Zhang v Minister for Immigration & Anor

[2012] FMCA 1011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1011

MIGRATION – Application to review decision of Migration Review Tribunal – whether the Tribunal erred in finding that the applicant did not satisfy the criterion for a Subclass 880 visa in subcl.880.230(1) of Schedule 2 to the Migration Regulations – whether the Tribunal had to consider whether Trades Recognition Australia was validly approved and specified as the relevant assessing authority for the occupation of Cook prior to the making of the legislative instrument IMMI 11/068 – whether the Tribunal erred in finding that IMMI 11/068 operated as specification of a relevant assessing authority within reg.2.26B of the Migration Regulations.

Acts Interpretation Act 1901 (Cth), ss. 23, 33, 46
Legislative Instruments Act 2003 (Cth), ss. 5, 12, 13, 24
Migration Regulations 1994 (Cth); regs.1.03, 1,15I; 2, 2.26B, 7

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Federal Airports Corporation v Aerolineas Argentinas and Others (1997) 76 FCR 582; [1997] FCA 723
Ignatious and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 139 FCR 254; [2004] FCA 1395
Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260
RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855
Singh v Minister for Immigration & Anor [2012] FMCA 145
Toowoomba Foundry Proprietary Limited v The Commonwealthand Others (1945) 71 CLR 545

Applicant: XIAO FENG ZHANG

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2708 of 2011

Judgment of: Barnes FM

Hearing date: 10 August 2012

Date of Last Submission: 3 September 2012

Delivered at: Sydney

Delivered on: 2 November 2012

REPRESENTATION

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2708 of 2011

XIAO FENG ZHANG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal dated 2 November 2011.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa. 

2. The applicant, a citizen of the People's Republic of China (PRC), first entered Australia in 2001 as the holder of a student visa.  He was subsequently granted further student visas and undertook Certificate and Diploma courses.

3. On 23 May 2007 the applicant lodged an application for a Subclass 880 Skilled – Independent Overseas Student visa. As explained by the Tribunal, the Subclass 880 visa is an onshore permanent visa for eligible overseas students who have been studying in Australia and who have recently completed an Australian qualification. Relevantly under cl.880.211 of Schedule 2 to the Migration Regulations 1994 (Cth) it is a criterion that at the time of application the applicant has applied for an assessment of his or her skills for a nominated skilled occupation by a relevant assessing authority. Under subcl.880.230(1) it is a criterion that at the time of the decision a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation and that there is no evidence that the information given or used in the skills assessment was false or misleading in a material particular.

4. In his visa application of 23 May 2007 Mr Zhang nominated the skilled occupation of Cook (see regs.1.03 and 1.15I of the Migration Regulations). He provided a positive skills assessment issued by Trades Recognition Australia (TRA) dated 21 March 2007 in respect of his nominated skilled occupation. However on 17 December 2010 TRA advised the Department of Immigration that it had decided to revoke the skills assessment issued to Mr Zhang (apparently on the basis of concern about the accuracy of information he had provided about his work experience).

5. On 9 February 2011 the applicant's application for a Subclass 880 visa was refused by a delegate of the first respondent on the basis that he did not meet the time of decision criterion in subcl.880.230(1) that a relevant assessing authority had assessed his skills as suitable for his nominated skilled occupation.  This decision was made on the basis that as the applicant’s skills assessment had been revoked he was unable to meet the requirements of this subclause.

6. The applicant sought review by the Tribunal.  The applicant's adviser provided a detailed written submission to the Tribunal on 14 June 2011 addressing the issue of when the applicant received notice of TRA’s revocation of the skills assessment.  The adviser informed the Tribunal that as the applicant had not received letters about revocation of the skills assessment sent to his previous postal address TRA had agreed to review its original assessment.  However by letter dated 10 March 2011 TRA had substituted a new opinion to the effect that the applicant’s application for a skills assessment had been unsuccessful. 

7. The applicant attended a Tribunal hearing on 15 June 2011.  According to the Tribunal’s account of the hearing, it raised with the applicant the fact that the critical issue was that he did not have a suitable skills assessment from TRA at that time.  His adviser told the Tribunal that the applicant wanted to lodge a fresh application to TRA and intended to do so within a couple of days.

8. The Tribunal allowed until 21 June 2011 for the provision of evidence that the applicant had applied to TRA for a new skills assessment.  On 21 June 2011 the applicant provided evidence to the Tribunal that he had registered an application for a provisional skills assessment with TRA on 20 June 2011 (which entitled him to provide TRA with supporting documents within 30 working days).  In a letter of 22 June 2011, the applicant's new migration agent pointed out to the Tribunal that the TRA assessment procedure had changed and now required the applicant to achieve certain scores in an IELTS English language ability test.  The applicant was to sit the test on or about 30 July 2011. 

9. By letter of 24 June 2011 the Tribunal acknowledged receipt of this information and clarified that it had not directed the applicant to lodge a new TRA application, but had given him the opportunity to do so.  The Tribunal also advised that it was of the view it was not required to assess the information given or used as part of the previous TRA assessment which had been revoked. 

10. On 15 July 2011 the Tribunal wrote to the applicant inviting him to provide information that TRA had assessed his skills as suitable for his nominated skilled occupation of Cook.  On 5 August 2011 the applicant’s representative advised the Tribunal that the skills assessment remained undetermined at that date.  On 12 October 2011 the Tribunal advised the applicant that it would allow until 1 November 2011 for the provision of evidence of a suitable skills assessment and that it would thereafter proceed to make a decision. 

11. On 13 October 2011 the applicant's adviser confirmed that no skills assessment had been issued to date. The adviser raised an issue as to whether TRA had been approved in writing by the relevant Minister as required by reg.2.26B(1A) of the Migration Regulations. It was submitted that TRA did not have authority to make a skills assessment in the absence of such approval.

12. On 21 October 2011 the Tribunal wrote to the applicant expressing the view that the “relevant instrument” for the purposes of reg.2.26B was IMMI 11/068 under which the relevant assessing authority for the occupation of Cook was TRA. The Tribunal expressed satisfaction that TRA had been approved in writing as the relevant assessing authority for the purposes of reg.2.26B and confirmed that it would allow until 1 November 2011 for the provision of evidence of a suitable skills assessment.

13. In a letter of 28 October 2011 the applicant's adviser took issue with the Tribunal's view about the approval of TRA on the basis that there was no “evidence” of an approval in writing by the Minister “in place at the time of the threshold TRA “approval”, or subsequent purposed [sic] revocation".  No evidence of a skills assessment was provided to the Tribunal. 

The Tribunal decision 

1. In its decision of 2 November 2011 the Tribunal summarised the applicable criteria for a Subclass 880 visa at the time of the visa application (23 May 2007) and at the time of its decision and referred to relevant legislation.  The Tribunal stated that the issue in the review was whether the applicant satisfied the time of decision criterion in cl.880.230, including the requirement that a relevant assessing authority had assessed the skills of the applicant as suitable for his nominated skilled occupation as required under cl.880.230. 

2. The Tribunal found that the relevant instrument specifying an assessing authority for the purposes of reg.2.26B was that in force at the time of decision. As the applicant had applied for this visa before 1 July 2010, that instrument was said to be IMMI 11/068. Under IMMI 11/068 the relevant assessing authority for the nominated skilled occupation of Cook was specified as TRA.

3. The Tribunal addressed the submissions of the applicant in relation to whether TRA had been approved in writing as the relevant assessing authority for the purposes of reg.2.26B. Having regard to the explanatory statement to IMMI 11/068 which expressly stated that the purpose of the instrument was to “specify relevant assessing authorities” that had been “approved in writing by the Education Minister or Employment Minister”, the Tribunal was satisfied that TRA had been approved in writing by the Education Minister or Employment Minister as the relevant assessing authority for the purposes of reg.2.26B. The Tribunal was of the view that it was not necessary for such written approval to be “publicly available” or “made in any particular form (such as a legislative instrument)”. The Tribunal observed that there was no indication that IMMI 11/068 had been disallowed or declared invalid. It considered that it was unnecessary to make further enquiries to satisfy itself that TRA had been approved in writing as the relevant assessing authority for the purposes of reg.2.26B.

4. The Tribunal found that the information before it was that TRA had revoked the skills assessment in respect of the applicant's nominated occupation of Cook which it had issued in March 2007.  Hence the original skills assessment was no longer in effect and could not be used to satisfy subcl.880.230(1) at the time of the Tribunal’s decision. 

5. The Tribunal recorded that the applicant had raised a number of procedural issues in connection with the decision of TRA to revoke the skills assessment and the Department's decision to refuse his visa application.  However the Tribunal found that, as explained at the hearing, the issue was whether the applicant had a suitable skills assessment from TRA.  The Tribunal pointed out that it was not undertaking a “review of the basis of TRA’s revocation”.  The Tribunal also expressed the view that issues relating to the information used or given as part of the skills assessment referred to in subcl.880.230(1) would not arise if the applicant did not have a suitable skills assessment. 

6. The Tribunal had regard to the fact that at the hearing in June 2011 the applicant had sought the opportunity to make a new skills assessment application to TRA and that he had been given such opportunity.  The Tribunal was of the view that the applicant had been given ample opportunity to obtain a current suitable skills assessment from TRA, but that he had not done so.  On the evidence before it the Tribunal found that at the time of its decision the applicant's skills had not been assessed as suitable for the nominated skilled occupation of Cook by the relevant assessing authority (TRA) and that he therefore did not satisfy the requirements of subcl.880.230(1).  As the applicant did not meet the time of decision criterion the Tribunal affirmed the decision not to grant the applicant a Subclass 880 visa. 

These proceedings

1. The applicant sought review by application filed in this court on 28 November 2011.  He now relies on an amended application filed on 4 May 2012.  There is one ground in the amended application.  It is as follows:

   The Tribunal erred in finding that the Applicant did not satisfy the requirements of cl.880.230. 

   Particulars

   (a)The Tribunal failed to consider whether Trade (sic) Recognition Australia was validly approved and specified (reg. 2.26B(1) and (1A)) as the relevant assessing authority for the occupation of Cook prior to the commencement of legislative instrument IMMI 11/068 on 1 October 2011, which it was not.

   (b)The Tribunal failed to have regard to s.12 of the Legislative Instruments Act 2003, thus made an erroneous finding that legislative instrument IMMI 11/068 applied retrospectively to the Applicant's visa application.

   (c)The Tribunal erred in finding that cl.880.230 was an operative provision in relation to the Applicant's visa application.

2. The parties each made written and oral submissions.  As an additional issue arose at the hearing, they also filed written submissions after the hearing.  The applicant relied on an affidavit of Christopher Hugh Levingston filed on 28 November 2011 annexing a copy of the Tribunal's decision.  He also sought to rely on an affidavit affirmed by him on 4 May 2012 in relation to the impact of new TRA requirements for a positive skills assessment.  In the face of objections from counsel for the first respondent, that affidavit was admitted provisionally subject to relevance.  I am of the view that the affidavit is admissible.  However given the findings outlined below it has not been necessary to consider the weight to be given to such evidence. 

3. Also in evidence before the court are copies of IMMI 11/068 (a legislative instrument headed “Skilled Occupations, Relevant Assessing Authorities, Countries and Points For General Skilled Migration Visas and Certain Other Visas” signed by the Minister for Immigration);  a copy of a document described as an “Instrument of Approval” for the purposes of reg.2.26B(1A) of the Migration Regulations signed by Chris Evans, the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, dated 15 September 2011; and a copy of a document dated 17 June 1999 signed by the Acting Assistant Secretary of the National Office of Overseas Skills Recognition (NOOSR) said to approve certain specified bodies as the relevant assessing authorities to make skills assessments for specified occupations for the purposes of reg.2.26B of the Migration Regulations.

Applicable legislation, instruments and other documents

1. Subclause 880.230(1) of Schedule 2 to the Migration Regulations is a criterion to be satisfied at the time of the decision in relation to an application for a subclass 880 visa. At the time of the visa application and at the time of the Tribunal decision it was as follows:

   (1) A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular. 

2. The criterion in subcl.880.230(2) is not in issue in these proceedings. Under reg.1.03 of the Migration Regulations, a "relevant assessing authority" means a person or body specified under reg.2.26B of the Migration Regulations and a “skilled occupation” has the meaning given by reg.1.15I.  It is not in dispute that “Cook” is a skilled occupation and was nominated by the applicant.  Regulation 2.26B, as in force at the time of the visa application (24 May 2007), relevantly provided:

   (1) The Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for a skilled occupation if the person or body is approved in writing by the Minister or Education (sic) as the relevant assessing authority for the occupation. 

   (2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.

3. The reference to “Education” in reg.2.26B(1) was explained in reg.1.03, which provided that “Education” meant the Department of Education, Science and Training. 

4. However by the time of the Tribunal decision (2 November 2011) reg.2.26B had been amended by the Migration Amendment Regulations 2007 (No.1) Select Legislative Instrument 2007 No.69 which amended subreg.2.26B(1) and inserted new reg.2.26B(1A) which was said to be applicable “in relation to the making or consideration of an application for a skills assessment on or after 1 July 2007” (see regs.2(b), 7(2) and Schedule 5). It is not in dispute that reg.2.26B(1A) is applicable in this case.

5. At the time of the Tribunal decision, reg.2.26B was as follows:

   (1)Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for: 

   (a) a skilled occupation;  and

   (b) one or more countries;

   for the purposes of an application for a skills assessment made by a resident of one of those countries. 

   (1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by: 

   (a) the Education Minister;  or

   (b) the Employment Minister.

   (2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.

6. The approval in writing referred to in reg.2.26B(1A) is a prerequisite to the specification by an instrument in writing within reg.2.26B(1). Under reg.1.03 the reference to the “Minister” is a reference to the Minister for Immigration and Citizenship, the “Education Minister” means the Minister for Education, Science and Training and the “Employment Minister” means the Minister for Employment and Workplace Relations.

7. At the time of the applicant’s visa application, the only relevant instrument in writing by the Minister for Immigration was IMMI 06/063.  Another instrument was signed on 16 June 2011 (IMMI 11/034) (but see Singh v Minister for Immigration & Anor [2012] FMCA 145 at [65]). IMMI 11/068, which was signed by the Minister for Immigration on 28 September 2011 and commenced on 1 October 2011 (prior to the Tribunal decision) was expressed to revoke IMMI 11/034. The first respondent submitted that IMMI 11/068 was an instrument in writing specifying a person or body as the relevant assessing authority for a skilled occupation within reg.2.26B(1) and that it specified TRA as the relevant assessing authority for the occupation of Cook at the time of the Tribunal decision.

8. As discussed below, the applicant contended that for a number of reasons IMMI 11/068 did not amount to a valid specification, that there was no other operative specification and hence that the requirements of cl.880.230 did not apply to the applicant’s visa application. 

9. IMMI 11/068 refers to various regulations in the Migration Regulations, including reg.2.26B(1). It states that the Minister is acting under certain regulations, including reg.1.15I and subreg.2.26B(1), and by Item 1 revokes Instrument IMMI 11/034.

1. Item 2 specifies a number of things "in relation to a person who applied before 1 July 2010", including relevantly:

   (i) for the purposes of  paragraph 1.15I(1)(a) of the Regulations, each occupation listed in Schedule 1A to this Instrument to be a skilled occupation that is applicable to the person; and

   …

   (iii) for the purposes of paragraph 2.26B(1)(a) of the Regulations, the person or body corresponding to each skilled occupation listed in Schedule 1A to this Instrument, as the relevant assessing authority for that skilled occupation…

2. Item 2(ii) specifies the number of points available in respect of each specific skilled occupation.  Item 2(iv) specifies the countries for which the specified person or body is the relevant assessing authority for a skills assessment application by a resident of such countries. 

3. Items 3, 4 and 5 specify persons or bodies corresponding to each skilled occupation listed in one of the Schedules to the Instrument as the relevant assessing authority for those skilled occupations for the purposes of specified regulations in relation to persons who applied for certain visas on or after 1 July 2010 (but before other specified dates).  Items 6, 7 and 8 specify points for various skilled occupations. 

4. Relevantly, Schedule 1A, which is referred to in each paragraph in Item 2 of the Instrument, is headed “Specification of skilled occupations, number of points, assessing authorities and countries”, for the purpose of listed paragraphs (including paragraphs (2)(a)(1) and 2(a)(iii) of the Instrument).  It is in a tabular form with the headings “Occupation”, “ASCO Code”, “Country”, “Assessing Authority” and “Points”.  There are sub-headings under the heading “Occupation” such as “Managers and Administrators”, “Professionals”, “Associate Professionals” and “Trades Persons and Related Workers”.  Under the sub-heading “Tradespersons and Related Workers” a number of occupations are specified, including relevantly “Cook”, which is described as having the ASCO code “4513-11”, Country "All", Assessing Authority “TRA” and Points “60”.

5. Also in evidence (and relied on by the first respondent as the relevant approval in writing under reg.2.26B(1A)) is a copy of a document headed “Commonwealth of Australia, Approval of Assessing Authorities, Sub‑regulation 2.26B(1A) of the Migration Regulations 1994, Instrument of Approval” dated 15 September 2011.  It provides:

   I, Chris Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations: 

   (a) Revoke any previous approvals made for the purpose of sub-regulation 2.26B(1A) of the Migration Regulations 1994; and

   (b) Approve for the purpose of sub-regulation 2.26B(1A) of the Migration Regulations 1994 the assessing authorities set out in Column A of the Schedule to this Instrument for the corresponding occupations set out in Column B of the Schedule.

   This instrument has effect from the date that it is made.

6. The instrument bears a signature over the title "Minister for Tertiary Education, Skills, Jobs and Workplace Relations".  The Schedule to this document contains two columns: Column A headed “Assessing Authority” and Column B headed “Occupation”.  “TRA” (which is explained at p.14 of the document to be a reference to Trades Recognition Australia) is listed as the assessing authority for a number of corresponding occupations in Column B, including, relevantly, “Cook”.  The applicant raised several issues about the validity of this document. 

7. A number of provisions in the Legislative Instruments Act 2003 (Cth) (the LIA) were referred to in submissions. Section 5 of the LIA is as follows:

   Definition – a legislative instrument: 

   (1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

   (a) that is of a legislative character;  and

   (b) that is or was made in the exercise of a power delegated by the Parliament. 

   (2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if: 

   (a) it determines the law or alters the content of the law, rather than applying the law in a particular case;  and

   (b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. 

   (3) An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument.

   (4) If some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of this Act.

8. Section 12 of the LIA regulates when provisions of legislative instruments take effect. It provides:

   (1) Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:

   (a) the day specified in the instrument for the purposes of the commencement of the instrument or provision; or

   (b) the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or

   (c) the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or

   (d) in any other case–the first moment of the day next following the day when it is registered.

   (2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

   (a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

   (b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

   (3) The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

9. Section 13 of the LIA deals with the construction of legislative instruments. Subject to contrary intention, under s.13(1)(a) the Acts Interpretation Act 1901 (Cth) (the AIA) applies to any legislative instrument as if it were an Act and each provision of the legislative instrument were a section of an Act. Under s.13(1)(b) expressions used in a legislative instrument have the same meaning as in the enabling legislation conferring on the rule-maker the power to make the legislative instrument. If, but for s.13, a legislative instrument would be in excess of the rule-maker’s power it is taken to be valid to the extent it is not in excess of that power (s.13(2)). If it confers power to make a legislative instrument “specifying, declaring or prescribing a matter” then “in exercising the power, the rule-maker may identify the matter by referring to a class or classes of matters” (s.13(3)). 

10. Section 24 of the LIA requires legislative instruments to be registered in accordance with Division 2 of Part 4 of the LIA.

11. Several provisions in the AIA are of relevance.

12. Section 23(b) of the AIA provides that in any Act "words in the singular number include the plural and words in the plural number include the singular". 

13. Section 33(3AB) of the AIA is to the same effect as s.13(3) of the LIA, but applies to instruments that are not legislative instruments.

14. Section 46 of the AIA deals with the construction of instruments that are not legislative instruments. It provides:

    (1) If a provision confers upon an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then:

    (a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act;  and

    (b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time;  and

    (c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority. 

    (2) If any instrument so made would, but for this subsection, be construed as being in excess of the authority's power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

15. It is not in dispute that the Migration Regulations are legislative instruments (and see Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [15] per French CJ, Gummow and Crennan JJ). Nor is it in dispute that IMMI 11/068 is a legislative instrument and subject to the LIA.

The applicant’s submissions

1. In written submissions the applicant contended in essence that the Tribunal erred in finding that the applicant failed to satisfy subcl.880.230(1) because it failed to consider whether subcl.880.230(1) was operative. This submission was put on the basis that the criterion in subcl.880.230(1) was only capable of being satisfied if the Minister had validly specified the relevant assessing authority for the occupation of Cook as required by reg.2.26B. It was submitted that in the absence of a valid specification cl.880.230 would be inoperative (see Singh).  A number of issues were raised by the applicant.  These were addressed by the first respondent and have been considered, notwithstanding that they are not all clearly raised by the ground in the application. 

2. In particular, the applicant submitted that TRA had not been validly specified as the relevant assessing authority for the occupation of Cook, either at the time of application or at the time of the Tribunal decision.  It was contended that while the Minister for Immigration had made Instruments IMMI 06/063 (prior to the time of application) and IMMI 11/068 (prior to the time of decision) purporting to specify TRA as the relevant assessing authority for the skilled occupation of Cook, these instruments had no effect to the extent that TRA had not been properly approved in writing by the “Minister or Education” (for the former) and by the Education Minister or the Employment Minister (for the latter) as the relevant assessing authority for the occupation of Cook as required by reg.2.26B(1) at the time of application and reg.2.26B(1A) at the time of decision. Hence it was submitted that cl.880.230 was inoperative and that the Tribunal had erred in finding that the applicant had to satisfy the requirements of that subclause.

IMMI 06/063 and the 1999 Approval

1. The applicant accepted that at the time of the visa application there was a purported approval in writing for the purposes of reg.2.26B signed by the Acting Assistant Secretary of the NOOSR in the Department of Education, Training and Youth Affairs dated 17 June 1999 that sought to approve TRA as the relevant assessing authority for the occupation of Cook. IMMI 06/063 was made after the approval in writing of 17 June 1999.

2. At the time of the 1999 Approval, reg.2.26B referred to approval of a relevant assessing authority by the NOOSR. However it was submitted that the purported 1999 Approval, even if initially valid, was not valid at the time of the visa application because on 1 July 2006 reg.2.26B was amended by the omission of the word "NOOSR" and the insertion of "Education".

3. There was said to have been no approval in writing by “the Minister or (sic) Education” for the purposes of r.2.26B of any person or body as the relevant assessing authority for the occupation of Cook at any time prior to the making of instrument IMMI 06/063 on 30 November 2006.

4. On this basis it was submitted that TRA had not been validly specified as the relevant assessing authority for the occupation of Cook by IMMI 06/063 and hence that there was no relevant assessing authority for the occupation of Cook at the time of the visa application by the applicant.  It was contended therefore that cl.880.230 was not operative at the time of the application. 

5. However, as the first respondent submitted, cl.880.230 is a time of decision criterion.  The relevant date for determining whether cl.880.230 was applicable to the applicant was the time of the Tribunal's decision on 2 November 2011, not the time of the visa application.  The applicant's submission that TRA was not so specified at the time of the visa application on 23 May 2007 does not address the time of decision criterion.  What is in issue is whether IMMI 11/068 (which commenced before the Tribunal decision) had the effect that TRA was specified as a valid assessing authority for a person such as the applicant at the time of the Tribunal decision. 

The 2011 approval

1. Secondly, the applicant submitted that Instrument IMMI 11/068, which purported to be a specification by the Minister for Immigration of TRA as the relevant assessing authority for the skilled occupation of Cook in relation to a person who applied for a visa before 1 July 2010, was not a valid specification because the prior purported approval in writing of TRA as the relevant assessing authority for the occupation of Cook by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations of 15 September 2011 was defective in that it did not give the approval required by reg.2.26B(1A).

2. The first basis for this contention was a submission that because sub-reg.2.26B(1A) required the Education Minister or Employment Minister to approve in writing a person or body as "the" relevant assessing authority for the occupation, the use of the singular words "the" and "authority" meant that the relevant Minister must specifically and only approve one person or body to be the relevant assessing authority for a particular occupation. The Instrument of Approval dated 15 September 2011 (as well as IMMI 11/068) stipulated multiple assessing authorities for some occupations (such as the CPAA, the ICAA and the IPA for the occupation of accountant (general)). This was said to mean that the Instrument of Approval did not give the approval required by reg.2.26B(1A).

3. It was submitted that such a construction of reg.2.26B was preferable on the basis that when read as a whole it was clear that it was intended that there be only one assessing authority for each skilled occupation. It was suggested that it would be contrary to reg.2.26B(2) and good public policy for there to be a possible variation in assessment standards if more than one person or body was the relevant assessment authority.

4. However the use of the singular “a person or body” in reg.2.26B(1) and “the person or body” and “authority” in reg.2.26B(1A) does not impose such a limitation. The Migration Regulations are legislative instruments. Under s.23(b) of the AIA (applicable by virtue of s.13(1)(a) of the LIA), words in the singular include the plural. Thus the power in regs.2.26B(1) and (1A) extends to specifying multiple assessing authorities for a single occupation.

5. Moreover even if, contrary to my view, the narrow construction of reg.2.26B contended for by the applicant is correct, there is only one assessing authority (TRA) specified for the skilled occupation of Cook in the Approval. Section 13(2) of the LIA would preserve the operation of reg.2.26B to the extent that it did not exceed the rule-maker’s power.

6. Further, as discussed below, I am of the view that the Approval is not a legislative instrument. Hence, even on the narrow construction of reg.2.26B(1A), s.46(2) of the AIA, which applies where a provision confers on an authority the power to make an “instrument” that is neither a legislative instrument or a rule of court (see s.46(1) of the AIA), would preserve the operation of the Approval in relation to the approval of TRA as the sole relevant assessing authority for the occupation of Cook.

7. In addition, the applicant submitted that the Approval of 15 September 2011 was defective because it merely categorised all the organisations listed in Column A of the Schedule as "assessing authorities". There was said to be no approval in writing of these organisations to be assessing authorities as required by reg.2.26B(1A). It was contended that because this document merely married organisations to corresponding occupations there was no approval of any person or body to be "the" relevant assessing "authority" for any occupation.

8. The applicant contended that it followed that the Instrument of Approval of 15 September 2011 had not discharged the statutory role imposed by reg.2.26B(1A) and that it was therefore invalid. On this basis there was said to have been no approval in writing within reg.2.26B(1A), so that there could be no specification within reg.2.26B(1).

9. However, as the first respondent submitted, when regard is had to the wording of the Instrument of Approval it is apparent that the Approval operates to approve for the purpose of subreg.2.26B(1A) the assessing authorities set out in Column A of the Schedule for the corresponding occupations set out in Column B of the Schedule.  Notwithstanding that the Approval refers to approving assessing authorities "for" corresponding occupations, it is clear that in effect this instrument constitutes an approval of TRA in writing as “the” relevant assessing “authority” for the occupation of Cook.  Neither of these contentions establish invalidity of the Approval in the manner contended for by the applicant.

10. Finally, an issue arose at the hearing about whether the Approval of 15 September 2011 was a legislative instrument and hence a nullity because it was not registered under Division 2 of Part 4 of the LIA.

11. When the nature of the Approval was first raised in the context of consideration of the contentions discussed above, the first respondent had conceded in relation to the interpretation of the Approval that it was a legislative instrument (although I note that the AIA applies both to the construction of legislative instruments by virtue of s.13(1) of the LIA and also other instruments by virtue of s.46(1) of the AIA). The applicant subsequently submitted that this meant that as the Approval was not registered as required under the LIA it was a nullity and had no effect (see ss.2(1) and 24 of the LIA). The first respondent sought and was granted leave to withdraw this concession and to address the applicant’s submission about the nature of the Approval and whether there was a need for registration. As this issue arose for the first time at the hearing, both parties were given the opportunity to make post-hearing submissions.

12. The applicant submitted that the Instrument of Approval was a legislative instrument within the definition in s.5 of the LIA because there must be an approval in writing under reg.2.26B(1A) before the Minister for Immigration could specify relevant assessing authorities under reg.2.26B(1). It was contended that the Approval determined the content of the law within s.5(2)(a) of the LIA in that it decided who the Minister for Immigration may specify as relevant assessing authorities. The applicant also submitted that such Approval created rights, both directly and indirectly, within s.5(2)(b) of the LIA in that it was said to create the right of the Minister for Immigration to specify approved persons or bodies to be relevant assessing authorities and the right of an approved person or body to assess skills assessment applications subject to specification by the Minister under reg.2.26B(1). No authority was cited by the applicant in support of the proposition that the Approval was legislative in character or within s.5(2) of the LIA. However it was submitted that as it was not registered the Approval was a nullity and hence that there was no effective approval in writing as required by reg.2.26B(1A) so that the subsequent Legislative Instrument IMMI 11/068 had no effect.

1. In post-hearing submissions the first respondent submitted that the Approval was not within the definition of a legislative instrument in s.5 of the LIA. It was said to be an instrument of an executive rather than a legislative character and simply a pre‑condition to the Minister for Immigration specifying relevant assessing authorities under reg.2.26B(1) and hence not within s.5(1) of the LIA. The first respondent also submitted that the Approval applied the law in a particular case, rather than determining the content of the law (see s.5(2)(a) of the LIA), that it did not in itself effect a privilege, create a right or impose an obligation (see s.5(2)(b) of the LIA) and pointed out that it was not subject to parliamentary disallowance and would not appear to involve wide or complicated policy considerations (see generally RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 at 194-202; [2001] FCA 855).

2. By s.5(1) of the LIA, a legislative instrument is defined as an instrument in writing of a legislative character that was made in the exercise of a power delegated by the Parliament. The qualifications in ss.6, 7 and 9 (in relation to instruments declared to be or not to be legislative instruments and rules of court) are not relevant in this case. Section 5(2) does not limit the generality of this definition. An instrument is only taken to be of legislative character under s.5(2) if both limbs of the subsection are satisfied. Thus, the instrument must both determine the law or alter the content of the law (rather than applying the law in a particular case) and have the direct or indirect effect of affecting a privilege or interest, imposing a right, or varying or removing an obligation or right to come within s.5(2).

3. RG Capital Radio concerned the issue of whether a determination was a decision “of an administrative character”.  However the Full Court of the Federal Court canvassed a range of factors that may also be of potential relevance in determining whether an instrument is “of a legislative character”.  Their Honours made the point (at [40]) that “[t]here is no simple rule” for distinguishing between the legislative and the administrative and also that the task is a matter of judgement that is to take into account all relevant considerations (at [42]).  The same may be said in this case (and see Federal Airports Corporation v Aerolineas Argentinas and Others (1997) 76 FCR 582; [1997] FCA 723 per Lehane J with whom Beaumont and Whitlam JJ agreed). It is necessary to examine the particular provisions of the Approval and the particular circumstances.

4. Apart from revoking any previous approvals made for the purpose of reg.2.26B(1A) all that the Approval does is to approve for the purpose of reg.2.26B(1A) the assessing authorities set out in Column A of the Schedule to the Approval for the corresponding occupations set out in Column B of the Schedule. It is expressed to have effect from the date it is made.

5. Assessment of skills by a relevant assessing authority is a criterion for various subclasses of visas (such as the criterion in cl.880.230 in relation to Subclass 880). A relevant assessing authority means a person or body specified under reg.2.26B (reg.1.03).

6. In contrast to reg.2.26B(1), which permits the Minister for Immigration to specify a person or body as the relevant assessing authority for a skilled occupation “by an instrument in writing for this subregulation”, reg.2.26B(1A) operates to prevent the Minister for Immigration making an instrument under subregulation (1) unless the person or body “has been approved in writing as the relevant assessing authority for the occupation” by the Education Minister or the Employment Minister. 

7. The distinction between the nature of the specification in reg.2.26B(2) and the approval in reg.2.26B(1A) is apparent. The former can be seen as an instrument in writing of a legislative character made in the exercise of a power delegated to the Minister for Immigration by the Parliament. In contrast, an approval under reg.2.26B(1A) is of an executive rather than legislative character (see s.5(1) of the LIA).

8. Section 5(2) does not limit the generality of the definition in s.5(1). In any event, such Approval would not be taken to be of a legislative character by virtue of s.5(2) (see RG Capital Radio).  The Approval did not determine rules of general application or “determine[e] the content of a law as a rule of conduct or a declaration as to power, right or duty” (see Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265).

9. Given the framework within which the Approval was made, it is also apparent that it did not in itself have the effect of affecting a privilege, creating a right or imposing an obligation.  I note that, while not determinative, the making of the Approval was not subject to parliamentary control by procedures for disallowance (see RG Capital Radio at [51]-[56]). 

10. In all the circumstances, as it is essentially of administrative character, I am not persuaded that the Approval is a legislative instrument. It was not necessary for it to be registered under the LIA to be operative as the necessary administrative prerequisite to the Minister for Immigration making the specification in reg.2.26B(1).

11. The applicant’s submissions in relation to the Approval do not establish that the Tribunal erred in proceeding on the basis that cl.880.230 was an operative provision at the time of the decision in relation to the applicant’s visa application. 

IMMI 11/068

1. In the alternative, the applicant made several submissions about the application and validity of IMMI 11/068. 

2. First, the applicant submitted that the specification in Item 2 of Instrument IMMI 11/068 was ambiguous as to the class or classes of persons to whom it applied, having regard to the use of the phrase "a person who applied before 1 July 2010" which was said to lack parameters.  It was submitted that specification by such an instrument had to be precise and clear, especially when the instrument was said to seek to have a retrospective operation.  The applicant drew a distinction between the generality of Item 2 and the more specific parameters identified in the other Items in the instrument.  On this basis it was contended that there had been no proper specification of TRA by the Minister as the relevant assessing authority in relation to the visa application. 

3. The applicant's contention is that Instrument IMMI 11/068 is ambiguous in referring to a person who "applied before 1 July 2010".  However it is clear in the context of the Instrument, which is headed “Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, that this is a reference to an application for a visa (see s.45 of the Migration Act and s.13(1)(b) of the LIA). It has not been established that Item 2 is ambiguous as to the class of persons to whom it applies. The applicant's contentions in this respect do not establish that the instrument is invalid.

4. It was also submitted that Item 2 of Instrument IMMI11/068 sought to operate retrospectively, insofar as it was said to purport to “specify” to apply in relation to a person who applied before 1 July 2010. Hence it was submitted that it offended s.12 of the LIA, which provides that a legislative instrument that would take effect before the date it was registered and as a result would affect rights or impose liabilities is of no effect. It is not in dispute that IMMI 11/068 is a legislative instrument to which the LIA applies.

5. The applicant submitted that Item 2 expressed a clear intention that the specifications that followed were to take effect from a past date.  It was submitted that this revealed an intention to the effect that the specifications were capable of removing or altering rights accrued prior to the instrument registration date, including rights accrued by persons whose applications had been finally determined and which had resulted in the grant of visas.

6. It was contended that at the time of the applicant’s visa application a right had been accrued to have the application assessed according to the law as it stood at the time of the application, that there had been no valid specification of TRA as the relevant assessing authority for the nominated skilled occupation of Cook at that time and hence that the law as it stood at that time did not include the need to satisfy cl.880.230 because that provision was inoperative. 

7. The applicant acknowledged that in Hu and Another v Minister for Immigration and Citizenship and Another (2007) 214 FLR 296; [2007] FMCA 1710 Smith FM had considered an argument that an amendment made by regulation to the time of decision criterion in cl.880.230 offended s.12(2) of the LIA, but found that the amending regulations did not purport to take effect before the date of registration. In Hu his Honour found that it was clear from the terms of transitional provisions that the amending regulations were intended to operate only in relation to future decisions in relation to visas which had not been granted and without making any alterations to the past legal position of any visa applicant (see Hu at [24]).

8. Smith FM observed in Hu (at [27]):

   ...I am inclined to the view that, after application and before a decision is made, a visa applicant has no more than a right to compel the Minister to make a decision on whether he or she is satisfied as to the prescribed criteria which are relevantly in force at the time of decision... It is then open to the Minister when making regulations, to specify whether a pending visa application must satisfy criteria as they in fact stand at the time of decision, or as they might have stood in earlier versions of the regulations.  On that construction, it was open to the Minister to make an amending regulation which made clear that an amended time-of-decision criterion is applicable to decisions on outstanding visa applications.  Where the legislative scheme authorised such an amendment, the applicants never acquired a right to compel the Minister to apply the previous criteria. 

9. The applicant submitted that the present case should be distinguished on the basis that there was no provision in IMMI 11/068 akin to the transitional provisions considered in Hu and because what was in issue was not an amendment to regulations but rather an instrument in which the Minister sought to specify a relevant assessing authority with what was said to be retrospective effect.  In other words, it was said that the Minister sought to empower a person or body with a particular function (namely to conduct a skills assessment) retrospectively, to the detriment of interested visa applicants in general.

10. On this basis it was contended that as the relevant specification in Item 2 of Instrument IMMI 11/068 offended s.12 of the LIA the instrument should be found to be void to the extent that it retrospectively sought to specify TRA as the relevant assessing authority for the occupation of Cook for the purpose of reg.2.26B(1). The applicant submitted that a contrary approach would be detrimental to the accrued rights of the applicant on the basis that he would have met the criteria for the visa for which he applied had cl.880.230 been inapplicable.

11. It was also pointed out that since 1 January 2010 TRA had revised the assessment process for positive skills assessments to include additional requirements, that the process took longer to finalise and that the costs of the assessment had been increased significantly, as attested to in Mr Zhang’s affidavit of 4 May 2012. 

12. Under s.12(1) of the LIA, Instrument IMMI 11/068 took effect on 1 October 2011, being the day specified therein for the purposes of commencement of the instrument. The first respondent submitted that it was registered on 30 September 2011. It is not in dispute that the instrument was registered before the commencement date. As it was dated 28 September 2011, that would have been the earliest date for registration. The applicant contended however that IMMI 11/068 took effect before that date, insofar as it specified TRA as the relevant assessing authority for the occupation of Cook in relation to a person who applied before 1 July 2010. It was submitted that in so specifying it affected the rights of a person as at the date of registration of IMMI 11/068 so as to disadvantage that person.

13. Section 12(2) of the LIA is set out above at [39]. However it only applies if, apart from subs.12(1), a legislative instrument or a particular provision would take effect before the date the instrument was registered and as a result rights would be affected or liabilities imposed.  However IMMI 11/068 does not purport to take effect before the date of registration.  In this respect the decision of Smith FM in Hu is in point. In that case amendments to the Migration Regulations registered on 26 June 2006 were said to apply to a visa application that had been made but not finally determined before 1 July 2006, as well as to visa applications made on or after 1 July 2006. In other words, the amendments only operated in relation to future decisions. Similarly in this case the legislative instrument did not purport to take effect before the date it was registered, notwithstanding that it would apply to future decisions in relation to visa applications that had been made before 1 July 2010. It is clear that the instrument reveals an intention to apply the provisions of Item 2 for the purposes of reg.2.26B(1) only in relation to future decision-making by the Minister or by the Tribunal about any undecided visa application for which there is an applicable criterion requiring or involving a specification of the kind set out in Item 2.

14. Section 12(1)(a) of the LIA relevantly provides that, subject to s.12(2), a legislative instrument takes effect from the day specified in the instrument for the purposes of the commencement of the instrument. The date of 1 October 2011 is specified in IMMI 11/068 as the day on which it commences. It did not on its proper construction take effect before the date of commencement. Nor did it purport to do so. It is not in dispute that it was registered prior to 1 October 2011 (on 30 September 2011 according to the first respondent). Hence it was not expressed to and did not take effect before the date it was registered and is not rendered of no effect by s.12(2) of the LIA (see Ignatious and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 139 FCR 254; [2004] FCA 1395 at [61]-[66]).

15. Nor can it be said that “as a result” of IMMI 11/068 or Item 2 thereof taking effect before the date of registration the rights of a person at the date of registration would be affected so as to disadvantage that person.  Rather, Item 2 of IMMI 11/068 only applies to time of decision criteria such as cl.880.230, which require assessment of skills of a visa applicant by a relevant assessing authority in relation to visa applications which, while made before 1 July 2010, had not been determined.  In other words, Item 2 only applies to a decision to be made after the date of registration of IMMI 11/068. 

16. The fact that the standards set by the relevant assessing authority at the time of the skills assessment would apply does not establish that a person's rights at the date of registration would be adversely affected by the instrument within s.12(2) of the LIA as the applicant appeared to contend (see Hu at [26]-[29]). It is clear that the instrument did not take effect before the date it was registered (also see Ignatious at [61]-[66]).

17. The applicant also referred to additional requirements now imposed by TRA for a positive skills assessment compared to the position at the time of his visa application.  However this does not alter the fact that it is not sufficient to show merely that IMMI 11/068 “will adversely affect the continuance or future enjoyment” of past rights in some sense (see Hu at [19]). IMMI 11/068 does not purport to take effect before the date of registration. This is not a case in which its operation is “such as to destroy as at a past date rights which then existed or to impose at a past date liabilities which did not then exist” (see Toowoomba Foundry Proprietary Limited v The Commonwealthand Others (1945) 71 CLR 545 at 568 per Latham CJ applied in Ignatious at [66] and in Hu at [23] in relation to s.12(2) of the LIA). Neither Item 2 nor IMMI 11/068 generally removed or altered rights as they stood at an earlier date. There is no apparent intention to make any alteration to the past legal position of any visa applicant.

18. Insofar as the applicant's contention in relation to alteration of his past legal rights involves a suggestion that the Minister or the Tribunal was obliged to apply the criteria for the visa as they stood at the time of the visa application (or as they stood at a time at which there was said to be no valid specification such that criterion 880.230 was inoperative), as Smith FM pointed out in Hu (at [27]):

    …after application and before a decision is made, a visa applicant has no more than a right to compel the Minister [or in this case the Tribunal] to make a decision on whether he or she is satisfied as to the prescribed criteria which are relevantly in force at the time of decision. 

19. While in the present case what is in issue is not an amendment to the Migration Regulations themselves, but rather specification by legislative instrument within the terms of reg.2.26B(1A), nonetheless the reasoning of Smith FM in Hu (at [27]) is in point. In any event, as in Hu, it is not necessary in this instance to decide whether the instrument had any effect on accrued rights of the applicant or other visa applicants, because instrument IMMI 11/068 did not take effect before the date that it was registered. It has not been established that Item 2 of IMMI 11/068 is of no effect having regard to s.12(2) of the LIA.

20. Finally, insofar as the applicant contended that the validity of IMMI 11/068 was affected by the fact that more than one assessing authority was specified for some occupations, I note again the operation of s.23(b) of the AIA (applicable to IMMI 11/068 as a legislative instrument by virtue of s.13(1)(a) of the LIA). Moreover s.13(2) of the LIA would preserve the operation of IMMI 11/068 even if there were a prohibition on specifying more than one relevant assessing authority, because only one such authority, the TRA, is specified in relation to the occupation of Cook.

21. The applicant’s submissions in relation to IMMI 11/068 do not establish that the Tribunal erred in the manner contended for in the application. 

22. The applicant has not established jurisdictional error on any of the bases contended.  Hence the application must be dismissed. 

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  2 November 2012