FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774

ORDERS

THE COURT ORDERS THAT:

1.    The name for the first respondent is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 16 September 2019.

2    The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (the Tribunal) to refuse the appellant a temporary work visa. The primary judge accepted that the Tribunal had made an error in dismissing the application without a hearing. However, his Honour concluded that the error made no difference to the outcome as the appellant had not satisfied a criterion for the visa, and the error was not therefore a jurisdictional error.

3    The appellant submits that the primary judge erred because he satisfied the criteria for a different visa and it was open for the Tribunal to grant him that other visa, so that the outcome could have been different if the Tribunal had conducted a hearing.

Background

4    The appellant is a citizen of India who arrived in Australia in July 2014. He enrolled in a Masters of Engineering degree at the University of South Australia. The degree was conferred on the appellant on 9 August 2016.

5    On 23 September 2016, the appellant applied for a Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) visa. A visa of that kind is prescribed in cl 1229 of Sch 1 and Pt 485 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations).

6    There are two “streams” of a Subclass 485 visa—the Graduate Work stream and the Post-Study Work stream. The appellant’s application was for the Graduate Work stream. The appellant’s evidence was that his intention was to apply for the Post-Study Work stream, but that he erroneously applied for the Graduate Work stream.

7    The application form completed online by the appellant was headed, “Temporary Graduate (Class VC, Subclass 485)—Graduate work stream”. In the form, under the heading “Skills assessment”, the following question appeared:

Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation?

The appellant answered “No”.

8    Later the form stated:

You must provide evidence of a suitable skills assessment from the relevant assessing authority, or evidence that you have booked to undergo a skills assessment with the relevant assessing authority when you lodge this application.

Failure to do so may result in you being unable to satisfy the requirements for lodging an application or being unable to satisfy the criteria for this visa.

The form then required insertion of the name of the assessing authority, the date of the skills assessment and a reference/receipt number. The appellant left this section of the form blank.

9    On 5 December 2016, a delegate of the first respondent (the Minister) refused the appellant’s application. The delegate noted that the prescribed criteria included cl 485.223 of Sch 2 of the Regulations which required that the application be 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”. The delegate observed that in the visa application, the appellant declared that he had not applied for a skills assessment and had failed to provide evidence of having applied for a skills assessment. The delegate concluded that the appellant had not satisfied cl 485.223 and rejected the application.

Proceedings before the Tribunal

10    On 15 December 2016, the appellant applied to the Tribunal for review of the delegate’s decision. In his application form, the appellant provided a mobile phone number and an email address.

11    On 18 April 2017, the Tribunal sent a letter to the appellant’s nominated email address inviting him to attend a telephone hearing on 15 May 2017. The letter set out the appellant’s nominated mobile phone number and asked him to advise the Tribunal if it was not the correct number, or if he preferred the Tribunal to call him on a different number. The letter also asked the appellant to complete and return a “Response to Hearing Invitation” form. The appellant did not complete and return the form.

12    On 8 and 12 May 2017, the Tribunal sent SMS messages to the nominated telephone number reminding the appellant of the scheduled hearing. Delivery of the SMS messages failed.

13    The appellant did not attend the scheduled telephone hearing on 15 May 2017. The Tribunal proceeded to dismiss the application without further consideration of the application pursuant to s 362B(1A)(b) of the Migration Act 1994 (Cth) (the Act).

14    On 30 May 2017, the appellant emailed the Tribunal from his nominated email address to apply for reinstatement of his application to the Tribunal. The appellant stated that he had been waiting for a telephone call for the hearing scheduled on 15 May 2017. He said that the Tribunal staff were not able to contact him because they were calling him on his previous mobile number, which had been disconnected some days before he received the hearing invitation. The appellant asserted that after receiving the hearing invitation, he had immediately updated his telephone number “on my e-form”. He thought that the Tribunal staff must not have checked the updated form.

15    On 1 June 2017, the Tribunal, acting pursuant to s 362B(1C)(b) of the Act, confirmed the decision to dismiss the application. The Tribunal provided reasons in support of its decision pursuant to s 362C(2). The reasons stated:

The tribunal checked its records and finds that the applicant did not inform the tribunal that he changed his mobile telephone number. The only review “e-form” received by the tribunal was the one that the applicant lodged on 15 December 2016. The applicant did not provide any evidence that he did in fact inform the tribunal of change of this mobile number at any stage prior to the scheduled hearing.

16    The Tribunal went on to observe that the appellant had failed to comply with cl 485.223 of Sch 2 of the Regulations which required that the application be accompanied by evidence that he had applied for assessment of his skills by a relevant assessing authority.

17    The Tribunal stated that it was not satisfied that the appellant had provided a reasonable explanation for his failure to appear at the hearing. It noted that s 362B(1C)(a) allowed the Tribunal to reinstate the review application, “if it considers it appropriate to do so”. The Tribunal stated that it did not consider that it was appropriate to do so, and accordingly, confirmed the decision to dismiss the application. It followed that the decision under review was taken to be affirmed pursuant to s 362B(1F) of the Act.

Proceedings before the Federal Circuit Court

18    The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In his application, he again asserted that he had submitted an “e-form” to the Tribunal with his new telephone number. He also stated that he had made a mistake when completing his visa application form and applied for the Graduate Work stream when he should have applied for the Post-Study Work stream. The application was supported by the appellant’s affidavit which confirmed the matters stated in his application.

19    The primary judge observed that the Minister had not filed any affidavit material to rebut the appellant’s claim that he had provided an “e-form” with his new telephone number to the Tribunal. In the face of the appellant’s unchallenged evidence, his Honour proceeded on the basis that he had updated his telephone number but that the Tribunal staff had made an error in failing to locate the new number in its records. The primary judge appeared to accept that the Tribunal’s error would be jurisdictional if the appellant were able to demonstrate that the error was material.

20    The primary judge noted that prior to his application to the Federal Circuit Court, the appellant had not raised any argument that he had erroneously applied under the Graduate Work stream instead of the Post-Study Work stream. His Honour held that as the appellant was unable to satisfy the criterion in cl 485.223 that he provide evidence of his application for a skills assessment, the Tribunal could not have made any decision but to refuse the application in the Graduate Work stream. His Honour held that any denial of procedural fairness had not deprived the appellant of the possibility of a successful outcome before the Tribunal. Accordingly, there was no jurisdictional error.

The appeal

21    The appellant’s notice of appeal contains the following grounds:

1.    That the second respondent committed a jurisdictional error by erroneously placing too much weight on the fact that the applicant did not choose the right stream while applying for an SC 485 visa. Respectfully, the tribunal gravely erred on this issue and completely lost sight of the fact that the applicant was fully eligible for the grant of visa, had her case been considered under the Post Study Stream. Therefore, it was wrong on the part of the Tribunal to conclude that the applicant's case could only be considered under one particular stream. The single judge has not considered this aspect at all.

2.    The single judge did not rectify the finding of the second respondent as it misunderstood or misapplied the migration regulations by erroneously placing too much weight on the fact that the evidence of intention to obtain the skill assessment did not accompany the application lodged by the applicant. Whilst it was correct that it was a mandatory requirement under a particular stream for grant of SC 485 visa, but (sic) it is also an admitted fact that it was not a requirement for grant of the same visa under a different “Post Study” stream.

3.    The single judge failed to recognize the error committed by the second respondent by not adhering to the mandatory provisions of Section 359AA of the Migration Act. As required by law under s359AA(1)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and (b)(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (ii)    invite the applicant to comment on or respond to it; and

(iii)     advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)     if the applicant seeks additional time to comment on or respond to the information­adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.

4.    The Hon'ble single judge although admitted that the tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. The Hon'ble Judge although observed that the applicant may have been denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant, but the Hon'ble single judge based the decision on the wrong presumption that applicant was not otherwise likely to succeed on the merits of the case.

5.    That the single judge did not consider and give any weight to the fallacy committed by the second respondent when it drew a negative inference from the fact that applicant could only apply under one stream and could only be considered under that particular stream and did not give the applicant sufficient opportunity to respond as to why this inference was not the case as per s.359AA of the Act. This was important because the applicant, as understood rightly, was of the firm opinion that if he was not eligible for the nominated stream as he did not say “yes” to all the eligibility questions at the beginning of the application, then he will obviously be considered for the alternative stream wherein he ticked all the boxes and would have said “yes” to all the eligibility questions.

6.    That the second respondent made a jurisdictional error by not even discussing the submissions made by the applicant that the particular “Graduate Stream” was ticked by the applicant by mistake and wherein it was an admitted fact that an application for the grant of SC 187 visa could be considered under the Temporary Residence Transition Stream in an eventuality where even though the applicant had by mistake chosen the Direct Entry stream. It was always a case of the applicant that he had chosen and ticked the Graduate Work stream by mistake while lodging the online application and the said mistake was unintentional and bona fide.

7.    That the judgment of the Federal Circuit Court of Australia is affected by appealable error because, at first instance, the Federal Circuit Court did not consider and give any finding on the issue that the applicant was denied the procedural fairness by the said respondent and resultantly the principles of natural justice were violated because admittedly the applicant had corrected his telephone number in the electronic form which is the main application before the AAT for merits review.

8.    There is no doubt that all the questions regarding Age, English, Police Check etc are mentioned at the outset to determine the eligibility of an applicant who is lodging an application for grant of SC 485 visa. Once the applicant had truthfully answered the question that he had not applied for the skills assessment, the expected outcome should have been that he was not eligible to apply for SC 485 visa (Graduate Stream) and the department online system should not have allowed him to proceed further as the system does in many other cases including Citizenship applications. The entire purpose of having eligibility questions on page 1 of the application gets defeated if the system allows you to go ahead despite answering “No” to one of the questions and confirming your ineligibility. This was a sheer waste of time, energy and money. The career and life of the applicant have been put in a jeopardy because of this small mistake. The systems should be designed to be user-friendly, especially when the visa applications are lodged without the help of a lawyer.

(Emphasis in original; underlining added.)

22    The appellant was unrepresented in the appeal. He did not file any written submissions. At the hearing, he repeated his submission made to the Federal Circuit Court that he had in fact notified the Tribunal of his new telephone number. He submitted that the visa application form was confusing and that he had selected the wrong option and had accidentally applied for the Graduate Work stream rather than the Post-Study Work stream. He submitted that he satisfied the criteria for the grant of a Post-Study Work stream visa.

23    The appellant’s notice of appeal asserts that the Tribunal failed to consider whether he could be granted a Post-Study Work stream visa. The assertion is that it was open to the Tribunal to grant him a Post-Study Work stream visa even though he applied in the Graduate Work stream.

24    The Minister submits that the primary judge was correct to hold that the Tribunal was bound to affirm the decision of the Minister’s delegate because the appellant did not satisfy the criteria for the Graduate Work stream. The Minister submits that the Tribunal could not have considered the Post-Study Work stream as it had not been nominated in the visa application.

25    There are five premises advanced by the Minister in support of his submission.

26    First, the Minister must only consider “valid” applications for a visa: see ss 47(1) and (3) of the Act. The Tribunal is in the same position as the Minister.

27    Second, a “valid” application for a visa is one which complies with s 46 of the Act. Section 46(1) provides that:

…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…

(Emphasis added).

28    Third, s 31 of the Act states that “there are to be prescribed classes of visas”. The Regulations prescribe classes of visa in Sch 1, subclasses in Sch 2, and “streams”. In Huynh v Minister for Immigration and Citizenship (2012) 269 FLR 92; [2012] FMCA 864 (Huynh) at [18], Cameron FM held that, because the Act does not limit the meaning of “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.

29    Fourth, s 46(3) of the Act states that the “regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application”, and s 46(4) provides that the regulations may provide for, inter alia, the 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.

30    Fifth, in Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 (Hayman), Finkelstein J at [23] doubted the correctness of an earlier judgment by Einfeld J in Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 433 which had held that a decision-maker could grant a different class of visa than the one applied for if the applicant satisfied the criteria for the different class. His Honour also considered that, in any event, the visa process under the Act at the time of Buksh was significantly different to the current scheme.

31    The Minister observed that cl 1229(3)(j) of Sch 1 of the Regulations requires that an applicant seeking the grant of a Subclass 485 (Temporary Graduate) visa “must nominate only one stream to which the application relates”. The Minister submits that a valid application for the visa in this case required the appellant to “nominate only one stream”. An application which nominated both streams would not be a valid application. Under s 65 of the Act, the Minister could not consider an application for a different visa stream which had not been nominated as the application would not meet the requirements of being a valid visa application for this class of visa.

Consideration

32    The outcome of the appeal depends upon whether the primary judge was correct to hold that the Tribunal’s error in dismissing the appellant’s application without a hearing was not material. His Honour considered that even if there had been a hearing, the Tribunal was bound to affirm the delegate’s decision on the basis that a criterion for the grant of the visa he applied for was not satisfied. However, the appellant argues that it was open to the Tribunal to grant him a different visa, within the same class and subclass but in a different stream, which he was qualified for.

33    That leads to the question of what visa the appellant applied for. As will be shown, the application made by the appellant is properly described as a “Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) in the Graduate Work stream” visa.

34    The next question is whether it was open to the Tribunal to instead grant the appellant the visa he intended to apply for, and was apparently qualified for, a “Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) in the Post-Study Work stream” visa. In order to answer that question it is necessary to consider the legislative provisions in some detail.

35    Section 29 of the Act provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter and remain in Australia. Under s 30, visas may be permanent or temporary.

36    Section 31 of the Act provides, relevantly:

31    Classes of visas

(1)    There are to be prescribed classes of visas.

…

(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.

37    Section 45 of the Act provides:

(1)    Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

38    Section 65 of the Act provides, relevantly:

65    Decision to grant or refuse to grant visa

(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 by…; 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.

39    The Minister must consider a valid application for a visa, but must not consider an application that is not a valid application: ss 47(1) and (3). A valid application is one that complies with s 46 of the Act, which provides, relevantly:

46    Valid visa application

Validity—general

(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;

…

(2)    Subject to subsection (2A), an application for a visa is valid if:

(a)     it is an application for a visa of a class prescribed for the purposes of this subsection; and

(b)     under the regulations, the application is taken to have been validly made.

…

Prescribed criteria for validity

(3)    The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

 (4)    Without limiting subsection (3), the regulations may also prescribe:

(a)    the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

(b)    how an application for a visa of a specified class must be made; and

(c)    where an application for a visa of a specified class must be made; and

(d)    where an applicant must be when an application for a visa of a specified class is made.

(5)    To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications…

40    To be valid, a visa application must, under s 46(1)(a) of the Act, be for a visa of “a class specified in the application”. Further, under ss 46(1)(b) and (3), the visa application must satisfy any prescribed criteria and requirements that must be satisfied for an application for a visa of “a specified class” to be a valid application.

41    The word “class” is not defined in the Act. However, s 31(1) states that, “There are to be prescribed classes of visas”. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class.

42    Regulation 2.01(1)(a) of the Regulations 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. Clause 1229 of Sch 1 sets out a class of “Skilled (Provisional) (Class VC)” visa.

43    Regulation 2.02(1) provides that Sch 2 is divided into Parts, each identified by the word “Subclass” followed by a 3-digit number and the title of the subclass. Under reg 2.02(2), if a Part of Sch 2 is listed in Sch 1 for a particular class of visa, that Part is relevant. For a Skilled (Provisional) (Class VC) visa, “Subclass 485 (Temporary Graduate)” in Sch 2 is relevant.

44    Regulation 2.03(1) provides that, for the purposes of s 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant of a visa of a particular class are the primary criteria and any secondary criteria are set out in a relevant Part of Sch 2. The effect of reg 2.03(1A) is that if any criteria are set out in a Part of Sch 2 as a “stream”, the primary and secondary criteria include the criteria “described as that stream”. Under reg 2.03(1B), if criteria are set out as a “stream”, the visa to which the Part relates may be described as, “[the Subclass of the visa] in the [name of the stream]”.

45    In Sch 2, there is a note in Part 485 which states, “The primary criteria for the grant of a Subclass 485 visa include criteria set out in streams”. The Part then sets out the criteria for a “Graduate Work stream” and a “Post-Study Work stream”.

46    It may be seen that the application made by the appellant was for a “Skilled (Provisional) (Class VC), Subclass 485 (Temporary Graduate) in the Graduate Work stream” visa.

47    Regulation 2.07 provides:

(1)    For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:

(a)    the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and

(b)    regulation 2.12C and the relevant item of Schedule 1 set out:

(i)    the visa application charge (if any) payable in relation to an application; and

(ii)    the components that may be applicable to a particular application for the visa; and

(c)    the relevant item of Schedule 1 sets out other matters relating to the application.

…

(3)    An applicant must complete an approved form in accordance with any directions on it.

(4)    An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:

(a)    in the form; or

(b)    in a separate document that accompanies the application.

(5)    If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:

(a)    an approved form for making an application for a visa of a specified class;

(b)    the way in which an application for a visa of a specified class must be made;

(c)    the place at which an application for a visa of a specified class must be made;

(d)    any other matter.

…

48    Clause 1229(1) of Sch 1 provides that the approved form for a Skilled (Provisional) (Class VC) visa is that specified by the Minister in a legislative instrument made under reg 2.07(5). The approved form is Form 1409. The form requires the applicant to nominate the stream he or she is applying for. Clause 1229(3)(j) relevantly provides that:

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.

49    The Minister submits that in order to make a “valid application” for a Skilled (Provisional) (Class VC) visa, the appellant was required to nominate “only one stream”, and that any application which nominated two streams would not be a “valid application”. However, the reasoning for this submission has not been explained. Section 65(1) of the Act recognises a distinction between criteria for “a valid application for a visa” and “health criteria” and “other criteria for it prescribed by this Act or the regulations”. Sections 46(2)(b), (3) and (5) envisage that not all prescribed criteria for a visa are necessarily criteria that must be satisfied for there to be a valid application. In other words, some criteria prescribed under the Regulations may be criteria that must be satisfied for the application to be a valid application (s 46), while other criteria may be prescribed that must be satisfied for an applicant, having made a valid application, to be granted a visa (s 31(3)). Regulation 2.07(4) expressly provides that an application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address. The absence of similar express provision in cl 1229(3)(j) may suggest that if the requirement to nominate only one stream is not complied with, the application may still be valid; although the effect of reg 2.07(3), which provides that an applicant must complete an approved form in accordance with any directions on it, must also be considered. For present purposes, it is enough to note that in his application form, the appellant nominated a single stream, namely the Graduate Work stream.

50    It may be seen that the Regulations use the terms “classes”, “subclasses” and “streams”. The Minister submits that each of these expressions describes a “class” of visa for the purposes of ss 31 and 46 of the Act. The Minister relies upon Huynh at [18], where Cameron FM said:

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”.

51    The Minister notes that an appeal from that judgment was dismissed by Nicholas J in Huynh v Minister for Immigration and Citizenship (2013) 210 FCR 580 at [15]–[19]. However, the issue on appeal was confined to the validity of a particular clause in Sch 1 of the Regulations. The appeal judgment did not touch upon the paragraph quoted above.

52    The Minister relies on Huynh at first instance for the proposition that a “stream” is a class of visa for ss 46(1) and (2), and that under s 65(1), the Minister may not consider granting a visa of a class other than that applied for. In Huynh, Cameron FM indicated that a “stream” or “subclass” under the Regulations is to be regarded as a “class” of visa under ss 31 and 46. That view seems open to doubt. 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”. Reg 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”. However, there was no argument upon this point and, unless necessary, I would prefer not to decide it.

53    As I have mentioned, cl 1229 of Sch 1 and Part 485 of Sch 2 of the Regulations refer to two streams—the Graduate Work stream and the Post-Study Work stream. The appellant intended to apply under the Post-Study Work stream, but when completing the online application mistakenly applied for a visa in the Graduate Work stream. The appellant did not satisfy the criterion for the Graduate Work stream that the application be “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”. However, the appellant claims that he satisfied the criteria for the Post-Study Work stream and that it was open to the Tribunal to grant him a visa in that stream.

54    I was referred to the decision of Einfeld J in Buksh. His Honour held that a decision-maker could grant a different class of visa than the one applied for if the applicant satisfied the criteria for the different class. His Honour stated that:

With legislation such as this, I am unable to accept that the obligation falls onto a person such as the applicant to nominate the correct or most appropriate class or type of entry permit for his circumstances. The lives of families in some danger of persecution or harassment if required to leave Australia and return to their country of origin cannot be so easily programmed. They are not regulated bureaucrats. They are looking for competent and comprehensive assistance when they enter the portals of a government office.

55    The judgment of Einfeld J was overturned on appeal. However, the Full Court stated that it was unnecessary to consider whether the primary judge was correct in concluding that the Act, “did not preclude the minister or his delegate granting an entry permit of a class other than that applied for provided the applicant satisfied the prescribed criteria in relation to that other class”: Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399 at 405.

56    The Minister relies upon Hayman. In that case, the appellant had mistakenly applied for a Concessional Family visa, for which he was not eligible, instead of a Preferential Family visa, for which he was eligible. The visas were in different classes. The Minister had considered the application that was made, and found it could not be granted. The appellant contended that the Minister, and by extension the Tribunal, should have granted the appellant a Preferential Family visa, even though it was not applied for, as he satisfied the prescribed criteria. Finkelstein J rejected that argument, and held relevantly:

[18]    The scheme of the legislation thus disclosed is as follows: a non-citizen who wishes to obtain a visa must make an application; that application must be for a particular class of visa; if the regulations specify how an application must be made, the regulations must be complied with; if a fee is payable in respect of an application for a visa then the fee must be paid; if the regulations provide for the manner of payment of the fee then the regulations must be complied with. These are the conditions that must be satisfied before the minister can exercise his power to consider an application.

[19]    In Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 255 I said that the result of these provisions was that “unless the Act or the regulations otherwise provide the minister is not to consider an application for a visa if it is not an application for a visa of a particular class and if the application is not made in the prescribed manner”: see also Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; 135 ALR 583 where the full court held that ss 45 and 46 disclose a clear intention on the part of the parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists.

…

[21]    Mr Hayman made his application for a concessional family visa on the prescribed form and paid the prescribed fee. Accordingly, the minister was obliged to, and he did (by his delegate), consider that application. However, Mr Hayman had not made an application for a preferential family visa; that is, he had not lodged an application for such a visa and he had not paid a fee for such an application. Thus the minister could not grant a preferential family visa to Mr Hayman. On one view of the effect of ss 45-47, especially s 47(3), the minister simply lacked the power to grant such a visa. On the other hand, where the minister receives an invalid application for a visa, while he is not to consider the application, if the Minister does consider it and grants a visa that visa is not invalid: see s 69(1). In other words, the purported exercise of the power to grant a visa in that circumstance is treated as a valid exercise of that power unless and until the visa is set aside.

57    Justice Finkelstein at [23] doubted the correctness of Einfeld J’s opinion in Buksh that a decision-maker could grant a different class of visa than the one applied for if the applicant satisfied the criteria for a different class. In any event, Finkelstein J distinguished that judgment as it involved an earlier version of the Act which had since been significantly amended.

58    The Minister submits that the decision in Hayman is correct, submitting that it was endorsed in Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435 at [35] by Merkel J, with whom Finkelstein J agreed. However, Merkel J only endorsed Hayman as to the limited power of a tribunal to review a decision made in respect of an invalid application. That case did not consider whether a decision-maker can grant a visa other than that applied for.

59    In any event, Hayman has limited relevance to this case. In that case, the alternative visa which it was claimed the Minister could grant was a visa of a different class. In this case there is a real question as to whether visas in separate streams are visas within the same class or in different classes. As I have said, I would prefer not to determine that issue in the absence of argument.

60    I will proceed on the assumption that separate streams are to be regarded as being within the same class. On that assumption, I will consider whether it is open for the Minister to grant a visa in a different stream to the one applied for. In my opinion, it was not open to the Minister, and the Tribunal, to grant the appellant a visa in the Post-Study Work stream for the reasons that follow.

61    In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Wu) (referred to in Hayman as Fang v Minister for Immigration and Ethnic Affairs), RD Nicholson J (with whom Jenkinson J agreed) said at 278–279:

Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen “must” apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed “if, and only if” certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 2.07. Section 47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), “to avoid doubt”, enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial Act. It will also be noted that none of these provisions relevantly use “shall” or “may” so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.

Section 25c of the Acts Interpretation Act 1901 (Cth) provides that “where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a precondition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the prerequisite entry to Ministerial consideration of the application.

(Underlining added.)

62    The judgment in Wu demonstrates that an application must be made in the approved form. In that case, no form was used at all. The judgment does not make it clear whether, if the approved form is used, strict compliance with the form is required, or substantial compliance is enough. It does not matter for the present case.

63    Clause 1229(3)(j) of Sch 1 of the Regulations required that an application for a Skilled (Provisional) (Class VC) visa must, “nominate only one stream to which the application relates”. The appellant complied with the form by nominating one stream, the Graduate Work stream.

64    Section 45(1) of the Act requires a non-citizen who wants a visa to apply for a visa of a particular class. Under s 46(1), an application for a visa is valid only if it is for a visa of a class specified in the application. While an application must specify a visa of a particular class in order to be a valid application, compliance with that requirement does not mean that any visa within that class may be granted. The grant of a visa is subject to other provisions of the Act and Regulations, including s 65 of the Act.

65    Under s 65(1) of the Act, “after considering a valid application for a visa, the Minister…if satisfied that…the other criteria for it prescribed by this Act or the regulations have been satisfied…is to grant the visa; or…if not so satisfied, is to refuse to grant the visa” (underlining added). In my opinion, the word “it” refers to the visa that has been applied for under the valid application. In other words, the Minister must first be satisfied that the criteria prescribed under the Act and Regulations for the making of a valid application are satisfied; and must then be satisfied that the criteria prescribed under the Act and Regulations for the particular visa that is the subject of the valid application are satisfied.

66    In this case, the appellant made a valid application for a visa in the class described as “Skilled (Provisional) (Class VC)”. The particular visa he applied for within that class was a “Subclass 485 (Temporary Graduate) in the Graduate Work stream” visa. The appellant did not satisfy the criterion in cl 485.223 in Sch 2 for that visa. Accordingly, the Minister was required to refuse to grant the particular visa that was the subject of the application.

67    Under s 65(1) of the Act, the Minister’s power is to consider whether the criteria for the particular visa that was the subject of a valid application are satisfied and grant or refuse to grant that visa. The Minister has no power to grant a visa that was not applied for. The appellant made no application, valid or otherwise, for a “Subclass 485 (Temporary Graduate) in the Post-Study Work stream” visa. Therefore, the Minister had no power to grant that visa.

68    The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister. This position was stated by Finkelstein J in Hayman at [22], and endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A”, as follows:

The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.

(Citations omitted.)

69    I have concluded that the Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa. The Tribunal had no greater power. The Tribunal would have been required to affirm the Minister’s decision because the appellant had not satisfied cl 485.223, and could not have granted any other visa. Even if the Tribunal erred in deciding to affirm the decision under s 362B(1C)(b) of the Act, and failing to reinstate the application under s 362B(1C)(a), the error made no difference to the ultimate outcome. Therefore, the Tribunal’s error was not jurisdictional: cf Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.

70    The appellant submits that the online application system should not have allowed him to continue to apply in the Graduate Work stream when he had indicated that he had not applied for the skills assessment, as he would not then be eligible for grant of that visa. He points out that:

The entire purpose of having eligibility questions on page 1 of the application gets defeated if the system allows you to go ahead despite answering “NO” to one of the questions and confirming your ineligibility. This was a sheer waste of time, energy and money. The career and life of the applicant have been put in a jeopardy because of this small mistake. The systems should be designed to be user friendly, especially when the visa applications are lodged without the help of a lawyer.

71    The appellant’s point that the system should not have allowed an applicant to continue to apply after he had indicated he had not met one of the criteria is a reasonable one. That is particularly so where even the titles given to the two streams are apt to cause confusion, as the “Post-Study Work stream” requires the applicant to be a graduate and the other stream is called the “Graduate Work stream”. It is not surprising that the appellant, and others whose first language is not English, would be confused.

72    In addition, the version of Form 1409 current at the time of the application stated that failure to provide evidence of a suitable skills assessment or evidence that the applicant has booked to undergo a skills assessment “may result” in the applicant being unable to satisfy the criteria for the visa. That statement was misleading because that failure meant that the applicant could not satisfy the criteria. It may be noted that the Form 1409 has since been amended to state that, “If you have not applied for a skills assessment, you cannot meet the criteria for the grant of this visa”.

73    The position is particularly egregious for the appellant who claims that he satisfied the criteria for a Post-Study Work stream visa (and the Minister has not contended to the contrary). The difficulties with the form do not assist the appellant in this appeal. However, they may well be relevant if he were to apply for an act of grace payment equivalent to his wasted application fee under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth). They are also relevant to costs.

74    The appeal must be dismissed, but, having regard to the difficulties with the application form pointed to by the appellant, it is appropriate to make no order as to the costs of the appeal.

Associate:    

Dated:    10 June 2020