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…
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- Case
- [2018] FCCA 2001
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant was permitted to change their nominated skilled occupation during the processing of their visa application, and whether the AAT erred in law by failing to consider the applicant's notification of a change in nominated occupation and relevant statutory provisions. Specifically, the applicant argued that sections 54, 55, and 104 of the Migration Act 1958 (Cth) allowed for the notification and consideration of changes in circumstances or additional relevant information, including a change in nominated occupation, before a decision was made. The applicant also contended that the AAT’s decision was affected by jurisdictional error due to the failure to take relevant considerations into account and the consideration of irrelevant ones.
The court considered previous Federal Circuit Court and Federal Court decisions, including *KC*, *Patel*, and *Hamelata*, which generally held that applicants could not change their nominated occupation once an application was lodged, particularly if it was considered a "change of mind." However, the applicant distinguished their case by arguing that the change in occupation was not a mere change of mind but a correction based on a recommendation from the relevant assessing authority, the ACS. The applicant submitted that neither the Act nor the Regulations expressly prohibited changing a nominated occupation and that previous case law, particularly the obiter dicta in *Patel*, left open the possibility of correcting an erroneously nominated occupation under sections 104 and 105 of the Act. The applicant further argued that the application form did not contain a specific warning against changing the nominated occupation, unlike other sections.
The court found that the applicant's nominated occupation was changed based on a recommendation from the relevant assessing authority, which was distinguishable from a mere change of mind. The court noted that the applicant had provided evidence of a suitable skills assessment from the ACS for the alternative occupation. The court concluded that the AAT’s decision was affected by jurisdictional error in failing to consider the applicant's notification of change in circumstances and the relevant provisions of the Act. Consequently, the court quashed the AAT's decision and remitted the matter to the AAT to be decided according to law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 Application19) 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.Particularsi.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.Particularsi.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.Particularsi.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.Particularsi.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.