Twinn v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 840

FEDERAL COURT OF AUSTRALIA

Twinn v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 840

LISA MAUREEN TWINN & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1548 OF 2004

EMMETT J
23 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1548 OF 2004

BETWEEN:

LISA MAUREEN TWINN
FIRST APPLICANT

PAUL CHRISTOPHER TWINN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

23 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1548 OF 2004

BETWEEN:

LISA MAUREEN TWINN
FIRST APPLICANT

PAUL CHRISTOPHER TWINN
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is concerned with the validity of a notice by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), dated 31 August 2004 and published in the Commonwealth of Australia Gazette of 8 September 2004 (‘the Notice’). The Notice purports to specify occupations as skilled occupations for the purposes of r 1.03 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which were made under the Migration Act 1958 (Cth) (‘the Act’). If valid in its entirety, the Notice has the effect of limiting the grant of certain kinds of visas for persons with particular skilled operations to persons who are likely to reside in areas where there is a shortage of persons having those skilled occupations.

2. On 14 July 2004, the applicants in the proceeding, Mrs Lisa Maureen Twinn and Mr Paul Christopher Twinn, completed a form of ‘Application for General Skilled Migration to Australia’ (‘the Application’), which was, in effect, an application for visas under the Act. Mrs Twinn was shown as the primary applicant and Mr Twinn was shown as her spouse. The Application called for the nomination of a category of visa. In the Application, the category of visa nominated was ‘Skilled – Australian Sponsored (Class BQ, Subclass 138)’. 

3. Accompanying the application was a form of ‘Sponsorship for Migration to Australia’.  The latter form was completed by Mrs Twinn’s sister, Mrs Lynn Clark Watharow.  Importantly, the form showed that Mrs Watharow’s residential address was in an area with the postcode 2076. 

4. On 25 September 2004, a delegate of the Minister wrote to Mrs Twinn, saying that the Application was invalid.  Mr and Mrs Twinn subsequently commenced this proceeding claiming relief under the Judiciary Act 1903 (Cth). Specifically, they claim:

   • an order quashing the decision of the delegate that the application is invalid;
   • a declaration that parts of the Notice are invalid;
   • a declaration that the Application is valid;

   ·an order for mandamus directing the Minister to determine the Application according to law.

5. Notwithstanding the provisions of s 474 of the Act, which purports to prohibit the granting of relief in relation to decisions made under the Act, the Minister does not dispute the jurisdiction of the Court to entertain the application. The Minister accepts that, if the Notice is invalid to the extent claimed, the delegate was wrong in concluding that the Application was invalid and there was a jurisdictional error on the part of the delegate in failing to deal with the Application.

   THE RELEVANT PROVISIONS OF THE REGULATIONS

6. Under the Regulations, an application for a Subclass 138 visa must comply with certain requirements, which are set out in clause 1128B of Schedule 1 to the Regulations. Under clause 1128B(3)(c) of Schedule 1, an application for a Subclass 138 visa must be accompanied (relevantly) by satisfactory evidence that a relevant assessing authority has assessed the skills of an applicant for the nominated skilled occupation of the applicant. 

7. Schedule 2 to the Regulations specifies the criteria that must be satisfied before granting a visa of a particular subclass. Clause 138.215 provides that one of the criteria to be satisfied at the time of the application for a Subclass 138 visa is that the applicant or the spouse of the applicant has nominated a skilled occupation in the application.  Under clause 138.224, a criterion that must be satisfied at the time of decision is that the skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. 

8. Regulation 1.03 contains definitions for the purposes of the Regulations. Under r 1.03, the term ‘skilled occupation’ means:

   ‘an occupation that is specified by a Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available.’

   The term ‘Gazette Notice’ is defined to mean either a notice in the Commonwealth Gazette by the Minister that is authorised by the Act, or a notice under r 1.17. Regulation 1.17 provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purposes of those provisions. Regulation 2.26B(1) provides that the Minister may, by notice in the Gazette, specify a person or body as the relevant assessing authority for a skilled occupation. No question concerning the validity of any of the Regulations has been raised in the proceeding.

9. In the Notice, the Minister purported to be acting under rr 1.17, 1.03 and 2.26B of the Regulations. The Notice relevantly provided as follows:

   ‘I,[the Minister]…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.’

   THE ISSUE

10. The Application was accompanied by an assessment of Mr Twinn as an Organisation and Methods Analyst by Vocational Education and Training Services (‘Vetassess’).  The occupation of Organisation and Methods Analyst is shown in Schedule A to the Notice and Vetassess is shown in Schedule A as the relevant assessing authority for that occupation.  The assessment of Vetassess was that the qualifications of Mr Twinn met the requirements for an Organisation and Methods Analyst and were suitable for migration purposes.  However, postcode 2076 is listed in Schedule C to the Notice and, while the occupation of Organisation and Methods Analyst appears in Schedule A to the Notice, it does not appear in Schedule B. 

11. The Minister contends that, accordingly, the Application was invalid because it did not satisfy the requirement of clause 1128B(3)(c), in that it was not accompanied by satisfactory evidence that a relevant assessing authority had assessed the skills of Mr Twinn’s nominated skilled occupation.  The Minister says, as her delegate concluded, that the effect of paragraph 4 of the Notice is to qualify paragraph 2, such that, in relation to a person who applies for a subclass 138 visa and whose sponsor resides in an area having a postcode listed in Schedule C, only an occupation referred to Schedule B is a skilled occupation within the meaning of Regulation 1.03. 

12. Mr and Mrs Twinn contend, on the other hand, that paragraphs 4 and 5 of the Notice are invalid, as not being authorised by rr 1.17 and 1.03. They say that, while the definition of skilled occupation in r 1.03 contemplates that a notice in the Gazette might specify skilled occupations, as paragraph 2 of the Notice does, the definition does not contemplate specifying a different list of skilled occupations in relation to persons whose sponsors reside in particular areas. The effect of paragraphs 4 and 5 of the Notice, they say, is to impose an additional criterion for the grant of a visa, by reference to the place of residence of the sponsor. They say that that criterion has nothing to do with any skilled occupation and paragraphs 4 and 5 of the Notice are, therefore, not authorised by r 1.03 or r 1.17.

13. It might be said that, on the face of the Notice, there is some inconsistency between paragraphs 2 and 4.  Paragraph 2 specifies each occupation in Schedule A as a skilled occupation for the purposes of the definition of skilled occupation in r 1.03. It does that in unexceptionable terms. Paragraph 4 then purports to do the same in relation to a limited class of persons. It does so by selecting a criterion that separates out a class of persons for the purposes of the Regulations, by changing the definition of skilled occupation in relation to that class of persons.  Paragraph 2 is not expressed to be subject to paragraph 4. 

14. However, paragraph 2 must be read as being subject to paragraph 4.  The effect of reading paragraph 2 as subject to paragraph 4 is that the Notice provides for two definitions of skilled occupation.  In relation to a person who applies for a Subclass 138 visa and whose sponsor resides in certain areas, the term skilled occupation means one thing.  In relation to any other person who applies for a visa, the term means something different. 

15. It is tolerably clear that that is what the drafter of the Notice was intending to do, although the drafting is less than felicitous.  Indeed, the Minister has seen the error of her ways.  Regulation 1.03 was amended by Migration Amendment Regulations 2005 (No. 1), of 23 March 2005.  By that instrument, a new definition of ‘skilled occupation’ in r 1.03 was substituted as follows:

    ‘skilled occupation means:

    (a)In relation to an applicant for a Skilled Australian Sponsored (Migrant) (Class BQ) visa whose sponsor has, on the sponsorship form, stated a residential address the postcode of which is specified in a Gazette Notice for this paragraph – an occupation:

    (i)that is in the Sydney and Selected Areas Skilled Shortage List specified in that Gazette Notice; and

    (ii)for which a number of points specified in that Gazette Notice are available; and

    (b)in any other case – an occupation that is specified in a Gazette Notice for this paragraph as a skilled occupation for which a number of points specified in that Gazette Notice are available.’

    However, that amendment has no effect in relation to the Application.  It cannot give any guidance as to the validity of the Notice. 

16. There is no reason why the term skilled occupation cannot be defined for the purposes r 1.03 as having different meanings in different contexts. While the drafting technique of the Notice, on its face, suggests some tension between paragraphs 2 and 4, I do not consider that that tension is sufficient to lead to any invalidity. I consider that it is not a ground of invalidity that the term skilled occupation is defined as meaning one thing in relation to certain applicants and something different in relation to other applicants. I consider that the Notice was valid. Accordingly, the Application does not comply with clause 1128B of Schedule 1 to the Regulations, because it was not accompanied by any evidence that Mr Twinn had been assessed for a skilled occupation, as that term is defined in relation an application where the sponsor resides in an area having the postcode 2076.  The Minister’s delegate was correct in concluding that it was therefore invalid. 

    CONCLUSION

17. It follows that the application by Mr and Mrs Twinn must be dismissed with costs. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 June 2005

Counsel for the Applicant:	Mr T. Reilly
Solicitor for the Applicant:	Christopher Levingstone & Associates
Counsel for the Respondent:	Mr R. Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 May 2005
Date of Judgment:	23 June 2005