Wang & Anor v Minister for Immigration & Anor [2010] FMCA 929 (10 December 2010)

Last Updated: 13 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 929

MIGRATION – MRT decision – subclass 457 business (long stay) visa – English test introduced in 2007 – transitional policy to exempt current visa holders on 4 year visas – applicant’s 4 year visa had been replaced with six month visa – no power to reinstate superseded visa – not qualified under exemptions in force at any time – Tribunal affirmed refusal of visa – no material jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.5, 65, 68, 77, 82, 476 Migration Amendment Regulations 1994 (Cth), Sch.2 cll.457.223, 457.511 Migration Amendment Regulations 2007 (No.5) (Cth) Migration Amendment Regulations 2009 (No.9) (Cth)

Hu v Minister for Immigration [2007] FMCA 1710 Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA 116; (1993) 41 FCR 380 Quarm v Minister for Immigration [2008] FMCA 287; (2008) 216 FLR 192 Quarm v Minister for Immigration & Citizenship [2008] FCA 1156; (2008) 171 FCR 307 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZLQH v Minister for immigration & Citizenship [2009] FCAFC 51; (2009) 177 FCR 1

First Applicant:

YONGJUN WANG

Second Applicant:

FANGYAN LIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1267 of 2010

Judgment of:

Smith FM

Hearing date:

24 August 2010

Date of Last Submission:

28 October 2010

Delivered at:

Sydney

Delivered on:

10 December 2010

REPRESENTATION

Counsel for the Applicants:

First Applicant In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1267 of 2010

YONGJUN WANG

First Applicant

FANGYAN LIU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Since the 1990s, the criteria for granting rights of entry and residence in Australia under the Migration Act have been found in some of the most complex and prolific statutory instruments governing Commonwealth administration. As Gummow J observed in an early case under this scheme: “the greater the specificity of the fixed criteria, the greater the chance that without the existence of a “back-stop” discretion by which the law may be tempered by equity, hard cases will fall short of compliance with the letter of the law (see: Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA 116; (1993) 41 FCR 380 at 386). The present case again illustrates this point.
2. Mr Wang is an expert welder and steel fabricator, who came with his wife to Australia in January 2006 on a subclass 457 ‘business (long stay)’ visa due to expire on 15 December 2009. The terms of his recruitment in China and his initial employment in Australia were exploitative. His sponsoring employer was slow in paying wages and benefits, and sacked him without termination entitlements when he objected. He then found other employment, and settled in 2008 in Wagga Wagga, where he found his current employer who has been approved by the Minister to provide further sponsored employment.
3. There is nothing in the evidence to suggest that his imperfect English language skills materially affect his ability to satisfy his employer’s expectations, nor to participate in community life in Wagga Wagga. However, his efforts to extend his visa have fallen victim to changes to the subclass 457 visa criteria, which in July 2007 introduced an English proficiency requirement, and in September 2009 made it more demanding.
4. Mr Wang’s case comes before me on judicial review of a decision by the Tribunal made on 10 May 2010. The Tribunal affirmed a decision of a delegate made on 6 January 2009, refusing a visa application made by Mr Wang on 24 August 2007 for another four year 457 visa. The Tribunal said that it was obliged to do this, because Mr Wang had not achieved an IELTS test score of at least 5 in each of the 4 test components, and because he was not an ‘exempt applicant’ in relation to that requirement.
5. I have been unable to identify any jurisdictional error vitiating the Tribunal’s decision. It correctly applied the correct versions of the regulations and of the exempting instrument, being those current at the time of its decision. However, the outcome appears inconsistent with the intentions of the 2007 proponents of an English test on new 457 visa holders. I must dismiss the present application, but do so with regret.
6. To explain these conclusions, it is convenient to trace chronologically both the decision-making on Mr Wang’s immigration status, and the history of the relevant legislative instruments. I shall refer to Mr Wang’s situation only, but it should be noted that his wife’s immigration history has followed his as a secondary visa applicant, and that she is also party to the present application.

Mr Wang’s immigration status in August 2007.

7. Mr Wang and his wife travelled to Australia on subclass 457 visas issued in Beijing on 15 December 2005. The Tribunal incorrectly found that their visas were valid until 15 December 2007, but the stamp in Mr Wang’s passport shows that it was a four year visa which allowed him to remain in Australia until 15 December 2009. This is now conceded by the Minister.
8. They arrived on 12 January 2006. On 28 February 2007 Mr Wang was interviewed by an officer of the Department of Immigration concerning the termination of his sponsored employment. A file note which is in evidence shows that he explained and verified the extenuating circumstances in which this had happened. He also presented evidence of his new employment.
9. Shortly after his interview, his passport was stamped with a second subclass 457 visa, which provided that he was permitted to remain in Australia only until 2 September 2007. It seems likely that the first 457 visa in his passport was at that time stamped “label inoperative”, and that the Department’s computer then recorded the first visa as having “ceased”.
10. The 2007 decision-making in which the first visa was treated as inoperative and the second visa was issued, is unclear on the evidence before me. I assume that it was thought within the Department, and that the officers suggested to Mr Wang, that his first visa was liable to cancellation, and that he needed the second visa to regularise his new employment. The delegate’s reasons for not granting a new visa which would have allowed residence for four years, or at least until the expiry date of the superseded visa, are completely obscure on the evidence before me. It has always been within the power of the Minister to specify a visa period of up to 4 years under Sch.2 cl.457.511 for off-shore and on-shore applicants for this subclass.
11. Mr Wang, assisted by his friend Dr Zheng, has argued that it was unfair for the Department to have issued only a six months second 457 visa in 2007, particularly in the light of the later legislative changes which introduced English tests. Before the delegate made the 2009 decision which was affirmed by the Tribunal, Mr Wang requested that his “original four years 457 visa be reinstated” (see emails from Dr Zheng 1 and 11 September 2008). This request was not expressly adverted to in the decision and reasons of either the delegate or the Tribunal in the present matter.
12. In his present application to the Court, Mr Wang treated the decision of the Tribunal as having implicitly affirmed an implicit decision of the delegate “refusing to reinstate the applicant’s original four year’s subclass 457 visa”. He seeks relief from the Court which will recognise that this “was incorrect and contrary to the Minister’s statements”. He also seeks orders which will recognise that Mr and Mrs Wang “were entitled to complete their full four years subclass 457 visa until 31/12/09 without being subject to English requirement.”
13. However, in legal terms, the Court’s jurisdiction under s.476(1) of the Migration Act requires identification of administrative action which is a ‘migration decision’ referrable to an exercise of power under the Act, and there is an onus of proof on an applicant to show that the action involved an invalid exercise of that power. It is possible that the informal application for ‘reinstatement’ was addressed by some other decision within the Department. If so the making of such a decision is not in evidence before me. Nor have Mr Wang and his friend been able to point to a statutory source of power to ‘reinstate’ the visa. They have not presented evidence nor submissions challenging the validity of the decision made in 2007 to issue a new, six months visa. I am therefore unpersuaded that there is any basis for granting relief which might be within the ambit of the orders sought in the application.
14. I consider it likely that the 2008 ‘reinstatement’ requests were treated as ineffective to invoke any statutory power of the Minister, other than the Minister’s power to decide Mr Wang’s third 457 visa application which is the subject of the delegate’s decision of 6 January 2009 and the Tribunal’s decision of 10 May 2010. If so, as presently advised, I consider that this reflected no error of law.
15. Under s.82(7) of the Migration Act a visa which gives permission to remain in Australia “during a particular period or until a particular date”, “ceases to be in effect at the end of that period or on that date”. However, before that time, under s.82(2) “a substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect”. A visa can also cease to be in effect if it is cancelled before its expiry and in other circumstances covered by other subsections of s.82.
16. Implicitly, in my opinion, s.82(2) operates irrevocably to terminate a visa before its originally determined expiry date, upon the grant of a second substantive visa and regardless of the period of effectiveness of the second visa. Upon the earlier cessation date, the grantee of the visa ceases to be a “holder” of that visa for the purposes of the Act and Regulations (see the convoluted provisions defining a “holder”, “visa period”, and “visa in effect”, in ss.5(1), 68 and 77). The scheme of the Act appears to envisage that a person’s permission to enter and reside in Australia will at all times be governed by only one visa, being the visa last granted and no other visa. I am unable to discern an intention in the Act that a first visa will retain or regain effectiveness, or that the Minister has a power to reinstate its effectiveness, if a later visa itself ceases to be in effect prior to the previously determined expiry date of the first visa.
17. On an assumption – which was not challenged by either Mr Wang or the Minister – that the grant to Mr Wang of the second, six months, 457 visa on 2 March 2007 was a valid exercise of power under s.65 of the Migration Act, then in my opinion it had the effect under s.82(2) of irrevocably terminating the legal effectiveness of the first visa. Mr Wang could therefore only obtain ‘reinstatement’ of his original period of permitted residence in Australia, by obtaining a third 457 visa covering that period. He can only obtain relief in the present proceedings, by showing jurisdictional error vitiating the decision of the Tribunal that he was not qualified for the grant of a third 457 visa at the date of its decision, being 10 May 2010.
18. Unfortunately, as I shall explain, the legislation has never allowed Mr Wang to qualify for a third 457 visa under its criteria as they have operated between July 2007 and now, because he is unable to achieve the prescribed level of English proficiency, and because his situation has never come within the terms of a succession of exempting instruments. His contentions that this outcome is unfair, and contrary to the Minister’s transitional policies announced at the end of 2007, may be correct. However, they do not provide him with a ground of judicial review which I am able to recognise.

The effect of the 1 July 2007 legislation.

19. As a result of the issue of the second 457 visa in March 2007, Mr Wang was faced in August 2007 with its imminent expiry, and was advised to apply for a third visa based upon new employment he then held in Brisbane. Such an application was lodged on 24 August 2007. It was subsequently amended to identify Mr Wang’s current employer in Wagga Wagga as his sponsor, and processing of the visa was deferred until that employer became the subject of “an approved business nomination” under the Regulations. This occurred in May 2008. The delegate then appears to have accepted that Mr Wang could satisfy the ‘standard business sponsorship’ criteria in cl.457.223(4) as at relevant times, other than the requirements of cl.457.223(4)(eb). It was Mr Wang’s inability to satisfy that criterion which led the delegate and the Tribunal to refuse Mr Wang’s 24 August 2007 visa application.
20. This criterion had been inserted shortly before Mr Wang’s visa application. Migration Amendment Regulations 2007 (No.5) amended cl.457.223(4) by inserting a new paragraph:
    • (eb) if:
      • (i) the applicant is not an exempt applicant; and
      • (ii) subclause (6) does not apply to the applicant; and
      • (iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
    • the applicant has a level of English language proficiency equivalent to at least the level of English language proficiency that is required to achieve an IELTS test average band score of 4.5 based on the 4 test components of speaking, reading, writing and listening; and ...
21. Before the amendment, including at the times that Mr Wang had been given his first and second 457 visas, he had not been subject to any English language test. However, this new criterion was undoubtedly applicable to Mr Wang’s third application. The transitional provisions of the amending regulation in reg.8(2) applied the amendments to “a visa made on or after 1 July 2007”.
22. The exemptions referred to in cl.457.223(4)(eb)(ii) and (iii) in relation to cll.457.223(4)(ea) and 457.223(6) were directed at visa applicants in occupations requiring a high level of English proficiency, or attracting a high level of salary and ‘public interest’. They were clearly inapplicable to Mr Wang. The decision-makers therefore thought that under the new criterion Mr Wang needed either to achieve the prescribed IELTS test results, or be found to be an “exempt applicant” under cl.457.223(4)(eb)(i). I consider that they were correct.
23. Mr Wang throughout the proceedings has conceded that his English proficiency does not reach the prescribed standard. His friend told the Department in 2008 that Mr Wang was “currently under extreme stress on the English test and has no confidence in passing the test”. A submission which the friend probably wrote for Mr Wang, told the Tribunal that “we study English very hard by attending TAFE courses and private tutoring”. But when he undertook the tests in November 2008, he was able to achieve only 3 on average. This was below the 4.5 average required under the 2007 criterion which was applied by the delegate. It was well below the higher level of “5 in each of the 4 test components”, which had become applicable when his visa application was under review by the Tribunal, by reason of amendments taking effect on 14 September 2009 (see Migration Amendment Regulations (No.9) SLI 2009 no.202, reg.3(6) and Sch.1 [19]).
24. The focus of Mr Wang’s case before the delegate and the Tribunal was, therefore, that he should be treated as an exempt applicant under transitional policies which had been announced by the Minister for Immigration in late 2007, and had been supported by the shadow Minister for Immigration prior to the 2007 general election. A letter written by an officer of the Department of Immigration on behalf of the then Minister informed the President of the Unity Party WA on 25 September 2007 that:
    • Thank you for your email of 8 September 2007 to the Hon Kevin Andrews MP, Minister for Immigration & Citizenship, regarding the English language requirement. The Minister has asked that I respond on his behalf.
    • Skilled workers currently in Australia on a Temporary Business (Long Stay) Subclass 457 visa who lodged their application prior to 1 July 2007 were not subject to the new English language requirement. Recent changes to the English language requirement enable a person to complete the full 4 year original Subclass 457 visa without being subject to the English language requirement. This means that where for example, a Subclass 457 holder changes employers after 2 years in Australia on a 4 year Subclass 457 visa, they may seek a new visa for a 2 year period without being subject to the English language requirement. Of course, where licensing/registration apply this requirement cannot be waived.
    • The English language requirement ensures that overseas workers are able to respond to occupational health and safety risks and raise any concerns about their welfare with appropriate authorities. Employing overseas workers with suitable English language skills can also help deliver better business outcomes. Employees with English language skills are more likely to settle into the Australian community quicker, making them more productive in the workplace.
    • The level of English proficiency required of overseas workers applying for occupations within group 4 of the Australian Standard Classification of Occupation (ASCO) comprising tradespersons and related workers is equivalent to an average band score of 4.5 in an International English Language Testing System (IELTS) test, unless a higher level us required for licensing or registration. This level should mean that workers are able to handle basic communication in most situations.
    • Thank you for bringing this matter to the Minister’s attention.
    • (emphasis added)
25. A spokesman for the then Shadow Minister for Immigration announced in October 2007:
    • Labor supported the changes to the English language requirements, including the provision that 457 workers who arrived before the 1st July 2007 would not be required to meet the new English requirements and that they can change employers.
26. I agree with Mr Wang’s submissions that his situation might reasonably appear to come within these policy announcements. However, this was not the effect of the legal instruments made by successive Ministers.
27. The reference to “exempt applicant” in cl457.223(4)(eb)(i) is explained in cl.457.223(11):
    • (11) In subclauses (4) and (5):
      • exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
28. Successive Immigration Ministers have made a series of such instruments, revoking the previous instrument, specifying a new commencement date, and modifying the categories of visa applicants who are exempt from the English test. The instruments themselves do not indicate whether they are intended to be applicable to pending visa applications.
29. The possible relevance to Mr Wang of the Minister’s policy and of earlier exemptions was not adverted to by the delegate or the Tribunal. In his or her decision, the delegate said only: “the applicant has been assessed under 457.223(4)(eb)(i) as not being an exempt applicant”. This did not identify the instrument which had been consulted when forming that opinion, nor the reasons for concluding that it was inapplicable.
30. An earlier opinion was expressed by a Departmental officer in a letter on 23 May 2008 that “it would seem impossible for the client to be regarded as an exempt applicant” (see Court Book p.58). This was equally obscure.
31. In its decision, the Tribunal said that “the relevant gazette notice is IMMI 09/118 of 4 [sic:9] November 2008”, without explaining this conclusion. This was the most recently made exempting instrument. It listed four categories of exempt visa applicants, covering passport holders of five English speaking countries, applicants nominated for occupations requiring English language competency which fell within managerial and professional classifications, applicants with at least five consecutive years’ study taught in English, and employees of diplomatic or consular missions. Plainly, these categories did not include a tradesman such as Mr Wang, nor many other holders of visas who had been intended to be exempted under the policies announced in 2007. However, the Tribunal was correct in reaching its conclusion that Mr Wang was not covered by the 2009 exempting instrument.
32. The Tribunal did not explain why it was of opinion that the most recent exempting instrument was applicable to its decision, rather than instruments which had been current at earlier times, such as the date of the visa application, or of the delegate’s decision, or of the application for review.
33. The exempting instruments themselves do not reveal any intention whether they are to be applied to pending applications. Nor was I referred to any provision of the Migration Act, the Regulations or other Act which clarifies how they are to be applied in relation to pending visa applications. Although the Minister is free to alter visa criteria so as adversely to affect the determination of pending visa applications, an intention to do this usually appears on the face of the amending instruments (see Hu v Minister for Immigration [2007] FMCA 1710 at [27], and Quarm v Minister for Immigration (2008) 216 FLR 192, [2008] FMCA 287 at [3], and [52]-[57], upheld on appeal: Quarm v Minister for Immigration & Citizenship [2008] FCA 1156; (2008) 171 FCR 307).
34. Even if there is a presumption from the structure of the migration legislation that a primary decision-maker will apply the most recent exempting instrument as at the time of primary decision, I said in Hu (supra at [28]):
    • I note that there is authority suggesting that, even if there are no accrued rights in relation to the criteria to be applied in a primary administrative decision, the bringing of an application for merits review may accrue a right to have the primary decision reviewed by reference to repealed or superseded law (see Lee v Secretary, Department of Social Secretary (1996) 68 FCR 491, applying Esber v Commonwealth (1992) 174 CLR 430, but note some uncertainty about that authority: Re Ross; Ex parte ALHMWU [2001] FCA 770; (2001) 108 FCR 399 at [44]- [68], Hicks v Aboriginal Legal Service [2001] FCA 483; (2001) 108 FCR 589 at [51]- [61], and Attorney-General for Queensland v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 at [49], [128])
35. The authorities I cited apply statutory interpretation principles of accrued rights based upon presumptions of non-retrospectivity of amending legislation, in the absence of any intention shown by its maker in relation to the position of a review tribunal. I consider that they would provide Mr Wang with an arguable ground of jurisdictional error vitiating the Tribunal’s reliance on the most recent exempting instrument in the present case, if he could locate a more beneficial instrument made under cl.457.223(11) which was current at an earlier relevant time, in particular, when the delegate determined the matter at first instance.
36. However, I have been unable to locate such an instrument, and therefore do not need to determine the interesting legal issue. If the Tribunal did err in law in its identification of the exempting instrument applicable to its review, then this made no difference to the outcome, and it would be futile to grant relief under s.476 of the Migration Act on that ground (cf. SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]-[59], [91], and SZLQH v Minister for immigration & Citizenship [2009] FCAFC 51 at [143]-[146]).
37. My researches as to the history of the exempting instruments, show as follows:
    • IMMI 07/044 commencing on 1 July 2007 and was current at the date of Mr Wang’s visa application. It could not assist Mr Wang, since it covered only four categories of visa applicants in terms similar to those which were covered by the November 2009 instrument applied by the Tribunal. As I have noted, the Tribunal correctly found that Mr Wang was not within any of these categories.
    • IMMI 07/069 commenced on 10 September 2007, after Mr Wang’s visa application but before it was decided. It included a fifth category of subclass 457 visa applicants exempt from the English test, and appears partly to implement the Minister’s announced transitional policy by introducing in its cl.3 a fifth category of exempt applicants:
      • (e) applicants who:
        • (i) are nominated in an occupation that does not require a level of English language competency for grant (however described) of registration, licence or membership; and
        • (ii) were the holder of a Subclass 457 Business (Long Stay) visa on 1 July 2007; and
        • (iii) have applied for a second Subclass 457 Business (Long Stay) visa; and
        • (iv) at the time of grant of the second visa, there remains at least 3 months and 1 day before the “end date” of the visa mentioned in (ii); and
        • (v) the end date sought for the second visa is not after the end date allowed on the visa mentioned in (ii) – “end date” means the last day of the period of stay.

However, I accept the Minister’s submissions that Mr Wang could not have taken advantage of this exemption, since under sub-paragraph (iv) it would never have been possible “at the time of grant” of the new visa Mr Wang needed to gain ‘reinstatement’ of the period of his first visa, that “there remains at least 3 months and 1 day before the end date of” the 457 visa of which he was a holder on 1 July 2007. As I have found above, on 1 July 2007 he was the ‘holder’ of only his shorter, six month, replacement visa which was due to expire on 2 September 2007. No decision to grant the new visa on his visa application made on 24 August 2007 could have been made within three months before the current visa expired.

As drafted, the transitional exemption did not, therefore cover Mr Wang’s situation, even if a grant of a third visa reinstating his original 4 year visa might have appeared consistent with the announced transitional policies of the Minister.

• IMMI 07/079 commenced on 8 October 2007, and was replaced by IMMI 08/063 which commenced on 1 August 2008. They essentially repeated the five previous categories of exemption. The latter instrument was current at the date of the delegate’s decision on 6 January 2009. It contained a transitional exemption (e) in the terms quoted above. However, for the reasons given above, it could not have assisted Mr Wang.

Thus, notwithstanding the failure of the delegate or the Tribunal to discuss Mr Wang’s situation by reference to this instrument, I consider that he could not have succeeded at first instance upon any instrument which was current at or before the date of primary decision. Even if before the Tribunal he had an accrued right to have his visa eligibility addressed by reference to the earlier instruments, they could not have assisted his case.

• IMMI 09/033 commenced on 14 April 2009, after Mr Wang’s application for review and before the Tribunal’s decision. It omitted the previous transitional category of exempt visa applicants, and contained a new category (e). This was applicable only to visa applicants who were holders of 457 visas on 14 April 2009. It therefore gave no exemption to any holders of such visas in 2007 whose last 457 visa had expired before 2009, even if they had an outstanding visa application. Although in April 2009 Mr Wang’s first 457 visa would still have been current during the currency of this instrument, and would have allowed him qualify for the exemption, for reasons given above he was no longer a ‘holder’ of a 457 visa on 14 April 2009.
• IMMI 09/057 commenced on 27 May 2009, while the matter was still pending before the Tribunal. It extended the new exemption (e), to cover persons who on 14 April 2009 had outstanding 457 visa applications which had subsequently been granted. Mr Wang would again have satisfied the exemption, if his original 457 visa remained effective. However, for reasons given above this was not the case. This exemption instrument could therefore not have assisted him, if his pending visa application had been decided during its currency, either at first instance or on review.
• IMMI 09/067 commenced on 16 June 2009, and made no relevant changes to the exemptions.
• IMMI 09/118 commenced on 9 November 2009, and omitted a category (e) entirely. As I have noted, this instrument was current at the time of the Tribunal’s decision, and the Tribunal correctly found that Mr Wang was not covered by its exemptions.
• IMMI 10/029 commenced on 1 July 2010, after the Tribunal’s decision. It is therefore irrelevant to the present application. However, I note that it introduced a long list of nominated occupations not requiring a level of English language competency, in relation to which 457 visa applicants are currently exempt from English testing. The list does not include Mr Wang’s occupation of Welder ASCO 412215.

Conclusion

38. The above history suggests that Mr Wang’s difficulties stem, for no fault of his nor of the people who have been helping him, from an omission by the Department in February 2007 to issue his replacement 457 visa with the same currency as the visa which it replaced. This probably appeared insignificant at the time, and Mr Wang expected to be able to obtain further visas to cover his anticipated residence in Australia until 2009 and beyond. However, it had the unfortunate effect that, when the new English language criterion on 457 visas was introduced in July 2007, his special situation was not covered in the drafting of any of the Minister’s exempting instruments made from time to time.
39. Although I have explained why I have been unable to find any ground for providing Mr Wang with relief under s.476 of the Migration Act in response to his present application, I recommend to Mr Wang that he obtain immigration advice on invoking the Minister’s special discretionary powers. I also recommend to the Minister that he give consideration to any such request in the light of my above findings.
40. In relation to the costs of the application, I am inclined to make no order as to costs. Mr Wang had genuine and reasonable reasons for seeking clarification of a highly complex legal situation. He had reasonable expectations of qualifying under the announced policies of the Minister. The effects of the exempting instruments upon which his visa application depended were never sufficiently explained to him in the decisions and reasons given by either the delegate or the Tribunal. I am inclined to think that this is an exceptional case where costs should not follow the event. However, I shall invite and consider any applications for costs made by the parties.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 10 December 2010