Khan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 126
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 126
File number: SYG 1527 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 February 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal - Temporary Graduate (Post-Study Work) (class VC) (subclass 485) visa – whether the Tribunal misinterpreted and misapplied case law – whether there is an inconsistency between regulations and the Migration Act 1958 (Cth)- whether the nature of the visa application affects cl 485.212 – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth) s 55
Migration Regulations 1994 (Cth) Sch 2, cls 485.212, 485.212(a)(i), 485.212(b).
Cases cited: Akbar v Minister for Immigration and Border Protection [2019] FCA 515
Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Kaur v Minister for Immigration and Border Protection [2018] FCA 1765
Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Liang v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 702
Thlork v Minister for Immigration & Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 23 January 2025 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the First Respondent: Ms Juarez (MinterEllison) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1527 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAFQAT ALI KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,600.00
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 28 May 2020. The Tribunal affirmed a decision made on 22 November 2019 by a delegate of the Minister for Home Affairs (“delegate”) to refuse to grant the applicant a Temporary Graduate (Post-Study Work) (class VC) (subclass 485) visa (“visa”).
For the reasons outlined below, the application must be refused.
BACKGROUND
The applicant is a male citizen of Pakistan.
On 9 August 2019 he applied for the visa. In response to the question in the visa application form regarding whether the applicant held a current passport from the USA, UK, Canada, New Zealand, or the Republic of Ireland (to demonstrate that he had met the English language requirement) or 'have you undertaken an English test within the last 36 months?' the applicant responded 'No'.
On 22 November 2019 the delegate refused to grant the visa having found the applicant did not satisfy cl 485.212 of the Migration Regulations 1994 (Cth) (“Regulations”). The applicant did not provide evidence of completing the requisite English test within 3 years at the time of lodging his application and therefore did not satisfy cl 485.212(a)(i). A PTE English test was provided but showed a test date of 12 August 2019 being 3 days after the visa application was lodged. Having answered ‘No’ in the application and in the absence of any information to the contrary, there was no evidence the applicant held a valid passport from the countries specified in 485.212(b).
On 10 December 2019, he applied to the Tribunal for review of the delegate’s decision.
The Tribunal affirmed the decision not to grant the applicant the visa on 28 May 2020.
On 21 June 2020, the applicant applied to this Court seeking judicial review of the Tribunal’s decision.
ADMINISTRATIVE APPEALS TRIBUNAL
At issue was whether the applicant satisfied cl 485.212 which required evidence that:
•the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or
•the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).
The relevant instrument was stated at [8] to be IMMI 15/062. The Tribunal observed at [8] there was no evidence the applicant has held a passport of the type specified and found that cl 485.212(b) was not met.
The Tribunal found at [14] the applicant did not undertake a specified language test within the period of three years prior to lodging his application as required to meet cl 485.212(a). It noted it did not have the discretion to consider matters such as the difficulty of organising an appropriate language test at short notice.
The Tribunal concluded at [16] the applicant did not meet the requirements of cl 485.212 in Sch 2 of the Regulations. Therefore, he did not satisfy the criteria for the grant of the visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an Originating Application lodged on 21 June 2020 and in an additional document lodged on 23 October 2020. The grounds are extensive and in narrative form. They have been summarised by the first respondent as follows:
1. Whether the Tribunal erred in failing to apply the principles in Anand and Rachuri.
2. Whether there is an inconsistency between cl. 485.212 of Schedule 2 to the Regulations and s 55 of the Act.
3. Whether the online visa application form was 'misleading' and whether this had any bearing on the application of cl. 485.212.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. An interpreter was present, but the applicant was able to adequately converse in English. At the commencement of the hearing, the Court ensured that the applicant was in possession of the Court Book, and he had a copy of the respondent’s written submissions.
The Court also explained that it was undertaking judicial review as compared to merits review and the manner in which the Court hearing would be conducted.
Ground one contends the Tribunal failed to properly construe and apply the principles in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 (“Anand”) and Rachuri (Migration) [2019] AAT 2317 (“Rachuri”). The leniency established in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (“Berenguel”) with regard to the ‘temporal link’ and interpretation of ‘accompanied by’ was not applied.
With regard to Anand, the Tribunal misconstrued the principles by distinguishing the subclass of the visa in Anand from the visa subclass in the present case. The applicant submitted this approach was erratic and resulted in an unlawful decision. The applicant made reference to Anand and stated in that case, it was accepted at [27] and [28] there is an ‘elasticity’ in the ‘temporal connection’ with the relevant evidence submitted with an application on the day it is made as well as the day after. The applicant submitted the long-standing common-law principle of stare decisis had been ignored by the Tribunal who also misinterpreted Anand.
As to Rachuri, the decision and reasoning was relied upon and provided to the Tribunal. The applicant submitted it is prima facie ‘ultra vires for the AAT member to ignore perfectly cited case-law’. The applicant provided the test results within three days of making his application whereas the appellant in Rachuri took a little over two weeks, which was still accepted to be within the elasticity as elaborated at [27] and [28] in Anand.
The Tribunal’s interpretation of Anand and “ultra vires approach” of ignoring Rachuri “on the ‘Wednesbury unreasonable’ principle” because it is so unreasonable that no reasonable person acting in the capacity will come up with a decision that would ignore the principles in Anand and disregard Rachuri.
Further, the principles in Berenguel were not considered in view of the applicant’s compelling and unique circumstances, warranting due deliberation of such principles. The applicant referred to the ongoing validity of his visa when he made the application as the associated Bridging visa had not become active even on the date he completed the English test. His previous visa was valid until 15 August 2019.
The applicant submitted his understanding of providing documents after lodging the application is supported by s 55 of the Act. He stated no statute, or legislative instrument has “derogated” s 55 of the Migration Act 1958 (Cth) (“ the Act”) which still stands as the supreme piece of legislation with regard to the evidence submitted with the application and “adduced thereafter”.
In relation to ground three, the applicant submitted the design of the visa application is misleading as it should not allow applicants to move to the next steps “if the Minister wants to apply the law in its narrow sense”. The system should not have allowed him to proceed if he had ticked ‘NO’. The applicant submitted the application system was flawed and misguided.
The applicant submitted it would be a sheer miscarriage of justice to be denied leniency.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted the Tribunal was correct to identify that the relevant instrument for the purpose of cl. 485.212 was IMMI 15/062. Contrary to the applicant's assertions, the Federal Court of Australia has held that the operation of this visa criterion is both inflexible and unambiguous; (see: Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24] per Robertson J (“Kumar”); Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [12] per Bromwich J (“Thlork”)).
The requirement that a specified test be undertaken within the three years prior to the day of making an application is an inflexible criterion, which differs to that applied in Berenguel.
Anand is distinguishable from the present matter, noting Kaur v Minister for Immigration and Border Protection [2018] FCA 1765, per Charlesworth J at [17] (see also Liang v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 702 at [20] per Judge Laing).
As to the applicant’s complaint that the online visa application form was misleading, the first respondent submits that this has no bearing on whether he met the requirements of cl 485.212 and IMMI 15/062; (see: Kumar [23] per Robertson J).
The first respondent submitted that fundamental compliance (or lack thereof) with statutory requirements is not 'information' for the purposes of s 55, and there is no inconsistency as alleged; (see: Akbar v Minister for Immigration and Border Protection [2019] FCA 515 at [65] per Collier J). As the applicant’s English results were obtained after the visa application was made, the fact that he provided the results shortly after lodging the application does not assist him. The criteria required the test result to be obtained in the three years prior to the day the visa application was made.
The historical facts that are required to exist to meet cl. 485.212 and IMMI 15/062 do not exist in this matter. There is no evidence that the applicant undertook a specified test in the three-year period 'immediately before' his visa application. The Tribunal was correct to find that the applicant did not satisfy the requirements of s 485.212(a).
CONSIDERATION
From a factual point of view it is not in dispute that at the time the applicant submitted his application for his visa he had not submitted proof of successful completion of the English language test prescribed in cl 485.212(a) and did not meet the passport criteria in cl 485.212(b). The applicant submitted a certificate of successful completion of the English language test three days after the application was lodged.
In the Tribunal’s decision record, the Tribunal noted that Anand related to the provision of a different type of visa and was not applicable to the visa sought by the applicant.
As submitted by the first respondent, the Federal Court of Australia has held in relation to cl 485.212 and IMMI 15/062, the requirement that the application be ‘accompanied by’ evidence at the time of lodgement of the application, is inflexible and unambiguous; (see: Kumar at [23]).
Further, the relevant criterion was amended and strengthened following the judgement of Katzman J in Berengul such that there is no room for any delay between the lodgement of the application and the English language test. The test result must be lodged at the same time as the application. As noted by Mortimer J (as she was then) in Kaur at [41], the successful completion of the test must be an historical fact that exists at the time of the application.
The submission by the applicant that the application form is misleading and should not allow an application to proceed if the box in relation to successful completion of the English language test is ticked ‘No” has some merit. However, that is not a matter that proves jurisdictional error. There is considerable merit in the applicant’s submission, however that is a matter for the Department and not this Court.
While the Court has considerable sympathy for the applicant, as did the Tribunal, none of the grounds of judicial review have merit. The matter must be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 February 2025
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