Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs

Relevant legislative provisions 5 It is appropriate to follow the legislative path which leads to the consideration of whether an occupation nominated by an applicant is an occupation in demand. It commences with s 65 of the Act which empowers the Minister (or his delegate) to grant visas and obliges the Minister to grant a visa if, relevantly, criteria prescribed by the Act or Regulations have been satisfied. That section provides: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. … 6 The prescription of criteria in the Regulations is founded on s 31 of the Act which provides: (1) There are to be prescribed classes of visas. (2) … (3) The regulations may prescribe criteria for a visa or visas of a specified class … … The mechanism for establishing classes of visas and criteria in general were, at the relevant time, prescribed by regs 2.01, 2.02 and 2.03(1) which provided: Part 2 Visas Division 2.1 Classes, criteria, conditions etc 2.01 Classes of visas (Act, s 31) For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and … [Note For the classes created by the Act, see ss. 32 to 38.] 2.02 Subclasses (1) Schedule 2 is divided into Parts, each identified by the word "Subclass" followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass. (2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa. 2.03 Criteria applicable to classes of visas (1) For the purposes of subsection 31 (3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. … Schedule 1 prescribed classes of visa (and subclasses) and Schedule 2 prescribed criterion to be satisfied in order to obtain the relevant visa or subclass of visa. In addition, by operation of reg 2.07, Sch 1 also set out the manner in which an application was made for a prescribed class of visa. 7 Schedule 1 provided, for present purposes, for the following class of visa and subclasses and prescribed the way an application for the visa must be made: 1128C Skilled - Independent (Migrant) (Class BN) (1) Form: 47SK. … (3) Other: … (c) Application must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant for his or her nominated skilled occupation. … (4) Subclasses: 136 (Skilled - Independent) 137 (Skilled - State/Territory-nominated Independent) Three observations can be made about this provision. The first is that the application had to be made using a nominated form and the second is that it had to be accompanied by evidence that established the applicant had the skills for the nominated skilled occupation. The third is that there were two sub-classes of Skilled-Independent (Migrant) (Class BN). For present purposes, the relevant subclass was subclass 136 (Skilled - Independent). 8 Consistent with the scheme for establishing criteria referred to earlier, it is necessary to turn to Sch 2 to ascertain the relevant criteria. Item 136 of Sch 2 concerned subclass 136 (Skilled - Independent) visa and provided at the relevant times: 136.1 Interpretation 136.111 In this Part: completed includes having met the requirements for award of a degree, diploma or trade qualification. degree and diploma have the meanings given in subregulation 2.26A (6). employed has the meaning given in subregulation 2.26A (7). trade qualification has the meaning given in subregulation 2.26A (6). Note 1 For relevant assessing authority and skilled occupation, see regulation 1.03. Note 2 For vocational English, see regulation 1.15B. 136.2 Primary criteria Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this Subclass need satisfy only the secondary criteria. 136.21 Criteria to be satisfied at time of application 136.211 The applicant is less than 45 years of age. 136.212 The applicant has nominated a skilled occupation in his or her application. 136.213 (1) Subject to subclause (2), the applicant has been employed in a skilled occupation: (a) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or (b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made. (2) Subclause (1) does not apply to an applicant if: … 136.22 Criteria to be satisfied at time of decision 136.221 If regulation 2.27B applies, the applicant provides, for the purposes of the application, the assessment of his or her skills mentioned in subregulation 2.27B (4). 136.222 The skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. 136.223 The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act. Note That Subdivision of the Act provides in ss 92 to 96 for the application of apoints system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 (see regulation 2.26A), and Schedule 6A, of these regulations. Pool marks and pass marks are set from time to time by the Minister by notice in theGazette(Act, s 96). 136.223A (1) The applicant has been employed in a skilled occupation: (a) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for at least 12 months in the 18 months immediately before the day when the application was made; or (b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for at least 24 months in the 36 months immediately before the day when the application was made. (2) Subclause (1) does not apply to an applicant if: … 136.223B In determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant: (a) held a substantive visa authorising him or her to work during that period; and (b) complied with the conditions of that visa. 136.224 The applicant has vocational English. 136.225 No evidence has become available since the time of application that the information given or used as part of the assessment mentioned in paragraph 1128C (3) (c) of Schedule 1 is false or misleading in a material particular. 136.226 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. 136.227 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010. 136.228 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister. 136.229 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 136 visa is a person who: (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and (b) if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010. (2) Each member of the family unit of the applicant who is not an applicant for a Subclass 136 visa is a person who: (a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and (b) satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion. 136.230 If a person (in this clause called theadditional applicant): (a) is a member of the family unit of the applicant; and (b) has not turned 18; and (c) made a combined application with the applicant - public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant. 136.231 Approval of the application would not result in either: (a) the number of Subclass 136 visas granted in a financial year exceeding the maximum number of Subclass 136 visas, as determined by Gazette Notice, that may be granted in that financial year; or (b) the number of visas of particular classes (including Subclass 136) granted in a financial year exceeding the maximum number of visas of those classes, as determined by Gazette Notice, that may be granted in that financial year. Four things should be noted about this provision. First, the primary criteria were subdivided into criteria which had to be satisfied at the time of application and criteria which had to be satisfied at the time of decision. Secondly, a criterion (136.212) to be satisfied at the time of the application was that the applicant had nominated a skilled occupation in the application. Thirdly, a criterion (136.222) to be satisfied at the time of decision was that the skills of the applicant had been assessed. It is to be recalled, however, that it was necessary for an applicant to lodge the assessment at the time the application was made (Item 1128C(3)(c) of the Regulations). Fourthly, a criterion (136.223) was that the applicant had to have the qualifying score. 9 A qualifying score was referable to a pass mark. The pass mark for visas of a particular class was specified by the Minister in a notice in the Gazette: see s 96 (2) of the Act. It was common ground in this appeal that the pass mark for the subclass 136 (Skilled - Independent) visa was, at relevant times, 115points. Before continuing on the path concerning the subclass 136 (Skilled - Independent) visa, reference should be made to the method of assessment of points generally. 10 Sections 92, 93 and 94 concerned the assessment of points and provided: 92 Operation of Subdivision This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision. 93 Determination of applicant's score (1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. (2) In this section: prescribed means prescribed by regulations in force at the time the assessment is made. 94 Initial application of "points"system (1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score. … 11 In relation to, relevantly, a Skilled-Independent (Migrant) (Class BN) visa, the method of calculating the score was dealt with by reg 2.26A which provided: 2.26A Prescribed qualifications and number of points for skilled permanent visas (1) This regulation applies to an applicant for any of the following visas: … (b) a Skilled - Independent (Migrant) (Class BN) visa; … (2) For subsection 93 (1) of the Act (which deals with determination of an applicant's points score): (a) each qualification specified in column 2 of an item in Part 1, 2, 3, 4, 5, 6, 7, 8 or 10 of Schedule 6A is prescribed as a qualification in relation to the grant, to the applicant, of: (i) a Subclass 136 (Skilled - Independent) visa; or … … (3) The number of points prescribed for a qualification specified in column 2 in an item in Schedule 6A is specified in column 3 in the item. 12 When assessing an applicant's score it is necessary to turn to Sch 6A. Part 1 of Sch 6A provided: Schedule 6A General points test - qualifications and points (regulations 2.26A and 2.27A) Part 1 Skill qualifications

Column 1 Column 2 Column 3 Item Qualification Number of points 6A11 The occupation nominated by the applicant in his or her application is specified by Gazette Notice as a skilled occupation for which 60 points are available 60 6A12 The occupation nominated by the applicant in his or her application is specified by Gazette Notice as a skilled occupation for which 50 points are available 50 6A13 The occupation nominated by the applicant in his or her application is specified by Gazette Notice as a skilled occupation for which 40 points are available 40

13 Parts 4 and 7 of Sch 6A provided: Part 4 Employment experience qualifications Column 1 Column 2 Column 3 Item Qualification Number of points 6A41 For a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made, the applicant has been employed in the nominated skilled occupation, or a closely related skilled occupation, that is specified by Gazette Notice as a skilled occupation for which 60 points are available 10 6A42 The applicant has been employed in a skilled occupation for a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made 5

Part 7 Skills targeting qualifications Column 1 Column 2 Column 3 Item Qualification Number of points 6A71 The applicant: 15 (a) has nominated a migration occupation in demand in his or her application; and (b) has an offer of full-time employment in that occupation, or a closely related skilled occupation, in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made 6A72 The applicant has nominated a migration occupation in demand in his or her application 10

14 As mentioned earlier, the issue in this appeal is whether the assessment is made, for the purposes of Item 6A72, by reference to whether the occupation nominated is a migration occupation in demand at the time the application was lodged or at that time the assessment was made. The expressions "migration occupation in demand" and "skilled occupation" were defined in reg 1.03 which provided: migration occupation in demandmeans a skilled occupation that is specified by Gazette Notice as a migration occupation in demand. … skilled occupation means an occupation that is specified by Gazette Notice as a skilled occupation for which a number of points specified in the Notice are available. Further, reg 1.03 defined "Gazette Notice" as: Gazette Notice means: (a) a notice in the Gazette by the Minister that is authorised by the Act; or (b) a notice under regulation 1.17. 15 Regulation 1.17 provided: 1.17 Specification of matters by Gazette Notice The Minister may, by notice published in the Gazette, specify matters required by individual provisions of these Regulations to be specified for the purposes of those provisions. 16 It is convenient to refer briefly to the way in which Selway J and Spender J determined whether the assessment is made, for the purposes of Item 6A72, by reference to whether the occupation nominated was a migration occupation in demand identified in a Gazette Notice in force at the time the application was lodged or at that time the assessment was made.

The first application 17 In Aomatsu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1544 Selway J dealt with the issue in the following way at [5] and following: The applicant says that the clear words [of 6A72] and understanding of those words is that the relevant nomination is to be understood as at the date the application is lodged. I do not read those words that way. It seems to me those words leave open the question of what the date of assessment of the 'migration occupation in demand' should be. …… The Commonwealth says that the Act makes express provision for the date on which the relevant criteria are to be applied. Section 93 of the Act provides: '(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. (2) In this section "prescribed" means prescribed by regulations in force at the time the assessment is made.' It seems to me that, by itself, this section does not assist very much. The fact is that the regulations have not changed in any way throughout the period; the problem arises because notices made pursuant to the regulations have changed. Mr Hay, who appeared for the Minister, invited me to read 'regulations as including instruments made under regulations'. With respect, I am unable to do so. However, that is not the end of the matter. Section 94 subss (1) and (2) of the Act provide: '(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time the score is assessed is taken to have received the qualifying score. (2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.' Those provisions do not seem to direct attention to the regulations but to the time of assessment of the score. They seem to me to give rise to an implication, at the least, that the calculation is to be made as at the date of assessment. That view would seem to be confirmed, at least to a degree, by the provisions of s 350(2) of the Act. That provision applies to reviews by the Migration Review Tribunal in relation to some assessments made pursuant to s 93. Although it has no application in this case, it could clearly have application in other cases which are similar. That provision also seems to direct attention to applicable pass marks and applicable pool marks to be determined at the time of assessment. However, most critically, par 136.22 of Sch 2 of the Migration Regulations specifically provides for the criteria to be satisfied at the time of decision. The relevant criteria in par 136.223 is that the applicant has the qualifying score at that time. Putting all those matters together, in my view it is clear that the Act contemplates that the criteria to be applied in calculating the relevant entitlements, at least in relation to the criteria specified in par 136.22, are the criteria in existence at the time of assessment, not at the date of application (contrast par 136.21 of Sch 2 of the Migration Regulations). The applicant says that these various provisions should be construed as only applying to changes to the regulations and not to notices made pursuant to the regulations. Given the specific reference to regulations in s 93(2) of the Act, that submission has some force. But nevertheless it seems to me, looked at in context and overall, the implication is clear that the relevant determination of criteria for the purpose of assessing points is to be made at the time of decision.

The second application 18 Spender J approached the matter differently in Kaur v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 230. He agreed with Selway J's observations that the criteria (relevantly the assessment of the score) to be satisfied had to be determined as at the date of the assessment. His Honour then said at [17] and following: The criterion, however, is not whether at the time of the determination of the application the occupation which the applicant nominated in her application is then a migration occupation in demand; the criterion is that which is specified in the very words of item 6A72: whether the applicant has nominated a migration occupation in demand in her application. The words in item 6A72 are in the past tense. This indicates that the proper test is whether the occupation nominated by the applicant in her application was a migration occupation in demand. In my opinion, this means that, in determining the question of satisfaction of that criterion at the time of the decision, the decision maker is directed to the application and is required to identify what occupation was nominated by the applicant in that application, and whether her nomination was then a migration occupation in demand. The contrary view seems to me to require item 6A72 to read 'the applicant's skilled occupation is specified by gazette notice as a migration occupation in demand.' The contrary view seems to me to produce capricious, unpredictable and random outcomes. If the requirement is that the occupation be on the Migration Occupations in Demand list which is in operation at the time of decision, if the decision on the applicant's application had been made before 12 March 2003 she would have been successful. If it had been made between the period of 12 March 2003 (after which the occupation "accountant" was removed from the list) and before 8 September 2004 (when the occupation of "accountant" was again restored to the list), she would have been unsuccessful. If the decision had been made after 8 September 2004, when accountants had again been restored to the list, she would have been successful. The position, shortly, is that one could never know, at the time one applied for a subclass 136 visa, whether one met the criteria relevant for the grant of such a visa. Spender J went on to give further illustrations of what his Honour viewed as capricious, unpredictable and random outcomes.

Consideration 19 The purpose of conferring additional points on a person who has the skills which constitute a migration occupation in demand is, fairly clearly, to facilitate the entry into Australia of skilled workers whose skills are in high demand. That purpose could best be served by viewing the statutory scheme as requiring consideration of whether those skills were in demand at the point in time closest to the time of entry. That would be the time of assessment rather than the time of application. On that approach, the construction adopted by Selway J would be preferred. Extrinsic material referred to by counsel for the Minister supports this being the purpose. 20 However, subdiv AB of Div 3 of Part 2 of the Act is directed to creating a code of procedure for dealing fairly, efficiently and quickly with visa applications and it is inappropriate to assume that the period between application and assessment is, in the statutory scheme, intended to be lengthy. Accordingly, it is not necessarily the case there would be tension between the purpose stated in the preceding paragraph and construing item 6A72 as requiring assessment of whether the nominated occupation was a migration occupation in demand at the time the application was made. 21 In the passage set out above, Spender J said item 6A72 was expressed in the past tense. Counsel for the Minister took issue with that characterisation in these appeals. Counsel for the Minister submitted that it was the present perfect tense which signified that the applicant must have nominated an occupation that was still in demand at the time of decision. It may be accepted that, put with precision, the compound verb "has nominated" is in the present perfect. It is also in the active voice. However, this characterisation does not say a great deal about how the item was intended to operate. The present perfect can signify a past and complete event: see Robinson v Western Australian Museum (1977) 138 CLR 283 at 334 per Mason J (though the compound verb was in the passive form). Probably all the compound verb "has nominated" indicates is that in making the assessment it is necessary to focus on what, as a matter of historical fact, the applicant wrote on the application as the skilled occupation which may or may not also be a migration occupation in demand. The language leaves one matter unresolved, whether the assessment of whether the skilled occupation is a migration occupation in demand is by reference to a list existing at the time the application or, on the other hand, a list existing at the time of assessment. 22 It is clear that the points assessment is to be made at the time of decision. So much is apparent from s 93 of the Act and cl 136.223 of the Regulations. It is also clear that the definition of "migration occupation in demand" points to the need for the occupation to be a skilled occupation presently specified in the Gazette. Again, however, these matters, of themselves, do not answer the question of whether the list current at the time of application is looked at in the assessment, or the list current at the time of decision. The Act and Regulations do not provide an unequivocal answer. However, there are pointers suggesting that the conclusion of Spender J is correct. 23 What is being considered is part of a very complex regulatory framework which allows people who are neither Australian citizens nor residents to enter and reside in Australia either permanently or temporarily. It can be assumed that generally the framework is intended to operate in a structured and ordered way. In any particular case, the process of determining whether a person can lawfully enter and remain in Australia commences with an application. This is recognised in s 45 of the Act which provides that, generally, a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 contains detailed requirements concerning the application which, if satisfied, render the application a valid application: see also ss 46A and 46B. For a subclass 136 (Skilled - Independent) visa, the applicant must do two things (amongst others) when making the application. The first is to nominate a skilled occupation in the application: cl 136.212. The second is to provide, with the application, satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant for the nominated skilled occupation: cl 1128C(3)(c). 24 It can be seen that the first three items in Part 1 of Sch 6A concern the question of whether the occupation nominated by the applicant is a skilled occupation for which either 60, 50 or 40 points are available. If an applicant is required to nominate a skilled occupation and provide evidence of having the skills for the occupation, at the time of application, it is highly likely that the assessment required is by reference to a skilled occupation which was specified in a Gazette Notice at the time the application was made and not at the time the assessment was made. It is unlikely that these demands would be made of an applicant to provide this material, on the footing that their utility would depend on whether the nominated skilled occupation continued to be specified in a Gazette Notice at the time the points were assessed. It is far more likely that the scheme was intended to operate on the basis that the nominated skilled occupation was one appearing in a Gazette Notice at the time the application was lodged. This view is reinforced by the fact that one criteria to be satisfied at the time of application, is that the applicant has nominated the skilled occupation in his or her application: see cl 136.212. It also reinforced by Part 4 of Sch 6A which focuses attention on whether the applicant had worked in a position, which was the nominated skilled occupation, for specified periods immediately before the application was made. Doubtless this information would be provided in the application. The information would be rendered meaningless, or its analysis impossible, if the assessment was not done by reference to skilled occupations (and the points they attract) identified in a Gazette Notice in force at the time the application was made. 25 If the question of whether the nominated occupation is a skilled occupation (and the points it attracts) is considered (at the time of points assessment) by reference to a Gazette Notice in force at the time of the application, it would be anomalous that the question of whether that occupation was a migration occupation in demand would be determined by reference to a Gazette Notice in force at the time of the decision. The definition of "migration occupation in demand" depends on the occupation being, at the time, a skilled occupation. The definition suggests that whether an occupation is a skilled occupation and, additionally, a migration occupation in demand is determined by reference to the Gazette Notices in force at the same time. 26 It would be curious if, when considering an application where the nominated occupation might be a migration occupation in demand, the assessment of whether the occupation is a skilled occupation (and the points it attracts) was made by reference to the Gazette Notice in force at the time of the application but the further question of whether that occupation, if it was a skilled occupation, was a migration occupation in demand was assessed by reference to the Gazette Notice in force at the time the assessment was being made. In addition, the language of item 6A72 is, in material respects, the same as cl 136.212 and, as discussed earlier, that clause requires consideration of the Gazette Notice at the time the application was filed. Further, item 6A71 provides for additional points to a person who not only as an occupation which is a migration occupation in demand but also has "an offer of full-time employment in that occupation". Doubtless the existence of that offer would be made known when the application was lodged (and, in fact, form 47SK (see cl 1128C(1) at [7] above) provides for that information to be furnished). 27 It would be curious (and probably unintended), for the reasons given in [24] above in relation to the skills assessment, that an applicant would have to secure an offer before making the application on the footing that the offer would have no relevance if the occupation was not in a Gazette Notice in force at the time the assessment was made but had been in a Gazette Notice in force at the time the application was made and the offer secured. 28 For these reasons I think the better view is that the question of whether an occupation is a migration occupation in demand is to be determined by reference to the Gazette Notice in force at the time of the application, though the matter is not free from doubt. In the result, the appeal in QUD 91 of 2005 should be dismissed with costs. The appeal in VID 1416 of 2004 should be allowed with costs and the orders of Selway J set aside and, in lieu, orders made that the decision of the delegate of the Minister made on 3 December 2003 be set aside, and the matter remitted to the Minister for consideration according to law. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

VICTORIA DISTRICT REGISTRY VID 1416 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUEENSLAND DISTRICT REGISTRY QUD 91 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

AND: SHINDER JIT KAUR

EMMETT J 29 On 9 September 2002, Ms Shinder Jit Kaur ('Ms Kaur') lodged an application for a subclass 136 visa, in which the occupation of accountant was nominated. On 10 September 2003, the application was refused because Ms Kaur's qualifying score was too low. On 18 February 2003, Mr Akinaga Aomatsu ('Mr Aomatsu') lodged an application for a subclass 136 visa in which the occupation of information technology manager was nominated. That application was refused on 3 December 2003 because Mr Aomatsu's qualifying score was too low. 30 The decision in relation to each application was made after 12 March 2003. Thus, while as at the date of the respective applications, the occupations of information technology manager and accountant were migration occupations in demand, at the time of the respective decisions on the applications, neither occupation was a migration occupation in demand. In each case, if the occupation nominated was a skilled occupation in demand, the relevant qualification score would not have been too low. 31 The same question arose in each application. The question concerns the proper construction of Item 6A72 in Part 7 of Schedule 6A to the Migration Regulations 1994 (Cth) ('the Regulations'). The Regulations were made under the Migration Act 1958 (Cth) ('the Act'). The Minister's delegates who made the decisions adopted the approach that the expression 'a migration occupation in demand', when used in Item 6A72, means 'a migration occupation in demand' as that term is defined, for the purposes of the Act and the Regulations, as at the time of decision. In order to explain the question, it is necessary to say something about the statutory framework within which the question arises.

STATUTORY FRAMEWORK 32 Under s 29(1) of the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

• travel to and enter Australia; · remain in Australia.

Under s 31(1) there are to be prescribed classes of visas and, under s 31(3), the Regulations may prescribe criteria for a visa or visas of a specified class. 33 Under s 45, a non-citizen who wants a visa must apply for a visa of a particular class. Under s 46(1)(b), an application for a visa will not be valid unless, amongst other things, it satisfies the criteria and requirements prescribed under s 46. Under s 65(1)(a)(ii), after considering a valid application for a visa, the Minister, if satisfied that, amongst other things, the criteria for it prescribed by the Act or the Regulations have been satisfied, is to grant the visa. Under s 65(1)(b), if not so satisfied, the Minister is to refuse to grant the visa. 34 Under Regulation 2.01, the prescribed classes of visas for the purposes of s 31 of the Act are such classes, amongst others, as are set out in the respective items in Schedule 1 to the Regulations. Item 1128C in Schedule 1 sets out the following class of visa: 'Skilled - Independent (Migrant) (Class BN)' Paragraph (4) of Item 1128C specifies two subclasses, one of which is Subclass 136 (Skilled - Independent) visa. Under paragraph 3(c) of Item 1128C, an application for such a visa must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant for his or her nominated skilled occupation. 35 Under Regulation 2.03(1), for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the criteria set out in a relevant part of Schedule 2. The relevant part of Schedule 2 for a Subclass 136 (Skilled - Independent) visa specifies, in paragraph 136.21, criteria to be satisfied at the time of application and, in paragraph 136.22, criteria to be satisfied at the time of decision. One of the criteria under paragraph 136.21 is as follows: '136.212 The applicant has nominated a skilled occupation in his or her application.' [Emphasis added] One of the criteria under paragraph 136.22 is as follows: '136.223 The applicant has the qualifying score when assessed in relation to the visa under subdivision B of Division 3 of Part 2 of the Act.' [Emphasis added] 36 The term 'skilled occupation' is defined in Regulation 1.03 as follows: 'An occupation that is specified by a Gazette Notice… as a skilled occupation for which a number of points specified in that Gazette Notice are available.' [Emphasis added] Under Regulation 1.03, Gazette Notice means:

• a notice in the Gazette by the Minister that is authorised by the Act; or · a notice under Regulation 1.17.

Regulation 1.17 provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions by the Regulations to be specified for the purposes of those provisions. 37 Subdivision B of Division 3 of Part 2 of the Act, which consists of ss 92 to 96 inclusive, deals with 'the "points" system'. Section 92 provides that Subdivision B has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by Subdivision B. Under s 93(1), the Minister must make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. Under s 93(2), the term 'prescribed' means prescribed by Regulations in force at the time the assessment is made. 38 Regulation 2.26A prescribes qualifications and number of points for certain visas. By virtue of r 2.26A(1)(b), r 2.26A applies to a Skilled-Independent (Migrant) (Class BN) visa. Under r 2.26A(2)(a)(i), each qualification specified in column 2 of an item in a part of Schedule 6A is prescribed, for the purposes of s 93(1) of the Act, as a qualification in relation to the grant, to the applicant, of a Subclass 136 (Skilled - Independent) visa. Under r 2.26A(3), the number of points prescribed for a qualification specified in column 2 in an item in Schedule 6A is specified in column 3 in the item. 39 Part 7 of Schedule 6A deals with 'Skills targeting qualifications'. It contains the following: 'Column 1 Column 2 Column 3 Item Qualification Number of Points 6A71 … … 6A72 The applicant has nominated a migration occupation in demand in his or her application.' 15 [Emphasis added]

The term 'migration occupation in demand' is also defined in r 1.03 by reference to a Gazette Notices as follows: 'A skilled occupation that is specified by Gazette Notice as a migration occupation in demand.' 40 In the Gazette of 2 October 2002, there was a notice by the Minister dated 25 September 2002, by which the Minister, purporting to act under rr 1.17 and 1.03 of the Regulations, specified each skilled occupation referred to in the Schedule to the Notice as a migration occupation in demand for the purposes of the definition of that term in r 1.03. The Schedule included the occupations of accountants and information technology managers. 41 In the Gazette of 12 March 2003, there was a notice by the Minister dated 7 March 2003. By that notice, the Minister, purporting to act under rr 1.17 and 1.03, revoked the Gazette Notice dated on 25 September 2002. While the Gazette Notice dated 7 March 2003 specified certain skilled occupations in a schedule, neither accountants nor information technology manages were included in that schedule.

THE ISSUE IN THE APPEALS 42 Mr Aomatsu and Ms Kaur applied for judicial review of the respective decisions to refuse visas, on the ground that the Minister's delegate erred in the construction of Item 6A72. Each contended that the correct approach is to treat the expression 'a migration occupation in demand' as meaning a migration occupation in demand, for the purposes of the Act and the Regulations, as at the time of submitting the application to the Minister. The primary judge dismissed, with costs, the proceeding brought by Mr Aomatsu. However, in the proceeding brought by Ms Kaur, the primary judge found that the Minister's delegate had erred in the construction of Item 6A72. It is common ground that, if there were such an error in relation to either application, that was a jurisdictional error, such that relief should be granted in the form of an order quashing the respective decisions of the Minister's delegates. 43 The only question in both appeals concerns the proper construction to be given to Item 6A72. Clearly enough, reasonable minds can differ as to the question of construction. Two judges of the Court have reached diametrically opposite conclusions on the question. 44 Counsel for Mr Aomatsu and Ms Kaur says that Item 6A72 is expressed in the past tense, whereas the Minister's preferred construction requires that it be read as though expressed in the present tense: the submission was that the construction for which the Minister contends requires that Item 6A72 be read as follows: 'The applicants skilled occupation is specified by gazette notice as a migration occupation in demand.' [Emphasis added] In fact, Item 6A72 is expressed in the present perfect tense and not the past tense. However, analysis of the grammar and syntax of Item 6A72 does not really advance the matter. 45 The Minister says, in effect, that Item 6A72 should be read as follows: 'The applicant has nominated, in his or her application, a migration occupation in demand (as that term is defined for the purposes of the Regulations, as at the time when the decision is made.)' On the other hand, the construction contended for by the visa applicants would require that Item 6A72 be read as follows: 'The applicant has nominated, in his or her application, a migration occupation in demand (as that term was defined for the purposes of the Regulations, as at the time when the application was made).' 46 An applicant must satisfy the criterion in paragraph 136.223 of the Regulations as at the date of decision. That calls for an enquiry as to the qualifying score of the applicant as at the time when the decision is made. The obvious purpose of the qualification referred to in Item 6A72 is to ensure that preference is given to an applicant for a visa who has a skilled occupation that is in demand at the time when the decision is made, not to an applicant who has a skilled occupation that was in demand at some earlier time, but is no longer in demand. It is in that context that attention is directed to Item 6A72. The decision-maker must determine whether, at the time of decision, the applicant has nominated a relevant occupation. It is at that time that attention is then directed to the term 'migration occupation in demand'. That, in turn, requires an examination of a Gazette Notice: not a Gazette Notice that has been revoked, but one that is in effect. 47 The visa applicants contend that the Minister's construction gives rise to inconsistency with the criterion specified in clause 136.212, namely, that the applicant 'has nominated a skilled occupation in his or her application'. They say that skilled occupation would mean different things at different times in relation to the same application. The term 'a skilled occupation' is an element of the definition of the term 'migration occupation in demand'. It is possible, therefore, that a person might nominate a skilled occupation in an application that, at the time of application, is specified by Gazette Notice, current at that time, as a migration occupation in demand but, by the time a decision is made, that skilled occupation is not a migration occupation in demand. The application will nevertheless be a valid application because it satisfied criterion 136.212. However, the applicant will not be entitled to the points contemplated by Item 6A72. Nevertheless, an applicant may still become entitled to a visa of the type in question, even without the benefit of Item 6A72, because the applicant's point score from other matters would be sufficient. Any perceived inconsistency does not really lead anywhere in terms of the construction of the Item. 48 The visa applicants also relied on the operation of s 8 of the Acts Interpretation Act 1901 (Cth) and s 15 of the Legislative Instruments Act 2003 (Cth), each of which is in relevantly the same terms. A Gazette Notice is a legislative instrument. The effect of s 8 or s 15 is that where an instrument repeals a former instrument, then, unless the contrary intention appears, the repeal is not to affect any right or privilege acquired or accrued under an instrument so repealed. The visa applicants contended that, as at the day of application, the relevant applicant had an accrued right to a visa if the applicant met the criteria for the visa. 49 However, that contention begs the question as to the proper construction of Item 6A72. If the visa applicants' construction is correct, no question arises of a detrimental affect on an accrued right. On the other hand, if the Minister's construction is correct, there is no accrued right. The only right that is conferred by submitting a valid application is to have that application considered according to law, as laid down by the Act and the Regulations. That entitlement is to have a point score assessed as at the date of decision. There is no entitlement to have a point score assessed before that time. There are several criteria that must be satisfied at the time of decision. The fact that those criteria might have been satisfied at the date of application does not mean that a visa applicant has an accrued right based on those criteria. Indeed, in another related context, s 93 of the Act specifically provides that the Minister is 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. In the section, 'prescribed' is defined as meaning 'prescribed by regulations in force at the time the assessment is made'. 50 There is no question of interfering with an accrued right. The only right of an applicant who lodges a valid application is to have an application considered in accordance with the Act and the Regulations properly construed.

CONCLUSION 51 The term 'a migration occupation in demand' has an ambulatory meaning, such that it is the meaning that the term has assigned to it at the time when the expression is being considered. If the expression is being considered at the time of the decision, it has the meaning assigned to it at that time. It follows that the approach adopted by the Minister's delegate in each case was correct. There was no error and, accordingly, each visa application was correctly refused. 52 The appeal by Mr Aomatsu should be dismissed with costs. The appeal by the Minister in the proceeding commenced by Ms Kaur should be upheld. In lieu of the orders made by the primary judge in that proceeding there should be an order that the application be dismissed with costs. Ms Kaur should pay the Minister's costs of her appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

NEW SOUTH WALES DISTRICT REGISTRY VID 1416 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUEENSLAND DISTRICT REGISTRY QUD 91 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

AND: SHINDER JIT KAUR

GYLES J 53 I agree with the conclusions and orders proposed by Moore J. When viewed in isolation the wording of Item 6A72 is ambiguous. In my view, grammar does not dictate the answer. Neither does the immediate context. The construction favoured by Selway J and Emmett J would best serve the objective of securing immigrants with occupations in most immediate demand. The construction favoured by Spender J and Moore J would best serve the objectives of clarity, certainty and fairness in the effect of delegated legislation. All of the objectives are laudable. It is what the psychologists call an 'approach-approach conflict' - one of the most difficult to resolve. 54 Compliance with the requirements of this scheme by visa applicants is quite onerous. Preparation of a valid application would involve a significant commitment of time and would also, no doubt, involve expense of one sort or another. Furthermore, as submitted by counsel, making such an application involves choices affecting the lives of the applicant and the family of the applicant. The procedure is not solely for the benefit of the applicant. It is designed to achieve the importation of relevant skills for the benefit of the Australian economy. It should not be construed so as to impose unfair burdens upon visa applicants. Prompt and efficient administration of the scheme is the best way of ensuring that all objectives are met. 55 It is unnecessary to deal with the alternative argument propounded by Mr Boccabella as to an accrued right. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 28 July 2005 In proceedings VID 1416 OF 2004

Solicitor for the Appellant: Erskine Rodan & Associates