Twinn v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 242
•24 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
Twinn v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 242ADMINISTRATIVE LAW – validity of Gazette notice – nature and extent of Minster’s power by Gazette notice to specify an occupation as a ‘skilled occupation’ for the purposes of a visa criterion – where Minister specified a list of skilled occupations and a different list of skilled occupations in relation to persons whose sponsors reside in areas with particular postcodes – whether Minister’s power to specify a skilled occupation extends to specifying a class of persons who are to have the specified occupation – whether Gazette notice inconsistent with Migration Regulations 1994 – whether Gazette notice invalidly attempts to exercise legislative rather than administrative power.
Acts Interpretation Act 1901 (Cth) subss 23(b), 33(3A), 46(1)
Migration Act 1958 (Cth) ss 4, 31, 45, 46, 504Migration Regulations 1994 regulations 1.03, 1.17, 2.01, 2.26B, Sch 1, Sch 2
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 cited
Dainford Ltd v Smith (1985) 155 CLR 342 cited
Godkin v Newman [1928] NZLR 593 referred to
Hawke’s Bay Raw Milk Producers Co-operative Co Ltd v New Zealand Milk Board [1961] NZLR 218 cited
The State of South Australia v Tanner (1989) 166 CLR 161 referred toLISA MAUREEN TWINN AND PAUL CHRISTOPHER TWINN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1161 of 2005
BRANSON, BENNETT AND GRAHAM JJ
24 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1161 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LISA MAUREEN TWINN
FIRST APPELLANTPAUL CHRISTOPHER TWINN
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
BRANSON, BENNETT AND GRAHAM JJ
DATE OF ORDER:
24 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the primary judge on 23 June 2005 be set aside and in lieu thereof it be ordered that:
a.an order in the nature of certiorari issue to quash the decision of the respondent that the appellants’ application for a Skilled – Australian‑sponsored (Migrant) (Class BQ, subclass 138) visa (‘the application’) is invalid;
b.an order in the nature of mandamus issue requiring the respondent to consider the application according to law.
3.The respondent to pay the appellants’ costs at first instance and on appeal.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1161 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LISA MAUREEN TWINN
FIRST APPELLANTPAUL CHRISTOPHER TWINN
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES:
BRANSON, BENNETT AND GRAHAM JJ
DATE:
24 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BRANSON J
INTRODUCTION
The principal issue to be determined on this appeal is the nature and extent of the power given to the respondent (‘the Minister’) by regulation to specify an occupation as a ‘skilled occupation’ for the purposes of a visa criterion which requires an applicant to nominate a skilled occupation in his or her visa application. The statutory scheme which provides the context within which this issue is to be determined is identified below.
The appellants lodged an application for Skilled – Australian-sponsored (Migrant) (Class BQ, subclass 138) visas with the Minister’s Department. Thereafter they received advice in writing that the application was invalid because, in effect, the occupation nominated in the application as the occupation of the male appellant, while a skilled occupation for certain applicants, was not a skilled occupation in their case because of the residential postcode of their sponsor.
The appellants now appeal from the dismissal of their application for judicial review of the decision of the Minister that their visa application is invalid. For the reasons set out below I would allow the appeal, set aside the judgment of the primary judge the subject of this appeal, quash the decision that the appellant’s visa application is invalid and make an order requiring the Minister to consider the appellants’ application according to law.
STATUTORY SCHEME
Migration Act 1958 (Cth)
Section 31 of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides:
‘(1) There are to be prescribed classes of visas.
(2) …
(3)The regulations may prescribe criteria for a visa or visas of a specified class ...’
Section 45 of the Act provides that, subject to the Act and the Migration Regulations 1994 (‘the Regulations’), a non‑citizen who wants a visa must apply for a visa of a particular class. Subsection 46(1) relevantly provides that an application for a visa is valid if, and only if :
‘(a) it is for a visa of a class specified in the application; and
(b)it satisfies the criteria and requirements prescribed under this section …’
Section 504(1) of the Act vests in the Governor‑General very wide powers to make regulations. It is a power to make regulations:
‘not inconsistent with [the] Act, prescribing all matters which by [the] Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to [the] Act …’
Migration Regulations 1994
The Regulations have been made by the Governor‑General in the exercise of the powers vested in him by s 504 of the Act.
Regulation 1.03 contains a number of definitions which, unless the contrary intention appears, govern the meaning of certain words and phrases used in the Regulations. Two of those definitions are:
‘Gazette Notice means:
(a)a notice in the Gazette by the Minister that is authorised by the Act; or
(b)a notice under regulation 1.17’ and;
‘skilled occupation means an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available.’
Regulation 1.17 provides:
‘The Minister may, by notice published in the Gazette, specify matters required by individual provisions of these Regulations to be specified for the purposes of those provisions.’
Regulation 2.01 prescribes classes of visas for the purposes of s 31 of the Act. Amongst the classes of visas prescribed are the classes set out in the respective items in Sch 1 to the Regulations. Regulation 2.07 provides, in effect, that the approved form (if any), the visa application charge (if any) and other matters relating to an application for a visa of a particular class are also set out in the relevant Part of Sch 1.
The item in Sch 1 with which this appeal is particularly concerned is item ‘1128B. Skilled – Australian‑sponsored (Migrant) (Class BQ)’. Item 1128B(3)(c) provides:
‘Application must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant, or of the applicant’s spouse, for his or her nominated skilled occupation.’
Item 1128B(4) provides for two subclasses of the class of visa set out in the item, namely:
‘138 (Skilled – Australian‑sponsored)
139 (Skilled – Designated Area‑sponsored)’Regulation 2.03 provides that the prescribed criteria for the grant to a person of a visa of a particular class are, in effect, the criteria set out in the relevant Part of Sch 2 to the Regulations.
The criteria set out in the Part of Sch 2 to the Regulations concerned with the ‘Subclass 138 Skilled –Australian‑sponsored’ visa (‘subclass 138 visa’) include, amongst criteria to be satisfied at the time of application, the following:
‘138.211The applicant has one of the following relationships to a person (the sponsor) who has turned 18 and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:
(a) a parent;
(b) a child or adoptive child, or a step-child, who is not a dependent child of the sponsor;
(c) a brother or sister, an adoptive brother or sister or a step brother or step-sister;
(d) a nephew or niece, an adoptive nephew or niece or a step-nephew or step-niece.
138.212 The applicant is sponsored by the sponsor.
…
138.215The applicant has nominated a skilled occupation in his or her application.’
Additionally this Part of Sch 2 sets out criteria to be satisfied at the time of decision. This class of criteria includes the following criteria:
‘138.224The skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
138.225The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act [ie the ‘points’ system].’
The ‘points’ system established under Subdiv B of Div 3 of Pt 2 of the Act provides for applicants for relevant visas to be given a score based on the prescribed number of points for particular attributes. Regulation 2.26A identifies a Skilled – Australian‑sponsored (Migrant) (Class BQ) visa as a visa to which the ‘points’ system applies. Schedule 6A to the Regulations identifies the relevant attributes and the manner in which points are to be allocated in respect of those attributes. The relevant attributes include skill qualifications, age qualifications, language skill qualifications and employment experience qualifications.
The criteria set out in the Part of Sch 2 to the Regulations concerned with the ‘Subclass 139 Skilled – Designated Area‑sponsored’ visa (‘subclass 139 visa’) include, as criteria to be satisfied at the time of application:
‘139.211The applicant has one of the following relationships to a person (the sponsor) who has turned 18 and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:
(a) a parent;
(b) a child or adoptive child, or a step-child, who is not a dependent child of the sponsor;
(c) a brother or sister, an adoptive brother or sister or a step brother or step-sister;
(d) a nephew or niece, an adoptive nephew or niece or a step-nephew or step-niece;
(e) a grandchild or first cousin.
139.212The applicant is sponsored by the sponsor.
139.213The sponsor:
(a) is resident in a designated area; and
(b) was resident in one or other of the designated areas throughout the period of 12 months immediately before Immigration receives the relevant sponsorship (except for short absences for the purposes of business or recreation).
…
139.216The applicant has nominated a skilled occupation in his or her application.’
This Part of Sch 2 also sets out criteria to be satisfied at the time of decision. Item 139.225 is in identical terms to item 138.224 (see [15] above).
Regulation 2.26B of the Regulations authorises the Minister, by notice in the Gazette, to specify relevant assessing authorities for a skilled occupation.
By a Gazette Notice dated 31 August 2004 (‘the Gazette Notice’) the Minister purported to exercise the powers vested in her by regulations 1.03, 1.17 and 2.26B. The Gazette Notice is in the following form:
‘I, AMANDA VANSTONE, Minister for Immigration and Multicultural and Indigenous Affairs, acting under regulations 1.17, 1.03 and 2.26B of the Migration Regulations 1994 (‘the Regulations’), hereby:
1.REVOKE the notice signed on 14 May 2004 specifying skilled occupations and relevant assessing authorities for the purposes of regulations 1.03 and 2.26B of the Regulations;
2.SPECIFY each occupation referred to in Schedule A to this notice as a skilled occupation for the purposes of the definition of “skilled occupation” in regulation 1.03 of the Regulations;
3.SPECIFY for the purposes of regulation 2.26B of the Regulations each person or body referred to in Schedule A to this notice as the relevant assessing authority for the corresponding skilled occupation listed in Schedule A;
4.SPECIFY each occupation referred to in Schedule B as a skilled occupation for the purposes of the definition of “skilled occupation” in regulation 1.03 of the Regulations, in relation to persons who apply for a Subclass 138 (Skilled – Australian‑sponsored) visa on or after 1 September 2004 and whose sponsor resides in an area having a postcode listed in Schedule C; AND
5.SPECIFY for the purposes of regulation 2.26B of the Regulations each person or body referred to in Schedule B to this notice as the relevant assessing authority for the corresponding skilled occupation listed in Schedule B.
This notice takes effect on and from 8 September 2004.’
Schedule A to the Gazette Notice is approximately 10 pages in length. Schedule B is approximately four pages in length. Each of the occupations specified in Sch B as a skilled occupation for which a number of points specified in Sch B is available is also specified in Sch A as a skilled occupation for which the same number of points is available.
GENERAL PRINCIPLES
Notwithstanding ‘the so‑called separation of powers’ for which the Constitution provides, the Parliament may authorise in wide and general terms the making of subordinate legislation by the Governor‑General under any of the heads of its legislative power (see Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 257 per Fullagar J). In this context the expression ‘the Governor‑General’ means the Governor‑General acting with the advice of the Executive Council (s 16A of the Acts Interpretation Act 1901 (Cth)).
When a power to make delegated legislation has been conferred on the Governor‑General, the validity of a purported exercise of that power will depend on (a) whether the power has in fact been exercised by the Governor‑General and (b) whether it has been exercised in the manner and within the limits laid down by the statute conferring the power (Dainford Ltd v Smith (1985) 155 CLR 342 at 349 per Gibbs CJ).
It is not necessary in the context of this appeal to give consideration to whether the maxim delegatus non potest delegare (a delegate cannot delegate) is generally applicable to delegated legislation. Nothing in s 504, or the Act read as a whole, discloses an intention to authorise the Governor-General to sub-delegate the powers vested in him by s 504. This does not mean that the Governor-General is not authorised to make regulations that allow administrative functions to be undertaken by the Minister for the purpose of the regulations (see Hawke’s Bay Raw Milk Producers Co-operative Co Ltd v New Zealand Milk Board [1961] NZLR 218 at 223; approved in Dainford Ltd v Smith at 357 per Wilson J)
CONSIDERATION
Specification of a Skilled Occupation
The appellants submitted that the power vested in the Minister to specify skilled occupations by Gazette notice did not authorise the Minister to specify a different list of skilled occupations in relation to persons whose sponsors reside in areas with particular postcodes. The Minister submitted that, as the primary judge concluded, the Gazette Notice must be understood to provide two definitions of skilled occupation for different visa applications and, so understood, is valid.
The definition of ‘skilled occupation’ in regulation 1.03 (read together with s 504 of the Act and regulation 1.17) authorises the Minister, by a Gazette notice, to specify an occupation as a skilled occupation for which a number of points specified in the notice are available. It is not disputed that the reference in the singular number to ‘an occupation’ includes the plural ‘occupations’ (see subs 23(b) of the Acts Interpretation Act). It is also not disputed that the conferral of power to issue a Gazette notice with respect to an occupation or occupations is to be construed as including a power to issue a Gazette notice ‘with respect to a particular class or particular classes’ of occupations and, subject to any contrary intention appearing, ‘to make different provision with respect to … different classes’ of occupations (see subs 33(3A) of the Acts Interpretation Act).
However, there is, in my view, a clear distinction between a class of occupations and a class of persons who have an occupation or a class of occupation. By way of illustration, legal practice is an occupation. Solicitors are a particular class of legal practitioners. Litigation solicitors are a more restricted class of legal practitioners – as are litigation solicitors who specialise in intellectual property disputes. However, legal practitioners (or solicitors, litigation solicitors, or litigation solicitors who specialise in intellectual property disputes) who reside in Sydney are a class of persons whose occupation is legal practitioner (or solicitor, litigation solicitor or litigation solicitor who specialises in intellectual property disputes). They are not a class of occupation.
To specify a class or classes of occupations in relation to persons who satisfy a particular criterion is not simply to specify a class or classes of occupations; it is to do more than that. It is to specify a class of persons who have a class or classes of occupations.
Paragraph 4 of the Gazette Notice purports to specify each occupation in Sch B as a ‘skilled occupation’ in relation to persons whose sponsor resides in an area having a postcode listed in Sch C. It is common ground that the intention behind par 4 of the Gazette Notice is to limit the number of skilled immigrants coming to certain parts of New South Wales (‘the greater Sydney area’). It is not presently to the point that the Minister may consider that the national interest would be enhanced if more skilled immigrants were to settle outside the greater Sydney area. The issue is the extent of the power given by the Regulations to the Minister to specify an occupation as a skilled occupation for which a number of points specified in the relevant Gazette notice are available.
Nothing in regulations 1.03 and 1.17 of the Regulations suggests that the power given to the Minister relevantly to specify an occupation as a ‘skilled occupation’ extends to specifying a class of persons who are to have the specified occupation. For this reason I accept the submission of the appellants that par 4 of the Gazette Notice is invalid.
Inconsistency with Regulations
My conclusion that par 4 of the Gazette Notice is not supported by regulations 1.03 and 1.17 of the Regulations is strengthened by other considerations. Perhaps the most telling of these is the statutory scheme by which criteria for visas of a class are prescribed.
Section 31 of the Act provides that criteria for a visa or visas of a specified class may be prescribed by regulation (see [4] above). The Governor-General has by regulation 2.01 of the Regulations specified criteria for the two subclasses of the Class BQ visa, namely the subclass 138 visa and the subclass 139 visa (see [14] – [17] above).
The prescribed criteria for a subclass 138 visa require the applicant to have a nominated family relationship to an adult person (who is his or her sponsor) who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The prescribed criteria for this subclass of visa do not require the applicant’s sponsor to reside in any particular part of Australia.
By contrast, the prescribed criteria for a subclass 139 visa require the applicant’s sponsor to reside in a designated area and to have resided in one of the designated areas throughout the period of 12 months immediately before becoming the applicant’s sponsor. Indeed, the requirement that the applicant’s sponsor resides in a designated area is the criterion that most clearly differentiates a subclass 139 visa from a subclass 138 visa.
Whereas item 138.211 of Sch 2 to the Regulations specifies the criterion that the applicant have a family relationship with a sponsor who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, par 4 of the Gazette Notice purports to require the applicant to have a family relationship with a sponsor who not only has the status required by item 138.211 but who also satisfies the requirement that he or she is not resident in the greater Sydney area.
By purporting to place a requirement on an applicant for a subclass 138 visa that his or her sponsor reside in a particular part of Australia the Minister sought to alter the prescribed criteria for a subclass 138 visa. Indeed, she sought to alter a critical attribute of the subclass 138 visa, namely that it imposes no restriction on the places within Australia where a sponsor may reside.
Regulations 1.03 and 1.17 of the Regulations do not disclose an intention to authorise the Minister, by Gazette notice, to amend the criteria for a visa or visas of a specified class. They do not disclose an intention to authorise the Minister to change the character of subclass 138 visas from visas that allow for sponsorship Australia‑wide to visas that allow for sponsorship on a more restricted basis.
Invalid Exercise of Legislative Power
It was not contended on this appeal that by promulgating par 4 of the Gazette Notice the Minister purported to exercise a legislative, rather than an executive, power. It is therefore not appropriate for me to express any concluded view in this regard. However, I consider it appropriate to make the following observations.
Counsel for the Minister argued that it would be a legitimate exercise of the power vested in the Minister by regulations 1.03 and 1.17 for her to create by Gazette notice a subclass of occupations by reference to any factor which falls within the scheme of the Act and Regulations and is proportionate to their objectives. For present purposes, contrary to my view, I proceed on the assumption that par 4 of the Gazette Notice specifies each of the occupations identified in Sch B as a ‘skilled occupation’.
As mentioned above, s 504 of the Act vests in the Governor‑General wide powers to make regulations for the purposes of the Act. It is not suggested that regulation 1.17 of the Regulations is invalid as going beyond the power vested in the Governor‑General by s 504. However, it is plain that s 504 does not purport to authorise the Governor‑General to sub‑delegate the power to make regulations for the purposes of the Act. Regulation 1.17 of the Regulations is therefore to be understood to authorise the Minister to exercise administrative, not legislative, powers within the limits prescribed by the Regulations (see [23] above).
In my view it is arguable that par 4 of the Gazette Notice, if valid, is not the product of the mere exercise of an administrative power. It does not simply give certainty of meaning to the regulatory requirement for a ‘skilled occupation’. It purports to impose restrictions on the possible places of residence of sponsors of applicants for subclass 138 visas – notwithstanding that regulation 1.03 makes no mention of the place of residence of sponsors of applicants for subclass 138 visas. If par 4 of the Gazette Notice is a valid exercise of the power given to the Minister to specify an occupation as a ‘skilled occupation’, by parity of reasoning it would also (at the least) be a valid exercise of the power for the Minister to specify an occupation as a ‘skilled occupation’ in respect of persons of a particular age, in respect of a person with particular language skills and in respect of a person with certain employment experience. These are each, like the place of residence of the sponsor, attributes identified in Sch 6A to the Regulations (see [16] above). If the argument identified in [38] above is accepted, the power vested in the Minister by regulations 1.03 and 1.17 is even wider than hypothesised above.
If regulation 1.03, properly understood, purports to authorise the Minister to vary, or add to, the criteria for the grant of a subclass 138 visa in the way discussed above, it has done so without prescribing any limits within which the Minister must operate in exercising the power (see Godkin v Newman [1928] NZLR 593 at 597).
In my view, on the case advanced by the Minister, it may be arguable that par 4 of the Gazette Notice is invalid as a purported exercise by the Minister of legislative power. Indeed, it may be arguable that regulations 1.03 and 1.17 are invalid as an attempt to vest legislative power in the Minister.
Was Application In Any Event Valid
The appellants argued that, regardless of the validity of the Gazette Notice, their visa application was not invalid. The pro forma notification given to the applicants that their visa application was invalid referred to the criteria prescribed in items 1128B, 1128C and 1218A of Sch 1 to the Regulations. The particular ground of invalidity was specified as:
‘The applicant seeking to satisfy the primary criteria for a subclass 138 visa, whose sponsor prescribed postcode as per Schedule C of Gazette Notice 36, nominates a skilled occupation as per Schedule B of this Gazette Notice (SSASSL)’
The above ground must be understood as alleging that the application failed to comply with item 1128B(3)(c) (see [11] above).
The nominated occupation specified in the appellants’ visa application is ‘Organisation and Methods Analyst’. This is an occupation listed in Sch A to the Gazette Notice. Paragraph 2 of the Gazette Notice specified each occupation in Sch A as a skilled occupation for the purposes of the definition of ‘skilled occupation’ in regulation 1.03 of the Regulations.
However, if the validity of par 4 of the Gazette Notice is assumed, par 2 of the Gazette Notice has no application in respect of the appellants. The occupations specified as skilled occupations in respect of them on this assumption are the occupations referred to in Sch B. ‘Organisation and Methods Analyst’ is not an occupation listed in Sch B to the Gazette Notice.
For the above reason, in my view, if the validity of par 4 of the Gazette Notice is assumed, the appellant’s visa application was rightly deemed invalid for failure to comply with item 1128B(3)(c). Although the application was accompanied by evidence that an assessing authority had assessed the skills of the male appellant for his nominated occupation, that occupation was not specified as a skilled occupation in respect of him and the assessing authority was not specified by par 5 of the Gazette Notice as the relevant assessing body for his nominated occupation.
CONCLUSION
As mentioned above, I would allow the appeal and set aside the order made by the primary judge.
No party contended that a conclusion that par 4 of the Gazette Notice is invalid would render the Gazette Notice as a whole, and in particular par 2 thereof, invalid. It follows, on the view which I take, that the occupation nominated in the appellants’ visa application as the occupation of the male appellant was a ‘skilled occupation’ within the meaning of the Regulations as it was an occupation referred to in Sch A of the Gazette Notice (see par 2 of the Gazette Notice).
The Court has been advised that the Gazette Notice has been revoked. In the circumstances the only substantive order that need be made in lieu of the orders made by the primary judge are, in my view, an order quashing the decision that the appellants’ visa application was invalid and an order requiring the Minister to determine the application according to law.
I would order the respondent to pay the appellants’ costs at first instance and on appeal.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 24 November 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1161 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LISA MAUREEN TWINN
FIRST APPELLANTPAUL CHRISTOPHER TWINN
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
BRANSON, BENNETT AND GRAHAM JJ
DATE OF ORDER:
NOVEMBER 2005
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
BENNETT J
I agree with Branson J that paragraph 4 of the Gazette Notice is invalid. I agree with her Honour’s reasons at [1]-[29] for coming to that conclusion and with the orders proposed. I also agree with Branson J that, if paragraph 4 were valid, the appellant’s visa application was rightly deemed invalid for the reasons given at [43]-47].
I express no view on the matters raised by her Honour in [37]-[42]. It may be that the Migration Act 1958 (Cth) could validly and within the objects of the Migration Act 1958 authorise the Minister to make provision for a class of occupation linked to, for example, designated areas but that is not what has been done in the present case.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Associate:
Dated: 24 November 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1161 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LISA MAUREEN TWINN
FIRST APPELLANTPAUL CHRISTOPHER TWINN
SECOND APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
BRANSON, BENNETT AND GRAHAM JJ
DATE OF ORDER:
NOVEMBER 2005
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
GRAHAM J
The central issue in this appeal is whether the specification power conferred upon the Respondent Minister by the definition of “skilled occupation” in Regulation 1.03 of the Migration Regulations 1994 (“the Regulations”) as in force on 31 August 2004 was sufficiently wide to authorise paragraph 4 of a notice given by the Minister and published in the Commonwealth of Australia Gazette on 8 September 2004.
In construing the relevant definition it is appropriate to have regard to the object of the Migration Act 1958 (“the Act”) as set out in s4 of the Act namely:
“4(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…”
Under s31(1) of the Act there are to be “prescribed classes of visas” and under s31(3) the regulations may “prescribe criteria for a visa or visas of a specified class …”.
For the purposes of s31 of the Act the prescribed classes of visas are, inter alia, “such classes … as are set out in the respective items in Schedule 1 …” to the Regulations (see Regulation 2.01).
Schedule 2 to the Regulations makes provision for subclasses of visa (see Regulation 2.02).
Item 1128B in Schedule 1 to the Regulations makes provision for a class of visa identified as Class BQ namely “Skilled – Australian-sponsored (Migrant) (Class BQ)”.
Items 138.1 – 138.7 in Schedule 2 to the Regulations make provision for a “Subclass 138” in the “Skilled – Australian-sponsored” class and items 139.1 – 139.7 make provision for a “Subclass 139” identified as “Skilled – Designated Area-sponsored”. The latter class applies where the sponsor is “resident in a designated area” i.e. an area specified by Gazette Notice under item 6701 in Schedule 6 as a designated area (see items 139.111 and 139.213(a)).
Regulation 2.02(2) of the Regulations relevantly provides:-
“2.02(2)For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem ‘Subclasses’ in the item in Schedule 1 that refers to that class of visa.”
In relation to Class BQ visas item 1128B in Schedule 1 relevantly provides:-
“(1) Form: 47SK
(2) Visa application charge:
…
(3) Other:
(a)Application must be made in Australia but not in immigration clearance.
(aa) Application must be made by:
(i) posting the application …; or
(ii) having the application delivered by a courier service …
(b)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled – Australian-sponsored (Migrant) (Class BQ) visa may be made at the same time and place as, and combined with, the application by that person.
(c)Application must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant, or of the applicant’s spouse, for his or her nominated skilled occupation.
(4) Subclasses:
138 (Skilled – Australian-sponsored)
139 (Skilled – Designated Area-sponsored)”The requirements for a Subclass 138 visa as set out in Schedule 2 to the Regulations include:-
“138.211The applicant has one of the following relationships to a person (the sponsor) who has turned 18 and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:
…
(c)a … sister …;
…
138.212The applicant is sponsored by the sponsor.
138.213An assurance of support in relation to the applicant has been given, and has been accepted by the Minister.
138.214The applicant is less than 45 years of age.
138.215The applicant has nominated a skilled occupation in his or her application.
…
138.225The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
…”
Whilst the Note to item 138.225 in Schedule 2 to the Regulations does not form part of the Regulations it is instructive in terms of providing a brief summary as to what is meant by an applicant having the “qualifying score”. The Note provides:-
“Note That Subdivision of the Act provides in ss 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 (regulation 2.26A), and Schedule 6A, of these regulations. In certain circumstances, attributes of the spouse of an applicant may be taken into account (regulation 2.27A). Pool marks and pass marks are set from time to time by the Minister by notice in the Gazette (Act, s 96).”
Regulation 1.03 of the Regulations includes a series of definitions including “Gazette Notice” and “skilled occupation”. These definitions are as follows:-
“1.03 In these Regulations, unless the contrary intention appears:
…
Gazette Notice means:(a) a notice in the Gazette by the Minister that is authorised by the Act; or
(b) a notice under regulation 1.17.
…
skilled occupation means an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available.
…”Regulation 1.17 provides:-
“1.17The Minister may, by notice published in the Gazette, specify matters required by individual provisions of these Regulations to be specified for the purposes of those provisions.”
The Notice given by the Minister on 31 August 2004 specifying occupations and points therefor in accordance with the definition of “skilled occupation” was published in the Commonwealth of Australia Gazette Number 36 of 8 September 2004. It recorded that the specification took effect on and from 8 September 2004. Relevantly, the Minister’s notice provided as follows:-
“ Commonwealth of Australia
Migration Regulations 1994
SPECIFICATION OF SKILLED OCCUPATIONS AND RELEVANT ASSESSING AUTHORITIES FOR THE PURPOSES OF REGULATIONS 1.03 AND 2.26B OF THE MIGRATION REGULATIONS 1994
I, AMANDA VANSTONE, Minister for Immigration and Multicultural and Indigenous Affairs, acting under regulations 1.17, 1.03 and 2.26B of the Migration Regulations 1994 (‘the Regulations’) hereby:
…2.SPECIFY each occupation referred to in Schedule A to this notice as a skilled occupation for the purposes of the definition of ‘skilled occupation’ in regulation 1.03 of the Regulations;
3.SPECIFY for the purposes of regulation 2.26B of the Regulations each person or body referred to in Schedule A to this notice as the relevant assessing authority for the corresponding skilled occupation listed in Schedule A;
4.SPECIFY each occupation referred to in Schedule B as a skilled occupation for the purposes of the definition of ‘skilled occupation’ in regulation 1.03 of the Regulations, in relation to persons who apply for a Subclass 138 (Skilled – Australian-sponsored) visa on or after 1 September 2004 and whose sponsor resides in an area having a postcode listed in Schedule C; AND
5.SPECIFY for the purposes of regulation 2.26B of the Regulations each person or body referred to in Schedule B to this notice as the relevant assessing authority for the corresponding skilled occupation listed in Schedule B.
This notice takes effect on and from 8 September 2004.
Dated 31 August 2004.
AMANDA VANSTONE
Minister for Immigration and Multicultural and Indigenous Affairs
…”Schedule A to the Minister’s notice proceeded to specify numerous occupations under the headings “Managers and Administrators”, “Professionals”, “Associate Professional” and “Trades Persons and Related Workers”. Each of these occupations recorded on ten closely typed pages was given a specified number of “points” varying from 40 to 50 to 60. In addition an “Assessing Authority” was identified in respect of each occupation. The list of occupations under the heading “Professionals” included “Organisation and Methods Analyst” for which the specified number of available points was 50 and the assessing authority was “VETASSESS”.
Schedule B to the Minister’s notice bore the heading “Sydney and Selected Areas Skilled Shortage List”. It proceeded to specify numerous occupations under the heading “Managers and Administrators”, “Professionals”, “Associate Professionals” and “Tradesperson and Related Workers”. The list of occupations so specified is recorded on three and a half closely typed pages as opposed to ten pages for Schedule A. The Schedule B list specified the number of points available for each specified occupation which points were either 50 or 60 in each case. The Schedule also identified the relevant “Assessing Authority” for each occupation.
Schedule B did not include as a specified occupation “Organisation and Methods Analyst” in any category.
Under paragraph 4 of the Minister’s notice Schedule B applied in relation to persons seeking Subclass 138 (Skilled – Australian-sponsored) visas where the relevant sponsors resided in an area having “a postcode in Schedule C”. Schedule C identified numerous postcodes for Sydney, Gosford, Newcastle and Wollongong.
The Appellants submit that the Minister was without power to include in paragraph 4 of her Notice dated 31 August 2004 the words “in relation to persons who apply for a Subclass 138 (Skilled – Australian-sponsored) visa on or after 1 September 2004 and whose sponsor resides in an area having a postcode listed in Schedule C”.
Using a Form 47SK as required by item 1128B(1) in Schedule 1 to the Regulations the First Appellant applied (as the “Primary Applicant”) for a Skilled – Australian-sponsored (Class BQ, subclass 138) visa. Her application dated 14 July 2004 indicated that her spouse, the Second Appellant, would be “migrating” with her and provided details of his occupation, qualification record and employment history. The application, signed by the First Appellant as the Primary Applicant and also by the Second Appellant as an “accompanying person aged 16 years or over”, was received at the Department of Immigration and Multicultural and Indigenous Affairs Adelaide Skilled Processing Centre on 14 September 2004. The application for the visas would appear to have been accompanied by a “Sponsorship for migration to Australia” Form 40 completed by the First Appellant’s sister, Lynn Clark Watharow and dated 24 August 2004. That form identified the postcode for the area in which she resided (Wahroonga in the State of New South Wales) as “2076” i.e. one of the Sydney postcodes listed in Schedule C to the Minister’s Notice of 31 August 2004.
Inter alia, the sponsorship form indicated that Mrs Watharow resided in a three bedroom rented dwelling with her spouse and one child. She indicated that if her relatives were approved for migration and needed help with accommodation upon their arrival in Australia the Appellants would live with her.
In the visa application form the Second Appellant’s nominated occupation was “Organisation & Methods Analyst”.
If the operative parts of the Minister’s Notice were paragraphs 4 and 5 thereof then the Second Appellant’s nominated occupation of “Organisation & Methods Analyst” contained in the application for “Skilled – Australian-sponsored (Class BQ, subclass 138)” visas was not a specified skilled occupation within the meaning of Regulation 1.03 of the Regulations for which any points were available.
By letter dated 25 September 2004 the Adelaide Skilled Processing Centre of the Department of Immigration and Multicultural and Indigenous Affairs advised the First Appellant that the relevant application was “invalid because it did not meet the following criteria prescribed in items 1128B … of Schedule 1 of the Migration Regulations”:-
“The applicant seeking to satisfy the primary criteria for a subclass 138 visa, whose sponsor prescribed postcode as per Schedule C of Gazette Notice 36, nominates a skilled occupation as per Schedule B of this Gazette Notice …”
By an Amended Application dated 21 April 2005 the Appellants challenged the validity of paragraph 4 and Schedule B to the Minister’s Notice.
On 23 June 2005 the primary Judge dismissed the Appellant’s Application and ordered the Appellants to pay the Respondent Minister’s costs.
It is clear from the Regulations and consistent with the object of the Act, that there should be a points system directed at determining the desirability of applicants for Skilled – Australian-sponsored visas for migration to Australia. The points system allows for a gradation of skills and for different values to be placed upon different classes of potential migrants.
Given the differing needs of different parts of Australia in respect of skills I see no reason why the Minister may not specify points available in respect of different occupations which differentiate between persons having such occupations according to where the relevant sponsors reside. The logical consequence of such a power of differentiation would be to permit the Minister to specify different numbers of available points for a specified occupation depending upon whether the relevant sponsor resided in (say) South Australia or Victoria. It would also permit the Minister to specify the availability of a designated number of points for a specified occupation where the relevant sponsor resided outside a particular area without the necessity for specifying the availability of any points for such an occupation where the relevant sponsor resided within such area.
Plainly, the Minister does not sense the same need for some classes of skilled migrants in the Sydney, Gosford, Wollongong and Newcastle areas which she perceives to be in the national interest in other areas.
In evaluating occupations which the Minister may see fit to specify as skilled occupations and in determining what number of points should be available in respect of occupations so specified, it is significant to note that the Minister is not constrained to specify occupations as “skilled occupations” which are skilled occupations in normal parlance. She may specify any occupation she sees fit as a skilled occupation and provide for a specified number of points to be available in respect of such an occupation.
The primary judge held that paragraph 2 of the Minister’s notice must be read as being subject to paragraph 4. I would respectfully agree with this conclusion.
His Honour proceeded to conclude that the Notice provided for different definitions of “skilled occupation” depending upon whether or not the relevant sponsor resided in one of the areas to which Schedule C applied or not.
I am inclined to the view that the Minister’s Notice specified the availability of points for occupations specified as skilled occupations within Schedule B where the relevant sponsor resided in an area to which Schedule C applied and specified, by implication, the availability of points for occupations specified as skilled occupations within Schedule A for cases where the relevant sponsor resided elsewhere.
In my opinion it was within the power of the Minister to specify the availability of points in this way, notwithstanding the express provisions for Subclass 139 visas where the relevant sponsor was “resident in a designated area” within the meaning of item 139.213(a) in Schedule 2 to the Regulations. In the case of Subclass 139 visas additional residential requirements in respect of sponsors affected applications for such visas (see item 139.222 in Schedule 2).
The Minister’s specification of occupations and the number of points available therefor set out in her Notice could not be said to be so lacking in reasonable proportionality as not to be a real exercise by her of her powers (see per Wilson, Dawson, Toohey and Gaudron JJ in The State of South Australia v Tanner (1989) 166 CLR 161 at 168).
It follows, in my opinion, that paragraphs 4 and 5 of the Minister’s Notice were within power.
Some support for this conclusion is to be found in s33(3A) of the Acts Interpretation Act1901 (Cth) as in force at the relevant time:-
“33(3A)Where an Act confers a power to make … any instrument … with respect to particular matters … the power shall be construed as including a power to make … such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters.”
Under section 46(1) of the Acts Interpretation Act the provisions of the Acts Interpretation Act should apply to any instrument made by a person in the position of the Minister in accordance with the definition of “skilled occupation” in Regulation 1.03 of the Regulations as if it were an Act and as if each regulation were a section of an Act.
The appeal should be dismissed with costs.
I certify that the preceding thirty‑nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Dated: 24 November 2005
Counsel for the Appellants: T Reilly Solicitor for the Appellants: Christopher Levingston & Associates Counsel for the Respondent: R Bromwich Solicitor for the Respondent: Clayton Utz Date of Hearing: 1 November 2005 Date of Judgment: 24 November 2005
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