ALLSOP J:
24 I have had the advantage of reading the reasons of Moore J in draft. I agree with the orders proposed by his Honour. His Honour's reasons enable me to express my reasons shortly.
25 I agree that the matter is to be resolved by reference to the argument not put to the primary judge and raised in the Notice of Further Contention. Regulation 2.12 of the Migration Regulations is concerned with what classes of visa are prescribed for s 48 of the Migration Act 1958 (Cth) (the "Act"). That is, what the words of subreg 2.12(1) say. Nothing in subregs 2.12(2) or (3) identifies any other purpose. Indeed, subregs 2.12(2) and (3) are to be read with subregs 2.12(1)(a) and (ca) as the respective qualifications to them. The use of the phrases "subject to subregulation (2)" and "subject to subregulation (3)" makes that clear.
26 Section 48 has within it two references to delegated legislation. The first is in s 48(1), where it is provided that a non-citizen in the migration zone who satisfies paragraphs (a) and (b) "may, subject to the regulations, apply for a visa". These regulations can qualify the statutory permission otherwise given to a non-citizen to do something - apply for a visa. The second is also in s 48(1). It is the prescription of the classes of visa for which application may be made.
27 Regulation 2.12(1) is, in terms, directed only to the second of those subjects for delegated legislation. It says:
For section 48 of the Act … the following class of visas are prescribed.
28 Regulation 2.12(2) does not purport, in terms, to qualify the permission given to the non-citizen to apply for a visa. It provides a qualification to reg 2.12(1)(a) to the class of visa there identified. Subregulations 2.12(1) and (2) can be seen to be read together (as the words "subject to subregulation (2)" require) as identifying the type of visa that may be applied for - a Special Eligibility (Residence) (Class AO) visa with an additional limitation of a criterion to be satisfied at the time of application by reference to the requirements of subcl 832.211(3) of Schedule 2.
29 Subject to the question of validity of a regulation so worded, the meeting of the requirements of subcl 832.211(3) could have been expressed to be a condition of a valid application. It was not so expressed. It was expressed as a qualification to the identification of the classes of visa that are prescribed, thus limiting that class of visa by the addition of the stated requirement in subreg 2.12(2).
30 If reg 2.12 is to be construed as a condition of a valid application, the issue on the appeal is the validity of reg 2.12(2). The primary judge was of the view that reg 2.12(2) was not supported by the Act.
31 The matter was fully argued, and though expressed as obiter, it is appropriate to deal with the matter on the hypothesis that the construction of reg 2.12 is contrary to that which I think to be correct: see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 at [105].
32 Section 504(1) of the Act empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permittedto be prescribed or which are necessary or convenient to be prescribed for carrying and orgiving effect to the Act. If subreg 2.12(2) is to be read as providing that it is a condition of the validity of the application (in the sense referred to in s 47 of the Act) that the requirements of cl 832.211(3) be met the possible bases of support propounded were ss 46(1), (3), (4) and 48(1) of the Act. It was not argued that absent support in ss 46 and 48, s 504(1) had any independent supportive operation.
33 I agree with the conclusions of both the primary judge and Moore J that reg 2.12(2) (on the hypothesis upon which I am now working) is not supported by the Act, though I would express my reasons slightly differently to them.
34 I will deal with ss 46 and 48 separately.
35 In my view s 46 is not to be construed in such a way as to permit the question of the validity of the application to depend upon an opinion or view to be arrived at by the Minister: in this case what the Minister regards as the period of the applicant's formative years before the age of 18: subcl 832.211(c)(iv).
36 An application is a request. Generally in a context such as the present, it is manifested in a document, but it is the request that is made to the Executive and which subsists as a request until dealt with.
37 If an application is made, it is necessary to understand how validity is to be judged, so that the Minister may obey the will of Parliament in s 47 - to consider it or not to consider it. In order to answer this question one goes to the Act and Regulations.
38 The terms of s 46(1)(a), (ba), (c) and (d), (1A) and (2) refer to facts presently identifiable at the time of making the application or any time later.
39 The terms of s 46(4)(b), (c) and (d) refer to facts presently identifiable at the time of the making of the application.
40 Section 46(3) and s 46(4)(a) can be seen to be of the same character - to deal with facts presently identifiable at the time of the application being made and at any time thereafter. Section 46(4)(a) uses the present tense "exist". Section 46(3) uses a word "criteria", which, standing alone, is wide enough to accommodate a criterion by reference to an opinion or view of the Minister to be formed later. However, s 46(3), as with the balance of s 46, concerns the prescription of indicia against which the validity of the request can be judged. The request, it seems to me, was intended by s 46 to be either valid or invalid when made. The ascertainment of that may take time, but it is a state referable to the application as made and thereafter as subsisting.
41 If the respondent's contention is correct, the application when made and until the Minister forms his or her opinion about the period of the formative years of the applicant, is neither valid nor invalid. It is until that point impossible to state the validity or invalidity of the application. This is in a statutory context that states that an application is either valid or invalid. In my view, given this statutory context, the criteria that may be prescribed for the purposes of s 46(3) are criteria which enable a judgment to be made whether, from the time of being made and thereafter, the application was valid or invalid. That cannot be known if the question is dependent on the formulation at some time after the application is made of an opinion or view by the Minister about the applicant's history.
42 Thus I do not see s 46 as supporting reg 2.12(2).
43 Section 48(1) contemplates regulations that regulate the non-citizen applying for a visa. It is the permission to apply that is subject to the regulations here. Whether or not a non-citizen has the permission granted by s 48 to apply is something that is to be judged from the time of the purported taking advantage of the permission: that is, the making of the request. Thus, the regulations governing that permission to apply are to be seen as directed to matters which go to whether the act of application is permitted or not, that is, whether the non-citizen may apply or may not apply. So understood, the regulations contemplated by s 48(1) are concerned with indicia which can be assessed by reference to the time of the making of the application. Only in that way will it be able to be known whether the non-citizen has or does not have the permission granted by s 48(1); that is, whether the application when made was valid or invalid.
44 For these reasons, a regulation that suspends the assessment of the validity of an application by reference to an opinion of the Minister which cannot exist until some time after the making of an application is not authorised by s 46 or s 48. The relevant regulations under the Act, as presently drafted, are limited to regulations setting out criteria ascertainable as existing as at the making of the application and thereafter and which therefore provide criteria or circumstances which enable an assessment to be made as to whether an application is valid or invalid at the time of being made and thereafter.
45 Nothing in these reasons is inconsistent with Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 or Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352.
46 Finally, turning to the Notice of Contention, in my view, the delegate of the Minister misconceived the task involved in making the decision. The subject for opinion was not whether significant ties had been developed with the Australian community by the appellant, but the matters in subcl 832.211(3)(c)(iv): whether before turning 18 the appellant had spent the greater part of the period that the Minister regarded as the applicant's formative years in Australia. The approach of the delegate does not merely reflect a question of fact approached in a way with which one may be disagree. The correct question of fact was not dealt with at all. Someone could spend many of his or her formative years in Australia developing few if any community ties. The development of community ties may be relevant to the proper question, but it is not the issue for opinion.