W&Y Property Management Pty Ltd as trustee for W&Y Family Trust v Minister for Home Affairs

W&Y Property Management Pty Ltd as trustee for W&Y Family Trust (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse a nomination application. The nominated occupation was "Property Manager," which was a qualifying occupation at the time the nomination application was made but had ceased to be so by the time of the decision. The Administrative Appeals Tribunal had found that the applicant failed to satisfy the occupation criteria and that the application was not genuine, dismissing the applicant's review application.

The primary legal issue before the court was whether the Tribunal had committed jurisdictional error in its findings. This involved determining the proper construction and application of various provisions of the *Migration Regulations 1994* (Cth), including regulation 2.72(10)(aa), and the transitional provisions contained in clause 6601 of Schedule 13 to the Regulations, as well as the instrument IMMI 17/060. The court also considered whether the Minister had the power to make IMMI 17/060 before the commencement of the relevant amending regulations and whether clause 6601 constituted an impermissible sub-delegation of power.

The court reasoned that clause 6601 of Schedule 13 correctly applied to IMMI 17/060, as the instrument was made for the purpose of paragraph 2.72(10)(aa) of the Regulations as amended by the *Migration Amendment (Specification of Occupations) Regulations 2017*. The court found no force in the argument that IMMI 17/060 could not be made before the commencement of the amending regulations, noting that the instrument commenced on the same day as the amendment and that section 4 of the *Acts Interpretation Act 1901* (Cth) permitted the exercise of powers before the commencement of an Act or amendment for the purpose of bringing an instrument into effect. Furthermore, the court rejected the submission that clause 6601 was an impermissible sub-delegation, holding that it did not amount to a delegation of legislative power but rather provided for the application of instruments made under existing regulations. The court also noted that the applicant failed to provide requested information to the Tribunal, which affirmed the delegate's decision on the basis that the applicant did not meet the relevant criteria.

The application for review was dismissed.