Wang, Zeng Guang v Minister for Immigration & Multicultural Affairs

[1998] FCA 30

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - VISA APPLICATION - POINTS SYSTEM - DETERMINATION OF “USUAL OCCUPATION” OF APPLICANT - DETERMINATION MADE BY REFERENCE TO AUSTRALIAN STANDARD CLASSIFICATION OF OCCUPATIONS - WHETHER DETERMINATION EXHIBITED ERROR OF LAW.

MIGRATION ACT 1958, SS 92-96
MIGRATION REGULATIONS REG 2.26, SCH 6

ZENG GUANG WANG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG242 OF 1997

JUDGE:        WILCOX J
PLACE:        SYDNEY
DATE:          30 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG242  OF   1997

BETWEEN:

ZENG GUANG WANG

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

30 JANUARY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The decision made on 22 February 1997 to refuse the applicant’s application for a subclass 126 [Independent] visa be set aside.

1. The said application be remitted to the respondent Minister for determination according to law.

1. The said respondent pay the applicant’s costs of this proceeding.

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	NG242 OF 1997

BETWEEN:	ZENG GUANG WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	30 JANUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:  This case concerns provisions in the Migration Regulations relating to the points system used to determine applications for Australian entry visas.

The legislative framework

Part 2 of the Migration Act 1958 is entitled “Control of Arrival and Presence of Non-Citizens”. It includes Division 3, headed “Visas for Non-Citizens”. This Division contains Subdivision B (ss 92-96) which establishes the “points” system. Section 92 provides the Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is “that the applicant receives the qualifying score when assessed as provided by this Subdivision”. Section 93(1) requires the Minister to “make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant”. If the score of an applicant is more than, or equal to, the applicable pass mark at the time when the score is assessed, the applicant is taken to have received the qualifying score: see s 94(1). If not, but the applicant achieves a score more than, or equal to, “the applicable pool mark”, the application is put in a pool (see s 94(3)) and may ultimately be successful: see s 95. From an applicant’s point of view, a correct points assessment is of cardinal importance.

Division 2.6 of the Migration Regulations prescribes qualifications for visas and the number of points obtainable in relation to each of those qualifications.  Regulation 2.26(3)(a) provides that, for the purposes of s 93(1) of the Act, “the Minister ... is to give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any…