FEDERAL COURT OF AUSTRALIA

Akbar v Minister for Immigration and Border Protection [2019] FCA 515

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Each party bear its own costs of and incidental to this appeal.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the whole of the judgment of the Federal Circuit Court in Akbar v Minister for Immigration & Anor [2018] FCCA 2001, in which the primary Judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (delegate) refusing to grant Temporary Graduate (Class VC) Temporary Graduate (Graduate Work) (Subclass 485) visa (relevant visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

Background summary

2    The appellant is a citizen of Pakistan. He entered Australia on a student visa, and satisfied the course requirements for the degree of Master of Information Technology and Systems at the University of Canberra on 24 June 2016.

3    On 22 July 2016, the appellant applied for assessment with the Australian Computer Society (ACS), where he nominated his occupation as “Computer Networks”.

4    On 25 July 2016, the appellant lodged with the Department of Immigration and Border Protection (Department) an application for the relevant visa. In that application the appellant designated “Computer Network and Systems Engineer” ANZSCO 263111 as his skilled occupation and the ACS as the assessing authority.

5    On 8 August 2016, the appellant was advised by the ACS that his degree was not closely related to his nominated occupation, but that he could opt to have his skills assessed for the occupations of Business Analyst or Software Engineer.

6    On 9 August 2016, the Department contacted the appellant and requested further documents, including a skills assessment.

7    On or around this date, the appellant provided the Department with a “Notification of change in circumstances” Form 1022 which stated:

… I have been notified by the Australian Computer Society to change my nominated occupation to Software and Applications Programmer ANZSCO code 2613 for my assessment to be successful.

So It [sic] is my kind request to please amend my nominated occupation to Software and Application Programmer. I would be very grateful for your kind gesture…

8    On 13 August 2016, the appellant provided the Department with a positive skills assessment from the ACS, dated 11 August 2016. The skills assessment listed his skilled occupation as Software Engineer and stated that the appellant’s skills were suitable under 261313 of the ANZCO code (which I understand to be the Australian and New Zealand Standard Classification of Occupations).

9    On 12 September 2016, the delegate refused to grant the appellant the relevant visa. The delegate found that the appellant did not satisfy cl 485.224(1) of the Migration Regulations 1994 (Cth) (Migration Regulations) as the skills assessment provided by the appellant was not referable to the occupation he nominated at the time of applying for the relevant visa.

10    On 6 April 2017, the ACS advised the appellant in a further letter that his “skills have been assessed to be suitable for migration under 263111 (Computer Network and Systems Engineer) of the ANZSCO Code”.

Decision of the Tribunal

11    The appellant applied for review by the Tribunal of the decision of the delegate. The appellant was represented in the Tribunal’s proceeding by his registered migration agent, and on 31 March 2017 appeared before the Tribunal to give evidence and present arguments. In a supporting email dated 28 February 2017 the appellant’s migration agent submitted:

1)    Skills Assessment: Please find attached skills assessment from ACS for the occupation Software Engineer. Mr. Kurram was forced to change his occupation from Computer Network and Systems Engineer to Software Engineer, after he made the s/c 485; upon advice from ACS.

However due to lack of knowledge and experience of the Migration Regulations; he did fill out the requisite Form 1023 before the decision of the visa application.

Please also find attached the email received by Mr. Khurram from ACS.

I therefore urge you to kindly consider his case on compassionate grounds and remit the same to the department for their re-consideration…

(Errors in original.)

12    At [24] of the Tribunal’s decision it noted that the appellant had been advised by the ACS that his degree was not closely related to the nominated occupation of Computer Networks, and further that the ACS had recommended that he apply for a skills assessment of the occupation of Business Analyst or Software Engineer. The appellant submitted that he ‘tried his best’.

13    The Tribunal at [7] of its decision noted that the appellant sought to satisfy the primary criteria for a subclass 485 visa. It explained that the primary question for consideration was whether the appellant met the criteria in cl 485.224 in relation to his skills and the nominated skilled occupation.

14    Clause 485.224 of the Migration Regulations provides:

(1)    The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

(1A)    If the assessment is expressed to be valid for a particular period, that period has not ended.

(2)    If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

15    The Tribunal highlighted r 1.15I of the Migration Regulations which defined “skilled occupation” in relation to a person as an occupation of a kind:

(a)    that is specified by the minister in an instrument in writing to be a skilled occupation; and

(b)    if a number of points are specified in the instrument as being available – for which the number of points are available; and

(c)    that is applicable to the person in accordance with the specification of the occupation.

16    In summary, the Tribunal considered that the appellant had intentionally nominated the occupation of Computer Network and Systems Engineer in his visa application. In light of this, the Tribunal considered that the appellant did not meet the requirements of cl 485.224. The Tribunal found:

27.    It is a Schedule 1 requirement for making a valid skilled visa application that an applicant has nominated a skilled occupation in the visa application form. The Tribunal finds that an applicant is not permitted to change his nominated skilled occupation during the processing of the visa application. Whilst the applicant has stated (in Form 1022) that the nominated occupation has changed, following a recommendation by ACS, to Software Engineer (ANZSCO 26131) and he provided Form 1022 in support of this, the Tribunal is satisfied that the applicant intended to nominate the occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) in the visa application. The applicant nominated the skilled occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) in the visa application and applied for a skills assessment for that nominated skilled occupation.

28.    The Tribunal finds that the skills of the applicant for the applicant’s nominated skilled occupation of Computer Network and Systems Engineer (ANZSCO Code 263111) have not been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

17    Accordingly, the Tribunal held that the appellant had not met the requirements of cl 485.224(1) and therefore did not satisfy the requirements for the relevant visa.

18    The Tribunal also considered whether to refer the appellant’s claims to the Department for consideration pursuant to s 351 of the Migration Act. Section 351 allows the Minister to substitute a decision of the Tribunal with another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision, if the Minister thinks that it is in the public interest to do so. The Tribunal considered the various claims of the appellant including:

•    his education;

•    the positive skills assessment;

•    evidence that he has done his best and followed the advice of the ACS;

•    the prompt provision of a ‘Notification of change in circumstances’ to the Department; and

•    medical evidence about his lung condition.

19    The Tribunal at [33] stated that it had considered the appellant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), but decided not to refer the matter. It was noted that the appellant could make this request directly to the Minister.

20    Overall, the Tribunal concluded that the decision of the delegate should be affirmed.

Proceedings in the Federal Circuit Court

21    The appellant sought review of the decision of the Tribunal in the Federal Circuit Court of Australia. The appellant was self-represented at the time of filing the application for review and later sought leave to file an amended application. The primary Judge noted that the “grounds of review [contained in the amended application] were expansive and combined claims of fact and alleged legal error”. At [10] his Honour observed that the key issue in contention concerned the finding by the Tribunal that “the Applicant is not permitted to change his nominated skilled occupation during the processing of the visa application.”

22    The primary Judge noted that, to resolve this question, he was guided by the principles in Patel v Minister for Immigration and Citizenship [2011] FCA 1220; (2011) 198 FCR 62 (Patel) and Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502; (2014) 221 FCR 74 (Pavuluri) on one hand, and the distinguishing features of the facts in the current matter on the other.

23    In particular, the primary Judge considered Patel at [53]-[61] and Pavuluri at [33] and [46]-[49]. His Honour noted the following observation of Mortimer J in Pavuluri at [47]:

In my opinion, those provisions cannot have the kind of operation which the appellants seek to give them in this case, which is as some freestanding opportunity for a visa applicant to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged.

24    The primary Judge also observed at [34] of the primary judgment that Patel and Pavuluri were binding, however at [36]-[40] referred to the following features of this case:

36.    First, the Tribunal accepted (and the Minister has never denied) that the Applicant changed his nominated skilled occupation precisely, and only, because of the advice given to him by the ‘relevant assessing authority’.

37.    Secondly, for both of the “nominated skilled occupations” the formal qualifications accepted by the assessing authority were identical. It was not as if the Applicant was, as in Pavuluri, changing occupations from “finance manager” to “market research analyst.” Here, the skilled occupations are both in ICT (information and communication technology), and the formal qualifications accepted in each instance were identical.

38.    Thirdly, accepting everything that Mortimer J said in Pavuluri at [47], nonetheless, the form made available by the Department for it to be kept advised of “changes in circumstances”, in my view, is potentially misleading. On its face, it informs the reader that if the information to be “updated” relates to an “email address, residential address” and the like “do not use this form, instead select the relevant form from the Update us list.”

39.    The Form goes on to specify that the reader/Applicant “Give details of the information in this application that is no longer current.” This is precisely what the applicant here did. However, the Form gives no warning or caution, at least as far as I can see from the Form, as reproduced in the Court Book, that even if “change in circumstances” information is provided, that this information cannot and will not affect the detail of things like the “nominated skilled occupation” in the original application. In this sense, especially having regard to the persons who are intended to use such Forms as provided by the Department, and who would not usually be expected to trawl through judgments of this Court or the Federal Court to check as to how such forms are interpreted, as I say, in my view, the Form is potentially misleading.

40.     Put another way: absent any caution or warning that any “change in circumstances” information will not necessarily affect, in any relevant way, the original information provided in the Application before the Department/Delegate/Tribunal, in my view, a reasonable “bystander” (or reasonable Applicant) would reasonably expect that any information provided via this particular Form would (or will) be used, or properly considered, by the appropriate person or body.

25    In light of these distinctions, the primary Judge concluded at [41]:

The view that I have just expressed regarding the said “Form” was not actually argued before me. It may be that the three factual distinctions to which I have referred, if/when considered by a superior Court, are sufficient to warrant judicial intervention. However, in all of the circumstances of the present Application, until there is some relevant review of the matters I have raised, I am bound by the comments of Robertson J in Patel and equally so by Mortimer J in Pavuluri, such that the Application cannot succeed albeit that, on one view, it might reasonably be considered to be a “near run thing” to have succeeded. The concerns I have raised are sufficient, in my view, to warrant an Order for each party to pay their own costs.

Appeal to the Federal Court

26    In the appellant’s notice of appeal filed on 14 August 2018, the appellant relies on the following particularised grounds of appeal:

1.    The second respondent erred in law by finding that the applicant is not permitted to change the nominated skilled occupation.

Particulars

i.    The Section 104 of the Act provides a mechanism for a visa applicant to notify the changes in circumstance.

ii.    The Second Respondent failed to mention and rely upon the case law in support of its finding that the applicant cannot change his nominated skill occupation during the processioning of his visa application.

2.    The Second Respondent and the Primary Judge erred in exercise of jurisdiction by failing to consider the relevant statutory provisions of the Act.

Particulars

i.    Section 55 of the Act permits the applicant to give any relevant information, in this case the change of nominated skills occupation, before a decision is made and requires the Minister to have regard to that information in making the decision.

ii.    Section 54 requires the decision maker, in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the visa application, which in this case was the change in the nominated skills occupation.

3.    The decision of the Second Respondent is affected by jurisdictional error in that it failed to take a relevant considerations (information provided by the Applicant) and considered irrelevant considerations.

Particulars

i.    On 09 August 2017, the Applicant notified the first respondent of the changes in the nominated skilled occupation by way of a Form 1022.

ii.    The Second Respondent failed to consider that additional relevant information when making its decision.

iii.    The Second Respondent proceeded to consider the Applicant’s visa application on the basis of the skilled occupation that was initially nominated on the visa application form.

iv.    The Second Respondent failed to consider that, pursuant to the notification of change in circumstance, the nominated occupation in the visa application was the one as notified by way of Form 1022.

4.    The second respondent failed to ask itself the right question.

Particulars

i.    The Tribunal failed to consider whether it is a case of change of mind or a correction of an information in the visa application in the circumstance for which the appellant was not responsible.

5.    The second respondent failed to have regard to the reasonable/legitimate expectation as the relevant consideration.

Particulars

i.    “The contents of the Form 1022 used by the Appellant gave him a reasonable and legitimate expectation that the information of change of nominated occupation provided via the particular Form 1022 would (or will) be used, or properly considered, by the appropriate person or body.” Akbar v Minister for Immigration & Anor [2018] FCCA 2001 at [40].

ii.    Recommendation/observation of the Primary Judge on the basis of reasonable expectation that “It may be that the three factual distinctions to which I have referred, if/when considered by a superior Court, are sufficient to warrant judicial intervention”. Akbar v Minister for Immigration & Anor [2018] FCCA 2001 at [41].

6.    The Primary Judge erred in not issuing an appropriate writ to the second respondent pursuant to its observation that it was a case of reasonable/legitimate expectation.

Particulars

i.    “The contents of the Form 1022 used by the Appellant gave him a reasonable and legitimate expectation that the information of change of nominated occupation provided via the particular Form 1022 would (or will) be used, or properly considered, by the appropriate person or body.” Akbar v Minister for Immigration & Anor [2018] FCCA 2001 at [40].

(Errors in original.)

Consideration

General principles

27    The starting point for consideration concerns the relevant criteria the appellant must satisfy for the grant of a Subclass 485 visa. These criteria are set out in Sch 2 to the Migration Regulations. Although I have already made reference to cl 485.224 it is helpful to set out other criteria for the Graduated Work stream referred to in cl 485.22.

485.221

The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.

485.222

Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.

485.223

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 Tribunal.

485.224

(1)     The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

(1A)     If the assessment is expressed to be valid for a particular period, that period has not ended.

(2)     If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

28    It is common ground that, at the time of the application, the appellant nominated his skilled occupation as “Computer Network and Systems Engineer”. He then sought to alter his skilled occupation to “Software and Application Programmer”, by submitting a “notification of changes in circumstances” form.

29    The appellant submits that s 104 of the Migration Act provides a mechanism for a visa applicant to notify the Department of any changes in circumstances, including a change in the nominated skilled occupation. Further, the appellant submits that s 104 applies to the correction of any answer, to any question, in the visa application, without any qualification or restriction. He also submits that the term “circumstances” includes personal circumstance such as a nominated occupation and/or the outcome of a skills assessment.

30    Relevantly, s 104 provides:

Changes in circumstances to be notified

(1)     If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)     If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)      If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)     Subsection (1) applies despite the grant of any visa.

31    Further, s 105 states:

Particulars of Incorrect answers to be given

(1)    If a non-citizen becomes aware that:

(a)    an answer given or provided in his or her application form; or

(b)    an answer given in his or her passenger card; or

(c)    information given by him or her under section 104 about the form or card; or

(d)    a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer…

32    The question of whether ss 104(1) and 105 contemplate a change of nominated skilled occupation after a visa application has been made was considered by the Federal Court in Patel and Pavuluri. It is appropriate to briefly examine the decisions in these cases.

Patel

33    Patel concerned facts, and arguments similar to those before me. The relevant legislation before Robertson J (being cl 1229(4)(b) in Sch 1 to the Migration Regulations) provided 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.

34    Justice Robertson noted that 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?”

35    The visa applicant in that case answered “yes”.

36    The nominated occupation there 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.

37    The visa applicant nominated his qualifications as a Master’s degree in information systems from Central Queensland University, and overseas qualifications being a Bachelor of Science and Master’s degree in industrial chemistry.

38    The Department contacted the visa applicant, requesting him to provide his “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”. As Robertson J noted at [5]:

The relevant assessment was dated 2 July 2008 on the letterhead of the VETASSESS and with the nominated occupation of “Environmental Health Officer”.

39    The delegate refused the visa, on the basis that the delegate was not satisfied that the visa applicant’s degrees were closely related to the nominated skilled occupation of “family counsellor”. The delegate also found that the assessment from VETASSESS (that the visa applicant had been positively assessed for the occupation of Environmental Health Officer) did not satisfy the delegate that the visa applicant’s Master’s degree in information systems was closely related to the skilled occupation of Environmental Health Officer.

40    His Honour referred to a letter dated 18 December 2008 from the ACS, which in turn referred to the visa applicant’s application for a pre-migration skills assessment received by ACS on 10 November 2008. His Honour noted cl 485.214 of Sch 2 to the Migration Regulations which provided:

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.

His Honour noted that according to the heading at cl 485.21, this was a criterion to be satisfied at the time of application.

41    Justice Robertson said that, before the Tribunal, a key question was whether an “incorrect answer” had been provided by the visa applicant when nominating the occupation of “family counsellor” in his original application. Relevantly, his Honour noted at [14] the following findings of the Tribunal in that case:

[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 …

42    His Honour observed that the Tribunal’s finding of fact concerning the intention of the visa applicant to nominate the occupation of family counsellor was not disputed before him. His Honour continued:

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.

43    Justice Robertson examined the point of time at which an application for assessment was required to be made by reference to a nominated skilled occupation, and concluded that the application for an assessment was required to be made at the time of application. His Honour then turned to the question whether the visa applicant could change his nominated skilled occupation from “family counsellor” to “computing professional”, and in this context examined ss 54, 55, 104 and 105 of the Migration Act. His Honour continued:

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.

Pavuluri

44    In Pavuluri the visa applicant held the degrees of Master of Business Administration (International) and Master of Commerce from Deakin University. Following advice provided by the university, he applied for a Skilled Graduate visa, identifying his nominated occupation as “finance manager” and the relevant assessing authority as the “Institute of Chartered Accountants of Australia” (ICAA). The date of the skills assessment application was 12 March 2010.

45    Clause 485.221 of Sch 2 in the Migration Regulations required that there be a successful and compliant skills assessment before a visa could be granted. In August 2011 the Department wrote to the visa applicant requesting that he provide a skills assessment for his nominated occupation within 28 days. The visa applicant wrote to the Department stating that he could not find the relevant skills assessment, had requested that it be redone, and therefore sought an extension on the 28 days provided. The extension of time was refused, and on 14 October 2011 a delegate of the Minister refused the visa on the basis that a skills assessment assessing the visa applicant as suitable for his nominated application had not been provided.

46    On 7 November 2011 the visa applicant applied for review of the delegate’s decision, and submitted in support a statement dated 3 November 2011 stating that, after making further inquiries with CPA Australia, he had been advised that his application for assessment had been refused because the subjects he had studied were not the correct core subjects for the skills assessment as “finance manager”.

47    The visa applicant stated that he had applied to another assessing authority, VETASSESS, for a skills assessment for the different occupation of “market research analyst”. The visa applicant subsequently submitted a copy of a skills assessment from VETASSESS, dated 13 December 2011, confirming that the visa applicant met the education requirements for the occupation of market research analyst. A further skills assessment, dated 28 June 2013, confirmed that the visa applicant was suitable for the nominated occupation of “market research analyst”.

48    Before the Tribunal the visa applicant relied on ss 99, 100 and 105 of the Migration Act and argued, inter alia, that he was able to change his nominated application because the information initially provided was “incorrect”. The Tribunal rejected this argument because the nominated occupation of “finance manager” was clearly made on the visa application form, and the evidence in the case did not support the contention that he had made a “mistake”. As Mortimer J observed:

22.    … The only “mistake” the Tribunal found was that the first appellant, having correctly recorded in his visa application the occupation he intended to specify as his nominated occupation, subsequently discovered he had been ill-advised and he lacked the qualifications necessary to secure an assessment of suitability for that occupation.

23.    While in colloquial terms that is a mistake, it was not, as the Tribunal found, a mistake in the sense of the first appellant specifying on the visa application an occupation he did not intend to specify. Rather, as the Tribunal found, on subsequently discovering (more than 18 months later) that he was not qualified to be assessed as suitable for that occupation, the first appellant changed his mind and nominated a different occupation. That was not, the Tribunal found, the kind of “error” capable of correction under s 105 of the Act.

49    Before Mortimer J the appellant contended that the Tribunal should have concluded that there was a mistake, which was corrected by the VETASSESS assessment for the occupation of “marketing research analyst”, and that Patel did not apply. Her Honour disagreed:

33.    The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the tribunal found, there was no lack of clarity, or lack of intention, around the first appellant’s choice to specify “finance manager” on his visa application at the time he made the application.

50    Her Honour agreed with the reasoning of Robertson J in Patel, including that the effect of ss 104 and 105 of the Migration Act was not to permit visa applicants to change their nominated occupations because they have later had a change of mind as to a more appropriate nominated application. Her Honour observed:

46.    Sections 104 and 105 are not freestanding provisions permitting changes to visa applications where there are changes of circumstances or incorrect answers given. In context, they are intended to operate as potential triggers for the cancellation power in s 109, and possibly as exculpations from the exercise of that power.

47.    In my opinion, those provisions cannot have the kind of operation which the appellants seek to give them in this case, which is as some freestanding opportunity for a visa applicant to alter information on a visa after an application is lodged, where the alteration and new information will improve the likelihood of the visa being granted, because the visa applicant has subsequently realised a problem existed with the application as lodged.

48.    Rather, s 104 is concerned to ensure that information in an application is “correct” and correctly reflects the circumstances of the visa applicant. So, for example, if the applicants for a spouse visa subsequently separate before a decision has been made on the visa, that is the kind of “change of circumstances” s 104 may oblige the visa applicants to inform the minister about. Relevantly, the change of circumstances must cause an answer in the visa application to be incorrect. In the first appellant’s situation, there was no “change of circumstances” which caused the answer “finance manager” to the question “nominated occupation” to be incorrect because, as the Tribunal found, that was the occupation the first appellant had intended to specify. Rather, the change of circumstances – the unsuccessful skills assessment for finance manager – would render the visa application itself unsuccessful. That is a matter outside the scope of s 104.

(Emphasis added.)

Ground of appeal 1

51    In his first ground of appeal in this case the appellant relied on s 104 of the Migration Act, and in particular noted the letter of 9 August 2016 from the Department and the Form 1022 “Notification of changes in circumstances” completed by the appellant. The letter of 9 August 2016 included the following:

…

Withdrawing your application

You can withdraw your application at any stage during processing. If any applicant wishes to withdraw their application, they must advise the department in writing…

…

Changes to your circumstances

You are required to tell us about any changes to your circumstances that may affect any answer to a question in your application form including your name, passport, contact details, address or family members as soon as possible. This obligation continues until a decision is made on your visa application, or, if you are currently outside Australia, until you have arrived in Australia and passed immigration clearance. You are required to do this in writing and can use Form 1022 Notification of changes in circumstances (section 104 of the Migration Act 1958)…

52    Relevantly the Form 1022 is headed “Notification of changes in circumstances (Section 104 of the Migration Act 1958)”, and includes the following information:

…

Section 104 of the Migration Act 1958 (the Act) requires you to inform the Department of Immigration and Border Protection (the department) of any changes in your circumstances that affect any answer to a question in your application form.

…

Use this form to notify the department of any changes in your circumstances that affect any answers on your application form. You should use form 1023 Notification of incorrect answer(s) if you wish to notify the department that you have supplied it with any incorrect information.

…

WARNING:

…

•    If you are an applicant for a visa which has not yet been granted, the information you provide on this form will be taken into account when assessing your visa application.

53    The appellant submitted that, in finding that the appellant was not permitted to change the nominated occupation during the processing of the visa application, the decision of the Tribunal was contrary to the language in the Department’s letter and Form 1022, and the clear provisions of s 104 which contemplate the possibility of correction of an incorrect answer during the processing of a visa application. The appellant submitted further that the Tribunal and the primary Judge failed to consider that s 104 of the Migration Act provided a mechanism for a visa applicant to notify any changes in the circumstances, and that s 104 applied to the correction of an answer to any question in the visa application without any qualification or restriction.

54    At the hearing Counsel for the appellant conceded that the factual circumstance of this case were extremely similar to those in Pavuluri. However, the appellant submitted that the decisions in Patel and Pavuluri, whilst persuasive, were not binding in the sense that they were decided by a single judge and not a full Federal Court.

55    The appellant further submitted that Patel and Pavuluri were wrongly decided as they “were in clear contrast to the express statutory provisions of the Migration Act”, particularly ss 54, 55 and 104. The appellant submitted that s 55 did not impose any restriction or qualification on the information that could be provided to the Minister if it is relevant. Once any additional information is provided the decision maker must have regard to that information. The appellant also submitted that s 104 allows an applicant to change an answer to a question on the application form or an answer under this section if a change in circumstances means that the answer is incorrect in the circumstances.

56    In AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129, the Full Court said at [29]:

It is well established that intermediate appeal courts should not depart from judgments of other such courts in the absence of a compelling reasons to do so or unless the earlier decision is “plainly wrong”…

57    I have considered the express statutory provisions contained in ss 54, 55 and 104 of the Migration Act. I do not consider that the decisions in Patel and Pavuluri are “plainly wrong”, including in relation to their Honours’ interpretation of ss 54, 55 and 104, or that those decisions conflict with the express statutory provisions of the Migration Act.

58    In particular, I respectfully adopt the reasoning in Pavuluri, and find that ss 104 and 105 are not freestanding provisions permitting visa applicants to alter information on an application simply to improve the likelihood of the visa being granted. In considering the interpretation of this provision it important to note that ss 104 and 105 are contained within Pt 2 Div 3 Subdiv C of the Migration Act. Part 2 Div 3 Subdiv C deals with the cancellation of visas based on incorrect information. The Minister submits that “words in statutes have to be read in their context, including the statutory context and the division that they’re in and what their purpose is in that division”. I accept this proposition.

59    In this case the appellant’s nomination of Computer Network and Systems Engineer for the purposes of his visa application was not “incorrect”, and at the time of the application reflected his personal circumstances and choice of nominated occupation. Notwithstanding that the appellant was later advised that a change of nominated occupation would increase the likelihood of a successful assessment, and hence enhance the prospect of success of his visa application, there was no material change in circumstances that rendered the nomination of Computer Network and Systems Engineer incorrect.

60    The first ground of appeal fails.

Ground of appeal 2

61    In his second ground of appeal, the appellant relies on ss 54 and 55 of the Migration Act. These sections provide:

54    Minister must have regard to all information in application

(1)     The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)     For the purposes of subsection (1), information is in an application if the information is:

(a)    set out in the application; or

(b)     in a document attached to the application when it is made; or

(c)    given under section 55.

(3)     Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55    Further information may be given

(1)     Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)     Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

62    The appellant submitted, in summary:

    Pursuant to s 55 of the Migration Act, a visa applicant can provide the Department with any relevant information during the processing of a visa application and requires the decision maker to have regard to that information. The information that can be provided is broad and must only be established to be “relevant”.

    The change in nominated skilled occupation was “relevant information” within the meaning of s 55.

    Section 54 of the Migration Act imposes an obligation on the Minister to have regard to all information in the application, including information provided through the operation of s 55.

63    As I have already noted, Robertson J in Patel considered the terms of ss 54 and 55 in the context of similar arguments to those advanced by the appellant before me, and dismissed those arguments. In particular, his Honour found that s 55 did not treat as “information” material which was fundamental to the making of a valid application, and a change of mind on the part of a visa applicant as to the appropriate skilled occupation to nominate did not answer the statutory description of “additional relevant information”.

64    The Minister relied on the findings of the Full Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85. In that case the visa applicant had lodged an application, but the Tribunal found that the application was not “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” within the meaning of cl 485.223 of Sch 2 of the Migration Regulations. In that case the visa applicant had lodged an application for a visa at a time when he had not applied for a skills assessment, the delegate of the Minister refused the application on the ground that there was no evidence of a skills assessment, in the interim the visa applicant had applied for a skills assessment but his assessment application was not processed because his payment could not be processed, and he reapplied for a skills assessment after the delegate had given the unfavourable decision. Two weeks later a favourable skills assessment was made. Before the Full Court, the visa applicant claimed, inter alia, that the Tribunal had erred by failing to exercise its discretion to accept the favourable skills assessment the visa applicant had provided to it having regard to (inter alia) ss 54 and 55. Materially, the Full Court found that cl 485.223 established an objective temporal test, and was one of a number of “time of application” criteria conditioning the grant of a skills visa. Justice Tracy, with whom Charlesworth and Derrington JJ concurred, further observed:

23.    Nor is assistance provided to the appellant by ss 54, 55 and 56 of the Act, on which he relies. Section 54 requires the Minister, when considering an application for a visa, to have regard to all of the information provided in the application. The delegate and the Tribunal did so in this case. The relevant information was that no application had been made, at that time, for a skills assessment. Section 55 of the Act provides that, until the Minister has made a decision on the application, an applicant can provide additional relevant information to which the Minister must have regard in making the decision. Evidence of the fact that the applicant had obtained a positive skills assessment after the application had been lodged would not be relevant information for the purposes of cl 485.223…

(Emphasis added.)

65    While not directly on point in these proceedings, the reasoning in Khan at [23] is consistent with the proposition that fundamental compliance (or lack thereof) with statutory requirements is not “information” for the purposes of ss 54 and 55. In this case, s 55 did not require the decision-maker to consider as “information” what was effectively a new application for a visa, based on the nomination of a different skilled occupation, where the nomination occurred after the appellant formed a different view.

66    The second ground of appeal fails.

Ground of appeal 3

67    The third ground of appeal agitates similar issues to those in the second ground of appeal. The appellant claims, in summary, that the Tribunal failed to have regard to the occupation of Software Engineer, and take into consideration that the nominated occupation in the visa application was the occupation of “Software Engineer” as notified in the Form 1022. Conversely, the appellant claims that after the appellant notified the Department of his change of occupation, the occupation of “Computer Network and Systems Engineer” was an irrelevant consideration.

68    For reasons I have already explained in relation to the second ground of appeal, the Tribunal was not required to take into consideration the fact that the appellant had had a change of mind as to the appropriate occupation to nominate. As was explained in Patel and Pavuluri, there was also no “change of circumstances” within the meaning of s 104.

69    The third ground of appeal fails.

Ground of appeal 4

70    In the fourth ground of appeal the appellant claimed that the Tribunal failed to ask itself the right question – namely whether the change in nominated occupation was a change of mind or a correction of information in the visa application in circumstances for which the appellant was not responsible.

71    I do not accept that the Tribunal failed to ask itself the right question in this case. As finder of fact, it was open to the Tribunal to conclude that the appellant had intentionally nominated the occupation of “Computer Network and Systems Engineer”. The evidence before the Tribunal demonstrated that the assessing authority had declined to favourably assess the appellant against his nominated occupation as Computer Network and Systems Engineer, and further that the assessing authority had suggested he change his nominated occupation to Software and Application Programmer. This does not change the circumstance that the appellant had intentionally nominated his occupation as Computer Network and Systems Engineer on the application form. I do not accept the submission that decision of the appellant to change his nominated occupation arose from circumstances for which he was not responsible, in that the material indicated that it was his decision to nominate Computer Network and Systems Engineer as his skilled occupation. That this decision may have flowed from poor advice or incomplete information does not alter the character of that decision as his choice

72    The fourth ground of appeal is not substantiated.

Ground of appeal 5

73    In this ground of appeal the appellant relies on the comments of the primary Judge at [38]-[41] of the primary judgment. These comments were as follows:

38.    Thirdly, accepting everything that Mortimer J said in Pavuluri at [47], nonetheless, the form made available by the Department for it to be kept advised of “changes in circumstances”, in my view, is potentially misleading. On its face, it informs the reader that if the information to be “updated” relates to an “email address, residential address” and the like “do not use this form, instead select the relevant form from the Update us list.”

39.    The Form goes on to specify that the reader/Applicant “Give details of the information in this application that is no longer current.” This is precisely what the Applicant here did. However, the Form gives no warning or caution, at least as far as I can see from the Form, as reproduced in the Court Book, that even if “change in circumstances” information is provided, that this information cannot and will not affect the detail of things like the “nominated skilled occupation” in the original application. In this sense, especially having regard to the persons who are intended to use such Forms as provided by the Department, and who would not usually be expected to trawl through judgments of this Court or the Federal Court to check as to how such forms are interpreted, as I say, in my view, the Form is potentially misleading.

40.    Put another way: absent any caution or warning that any “change in circumstances” information will not necessarily affect, in any relevant way, the original information provided in the Application before the Department/Delegate/Tribunal, in my view, a reasonable “bystander” (or reasonable Applicant) would reasonably expect that any information provided via this particular Form would (or will) be used, or properly considered, by the appropriate person or body.

41.    The view that I have just expressed regarding the said “Form” was not actually argued before me. It may be that the three factual distinctions to which I have referred, if/when considered by a superior Court, are sufficient to warrant judicial intervention. However, in all of the circumstances of the present Application, until there is relevant review of the matters I have raised, I am bound by the comments of Robertson J in Patel and equally so by Mortimer J in Pavuluri, such that the Application cannot succeed albeit that, on one view, it might reasonably be considered to be a “near run thing” to have succeeded.

(Footnotes omitted.)

74    The observations of the primary Judge have some force. It would certainly be open to a lay person, reading Form 1022 and the correspondence from the Department, to form the view that the words “change of circumstances” have a broad meaning, and further that the language in the Form and correspondence would contemplate a change of nominated skilled occupation following communications and relevant assessment from the assessing authority.     

75    The Minister however submits that, as was made clear in Patel and Pavuluri, the opportunity to provide correct information about changes of circumstances must be considered in the context of the part of the Migration Act in which it appears, and is not an open-ended opportunity to update an application; and further that there is nothing in s 104 itself which can change the criteria for the grant of a visa in this case.

76    Notwithstanding the questionable adequacy of the guidance offered by Form 1022 and the Department’s letter, as a matter of law in light of Patel and Pavuluri, the Minister is clearly correct. I am not persuaded that either the letter or the content of Form 1022 were misleading such as to raise any issue of reasonableness in respect of the Tribunal’s decision.

77    The fifth ground of appeal is not substantiated.

Ground of appeal 6

78    The sixth ground of appeal is a variation of ground of appeal 5 in that it similarly relies on the comments of the primary Judge at [40].

79    In light of my earlier comments I consider that this ground of appeal lacks merit.

Conclusion

80    In conclusion, I consider that the facts of this case are not materially distinguishable from those in Patel or Pavuluri. The reasoning of their Honours in those cases is applicable here.

81    As discussed, ss 54, 55 and 104 of the Migration Act do not contemplate that a visa applicant can “notify” the Department of a change of circumstances, or new information, being a fundamental alteration to the foundation of his or her visa application such as a change of nominated occupation. The proper course for the appellant in this case, once it was clear that he was unable to provide an assessment supporting his nominated occupation, was for him to withdraw the application and make another application nominating his new preferred occupation. He did not do so.

82    As none of the grounds of appeal are substantiated the appropriate course is to dismiss the appeal. However in view of the observations of the primary Judge at [38]-[41], and the prospect that the appellant may have – however, as it turns out, misguidedly – misunderstood his ability to rely on a notification of a change of his nominated occupation on the Form 1022 given the language used on that form, I consider it appropriate that each party bear their own costs.

83    The appropriate orders are that:

(1)    The appeal be dismissed.

(2)    Each party bear its own costs of and incidental to this appeal.

Associate:

Dated:    16 April 2019