the Applicant in October 2008.
(c) At the time it made that skills assessment, the TRA in fact lacked the power to do so.
(d) Subsequently, in October 2011, the relevant Ministers retrospectively granted the TRA the power to issue that skills assessment in October 2008.
(e) In July 2009, the TRA purportedly revoked its own assessment of the Applicant’s skills that it previously provided in October 2008.
(f) The TRA’s purported revocation of its previous assessment is a nullity because the retrospective delegation address the validity of the skills assessment made in October 2008, but did not address the validity of revocation of that assessment.
(g) The TRA’s purported revocation of its previous assessment is a nullity because at the time of the purported revocation, the purported assessment had not yet been validated by the retrospective instrument. The TRA had no power to revoke something that at the moment of revocation, did not exist.
Contentions
Applicant’s contentions
The Applicant made two contentions, in the alternative.
First, the legislative instrument providing the validation of the TRA’s assessment did not retrospectively validate the “revocation” of that assessment. Accordingly, when the Tribunal considered this matter, it was contended, a valid positive assessment was before the Tribunal and the Tribunal, in effect, should have ignored the revocation as it was irrelevant.
Secondly, the applicant argued that at the time that the TRA purported to revoke its assessment, it was not a valid relevant assessing authority, nor was the original assessment valid for that reason. It follows then, it was said, that the attempt to revoke that assessment could not have happened as it could not revoke something that did not exist. It then follows that the purported revocation should be ignored, but the validation of the original assessment should be accepted.
In support of the first contention, the Applicant contended that the validating legislative instrument must be concise and carefully considered where there is the prospect that the operation of that legislation retrospectively would be adverse. The Applicant contended that to give validity to the revocation retrospectively would be adverse to him. In those circumstances a Court must be satisfied that it was the clear intention of the retrospective application of the validating legislative instrument was intended to operate with that adverse consequence.
The applicant contended that the validating legislative instrument[1] did not specify its operation to include revocation of assessments, only assessments; leaving a valid assessment at the time the Tribunal made its decision. The Applicant relied on a number of authorities and legislative interpretations in support of this contention. In Martinez v Minister for Immigration and Citizenship[2] it was held that an act which validates decisions of the Minister or a delegate to cancel a persons visa was held, in the absence of express reference not to, also validate decisions of a Tribunal relating to the cancellation.
[1] IMMI 11/068
[2] (2009) 117 FCA 337
The applicant highlighted that the validating legislative instrument did not speak of revocations and the explanation for the legislation did not speak of revocations of earlier assessments. In particular, my attention was drawn to s.12(2)(a) of the Legislative Instruments Act 2003. That subsection provides:
(2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a) the rights of a person, (other than the Commonwealth or an authority of the Commonwealth) as of the date of registration would be affected so as to disadvantage that person;”
It was contended that this provision precluded an adverse effect arising from the legislative instrument; which adverse effect was identified by the Applicant as the revocation of the positive assessment with the consequential result of a denial of the visa.
The applicant sought to rely on the comments and observations of learned legal authors on the question of retrospectivity and adverse consequences. First, I was referred to the learned work of Pearce and Geddes[3]. In [10.6] the learned authors made this broad and accepted statement of principle:
[3] Pearce & Geddes, Statutory Interpretation in Australia (5th ed)[10.6], [10.14]
“The presumption against retrospectivity only arises where so to read the legislation would impinge upon a person’s accrued rights or duties. This issue has arisen primarily in the context of the effect of the Interpretation Act provisions directed against retrospectivity. There is no reason to think that any different approach would be taken in relation to the common law presumption. Directly in point is the statement in the joint judgment of Mason, Murphy and Wilson JJ in the Carr v Finance Corporation of Australia (1982) 150 CLR 139 at 151;
The common-law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right if it were otherwise, the essential justice of the rule would be eroded.”
The learned authors went on to discuss the role and ramifications of validating Acts where in [10.14] they stated:
“On occasions, Parliament passes an Act that is intended to make legal that which was illegal prior to the commencement of the Act or alternatively to make illegal that which was legal. (The latter category can hardly be described as “validating” Act, the same principles apply to them.) Such acts clearly must operate retrospectively and from their very nature refute the applicability of the presumption.”
Later in that paragraph they stated:
“However, because its effect is to change the law retrospectively in its operation upon persons affected, the scope of the validation is carefully considered. Where that operation is adverse, a court will require that it be clear that retrospectivity was intended, so in Martinez v Minister for Immigration and Citizenship[4] an Act which validates decisions of the Minister or a delegate to cancel a person’s visa was held, in the absence of express reference, not to validate decisions of a tribunal relating to the cancellation.”
[4] (2009) 117 FCR 337,
The Applicant also cited Aronson, Dyer and Groves,[5] at [6.40], in support of the contention that the purported revocation of the assessment by TRA was ultra vires:
[5] Judicial Review of Administrative Action (4the ed), [6.40] and [6.80]
“Naturally, a delegate who exceeds the terms of the formal delegation acts ultra vires.”
The applicant contended that s12 of the Legislative Instruments Act 2003 should be read in light of the above accepted principle that retrospective legislation should be interpreted concisely with a view not to adversely affect rights, in the most general sense, that have accrued. The right in this instance that had accrued, it was said, was the validation of the October 2008 positive assessment, which right would be adversely affected if the purported revocation was also validated by the relevant legislative instrument.
The applicant relied on a number of authorities. The first was Octavia v Minister for Immigration[6], where Federal Magistrates Court considered the interpretation of Item 1136(3)(a) of Schedule 1 of the Regulations, pursuant to which it was a requirement going to the validity of the visa application that the applicant’s skills “must have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled application”. Nicholls FM (as he then was) held that Item 1136 (3)(a) was satisfied by a skills assessment that had been expressed to be valid for a period of two years, notwithstanding that this period had expired at the time of application. His Honour concluded that Item 1136(3)(a) did not require a skills assessment to be “current”, and that the temporal limitation expressed on the face of the assessment was irrelevant to the requirement in item 1136(3)(a), which imposed no such limitation. The applicant contended that this authority supported his position that at one stage a successful positive assessment was in place and it therefore satisfied the need for such pursuant to clause 485.221(1).
[6] [2011] FMCA 16
The other authority which the applicant sought to rely on was Singh v Minister for Immigration[7]. In that case at the time of decision the tribunal did not have before it a valid assessment because of the same difficulties about the valid specification of the TRA as a relevant assessing authority applied. Other required criteria had been met. His Honour Driver FM (as it then was) was of the view that no valid visa decision could be made in circumstances where a valid specification of the TRA, as a relevant assessing authority, had not taken place. However, at the time of His Honour’s decision the validating legislative instrument had been effected, which then could be availed by Mr Singh if the matter was remitted to the Tribunal for a rehearing. His Honour invoked s.12 of the Legislative Instruments Act 2003 to avoid a disadvantage to Mr Singh. By the same token, the applicant contended, he would obtain an assessment from the TRA if the matter was remitted to the tribunal.
[7] [2012] FMC 145
The Minister’s contentions
The Minister contended that the Tribunal was not in error in finding that it did not have before it a positive assessment from the TRA for the following reasons:
i.The letter sent by the DEEWR dated 30 July 2009 to the applicant not only spoke of revoking the previous assessment but also went on to say the “TRA is now of the opinion that your employment in the occupation of graphic pre-press tradesperson cannot be verified and therefore your application is unsuccessful.” (emphasis added) The reference to the applicant’s application as being unsuccessful, it was contended by the Minister, amounts in effect to an assessment, which under the validating legislative instrument is a valid assessment, resulting in the reality that at the time of the Tribunal’s decision, it did not have before it the necessary skills assessment from a relevant assessing authority. As a matter of fact, therefore, the Tribunal’s finding is a valid finding.
ii.The TRA’s opinion in July 2009 was effective to replace the earlier assessment and if necessary to revoke that earlier assessment. The Minister relies on s.33(3) of the Acts Interpretation Act 1901(Cth) which, in summary, provides that a statutory power to make an instrument can be exercised to repeal, rescind, amend, revoke or vary. A corresponding provision is to be found in the Legislative Instruments Act 2003 at s13(1)(a). However, although the broad proposition put in this way is pertinent and supportive of the Minister’s position, he does not rely upon it and draws a distinction with the power of the TRA, suggesting that it is not a statutory power. In support of that proposition the Minister relies on Silveira v Australian Institute of Management[8]. In that case his Honour Emmett J defined the administrative character of a decision under an enactment in the context of the Australian Institute of management being a relevant assessing authority as to the suitability of Ms Silveira. His Honour makes the following observations:
[34] It is a criterion for the grant of the visa contemplated by Ms Silveira that an assessment of the suitability of her skills for the occupation of Supply and Distribution Manager be made by the Institute. The source of the institute’s power to make an assessment by reason of its memorandum and articles of association. Neither the Act nor the regulations, confers any power on the institute. There is no other Act of Parliament or regulation that requires or authorises an assessment of skills by the institute.
[35] If the Institute makes an assessment, it does so because of a request made by an applicant. Even if the Institute had not been specified in the Gazette notice pursuant to r.2.26B, it would have been possible for the institute to make an assessment as to whether the skills of Ms Silveira are suitable for the occupation of Supply and Distribution Manager, as that occupation is described in the ASCO code.
[36] There would have been no consequences under the Act, if such an assessment were made. There is no duty on the Institute to conduct an assessment, unless it agrees to do so on terms agreed with a particular applicant. If the institute failed to do so, there does not appear to be any duty that could be the subject of mandamus.
[8] [2001] FCA 803
In essence, the Minister contended that the decision of a relevant assessing authority is not a decision under an enactment. In other words, an assessment in the context of this proceeding should not be regarded as an exercise of some statutory power; it is simply a factual event. It constitutes an opinion issued by a body. That opinion will have a consequence under the Regulations if the body satisfies the requisite description under the Regulations. If it does not meet that description, it does not make the assessment or opinion invalid, or void, or a nullity or ultra vires. It is simply one that would no longer be an assessment by a relevant assessing authority. Conversely, once the body is specified as a relevant assessing authority, its opinions have the consequence of satisfying the relevant criterion. The Minister submitted, in that context, the use by the Applicant of terminology such as ultra vires and nullity is a mischaracterisation or misuse of terminology. In support of that contention, the Minister relied upon McLachlan v Australian Securities Commission[9] as illustrative of the point being made. That case concerned an application to quash a report that had been prepared by the Australian Stock Exchange Limited, which then had relevance to certain statutory powers. His Honour Finn J made the following observation:
“First, Mr McLachlan made the global claim that if the ASX report is quashed, both it and the evidence on which it was based would have been illegally and invalidly obtained and hence could not be used by the ASC. The apparent basis of this assertion is unclear, although it seems to be suggested that if declared void the information both contained in the report and gathered by the ASX itself becomes “void” information. Such information could only be used, so it is said, if the ASC were then to gather it independently using its own powers, notwithstanding that it already knew and was possessed of that information. I am unable to understand why such a counter-factual consequence should follow from the squashing of a report as such. What is sought is the creation of a fiction. It is one thing to deny the use of information, for some reason. It’s another to deny its existence.”[10]
[9] (1998) 52 ALD 298
[10] pp 305 - 306
In similar vein, I took the Minister to be saying that the revocation was a reality which the Tribunal was entitled to treat as such. The Minister submitted that what the applicant was seeking to do, by characterising the TRA’s function as ultra vires, and therefore void, is really to slip into the wrong assessment of the meaning of the Legislative Instrument, when one should simply look at the facts and then ask whether the relevant assessing authority had assessed the skills as suitable; which at one stage it did, but then to also acknowledge that that assessment was withdrawn.
The final contention of the Minister was that the legislative instrument was not retrospective in nature, but prospective. It follows that if that were the case then the applicant’s focus on the retrospective aspects having to be clearly and concisely spelt out in the legislative instrument would not be relevant. The Minister developed this contention further, principally by reference to the case of Shoebridge and Shoebridge[11]. In that case, Her Honour Warren J (as she then was) considered the authorities that touched upon this contention and referred to with approval the judgment of his Honour. Dixon CJ in Maxwell v Murphy, where he stated:
“It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that: Maxwell on Interpretation of Statutes, 12 ed,pp.216-7. The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way ‘as to impair an existing right or obligation’ or ‘as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events’. Then, citing the Full Court in Robertson v City of Nunawading[12] where the Court observed:
“As Fullagar J said in Ku-Ring-Gai Municipal Council v Attorney -General (NSW) (1957), 99 CLR 251 at p. 269; [1957] ALR 953-‘What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences, of past events and transactions.”
[11] [2000] VSC 14
[12] (1973) VR 819
Consideration
The applicant through a clever construct attempts to take advantage of the oversight in not validly specifying the TRA as a relevant assessing authority. That has been attempted by first establishing a right, namely the benefit of a positive assessment in October 2008 created by the validating legislative instrument which, according to principle should be interpreted in a way that does not result in disadvantage caused to the applicant. That disadvantage would be to give validity to the revocation of the earlier positive assessment.
The applicant also seeks to argue that the purported revocation is of no effect when at the time it was purported to be effective, there was not a valid assessment in existence to revoke.
Should the TRA have been validly specified as a relevant assessing authority from the start, then the applicant could not complain about the revocation being invalid.
The first point I would make is that the categorisation of the letter from the DEEWR dated 30 July 2009 is, in my view, reflective, both in its rationale and its language of there having been a new assessment. In my view that new assessment is one validated by the legislative instrument. On that basis alone, the review should and will be dismissed.
In addition, however, I am persuaded by the Minister’s contention, supported as it is by authority, that in considering prospective legislation it is not fatal or inappropriate when applying that prospective legislation to have regard to antecedent conduct or facts. I accept the revocation of the assessment is a fact that the Tribunal was entitled to take into account when finding that it did not have before it an assessment that complied with clause 485.221. Again, the review should be dismissed on this basis.
I do not accept that the applicant would be disadvantaged in the sense of that term as used in s.12 of the Legislative Instruments Act 2003. The right which is said to be affected cannot be treated in isolation from the factual circumstances of this case. To acknowledge the subsistence of a positive assessment at the time of the Tribunal’s hearing but ignore the revocation or second assessment, in my view, is to create a fiction, which fiction would be counter to the clear legislative intent of the Migration Act1958 and the Regulations made thereunder as it would, on the material before me, give an unwarranted advantage to the applicant which the TRA had assessed as not genuine; an assessment which the applicant was not able, when invited to do so, disabuse the TRA of its new assessment.
Conclusion
For the above reasons, the application for review filed on 12 April 2012, as amended, should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 28 February 2014
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