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Octavia v Minister for Immigration [2011] FMCA 16 (17 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OCTAVIA v MINISTER FOR IMMIGRATION

MIGRATION – Review of decision of a delegate of the Minister – where application found to be invalid due to an “expired” skills assessment – temporal limitation of the assessment irrelevant to regulatory requirements – plain language does not impose a temporal limitation – application allowed.

Migration Act 1958 (Cth), ss.5, 31, 45, 46, 47, 65, 474, 476
Migration Regulations 1994 (Cth), reg.2.01, reg.2.07, reg.2.26B, Sch.1, Sch.2
Commonwealth of Australia Constitution Act 1901, p.75
Migration Amendment Regulations 2009 (No.15) (SLI No 375 of 2009), s.4, Sch.2

Silveira v Australian Institute of Management [2001] FCA 803
Twinn v Minister for Immigration [2005] FCAFC 242; (2005) 147 FCR 490
Minister for Immigration v Seligman [1999] FCA 117; (1999) 85 FCR 115
Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 956; (2004) 82 ALD 51
Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315
Saeed v Minister for Immigration and Citizenship [2010] HCA 23

Applicant:
VERONICA DEWI OCTAVIA

Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:
SYG 1462 of 2010

Judgment of:
Nicholls FM

Hearing date:
2 November 2010

Date of Last Submission:
2 November 2010

Delivered at:
Sydney

Delivered on:
17 January 2011

REPRESENTATION

Counsel for the Applicant:
Mr L Karp

Solicitors for the Applicant:
Kinslor Prince Lawyers

Counsel for the Respondent:
Mr G Kennett (SC)

Solicitors for the Respondent:
DLA Phillips Fox

ORDERS

(1) The application for a visa made by the applicant on 12 May 2010 is a valid application for the purposes of the Migration Act 1958 (Cth).
(2) An order in the nature of a writ of mandamus issue compelling the Minister to consider the application.
(3) The respondent to pay the applicant’s costs fixed in the amount of $9.000.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1462 of 2010

VERONICA DEWI OCTAVIA

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent


REASONS FOR JUDGMENT

  1. The application before the Court was made on 1 July 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”). In essence, it seeks a declaration that an application lodged with the respondent Minister’s department on 12 May 2010 by Ms Veronica Dewi Octavia for a Class VB Skilled (Residence) visa was validly made.

Background

  1. Ms Octavia is an Indonesian national who has been studying and working in Australia since 2003. (See Court Book – “CB” – CB 5.) Her qualifications and work experience are in the information technology field (“IT”).
  2. A copy of the application for the visa with supporting documentation is reproduced at CB 1 to CB 88. This bundle included a letter from the Australian Computer Society Inc (“ACS”) dated 23 October 2007 (CB 39).
  3. The letter referred to an application by Ms Octavia to the ACS seeking a “pre-migration skills assessment”. The letter notified her that she had been assessed as meeting relevant requirements and to be suitable for migration under the “Recent Graduate” code of the skilled occupation that she had indicated she would nominate in a “General Skilled Migration” application (“885” visa – “Skilled-independent: Onshore”).
  4. Relevantly the letter further advised:
  5. An officer in the Minister’s department situated in the “Adelaide Skilled Processing Centre” (“ASPC”) sent an email to Ms Octavia on 18 May 2005 (CB 89). Amongst other things, this communication advised the applicant of the “difficulty” in processing her application because the skills assessment provided by the ACS had “expired”.
  6. Ms Octavia appointed a migration agent to represent her (CB 95). The agent is also a lawyer with the firm of lawyers representing Ms Octavia before the Court. He made representations to the officer in the Minister’s department (CB 101 to CB 105). These were not accepted.
  7. An officer of the Minister’s department wrote to Ms Octavia’s representative on 22 June 2010 (CB 111 to CB 114) advising that the application for the visa had been found to be invalid because Ms Octavia had provided an “expired skills assessment”.

Application to the Court

  1. The application to the Court pleads one ground, with particulars:
  2. The applicant seeks a declaration that the application for the visa was validly made and orders in terms of writs of certiorari, prohibition and mandamus.
  3. At the hearing before the Court, Mr L J Karp of counsel appeared for Ms Octavia. Mr G Kennett (SC) of counsel appeared for the Minister. I admitted provisionally into evidence (subject to relevance being made out) the affidavit (with annexures) of David John Prince, the applicant’s solicitor, made on 29 October 2010.

The Statutory and Regulatory Scheme

  1. Ms Octavia applied for a visa. Section 31 of the Act provides, relevantly, for prescribed classes of visas (see s.31(1) and s.31(3)).
  2. Section 45 provides that a non citizen, like Ms Octavia, may apply for a visa. Section 46 sets out the requirements for the making of a valid application for a visa. For current purposes s.46(2) provides:
  3. Section 47(1) requires the Minister to consider a valid application for a visa. Section 47(3) provides that the Minister is not to consider an application that is not a valid application.
  4. Regulation 2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) provides that for the purposes of s.31 the prescribed classes of visas other than those created by the Act itself are such classes set out in Sch.1 to the Regulations in the respective items of that Schedule.
  5. Regulation 2.07 provides that for the purposes of s.45 and s.46 of the Act, Sch.1 to the Regulations sets out those matters relating to the application that go to the validity of the application (the approved form, the application charge payable and other matters).
  6. Ms Octavia applied for a class 885 visa. The Sch.1 criteria for the class of visa (Skilled (Residence) (Class VB)) are at item 1136 of Sch.1. Given Ms Octavia’s circumstances item 1136(3)(ba) is relevant:
  7. The issue presented by the application to the Court is whether the application is a “valid” application which pursuant to s.47(1) obliges the Minister to consider it.

This Court’s jurisdiction

  1. Section 476 of the Act confers jurisdiction in this Court in relation to “migration decisions”. It is said to be the same original jurisdiction as the High Court has under paragraph 75(v) of the Commonwealth of Australia Constitution Act 1901.
  2. “Migration decision” is defined in s.5 of the Act as:
  3. In submissions Mr Karp has assumed that the officer in the ASPC acted within delegation given by the Minister and made a decision that the application was not valid.
  4. Mr Kennett has not directly addressed this issue in written submissions. The focus has been on the issue of the invalidity of the application. However, under the heading “Conclusions and Orders” he appears to cast doubt on whether this can be characterised as a “decision” and certainly submits that: “... the ‘decision’ of the delegate is not a purported exercise of any statutory power and does not have any legal force in itself.”
  5. In submissions before the Court Mr Kennett explained that the use of quotation marks around the word “decision” in written submissions was to emphasise the distinction that in this case what the Minister’s delegate did was a migration “decision” for the purposes of the Act (s.474) and therefore engages the jurisdiction of this Court, but was not a “decision” in the sense of exercising a power that determines any right for the future.
  6. This distinction was a part of the Minister’s argument raised in support of the invalidity of the application made by Ms Octavia. For immediate purposes, however, no issue was raised concerning the jurisdiction of this Court to consider the application made to it.

The submissions

  1. The issue for consideration therefore is whether the reason that was given in finding the application to be invalid can be sustained. That is, does the statement on the face of the assessment by the ACS that its assessment is valid for 24 months from the date of issue (before the lodging of the current application) render the assessment inoperative, leaving Ms Octavia in a position that she did not provide a skills assessment that was still current, and therefore her application was invalid.
  2. There is no dispute that pursuant to reg.2.26B(1) the Minister may specify an assessing authority for the purposes of an application for a skills assessment.
  3. Mr Karp submits that such a skills assessment is not authorised by the Act and Regulations because there is no obligation under the Act to conduct such an assessment, nor can any such authority be compelled by the writ of mandamus (Silveira v Australian Institute of Management [2001] FCA 803 at [34]- [37] per Emmett J).
  4. Ms Octavia’s position is that item 1136(3)(ba) only requires a skills assessment to have been made by an assessing authority. That the words of the item do not support a construction where the Minister could take into account the type of temporal limitation expressed in the authority’s letter as in the current case.
  5. Mr Karp submits in support, first, that the Minister’s position seeks to extend the language of the regulation by imposing such an additional criterion, which is outside its plain terms. This is not permitted (Twinn v Minister for Immigration [2005] FCAFC 242; [2005] FCAFC 242; (2005) 147 FCR 490 at [24]- [29] and Minister for Immigration v Seligman [1999] FCA 117; (1999) 85 FCR 115 at [66]- [69]).
  6. Second, that this construction, that is the reliance on the plain wording of the item, is supported when regard is had to the wider context in the Regulations. A temporal requirement is to be found in item 1136(3)(bb). Had there been an intention to impose any temporal limitation in item 1136(3)(ba) then this could easily have been done.
  7. This inference is supported by the fact that both items 1136(3)(ba) and (bb) were inserted into the Regulations by the same amendment (Migration Amendment Regulations 2009 (No 15) (SLI No 375 of 2009) s.4(2) and Sch.2 item 1). One imposes a temporal limitation. The other does not.
  8. Mr Karp submits that in this light all that is needed to meet item 1136(3)(ba) is the existence of a skills assessment. Ms Octavia had such a skills assessment issued in 2007 by the relevant authority. It is irrelevant that the authority sought to impose a 24 month expiration.
  9. I understood the argument to be that as the skills assessment is relevantly provided for the purposes of the Act, then the assessment, and all that is contained in it, must be read in light of the Act and Regulations.
  10. I should just note that I had difficulty with the applicant’s submissions to the extent that they sought to draw some contrasting comparison with requirements set out in Sch.2 to the Regulations which were also said to contain temporal limitations, as did item 1136(3)(bb), but not (ba). (See footnote 2 to paragraph 16 of the applicant’s written submissions for the examples given.)
  11. The purposes of the matters at Sch.1 and Sch.2 are of such different nature that care must be taken in drawing such comparisons. Schedule 1 is directed to the matters that constitute a valid application for the different classes of visas (and therefore directly relevant to the issue before the Court).
  12. Schedule 2 deals with provisions relating to the grant of visas. While some relevance could be drawn from the criteria to be met at the time of application, no such relationship exists with criteria to be met at the time of decision.
  13. The fact that the applicant’s solicitor now seeks (by way of affidavit) to put an assessment by ACS made on 8 June 2010 (after the making of the application for the visa) before the Court does not assist the applicant. That “positive”, “current” ACS assessment could have provided, and could still be provided as at the time of the making of any decision (on the presumption that the Court would declare that the application for the visa was valid) does not assist in showing that the application for the visa was valid.
  14. Nor is there any correlation to be drawn between criteria to be met at the time of application and time of decision (the Sch.2 matters) with the requirements as to what constitutes a valid application. That there are temporal limitations expressed in the items found in Sch.2 does not in my view assist when looking at the absence of any such temporal limitation in an item in Sch.1.
  15. The relevant comparison therefore is to be found with items 1136(3)(bb) and (ba). That both items were inserted at the same time, by the same instrument, and one contains a temporal limitation thus indicating that the drafter had this concept in mind, and the other does not, is important.
  16. Mr Kennett relies on Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 956; (2004) 82 ALD 51 (“Kim”) per Branson J at [26] (and the obiter endorsement on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315 per Moore J at [21] and Allsop J at [33]-[45]), for the proposition that there is a distinction recognised by the Act between criteria to be satisfied by a visa applicant and criteria to be satisfied by a visa application.
  17. On this basis therefore, what must be recognised is that the requirements in Sch.1 (which includes item 1163) must be seen as criteria referrable to the application itself, and not the applicant.
  18. Therefore item 1163(3)(ba) must be construed in such a way as to specify either a requirement about the application itself or a circumstance that is present at the time the application is made.
  19. Particularly, with probable reference to the last sentence at [26] of Kim, that any such requirement or circumstance must be objective. This was said to be in the sense that it did not require a judgment by the Minister or his delegate at the time immediate to the lodging of the application. This is, that the requirement or circumstance must be able to be verified without analysis and without the need to make findings about the content of the application.
  20. The thrust of the submission is that if it were otherwise, item 1136(3)(ba) would not be within the operation given to Sch.1 by reg.2.07 (matters that go to the validity of the application). Therefore the argument is that a construction that avoids this outcome is to be preferred.
  21. The Minister’s position is that the applicant’s construction would take item 1136(3)(ba) outside this permissible scope.
  22. The argument is that on the applicant’s construction there would be the necessity to make a finding of fact about relevantly whether an event had occurred in the applicant’s past. Therefore it is submitted that item 1136(3)(ba) is not referrable to the application itself or to an objectively verifiable state of affairs at the time of application, but would be referable to the applicant’s history.
  23. From that position the argument then is that item 1136(3)(ba) must be construed as requiring at the time of application a skills assessment in relation to the applicant issued by the relevant assessing authority. That is that the applicant is currently the subject of an appropriate skills assessment.
  24. The emphasis in this submission is on the word “current”. The requirement is not met where an assessment of the applicant’s skills was made, but only for a limited period which had expired by the time of the making of the application.
  25. Mr Kennett submitted that the Minister’s approach now is confirmed by the Explanatory Statement to the Migration Amendment Regulations 2009 (No.15), p 1 to the amendment that inserted item 1136(3).
  26. The Minister presses two additional points which are said to support the construction proposed.
  27. First, that the construction which emphasises the currency of the ACS assessment gives effect to the view of the ACS, as the relevant assessing authority, as to the period for which the skills assessment should be regarded as applicable.
  28. This is rational and consistent with the legislative intention because, in areas such as IT, the required level of skills evolves quickly, and the currency of an assessment is required in circumstances where an applicant’s skills may not have matched this evolution or declined because of lack of use.
  29. Second, that no assistance is obtained from the applicant’s assertion that, in particular, many of the requirements of Sch.2 impose temporal requirements and item 1136(3)(ba) does not.
  30. Further, that a comparison with item 1136(3)(bb), which does impose a temporal requirement, is irrelevant because the Minister’s position does not contend for any reading of a temporal requirement into item 1136(3)(ba). It is the case, on the Minister’s submission, that a skills assessment is to be treated as applicable to the visa applicant according to its terms. Any temporal limitation arises from the terms of the assessment itself. Yet item 1136(3)(ba) is relevant to the validity of the application.

Consideration

  1. As set out above, I agree with Mr Kennett that any comparison or support to be drawn by the applicant from Sch.2 does not assist. It is clear that, as Mr Kennett submits, the provisions in Sch.2 perform a different function to Sch.1. These requirements are generally expressed as being the criteria against which the Minister’s level of satisfaction is to be measured before a visa is to be granted. It is here where the distinction between the visa applicant, and the visa application is most apparent.
  2. Schedule 1 requirements are not expressed at being referable to any “current” assessment of Ministerial levels of satisfaction. Where references to “satisfaction” are made they are generally that an applicant has satisfied requirements for some earlier visa preliminary to the consideration of the visa currently under consideration.
  3. Having said that however, I am not persuaded by the Minister’s albeit well constructed argument as to the effect of the temporal limitation in the ACS letter.
  4. The starting point must be to remind ourselves what is at issue. What the applicant seeks, and the Minister defends, is the matter of the validity or invalidity of the application. The requirements for a valid application are set out in the relevant parts of Schedule 1 to the Regulations.
  5. The effect of reg.2.07 is that for the purposes of the statute those matters that go to the validity of an application are set out in the relevant parts of Sch.1 to the Regulations.
  6. In the current case there is no issue as to the validity of the application as it relates to the form of the application (item 1136(1)). There is no issue as it relates to the visa application charge (item 1136(2)). Nor is there issue as to any “other” application validity requirement (item 1136(3)), except for item 1136(3)(ba).
  7. The Minister’s delegate advised the applicant that the application for the visa was not valid because the skills assessment accompanying the application (as it was required to make the application valid) was no longer a “valid” assessment because it was expressed as being valid for a period which had expired by the time of the making of the visa application (CB 89).
  8. Mr Karp argues that, irrespective of what may appear on the face of the skills assessment itself, the relevant regulatory provision does not speak of, or even allow as being relevant, any temporal limitation.
  9. The argument is that the requirements to enable an application for a visa to be accepted as valid require, amongst other things, a skills assessment. That assessment accompanied the application and charge paid. The application is therefore valid.
  10. The temporal limitation expressed on the face of that assessment is inconsistent or more precisely irrelevant to the regulatory requirement which imposes no such limitation.
  11. I agree. Ultimately this matter is to be resolved with the plain language of item 1136(3)(ba) itself. That language plainly and simply says that for a visa application to be valid the applicant’s skills relevant to the visa she applied for must have been assessed by the relevant authorities as being suitable for the skilled occupation nominated by the applicant in the application.
  12. The application was accompanied by evidence of such an assessment (CB 39).
  13. Mr Kennett argues that the legislative scheme (s.45 to s.47) envisages that a separate process to that of the Minister being satisfied as to the meeting of criteria for the grant of the visa is the ascertainment at the “beginning” of the process as to the validity of the application itself.
  14. Mr Kennett relied on what was relevantly said in Kim per Branson J (no merits review available as to whether or not a skills assessment took place) to argue that the matters set out in Sch.1 (going to validity of the application) are matters which are quickly and objectively verifiable without going behind the material that has been supplied by the applicant.
  15. If anything, it must be said, this argument on its own appears to support Mr Karp’s position. At best, it does not assist with the resolution of the matter at hand. Contrary to the submissions apparently put against him, I did not comprehend Mr Karp’s argument to ultimately require any long or complex process of identifying the elements going to the validity of the application.
  16. In Kim, Branson J at [26] said:
  17. While Mr Karp did say at one point in oral submissions that some investigation may need to take place, I did not understand him to be departing from what Branson J said. Any such “investigation” is plainly not to be concerned with the judgments involved in whether satisfaction can be achieved as to the criteria to be met before the visa must be granted (s.65), but with matters of objective fact.
  18. In the example of the current case, therefore, the questions to be asked by the Minister’s department in assessing the validity of the application are, for example, whether the approved form has been used, the appropriate fee paid, and whether the “other” requirements are present.
  19. I cannot see, in the current case, that the applicant’s position calls for anything more than the Minister’s officers noting that, amongst the other matters, evidence of an appropriate assessment by the relevant skills assessing authority had been presented.
  20. It is not necessary in the circumstances of this case, as argued, to consider the situation if no such evidence had been presented and whether this would compel the Minister’s department to investigate with any relevant skills assessing authority.
  21. The Minister’s position appears to be that expectation of such an investigation flows from the applicant’s preferred construction and is contrary to the relevant legislative/regulatory scheme.
  22. What must immediately be noted is that the language of item 1136(3)(ba) is, at best for the Minister’s position, silent on this issue. The item does not say, for example, that for an application to be valid evidence of the relevant skills assessment must accompany the relevant form and charge. The item plainly states that the “applicant’s skills must have been assessed...”.
  23. I ultimately understood the applicant’s preferred construction of this item, and of the statutory and regulatory context in which it sits, to be consistent with the facts as this matter was presented.
  24. That is, that item 1136(3)(ba) should be understood as requiring a relevant skills assessment by the appropriate authority to have been made and to have found the applicant’s skills to have been suitable for the nominated skilled occupation.
  25. That such a construction may mean that ultimately an applicant may not be granted a visa because the criteria to be met at the time of the making of the decision on the visa may require such a satisfactory skills assessment is not, in my view, an argument as to the proper construction of item 1136(3)(ba) or against the applicant’s construction as to the validity of the application.
  26. As already set out above, Sch.1 and Sch.2 are quite distinct Schedules directed to different purposes. If the drafter of item 1136(3)(ba) had intended such a situation then provision could clearly have been made in the language of the item itself, or indeed elsewhere in the statutory/regulatory scheme. It has not been.
  27. In this sense also the applicant’s solicitor’s affidavit, and in particular the annexed letter from the ACS with the “second” satisfactory skills assessment, while not of direct assistance in resolving the proper construction of this item, does emphasise the distinction and provides another example for the rationale for the distinction between Sch.1 and Sch.2.
  28. Questions of the validity of an application for a visa should not be resolved with reference to criteria to be met at the time of decision. If this were to be the case, then the provision of this “second” assessment would squarely argue for the validity of the application. In my view any objective assessment of the question of such validity must be directed to and arise from Sch.1.
  29. Mr Kennett also submitted that a consequence of the applicant’s preferred construction is that if an applicant obtained a skilled assessment at some time in the past, but then for example was “deregistered for malpractice”, and the relevant skills assessment was withdrawn, then on the applicant’s construction such a person would still have a valid application before the Minister’s department.
  30. The preferred construction of item 1136(3)(ba) therefore is that the skills assessment must be “current” as at the time of application.
  31. This point has logic and purpose to it. However, it raises the question as to whether those who drafted the relevant scheme envisaged such an outcome.
  32. If they did, however, they took no steps in the plain language of this item to avoid it. The words “... must have been” not only apply to that point in time immediately before the making of the visa application, but are unlimited as to how far in the past this assessment should have taken place. Nor is there anything else in the relevant wording to impose such a limitation, or the limitation of “currency” of the assessment.
  33. Mr Kennett also argued that such a requirement for currency flows from the legislation itself, rather than simply the wording of this item.
  34. The argument was that s.46 itself, concerned with the issue of a “valid visa application” provides for, and poses, questions relevant to a state of affairs existing at the time of the lodging of the visa application, rather than historical facts, which while as in the present case may be difficult to determine or prove. Such a state of affairs would require more evidence than that provided with the visa application form.
  35. In this regard Mr Kennett relied on what he said were the limitations indicated by Branson J in Kim. That is, that with reference to the relevant legislative scheme there was no intention by the legislature to require “... a decision as to the validity of a visa application to require the making of a judgement...” (Kim at [28]) of the type set out previously in that judgment. (That is, the distinction between the objective and “quick” assessment of whether an application is valid, and the consideration at greater length as to whether the requisite level of satisfaction can be achieved as against the relevant criteria for the grant of the visa (s.65).)
  36. It is the case that s.46 is focussed on the validity of a visa application and quite naturally encompasses that point in time.
  37. But I do not see that the distinction drawn by Branson J assists the Minister’s argument in the way proposed now. With respect, I understood her Honour’s reasoning to be focussed on the distinction between the authorising of criteria that constitute the making of a valid visa application and the making of an ultimate decision consequent upon the making of a valid visa application. This consideration was directed to the purpose of deciding whether a particular regulation (reg.2.12(2)) was ultra vires the power in the Act to make such a regulation. (Her Honour found that that regulation was not authorised by the Act.)
  38. There is no such issue in the current case. Both sides contend that item 1136(3)(ba) is made within authority, but differ as to its construction and meaning.
  39. Section 46 may indeed be focussed on a state of affairs existing at the time of the making of the visa application and authorise the prescription, amongst other things, of circumstances that must exist for an application for a visa to be valid.
  40. Item 1136(3)(ba) provides for one such circumstance. That is, that at the time of visa application (for a Skilled Residence visa) the applicant’s skills must have been assessed by the relevant assessing authority as being suitable for the applicant’s nominated skilled occupation.
  41. In my respectful view there is nothing relevant to be drawn from what Branson J said in Kim, or indeed from s.46 itself, to argue against the applicant’s construction.
  42. What must exist to make the visa application valid is such a skills assessment. So long as such an assessment exists at the time of application, then the requirement in item 1136(3)(ba) is met. There is nothing in the language of the item (nor to be further drawn from s.46) that requires that assessment to have been made at any particular time, or for any particular period. The requirement is simply, without the qualification proposed by the Minister now, that the applicant’s skills “must have been assessed”.
  43. That is the existing state of affairs required by this item. Namely existing at the time of application, not at some time after the making of the application.
  44. The essence of the Minister’s position is that there is an alternative and preferable construction of this item which must be understood as properly meaning that the relevant “skills must currently be the subject of an assessment”.
  45. That is, that at the time of visa application the relevant authority assessed the applicant’s skills as being suitable as at that time.
  46. The difficulty that I have with the Minister’s proposed construction is the very language of item 1136(3)(ba) itself.
  47. In this regard, I am not only guided, but directed, by what was recently said, for example, by the High Court of Australia in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31] (per French CJ, Gummow, Hayne, Crennan and Kiefel JJ):
  48. Further, at [33]:
  49. And at [39]:
  50. As was also said by Haydon J (at [74]):
  51. Respectfully, I do not comprehend any of this to say that regard can never be had to extrinsic materials, to Explanatory Memoranda or Second Reading Speeches and the like. But the starting point must be the legislation or regulation itself, and the context in which it appears. Such material may be of use where there is some ambiguity in the relevant wording that requires clarification.
  52. As I have already stated above, the plain language of item 1136(3)(ba) and the context in which it appears do not entertain any such ambiguity. A relevant skills assessment is required to have been done as at the time of visa application. It was.
  53. But in any event I could not see that the extrinsic material provided to the Court in this case assisted the Minister’s argument.
  54. Mr Kennett referred to the “Explanatory Statement” in relation to the “Select Legislative Instrument 2009 No 375” issued by the Minister in relation to Migration Amendment Regulations 2009 (No 15) which, amongst other things, was relevant to the introduction of the current forms of item 1136(3)(ba) and (bb).
  55. The Court was taken to the second dot point at page 1:
  56. To the extent that the Court was invited to read this as in some general, “broad brush” way of directing the focus that applicants for this class of visa “... must have a suitable skills assessment...” the wording of this statement takes us no further than what is set out in the relevant item.
  57. If the word “current” was meant, then it does not appear in the statement. Nor in the item for that matter.
  58. The Court was also taken to page three of attachment B to the statement:
  59. The submission was that the statement talks of the introduction of the existence of a skills assessment and that the intended temporal scope of that assessment conducted by the assessing authority.
  60. The submission was that what is to be derived from this is that in relation to (bb) a specific temporal period is specified. That there is a temporal period intended for (ba). That is, a period of “validity” specified by the assessing authority should also be implied in (ba).
  61. The thrust of the submission is that the temporal limitation expressed in (bb) should be seen as implicitly requiring a temporal (in the sense of “current”) limitation in (ba).
  62. I cannot see that the statement assists the Minister beyond what is already set out in items 1136(3)(ba) and (bb). The explanatory statement does not advance or further explain the plain words of these items. In essence it merely describes or categorises them.
  63. On this basis the plain words of item 1136(3)(ba) defeat the Minister’s response in this case.
  64. There may well have been some cogent policy reason for requiring applicants for this class of visa to have obtained a relevant skills assessment. Plainly there is a connection between nominating a skilled occupation as the basis for being granted permanent residence in Australia on the basis of having such skills and an assessment by a relevant assessing body that those skills possessed by an applicant are suitable to the nominated occupation.
  65. I can readily see that there is a cogent policy reason for such an assessment to be “current” as at the time of the making of the visa application.
  66. But if that is the case then the question remains as to why the drafter of item 1136(3)(ba) chose not to state, or give expression to, any such policy intention when it could so easily have been done when drafting this item.
  67. The drafter, and indeed the Minister who is ultimately responsible (in a practical sense) for what appears in the Schedule to the Regulations) cannot expect this Court to do their work for them.
  68. If the policy intention was as submitted now, then the time to have expressed that intention was in the drafting of item 1136(3)(ba).
  69. What the Court is left with is the plain language of this item. A skills assessment is required to have been done by the time of the visa application such as to make that application valid for the purposes of the Act. Mr Kennett conceded that if the Court preferred the applicant’s construction of this item then evidence of such an assessment (as reproduced at CB 39) was before the Minister’s department at the time of the lodging of the visa application form and payment of the relevant charge.

The relief to be granted

  1. In these circumstances, the applicant is at least entitled to a declaration that the visa application made on 12 May 2010 was a valid application for the purposes of the Act.
  2. I agree with Mr Kennett that certiorari and prohibition are, in the case of the former, not appropriate and, in the case of the latter, not necessary. However, I say this given the circumstances where an order in the nature of mandamus compelling the valid application to be considered would more actively and effectively achieve the relief the applicant seeks, and given the reasoning in this judgment, to which she is entitled. I will make a declaration as to the validity of the application and suffer the Minister to endure an order in the nature of mandamus.

I certify that the preceding 125125one hundred125125twenty-fiveforty-nineone hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate:


Date: 17 January 2011

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