Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139

Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139

By majority, item 6A72 is to be construed so that whether the applicant has nominated a migration occupation in demand is determined by reference to the Gazette Notice in force when the visa application was made, not the Gazette Notice in force at the time of decision. The regulatory scheme required nomination of a skilled occupation and evidence of skills assessment at application, and the points provisions concerning nominated skilled occupations and migration occupations in demand were best read consistently by reference to the application-time Gazette Notice. The delegates therefore erred in treating the occupations as not qualifying solely because they had been removed from the list...

Jurisdiction
Australia
Judgment Date
29 July 2005
Procedural Posture
Migration Visa Judicial Review Appeals Concerning Subclass 136 Skilled Independent Migrant Visas / Full Court Appeals From Judges of the Federal Court of Australia
Outcome
The appeal in VID 1416 of 2004 was allowed; the Minister's appeal in QUD 91 of 2005 was dismissed.
Legal Topics
['subclass 136 Skilled Independent Visa' 'points Test' 'migration Occupation in Demand' 'gazette Notice' 'jurisdictional Error' 'construction of Migration Regulations 1994']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['subclass 136 Skilled Independent Visa' 'points Test' 'migration Occupation in Demand' 'gazette Notice' 'jurisdictional Error' 'construction of Migration Regulations 1994']

Case Brief

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Procedural Posture

Migration Visa Judicial Review Appeals Concerning Subclass 136 Skilled Independent Migrant Visas / Full Court Appeals From Judges of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether, for item 6A72 of Schedule 6A to the Migration Regulations 1994, an applicant's nominated occupation is to be assessed as a migration occupation in demand by reference to the Gazette Notice in force at the time of application or at the time of assessment/decision." "Whether the Minister's delegates erred by awarding no points for nominated occupations that were on the migration occupations in demand list at application but not at decision."]

Ratio Decidendi

By majority, item 6A72 is to be construed so that whether the applicant has nominated a migration occupation in demand is determined by reference to the Gazette Notice in force when the visa application was made, not the Gazette Notice in force at the time of decision. The regulatory scheme required nomination of a skilled occupation and evidence of skills assessment at application, and the points provisions concerning nominated skilled occupations and migration occupations in demand were best read consistently by reference to the application-time Gazette Notice. The delegates therefore erred in treating the occupations as not qualifying solely because they had been removed from the list...

Court Disposition

The appeal in VID 1416 of 2004 was allowed; the Minister's appeal in QUD 91 of 2005 was dismissed.

Orders

  • ['The appeal in VID 1416 of 2004 be allowed.' "The respondent pay the appellant's costs in VID 1416 of 2004." 'The orders of the primary judge in VID 616 of 2004 made on 27 October 2004 be set aside.' 'The decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 3...