Jayasena v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 998
Federal Circuit and Family Court of Australia
(DIVISION 2)
Jayasena v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 998
File number(s): ADG 81 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 30 November 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – whether application could only be considered under one stream – whether particulars of information which might form part of the reasons for decision provided – whether failure to consider case law – whether jurisdictional error Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Regulations 1994 (Cth) regs 1.03, 1.15I, 2.26B, Sch 1, Items 1114C, 1229(3)(j), Sch 2, Pt 485, cl 485.223
Migration Act 1958 (Cth) ss 359AA, 368, 474, 476
Cases cited: 1313689 [2014] MRTA 2894
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 17
Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75l; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774; (2020) 170 ALD 453
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 106
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 1; (2007) 96 ALD 1
SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 8 November 2022 Date of hearing: 8 November 2022 Place: Perth Applicants: First Applicant in person via CISCO Webex Counsel for the First Respondent: Mr C Retallick Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 81 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THUPPAEHEGE DONE SHYAMALI NANDANI JAYASENA
First Applicant
DUMINDA PRASANNA KALUARACHCHI KALU ARACHCHILAGE
Second Applicant
KALU ARACHCHILAGE DINDU VIJAN RANITHU KALUARACHCHI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
30 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 8 March 2019 be 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 LUCEV
Introduction
Before the Court is an application filed on 8 March 2019 by the applicant, Ms Thuppaehege Done Shyamali Nandani Jayasena (“Ms Jayasena”), for judicial review (“Judicial Review Application”), pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”), of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate's Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), affirming the Delegate's Decision not to grant Ms Jayasena a Temporary Graduate (Class VC) subclass 485 visa (“Graduate Visa”).
The other applicants in this Judicial Review Application are Ms Jayasena’s husband and their child, respectively. For convenience the applicants will be referred to by reference to the first applicant, Ms Jayasena, only, the other applicants’ visas being dependent upon the grant or refusal of Ms Jayasena’s Graduate Visa in any event.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 123-126.
Background
The relevant background to the matter is as follows:
(a)Ms Jayasena is a citizen of Sri Lanka: CB 14-17;
(b)Ms Jayasena applied for the Graduate Visa on 9 August 2018: CB 13-28;
(c)on 13 September 2018 the Delegate’s Decision was to refuse the Graduate Visa: CB 64-68;
(d)on 24 September 2018 Ms Jayasena applied to the Tribunal for review of the Delegate’s Decision: CB 69-71;
(e)on 19 November 2018 Ms Jayasena’s representative emailed the Tribunal and stated:
That it would be pertinent to mention that on the 9th of August 2018 when the applicant had lodged her SC 485 application there was some technical glitch in the online system of the DHA (hereinafter called “the department”) and several issues cropped up which would not be there in the normal course of lodging the internet applications through the department portal. As is evident from the contents of schedule 1, there are two streams of SC 485 visa, namely Graduate Stream and Post Study stream. The applicant wanted to lodge Class VC and Sub Class 485 visa which is known as Temporary Graduate Visa.
As is evident from the name of visa itself “Temporary Graduate “and when the option of “Graduate Work” appeared on the screen, the applicant thought that she had to apply under this stream whereas she had to apply for “Post Study” stream as she was eligible under post study stream and not eligible for the graduate stream at all. She had lodged the application herself without the help of a Migration Lawyer or an Agent. It was a bona fide mistake on the part of the applicant.
(f)on 22 July 2019 Ms Jayasena attended the Tribunal Hearing with her migration agent. The hearing went for just under 40 minutes: CB 112-114.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background of the application for review to the Tribunal: CB 124 at [1]-[4];
(b)referred to the relevant criteria and legislation: CB 124 at [6];
(c)referred to Ms Jayasena’s circumstances in relation to alleged problems with the online lodgement system and statutory provisions related to a valid visa application and whether an applicant can change streams: CB 124 at [7]-[10];
(d)noted at CB 125-126 at [11]-[24] that:
(i)Ms Jayasena applied for the Graduate Visa and that Item 1229(3)(j) of Schedule 1 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) states that an applicant seeking to satisfy the primary criteria for the grant of the Graduate Visa must nominate only one stream to which the Graduate Visa application relates and that in this case, Ms Jayasena did nominate a stream in her Graduate Visa application, namely the Graduate Work stream (“GW Stream”);
(ii)if Ms Jayasena had not nominated a stream, her Graduate Visa application would not have been valid as she had to nominate a stream for the Graduate Visa application to be valid, and as other questions were asked in the Graduate Visa application that go to eligibility for the particular stream nominated, it was not useful to say she should not have been permitted to continue a valid application for the Graduate Visa;
(iii)the criteria for the Graduate Visa are in Part 485 of Sch 2 of the Migration Regulations and state that:
If an applicant applies for a Subclass 485 visa in the Graduate Work stream, the criteria in subdivisions 485.21 and 485.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 485 visa in the Post-Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria 15.
(iv)the Notes to Schedules of the Migration Regulations form part of the Migration Regulations and must be given meaning in the context of the statute as a whole, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [71] per McHugh, Gummow, Kirby and Hayne JJ;
(v)Sch 1 of the Migration Regulations requires that an applicant nominate a stream for the Graduate Visa application to be valid, and the Notes specify that the nomination guides the criteria that apply in assessing the Graduate Visa application;
(vi)in Ms Jayasena’s context this meant that after nominating the GW Stream in the Graduate Visa application she could not then change streams;
(vii)the Explanatory Statement to the amending regulation that introduced the two streams stated that the intention was to ensure that applicants are only assessed against the criteria specific to the stream selected;
(viii)as a result of Ms Jayasena nominating the GW Stream her Graduate Visa application was to be assessed against the criteria for GW Stream;
(ix)cl 485.223 of Sch 2 to Migration Regulations requires that when the Graduate Visa application was made it was accompanied by evidence that Ms Jayasena had applied for an assessment of her skills for the nominated “skilled occupation” by a “relevant assessing authority”;
(x)“skilled occupation” has the meaning given by reg 1.15I of the Migration Regulations: Migration Regulations, reg 1.03;
(xi)“relevant assessing authority” means a person or body specified by the Minister in an instrument under reg 2.26B of the Migration Regulations: Migration Regulations, reg 1.03. The relevant instrument is Legislative Instrument IMMI 18/051;
(xii)in her Graduate Visa application Ms Jayasena nominated the occupation of secondary school teacher which is a specified skilled occupation, and that for that occupation, the relevant assessing authority is the Australian Institute for Teaching and School Leadership;
(xiii)in the Graduate Visa application, in response to the question “have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?”, Ms Jayasena answered “no”, and in the section that requires information on the skills assessment she did not respond to the name of the assessing authority, the date of the skills assessment or the reference or receipt number;
(xiv)Ms Jayasena acknowledged that in the Graduate Visa application she had not provided a skills assessment, but said she met the criteria for the alternate stream and that an adverse decision would mean she cannot apply for a permanent visa and that it will adversely affect her children’s education;
(e)at CB 126 at [25]-[26] found that:
(i)as the Graduate Visa application was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, Ms Jayasena did not satisfy the requirements of cl 485.223 of Sch 2 to the Migration Regulations, and as this was the only relevant subclass in this case, the Delegate’s Decision was be affirmed;
(ii)that as Ms Jayasena did not meet the primary criteria for the Graduate Visa, and it was not suggested that any of the other applicants met the primary criteria, the remaining applications did not meet the secondary criteria and the Delegate’s Decision in relation to the secondary applicants was also affirmed;
(f)noted that the outcome was unfortunate for Ms Jayasena as a seemingly simple error in completing her Graduate Visa application had resulted in her being unable to meet the requirements for the Graduate Visa, but that the legislation required her to nominate a stream and that she did not meet the criteria for the stream she had nominated: CB 126 at [27]; and
(g)affirmed the Delegate’s Decision not to grant Ms Jayasena the Graduate Visa: CB 126 at [28].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) on 8 March 2019. Given the delay of more than three years in the matter coming to hearing it is appropriate to set out the further litigation history of the matter, which is as follows:
(a)on 9 May 2019 a Registrar of this Court made consent orders programming the matter and ordering that the matter be listed for a final hearing on a date to be advised;
(b)on 2 January 2020 a notice of adjournment was sent to the parties advising that a hearing listed on 12 June 2020 had been vacated to a date to be fixed;
(c)in May 2022 the matter was docketed to the presiding Judge in the Perth Registry of the Court;
(d)on 18 May 2022 the parties were notified of a directions hearing listed for 23 May 2022 before the presiding Judge;
(e)on 23 May 2022 the parties attended a directions hearing before the presiding Judge where orders (“May 2022 Orders”) were made that:
(i)Ms Jayasena file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 10 October 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 24 October 2022; and
(iii)the matter be listed for a final hearing by video link on 8 November 2022 at 11.00am AWST/1.30pm ACDT before Judge Lucev,
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) if Ms Jayasena did not appear at the final hearing;
(f)a copy of the May 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 8 November 2022, were emailed to the parties later on 23 May 2022;
(g)Ms Jayasena filed no submissions or documents pursuant to the May 2022 Orders; and
(h)on 24 October 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
There are seven grounds (numbered 1, 2, 4, 5, 6, 7 and 8, with no ground 3) in the Judicial Review Application as follows (reproduced unaltered):
1.That the Tribunal has committed a jurisdictional error by erroneously placing too much weight on the fact that the applicant did not choose the right stream while applying for a SC 485 visa. Respectfully, the tribunal gravely erred on this issue and completely lost sight of the fact that the applicant was fully eligible for the grant of visa, had her case been considered under the Post Study Stream. Therefore, it was wrong on the part of the Tribunal to conclude that the applicant's case could only be considered under one particular stream.
2.The Tribunal committed a jurisdictional error by failing to comply with s.359AA of Migration Act 1958. (the Act). As required by law under s359AA (l )(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b )(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii)invite the applicant to comment on or respond to it; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information-. adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.
The Tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. A review of the decision will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant. The examples of when the Tribunal committed these jurisdictional errors are listed below.
4.The Tribunal made a jurisdictional error under s.359AA of the Act by failing to give the applicant sufficient particulars and an opportunity to respond to the Tribunal's conclusion that “Notes” under Schedule 1 was relevant in the applicant's case. In the decision record, it was stated that
The notes to the schedule form part of the Regulations and must be given meaning. This meaning may be in the context of the statute as a while. The notes specify this guides the criteria that apply in assessing the visa application.
No details were given to the applicant as to what particulars regarding the notes to Schedule 1 were taken into account when forming this conclusion, nor was the applicant told or made aware of any notes attached to Schedule 1. She was not given the opportunity to respond to or comment on these adverse inferences which were taken into account. Simply stating that the notes to Schedule 1 defy the applicant's claims without putting those notes to her or giving the applicant an opportunity to explain or an opportunity to respond to the relevant notes which formed an integral part to Member's reasons for affirming the refusal of applicant's application is a jurisdictional error committed by the tribunal.
It was not made clear to the applicant why the Tribunal member was not persuaded by the very genuine and legitimate reasons put forth by the applicant. The particulars should have been given to the applicant as well as an adequate opportunity to respond to and comment on these particulars as required by law.
5. That the Tribunal committed a jurisdictional error by refusing the application of the applicant despite admitting that “If the applicant had not nominated a stream, her application would not be valid. Having nominated the stream, certain questions were asked of her that go to an assessment of whether she meets the criteria for the grant of the visa. As she must nominate a stream for a valid application, and other questions are asked that go to her eligibility for the particular stream, it is not useful to say she should not have been permitted to continue a valid application for the visa.”
Unfortunately, the applicant was not given enough opportunity to respond to this claim and as a result, was denied procedural fairness under the law.
The applicant, as understood rightly, was of the firm opinion that if she was not eligible for the nominated stream as she did not say” yes” to all the eligibility questions, then she will obviously be considered for the alternative stream wherein she ticked all the boxes and would have said “yes” to all the eligibility questions. The Tribunal member has drawn a negative inference that she could only apply under one stream and could only be considered under that particular stream and did not give the applicant sufficient opportunity to respond as to why this inference was not the case as per s.359AA of the Act.
6. That the Tribunal has committed a jurisdictional error by drawing an adverse inference that the applicant had locked a particular stream by choosing that stream and was barred from being considered under the alternative stream. This view has been formed by the Tribunal solely on the ground that the “notes” under Schedule 1 clarify this position. Respectfully, it was never ever disclosed to the applicant at any stage about the existence of those notes and the applicant, therefore, was denied an opportunity to comment on those notes. The Tribunal therefore erred and wrongly inferred that the applicant was barred from being considered under the other stream, post study stream for the grant of SC 485 visa. The applicant was not given a sufficient opportunity to respond to these particulars and as such was denied procedural fairness while adversely deciding the matter against the applicant.
7. That the Tribunal has committed a jurisdictional error by basing its decision on assumptions and presumptions. The tribunal observed that:
Mrs Jayasena applied for a Class VC visa. Item 1229(3)U) of Schedule 1 of the Regulations states that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa must nominate only one stream to which the application relates.
The tribunal lost sight of the fact that there was nothing in the legislation which barred her case to be considered for an alternative stream. The tribunal only relied on the clarificatory notes under Schedule 1 and grievously erred in presuming that the notes formed a part of the legislation and were mandatory.
8. That the Tribunal has committed a jurisdictional error by not even discussing the case law which was cited by the applicant in her submissions wherein it was held that an application for the grant of SC 187 visa could be considered under the Temporary Residence Transition Stream even though the applicant had by mistake chosen the Direct Entry stream. It was always a case of the applicant that she had chosen and ticked the Graduate Work stream by mistake while lodging the online application and the said mistake was unintentional and bona fide.
Ms Jayasena’s submissions
Ms Jayasena did not file written submissions in support of the Judicial Review Application: see [6(g)] above.
In oral submissions at hearing Ms Jayasena submitted that:
(a)her genuine intention was to make an application in the Post-Study Work stream (“PSW Stream”), and she did not intentionally select the GW Stream;
(b)the online application process ought not to have allowed her to continue with the application in the GW Stream if she did not meet the criteria;
(c)there were technical glitches in the online application process on the day she made her application, but she “got assistance from a phone call”: Transcript, p 3;
(d)she had “delivered all the criteria” for the PSW Stream: Transcript, p 3;
(e)if she had made “the wrong application” she understands she cannot ask for a visa for a different stream: Transcript, p 3;
(f)she had to “face some unfairness” because she had “less chance of getting a job” in her field due to visa uncertainty: Transcript, pp 3-4; and
(g)her “concern” was that even though she had said no to the “class assessment” the online system allowed her to proceed with the Graduate Visa application: Transcript, p 7.
Minister’s submissions
The Minister submitted that:
(a)as to grounds 1, 5, 6 and 7 that the Tribunal was correct to find that the Graduate Visa application, having validly been made in the GW Stream, could only be assessed against the criteria for that stream, citing Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774; (2020) 170 ALD 453 (“Singh – Federal Court”) at [66]-[69] per Rangiah J;
(b)as to grounds 2 and 4:
(i)there was a lack of particularity to the grounds, save for the reference to the “Notes” under Sch 1 of the Migration Regulations;
(ii)non-compliance with the requirements in s 359AA of the Migration Act did not of itself give rise to jurisdictional error;
(iii)because of their statutory nature the Notes did not engage s 359AA of the Migration Act in any event;
(iv)the determinative issue was that there was no evidence before the Tribunal that Ms Jayasena had applied for the requisite skills assessment, and as a consequence of the Delegate’s Decision and the Tribunal’s Hearing Invitation Ms Jayasena was on notice of that issue;
(c)as to ground 8 there was no requirement for the Tribunal to mention the authority referred to by Ms Jayasena in the Tribunal Decision, and nor was the authority of such significance that there was a basis for an inference that the Tribunal failed to consider it, but in any event the authority was distinguishable from the facts of this case.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. In limited circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (20060 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
Consideration - grounds 1, 5, 6 and 7
In one form or another each of grounds 1, 5, 6 and 7 claim that the Tribunal erred in finding that the Graduate Visa application could only be considered under one visa stream.
As required by item 1229(3)(j) of Sch 1 to the Migration Regulations Ms Jayasena made a valid application for a Temporary Graduate visa in the GW Stream: CB 13.
In Singh – Federal Court at [66]-[69] per Rangiah J the Federal Court of Australia observed that:
66 In this case, the appellant made a valid application for a visa in the class described as “Skilled (Provisional) (Class VC)”. The particular visa he applied for within that class was a “Subclass 485 (Temporary Graduate) in the Graduate Work stream” visa. The appellant did not satisfy the criterion in cl 485.223 in Sch 2 for that visa. Accordingly, the Minister was required to refuse to grant the particular visa that was the subject of the application.
67 Under s 65(1) of the Act, the Minister's power is to consider whether the criteria for the particular visa that was the subject of a valid application are satisfied and grant or refuse to grant that visa. The Minister has no power to grant a visa that was not applied for. The appellant made no application, valid or otherwise, for a “Subclass 485 (Temporary Graduate) in the Post-Study Work stream” visa. Therefore, the Minister had no power to grant that visa.
68 The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister. This position was stated by Finkelstein J in Hayman at [22], and endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A”, as follows [citations omitted]:
The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.
69 I have concluded that the Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa. The Tribunal had no greater power. The Tribunal would have been required to affirm the Minister’s decision because the appellant had not satisfied cl 485.223, and could not have granted any other visa. […]
The High Court of Australia dismissed Mr Singh’s application for special leave to appeal Singh – Federal Court: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 106 (“Singh – Special Leave”) at [3] per Gordon and Steward JJ.
The views expressed by the Federal Court of Australia in Singh – Federal Court, as upheld by the High Court of Australia in Singh – Special Leave, are binding on this Court: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev.
As a matter of statutory construction, the Tribunal was correct to find that the Graduate Visa application, having been validly made, was only able to be assessed against the criteria for the GW stream: Singh – Federal Court at [66]-[69] per Rangiah J; Explanatory Statement to SLI 2013, No 33 at p 8. Further, as a matter of precedent this Court must follow the rationale in Singh – Federal Court at [66]-[69] per Rangiah J, more particularly so in circumstances where that rationale is, in the Court’s view, correct in light of the legislative provisions discussed in Singh – Federal Court and in the Tribunal Decision. The Tribunal simply had no power to grant the Graduate Visa in the PSW Stream: Singh – Federal Court at [67]-[69] per Rangiah J.
Insofar as grounds 1, 5, 6 and 7 allege a denial of procedural fairness:
(a)there can be no denial of procedural fairness in relation to the refusal to grant a visa which the Tribunal does not have power to grant; and
(b)in any event, for reasons set out in more detail below: see [26] below, the Court put Ms Jayasena on notice of a determinative issue, namely the failure to provide evidence that Ms Jayasena had applied for a skills assessment as required under cl 485.223 of Sch 2 to the Migration Regulations,
and therefore any alleged denial of procedural fairness is not made out.
It follows that grounds 1, 5, 6 and 7 are without merit and misconceived, and do not establish jurisdictional error in the Tribunal Decision.
Consideration - grounds 2 and 4
In grounds 2 and 4 Ms Jayasena claims that the Tribunal failed to comply with s 359AA of the Migration Act, in particular as follows:
(a)by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration by the Tribunal;
(b)by not inviting Ms Jayasena to comment on or respond to alleged adverse information which was being used against her; and
(c)by failing to give Ms Jayasena sufficient particulars of, and an opportunity to respond to, the Tribunal’s conclusion that the Notes under Sch 1 of the Migration Regulations were relevant.
A want of particularisation of a ground of review may be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J, citing WZAVW.
Grounds 2 and 4 are not so wholly bereft of particularisation as to warrant dismissal of the Judicial Review Application on that basis alone, and, at the very least, there is identified with some precision the issue of the “Notes” under Sch 1 to the Migration Regulations (which are referred to in the Tribunal Decision at CB 125 at [15]-[16]).
Even where there is an un-particularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J.
The Court heard oral submissions from Ms Jayasena but those submissions did not, save for the issue with respect to the Notes under Sch 1 of the Migration Regulations, identify or particularise any other jurisdictional error in grounds 2 or 4: Transcript pp 3-4 and 7, or identify what specific information ought to have been put to Ms Jayasena or particularised, or the nature of the alleged breach of s 359AA of the Migration Act.
In relation to the Notes under Sch 1 of the Migration Regulations, the Notes simply offer a shorthand explanation of the operation of the criteria set out in Part 485 of Schedule 2 to the Migration Regulations, and as such are not “evidentiary material or documentation”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 1; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, and therefore not “information” in respect of which s 359AA of the Migration Act is engaged, nor are they information that contains a rejection, denial or undermining of Ms Jayasena’s claims: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 at [22] and [25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. The claim with respect to the Notes is therefore not made out.
The determinative issue in relation to the Graduate Visa application in the GW stream was that there was no evidence before the Tribunal that Ms Jayasena had applied for a skills assessment as required under cl 485.223 of Sch 2 to the Migration Regulations. For the purposes of the Tribunal Hearing Ms Jayasena had been put on notice by both the Delegate’s Decision: CB 64-68, and the Tribunal’s Hearing Invitation: CB 79-81, that, in the absence of such evidence, the Graduate Visa application would be refused. In particular at CB 80 Ms Jayasena was advised that:
(a)cl 485.223 of Sch 2 to the Migration Regulations required that the Graduate Visa application be “accompanied by evidence that you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority”; and
(b)the Graduate Visa application “was refused [by the Delegate] because it was not accompanied by evidence of this”.
In the circumstances, grounds 2 and 4 are not made out on their facts, and do not establish jurisdictional error in the Tribunal Decision, and the Court notes that, in any event, it is unlikely that a failure to comply with s 359AA of the Migration Act would give rise to jurisdictional error in these circumstances: SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 at [73], [79] and [86]-[87] per Tracey and Foster JJ.
Consideration - ground 8
In ground 8 Ms Jayasena claims that the Tribunal Decision was affected by jurisdictional error because the Tribunal failed to consider the case law cited in her submissions to the Tribunal, namely the Tribunal decision in 1313689 [2014] MRTA 2894 (“1313689”).
1313689 concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, which is a class of visa for which there is no requirement to nominate only one particular stream: see item 1114C of Sch 1 to the Migration Regulations. As such it has no relevance to, and nor can any relevant analogies be drawn with, the criteria for the Graduate Visa application the subject of this matter. Thus any failure by the Tribunal to consider 1313689 was immaterial, and more so in circumstances where the Tribunal’s obligation to prepare a statement of reasons (the Tribunal Decision) under s 368 of the Migration Act does not require it to identify or discuss each item of evidence or each submission to which it had regard, but rather to set out the actual findings that it did make: Yusuf at [68]-[69] per McHugh, Gummow and Hayne JJ. There was therefore no requirement for the Tribunal to mention 1313689 in its reasons and nor is 1313689 of such significance that there is a basis for an inference that the Tribunal failed to consider it.
What the Tribunal was required to do was to demonstrate an active intellectual engagement in, and consideration of the issues directed to Ms Jayasena’s claims: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48] per Lindgren, Rares and Foster JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [45] per Griffiths, White and Bromwich JJ, specifically here Ms Jayasena’s claim that she should be able to change to the PSW Stream from the GW Stream. As set out at [14]-[17] and [25]-[26] above the Tribunal plainly intellectually engaged with and considered that issue: see also at CB 124-125 at [7]-[19].
Even if the Tribunal were found to have been required to consider 1313689 (which is not the case for reasons set out at [29] above), any such error would be immaterial to the Tribunal Decision as Singh – Federal Court makes it plain that Ms Jayasena could not change streams to the PSW Stream from the GW Stream, and that the Tribunal Decision was therefore correct. Any failure to consider 1313689 was, therefore, immaterial and could not have given rise to jurisdictional error in the Tribunal Decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75l; (2019) 363 ALR 599; (2019) 163 ALD 38 at [38] at [44]-[45] per Bell, Gageler and Keane JJ.
It follows that ground 8 is not made out and does not give rise to jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is cognisant that Ms Jayasena was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
The Court notes the assertion of technical issues in the online lodging of the Graduate Visa application by Ms Jayasena, but also notes her submission that she received technical assistance on the phone with those issues on the day. These issues are not, in any event, such as to give rise to jurisdictional error in the Tribunal Decision; alternatively, they were never particularised in any meaningful manner which would allow the Court to adjudicate upon them if that were necessary.
Ms Jayasena’s assertion that she ought not to have been allowed to proceed with the online Graduate Visa application if she did not meet the criteria is misconceived because the purpose of the Graduate Visa application is to ascertain if an applicant meets the criteria in the stream for which they have applied. Here Ms Jayasena applied in the GW Stream, completed the online application, and was, correctly, found not to meet the criteria by both the Delegate and the Tribunal. No jurisdictional error arises in the Tribunal Decision from Ms Jayasena’s error in failing to apply in the PWS Stream.
There is, in the circumstances, no evidently arguable other jurisdictional error arising out of the Tribunal Decision.
Conclusion and Orders
The Court has concluded Ms Jayasena has not made out any of the grounds of the Judicial Review Application, but that even if there was an error in the Tribunal Decision (which there was not) it was not material, and no jurisdictional error is otherwise discernible in the Tribunal Decision. The Tribunal Decision is therefore not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 8 March 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 November 2022
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