Khan v Minister for Immigration

This case concerned an application for judicial review under section 476 of the *Migration Act 1958* (Cth) of a decision by the Administrative Appeals Tribunal (Tribunal) to affirm a delegate's refusal to grant the applicant a Temporary Graduate (Graduate Work) (Subclass 485) visa. The applicant had applied for the visa on 15 March 2016, and the delegate refused the application on 15 May 2016, finding that the applicant had not met the requirements of clause 485.223 of Schedule 2 to the *Migration Regulations 1994* (Cth). The Tribunal affirmed this decision on 17 October 2016.

The central legal issue before the court was whether the applicant had satisfied clause 485.223 of the *Migration Regulations*, which required that "When 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." The applicant contended that the Tribunal erred by failing to exercise its discretion to consider a favourable skills assessment obtained after the visa application was lodged, arguing that the Tribunal conducted a *de novo* hearing and should have considered all relevant information. The Minister argued that clause 485.223 imposed a mandatory "time of application" requirement, meaning the evidence of a skills assessment application must have accompanied the visa application when it was lodged.

The court considered the wording of clause 485.223, particularly the phrase "accompanied by evidence," and contrasted it with other provisions that might be satisfied at a later stage. The court noted that the applicant had explicitly stated in his application that he had not applied for a skills assessment and left relevant details blank, despite an explicit warning that failure to provide such evidence could result in the application being unable to satisfy the criteria. The court found that the Tribunal was correct in its interpretation that clause 485.223 was a mandatory "time of application" criterion and that the applicant's subsequent skills assessment, obtained over two months after lodging the visa application, could not satisfy this requirement. The court distinguished the present case from *Berenguel v Minister for Immigration and Citizenship* [2010] HCA 8, noting that the wording of clause 485.223, requiring the application to be "accompanied by evidence," was significantly different from the provision considered in *Berenguel*. The court also relied on *Nguyen v Minister for Immigration and Border Protection* [2016] FCCA 1523, which held that the phrase "accompanied by evidence" mandates a proximate temporal nexus between the provision of evidence and the lodging of the application.

The court concluded that the applicant failed to meet a mandatory criterion at the time of application, and therefore, the Tribunal had no discretion to consider the later-obtained skills assessment. The application was dismissed, with costs awarded to the Minister.