Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs

In the case of Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs, the appellant sought judicial review of a decision by the Migration Review Tribunal to refuse his application for a Graduate Work visa. The appellant had initially applied for a Graduate Work visa but later intended to apply for a Post-Study Work visa within the same subclass. The Tribunal refused the application on the basis that the appellant did not satisfy the criteria for the Graduate Work visa. The central issue in the appeal was whether the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) permit the grant of a visa different to the one applied for but within the same subclass. Additionally, the court had to determine if the decision in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 was wrongly decided.

The court considered the argument that a valid application in the Graduate Work stream might become invalid when the applicant sought to change to the Post-Study Work stream. However, the court found that this hypothesis led to difficulties, particularly because there was no evidence that the appellant met the requirements for the Post-Study Work stream. The court also noted that the Migration Act and Regulations treat the validity of an application and the grant of a visa as separate stages. The Act requires that an applicant for a visa in a particular subclass must satisfy the criteria applicable to the nominated stream to be granted the visa. The court concluded that Singh was correctly decided, and there was no error in the Tribunal's reasoning that it was not open to grant a visa in the Post Study Work stream.

The court's reasoning was grounded in the statutory interpretation of the Migration Act and Regulations. The court held that an applicant must satisfy the criteria applicable to the specific stream nominated in their application. The Minister's power under the Act is to consider whether the criteria for the particular visa applied for are satisfied and to grant or refuse that visa. The court found that the appellant had not applied for the Post-Study Work visa, and thus the Minister had no power to grant that visa. The court acknowledged the unsatisfactory consequences for the appellant but held that the clear construction of the Regulations does not permit a strained interpretation to avoid these outcomes.

In conclusion, the court dismissed the appeal and ordered that the appellant pay the first respondent's costs as agreed or assessed. The decision reinforces the principle that applicants must meet the specific criteria for the visa stream they apply for and that the Minister cannot grant a visa different from the one applied for, even if both visas fall within the same subclass.