FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship [2011] FCA 1220

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Magistrates Court made on 1 June 2011 dismissing, with costs, the application to it made on 21 February 2011. The appellant had then applied under s 476 of the Migration Act 1958 (Cth) ("Migration Act") for review of the decision of the Migration Review Tribunal ("the Tribunal") made on 21 January 2011 to affirm the decision of a delegate of the Minister to refuse the grant of a Skilled (Provisional) (Class VC, Subclass 485, Skilled Graduate) visa ("the visa") to Mr Patel.

2    On 28 August 2008 the appellant lodged online an application for the visa.

3    Such an application must include a nominated skilled occupation. Clause 1229(4)(b) in Sch 1 to the Migration Regulations 1994 (Cth) ("Migration Regulations") was as follows:

(4)     The following requirements must be met:

(a)    . . .

(b)    the applicant seeking to satisfy the primary criteria for the grant of the visa:

(i)    . . . ;

(ii)    must nominate a skilled occupation in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.

4     One of the questions on the application form was "Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?" The answer given was "Yes". The nominated occupation was "Family Counsellor". The name of the assessing authority was given as "VETASSESS" and the date of the skills assessment was given as 2 July 2008.

5    Under the appellant's educational qualifications there was listed as an Australian qualification a masters degree in the course name Master of Information System [sic] at the Central Queensland University. The appellant’s overseas qualifications were listed as Bachelor of Science and Masters Degree, Industrial Chemistry.

6    By letter dated 16 April 2009 the appellant was asked to provide "yours [sic] Skills Assessment for your nominated occupation and proof that you had applied for your Skills Assessment before lodging your visa application on 28 August 2008". The relevant assessment was dated 2 July 2008 on the letterhead of the VETASSESS and with the nominated occupation of "Environmental Health Officer".

7    By letter dated 13 May 2009 the appellant was informed that his application had been refused. This was on the basis that the delegate was not satisfied that the appellant’s "Master of Information Systems is closely related to your nominated skilled occupation of Family Counsellor". The decision record also stated that the assessment from VETASSESS that the appellant had been positively assessed for the occupation of Environmental Health Officer did not satisfy the delegate that the appellant's "Master of Information Systems is closely related to the skilled occupation of Environmental Health Officer".

8    These were references to cl 485.213 of Sch 2 to the Migration Regulations which prescribed as a requirement to be satisfied at the time of application that:

(b)    each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.

9    Thereafter there was a "notification of incorrect answer" lodged by or on behalf of the appellant listing as information which was incorrect the nominated occupation of Family Counsellor and Environmental Health Officer and stating the correct details as being "Computing Professional".

10    A letter dated 18 December 2008 from the Australian Computer Society Inc referred to the appellant's application for a pre-migration skills assessment "which was received by the Australian Computer Society on 10 November 2008". (There is also another such letter bearing the same date but referring to the application as having been received on 6 November 2008.)

11    At this point it is important to note the terms of the following clause of Sch 2 to the Migration Regulations describing as a requirement:

485.214    The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

According to the heading at 485.21, this was a criterion to be satisfied at the time of application.

12    The "written comments" on behalf of the appellant to the Tribunal dated 14 January 2011 had as their substance whether the appellant had provided an incorrect answer when nominating "Family Counsellor" in his original application.

13    The decision of the Tribunal, given on 21 January 2011, was necessarily affected by the case put on behalf of the appellant and much time was spent on the difference between an incorrect answer on the one hand and a changed answer on the other.

14    However for present purposes the following are the relevant findings of the Tribunal:

[39]    Significantly, although the applicant claims that he intended to nominate the occupation of Computing Professional nec, the ACS skills assessment, a copy of which he presented to the Tribunal, indicates that the application for the skills assessment was not received until 10 November 2008, two and a half months after his visa application was made.

[40]    In these circumstances, and in light of cl 485.214 as a time of application requirement, the Tribunal rejects the applicant’s argument that he intended to nominate the occupation of Computing Professional nec and that the nomination of another occupation was an inadvertent mistake by the agent’s staff member.

…

[42]     …. The Tribunal has found that it was the applicant’s intention to nominate the occupation of Family Counsellor (ASCO 2513-15) in the application …

15    The Tribunal found as a fact that the appellant’s intention was to nominate the occupation of Family Counsellor in the application. That finding of fact was not challenged before me.

16    The terms of the application to the Federal Magistrates Court, amended as marked, were:

“1. The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent erred:

(a) in finding that the skilled occupation, once nominated, has to be the same occupation throughout the application process as that initially nominated on the visa application form;

(b) in holding that there is no legislative mechanism that enables an applicant to change correct the nominated skilled occupation after the visa application is made;

(c) in failing to hold that the Applicant, by submitting a completed Form 1023 pursuant to s 105 of the Migration Act 1958 (Cth) as notification of an incorrect answer given on the application form, had changed corrected the nominated skilled occupation;

(d) in proceeding to consider the Applicant’s visa application on the basis that the skilled occupation was that initially nominated on the visa application form;

(e) in failing to consider the Applicant’s visa application on the basis that the skilled occupation was that nominated on the visa application form as corrected by the completed Form 1023.”

17    Grounds 1(b), 1(c) and 1(e) did not engage with the central finding of fact in [40]-[42] of the decision of the Tribunal set out above.

18    The grounds of the original notice of appeal to this Court were as follows:

1.    The Court Below erred in differentiating between an "error" in an application form submitted to the Department of Immigration and Citizenship, and an "incorrect answer" given in such a form.

2.    The Court Below erred in holding that an applicant for a General Skilled Migration Visa cannot change his or her "nominated skilled occupation" during the course of the application.

3.    The Court Below erred in finding that the appellant had not attempted to change his “nominated skilled occupation” to that of "computing professional" during the course of his application.

19    Ground 1 did not engage with the central finding of fact in [40]-[42] of the decision of the Tribunal. Ground 3 may have been intended to be related to Ground 1 but I do not find a basis for it in the judgment of the Federal Magistrate. It was not argued before me in that form.

20    The appellant’s original outline of submissions stated the issues in the appeal as follows;

(a)    Does an "error" in a visa application form constitute an "incorrect answer" to a question in that form within the meaning of ss 100 and 101 of the Migration Act?

(b)    If so, can an applicant for a sub class 485 visa correct an error as to the skilled occupation he has nominated in his visa application for the purposes of subparagraph 1229(4)(b)(ii) of Schedule 1 of the Migration Regulations?

(c)    If so, has the current appellant sought to correct the skilled occupation in his sub class 485 visa occupation?

21    These issues did not engage with the finding of fact in [40]-[42] of the decision of the Tribunal set out above. Thus they did not require further consideration.

22    Independently, another important finding of fact was the Tribunal's finding as to whether at the time of application the appellant had applied for an assessment of the appellant's skills for the nominated skilled occupation by a relevant assessing authority.

23    The short point was, assuming everything else in the appellant's favour, the Tribunal found facts which would establish that the appellant did not satisfy cl 485.214: before the Tribunal the fact found was that at the time of the making of the application for the visa the appellant had not made any application for assessment as a computing professional.

24    Put differently, even if the appellant was allowed to correct or change the original application to computing professional or a similar nominated occupation, this would be of no avail if at the time of the application the appellant had not applied for an assessment of the appellant's skills for that nominated skilled occupation: cl 485.214, a criterion to be satisfied at the time of application.

25    This was one basis for the decision of the Federal Magistrate.

26    No doubt it was these considerations which led the appellant to seek leave to amend his notice of appeal during the course of the hearing of the appeal on 17 August 2011.

27    In the event, the hearing of the appeal was adjourned, I ordered the appellant to pay the costs thrown away and on the resumed hearing I granted to the appellant leave to amend the notice of appeal by adding ground 4 as follows:

4.    The Court Below erred in finding that the application before it had to fail because the Appellant had not asked for a skills assessment relevant to the occupation of computer programming up to the time of the making whole of his application for a subclass 485 visa.

28    On the resumed hearing of the appeal there were two issues of substance and the appellant accepted that he had to succeed on both issues in order to succeed in the appeal.

29    The first was referable to ground 2 of the original notice of appeal which was whether the appellant could in the circumstances of this case change his nominated skilled occupation.

30    The second issue was argued with reference to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417, that is, whether the appellant was required to have applied for an assessment of computer professional at the time of his application. (This argument does not appear to have been put to the Federal Magistrate.)

31    In Berenguel the High Court decided that the plaintiff could satisfy the English language requirements of cl 885.213 in Sch 2 to the Migration Regulations by lodging an IELTS Test Report with the Department on a date after the date on which he lodged his visa application with the Department. Clause 885.213 prescribed, relevantly, as a criterion "to be satisfied at time of application" "the applicant has vocational English".

32    By reg 1.15B, vocational English had the following meaning:

" . . . if the person satisfies the minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged;

(a)    an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; . . . ".

33    The facts were that the plaintiff applied to the Minister on 21 April 2008. The plaintiff booked an IELTS test on 26 February 2008, nearly two months before he lodged his application. However, the earliest date on which the test could be administered to him was 10 May 2008. The plaintiff sat the IELTS test on 10 May 2008 and satisfied the standard of competent English and thereby the lesser standard of vocational English. The plaintiff provided the Department with the test result on 7 June 2008. On 12 December 2008 a delegate refused the plaintiff's application on the basis that the plaintiff had not provided an IELTS test result for a test conducted not more than two years before the day on which the application was lodged. The basis of the decision to refuse the application was, the High Court said at [6], that the IELTS test had not been conducted prior to the application.

34    The first element of the reasoning of the High Court was that the evident purpose of the alternative criteria in cl 885.213 was to ensure that when the Minister or delegate decided on the application for a visa the applicant will have demonstrated recent competency in the English language. It did not follow the criterion could only be satisfied by evidence provided to the Minister at the time of submitting the application.

35    The second element was that the expression "not more than 2 years before the day on which the application was lodged" was susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged. So construed it did not require that the test had to be conducted before the application was lodged.

36    The third element of the reasoning was that the heading "Criteria to be satisfied at time of application" did not connect grammatically to the terms of cl 885.213. The text of Pt 885 did not support any general conclusion that the criteria in Pt 885 was speaking exclusively to satisfaction at the time of application. The High Court gave as an example cl 885.212:

“The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority.”

[Emphasis in judgment of the High Court.]

37    The final element of the reasoning was that the alternative construction led to such plain unfairness and absurdity that it was not to be preferred. Where the purpose of the relevant criterion was to ensure that the standard of English language competency was recently ascertained, the construction which would deprive the Minister of the most recent information seemed to be antithetical to that purpose.

The construction of cl 485.214

38    This is the second issue I have identified above. In light of Berenguel, how is cl 485.214 to be construed?

39    It is to be recalled that at the time of his application, the appellant had not applied for an assessment of his skills for Computing Professional.

40    It was accepted before me that the reference in cl 485.214 to "The Minister is satisfied" meant that the clause does not speak exclusively to satisfaction at the time of application: see Berenguel at [26]. However this does not necessarily mean that the application for an assessment of the "applicant's skills for the nominated skilled occupation by a relevant assessing authority" was not required to be made by the time of application: the decision as to whether that criterion had been satisfied at that time being made later.

41    In my view the application for an assessment was required to be made at the time of application for the following reasons.

42    First, there is a difference in substance between the language considered in Berenguel and the present criterion. In Berenguel, the criterion was "the applicant has competent English" whereas here it is "has applied for an assessment". The former expression goes to competence whereas the latter refers to a means for establishing or testing particular skills, that is, for the nominated skilled occupation.

43    This consideration relates to the grammatical connection element referred to in Berenguel at [26] and it is also related to the purpose element referred to by the High Court. In the present case there is a grammatical connection between the criterion in cl 485.214 and the heading “Criteria to be satisfied at time of application”.

44    Second, there is a contrasting relationship between cl 485.214 and cl 485.221, cl 485.221 referring to a time when the skills for the applicant's nominated skilled occupation "have been assessed" by the relevant assessing authority. It seems to me that this contrast provides textual support for the construction that the application for assessment referred to in cl 485.214 is intended to be at the time of application for a visa. There was no equivalent provision corresponding to cl 885.213 in Berenguel. Further, cl 485.214 would be largely if not entirely otiose if it did not refer to an application for an assessment at the time of application for the visa.

45    The appellant submitted that "the time of application" refers to a period rather than to a day, the period being while the application was being dealt with up to the date of decision. I reject this submission as having insufficient foundation in the statutory language.

46    Third, it is necessary to read the provision in context. The relevant subclass requires that the applicant for such a visa must nominate a skilled occupation in the application. Then, by cl 485.213, the applicant is to meet the requirement that he or she has satisfied the 2 year study requirement in the period of 6 months "ending immediately before the day on which the application was made" and that each such degree, diploma or trade qualification is closely related to the applicant's nominated skilled occupation i.e. the skilled occupation nominated in the visa application. In my view, applying for an assessment of the applicant’s skills for the nominated skilled occupation should be read as ancillary to the requirements of cl 485.213 and as a matter to be satisfied, in point of application to a relevant assessing authority, at the time of application for the visa.

47    So viewed, the purpose of the provision made by cl 485.214 goes both to timeliness of the assessment of the applicant’s skills for the nominated skilled occupation and to the efficient consideration of the application with reference to whether the skills have been assessed by the relevant assessing authority as suitable for the nominated skilled occupation: see cl 485.221.

48    Implicit in this conclusion is that, contrary to the appellant's submission, the words "the nominated skilled occupation" do refer to the skilled occupation nominated in the application for the visa.

49    In my opinion the construction of cl 485.214 which I prefer does not give rise to the "plain unfairness and absurdity” referred to by the High Court in Berenguel with reference to the construction of cl 885.213 there contended for by the Minister.

50    Before me, the Minister accepted that an applicant could provide, after the date of application, information which went to show that the applicant had applied for an assessment as at that date.

51    My conclusion that application for an assessment was required to be made at the time of application and the fact that the application for an assessment was not so made in this case mean that the appeal must be dismissed. That conclusion makes the other error alleged on behalf of the appellant immaterial.

52    Nevertheless for completeness I shall consider briefly that issue.

Change of nominated skilled occupation

53    This issue was whether the appellant could in the circumstances of this case change his nominated skilled occupation from Family Counsellor to Computing Professional.

54    The appellant relied on ss 54, 55, 104 and 105 of the Act. No authorities were relied on by either party.

55    Sections 54 and 55 should be considered together.

56    Section 54 obliges the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all the information in the application. By s 54(2) information is in an application if the information is given under s 55.

57    Section 55 operates before the Minister has made a decision whether to grant or refuse to grant a visa. Until the Minister has made a decision, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

58    In my view the better construction is that s 55 does not treat as "information" material which is fundamental to the making of a valid application. It is to be recalled that cl 1229 specifies as a requirement to be met that the applicant must nominate a skilled occupation in the application. Further, a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of "additional relevant information" [emphasis added].

59    Turning to s 104, it applies where circumstances change so that an answer to a question on a non-citizen’s application form "is incorrect in the new circumstances ". This section imposes an obligation on the non-citizen, as soon as practicable, to inform an officer in writing of the new circumstances and of the correct answer in them.

60    For s 104 to apply it is necessary to find an answer which "is incorrect in the new circumstances", the new circumstances posited here being the appellant’s change of mind as to his nominated occupation. On that analysis the answer would be incorrect in the new circumstances of the appellant’s new intention. Considered in the context of Pt 2 Div 3 Subdiv C of the Act providing for the cancellation of visas, it seems to me to be difficult to say that if an applicant for a visa fails to notify an officer that he has changed his mind as to the nominated occupation, that would form a ground for the cancellation of a visa. In my opinion, s 104 does not encompass a change of mind about a nominated occupation.

61    Section 105 is addressed to the case where a non-citizen becomes aware that an answer given or provided in the form on which he applies for a visa "was incorrect when it was given or provided ". On the facts of the present case s 105 does not apply because the answer given about the nominated skilled application was not incorrect when it was given or provided.

Conclusion

62    The appeal is dismissed with costs.

Associate:

Dated:    31 October 2011