Maan v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCAFC 64

FEDERAL COURT OF AUSTRALIA

Maan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 64  

Appeal from:

Maan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 956

File number:

VID 985 of 2023

Judgment of:

MURPHY, ANDERSON AND KENNETT JJ

Date of judgment:

28 May 2024

Catchwords:

MIGRATION – where appellant applied for Graduate Work visa but intended to apply for Post-Study Work visa – where application was refused because appellant does not satisfy criteria for Graduate Work visa – where both visas within same class – where facts relevantly identical to Obinwa v Minister for Immigration Citizenship and Multicultural Affairs [2024] FCAFC 63 – whether Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) permit the grant of a visa different to visa applied for but within same class – whether Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 wrongly decided

Cases cited:

Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 63

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

6

Date of hearing:

7 May 2024

Counsel for the Appellant:

The appellant appeared in person

Counsel for the First Respondent:

S Lloyd SC with R Francois

Solicitor for the First Respondent: 

Sparke Helmore Lawyers

Counsel for the Second Respondent: 

The Second Respondent submitted save as to costs

ORDERS

VID 985 of 2023

BETWEEN:

MANINDER PAL SINGH MAAN

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	MURPHY, ANDERSON AND KENNETT JJ
DATE OF ORDER:	28 MAY 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. In February 2017 the appellant applied for a Subclass 485 visa using an online form. Subclass 485 contains two “streams” and an applicant was required to nominate one or the other. The appellant (who did not have the assistance of a migration agent at the time) nominated the “Graduate Work Stream”. He listed his “nominated occupation” as “Analyst Programmer”. However, he also indicated (in answer to a question on the form) that he had not applied to a relevant assessing authority for a skills assessment. This meant that he could not satisfy the criteria for the grant of a visa in Graduate Work Stream. The visa was refused by a delegate of the first respondent (the Minister) on 6 April 2017.

2. On review in the Administrative Appeals Tribunal (the Tribunal), the appellant said that he had intended to apply for a visa in the other stream within Subclass 485—the “Post-Study Work Stream”—but had made a mistake. The Tribunal considered whether it was possible for the appellant to change streams so that it could grant him a visa in the Post-Study Work Stream if he met the criteria applicable to that stream. It concluded that it could not do so, and therefore affirmed the delegate’s decision on 8 May 2018.

3. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2) (the Circuit Court). The application was heard on 19 October 2023 and dismissed on 26 October 2023. The Circuit Court was bound to follow the decision in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 (Rangiah J) (Singh), which stood directly in the appellant’s way.

4. The short summary of the factual background set out above is sufficient to indicate that this appeal raises the same question of law as Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 63 (Obinwa). Both appeals were listed before us on 7 May 2024.

5. The appellant appeared for himself and, although he filed written submissions, was not in a position to add anything on the legal issues. He adopted the submissions made by counsel for the appellant in Obinwa as to these issues.

6. For the reasons given in Obinwa, this appeal must also be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Anderson and Kennett.

Associate:

Dated:       28 May 2024