[2001] MRTA 5631

CATCHWORDS: Review of visa refusals - Subclass 105 - "usual occupation" - milling machinist - Clause 105.224 - Occupations Requiring English

DECISION: The Tribunal remits the applications made by the visa applicants for Skilled - Australian Linked (Migrant) (Class AJ) visas to the Department of Immigration and Multicultural Affairs, for reconsideration with the direction that the primary visa applicant meets the following criteria for a Subclass (105) visa:

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Mr Ilija Samardzioski (the `primary visa applicant'), a national of the Former Yugoslavian Republic of Macedonia, born on 24 June 1963, applied, with his spouse Mrs Cena Samardzioski (dob 25 January 1963) and two children Hristina Samardzioski (dob 7 January 1984) and Zoran Samardzioski (dob 11 February 1986), for Concessional Family (Migrant) (Class AJ) visas on 31 July 1996. The delegate's decision to refuse to grant the visas was made on 23 November 1998.

2. Mr Kiro Samardzioski (the `review applicant'), the brother of the primary visa applicant, lodged applications for internal review by the Migration Internal Review Office (MIRO) on 12 February 1999. This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No.1) 1998. The decision is reviewable by the Tribunal and the application for internal review was properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Migration Act 1958 sections 92-96; 350

Migration Regulations (1994) regs 1.15B; 1.19; 2.26

Part 105 of Schedule 2 to the Regulations

Schedule 6 - General Points Test - Qualifications and Points

Schedule 6 - General Points Test - Qualifications and Points

6. From 1 July 1997 Class AJ was renamed Skilled - Australian Linked (Migrant) (Class AJ) and the subclasses were renamed Subclass 105 (Skilled - Australian Linked) and Subclass 106 (Skilled - Regional Linked).

7. The criteria for the Subclass 105 and Subclass 106 visas are largely set out in Parts 105 and 106 of Schedule 2 to the Migration Regulations. The criteria for visas are generally separated into `primary' and `secondary criteria'. At least one member of a family unit must meet the primary criteria, which might include a criterion that requires a certain relationship with the sponsor, and the other members of the family unit then only need to meet the secondary criteria.

8. Clause 105.222 of Part 105 of Schedule 2 to the Migration Regulations requires that the applicant must have the `qualifying score' when assessed under Subdivision B of division 3 of Part 2 of the Migration Act (sections 92-96). This part of the Act sets out a `points system' under which applicants for particular kinds of visas may be given a score based on points for particular attributes, which is then compared to `pool' and `pass' marks which are gazetted from time to time. The prescribed attributes or `qualifications' and points for each are set out in the Migration Regulations: see regulation 2.26 and Schedule 6. There are 7 qualifications set out in Schedule 6:

9. The language skills qualification was first applied to Subclass 105 visas with effect from 1 November 1996. The amendment applying the language skill qualification to primary applicants for Subclass 105 visas (but not the amendment applying the language skill qualification in respect of spouses of primary applications) was disallowed on 7 November 1996. The language skill qualification was reintroduced for primary visa applicants with effect from 1 July 1997.

10. If an applicant's score is more than or equal to the pass mark, the applicant has received the qualifying score. If it is less then the pass mark, but greater than or equal to the pool mark, the application remains in a pool for up to 24 months, waiting for a lower pass mark.

11. The pool mark was 110 points and the pass mark 115 points at the time of primary assessment. These remain the relevant pool and pass marks at the time of decision.

12. Section 350 of the Migration Act requires that the Tribunal, in relation to a points assessment, must consider the regulations and pool and pass marks in force at the time of the delegate's assessment and as in force at the time of this assessment and apply whichever are more favourable to the applicant. The wording of the different `qualifications' in Schedule 6 to the Migration Regulations sets out the dates or periods on or over which certain facts or circumstances need to be established. For example, the age qualification is determined by the primary applicant's age at the date of the visa application.

13. The area of greatest contention in the points system is the employment qualifications. The steps involved in determining the points to be awarded for the employment qualification are summarised below.

14. The usual occupation or occupations of the primary applicant have to be determined by the Tribunal. `Usual occupation' is defined in regulation 2.26 as:

"usual occupation" means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.

15. In determining a person's usual occupation, the Tribunal generally follows government policy in relying on evidence of the tasks or duties undertaken by a person and equating these with occupation definitions in the Australian Standard Classification of Occupations 1997, second edition, Australian Bureau of Statistics, Canberra (ASCO). It is also necessary to consider the periods that the person has worked in the occupation in the 3 years prior to the visa application, as this is relevant to the number of points that could be awarded for employment qualifications.

16. Other than for some occupations are explicitly recognised by Gazette notices under the regulations (`priority occupations', `professional-equivalent occupations' and `technical-equivalent occupations'), the entry requirements for the occupation or occupations in Australia have to be determined by the Tribunal. Again, the Tribunal generally follows government policy in using the Procedures Advice Manual 3 (PAM 3) and ASCO as guides to the entry requirements for occupations in Australia.

17. Depending on the entry requirements, the qualifications and experience of the person have to be assessed by the `relevant Australian authority' to determine if the qualifications and experience of the person meet the Australian standards for the occupation, either 3 years prior to the lodgement of the visa application or at the date of assessment, or whether the qualifications and experience can be updated to Australian standards by way of training lasting not more than 6 months. Regulation 2.26 of the Migration Regulations defines `relevant Australian authority' as follows:

(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or

(b) the Department of Workplace Relations and Small Business; or

(c) if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister;

18. NOOSR is the National Office of Overseas Skills Recognition, a part of the Department of Education, Training and Youth Affairs.

19. The Tribunal may need to determine whether the qualifications and experience meet any Australian occupational licensing or registration requirements.

20. Points are awarded in accordance with regulation 2.26 and Schedule 6 to the Migration Regulations.

21. In addition to achieving the qualifying score, by virtue of clause 105.224, if the usual occupation of the applicant (or the spouse) is an occupation in the Occupations Requiring English (ORE) list, the applicant must have vocational English.

22. Vocational English is now defined in regulation 1.15B as follows:

Regulation 1.15B Vocational English

1.15B. A person has 'vocational English' if the person satisfies the Minister that the person has proficiency in English of at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6.

23. The Minister has published an ORE list in the Gazette. This list is changed from time to time. Regulation 1.19 states as follows:

Regulation 1.19. Occupations Requiring English List

1.19. The Minister may publish by Gazette Notice a list of occupations requiring proficiency in English of at least the standard required for the award of 15 points under Part 3 of Schedule 6.

24. Regulation 1.19 is subject to regulation 2.26 (4) which states as follows:

(a) an applicant cannot provide the evidence that is required by an item in Part 3 of Schedule 6; and

(b) the Minister determines that it is not reasonably practicable for the applicant to sit for an ACCESS test or an IELTS test;

the Minister may determine that the applicant has a level of English proficiency equivalent to that mentioned in an item in that Part.

25. To avoid doubt, it is stressed that, among other things, a successful applicant must achieve the qualifying score, and in addition, must have vocational English, if the visa applicant's usual occupation is on the ORE list.

26. At the time of decision the visa applicant needs to satisfy reg 105.222 of the Regulations. The visa applicant's score is assessed by awarding the visa applicant points under the general points test set out in Schedule 6 to the Regulations.

27. The findings of the Tribunal are based on the material contained in the Tribunal file N99/02239 and the Department's file F96/023130. The Tribunal did not invite the review applicant to appear before it as it considers that a favourable decision should be made on the available evidence (see section 360).

28. The basis for the refusal of the visas in this matter was that the primary visa applicant did not achieve a score an ACCESS English test of the standard required for the award of 15 points on the language skill factor of the general points test specified in Part 3 of Schedule 6. The primary visa applicant therefore failed to satisfy clause 105.224 of Schedule 2 to the Regulations.

29. On the visa application form the primary visa applicant stated that his usual occupation was a Milling Machinist. The primary visa applicant had worked as a Milling Machinist with Micron Prilep from August 1982 until the present. He had also completed a one-year trade certificate in 1981-1982 in the trade of Milling Machinist. In February 1997 the delegate determined that the usual occupation of the primary visa applicant was a Milling Machinist (ASCO first edition code 4103-13) and requested that the primary visa applicant seek an assessment by Trades Recognition Australia (TRA). In December 1997 TRA provided an assessment of the primary visa applicant's skills and work experience as a Milling Machinist. TRA found that the primary visa applicant achieved the equivalent Australian standard for the occupation of First Class Machinist (ASCO second edition code 4112) on 1 August 1987. The delegate requested the primary visa applicant sit an ACCESS English test in February 1998 because his occupation appeared on the Occupations Requiring English list (ORE list). On 14 March 1998 the primary visa applicant sat an ACCESS test and achieved the following scores - Reading - 1; Writing - 1; Listening - 1; and Speaking Skills - 1. In order to meet clause 105.224, the primary visa applicant needed to achieve an ACCESS test score of at least 15 taking into account the 3 best of the applicant's scores based on the 4 test components.

30. On 23 November 1998 the delegate refused the visa applications because the primary visa applicant failed to satisfy clause 105.224 of Schedule 2 to the Regulations.

31. In the primary decision the delegate awarded the primary visa applicant the following points score under Schedule 6 to the Regulations.

32. The delegate also awarded points to the primary visa applicant's spouse. The delegate determined that her usual occupation was a Spinner. The delegate awarded her 20 points for the employment qualification in Schedule 6 to the Regulations. The delegate awarded the spouse a total of 75 points. The award of points to the primary visa applicant's spouse was unnecessary however, as regulation 2.27 only allows for the primary visa applicant and their spouse to combine their scores only if the primary visa applicant does not receive the pass or pool mark under Schedule 6 to the Regulations. In this case, the primary visa applicant received a total score of 125. At the time of primary assessment on 23 November 1998, the pass mark was 115 points. As the primary visa applicant was awarded a total score of 125, he met the pass mark at the time of primary assessment.

33. In the primary decision, the delegate determined that the usual occupation of the primary visa applicant was a First Class Machinist (ASCO code not provided). In the first edition of ASCO, the occupation of Metal Machinist (First Class) (code 4103-13) required a trade certificate. One specialisation of this occupation was a Milling Machinist. In the second edition of ASCO, the occupation of Metal Machinist (First Class) (code 4112-13) requires an AQF Certificate III or higher qualification. Milling Machinist is also listed as a specialisation of this occupation. In the TRA assessment of December 1997, it is stated the occupation of First Class Machinist (Milling) (ASCO code 4112) is a trade.

34. As the primary visa applicant satisfied clause 105.222 at the time of primary assessment, the Tribunal is required to address whether his usual occupation is included on the relevant Occupations Requiring English (ORE) list and if so, whether he has the required standard of English proficiency for the purpose of clause 105.224.

35. Vocational English is defined in regulation 1.15B as a person who satisfies the Minister that they have proficiency in English of at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6.

36. At the time of application the occupation of `Metal Machinist' (First Class) (code 4112-13) was not included on the relevant ORE list. However, it was included on the list at the date of primary assessment (Gazette Notice S50, 18 December 1996). And at the time of the Tribunal's decision, the occupation continues to be on the relevant ORE list (Gazette Notice S6, 11 February 1998).

37. This set of facts raises the issue as to the relevant date to consider inclusion on the ORE list. The Principal Member's view on this matter is to apply the version of the ORE list that was in effect at the time of the visa application (See Principal Member Advice (8/2001)). As plausible arguments can be made one way or the other about this issue I set out this advice in detail.

The ORE list was greatly expanded on 1 July 1997 to encompass almost 85% of occupations. A further list was published by Gazette on 11 February 1998. Each Gazette explicitly revokes all earlier lists.

The first issue that arises is whether an applicant, at the time of lodging an application for a subclass 105 visa, accrues a right to have their application considered based on the ORE list existing at that time. Alternatively, it can be argued that a right accrues at time of (primary) decision, or that no right accrues at all. If there is an accrued right, the next issue that arises is whether there has ever been a contrary intention that affects this accrued right.

The following points support an accrued rights argument:

* The principle of accrued rights derives from both common law (Maxwell v Murphy [1957] HCA 7; (1956) 96 CLR 261) and statute (Acts Interpretation Act (Cth) 1901, notably ss 8, 48 and 50).

* In the High Court case of Maxwell v Murphy [1957] HCA 7; (1956) 96 CLR 261, the Court famously noted: `The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as apply to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.' This principle is reflected in the provisions of the Acts Interpretation Act 1901, notably section 8.

* The Courts have taken a broad approach to what constitutes a `right' for the purposes of understanding an `accrued right.' (see Mason, Murphy and Wilson JJ in Carr v Finance Corp of Australia Ltd [1982] HCA 43; (1982) 42 ALR 29 at 38).

* A distinction was made by Dixon CJ in Maxwell v Murphy between procedural and substantive rights.

* It is strongly arguable that an amendment to the ORE list is not merely a matter of procedure but affects a substantive right, as the ORE list becomes part of the substantive criteria for a subclass 105 (and subclass 106) visa.

Application of Acts Interpretation Act 1901

* Although the power to set the ORE list arises from regulation 1.19, the power to publish Gazette notices such as the ORE list are authorised by subsection 504(2) of the Act.

* The publication of the ORE list in the Gazette, and the binding nature and continuing effect of the list itself, can be considered to create a document of a legislative character which is therefore an `instrument' for the purposes of section 33 of the Acts Interpretation Act 1901 (see Australian Capital Equity Pty Ltd v Beale, Secretary, Department of Transport and Communications and Others (1993) 114 ALR 40).

* Section 46 of the Acts Interpretation Act provides that such instruments are to be regarded as if they were an Act for the purposes of the Acts Interpretation Act.

* Consequently, it is strongly arguable that the ORE list is subject to section 8 of the Acts Interpretation Act (see Azevedo v Secretary, Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683 and in Re Drs Sullivan, Nicolaides & Partners and Minister for Health, Housing, Local Government and Community Services [1994] AATA 618; (1994) 32 ALD 517).

* There is a presumption that Parliament intends all statutes to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention. A similar presumption exists in relation to delegated legislation (section 48(2) Acts Interpretation Act).

* Consequently, in order for an accrued right principle to be dislodged, there must be clear legislative intent that a new ORE list was intended to have retrospective operation.

* Such intention is absent for all lists, which simply revoke earlier notices and are completely silent as to their effect on current applicants.

* Had the Minister intended new ORE lists to be applied to all unresolved applications it would have been a simple matter for that to have been explicitly stated in the Gazette Notice.

* Accordingly, in the absence of any contrary intention in Gazette Notices made by the Minister, it is my view that the Tribunal should act on the basis of the argument set out above and apply the version of the ORE List in effect at the time of the visa application.

* A contrary intention arguably exists for the ORE list gazetted on 18 December 1996 for effect on 1 July 1997, which greatly expanded the number of occupations on the list. The Minister, in a speech to the House of Representatives on 12 December 1996, expressly stated that this list was `to take effect for all visas decided from 1 July 1997.' One view of the Minister's speech is that it indicated a legislative intent to apply the new list to existing undecided applications after 1 July 1997.

* The Ministerial statement of 12 December 1996 is `extrinsic material'. Under section 15AB of the Acts Interpretation Act 1901, extrinsic material can only be considered to confirm the ordinary meaning of a provision, or to determine the meaning of the provision when it is ambiguous or obscure or manifestly absurd or unreasonable. Extrinsic material cannot otherwise be used to depart from the ordinary meaning of the text.

* As there is nothing ambiguous, obscure, absurd or unreasonable about the Gazette notice, the Minister's speech cannot be used to displace the ordinary meaning of the notice, which is that the list will not apply retrospectively.

* The presumption against retrospectivity is only rebuttable where the enactment itself reveals such an intention. The Court will consider whether `the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable' (Worrall v Commercial Banking [1917] HCA 67; (1917) 24 CLR 28 per Barton J at 32). There is nothing in the Gazette to suggest that this test is met.

* The fact that the ORE list appears as a `time of decision' criterion does not require the Tribunal to apply the list in effect at the time of primary decision. `Time of decision' criteria are equally encompassed by the principles of accrued rights.

* A legal advice of 25 October 1999 asserted that the ORE list is not a disallowable instrument under section 46A of the Acts Interpretation Act, and is therefore not subject to sections 48, 48A, 48B, 49 and 50. However, the assumption that the ORE list in the Gazette is not a disallowable instrument is questionable. Even if correct, this would not affect the legislative character of the list and the subsequent operation of s46 and s8 of the Acts Interpretation Act. Nor does it effect the operation of the common law rule against retrospectivity.

* The case of Repatriation Commission v Keeley [2000] FCA 532 provides a recent example of the Court's current generous attitude towards accrued rights. Although Keeley dealt with Statements of Principles that were disallowable instruments and therefore subject to the accrued rights provisions of s50 of Acts Interpretation Act, significant parallels exist between a Statement of Principles under the Veterans' Entitlement Act and the ORE list under the Migration Act.

* The majority in Keeley proceeded on the basis that the revocation of a Statement of Principles and determination of another Statement of Principles in its place was equivalent to a statutory repeal. It could similarly be argued that the express revocation `of all earlier notices' which the Minister declares in the Gazette when publishing a new ORE List is equivalent to statutory repeal.

* The Federal Court has found in two recent cases that an applicant has a vested right to rely upon the Statement of Principles in effect at time of application, or on a new Statement of Principle, whichever is more beneficial (see Williams v Repatriation Commission [2001] FCA 601 (25 May 2001) and Gorton v Repatriation Commission [2001] FCA 286).

* These cases were both made by single Judges. They are currently on appeal to the full Federal Court, and are not being followed in the area of veterans affairs. Furthermore, they concern legislation which is clearly of a beneficial character. I therefore do not consider the Tribunal bound by them in relation to the use of later ORE Lists.

Accordingly, in the absence of any contrary intention in the Gazette Notices made by the Minister, it is my view that the Tribunal should act on the basis of the argument set out above and apply the version of the ORE List which was in effect at the time of the visa application.

38. The point of the Principal Member's Advice is that the Tribunal take a consistent approach to this issue. In the interest of present-day consistency I intend to adopt the reasoning and conclusion of this advice.

39. Guided by the reasoning of this Principal Member Advice (8/2001) I conclude the following. Neither the Gazette Notice S50, 18 December 1996 nor the present Gazette Notice S6, 11 February 1998) on their face displaces the assumed legislative intention - that the relevant Gazette Notice (when considering criterion 105.224) is the Gazette Notice in place at the date of application.

40. The relevant Gazette Notice in relation to this application is thus GN34, 31 August 1994. `...' (ASCO code ...), is not included on this list.

41. Given the findings made above, the appropriate course is to remit the application for the visa to DIMA to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria.

42. The Tribunal remits the applications made by the visa applicants for Skilled - Australian Linked (Migrant) (Class AJ) visas to Department of Immigration and Multicultural Affairs, for reconsideration with the direction that the primary visa applicant meets the following criteria: