Federal Court of Australia

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

ORDERS

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    The issue in this appeal concerns the structure of the criteria for validity of a visa application and for granting the visa applied for under the Migration Regulations 1994 (Cth) (the Regulations).

2    In July 2021 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”. 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 27 April 2022.

3    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.

4    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 dismissed. 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. In this Court the appellant argues that Singh was wrongly decided.

5    The issue on which Singh turned, and this case turns, is whether it is possible for a visa to be granted to an applicant on the basis that they satisfy the criteria for the Post-Study Work Stream if their visa application nominated the Graduate Work Stream.

Relevant legislation

6    The Regulations are made under the Migration Act 1958 (Cth) (the Act).

The Act

7    Section 45(1) of the Act provides that a non-citizen who wants a visa “must apply for a visa of a particular class”.

8    Section 46 of the Act governs whether a visa application is “valid”. Section 46(1) provides:

(1)     Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a)     it is for a visa of a class specified in the application; and

(b)     it satisfies the criteria and requirements prescribed under this section; and

(ba)     subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c)     any fees payable in respect of it under the regulations have been paid; and

(d)     it is not prevented by any provision of this Act, or of any other law of the Commonwealth …; and

(e)     it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including ...

9    Section 46(3) provides for the regulations to prescribe criteria for the validity of a visa application. Under s 46(4), those regulations may prescribe (among other things) “circumstances that must exist for an application for a visa of a specified class to be a valid application” and “how an application for a visa of a specified class must be made” (paras (a)-(b)).

10    The concept of a “class” of visa, which runs through the provisions summarised above, is introduced by s 31. Section 31(1) provides that “[there] are to be prescribed classes of visas”. Section 31(2) provides that, as well as “the prescribed classes”, there are certain classes of visa provided for in provisions of the Act. Examples are permanent and temporary protection visas and safe haven enterprise visas, all of which are provided for by s 35A. Section 31(3) and (5) then provide (relevantly):

(3)     The regulations may prescribe criteria for a visa or visas of a specified class ...

(5)     A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.

11    If a visa application is valid (ie, if it satisfies the requirements in s 46 and the regulations made thereunder), the Minister must consider it (s 47(1)). If the application is not valid, the Minister is not to consider it (s 47(3)).

12    Having considered a valid visa application, the Minister must deal with it in accordance with s 65(1). It provides as (relevantly) follows.

(1)     Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)     if satisfied that:

(i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented …; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

The Regulations

13    Regulation 2.01 identifies the classes of visa that exist for the purposes of s 31. Regulation 2.01(1) provides:

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).

14    Regulation 2.02 introduces the concept of subclasses. It provides as follows.

2.02 Subclasses

(1)     Schedule 2 is divided into Parts, each identified by the word “Subclass” followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.

(2)     For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1 that refers to that class of visa.

15    Regulation 2.03(1) identifies the “criteria” applicable to “classes” of visa, as follows.

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.

16    Regulation 2.03(1) is qualified by reg 2.03(1A), which introduces the concept of “streams”. It provides:

(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.

17    In the present case, “secondary criteria” may be put to one side. Secondary criteria are relevant to an application by a family member of a person who satisfies the primary criteria for a visa. The appellant applied on the basis that he met the primary criteria.

18    The visa application in the present case was directed to Subclass 485, which is the only subclass relevant to the class entitled “Skilled (Professional) (Class VC)” (Class VC): see cl 1229(10) of Schedule 1 to the Regulations. The requirements for a valid application for a visa in Class VC are set out in the other subclauses of cl 1229. Relevantly here, cl 1229(3) includes the following provisions.

(3)     Other:

    …

(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.

(k)     An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph.

…

(l)     An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream:

(i)     must hold a Student Temporary (Class TU) visa that:

(A)     was granted on the basis of an application made on or after 5 November 2011; and

(B)     is the first Student Temporary (Class TU) visa that the applicant has held; or

(ii)     must have held a Student Temporary (Class TU) visa that:

(A)     was granted on the basis of an application made on or after 5 November 2011; and

(B)     was the first Student Temporary (Class TU) visa that the applicant had held.

19    Subclass 485, in Schedule 2 to the Regulations, contains the following “Note” under the heading “485.2—Primary criteria”.

The primary criteria for the grant of a Subclass 485 visa include criteria set out in streams.

If an applicant applies for a Subclass 485 visa in the Graduate Work stream, the criteria in Subdivisions 485.21 and 485.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 485 visa in the Post-Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria.

…

20    Clause 485.21 is headed “Common criteria” and need not be canvassed here.

21    Clause 485.22 is headed “Criteria for Graduate Work stream”. Under that heading is a Note that reads as follows.

These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.

22    The criterion that the appellant was found not to have met is contained within cl 485.22 and is as follows.

485.223

(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.

(2)     Subclause (1) does not apply if the application is made in the period mentioned in paragraph 1229(3)(ka) of Schedule 1.

23    The following clause, cl 485.23, is headed “Criteria for Post-Study Work stream”. Under that heading is a Note that reads as follows:

These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.

24    It is not necessary for present purposes to discuss the criteria in cl 485.23.

The reasoning in Singh

25    Singh concerned the same provisions and arose in very similar factual circumstances. The appellant in Singh was unrepresented and had not appeared at the Tribunal hearing (which was conducted by telephone). The Tribunal affirmed the decision under review, noting that the appellant had not met the criterion in cl 485.223. It refused an application to reinstate the review application.

26    In the Circuit Court, the appellant gave evidence that he had provided his new telephone number to the Tribunal prior to the hearing and his non-appearance was therefore the result of Tribunal staff calling him on the wrong number. The primary judge accepted this, and apparently would therefore have held that the Tribunal had fallen into jurisdictional error if persuaded that the error was material. However, on the understanding that the appellant had applied in the Graduate Work stream (and there being no claim that he had intended to apply in the Post-Study Work stream), he was unable to satisfy cl 485.223 and therefore could not have succeeded in the Tribunal.

27    On appeal before Rangiah J, the appellant submitted that the Tribunal had failed to consider whether he could be granted a visa in the Post-Study Work stream. The Minister submitted that it was not open to the Tribunal to grant a visa on that basis and that the primary judge was therefore correct. The Minister relied on Huynh v Minister for Immigration and Citizenship [2012] FMCA 864; 269 FLR 92 (Huynh), where Cameron FM said at [18]:

The Act does not define what a visa class is. Visa subclasses are a creation of the Regulations. Because the Act does not limit the meaning of visa “class” by defining it, that word comprehends every variety of visa “class”, “subclass” or other category or classification which could be applied to a visa or group of visas. The Act is not prescriptive in this respect and each category meets the definition of “class of visa”.

28    Building on this statement, the Minister submitted that a “stream” was a “class” of visa for the purposes of s 46 of the Act and that, therefore, there was no ability under s 65(1) of the Act to consider the grant of a visa other than one in the “stream” applied for.

29    Rangiah J doubted the correctness of the statement in Huynh. Without deciding the point, he said (at [52]):

Section 31(1) states that, “There are to be prescribed classes of visas”. Section 31(5) states 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”. Regulation 2.01(1)(a) provides that, for the purposes of s 31 of the Act, the prescribed classes of visa are those set out in Sch 1 of the Regulations. The Act provides for “classes”, and the Regulations prescribe “classes”, but also divide the “classes” into “subclasses”, and, in some cases, divide subclasses into “streams”. On the face of it, only the visas nominated in Sch 1 appear to be a “class” for the purposes of ss 31(1) and 46(1) of the Act; and it appears that a “subclass” or a “stream” is part of a “class” but is not itself a “class”.

30    The Minister also relied on Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217; 90 FCR 120 (Hayman) at [15]-[19], where Finkelstein J held that a visa of a class other than that applied for could not be granted. Rangiah J, however, considered Hayman to be of limited relevance on the basis that it had considered the availability of visas in different classes, whereas in Singh there was a “real question” whether visas in the two “streams” in question were in the same class or different classes: at [59]. His Honour proceeded on the assumption that the two streams were within the same class (at [60]).

31    The core of his Honour’s reasoning is at [63]-[67]:

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.

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.

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.

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.

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.

Consideration

The task under s 65(1)(a)

32    The Act by its own force creates twelve “classes” of visa, which are listed in s 31(2), as well as stipulating in s 31(1) that there are to be “prescribed classes”. Each of the provisions referred to in s 31(2) begins with the words “there is a class of … visas”. The Act does not contemplate subclasses of visa, let alone multiple categories within subclasses. A “class” of visa, meanwhile, informs the content of requirements in ss 45 and 46. This suggests that the concept is one that is given stability of meaning by the Act rather than simply relying on the ordinary meaning of the word “class”. The preferable understanding of s 31 is therefore that a “class” of visas means one of the classes created by the Act, or a category of visa established and designated by the Regulations as a “class”. Regulation 2.01 accords with this understanding. We would therefore go further than Rangiah J and respectfully disagree with the statement in Huynh at [18]. What must be identified in a visa application, for the application to comply with s 46(1)(a), is a “class” of visa—ie, one of the classes created by the Act or prescribed by reg 2.01 and Schedule 1—which is being applied for.

33    The two “streams” of visa in Subclass 485 are thus visas within the same “class”. Accordingly, while we see no reason to doubt the correctness of the reasoning in Hayman, it does not assist in resolving the issue in this appeal.

34    It was submitted for the Minister that the “criteria for it” in s 65(1)(a)(i) and (ii) could be understood to refer to the criteria applicable to the valid visa application that is under consideration. However, grammatically, the thing referred to as “it” in these paragraphs is the “visa”. That is apparent from the words “for it” and the reference to “the visa” in sub-para (iii) (as well as the contrasting reference to the “visa application charge payable in relation to the application”) in sub-para (iv).

35    We therefore agree with the observation in Singh at [65] that the “criteria for it” means the criteria for the visa that has been applied for by the (valid) visa application that is under consideration. We respectfully disagree with his Honour as to what follows from that proposition; however, for reasons to be explained below, we come to the same ultimate conclusion.

36    When s 65(1)(a) is read with ss 45 and 46, the visa that is applied for must mean a visa of a particular class. This is the level of specificity at which the provisions of the Act work; and the meaning of expressions used in the Act cannot be controlled by the way the Regulations are framed from time to time. Section 65(1) should if possible be given a construction that allows the relevant set of criteria to be identified by reference to the concepts used by the Act, rather than that being a matter of debate as to which of the sub-categories that might be referred to in the Regulations is the relevant one. What the Minister’s delegate, and the Tribunal on review, were required to consider was whether the appellant met the criteria for the grant of a Class VC visa.

37    This is not the end of the matter, however. The structure of those criteria needs to be addressed.

Application of the visa criteria

38    It is common ground that the appellant’s visa application was a valid application. It was valid because it met the requirements of cl 1229. In particular, it met the requirement in cl 1229(3)(j) because the appellant nominated one “stream” to which the application related: the Graduate Work stream. That nomination brought cl 1229(3)(k) into play, requiring the appellant (as a condition of validity) to nominate a skilled occupation for the applicant that was specified by the Minister. This he did, nominating his occupation as “Food Technologist”. The requirements of cl 1229(3)(l) did not condition the validity of the application, because the appellant was not “seeking to satisfy” the requirements of the Post-Study Work stream. The application was a valid application for a visa in the class prescribed by reg 2.01 and cl 1229, being a Class VC visa.

39    In deciding under s 65(1)(a) whether to grant that visa, the delegate was required to consider whether the “other criteria” for the grant of that visa were satisfied. These criteria were to be found in Subclass 485, which is the only Subclass “relevant to” Class VC: see regs 2.02(2) and 2.03(1)(a) and (b). For the following reasons, Subclass 485 must be understood as requiring a person who nominated the Graduate Work Stream in their visa application to satisfy the criteria referable to that stream (ie, cl 485.222); in other words, there is no scope for a person in that position to be granted the visa by satisfying criteria relevant to other streams.

Regulation 2.03 and the Notes

40    Regulation 2.03(1A) is brought into play by the references to “streams” in the headings to clauses 485.22 and 485.23. It may be observed that, while these are in the form of headings, they clearly do more work than a heading above a Part or section in an Act would usually do. By force of s 13 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) (which is applied to the Regulations by s 13(1) of the Legislation Act 2003 (Cth) (Legislation Act)), the headings are part of the Regulations. Further, there is no provision in any of these clauses expressly providing that the contents of the clause are the relevant criteria, although that is obviously what is intended. That work is necessarily done by the headings, which are, to that extent, substantive enactments.

41    Regulation 2.03(1A) provides that, where two or more criteria are set out as a stream, “the primary criteria” for the visa are taken to be those criteria, together with any primary criteria that are not part of a stream. As a matter of ordinary English, a “criterion” for a visa is a requirement that an applicant must meet in order to be granted the visa. The reference to “the primary criteria” in reg 2.03(1A) is therefore a reference to criteria that must be satisfied before the application can succeed, not to a range of options as to how an applicant might obtain the visa. The regulation thus envisages that, where “streams” are provided for, each applicant will be confined to one of those streams.

42    The function of directing applicants into one stream or another is performed in the present case by the provisions in cl 1229(3) which require an applicant to nominate one stream and impose different criteria for validity depending on which stream is chosen. The references in cll 1229(3)(k) and (l) to an applicant who “seeks to satisfy the criteria” for a particular stream clearly denote an applicant who has nominated that stream in their application. When cll 1229(3)(j), (k) and (l) and the headings to the clauses in Subclass 485 are read with reg 2.03(1A), it becomes reasonably clear that the provisions embody a legislative intention that an applicant would only be able to be granted the visa if they satisfied the criteria for the stream nominated in their application.

43    This position is confirmed by the Notes underneath the headings of cl 485.2, 485.21, 485.22 and 485.23. These are also to be read as part of the Regulations by force of s 13 of the Acts Interpretation Act and s 13(1) of the Legislation Act. The references in these Notes to an applicant who “seeks to satisfy” the criteria for a particular “stream” align with the language in cl 1229(3)(k) and (l) and clearly, when read in context, refer to an applicant who has nominated that stream: the stream that the applicant nominates is the one whose criteria they “seek to satisfy”.

(a)    The first note to cl 485.2 confirms what is clear from the headings to the clauses which follow: the criteria include “criteria set out in streams”. Regulation 2.03(1A) is thus invoked.

(b)    The second note to cl 485.2 applies to a person who (like the present appellant) applies for a visa “in the Graduate Work stream”. It says in terms that “the primary criteria for the grant of the visa” are the criteria in cll 485.21 and 485.22. Consistently with the meaning of “criteria” noted above, this means that the criteria in cl 485.22 must be satisfied. It can have no other meaning. It does not offer alternative routes to the grant of the visa.

(c)    The third note to cl 485.2 notes a parallel requirement in relation to an applicant in the Post-Study Work Stream.

44    Some submissions were made concerning the status of notes and headings, following the amendments to s 13 of the Acts Interpretation Act in 2011 which abolished the old rule that these were not part of an enactment (the Acts Interpretation Amendment Act 2011 (Cth)). It can be accepted as a general proposition that notes are not substantive enactments and therefore, while they can usefully guide the interpretation of substantive provisions, cannot override them: Director of Public Prosecutions v Walters [2015] VSCA 303; [2015] 49 VR 356 at [50]-[51]. However, the distinction between substantive provisions, notes and headings in the Schedules to the Regulations is somewhat blurred, as our observation above concerning the headings to cll 485.22 and 485.23 illustrates. The relationship between the various parts of an enactment must ultimately depend on how the particular enactment is structured and expressed. In any event, there is no conflict between the notes to which we have referred and any substantive provision. Rather, the notes serve to clarify how reg 2.01(3A) is intended to apply to Subdivision 485 and help to give content to the (otherwise cryptic) language of the headings to clauses in the Subdivision. These are, as Bergin J put it in One.Tel Ltd v Rich [2005] NSWSC 226; 190 FLR 443 at [54], notes of “a new breed” and not merely marginal notes, endnotes or footnotes.

Consequences of the appellant’s construction

45    The construction proposed by the appellant leads to complex or surprising results in at least three ways.

46    First, a person who initially applies in the Graduate Work stream must, as part of the application, nominate a “skilled occupation” that is listed in a relevant statutory instrument (cl 1229(3)(k)). There is no provision for a person applying in the Post-Study Work stream to make such a nomination. When one comes to the stage of considering the grant of the visa, cl 485.222 (a criterion for the Graduate Work stream) requires that each qualification used by the applicant to satisfy the “Australian study requirement” be “closely related to the applicant’s nominated skilled occupation”. That criterion cannot be satisfied by an applicant who does not have a “nominated skilled occupation”. It is therefore practically impossible for an applicant who starts in the Post-Study Work stream to satisfy the primary criteria for the Graduate Work stream. It would be somewhat surprising if an applicant could change streams in one direction but not the other. This tends to confirm that the intention embodied in the provisions is that an applicant can obtain a visa only in the stream that they initially nominated.

47    Secondly, cl 1229(2) prescribes a discounted application fee for some applicants in the Post-Study Work stream compared to other applicants for the visa. This also suggests, albeit more obliquely, an intention that an applicant in a particular stream was intended to be confined to that stream.

48    Thirdly, and more significantly, the Graduate Work Stream and the Post-Study Work stream have different eligibility requirements at the validity stage. An applicant in the first must nominate a skilled occupation specified in a relevant instrument. An applicant in the second must, under cl 1229(3)(l), hold or have held a visa of a particular kind. The appellant’s construction means that an applicant who does not meet the eligibility requirement for a visa in a particular stream can nevertheless obtain a visa in that stream by applying in the other stream and then changing course. If that had been intended, one would expect it to be spelled out.

49    Counsel for the appellant sought to deal with this problem by suggesting that the issue of the validity of an application might need to be revisited during the course of considering the application. Thus, a valid application in the Graduate Work stream would become invalid when the applicant sought to change to the Post-Study Work stream if the applicant could not prove that they held a visa of the relevant kind at the relevant time. However, this leads to further difficulty.

(a)    It is not known whether the present appellant met the requirement in cl 1229(3)(l). We were not taken to any evidence on the issue. On this hypothesis, therefore, the appellant is not in a position to prove that there was a valid visa application by him in the Post Study Work stream before the Tribunal, or that there would be a valid application to consider if the Tribunal’s decision were set aside (which are objective questions and not dependent on findings by the decision maker). It is hard to see how, in those circumstances, there could be a finding of jurisdictional error or a grant of relief.

(b)    Although there are cases accepting that an application might be incomplete when the relevant form is lodged and remain “inchoate” unless and until it is perfected by the provision of further material (see, eg, Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495 at [19]-[21] (Spender J), [72] (Gyles J)), we were not referred to any authority holding that a valid visa application can cease to be valid during the process of consideration under s 47 of the Act (or during the process of merits review by the Tribunal, after a decision to refuse the visa). Such a possibility is difficult to reconcile with s 47(2), which provides that the obligation of the Minister “to consider an application for a visa” continues until the application is withdrawn or decided, or consideration is prevented by specified provisions of the Act. More generally, the Act treats the validity of an application and the grant of a visa as separate stages and proceeds on the understanding that the latter occurs when the former is settled.

Conclusions and disposition of the appeal

50    The consequence is that an applicant for a Class VC visa who nominates a particular stream (as every applicant must, in order to make a valid application) must satisfy the criteria applicable to that stream in order for the visa to be granted. Satisfying criteria that are applicable only to another stream does not assist.

51    For these reasons, although we reach the decision by a different route, Singh was correctly decided. Further, there was no error in the conclusion of the Circuit Court that, in proceeding on the basis that it was not open to grant a visa in the Post Study Work stream, the Tribunal did not err.

52    We accept that this outcome is in some respects unsatisfactory. It means that, by making what was apparently an innocent mistake in filling in an online form, the appellant made a visa application that was doomed to fail, wasted his application fee and became subject to the restriction on further visa applications in s 48 of the Act. It would probably have been a relatively simple matter to design the form so that it would raise an alert when somebody who nominated the Graduate Work stream answered “no” to the question whether they had applied for a relevant skills assessment. The appellant is entitled to feel aggrieved in that respect. However, in our view, the construction of the Regulations is clear. The provisions are designed to ensure that a decision maker need only consider an application against an identified set of criteria and does not need to range across other possible routes to the grant of a visa. The unfortunate consequences that arise in individual cases are not properly addressed by giving the provisions a strained construction that does not accord with their clear intention.

53    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    28 May 2024