AKBAR v Minister for Immigration
[2018] FCCA 2001
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKBAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2001 |
| Catchwords: MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – application for review of decision by Administrative Appeals Tribunal – Court bound by decisions of Federal Court – significant distinguishing features – Applicant advised by assessing authority to change occupation – no reviewable error. |
| Legislation: Migration Act 1958 (Cth), ss. 65, 351 |
| Cases cited: Patel v Minister for Immigration and Citizenship [2011] FCA 1220 |
| Applicant: | KHURRAM AKBAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 35 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 14 February 2018 |
| Date of Last Submission: | 14 February 2018 |
| Delivered at: | Canberra |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | R & J Lawyers, Canberra |
| Solicitors for the Respondents: | Clayton Utz, Canberra |
ORDERS
The Amended Application, filed 8th February 2018, be dismissed.
The parties pay their own costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 35 of 2017
| KHURRUM AKBAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In many respects, this matter is about “a piece of paper”.
The first piece of paper is a letter, dated 11th August 2016, whereby the Australian Computer Society (“ACS”) advised the Applicant that he had been assessed as a “Temporary Graduate – 485 skills assessment” for the sole purpose of lodging a Temporary Graduate visa (subclass 485) with the Department of Immigration and Border Protection (“the Department”).[1] This letter further advised that the Applicant’s ICT skills “have been assessed to be suitable for migration under 261313 (Software Engineer) of the ANZSCO Code.”
[1] Copies of this letter is found at various places at Court Book (“CB”) e.g. 51 and 130.
The Applicant’s qualifications were recorded by the ACS as having a Master of Information Technology and Systems from the University of Canberra (which was completed in June 2016). ACS also referred to his undergraduate degree (a Bachelor of Science in Computer Engineering), which was completed in 2007.
The Applicant’s Application for Temporary Graduate or Skilled Regional Visa recorded his nominated occupation as “Computer Network and Systems Engineer.”[2]
[2] The relevant page of this Application is at CB 13.
On 9th August 2016, by lodgement of the requisite form – “Notification of changes in circumstances” – the Applicant notified the Department of a change in his circumstances. That change was (as specified in the form):[3]
[3] This Form is at CB 144.
I have been notified by the Australian Computer Society to change my nominated occupation to Software and Application Programmer ANZSCO code 2613 for my assessment to be successful.
So it is my kind request to please amend my nominated occupation to Software and Application Programmer. I would be very grateful for your kind gesture.
Date of skills Assessment: 22 July 2016. Reference/Receipt Number 1405863/1284855
On 12th September 2016, a Delegate of the Minister for Immigration and Border Protection refused to grant the Applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (“the Act”). That decision was challenged by the Applicant in the Administrative Appeals Tribunal (“the Tribunal”). On 4th April 2017, the Tribunal affirmed the Delegate’s decision. It is from that decision that the matter comes before this Court for review by way of an Application, filed 5th May 2017.
The second relevant “piece of paper” is a further letter, dated 6th April 2017, whereby the Applicant was provided with a further “skills assessment” by ACS. ACS confirmed that he was considered to be suitable for migration under 263111 (Computer Network and Systems Engineer) of the ANZSCO Code.[4] Obviously, this further skills assessment was completed after the decisions of both the Delegate and the Tribunal. I come back to this later skills assessment and its provision to the Tribunal via email, dated 18th April 2017, from the Applicant’s [then] lawyer. That email suggests that it was provided at the request of the Tribunal.
[4] This skills assessment is at CB 167
One relevant fact is that, for both skills assessments, the Applicant’s qualifications were identical. The only thing that was different was the title and code for the particular “nominated occupation” on each letter.
Grounds of Review
The original review Application, filed 5th May 2017, listed a range of grounds, most of which were, in my view, simply [inappropriate] assertions of fact.
On 8th February 2018, the Applicant filed an Amended Application. Again, the “grounds of review” were expansive and combined claims of fact and alleged legal error. They will be set out shortly. It is sufficient to note here that the primary issue for determination concerns the finding by the Tribunal that “the Applicant is not permitted to change his nominated skilled occupation during the processing of the visa application.”[5]
[5] The Reasons of the Tribunal are at CB pp.160 – 165. This finding by the Tribunal is at reasons par.27.
The Tribunal’s Decision
I need only note the following matters from the Tribunal’s decision.
At the outset, the Tribunal noted, at [3], that the delegate refused the Applicant’s visa because he did not satisfy cl.485.224(1) of Schedule 2 to the Migration Regulations because “the delegate was not satisfied that the Applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.”
At [7], the Tribunal confirmed that the issue was whether the Applicant had relevantly satisfied the requirements as specified under cl.485.224 of Schedule 2 of the Regulations.
At [8] and [9], the Tribunal set out the terms of cl.485.224. At [10], it noted the definition of “skilled occupation” given by r.1.15I of the Regulations, and of “relevant assessing authority” as prescribed by instrument under r.2.26B.
At [11], the Tribunal noted the nominated occupation of the Applicant as “Computer Network and Systems Engineer (ANZSCO Code 263111)”, and that the relevant assessing authority was the ACS.
At [15] and [16], the Tribunal noted that the Department had received a “Notification of change in circumstances” from the Applicant on 9th August 2016, providing that the Applicant wished to change his nominated occupation, on the advice of ACS, to “Software and Application Programmer”, which had a relevant ANZSCO code of 261313.
At [17], the Tribunal confirmed that, on 13th August 2016, it had received from the Applicant a positive skills assessment (dated 11th August 2016) from ACS for the occupation of “Software Engineer”, and that the Applicant’s ICT skills were assessed to be suitable under ANZSCO Code 261313 (Software Engineer).
At [18], the Tribunal recorded the Delegate’s decision as follows:
The delegate refused the visa on 12th September 2016 and stated that, although the Applicant provide a skills assessment, it is not in the skilled occupation that he nominated at the time he applied for the visa. The delegate stated that, as the skills assessment is not in the nominated skilled occupation of Computer Network and Systems Engineer (ANZSCO Code 263111), the Applicant did not meet c.485.224(1).
At [22] and [24], the Tribunal noted the information/advice given to the Applicant by ACS regarding his nominated skilled occupation, and which ultimately led to him notifying the Department of a change in his nominated occupation.
At [26], the Tribunal stated (emphasis added):
The Tribunal has considered the evidence and the submission but is satisfied that the Applicant intended to nominate the occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) in the visa application. After he was not successful in obtaining a positive skills assessment from ACS in that occupation, the Applicant applied for a skills assessment in another occupation.
Although noted earlier, at [27] the Tribunal determined the matter as follows:
It is a Schedule 1 requirement for making a valid skilled visa application that an Applicant has nominated a skilled occupation in the visa application form. The Tribunal finds that an Applicant is not permitted to change his nominated skilled occupation during the processing of the visa application. Whilst the Applicant has stated (in Form 1022) that the nominated occupation has changed, following a recommendation by ACS, to Software Engineer (ANZSCO 261313) and he provided Form 1022 in support of this, the Tribunal is satisfied that the Applicant intended to nominate the occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) in the visa application. The Applicant nominated the skilled occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) in the visa application and applied for a skills assessment for that nominated skilled occupation.
At [28] - [31], the Tribunal found that there had not been compliance with cl.485.224(1). It further refused, at [32] and [33], to refer the matter to the Department for consideration by the Minister, pursuant to s.351 of the Act.
The Applicant’s Submissions
The earlier parts of the Applicant’s submissions recount the procedural history of the proceedings before the Delegate and the Tribunal, which I need not repeat. I set out below the submissions beginning at par.17:
Migration Application under section 476 of the Act (Judicial Review Application)
17) On 05 May 2017, the applicant filed an application for review of the Tribunal’s decision seeking the quashing of the Tribunal’s decision.
18) The applicant initially relied on the following ground:
i.I came to Australia on a student visa and completed the course in Master of Information Technology and Systems successfully.
ii.Upon completion of my studiers, I applied for VC 485 on 25 July 2016.
iii.I provided all the relevant documents to DIBP in support of my application.
iv.DIBP refused to grant VC 485 because I could not provide a skills assessment for the occupation Computer Network and System Engineer (ANZSCO 263111) as mentioned in the visa application.
v.Therefore, I appealed in AAT for the review of application and they invited me to comment on my application on 12 September 2016.
vi.In the hearing, I presented my documents and arguments.
vii.The reason I changed my nominated occupation from Computer Network and Systems engineer (ANZSCO 263111) to software and Application Programmer (ANZSCO 261313) as it was recommended to do so by ACS.
viii.I submit that the Hon. Tribunal did not provide any time for me to produce evidence under sch.1 and 2 requirements, causing me to feel that |I have been denied natural justice.
ix.I have enclosed the result from ACS with the application and hence I claim that I meet the requirement of the visa.
x.I shall provide more evidence and statement in this matter in due course of time.
Amended Grounds of the Migration Application
19) On February 2018, the applicant lodged an amended migration application seeking the issue of a writ of mandamus to the Tribunal on the basis of the following additional grounds:
11) The second respondent erred in law by finding that the applicant is not permitted to change the nominated skilled occupation.
Particulars
i.The Section 104 of the Act provides a mechanism for a visa applicant to notify the changes in the circumstance.
ii.The Second Respondent failed to mention and rely upon the case law in support of its finding that the applicant cannot change his nominated skill occupation during the processioning of his visa application.
12) The second respondent erred in exercise of its jurisdiction by failing to consider the statutory provisions of the Act.
Particulars
i.Section 55 of the Act permits the applicant to give any additional relevant information, in this case the change of nominated skill occupation, before a decision is made and requires the Minister to have regard to that information in making the decision.
ii.Section 54 requires the decision maker, in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the visa application, which in this case was the change in the nominated skilled occupation.
13) The decision of the Second Respondent is affected by jurisdictional error in that it failed to take a relevant considerations (information provided by the Applicant) and considered irrelevant considerations.
Particulars
i.On 09 August 2017, the Applicant notified the first respondent of the changes in the nominated skilled occupation by way of a Form 1022.
ii.The Second Respondent failed to consider that additional relevant information when making its decision.
iii.The Second Respondent proceeded to consider the Applicant’s visa application on the basis of the skilled occupation that was initially nominated on the visa application form.
iv.The Second Respondent failed to consider that, pursuant to the notification of change in circumstances, the nominated occupation in the visa application was the one as notified by way of Form 1023.
14) The second respondent failed to ask itself the right question.
Particulars
i.The Tribunal failed to consider whether it a case of change of mind or a mistake or an incorrect information in the visa application.
20) The similar issue has come up for determination by the Federal Circuit Court and the Federal Court of Australia before. The cases are KC, Patel, Chen, Pulivari and Hemlat. The applicant understands that in those cases the applicants were not allowed to change their nominated Occupations and as such their judicial review applications/appeals were dismissed. However, the applicant submits that the present case is distinguishable from those previous cases.
21) In KC the, Tribunal was not satisfied that the applicant’s skills had been assessed by the relevant assessing authority for his nominated occupation. Consequently, the Tribunal was not satisfied that the applicant met the requirements of cl.485.221 of sch.2 to the Regulations. In this connection, the Tribunal formed the view that the applicant had nominated an occupation and subsequently decided that he should have nominated a different occupation and considered this to be a change of mind rather than a mistake. This finding was not rejected by the Court.
22) In Patel, the issue was “whether the appellant could in the circumstances of this case change his nominated skilled occupation from Family Counsellor to Computing Professional.”.
23) The appellant in Patel relied upon ss 54, 55, 104 and 105 of the Act. Robertson J to reject the appeal on the basis that the "additional relevant information" in section 55 and “the change in circumstances” situation in s 104 does not encompass a change of mind about a nominated occupation. In Hamelata, The Court has found that the decision in Patel is applicable to a situation where an applicant seeks to change their nominated skilled occupation because of a change of mind.
24) It is submitted that in this case, the applicant did not notify the delegate of the first respondent out of his change of mind rather it was recommended by the relevant assessing authority.
25) In KC the applicant not only nominated a wrong skilled occupation but also nominated a wrong assessing authority. Where as in this case, although the applicant nominated an occupation different to the one recommended by the relevant assessing authority but the assessing authority was the same for the purposes of the alternative skilled occupation.
26) Although the cases of KC, Patel and Chen took the approach that once a valid application for the grant of a visa is lodged, the applicant cannot change the nominated occupation during the processing of the application however, this approach is more of an orbiter dicta. The applicant submits that, neither the Act nor the Regulations expressly require that a skilled occupation, once nominated must remain the same thought out the processing of the application and neither the Act nor the Regulations expressly restrict or prohibit the applicant from correcting and or changing a nominated skilled occupation before a decisions is made by the decision maker. The authorities do not mention any provision of the Act and or the Regulations as a ratio decidendi in refusing the applicants’ change of nominated occupation request.
27) In KC a detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination was not given because the Tribunal had found as a fact that the applicant did not make a mistaken occupation nomination but, rather, changed his mind about which occupation he wanted to nominate. Since that finding was open to the Tribunal and as the Tribunal reached a conclusion on the applicant’s review which was not illogical or unreasonable and which reflected a relevantly correct appreciation of the application and operation of the Act, its decision was not affected by legal error.
28) In Pavuluri, the Tribunal, unlike in this case, referred to the distinction between a change of mind and a mistake and then proceeded to apply the law on the basis that it was a change of mind. While dismissing the Judicial review application, the Court referred to the decisions of Patel and KC and those cases, as earlier submitted, were decided just on the basis of an orbiter comments rather than on the basis of the statutory provisions of the Act and the Regulations.
29) It is of relevance that in the application form there are warnings/cautions given under certain questions but there is no warning given under the question of “nominated occupation”. The “IMPORTANT NOTE” provided in the relevant section of the application only alerts the applicant in the following manner:
“You must provide evidence of a suitable skill assessment from the relevant assessing authority, or evidence that you have booked to undergo a skills assessment with the relevant assessing authority when you lodge this application.
Failure to do so may result in you being unable to satisfy the requirement for the lodging an application or being unable to satisfy the criteria for this visa.”
30) This is clear that this important note does not inform an applicant that he or she “must provide evidence of a suitable skill assessment of the nominated occupation from the relevant assessing authority”. All it informs is about providing a suitable skill assessment from the relevant authority and it is not disputed that in the applicant’s case “a suitable assessment was provided from the relevant assessing authority i.e. ACS and the applicant did mention the ACS as the relevant assessing authority in the application.
31) A bare reading of the sections 104 and section 105 of the Act shows that an applicant can change, amend or correct his or her visa application by , for example, nominating another occupation.
32) The applicant submits that, in view of the earlier decisions, the question as to the possibility of a changing an incorrectly or erroneously nominated occupation is still open. As observed in KC, the conclusion reached in Chen’s case did not appear to sit well with Robertson J’s obiter comments in Patel’s case. In Patel’s case, Robertson J left open this possibility by observing that an erroneous occupation nomination could be corrected pursuant to the mechanism provided by the s.105 (which observation is equally applicable to the mechanism provided in section 104 of the Act).
In view of the above the applicant submits that the Tribunal's decision suffers from Jurisdictional errors and therefore its decision may be quashed and it be directed to decide the case according to law.
I should also note that the Applicant provided an Affidavit, filed 8th February 2018, which outlined the matters referred to in the Tribunal’s decision, in particular his correspondence with the ACS and its advice to him regarding the necessity to change his nominated occupation. He was not required for cross-examination.
The First Respondent’s Submissions
The First Respondent Minister provided two separate submissions: the first dealt with the original Application; the second dealt with the Grounds of Review as set out in the Amended Application. For completeness, I set out below both sets of submissions.
The Minister’s first submissions, filed 6th November 2017, were as follows:
1) There is before the Court an application under s.476(1) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate of the Minister (Delegate) to refuse to grant the Applicant a Temporary Graduate (Graduate Work) (class VC) (subclass 485) visa (Subclass 485 visa) under s.65 of the Act.
2) These submissions are filed by the Minister in accordance with the orders of the Court made on 29 May 2017. Those orders provided the Applicant with an opportunity to file and serve written submissions by 30 October 2017. He has not done so. Accordingly, these submissions respond to the grounds pleaded in the application filed on 5 May 2017.
3) The Minister respectfully submits that those grounds do not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
Background
4) The Applicant is a citizen of the Islamic Republic of Pakistan (Pakistan). On 25 July 2016, he applied for a Subclass 485 visa: Court Book (CB), 1-32. The applicant listed "Computer Network and Systems Engineer" as his nominated occupation and the Australian Computing Society as the relevant assessing authority. He also indicated that the date of his skills assessment was 22 July 2016: CB, 13.
5) On 9 August 2016, the Department wrote to the Applicant requesting that he provide, among other things, a certified copy of his skills assessment: CB, 36-41.
6) On 9 August 2016, the Applicant electronically lodged a notification of changes in circumstances form, in which he stated that the Australian Computer Society had notified him to change his nominated occupation to "Software and Application Programmer ANSZCO Code 2613" for his skills assessment to be successful. He therefore requested an amendment to his nominated occupation to "Software and Application Programmer": CB, 42.
7) On 10 August 2016, the Applicant lodged a hardcopy notification of changes in circumstances form (Form 1022) in which he now stated that his nominated occupation had changed to "Software Engineering 261313": CB, 72-74. He also provided the Department with a letter from the Australian Computer Society dated 11 August 2016, which stated that the Applicant's "… ICT skills have been assessed to be suitable for migration under 261313 (Software Engineer) of the ANZSCO Code": CB, 85.
8) On 12 September 2016, the Delegate refused to grant the Subclass 485 visa. The Delegate noted that the Applicant had not provided evidence that his skills had been assessed by a relevant assessing authority for suitability against the Subclass 485 occupation he nominated at the time he applied for his visa, namely a "Computer Network and Systems Engineer 263111". The Delegate therefore found that he did not satisfy the criterion in cl 485.224(1) of the Migration Regulations 1994 (Regulations): CB, 92-93.
9) On 29 September 2016, the Applicant applied to the Tribunal for review of the Delegate's decision. By letter dated 23 February 2017, the Tribunal invited the Applicant to attend a hearing on 31 March 2017 to give evidence and present arguments: CB, 117.
10) On 28 February 2017, the Applicant's representative emailed the Tribunal and stated that the Applicant was "forced to change his occupation from Computer Network and Systems Engineer to Software Engineer … upon the advice from ACS". The Applicant also requested a 3 month adjournment of the hearing because he was returning to Pakistan for surgery: CB, 128.
11) On 6 March 2017, the Tribunal wrote to the Applicant, advising that it had declined to postpone the hearing and that if the Applicant was going to be outside Australia on the day of the hearing the Tribunal would be prepared to hold a telephone hearing: CB, 137.
12) On 29 March 2017, the Applicant confirmed that he and his representative would attend the hearing. The Applicant also provided to the Tribunal a short statement explaining the history of his skills assessment and stating that he "had no choice" but to update his details by filling out a change in circumstances form (Form 1022): CB, 139-143. He stated that he uploaded the Form 1022 because his nominated skills occupation was not an incorrect answer (and thus he did not upload a Form 1023 - "Notification of incorrect answer(s)").
13) On 31 March 2017, the Applicant and his representative attended a hearing before the Tribunal: CB, 148-150.
14) On 4 April 2017, the Tribunal affirmed the Delegate's decision: CB, 155-164.
15) On 18 April 2017, the Applicant's representative sent an email to the Tribunal in response to the Tribunal's decision notification attaching a skills assessment result for the Applicant. The email thanked the Tribunal for "… the kind and considerate time granted to my client to provide additional evidence" and requested the Tribunal make a "favourable decision in the matter". The attachment was a letter from the Australian Computer Society dated 6 April 2017 which stated that the Applicant's "… skills have been assessed to be suitable for migration under 26311 (Computer Network and Systems Engineer) of the ANSZCO Code" (which was the nominated occupation that had originally been listed by the Applicant in his visa application form). The letter also began by saying "Thank you for your ICT skills assessment which was received by the Australian Computer Society on 17 March 2017": CB, 165-168.
16) On 24 April 2017, the Tribunal notified the Applicant's representative that it would not be reopening the case and advised the Applicant that once it had made its decision on 4 April 2017, it had no power to take any further action on the review: CB, 169-172.
Relevant legislative framework
17) The criteria prescribed for a Subclass 485 visa are set out in Schedule 2 to the Regulations.
18) Cls 485.21 and 485.22 of Schedule 2 to the Regulations contain the relevant primary criteria for the Graduate Work Stream.
19) At the relevant time, cl 485.223 provided that it was a primary criterion for the grant of Subclass 485 visa in the Graduate Work stream that "[w]hen the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority".
20)
At the relevant time, cl 485.224(1) provided that it was a primary criterion for the grant of a Subclass 485 visa in the Graduate Work Stream that "[t]he skills of the applicant for the applicant's nominated Subclass 485 occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation." In order for the Subclass 485 visa to be granted, it was necessary for the Applicant to satisfy this criterion at the time of the Tribunal's decision: note to cl 485.2 of Schedule 2 to the Regulations.
Tribunal's decision21) The Tribunal affirmed the Delegate's decision because it was not satisfied that the Applicant met the criterion in cl 485.224(1) of the Regulations: see [28] and [29] of the Tribunal's decision record (DR).
22) The Tribunal noted that the Applicant had attempted to change his nominated occupation with the Department after receiving certain information from the Australian Computer Society. However, it found that the Applicant was not permitted to change his nominated occupation during the processing of the visa application and that he had intended to nominate the occupation that he did in fact nominate on his visa application form dated 25 July 2016. The Tribunal therefore determined that the Applicant did not meet the requirement of cl 485.224 as on the evidence, the applicant's skills for the nominated skilled occupation of "Computer Network and Systems Engineer (ANZSCO Code 263111)", had not been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
23) The Tribunal also decided not to refer the matter to the Department for reconsideration by the Minister pursuant to s 351 of the Act, as had been requested by the Applicant, on the basis that the Applicant could make such a request directly to the Minister.
Application for review
24) On 5 May 2017, the Applicant commenced the current proceedings (Application for review). The Applicant pleads the following grounds in his Application for review (errors in original):
1. I came to Australia on a student visa and completed the course in Master of Information
Technology and Systems successfully.
2. Upon completion of my studies I applied for VC 485 on 25 July 2016.
3. I provided all the relevant documents to DIBP in support of my application.
4. DIBP refused to grant VC 485 because I could not provide a skills assessment for the occupation Computer Network and Systems Engineer (ANZSCO Code 263111) as mentioned in the visa application.
5. Therefore, I appealed in AAT for the review of application and they invited me to comment on my application on 12 September 2016.
6. In the hearing, I presented my documents and arguments.
7. The reason I changed my nominated occupation from Computer Network and Systems Engineer (ANZSCO Code 263111) to Software and Application Programmer (ANZSCO 261313) as it was recommended to do so by ACS.
8. I submit that the Hon. Tribunal did not provide any time for me to produce evidence under Sch. 1 and 2 requirements, causing me to feel that I have been denied natural justice.
9. I have enclosed the result from ACS with the application and hence I claim that I meet the requirement of the visa.
10. I shall provide more evidence and statements in this matter in due course of time.
Disposition
Did the Tribunal err in finding that the Applicant did not meet the requirements of cl 485.224(1)?
25) Before turning to the Applicant's grounds listed above, the Minister submits that the Tribunal was correct to find that the Applicant was not permitted to change his nominated Subclass 485 occupation after he submitted his visa application: see Patel v Minister for Immigration and Citizenship [2011] FCA 1220 at [53]-[61] (Patel) and Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 at [9], [33]-[37] and [41] (Pavuluri).
26) As Mortimer J stated in Pavuluri at [46]-[47], sections 104 and 105 of the Act (which provide for the use of Form 1022 - "Notification of change in circumstances" and Form 1023 - "Notification of incorrect answers") are not provisions which provide visa applicants with "… some freestanding opportunity … to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged". Rather, they are concerned to ensure that information provided on an application is "correct" and correctly reflects the Applicant's circumstances and intentions in filing the application.
27) This was not a case where the nominated Subclass 485 occupation listed on the Applicant's Subclass 485 visa application may have been a mistake occurring at the time he made his application, which could possibly have been capable of subsequent correction: see Pavuluri at [33] and [49]. As the Tribunal (correctly, it is submitted) found, the Applicant sought to change his nominated Subclass 485 occupation in a way which was not permitted by the legislative scheme because after he made his application he learnt that he had not been successful in obtaining the required skills assessment for that occupation, but was able to subsequently obtain a positive skills assessment for a different Subclass 485 occupation. Put simply, an applicant cannot amend their nominated occupation because they later have a change of mind.
28)
As the Applicant had not provided a skills assessment for his nominated skilled occupation of "Computer Network and Systems Engineer" at the time of the Tribunal's decision, there was no other conclusion open to the Tribunal but to find that the Applicant did not meet the requirements of cl 485.224(1). That conclusion is not affected by any legal error.
Was the Applicant denied natural justice?
29) In his Application for review, the Applicant essentially alleges that he was denied natural justice because the Tribunal did not allow him more time to provide further evidence.
30) In the present matter, the Tribunal invited the Applicant and his representative to attend a hearing pursuant to s.360 of the Act. It then carefully considered the merits of the Applicant's request for an adjournment. However, it determined not to reschedule the hearing and provided the Applicant with the option of appearing at the hearing via telephone connection. The Applicant and his representative utilised this opportunity. There is no evidence that the Applicant was not given a "real and meaningful" invitation or opportunity to give evidence and present arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR 128 FCR 553; [2003] FCAFC 126 at [37]; Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [57]–[61].
31) Further, the Applicant was sufficiently on notice of the "issues arising in relation to the decision under review" to have commented on those issues in his response to the Tribunal or during the course of the proceeding and hearing: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
32) There is also nothing before the Court to indicate that the Applicant had requested the Tribunal to allow him more time to provide further or alternate evidence of a different skills assessment or otherwise made the Tribunal aware that he might receive a successful skills assessment in the near future. In the absence of such a request, the Tribunal was perfectly entitled to make its decision when it did.
The Minister’s further submissions, filed in Court on 14th February 2018, were as follows:
1) On 5 February 2018, the Applicant filed in this Court an amended application for review of the Tribunal's decision which raises four additional grounds of review and an accompanying written outline of submissions.
2) Subject to the Court's grant of leave, these submissions are made in order to address the Applicant's amended application and written outline of submissions.
Amended Application for Review
3) The Applicant's amended application raises four new particularised grounds which may be summarised as follows:
a) Ground 11 asserts that the Tribunal erred in law by finding that the Applicant was not permitted to change his nominated skills occupation once the visa application had been lodged.
b) Ground 12 alleges that the Tribunal failed to consider ss 54 and 55 of the Migration Act 1958 (Cth) (Act). The operation of these provisions is said by the Applicant to both allow a visa applicant to change his nominated skills occupation, and requires the Tribunal to have regard to a change in a visa applicant's nominated skills occupation.
c) Ground 13 alleges that the Tribunal failed to consider a relevant consideration, namely the Applicant's notification of a change in circumstances;
d)
e)
Ground 14 alleges that the Tribunal failed to ask itself the right question, being whether the Applicant had "changed his mind" or instead made a mistake in his visa application.
Relevant case law: Can a nominated skills occupation be changed during the application process?
4)
In effect, each of the four fresh grounds raised above focus attention on a single question: can a nominated skills occupation be changed during the application process?
5)
It should be recalled that in the present matter, the Applicant had applied to be granted a skilled visa by reference to one skilled occupation, "Computer Network and Systems Engineer", to be assessed by the Australian Computer Society: CB 16, but subsequently sought that visa by reference to a different occupation ("Software and Application Programmer") because he was unable, at least up until the time of the Tribunal's decision, to provide evidence that the skills for his nominated occupation had been assessed as suitable by the relevant assessing authority, as required by cl 485.224(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
6)
In Chen v Minister for Immigration and Citizenship [2011] FMCA 859 (Chen), Judge Lloyd-Jones was asked to consider whether there was any mechanism in either the Act or the Regulations for a skilled visa applicant to correct or otherwise alter a skilled occupation he had nominated in his visa application after a valid visa application had been made and during the processing of the visa application. His Honour decided that there is "no mechanism in the Act or Regulations to change" a nomination once the application had been lodged: at [44] and [57]-[58]. Further, in obiter comments, his Honour expressed the view that where an applicant lodges a visa application under a mistaken belief that his nominated skills occupation is the appropriate or 'correct' nominated skilled occupation, the only option is to make another application: at [58].[6]
[6] It should be noted that in this case, his Honour did not appear to have been taken to ss 104-105 of the Act. These provisions are discussion below.
7)
By contrast, the Federal Court decisions of Patel v Minister for Immigration and Citizenship (2011) FCR 62 at [53]-[61] and Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 at [33] left open the possibility that it may be possible to correct an incorrect nominated skills application, for example under s 105 of the Act, and that it may be possible for a decision-maker to examine other evidence or material to clarify or explain precisely which occupation an applicant had intended to specify at the time of application.
8)
In Patel at [53]-[61], Robertson J left open the possibility that an erroneous occupation nomination could be corrected pursuant to s.105 (which is the statutory foundation for submitting a 'Form 1023 - Notification of incorrect answer'), but expressed the view that a visa applicant cannot simply substitute one nominated occupation for another simply because he or she has a 'change of mind' about that issue. In arriving at this conclusion, his Honour considered the statutory provisions that the Applicant now seeks to rely upon in the present matter. In particular:
a)
at [58], his Honour considered ss 54 and 55 of the Act and stated that "… s 55 does not treat as 'information' material which is fundamental to the making of a valid application," and "a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of additional relevant information" (emphasis added);
b)
at [59]-[60], his Honour considered s 104 of the Act, which was found to apply "where circumstances change so that an answer to a question on a non-citizen's application form 'is incorrect in the new circumstances'." Considered in the context of Part 2, Division 3, Subdivision C of the Act which provides for the cancellation of visas based on incorrect information, his Honour found that "In my opinion, s 104 does not encompass a change of mind about a nominated occupation"; and
c)
at [61], his Honour considered s 105 of the Act and found that section is "addressed to the case where a non-citizen becomes aware than an answer given or provided in the form on which he applies for a visa 'was incorrect when it was given or provided'". His Honour found that s 105 "does not apply because the answer given about the nominated skilled application was not incorrect when it was given or provided [at 61]".
9) In Pavuluri, Mortimor J accepted and applied his Honour's reasoning in Patel: see [35] and [41][7]. In that matter, the appellant had explained that he had been poorly advised as to the appropriate occupation nominated for his degree and, relying on ss 104 and 105, asked the Tribunal to allow him to correct his occupation (from 'finance manager' to 'market research analyst') as he had made a mistake. The Tribunal found that the evidence did not support a finding that he had intended to nominate an occupation other than 'finance manager' at the time of visa application and had made a 'mistake': at [48]. It found that his only 'mistake' was that, having recorded in his application the occupation he intended to specify, he subsequently discovered he was poorly advised. In affirming the Tribunal's decision, the Court observed that while in colloquial terms that was a mistake, it was not a mistake in the sense of specifying on the visa application an occupation the appellant did not intend to specify, or a mistake of the kind capable of correction under ss 104 and 105 which, read in context, are "intended to operate as potential triggers for the cancellation power in s 109, and possibly as exculpations from the exercise of that power": at [22]-[23] and [46].
[7] Robertson J's reasoning in Patel was also applied by Judge Cameron in KC v Minister for Immigration [2013] FCCA 296 at [15] and by Judge Turner in Hemlata v Minister for Immigration [2014] FCCA 968 at [27].
Consideration
10) Although the Tribunal in its decision record (DR) did not refer to the relevant case authorities discussed above, its reasons for dismissing the review application were entirely consistent with those authorities.
11) Consistent with the ratio in Chen, the Tribunal found that an "applicant is not permitted to change his nominated skilled occupation during the processing of the visa application": at DR [27]. Further, and though not put in these express terms, it is clear from its decision record that the Tribunal found that the Applicant could not rely on the lodgement of a 'Form 1022 - notification of change in circumstances' form (cf. s 104 of the Act) to change his nominated skilled occupation during the application process because of a change of mind as to what his nominated skilled occupation needed to be, and was satisfied that at the time of application, the Applicant had intended to nominate the occupation of "Computer Network and Systems Engineer": at DR [27]. In the Minister's submission, such a finding is also consistent with the decisions in Patel and Pavuluri.
12) Importantly, and as stated above, the Tribunal found as a fact that the applicant nominated, and intended to nominate, the skilled occupation of "Computer Network and Systems Engineer" at the time he made his skilled visa application: at DR [24] and [26]-[27]. Once the Tribunal had made this finding, it followed that, pursuant to cl 485.224(1) of Schedule 2 to the Regulations, the Applicant's skills for his nominated skilled occupation of 'Computer Network and Systems Engineer' had to be assessed, during the last three years, by a relevant assessing authority as suitable for that occupation, and not another occupation. At the time of the Tribunal's decision, this criteria had not been satisfied: at DR [30]. Accordingly, as the criteria for the grant of the skilled visa had not been satisfied, the visa had to be refused: s 65 of the Act.
Ground 12
13) In response to Ground 12, the Minister submits that Robertson J's finding in Patel at [58] that, when considering the operation of ss 54 and 55 of the Act together, "a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of additional relevant information", is equally apposite to the present case.
14) Both sections 54 and 55 refer to information and material in support of the visa application that was made. They do not, however, address changing a visa application. Thus, while the Delegate (and later the Tribunal) did have regard to the further material provided by the Applicant (being the Form 1022 - 'Notification of change in circumstances' dated 10 August 2016 and a positive skills assessment dated 11 August 2016 for the skilled occupation of 'Software Engineer': at DR [16]-[17]), the Delegate (and the Tribunal) was correct to conclude that this material did not assist the Applicant as the skills assessment provided by the Applicant was not in the skilled occupation that he had nominated at the time of application: at DR [18].
Ground 13
15) By Ground 13, the Applicant complains that the Tribunal failed to have regard to the Applicant's 'Form 1022 - Notification of change in circumstances' form. To the contrary, this form was considered by the Tribunal at DR [16] and [26]. However, for the reasons already given at paragraph 11 above, the lodgement of this form did not have the effect that the Applicant could change his mind about the occupation he nominated at the time of his visa application.
16) It should be born in mind that there is a simple reason why it is not possible for an applicant to change his nominated skilled occupation after having submitted the application: it is simply not possible for such a changed application to meet ‘the time of application’ criteria in cl 485.223 of Schedule 2 to the Regulations because that occupation was not nominated at the time of the application.
17) Even if the applicant could later change his nominated skilled occupation to “Software Engineer” and that change could somehow operate nunc pro tunc, the Applicant could still not satisfy cl 485.223 of Schedule 2 of the Regulations because at the time of his application he had never applied for an assessment of his skills for the nominated skilled occupation of “Software Engineer” by the relevant assessing authority. Rather, the Applicant only applied to be assessed as a “Computer Network and Systems Engineer”: see a similar discussion by Mortimor J in Pavulari at [39] and [50].
Ground 14
18) Finally, in response to Ground 14, it is submitted that in circumstances where the Applicant had not provided any evidence or explanation to the Tribunal indicating that there had been some 'mistake', in the sense of a typographical or administrative error or otherwise, in the way he lodged his skilled visa application, the Tribunal was entitled to treat the Applicant's 'Form 1022' as notification that the Applicant had now changed his mind about the occupation for which he sought a skills assessment (indeed, as the Applicant submitted to the Tribunal, he was "forced" to do so upon the recommendation of the Australian Computer Society: CB 139-143). Accordingly, and for the reasons already given above, it is submitted that there was no error in the Tribunal's treatment of this material.
Consideration & Disposition
As noted earlier in these reasons, and acknowledged by the parties in their submissions, the only issue for this Court to determine is whether a nominated skilled occupation can be changed during the application process? To this question, the Tribunal said “no.”
The resolution of this question, on the facts of this matter (which I need not repeat), are guided, on the one hand, by the principles articulated by Robertson J in Patel v Minister for Immigration and Citizenship (“Patel”), and by Mortimer J in Pavuluri v Minister for Immigration and Border Protection (“Pavuluri”), and on the other hand, having proper regard to the distinguishing features of the facts of the current matter, which I set out shortly.[8] Of course, I begin such consideration with the terms of cl.485.224 of Schedule 2 of the Migration Regulations.
[8] Patel v Minister for Immigration and Citizenship [2011] FCA 1220; Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502.
Clause 485.224(1) and (1A) state:
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.
In Patel, relevantly at [53] – [61] in relation to a “change of nominated occupation”, Robertson J said:
[53] This issue was whether the appellant could in the circumstances of this case change his nominated skilled occupation from Family Counsellor to Computing Professional.
[54] The appellant relied on ss 54, 55, 104 and 105 of the Act. No authorities were relied on by either party.
[55] Sections 54 and 55 should be considered together.
[56] Section 54 obliges the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all the information in the application. By s 54(2) information is in an application if the information is given under s 55.
[57] Section 55 operates before the Minister has made a decision whether to grant or refuse to grant a visa. Until the Minister has made a decision, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
[58] In my view the better construction is that s 55 does not treat as "information" material which is fundamental to the making of a valid application. It is to be recalled that cl 1229 specifies as a requirement to be met that the applicant must nominate a skilled occupation in the application. Further, a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of "additional relevant information" [emphasis added].
[59] Turning to s 104, it applies where circumstances change so that an answer to a question on a non-citizen’s application form "is incorrect in the new circumstances ". This section imposes an obligation on the non-citizen, as soon as practicable, to inform an officer in writing of the new circumstances and of the correct answer in them.
[60] For s 104 to apply it is necessary to find an answer which "is incorrect in the new circumstances", the new circumstances posited here being the appellant’s change of mind as to his nominated occupation. On that analysis the answer would be incorrect in the new circumstances of the appellant’s new intention. Considered in the context of Pt 2 Div 3 Subdiv C of the Act providing for the cancellation of visas, it seems to me to be difficult to say that if an applicant for a visa fails to notify an officer that he has changed his mind as to the nominated occupation, that would form a ground for the cancellation of a visa. In my opinion, s 104 does not encompass a change of mind about a nominated occupation.
[61] Section 105 is addressed to the case where a non-citizen becomes aware that an answer given or provided in the form on which he applies for a visa "was incorrect when it was given or provided ". On the facts of the present case s 105 does not apply because the answer given about the nominated skilled application was not incorrect when it was given or provided.
In Pavuluri, firstly at [33], Mortimer J said:
The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the Tribunal found, there was no lack of clarity, or lack of intention, around the first appellant’s choice to specify “finance manager” on his visa application at the time he made the application.
Then at [46] – [49], her Honour said (emphasis added):
[43] Section 104 provides:
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
[44] Section 105 provides:
105 Particulars of incorrect answers to be given
(1) If a noncitizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
[45] The Minister submitted that the “form” referred to by the first appellant, Form 1022, was the form used for the purposes of s 104, and there was another form, Form 1023, used for the purposes of s 105. I proceed on the basis that submission is correct.
[46] Sections 104 and 105 are not freestanding provisions permitting changes to visa applications where there are changes of circumstances or incorrect answers given. In context, they are intended to operate as potential triggers for the cancellation power in s 109, and possibly as exculpations from the exercise of that power.
[47] In my opinion, those provisions cannot have the kind of operation which the appellants seek to give them in this case, which is as some freestanding opportunity for a visa applicant to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged.
[48] Rather, s 104 is concerned to ensure that information in an application is “correct” and correctly reflects the circumstances of the visa applicant. So, for example, if the applicants for a spouse visa subsequently separate before a decision has been made on the visa, that is the kind of “change of circumstances” s 104 may oblige the visa applicants to inform the Minister about. Relevantly, the change of circumstances must cause an answer in the visa application to be incorrect. In the first appellant’s situation, there was no “change of circumstances” which caused the answer “finance manager” to the question “nominated occupation” to be incorrect because, as the Tribunal found, that was the occupation the first appellant had intended to specify. Rather, the change of circumstances — the unsuccessful skills assessment for finance manager — would render the visa application itself unsuccessful. That is a matter outside the scope of s 104.
[49] Or, for example, on a visa application of the kind made by the first appellant, if in answer to a question about the receipt number or reference number for the skills assessment application, the wrong number was entered because of a typographical error, this is the kind of incorrect answer “at the time it was given” which, under s 105, the visa applicant would be obliged to correct as soon as reasonably practicable. The emphasis in s 105 on the answer being incorrect at the time it was given or provided is what renders that provision inapplicable to the first appellant’s situation. At the time the first appellant entered “finance manager” on the visa application form, that was the correct specification of the occupation at that time.
Of course, these decisions of the Federal Court are binding on me.
However, I note the following features of the facts of this matter that, at least, warrant some further discussion.
First, the Tribunal accepted (and the Minister has never denied) that the Applicant changed his nominated skilled occupation precisely, and only, because of advice given to him by the “relevant assessing authority.”
Secondly, for both of the “nominated skilled occupations” the formal qualifications accepted by the assessing authority were identical. It was not as if the Applicant was, as in Pavuluri, changing occupations from “finance manager” to “market research analyst.” Here, the skilled occupations are both in ICT (information and communication technology), and the formal qualifications accepted in each instance were identical.
Thirdly, accepting everything that Mortimer J said in Pavuluri at [47], nonetheless, the form made available by the Department for it to be kept advised of “changes in circumstances”, in my view, is potentially misleading.[9] On its face, it informs the reader that if the information to be “updated” relates to an “email address, residential address” and the like “do not use this form, instead select the relevant form from the Update us list.”
[9] The relevant Form used here is at CB 144.
The Form goes on to specify that the reader/Applicant “Give details of the information in this application that is no longer current.” This is precisely what the Applicant here did. However, the Form gives no warning or caution, at least as far as I can see from the Form, as reproduced in the Court Book, that even if “change in circumstances” information is provided, that this information cannot and will not affect the detail of things like the “nominated skilled occupation” in the original application. In this sense, especially having regard to the persons who are intended to use such Forms as provided by the Department, and who would not usually be expected to trawl through judgments of this Court or the Federal Court to check as to how such forms are interpreted, as I say, in my view, the Form is potentially misleading.
Put another way: absent any caution or warning that any “change in circumstances” information will not necessarily affect, in any relevant way, the original information provided in the Application before the Department/Delegate/Tribunal, in my view, a reasonable “bystander” (or reasonable Applicant) would reasonably expect that any information provided via this particular Form would (or will) be used, or properly considered, by the appropriate person or body.
The view that I have just expressed regarding the said “Form” was not actually argued before me. It may be that the three factual distinctions to which I have referred, if/when considered by a superior Court, are sufficient to warrant judicial intervention. However, in all of the circumstances of the present Application, until there is relevant review of the matters I have raised, I am bound by the comments of Robertson J in Patel and equally so by Mortimer J in Pavuluri, such that the Application cannot succeed albeit that, on one view, it might reasonably be considered to be a “near run thing” to have succeeded. The concerns I have raised are sufficient, in my view, to warrant an Order for each party to pay their own costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 3 August 2018
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