Bazarganigilani v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 48

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bazarganigilani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 48

File number(s):

SYG 2444 of 2019

Judgment of:

JUDGE GIVEN

Date of judgment:

29 January 2024

Catchwords:

MIGRATION – Where applicant applied again for a Subclass 485 visa a criterion of which was that he had not previously held a visa of the same Subclass – where criteria for visa could be construed as having changed in interim – whether applicant previously held the same visa in circumstances where different conditions attached thereto

Legislation:

Migration Regulations 1994 (Cth) cl 485.211

Cases cited:

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

El Saghir v Minister for Immigration and Border Protection [2016] FCA 1430

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Division:

Division 2 General Federal Law

Number of paragraphs:

35

Date of hearing:

24 November 2023

Place:

Sydney

The Applicant: 

In person

Solicitor for the Respondents: 

Ms E Bennett, Minter Ellison

ORDERS

SYG 2444 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MAHDI BAZARGANIGILANI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	29 JANUARY 2024

THE COURT ORDERS THAT:

1.The application made on 23 September 2019 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN

1. By an application to show cause filed with this Court on 23 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 September 2019, affirming a decision of a delegate of the Minister (delegate) to not grant the applicant a Graduate (Subclass 485) visa.

   BACKGROUND

2. The background to the matter is derived from the first respondent’s written submissions but does not appear to be in dispute.

3. The applicant is a citizen of Iran.  On 8 April 2014, the applicant was granted a Graduate (Class VC) (Subclass 485) visa which he held until 3 June 2015 (Court Book (CB) 12).  Internal client service records (ICSE) evidencing the grant of that visa form annexure “TJJ1” to the Affidavit of Tahlia Jade Jackson affirmed on 17 November 2023 (Jackson Affidavit).

4. On 27 April 2017, the applicant applied for a further Graduate (Class VC) (Subclass 485) visa (visa) (CB 1 to 14).

5. On 19 May 2017, a delegate of the Minister refused to grant the applicant the visa, having found that he had previously held a Subclass 485 as a primary visa holder, which was contrary to cl 485.211(b) of the Migration Regulations 1994 (Cth) (the Regulations) (CB 21 to 26).

6. On 5 June 2017, the applicant applied to the Tribunal to seek review of the delegate's decision (CB 42 to 43).

7. On 31 July 2019, the Tribunal invited the applicant to comment on, or respond to, information being that a check of the Departmental file indicated that the applicant had previously held a Subclass 485 visa.  The applicant was informed that this information, if correct, could result in the Tribunal affirming the delegate's decision (CB 89 to 90).

8. On 19 August 2019, (after being granted an extension of time to respond to the invitation to comment), the applicant provided a statement in which he said it would be “completely irrational” that he be considered as having held a previous Subclass 485 visa, because the visa class was reformed in March 2013 to enable applicants to apply for up to a 4-year period of stay, rather than a 1.5 year period.  The applicant’s statement relevantly accepted that this was the second application he had lodged for a Subclass 485 visa (CB 101 to 102).

9. On 21 August 2019, the applicant was invited to attend a hearing of the Tribunal to give evidence and present arguments in relation to the issues arising in his case (CB 104), which he did on 12 September 2019.  On the same date, the Tribunal affirmed the delegate's decision (CB 113 and 119).

   The Tribunal’s decision

10. In reaching its decision (CB 125 to 124), the Tribunal relevantly:

    (a)set out the procedural history and factual background of the matter (at [1] to [7]);

    (b)identified that the issue on review was whether the applicant satisfied the primary criteria for the grant of the visa, which relevantly included a requirement that he had not previously held a Subclass 485 visa that was granted on the basis that he satisfied the primary criteria for the grant of that visa (at [9] to[10]);

    (c)recorded the applicant as having provided a copy of the delegate's decision to the Tribunal, in which the delegate acknowledged that the applicant had held a Subclass 485 visa between 8 April 2014 and 3 June 2015 as the primary visa holder.  The Tribunal noted the applicant agreed this was correct (at [11]);

    (d)did not accept the applicant's interpretation of the Regulations, being that he should not be taken to have previously held a Graduate (Subclass 485) visa in circumstances where the related visa conditions had been amended since he held that visa (namely, the later subclass visa allowed for a period of stay up to 4 years, instead of only 1.5 years as had been permitted at the time the applicant held the visa) (at [12] to [14]); and

    (e)found that the applicant was a person who had previously held a Subclass 485 visa on the basis that he satisfied the criteria at the time for the grant of that visa (at [14]).

11. For these reasons, the Tribunal found that the applicant was unable to satisfy clause 485.211(b) and affirmed the decision under review (at [15] to [17]).

    PROCEEDINGS IN THIS COURT

12. The matter was initially docketed to another Judge of the Court.  On 17 October 2019, the applicant appeared before a Registrar on which occasion orders were made by consent which provided, inter alia, for the applicant to file and serve any amended application and evidence by 9 January 2020.  The proceedings were adjourned to a callover on a date to be notified administratively to the parties.  The proceedings were subsequently placed in the central migration docket where they remained until 23 August 2023, when they were docketed to me, and I made procedural orders on that date for the matter to be heard before me on 24 November 2023.  

13. Despite a grant of leave to do so, the applicant did not file an amended application in time, or at all.  Nor has he filed any written submissions.  An Affidavit made by the applicant on the date the proceedings were commenced, and filed in support of the originating application, was received as a submission.  The Minister filed written submissions as ordered.  The Court Book was tendered at hearing and marked Exhibit “1R”.  The Jackson Affidavit (see [3] above) was read for the Minister, without objection. 

14. The applicant has been unrepresented throughout the proceedings and appeared before me at hearing.  An interpreter in the Farsi language was present to assist. However, at the commencement of the hearing the applicant was adamant that he did not require the services of the interpreter, and the Court excused the interpreter with thanks. 

    GROUND OF REVIEW

15. In the absence of an amended application, the grounds which arise for consideration are those contained within the originating application.  Those grounds, while numbered 1 to 5 are in essence a narrative about a single issue, which was also the focus of submissions by both parties at hearing. 

16. At the commencement of submissions at hearing, the Court indicated to the applicant that he could explain whatever he wished about the error he alleges is present in the Tribunal’s decision.  The applicant made submissions to the following effect:

    (a)the Subclass 485 visa which was previously granted to him was not the same visa as the one for which he later applied;

    (b)while each was named a Subclass 485 visa, the conditions which attached a later version of that visa were different (namely, more beneficial); and

    (c)the Tribunal misinterpreted and misapplied cl 485.211(b) of the Regulations, and otherwise made a decision that was legally unreasonable by finding that he had previously held a Subclass 485 visa. It thus prevented him from applying for another visa and the visas were not the same, even if identically named.

17. The first respondent submitted that the Tribunal correctly interpreted and applied cl 485.211(b) of the Regulations, based on the evidence before it.

18. The substance of the issue contended for by the applicant will be addressed first, followed by an analysis of the “grounds” as raised in the originating application, to the extent that they are not already determined by the findings made in respect of his central contention.

    Consideration

19. As the Court explained to the applicant at the hearing, there is an attractive logic to the contention he puts.  Respectfully, one can see how a thoughtful lay-person might reach such an interpretation. 

20. Unfortunately, that interpretation is incorrect as a matter of law and does not give rise to an error of the kind of which the Court would be required to be satisfied if the matter is to be remitted for redetermination by the Tribunal. 

21. The issue turns on the correct construction of cl 485.211(b) of the Regulations. At the relevant time, cl 485.211(b) included a requirement that the applicant:

    …has not previously held a Subclass 485 visa that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

22. I accept the submissions made for the first respondent that the proper construction of

    
    

    cl 485.211(b) of the Regulations gives rise to two requirements which must be independently, and conjunctively, satisfied before the prohibition on granting a further subclass 485 visa is enlivened. Those requirements are that:

    (a)the applicant has not previously held a Subclass 485 visa; and

    (b)the decision-maker considers that the previously held Subclass 485 visa was granted on the basis that the visa applicant satisfied the primary criteria for the grant of the visa.

23. In respect of the first requirement, namely that the applicant has not previously held a Subclass 485 visa, it is clear that the applicant in the instant case seeks to interpret this as meaning a Subclass 485 visa to which identical conditions attached.  He says that he cannot be taken to have previously held a Subclass 485 visa on the basis that the criteria for grant, and the possible conditions attaching to the visa for which he was now applying, had been amended since he first held the visa in 2014.

24. I agree with the first respondent that the meaning of the first aspect of cl 485.211(b) is clear. It is not an ambiguous provision, such that its ordinary meaning is not consistent with the statutory purpose: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordan JJ.

25. Had the legislature intended to limit applicants from being granted multiple Subclass 485 visas where the conditions attached as one held previously, it can be assumed it would have said so.  Rather, by specifying that the applicant cannot previously have held “a Subclass 485 visa” (emphasis added), the legislation indicates that the visa can be held once only, irrespective of which version of conditions may have appertained thereto. 

26. That view is reinforced by the Explanatory Memorandum to the Migration Amendment Regulations 2007 (No. 7) (SLI No. 257 of 2007) (being the legislation which introduced the Subclass 485 visa) which said that the:

    Subclass 485 is a temporary visa that from 1 September 2007 replaced Subclass 497 (Graduate – Skilled), for which amendments made by these regulations prevent further applications by persons seeking to satisfy the primary criteria on or after 1 September 2007…This visa is intended to allow 18 months temporary stay in Australia for applicants who have recently completed studies in Australia but need additional time to gain the skills required to apply for a permanent General Skilled Migration visa…

27. This requirement appears to have consistently existed in relation to the Subclass 485 visa, when regard is had to the Explanatory Statement to the Migration Legislation Amendment Regulation 2013 (No. 1) (SLI No. 33 of 2013) which also said that:

    This amendment does not alter the criterion that the applicant has not previously held a Subclass 476 (Skilled Recognised Graduate) or a Subclass 485 that was granted on the basis that the applicant satisfied the primary criteria for the grant of the visa.

28. In relation to the second part of the clause, it requires that the decision-maker consider whether the previously held Subclass 485 visa was granted on the basis that the visa applicant satisfied the primary criteria for the grant of the visa.  That is an enquiry which relevantly requires the decision-maker to be satisfied that the applicant met the criteria of the visa for which he previously applied and was granted. 

29. The applicant advances a position which, by contrast, would involve a construction directed to the primary criteria for the grant of the visa for which he is currently applying, rather than for the visa previously held. 

30. I accept the submissions of the first respondent that such a construction would frustrate, and otherwise render inoperative, the specific means by which the statutory objective of ensuring that the Subclass 485 visa is a visa that may only be applied for and granted once (as set out in the extrinsic materials): see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

31. Further, the applicant does not contend that he did not meet the criteria for the Subclass 485 visa which was granted to him. 

32. While appreciating the logic in the applicant’s contentions overall, they cannot be sustained as a matter of law.  There is no jurisdictional error present as contended for by the applicant’s submissions made at hearing. 

33. As noted at [15] above, the originating application directed itself to a single issue, being the statutory construction of cl 485.211(b) of the Regulations. However, to the extent that by paragraph [5] of the originating application the applicant can additionally be taken to be alleging that the Tribunal's decision was legally unreasonable, I agree with the first respondent’s submissions that it is really a disagreement with the outcome, and is incapable of establishing jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [128] per Kirby J, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J and at [131] per Crennan and Bell JJ and El Saghir v Minister for Immigration and Border Protection [2016] FCA 1430 at [25] per Flick J.

    CONCLUSION

34. In the absence of any of the ground/s of review being made out, I find that the decision of the Tribunal is not affected by jurisdictional error.  Absent a jurisdictional error, the decision is a privative clause decision and should be dismissed.  I will so order.

35. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:  29 January 2024