Gade v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 328

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gade v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 328

File number(s):

MLG 1011 of 2019

Judgment of:

JUDGE RILEY

Date of judgment:

6 February 2025

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Temporary Graduate (Post Study Work Stream) (subclass 485) visa – application made more than six months after completion of course – application therefore did not comply with cl.485.231 – no jurisdictional error.

Legislation:

Migration Act1958 s.368D

Migration Regulations 1994 Schedule 2 cl.485.231

Division:

Division 2 General Federal Law

Number of paragraphs:

15

Date of hearing:

6 February 2025

Place:

Melbourne

Advocate for the Applicant:

In person

Solicitor for the Applicant:

None

Advocate for the First Respondent:

Anthony Gardner

Advocate for the Second Respondent:

No appearance

Solicitor for the First and Second Respondents:

Mills Oakley

ORDERS

MLG 1011 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LALITH VAMSI GADE
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	6 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application filed on 5 April 2019 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $5,400.

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

(revised from transcript)

JUDGE RILEY:

INTRODUCTION

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). The applicant applied for a Temporary Graduate (Post Study Work Stream) (subclass 485) visa. A delegate of the Minister refused that application and then, on review, the Tribunal affirmed the delegate’s decision.

2. The applicant completed a Master of Information Technology (Computer Networking) on 24 February 2017. The relevant regulation, which was cl.485.231 of Schedule 2 to the Migration Regulations 1994 as in force at the time, included in sub-clause (3) the requirement that the applicant have satisfied the Australian study requirement in the period of six months ending immediately before the day the application was made.

3. In the present case, the applicant made his application for the further visa on 27 August 2017, which was six months and three days after his course completion.

   GROUND 1

4. The first ground in the application filed on 5 April 2019 (“the application”) is as follows:

   The AAT Member failed to observe the obligations of natural justice.

   PARTICULARS

   a.The Tribunal Member reached an oral decision at the hearing and did not provide a written record of the decision. I was not able to properly respond to the Tribunal Member’s concerns during the hearing and adequately plead my case.

   b.The hearing was very stressful for me and I did not fully understand the reasons for the refusal. I should have been given a written record of the decision so that I could properly understand the reasons for the refusal and be able to properly appeal the Tribunal’s decision.

5. This ground notes that the Tribunal delivered an oral decision on the day of the hearing before it. The Tribunal was authorised to give oral decisions by s.368D of the Migration Act 1958. It is the case that the oral decision was not reduced to writing before the applicant was obliged to file his application to this court for it to be within time. However, a written copy of the reasons for decision was provided by the Tribunal a little later, and the applicant had the opportunity to amend his grounds in the light of that written decision. Nevertheless, the applicant did not seek to amend at all.

6. To the extent that this ground might challenge something that occurred during the course of the Tribunal hearing, that has not been substantiated with any evidence. That is, there is nothing before the court to indicate that the Tribunal did not adequately explain to the applicant what the issues before it were and give the applicant an opportunity to respond. I note that the delegate had also refused the visa on the same basis as the Tribunal, which was that the applicant had not completed his previous course within six months of the application for the visa.

   GROUND 2

7. The second ground in the application is as follows:

   The AAT Member failed to give consideration to relevant factors in the decision.

   PARTICULARS

   a.The Tribunal Member failed to comply with their obligations to give proper, genuine and realistic considerations to the merits of the case and actively failed to examine the facts.

   b.The decision-maker was not considered the circumstances of my study requirement criteria for my Temporary Graduate (Post Study Work) (subclass 485) visa application actively ignored such a request. These were not referred to or reported in their decision.

   c.The Tribunal Member and the delegate of the Minister for Immigration failed to consider the decision made by the Minister for Immigration previously, under equivalent, if not more favourable, circumstances.

8. The Tribunal was bound by the regulations to consider the time between the completion of the last course undertaken and the application for a further visa. The Tribunal did that. It noted that more than six months had passed between the date the applicant’s previous course was completed and the application. The Tribunal was not obliged to consider issues about the applicant’s study or his personal circumstances or anything else. All the Tribunal had to look at for this particular aspect of the case was the time between the completion of the previous course and the date of the application for the next visa.

9. The applicant argued today that although a letter from his university indicates that he completed the course on 24 February 2017, he did not get his results until 1 March 2017.  The applicant argued that 1 March 2017 should have been taken as the date of completion of the course. That is not correct. The Tribunal was right to rely on the letter from the applicant’s university saying that he successfully passed all of the subjects to meet the requirements of his master’s degree on 24 February 2017. 

10. The reality is that, even if the applicant did not get his results until 1 March 2017, as he has said, he still had five and three-quarter months to lodge the application. It is not as if the approximately one week between the course completion and the provision of his results seriously impinged upon his ability to apply for the visa.

    GROUND 3

11. Ground 3 in the application is as follows:

    The AAT Member based much of their decision on an irrelevant factor and should not have

    PARTICULARS

    a.The delegate of the Minister for Immigration relied heavily upon an irrelevant factor when reaching their decision. This is intended as a generic statement and did not consider my previous studies and performance in Australia. This is an irrelevant factor which should not have been considered.

12. In oral submissions, the applicant resiled from the allegation that the Tribunal had based its decision on an irrelevant factor. There certainly does not seem to any irrelevant factor that the Tribunal relied upon.

13. The applicant made submissions today that largely dwelt on what could perhaps be described as social reasons. He said that he did not wish to say that the Tribunal had been in error. However, this court is only permitted to remit a matter to the Tribunal where there has been a jurisdictional error and, in the circumstances of this case, there was nothing that would amount to such an error.

14. The Minister also noted that even if there had been some sort of jurisdictional error in this case, the immutable fact is that the applicant did not apply within six months as required by the regulations and, therefore, there would be absolutely no point in remitting the matter to the Tribunal because no other decision could be made.

    CONCLUSION

15. Consequently, the application must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       17 March 2025