Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 884
•10 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884
File number: PEG 44 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 10 October 2023 Catchwords: MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) visa in the “Graduate Work stream” – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the applicant’s visa application against the alternate criteria for the grant of a Subclass 485 visa in the “Post-Study Work stream” – decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 is binding on this Court – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 29, 31, 45, 46, 47, 65, 362A & 476
Migration Legislation Amendment Regulations 2013 (No 1) (Cth)
Migration Regulations 1994 (Cth), regs 2.01, 2.02, 2.03, 2.07; Item 1229 in Schedule 1 and Parts 485, 485.21, 485.22 & cll 485.223 & 485.224 in Schedule 2
Cases cited: Commissioner of Taxation v Salenger (1988) 19 FCR 378
Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55
Jayasena v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 998
Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126
Minister for Immigration v Hollis [2004] FCAFC 176
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 22 September 2023 Place: Perth Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Visa Plan Lawyers Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 44 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER ONYEKA OBINWA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicant is a citizen of Nigeria (Court Book (“CB”) 2-4). He first arrived in Australia as the holder of a student visa and began his studies in Australia in July 2019. Relevantly, the applicant completed a Graduate Diploma in Food Sciences and Technology between July 2019 and January 2020 and a Master of Food Science and Technology between February 2020 and June 2021 (CB 52).
On 24 July 2021, the applicant applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa (the “visa”) in the “Graduate Work stream” (CB 1-13). In that visa application, the applicant identified his nominated occupation as “Food Technologist”, noting the ANZSCO occupation code as 234212 (CB 1 & 6). In response to the question of whether the applicant had “applied to a relevant assessing authority for an assessment of [his] skills for [his] nominated skilled occupation”, the applicant answered “no” (CB 6). Included with the applicant’s visa application were a number of supporting documents, including evidence of the applicant’s previous studies in Australia (CB 14-20).
On 27 April 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 29-30). The delegate noted that a mandatory requirement for the grant of the visa in the “Graduate Work stream” was evidence that an application had been lodged with a relevant skills assessment authority. Further, this evidence was required at the time of lodgement of the visa application. As the applicant had not provided any such evidence, the delegate found that the applicant did not satisfy the requirements set out in cl 482.223 in Schedule 2 of the Migration Regulations 1994 (Cth) and could not be granted the visa (CB 30).
On 18 May 2022, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 31-44). In that review application, the applicant indicated that he was represented by a lawyer (CB 38).
On 31 May 2022, the applicant’s legal representative wrote to the Tribunal providing a completed “appointment of representative” form and requesting access to written materials pursuant to s 362A of the Migration Act 1958 (Cth) (the “Act”) (CB 49-51).
On 15 September 2022, the applicant’s legal representative provided written submissions to the Tribunal (CB 52-59). Those submissions explained as follows (CB 53-54):
In completing the subject Subclass 485 visa application, the review applicant did not avail himself of legal assistance, preparing said application himself. In drafting said application, the review applicant came to the question “Select the visa for which the applicant intends to apply” to which the applicant answered “485 - Temporary Graduate Visa - Graduate Work Stream”.
…
Whilst it was known to the applicant that he was eligible for a Subclass 485 visa, it was plainly not known to him the distinction between the streams of said visa. The review applicant thus erred in specifying the “Graduate Work Stream” instead of the appropriate “Post-Study Work Stream.” It was, however, his intention to apply under the “Post-Study Work Stream” as this was both the stream for which he was eligible, as well as that which offered the greater visa duration of the two.
The applicant, having completed an Australian registered course at or above the Bachelor level, had meant to be assessed against the criteria of the “Post-Study Work Stream” contained in Clause 485.23, yet he erroneously indicated that he intended to apply for his Subclass 485 visa under the “Graduate Work Stream.”
The above constitutes a bona fide mistake on the part of the review applicant, resulting from his limited understanding with respect to Australian migration law. We further note that selection of the “Graduate-work Stream” would confer no immigration advantage to him, as its terms and duration are inferior to those of the “Post-Study Work Stream” for which he was ostensibly eligible.
On 23 January 2023, the Tribunal invited the applicant (through his legal representative) to attend a hearing before it on 27 February 2023 by video conference (CB 60-65).
On 27 February 2023, the applicant appeared at that Tribunal hearing. He did so with his legal representative (CB 72-74).
On 2 March 2023, the Tribunal affirmed the decision refusing to grant the applicant the visa (CB 78-83).
On 28 March 2023, the applicant’s legal representative filed an application for judicial review of the Tribunal’s decision in this Court. That application was supported by an affidavit (deposed by Mr Andrew Jakob Topalovic on 27 March 2023) which annexed a copy of the Tribunal’s decision in this matter.
The application for judicial review was filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
APPLICATION TO THIS COURT
The application for judicial review (filed on 28 March 2023 on behalf of the applicant in this matter) contains one particularised ground of review as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider the Applicant’s application for a visa by reference to criteria in a particular stream for the visa.
a.The Applicant applied for a subclass 485 visa (visa) on 24 July 2021 and in his application referred to the Graduate Work Stream;
b.The Applicant requested that the Tribunal instead consider his application for the visa by reference to the Post Study Work Stream;
c.The Tribunal held that it had no power to consider the application under the Post Study Work Stream;
d.The Tribunal applied for this purpose the reasons for judgment of Rangiah J in Singh v Minister for Immigration [2020] FCA 774; 170 ALD 453 (Singh); and
e.Singh was wrongly decided and the Tribunal was empowered to and should have considered the Applicant’s application under the Post Study Work Stream.
The matter proceeded to a final hearing on 22 September 2023. The applicant was represented by Mr Oliver Jones (“Mr Jones”) of counsel who appeared by telephone at that hearing. The Minister was represented by Ms Georgina Ellis (“Ms Ellis”) from Sparke Helmore. The Court thanks Mr Jones and Ms Ellis for their considerable assistance with this matter.
The materials before the Court include the application and supporting affidavit filed on behalf of the applicant on 28 March 2023, a Court Book numbering 85 pages (marked as Exhibit 1), written submissions filed on behalf of the applicant on 15 August 2023 and written submissions filed on behalf of the Minister on 11 September 2023.
CONSIDERATION
Legislative provisions
It is useful to set out some of the legislative provisions relevant to this matter. It is noted that the relevant provisions set out below are those that were in effect as at the date of the applicant’s visa application (being 24 July 2021).
Section 29 of the Act explains that the Minister may grant a non-citizen permission to either travel to and enter Australia or to remain in Australia by way of the grant of a visa: s 29(1) of the Act.
Section 31 of the Act details that there are “prescribed classes of visas” and that the Regulations may “prescribe criteria for a visa or visas of a specified class”. It is further noted that a “visa is a visa of a particular class if [the] Act or the Regulations specify that it is a visa of that class”: s 31(5) of the Act.
Section 45 of the Act explains that a non-citizen must apply for a “visa of a particular class” (s 45(1) of the Act) and s 46 of the Act explains the criteria that must be satisfied for a non-citizen to make a valid visa application. In particular, s 46 specifies that a visa application is only valid if “it is for a visa of a class specified in the application” and if it “satisfies the criteria and requirements prescribed” under s 46 of the Act: ss 46(1)(a) and 46(1)(b) of the Act.
Section 46 of the Act also provides:
46 Valid visa application
…
Prescribed criteria for validity
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
(c)where an application for a visa of a specified class must be made; and
(d)where an applicant must be when an application for a visa of a specified class is made.
When a valid application for a visa is made, the Minister must consider that application. Further, the Minister is not able to consider an application that is not a valid application: ss 47(1) and 47(3) of the Act.
Regulation 2.07 of the Regulations further clarifies what is required in order to apply for a visa of a specific class and relevantly provides:
2.07 Application for visa—general
(1)For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a)the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i)the visa application charge (if any) payable in relation to an application; and
(ii)the components that may be applicable to a particular application for the visa; and
(c)the relevant item of Schedule 1 sets out other matters relating to the application.
Note:An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
(5)If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a)an approved form for making an application for a visa of a specified class;
(b)the way in which an application for a visa of a specified class must be made;
(c)the place at which an application for a visa of a specified class must be made;
(d) any other matter.
Note 1:For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2:Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.
…
Regulation 2.01 of the Regulations also outlines what are “prescribed classes of visas” and relevantly provides:
2.01 Classes of visas
Classes of visas prescribed by section 31 of the Act
(1)For the purposes of section 31 of the Act, the prescribed classes of visas are:
(a)such classes (other than those identified by an item in the table in subregulation (2)) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary)
…
Regulation 2.02 of the Regulations explains that Schedule 2 of the Regulations is divided into “Parts” which are identified by the word “Subclass” and include a three-digit number which correlates to the subclass of visa to which it relates. Further, where a particular Part of Schedule 2 of the Regulations is referenced in Schedule 1 of the Regulations for a particular class of visa (and is listed under the subitem “Subclasses”), that Part is relevant.
Regulation 2.03 of the Regulations provides further clarity in relation to criteria relevant to particular classes of visas (including in circumstances where the Regulations identify different visa “streams”). Regulation 2.03 of the regulations relevantly provides:
2.03 Criteria applicable to classes of visas
(1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
(1A)However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’:
(a)the primary criteria mentioned in paragraph (1)(a) are taken to be:
(i) the primary criteria described as that stream; and
(ii)all primary criteria that are not described as a stream; and
(b)the secondary criteria mentioned in paragraph (1)(b) are taken to be:
(i) the secondary criteria described as that stream; and
(ii)all secondary criteria that are not described as a stream.
Example:Part 188 of Schedule 2 sets out the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The Part includes a Subdivision setting out common primary criteria and several Subdivisions setting out primary criteria that are described as streams, including a Business Innovation stream. The primary criteria mentioned in paragraph (1)(a) are taken to be the Business Innovation stream and all primary criteria that are not described as a stream.
(1B)If one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a ‘stream’, the visa to which the Part relates may be described as ‘[the Subclass of the visa] in the [name of the stream]’.
Example:A visa whose criteria are set out in Part 188 of Schedule 2, and include criteria in the Business Innovation stream, may be described as a Subclass 188 visa in the Business Innovation stream.
The Subclass of visa relevant to the matter before this Court is a Subclass 485 visa (noting that the applicant here applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa). The eligibility criteria for the grant of a Subclass 485 visa are set out in Part 485 in Schedule 2 of the Regulations.
Part 482.2 in Schedule 2 of the Regulations sets out the primary criteria for the grant of a Subclass 485 visa. It is explained that the primary criteria for the grant of a Subclass 485 visa “include criteria set out in streams”. It is also explained that if a Subclass 485 visa is applied for in the “Graduate Work stream”, then the criteria in Parts 485.21 and 485.22 in Schedule 2 of the Regulations are considered primary criteria. However, if an applicant applies for a Subclass 485 visa in the “Post-Study Work stream”, the primary criteria is set out in Parts 485.21 and 485.23 in Schedule 2 of the Regulations.
Each of the Parts referenced above (being Parts 485.21, 485.22 and 485.23) include a heading and a notation as set out below:
485.21—Common criteria
Note:These criteria are for all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.
…
485.22—Criteria for Graduate Work stream
Note:These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.
…
485.22—Criteria for Graduate Work stream
Note:These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.
…
Schedule 1 of the Regulations sets out what is required to make a valid visa application for each of the visa classes. Item 1229 in Schedule 1 of the Regulations provides the validity criteria for the grant of a Skilled (Provisional) (Class VC) visa.
Of particular relevance in this matter is Item 1229(3)(j) in Schedule 1 of the Regulations, which relevantly provides as follows:
(j)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 applicant in this matter applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa on 24 July 2021 (CB 1-13). In that visa application, he selected the “Graduate Work stream” and listed his nominated occupation as “Food Technologist”, referencing ANZSCO occupation code 234212 (CB 1 & 6). He also answered “no” to the question of whether he had “applied to a relevant assessing authority for an assessment of [his] skills” (CB 6).
The Tribunal’s approach
The core contention by the applicant in this matter is that the Tribunal erred by failing to consider the applicant’s visa application against the alternate criteria for the grant of a Subclass 485 visa in the “Post-Study Work stream”.
Given the confined issue in this matter, the Court will only set out the Tribunal’s key findings as they relate to that core contention.
The Tribunal identified that the applicant was seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the “Graduate Work stream” and that the criteria included cll 485.223 and 485.224 in Schedule 2 of the Regulations (which related to the assessment of the applicant’s skills in his nominated skilled occupation) (at [8]).
The Tribunal explained that an applicant for a Skilled (Provisional) (Class VC) visa must choose one of two streams: a “Graduate Work stream” or a “Post-Study Work stream”. The Tribunal recognised that it was required to make a factual finding about which application had been made. While accepting the applicant’s claim that he did not understand the requirements for the two visa streams or that he was applying for the incorrect stream, the Tribunal was not satisfied that the applicant had applied for a visa under the “Post-Study Work stream” (at [9]-[12]).
The Tribunal then considered whether it was possible to change from the nominated “Graduate Work stream” to the “Post-Study Work stream”.
The Tribunal acknowledged written submissions received in this regard, which stressed that the applicant had erred in specifying the “Graduate Work stream” (instead of the appropriate “Post-Study Work stream”) and, further, that he had intended to apply under the “Post-Study Work stream” (at [13]).
The Tribunal considered the Regulations, relevant Departmental policy documents and relevant authorities but ultimately determined that “an applicant cannot change the stream they have applied in once their application has been made” (at [14]-[19]).
The Tribunal then queried whether it had the power to assess if the applicant satisfied the criteria for the grant of the visa in the “Post-Study Work stream”. Relying on a recent decision of Justice Rangiah in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 (“Singh”), the Tribunal determined that it did not have that power (at [21]-[24]).
The Tribunal noted that consent remittals had been endorsed by the Court in two similar matters and that, in each matter, the Tribunal was found to have committed jurisdictional error in finding that its power was confined to considering a Subclass 485 visa only against the stream nominated in the visa application. However, it was stressed by the Tribunal that both matters were remitted by consent prior to the decision in Singh – which, the Tribunal determined, it was now bound to follow (at [25]-[26]).
The Tribunal then considered whether the applicant had applied for a relevant skills assessment (noting that cl 485.223 in Schedule 2 of the Regulations requires evidence of this be provided when making a visa application in the “Graduate Work stream”) (at [27]).
The Tribunal noted that the applicant had nominated the occupation of “Food Technologist” in his visa application and that he had answered “no” to the question of whether he had applied for an assessment of his skills in that nominated skilled occupation (at [29]-[30]).
As the visa application was not accompanied by evidence of a relevant skills assessment (or an application for the same), the Tribunal was not satisfied that the applicant met the requirements of cl 485.223(1) in Schedule 2 of the Regulations and, on that basis, could not be granted the visa (at [31])-[32]).
The Tribunal ultimately affirmed the decision refusing to grant the applicant the visa (at [33]).
Parties’ submissions
Applicant’s written submissions
The written submissions filed on behalf of the applicant (on 15 August 2023) relevantly provide as follows (at [10]-[16]):
(a)the Tribunal correctly described the decision in Singh. Rangiah J noted that an application for a 485 visa, in order to be valid, had to nominate a particular stream (at [63]). His Honour then reasoned that s 65 of the Act, in providing that the Minister after considering a valid application for visa may proceed to a grant if the criteria for “it” are satisfied, meant the criteria for the visa the subject of the application. This further meant, in the case of the 485 visa, the criteria in the stream nominated in the application (at [65]);
(b)Justice Rangiah concluded (at [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.
(c)the Tribunal was also correct to observe that it was bound by Singh (CB 82 [26]; see also eg Commissioner of Taxation v Salenger (1988) 19 FCR 378, 388 per French J);
(d)the point may be taken one step further. This Court is likewise bound by Singh. So much was accepted by Judge Lucev, facing circumstances comparable to Singh and the present case, in Jayasena v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 998 (“Jayasena”) (at [16]). Jayasena was noteworthy in another respect. Judge Lucev identified (at [17]) support for Singh in the Explanatory Memorandum (the “Memorandum”) to the amending Regulations which inserted item 1229(3)(j) into Schedule 1 of the Regulations, the Migration Legislation Amendment Regulations 2013 (No 1) (Cth);
(e)the Memorandum said the following:
The purpose of this amendment is to ensure that applicants are assessed against the criteria specific to the stream they have selected and not against the criteria for the alternate stream.
(f)of course, a Memorandum is not conclusive and “cannot displace the statutory text” (Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55 at [39] per the Court); and
(g)be that as it may, the binding force of Singh, recognised in Jayasena, cannot be overborne in this Honourable Court. The applicant will have to pursue the correctness of Singh in another forum. This leaves the question of a formal submission. A formal submission of incorrectness is well established as a device whereby a party may before a lower court preserve its rights in a higher court with respect to a binding authority (see, for example, Minister for Immigration v Hollis [2004] FCAFC 176 at [17] per Carr, North and Selway JJ). Accordingly, the applicant formally submits that Singh was wrongly decided.
Minister’s written submissions
The written submissions filed on behalf of the Minister (on 11 September 2023) relevantly provide as follows (at [21]-[22]):
(a)on 15 August 2023, the applicant filed a written outline of submissions. In summary, the applicant accepts that this Court is bound by Singh (as correctly recognised by Judge Lucev in the case of Jayasena). However, the applicant submits that Singh was wrongly decided in order to “preserve [his] rights in a higher court with respect to a binding authority” (see the applicant’s submissions at [16]); and
(b)the Minister agrees that this Court is bound by Singh, which the Minister submits was correctly decided. The inevitable consequence is that the application to this Court must be dismissed.
Applicant’s oral submissions
In oral submission before this Court, Mr Jones for the applicant contended as follows:
(a)Singh stands for the proposition that, where an applicant identifies the “Graduate Work stream” for the Subclass 485 visa, he or she cannot then be assessed against the alternative criteria for the “Post-Study Work stream”. In effect, Singh holds that the power of the Minister (and, in turn, the Tribunal) to find the criteria satisfied under s 65 of the Act is restricted to the “stream” nominated in the application for the visa. It all comes down to the meaning of a single word in s 65 of the Act, being the word “it”, and whether “it” refers to the visa or the visa to the extent that it is sought in the application for the visa;
(b)Justice Rangiah in Singh (in a jurisdiction binding on this Court) found against the applicant and that conclusion must stand until Singh is overruled by a higher court;
(c)this Court is only required to observe a case for jurisdictional error with the formal submission that Singh is wrongly decided but be bound by the doctrine of precedent to find the absence of jurisdictional error and dismiss the application with costs; and
(d)there is a further decision made by Judge Lucev in this Court in the matter of Jayasena. That decision is not binding as a matter of precedent but should be followed unless plainly wrong and that decision of Jayasena has correctly identified the binding force of Singh and the same approach should ensue on this occasion.
Minister’s oral submissions
In oral submissions before this Court, Ms Ellis for the Minister stressed that the Minister’s core submission is that this Court is bound by Justice Rangiah’s decision in Singh. Ms Ellis referenced the judgment made by Judge Lucev in Jayasena. In Jayasena, Judge Lucev found that, not only is this Court bound by Singh, but the rationale in Singh was correct.
Relevant authorities – Singh
As set out above, the core issue in this matter is whether the Tribunal erred by failing to consider the applicant’s visa application against the alternate criteria for the grant of a Subclass 485 visa in the “Post-Study Work stream”.
Justice Rangiah considered this issue in relevantly similar circumstances in Singh and determined as follows:
63.Clause 1229(3)(j) of Sch 1 of the Regulations required that an application for a Skilled (Provisional) (Class VC) visa must, “nominate only one stream to which the application relates”. The appellant complied with the form by nominating one stream, the Graduate Work stream.
64.Section 45(1) of the Act requires a non-citizen who wants a visa to apply for a visa of a particular class. Under s 46(1), an application for a visa is valid only if it is for a visa of a class specified in the application. While an application must specify a visa of a particular class in order to be a valid application, compliance with that requirement does not mean that any visa within that class may be granted. The grant of a visa is subject to other provisions of the Act and Regulations, including s 65 of the Act.
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.
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:
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…
Is Singh binding on this Court?
Singh is a decision Justice Rangiah of the Federal Court of Australia (the “FCA”). The FCA is a Court of higher jurisdiction. As such, Justice Rangiah’s decision is binding.
In this regard, the Court notes the comments in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 (by Black CJ, Moore and Allsop JJ), as follows:
42In coming to that conclusion, the Federal Magistrate did not accept the conclusion of the single Judge in SZECD 150 FCR 53 that Li was inconsistent with Yilmaz and should not be followed. For the reasons we have given, we have come to the same conclusion. We should observe, however, that the principles of precedent required that the Federal Magistrate follow the decision in SZECD, being a decision of this Court in the appellate jurisdiction from the Federal Magistrates Court. We do not think that it was open to her Honour to regard what was said in SZECD as obiter. In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
See also the valuable guidance in this respect in the judgment of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, in particular at 177-180.
43Before turning to the question of the exercise of discretion to withhold relief, it is also appropriate to say something about the approach taken by the single Judge in SZECD. The conclusion that a Full Court decision should not be followed should be one left to another Full Court, even if the judge is exercising the appellate jurisdiction of the Court. The Court in Li said that Yilmaz was distinguishable. That should have been sufficient for a single Judge, if the appeal were not to be referred to a Full Court for hearing.
Lord Simon’s observations (set out above) were more recently adopted in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126.
The doctrine of precedent requires that this Court follow the rationale in Singh.
The applicant’s ground of review
As out lined above, the applicant’s ground of review provides as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider the Applicant’s application for a visa by reference to criteria in a particular stream for the visa.
a.The Applicant applied for a subclass 485 visa (visa) on 24 July 2021 and in his application referred to the Graduate Work Stream;
b.The Applicant requested that the Tribunal instead consider his application for the visa by reference to the Post Study Work Stream;
c.The Tribunal held that it had no power to consider the application under the Post Study Work Stream;
d.The Tribunal applied for this purpose the reasons for judgment of Rangiah J in Singh v Minister for Immigration [2020] FCA 774; 170 ALD 453 (Singh); and
e.Singh was wrongly decided and the Tribunal was empowered to and should have considered the Applicant’s application under the Post Study Work Stream.
For the reasons set out above, the decision in Singh is binding on this Court and was binding on the Tribunal.
As outlined above, the Minister’s power is limited to considering whether the criteria for the grant of a particular visa (that was the subject of a valid application) are satisfied. The Minister must then either grant or refuse to grant that visa: Singh at [67].
The applicant in this matter applied for a Subclass 485 visa in the “Graduate Work stream”. He did not apply for a Subclass 485 visa in the “Post-Work Study stream”. The Minister has no power to grant a visa that was not applied for: Singh at [67].
The Tribunal is in no better position than the Minister in relation to a decision under review. On that basis, the Tribunal in this matter only had authority to review the decision made by the Minister and was not able to consider a visa other than that which was validly made to and determined by the Minister Singh at [68]. In the circumstances of this matter, that visa application was made in relation to a Subclass 485 visa in the “Graduate Work stream”. Hence, the Tribunal was only able to review the application for that visa.
Here, as was the case in Singh, the Minister could not have granted a visa to the applicant in the “Post-Work Study stream” (because no valid application for such a visa was ever made by the applicant). The Tribunal had no greater power on review and was required to affirm the Minister’s decision because the applicant did not satisfy cl 485.223 in Schedule 2 of the Regulations.
Singh is binding precedent. As such, no jurisdictional error arises in this matter.
CONCLUSION
The application for judicial review does not identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2023
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