Maan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 956
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 956
File number: MLG 1576 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 26 October 2023 Catchwords: MIGRATION – application for judicial review of Tribunal decision – Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) visa – where applicant mistakenly applied for visa in graduate work stream rather than post-study work stream – whether Tribunal erred by assessing application against criteria for graduate work stream visa and not post-study work stream visa – whether Tribunal denied applied procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 48, 359AA, 359A, 360, 360A, 379A, 476
Migration Regulations 1994 (Cth) reg 4.21, Sch 2 cl 485.223
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 453; [2020] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 19 October 2023 Place: Perth (via Microsoft Teams) Applicant: The Applicant appeared in person Counsel for the Respondents: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1576 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANINDER PAL SINGH MAAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant applied for a Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) visa. This type of visa has two streams: a graduate work stream and a post-study work stream. The applicant applied for a visa in the graduate work stream (graduate work stream visa), although he intended to apply for a visa in the post-study work stream (post-study work stream visa).
A delegate of the Minister decided not to grant the applicant a graduate work stream visa and the Administrative Appeals Tribunal (Tribunal) affirmed that decision.
By this application, which is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of the Tribunal decision.
The grounds relied on by the applicant raise the following three issues:
(a)Did the Tribunal err by assessing the applicant’s application against the criteria for a graduate work stream visa?
(b)Did the Tribunal err by failing to assess the applicant’s application against the criteria for a post-study work stream visa?
(c)Did the Tribunal deny the applicant procedural fairness?
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error and his application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
Visa application and delegate’s decision
On 14 February 2017 the applicant applied for the graduate work stream visa. He indicated in his application form that he had not applied to a relevant assessing authority for an assessment of his skills for his nominated skilled occupation (skills assessment).
On 6 April 2017 a delegate of the Minister refused to grant the applicant a graduate work stream visa. The delegate found that because the applicant had not applied for a skills assessment, he did not meet cl 485.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause requires that:
(1)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.
Tribunal review and decision
On 10 April 2017 the applicant made an application for merits review by the Tribunal. The applicant was assisted by a migration agent when his matter was before the Tribunal.
The applicant’s migration agent provided a submission to the Tribunal on 8 April 2018. The applicant submitted:
(a)Upon the completion of a Masters in Information Technology (Enterprise Systems) in November 2016, the applicant was eligible to apply for a post-study work stream visa.
(b)The applicant made the graduate work stream visa application without professional assistance and mistakenly applied for the graduate work stream visa instead of a post-study work stream visa.
(c)A skills assessment is not required for the post-study work stream visa, but applicants for a graduate work stream visa are required to have applied for a skills assessment from the relevant assessing authority when they applied for the visa.
(d)In selecting the wrong stream when completing the visa application, the applicant has been deprived of being granted a post-study work stream visa and is subject to s 48 of the Migration Act and is prevented from making any further visa application under student or skilled visa regimes.
The applicant attended a hearing convened by the Tribunal on 9 April 2018, at which he gave evidence and presented arguments.
On 8 May 2018 the Tribunal affirmed the delegate’s decision.
In its decision, the Tribunal noted that cl 485.223 required that, when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.
The Tribunal identified that, on the evidence before it, the applicant nominated the occupation of Analyst Programmer ANZCO 261311 and the relevant assessing authority for that occupation is Australian Computer Society. The Tribunal acknowledged that the applicant indicated in his application form that he had not applied for a skills assessment.
The Tribunal acknowledged the applicant’s oral evidence at the hearing that, when he lodged the visa application, he did not use the services of a migration agent and selected the wrong stream for the graduate work stream rather than the post-study work stream.
The Tribunal found that as the visa application, when made, was not accompanied by evidence of an application for a skills assessment by a relevant assessing authority, the applicant did not satisfy the requirements of cl 485.223.
JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Tribunal’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if the applicant establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81]:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Grounds raised by the applicant and the Court’s interpretation of those grounds
The applicant’s judicial review application was filed on 30 May 2018 and contains the following five grounds:
1)The tribunal has refused the visa on the 8 May 2018.
2)The tribunal mentions that as the visa application, when made, was not accompanied by evidence of an application fora skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.
3)This is a jurisdictional error as applicants applying under the post study work visa stream for the 485 visa do not require a skills assessment at the time of the 485 application or even at the time of the decision.
4)The tribunal has not given me a fair hearing and made a jurisdictional error while making a judgement on my application as they have assessed my application under the graduate stream whereas it should have been assessed under the post study work visa stream.
5)I would request the respected registrar to remit the decision to the AAT for a fair hearing for this matter to be heard.
Some of these grounds do not assert jurisdictional error in the Tribunal decision and some of the grounds raise issues that overlap. I set out my understanding of the grounds here and then address the assertions of jurisdictional error thematically below.
Ground 1 simply recounts an aspect of the procedural history of the matter by stating the date on which the Tribunal made its decision. It does not assert any error in the Tribunal decision and cannot establish jurisdictional error.
Ground 2 when read in isolation simply refers to a finding made by the Tribunal and does not, on its own, assert any jurisdictional error.
However, when the application is read as a whole, it is apparent that the finding of the Tribunal identified in ground 2 is the finding that the applicant claims is affected by jurisdictional error in grounds 3 and 4. I therefore read grounds 2, 3 and 4 together and I treat these grounds as an assertion that the Tribunal applied the wrong legal test by:
(a)assessing his application against the criteria for a graduate work stream visa and affirming the delegate’s decision on the basis that he did not satisfy cl 485.223, which is not a requirement of post-study work stream visa; and
(b)failing to assess his application against the criteria for a post-study work stream visa.
Ground 4 also contains an assertion that the Tribunal denied the applicant procedural fairness.
By ground 5, the applicant requests that the matter be remitted to the Tribunal for a fair hearing. It identifies the relief that the applicant seeks but does not assert any error in the Tribunal decision and therefore cannot establish jurisdictional error.
Did the Tribunal make a jurisdictional error by assessing whether the applicant met the criteria for a graduate work stream visa?
Whatever the applicant’s intentions may have been, the visa he in fact applied for was a graduate work stream visa. This can be seen clearly from the face of the visa application, and his visa application was assessed by the delegate as a graduate work stream visa. It is also clear from the applicant’s submissions to the Tribunal that the applicant himself accepted that he in fact applied for a graduate work stream visa. To the extent that the applicant’s submissions made to this Court might be seen as asserting that the Tribunal was wrong to identify his actual visa application as an application for a graduate work stream visa, I reject the submission.
The Tribunal correctly identified in its reasons that the applicant applied for a graduate work stream visa and the Tribunal was correct to assess the application against the criteria for that visa, including cl 485.223. Given that the applicant did not have evidence that he had applied for a skills assessment prior to making the visa application, the Tribunal was correct to find that he did not satisfy cl 485.223 in Schedule 2 to the Regulations. There is no jurisdictional error in the Tribunal assessing the applicant’s application against the criteria for a graduate work stream visa and finding that he did not satisfy the requirement in cl 485.223.
Did the Tribunal make a jurisdictional error by failing to assess whether the applicant met the criteria for a post-study work stream visa?
The applicant submitted that he told the Tribunal that he made a mistake in his application and the Tribunal should have allowed him to rectify the mistake. He further submitted that the Tribunal erred by treating his visa application as a graduate work stream visa application rather than a post-study work stream visa application. I do not accept either of these submissions.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 170 ALD 453; [2020] FCA 774 (Singh), the appellant, like the applicant in the present case, intended to apply for a post-study work stream visa but erroneously applied for a graduate work stream visa. The Federal Court (Rangiah J) found that the Tribunal did not have the power to grant the appellant a post-study work stream visa. In reaching this conclusion, his Honour said at [65] and [67]-[69]:
65. Under s 65(1) of the Act, “after considering a valid application for a visa, the Minister…if satisfied that…the other criteria for it prescribed by this Act or the regulations have been satisfied…is to grant the visa; or…if not so satisfied, is to refuse to grant the visa” (underlining added). In my opinion, the word “it” refers to the visa that has been applied for under the valid application. In other words, the Minister must first be satisfied that the criteria prescribed under the Act and Regulations for the making of a valid application are satisfied; and must then be satisfied that the criteria prescribed under the Act and Regulations for the particular visa that is the subject of the valid application are satisfied.
…
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 [Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120] at [22], and endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A” [(1999) 91 FCR 435], as follows:
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.
(Citations omitted.)
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.
Justice Rangiah’s decision in Singh is binding on me: see also Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884 at [50].
I therefore find that the Tribunal did not make any jurisdictional error in failing to assess the applicant’s visa application against the criteria for a post-study work stream visa. It did not have any power to do so. Nor did it have any power to allow him to amend his visa application so that he could, in effect, apply for a different visa for the purposes of the review before the Tribunal.
Did the Tribunal deny the applicant procedural fairness?
The applicant has not explained the basis on which he asserts that the Tribunal denied him procedural fairness, other than to assert that he was not given a fair hearing.
I am satisfied that the Tribunal complied with its procedural fairness obligations in the Migration Act and afforded the applicant a fair hearing.
The Tribunal invited the applicant to attend a hearing before it, as it was required to do by s 360 of the Migration Act. I have reviewed the hearing invitation and I am satisfied that the hearing invitation complies with the requirements of s 360A of the Migration Act, including that it set out the day, time and place of the hearing contained a statement about what may happen if the applicant failed to appear at a hearing. The invitation was given to the applicant by email sent to his migration agent, which is a manner permitted by s 360A and s 379A of the Migration Act and he was given more than 14 days’ notice of the hearing, as required by s 360A(4) and reg 4.21(4) of the Regulations.
The applicant attended the hearing with his migration agent and was assisted by an interpreter. The applicant was aware of the dispositive issue before the Tribunal, as it was the same as the dispositive issue in the delegate’s decision, a copy of which the applicant provided to the Tribunal. There was no information that the Tribunal was required to invite the applicant to comment on pursuant to ss 359A and 359AA of the Migration Act. In short, there is no evidence before the Court that would suggest that the hearing was not conducted in a fair manner.
The applicant has not established that the Tribunal denied him procedural fairness.
Applicant’s request to be allowed to make a new visa application
In his oral submissions, the applicant asked me to allow him to make a new application for a visa. I cannot do this. As I explained to the applicant at the hearing, the Court’s role is limited to considering whether there is jurisdictional error in the Tribunal decision. The Court does not have any jurisdiction to allow the applicant to make further visa applications.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. His application to this Court is therefore dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 October 2023
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