Turkish Kebab and Pizza Shop Pty Ltd v Minister for Home Affairs

[2019] FCCA 188

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURKISH KEBAB AND PIZZA SHOP PTY LTD v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 188

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal identified and applied the correct law – whether the Tribunal incorrectly considered a legislative instrument – whether there has been a derogation of an existing right which was in place at the time of the making of the nomination application – no jurisdictional error identified – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.8

Legislation Act 2003 (Cth), ss.7, 12

Migration Act 1958 (Cth), ss.140GB, 476, 504, 505

Migration Regulations 1994 (Cth), reg.2.72

Cases cited:

ARJ17 & Minister for Immigration and Border Protection (2018) 360 ALR 64 Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430
Mathieson v Burton (1971) 124 CLR 1
Maxwell v Murphy (1957) 96 CLR 261

Applicant: TURKISH KEBAB AND PIZZA SHOP PTY LTD

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2324 of 2018

Judgment of: Judge Street

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

Solicitors for the Applicant: Mr C Levingston
Levingston & Associates

Counsel for the Respondents: Ms N Case

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

Date of order: 31 January 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2324 of 2018

TURKISH KEBAB AND PIZZA SHOP PTY LTD

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 August 2018 affirming a decision of a delegate not to approve a nomination under s 140GB of the Migration Act. 

2. These proceedings have procedurally travelled together with proceedings SYG 2665 of 2018, and it is common ground that the outcome of these proceedings is in substance determinative of the outcome of proceedings SYG 2665 of 2018.

3. The applicant applied for approval of the nomination under s 140GB of the Migration Act on 29 March 2016.  At that time, there was in existence a legislative instrument IMMI 15/092 which commenced on 1 July 2015 for the specification of occupations, a person or body, a country or countries 2015. That legislative instrument specified in paragraph (2) provides that:

   For the purposes of paragraph 2.72(10)(aa) of the Regulations, the occupations and their corresponding 6-digit code listed in Columns A and B of Schedule 1, and Columns A and B Schedule 2 to this Instrument.

4. The notes for Schedule 1 and Schedule 2 identified that triple asterisks in the occupation column, outlined that:

   “for a nomination or visa application for a Subclass 457 visa, the occupation excludes positions in Fast Food or Takeaway Food Service.” 

5. Mr Levingston, the solicitor for the applicant, submitted that the Tribunal had failed to apply this instrument in determining the application for approval.  Mr Levingston submitted that the Tribunal, by referring to the subsequent legislative instrument had engaged in jurisdictional error. 

6. Mr Levingston took the Court to the instruments referred to in the reasons of the Tribunal which, relevantly, included a provision in the legislative instrument IMMI 17/060 that defined the concept of “limited service restaurant” relevantly including:

   (a) a fast food or takeaway food service;

   (b) a fast casual restaurant;

   (c) a drinking establishment that offers only a limited food service; 

   (d) a limited service café,  including a coffee shop or mall café; 

   (e) a limited service pizza restaurant.

7. The Tribunal referred to legislative instrument IMMI 17/060 made on 28 June 2017 which commenced on 1 July 2017. The Tribunal noted that it was expressed to apply to all nominations made before that date which are not finally determined before 1 July 2017. The Tribunal referred to that instrument being repealed by IMMI 18/004 which applies to applications made on or after 17 January 2018, but which specifically provides that IMMI 17/060 continues to apply where the nomination was made and not finally determined prior to 17 January 2018.

8. The Tribunal found that the application in the present case was made on 29 March 2016 and accordingly, applied the definition of “limited service restaurant” in the legislative instrument IMMI 17/060 in determining whether or not the applicant’s nomination met the criteria under reg 2.72 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). 

9. Each of the legislative instruments in the present case were made pursuant to the power found in reg 2.72(10)(aa) of the Migration Regulations and are the subject of the constraints found in the Legislation Act 2003 (Cth) (“the Legislation Act”) by reason of being a legislative instrument. Part 2 of the Legislation Act includes in s 7, a simplified outline. That simplified outline, relevantly includes the concept that:

   “A legislative instrument or notifiable instrument commences on the day after the instrument is registered, or on another day provided by the instrument. Generally, the instrument does not apply retrospectively if that would adversely affect rights or impose liabilities.” 

10. Section 12 of the Legislation Act relevantly provides as follows:

    (1)  A legislative instrument or a notifiable instrument commences:

    (a)  at the start of the day after the day the instrument is registered; or

    (b)  so far as the instrument provides otherwise--in accordance with such provision.

    Note:      The instrument may provide for its commencement by enabling a commencement instrument to be made: see subsection (5).

    Retrospective commencement

    (1A)  Despite any principle or rule of common law, a legislative instrument or notifiable instrument may provide that the instrument, or a provision of the instrument, commences before the instrument is registered.

    Note:         The effect of this subsection is to allow legislative and notifiable instruments to commence retrospectively (subject to subsection (2)). This subsection is subject to a contrary provision (see subsection (4)).

    Retrospective application

    (2)  However, if a legislative instrument or notifiable instrument, or a provision of such an instrument, commences before the instrument is registered, the instrument or provision does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) to the extent that as a result of that commencement:

    (a)  the person's rights as at the time the instrument is registered would be affected so as to disadvantage the person; or

    (b)  liabilities would be imposed on the person in respect of anything done or omitted to be done before the instrument is registered.

    Retrospective commencement or application subject to contrary provision

    (4)  The effect of subsection (1A) or (2) in relation to an instrument is subject to any contrary provision in an Act.

    Commencement instruments

    (5)  Without limiting paragraph (1)(b), for the purposes of that paragraph, a legislative instrument or notifiable instrument may authorise the making of a commencement instrument in relation to the legislative instrument or notifiable instrument.

11. Mr Levingston submitted that the Tribunal should have found that the subsequent instruments, after the lodgement of the applicant’s application, had no application to the applicant in the present case because of s 12(2) of the Legislation Act. It was submitted that the subsequent instruments gave rise to the person’s rights as at the time the new instruments were registered, that would be affected so as to disadvantage the person. Mr Levingston relied upon the breadth of meaning of the term “right” and contended that the applicant had the right to have the application for nomination determined in accordance with the occupation criteria as identified in the instrument, IMMI 15/092 dated 25 June 2015.

12. Mr Levingston submitted that the subsequent instruments that provided an expanded, inclusive meaning of “limited service restaurant” meant that the applicant’s rights at the time of the new instruments would be affected so as to disadvantage the applicant because the requirement of limited service restaurant included a combination of specification categories. 

13. Mr Levingston acknowledged that the concept of a Fast Food or Takeaway Food Service was the subject of an exclusion found in the instrument IMMI 15/092 dated 25 June 2015 and drew attention to the fact that the exclusion was not by way of part of the definition of “limited service restaurant”.

14. Mr Levingston contended that the subsequent instruments gave rise to a derogation of an existing right which was in place at the time of the making of the nomination application. The instrument making power found in the present case in reg 2.72 of the Migration Regulations was itself made pursuant to the regulation making power found in s 140GB of the Migration Act which is as follows:

    (1)  A person who is, or who has applied to be, an approved sponsor, or a person who is a party to negotiations for a work agreement, may nominate:

    (a)  an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

    (i)  the applicant or proposed applicant's proposed occupation; or

    (ii)  the program to be undertaken by the applicant or proposed applicant; or

    (iii)  the activity to be carried out by the applicant or proposed applicant; or

    (b)  a proposed occupation, program or activity.

    (2)  The Minister must approve a person's nomination if:

    (a)  in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and

    (aa)  in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination--the person has paid the charge; and

    (ab)  in any case--the person is an approved sponsor; and

    (b)  in any case--the prescribed criteria are satisfied.

    Note 1:      Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.

    Note 2:      See section 140ZM for when a person is liable to pay nomination training contribution charge.

    (3)  The regulations may establish a process for the Minister to approve a person's nomination.

    (4)  Different criteria and different processes may be prescribed for:

    (a)  different kinds of visa (however described); and

    (b)  different classes in relation to which a person may be approved as a sponsor.

15. That regulation making power is to be read together with s 504 of the Act and s 505 of the Migration Act which are as follows:

    Section 504

    (1)  The Governor-General may 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 and, without limiting the generality of the foregoing, may make regulations:

    (a)  making provision for and in relation to:

    (i)  the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or

    (ii)  the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;

    (iii)  the way, including the currency, in which fees are to be paid; or

    (iv)  the persons who may be paid fees on behalf of the Commonwealth;

    (b)  making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;

    (c)  making provision for or in relation to the furnishing or obtaining of information with respect to:

    (i)  persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and

    (ii)  persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and

    (iii)  persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier;

    (d)  making provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph (c);

    (e)  making provision for and in relation to:

    (i)  the giving of documents to;

    (ii)  the lodging of documents with; or

    (iii)  the service of documents on;

    the Minister, the Secretary or any other person or body, for the purposes of this Act;

    (f)  prescribing the practice and procedure in relation to proceedings before a Commissioner or a prescribed authority under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations and the payment of expenses of witnesses;

    (g)  requiring assurances of support to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of assurances of support and the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the assurances of support are given;

    (h) making provision for the remission, refund or waiver of charges under the Migration (Health Services) Charge Act 1991 ;

    (i)  enabling a person who is alleged to have contravened section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units;

    (j)  enabling a person who is alleged to have contravened section 229 or 230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding:

    (i)  in the case of a natural person--30 penalty units; and

    (ii)  in the case of a body corporate--100 penalty units; and

    (jaa)  enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and

    (ja)  enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and

    (k)  prescribing penalties, of imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, in respect of offences against the regulations; and

    (l) making provision for matters that, under the Education Services for Overseas Students Act 2000 , are required or permitted to be prescribed in regulations made under this Act.

    (2) Section 14 of the Legislation Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations.

    (3)  The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.

    (3A)  The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).

    (4)  Regulations in respect of a matter referred to in paragraph (1)(g) may apply in relation to maintenance guarantees given before the commencement of this Part in accordance with the regulations that were in force under any of the Acts repealed by this Act.

    (5)  An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(g) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever.

    (5A) The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied:

    (a)  subsection (5) of this section;

    (b)  regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for:

    (i)  the enforcement of assurances of support; or

    (ii)  the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.

    (6)  In this section:

    "international air carrier" means an air transport enterprise that operates an air service between Australia and a place outside Australia.

    Section 505

    To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

    (a)  is to get a specified person or organisation, or a person or organisation in a specified class, to:

    (i)  give an opinion on a specified matter; or

    (ii)  make an assessment of a specified matter; or

    (iii)  make a finding about a specified matter; or

    (iv)  make a decision about a specified matter; and

    (b)  is:

    (i)  to have regard to that opinion, assessment, finding or decision in; or

    (ii)  to take that opinion, assessment, finding or decision to be correct for the purposes of;

    deciding whether the applicant satisfies the criterion.

16. The Macquarie Dictionary, relevantly gives a broad definition to the meaning of “right”. One of the meanings includes “that which is due to anyone by just claim: to give one his or her rights”. The Macquarie Dictionary also includes the definition of a “privilege, usually pre-emptive, which accrues to the owners of the stock or a bond.”  

17. Whilst not determinative of the statutory construction question in the present case, s 8(c) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) is a provision that made reference to any right acquired or accrued under an Act. The High Court of Australia in Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430 in the majority decision made reference to the scope of the meaning of “right” and that it could be fairly construed as including an inchoate or contingent right. The High Court of Australia however identified that it did not include merely “a power to take advantage of an enactment”. In Mathieson v Burton (1971) 124 CLR 1 at [23], the learned Gibbs J as he then was, had occasion to address the meaning of s 8 of the Acts Interpretation Act having made reference to the common law of Maxwell v Murphy (1957) 96 CLR 261 at [267]. Relevantly, his Honour said that the provision in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment and does not apply where there is merely a hope or expectation that a right will be created.

18. The first step required by the Court in the circumstances of the present case, is to ascertain the nature of the right asserted by the applicant said to fall within s 12 of the Legislation Act. The applicant’s alleged right is said to be the entitlement or expectation upon filing of the application for approval of the nomination on 31 March 2016 to have that application determined, relevantly, under the occupational criteria then applicable. 

1. Section 140GB of the Migration Act makes express reference to regulations establishing a process for the Minister to approve an approved sponsor’s nomination and also makes reference to different criteria and different processes being able to be prescribed for different kinds of visa and different classes in relation to which a person may be approved as a sponsor. Section 140GB(2) of the Act imposes an obligation upon the Minister to approve the approved sponsor’s nomination if relevantly in s 140GB(2)(b) that as a cumulative requirement “in any case -- the prescribed criteria are satisfied”.

2. The regulation making power includes Schedules to the regulations that identify a requirement for applications to be made in an approved form and for certain charges, as well as setting out in Schedule 2 particular criteria. In construing s 12 of the Legislation Act, it is relevant not only to take into account the language of the provision and its context including in s 7 of the Legislation Act, but also the effect of subsection (b) preventing retrospective application in respect of liabilities being imposed on a person in respect of anything done or omitted to be done before a particular day.

3. The reference to liabilities is of broader scope than the reference to “person’s rights”. On its plain and ordinary meaning, the reference to “person’s rights” should be taken to mean that which is due to anyone by a just claim. Clearly, it would include a property right as identified by the Full Court of the Federal Court of Australia in ARJ17 & Minister for Immigration and Border Protection (2018) 360 ALR 64 where, relevantly, the learned Rares J at [94] identified a “detainee’s rights to hold and possess his or her mobile phone” as falling within the scope of s 12(2)(a) of the Legislation Act. 

4. The lodging of the application for the nomination did not of itself give rise to a right to have the application determined under the occupation criteria in the instrument in place at the time of the filing of the application. There was no more than a power to take advantage of an enactment or a hope or expectation that the nomination may be approved. The applicant did not at the time of the lodgement of the application have any inchoate or contingent right to the visa. The applicant merely had the expectation or hope that he may be able to satisfy the requirements of s 140GB(2) of the Migration Act.

5. I accept Mr Levingston’s argument, that the effect of the provision in the subsequent instruments is to give retrospective effect to the occupational criteria. However, that retrospectivity was not rendered ineffective or invalid by reason of s 12(2) of the Legislation Act because the applicant did not have a right, as alleged by Mr Levingston within s 12(2)(a) of the Legislation Act.

6. The applicant’s hope or expectation that the application lodged may meet the requirements of section 140GB(2)(b) was not within the meaning of “the person’s rights” as at that day found in s 12(2) of the Legislation Act.

7. The Court raised with Mr Levingston and the first respondent’s submissions also raised the issue of whether, in fact, there was any scope for the application of s 12(2) of the Legislation Act in respect of the change in the criteria concerning occupation because even if within the meaning of the “person’s rights”, on the material before the Court, the applicant’s rights to have the application processed under the existing occupation criteria would not be affected so as to disadvantage the applicant. That is because the criteria under the instrument IMMI 15/092 in force as of 1 July 2015 as a matter of substance excluded “Fast Food or Takeaway Food Service”.

8. The Tribunal in the present case in applying the instrument IMMI 17/060 found that the nominator is conducting a business as a fast casual restaurant offering predominantly takeaway food service and that the nomination falls within the excluded occupation in the instrument because the business conducted is primarily a limited service restaurant.  The reference to a fast casual restaurant is found in the expanded, inclusive definition in a recent instrument, and if the Tribunal’s reasoning had been confined to that proposition, there might have been some force in Mr Levingston’s argument if there was a person’s right that would be affected so as to disadvantage the applicant. 

9. However, it is clear that the reasoning of the Tribunal in this case was that the nominator was conducting predominantly a takeaway food service. A “takeaway food service” is what was excluded under the instrument in force at the time of application, and in those circumstances, the Court is not satisfied that it could be said that the applicant, even if falling within the meaning of “person’s rights” by reason of the lodgement of the application, gave rise to circumstances in which those rights would be affected so as to disadvantage the applicant. That is because the applicant could not have succeeded under the instrument in force from 1 July 2015 given the findings made by the Tribunal. The expansion of the exclusion from the relevant occupation in the definition of “limited service restaurant” is not one by reason of which the applicant’s rights as at the day of the commencement of the instrument would be affected so as to disadvantage the applicant. Accordingly, s 12(2) of the Legislation Act 2003 (Cth) gives no application to IMMI 15/092 in the present case and the Tribunal was correct apply IMMI 17/060.

10. Accordingly, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 March 2019