Aomatsu v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application by the applicant seeking orders against the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). The applicant is a Japanese citizen. On 18 February 2003 he applied for a skilled independent migrant visa. In order to obtain such a visa the applicant had to meet the requirements of a points test. It is not disputed that if his application had been assessed as at 18 February 2003 he would have met the points test and have been entitled to the issue of a visa. As at that date he had 115 points. 2 In order to understand how those points work, it is necessary to look to a number of provisions of the Act and regulations. The relevant classification of the visa is made pursuant to s 31(3) of the Migration Act 1958 (Cth) ('the Act'). That directs attention to the relevant regulations. In this case regulation 2.03 of the Migration Regulations provides that the relevant criteria are specified in Sch 2 of the regulations. Paragraph 136 of Sch 2 refers to the relevant visa which was sought in this case. Paragraph 136.223 refers to a points system. The relevant points system is to be found in Sch 6A of the Migration Regulations (see s 93(1) of the Act and see reg 2.26A(2) of the Migration Regulations). 3 In this case, the applicant's 'score' if determined at the date of his application included five points for his occupation of 'Information Technology Manager'. At the time of the application that occupation was included in the 'migration occupations in demand list', a list made and gazetted pursuant to par 6A72 of Sch 6A of the Migration Regulations. On 6 March 2003 the relevant occupation was removed from that list by Gazette. On 3 December 2003 a delegate of the respondent assessed the visa application. The delegate assessed the number of points as at the date of his assessment. He did not count the five points for the applicant's occupation. The delegate determined that the applicant had only 110 points. This was insufficient for the grant of a visa. 4 The applicant says that the calculation should have been made as at the date he submitted his application. This is said to be a consequence of the terms of paragraph 6A72 of Sch 6A of the Migration Regulations. That provides: 'The applicant has nominated a migration occupation in demand in his or her application.' 5 The applicant says that the clear words 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. 6 The applicant also puts an argument pursuant to s 50 of the Acts Interpretation Act 1901 (Cth). That paragraph relevantly provides: 'Where an Act confers a power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal: (a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulation so repealed.' 7 I note that s 50 has application to instruments pursuant to s 46A(1)(a) of the Acts Interpretation Act 1901 (Cth). In the result, there are decisions of this Court holding that section 50 applies where instruments made pursuant to regulations or pursuant to an act are changed: see Repatriation Commission v Keeley (2000) 98 FCR 108. Plainly enough, s 50 would have the effect that the assessment ought to be made in accordance with the regulations and notices as at the date the application is lodged unless there is something in the Act suggesting to the contrary. 8 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.' 9 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. 10 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.' 11 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. 12 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). 13 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. 14 I note that a similar conclusion was reached in a similar context by Tamberlin J in Islam v Minister for Immigration and Multicultural Affairs [2000] FCA 1183 at [27]. 15 On this basis, in my view the application must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway .