Twinn v Minister for Immigration and Multicultural and Indigenous Affairs

The case of Twinn v Minister for Immigration and Multicultural and Indigenous Affairs concerns an appeal against the decision of the primary judge who determined that the visa application of the appellants was invalid. The appellants sought a Skilled – Australian-sponsored (Migrant) (Class BQ, subclass 138) visa. The primary issue in this case is whether the specification power conferred upon the 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. The court was required to determine the validity of the power conferred upon the Minister under the Migration Act 1958 (the Act) and the Regulations to specify a class of occupations linked to designated areas in the Gazette Notice. The court considered the object of the Act, as set out in section 4, which is to regulate the coming into and presence of non-citizens in Australia in the national interest.

The court found that paragraph 4 of the Gazette Notice was invalid as it exceeded the power conferred by the Act and the Regulations. The court concluded that the specification power conferred upon the Minister was not sufficiently wide to authorise the specification of a class of occupations linked to designated areas. The court held that the power was limited to specifying occupations that were skilled occupations for which a number of points were available. The court also found that the appellants' visa application was rightly deemed invalid for failure to comply with item 1128B(3)(c) of the Regulations, as the application was not accompanied by evidence that a relevant assessing authority had assessed the skills of the male appellant for his nominated occupation, and the occupation was not specified as a skilled occupation in respect of him. The court allowed the appeal and set aside the order made by the primary judge, ordering the Minister to consider the application according to law. The court also ordered the Minister to pay the appellants' costs at first instance and on appeal.