Federal Court of Australia

Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary, leave be granted to the appellant to rely on all grounds of appeal in the notice of appeal filed on 26 April 2022.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent, fixed in the amount of $4,500.00.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from a Judge of the Federal Circuit and Family Court of Australia, Division 2 in Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 195. The primary Judge upheld the decision of the Administrative Appeals Tribunal (Tribunal) refusing to grant the appellant a Skilled (Provisional)(Class VC)(Subclass 485) visa (Skilled Visa).

2    The appellant’s grounds of appeal are as follows:

GROUND 1

1.     His Honour failed to consider that the appellant is meeting the criteria as outlined in the clause 485.231 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) and that the appellant’s study for the qualification or qualifications satisfied the Australian study requirement for grant of subclass 485 visa.

Particulars

(a)     His Honour should have found that the Tribunal failed to engage with the evidence and give real and meaningful review rather focused on the issue that the appellant doesn’t meet the criteria for filing visa application withing prescribed limitation. The Tribunal erred in its finding by not considering a letter from Federation University of Australia dated 11 July 2016 confirming that the appellant had successfully completed the MBA on 8 July 2016; a statement of academic completion dated 11 July 2016 which recorded the completion of all academic requirements for the MBA; and an academic transcript dated 8 July 2016 which recorded the completion of the requirements for the MBA.

(b)     His Honour failed to take into consideration the relevant fact that the appellant completed the study qualification as per the Australian study requirements and the same was clearly declared in the skilled visa application form. His Honour should have found that the Tribunal erred in law in failing to deliver the correct finding as the appellant lodged the application and was genuinely unaware of the time limitation and it was bona-fide mistake to lodge the application within 6 months.

GROUND 2

2.     His Honour should have found that the Tribunal denied the Appellant procedural fairness in making its decision.

Particulars

(a)     The Appellant meets all the requirements and satisfies the criteria for the grant of Skilled visa. The appellant meets the “Australian study requirement” however as the appellant was unaware of the time limitation, she could not file the application within six months ending “immediately before” the day the Skilled Visa application was made.

GROUND 3

3.     His Honour should have found that the Tribunal misconstrued clause 485.231 of Schedule 2 to Migration Regulations 1994 (Cth) (“Migration Regulations”) with respect to Australian study requirement. His Honour should have found that the Tribunal committed jurisdictional error when it failed to ask correct questions from the appellant pertaining to the requirement to apply for the Skilled Visa within six months of completing the MBA.

Particulars

(a)     The Tribunal made a finding that the criteria to grant Skilled (Provisional) (Class VC) visa (“Skilled Visa”) is not met, however his Honour should have also considered the extenuating circumstances applicable in this case. Importantly, Tribunal failed to consider that if the appellant would not have to rush to India due to her father’s serious medical condition, the appellant would have filed the visa on time before leaving Australia.

(b)     The Tribunal should have taken into consideration compassionate circumstances applicable in this case, the fact that the appellant due to non-grant of visa was unable to pursue better career opportunities in Australia because of being denied the skilled visa.

GROUND 4

4.     His Honour should have found that the Tribunal committed jurisdictional error when it failed to consider the relevant fact that the appellant had made an “honest and genuine error” in applying for the Skilled Visa within 6 months from completion of degree and meeting all other important requirements of “Australian study requirement” in Australia.

GROUND 5

5.     His Honour was procedurally unfair and/or unreasonable in refusing the Appellant’s grounds of seeking judicial review of second respondent’s decision.

Particulars

(a)     His Honour should have found that the Tribunal committed error as it failed to take into consideration the appellant’s explanation for late lodgment of the visa application before second respondent. The appellant’s claim that she was unaware of the limitation period and that she had to rush to India due to her father’s serious medical condition were relevant considerations that were disregarded both by the AAT and His Honour.

(b)     His Honour should have considered the evidentiary material provided in support of appellant’s application that the appellant completed Master of Business Administration (International Management) (BS 9) on 08 July 2016.

(c)     His Honour fell into error in refusing the Appellant’s request to grant the visa.

Background

3    The appellant is a citizen of India. The appellant completed a Masters of Business Administration (International Management) (MBA) at Federation University Australia on 8 July 2016.

4    On 6 March 2017 the appellant applied for a Skilled Visa. On 11 April 2017, a delegate of the Minister refused that application. The delegate found that the appellant did not satisfy clause 485.231(3) under Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), as the appellant had completed her MBA more than 6 months prior to the Skilled Visa application.

5    On 28 April 2017 the appellant applied to the Tribunal for review of the delegate’s decision. On 5 January 2018 the Tribunal affirmed the decision of the delegate.

6    On 30 January 2018 the appellant applied to the Federal Circuit Court of Australia (as it then was) for review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). On 31 March 2022 the primary Judge dismissed the application.

7    On 26 April 2022 the appellant appealed to this Court from the decision of the Federal Circuit Court.

Decision of the Tribunal

8    The reasons of the Tribunal can be summarised as follows.

9    The Tribunal identified the relevant criteria for a Skilled Visa as cl 485.231 of Schedule 2 to the Regulations which reads:

485.231 Criteria for post-study work stream

(1)     The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

(2)     Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

(3)     The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

10    In relation to those criteria the Tribunal observed:

9.     Based on the completion letter from Federation University dated 11 July 2016 in the Department’s file, the Tribunal is satisfied that Ms Gambhir completed her Master of Business Administration (International Management) degree on 8 July 2016.

10.     During the course of the hearing, the Tribunal discussed with Ms Gambhir the provisions of cl. cl.485.231 of Schedule 2 of the Regulations. She told the Tribunal that she had not sought professional advice prior to lodging her Subclass 485 visa application and was not aware of the need to lodge her application within 6 months of completing her degree. She acknowledged she did not meet legislative requirements in this regard.

11.     Based on evidence provided, it is clear Ms Gambhir completed a Master of Business Administration (International Management) degree at Federation University on 8 July 2016. She lodged her Subclass 485 visa application on 6 March 2017. In the circumstances, the Tribunal finds Ms Gambhir does not meet cl.485.231(3) of Schedule 2 of the Regulations.

12.     On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant Subclass in this case, the decision under review must be affirmed.

11    The Tribunal concluded that the decision not to grant the Skilled Visa must be affirmed.

Decision of the Primary Judge

12    Before the primary Judge, the appellant relied on eight grounds of review:

1.     Applicants Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa was refused and a review application was made with the relevant appeals tribunal.

2.     The case was appealed at the Administrative Appeals tribunal was also refused.

3.     Applicant now wishes to appeal further at the Federal Courts for justice.

4.     Applicant believes that justice is denied to her and there is an error in the decision making in the visa application.

5.     Applicant is a genuine person and has made a visa application for a subclass 485 visa. However due to not meeting the study requirement and providing incorrect information on the application form the visa was refused. Applicant agrees to this incorrect infomation however does also confirm that it was in error and her misjudgement. It was not done on purpose, she did not seek professional advise and was not aware of the 6 month rule. It was a genuine error on her behalf.

6.     Now the applicant wishes to have this decision reviewed as she believes that a genuine error was made however furthermore a jurisdictional error was made in deciding the case.

7.     The applicant had genuinely completed her studies and applied for the relevant visa however she missed the tiem period in which it was to be applied which was an honest and genuine error.

8.    Applicant wishes for a fair chance and requests the Judicial courts to kindly review the matter and provide her with justice as she has been denied justice.

(errors in original)

13    The appellant submitted before his Honour that, in essence, she felt that the decision of the Tribunal was unfair as she had not done anything wrong, and after completing her MBA her father became unwell and she needed to return to India. The appellant had approached a migration agent for advice on her Skilled Visa application and was not told about the time constraints on filing the Skilled Visa application. She would have applied for a Skilled Visa before leaving Australia had she known about the time constraints. The appellant was unable to pursue better career opportunities in Australia as a result of being denied the Skilled Visa.

14    In summary, the primary Judge found that:

    Grounds 1, 2 and 3 narrated the procedural history of the Skilled Visa application and did not allege any error by the Tribunal or establish any jurisdictional error.

    Grounds 4, 6 and 8 were not made out and did not establish jurisdictional error on the part of the Tribunal as the Tribunal had clearly complied with the limited procedural fairness obligations imposed on it by Division 5 of Part 5 of the Migration Act.

    Grounds 5 and 7 did not allege any error on the part of the Tribunal and did not establish jurisdictional error on the part of the Tribunal. It was not in dispute that the appellant completed the MBA on 8 July 2016 which was more than 6 months immediately prior to applying for the Skilled Visa on 6 March 2017. The only decision available to the Tribunal was to find that the appellant did not meet the requirements of cl 485.231(3) of Sch 2 to the Regulations, irrespective of whether she had made an “honest and genuine error”.

    Although the appellant was a litigant in person, she is English-speaking, well-educated, and had access to advice from a migration agent.

    Any potential allegation of fraud upon the Tribunal by a third party was not made out. The alleged failure of a migration agent to advise the appellant of the time limits relevant to the Skilled Visa application criteria was not supported by any evidence and in any event did not establish fraud upon the Tribunal by a third party, and therefore did not establish jurisdictional error on the part of the Tribunal.

15    The primary Judge concluded that:

27     The Court has concluded that none of the grounds of the Judicial Review Application, nor the possible ground of fraud upon the Tribunal, have been made out. No other possible jurisdictional error is otherwise apparent in the Tribunal Decision. No jurisdictional error in the Tribunal Decision has therefore been established. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

Submissions in the appeal

16    The appellant made no written submissions in the appeal. The appellant orally submitted, in summary:

    Her migration agent did not provide her with proper guidance. The appellant should have made a complaint about him.

    As she was only on a bridging visa after the rejection of her Skilled Visa application, she was denied opportunities which would have been available to her, had she obtained her visa of choice.

    She had spent a great deal of money on her studies.

    Although she was late in submitting her visa application, a reason for her lateness was that she had been required to return to India to visit her father, who was ill.

    She deserved a working visa, and should have been provided with flexibility in relation to the submission date.

17    The respondent made both written and oral submissions. Those submissions were, in summary:

    Grounds of appeal on which the appellant sought to rely were not previously raised before the primary Judge, and leave was therefore required to agitate those grounds. Leave should not be granted because:

•    there was no explanation provided for why those grounds were not run at the first instance;

•    allowing the appellant to run an entirely new case on appeal does not maintain the structural integrity of the appellate process; and

•    the new grounds did not have sufficient merit to warrant the grant of leave.

    Ground 1 is misconceived as the role of the primary Judge was to assess whether any jurisdictional error arose in the Tribunal’s consideration of whether the appellant satisfied cl 485.231(3). The primary Judge correctly determined that the only decision available to the Tribunal was that the appellant failed to meet the mandatory time requirement.

    Ground 2 is misconceived as any alleged failure of the primary Judge to recognise that the appellant satisfied the statutory criteria for a Skilled Visa does not equate to a denial of procedural fairness. In any event, the primary Judge was correct in holding that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act.

    Grounds 3 to 5 are not made out as the Regulations do not afford the decision maker any discretion as to whether cl 485.231 is satisfied or not, in relation to any extenuating or compassionate circumstances.

    Ground 5 is misconceived as the role of the primary Judge was to assess whether any jurisdictional error arose in the Tribunal’s decision. The completion of the MBA does not itself satisfy the Australian Study requirement and the date of completion of the MBA was accepted by the Tribunal.

    Grounds 1 to 5 do not raise any arguable case of appellable error on the part of the primary Judge or jurisdictional error on the part of the Tribunal.

    In any event, issues raised at the hearing in relation to the alleged failure of the appellant’s migration agent to advise her of the time constraints imposed by cl 485.231(3) were considered and determined by the primary Judge. The primary Judge held that any alleged poor advice or conduct rose no higher than potential negligence or incompetence and in any event there was insufficient evidence before the Court for a claim of that nature to be made out.

Consideration

18    At the hearing I raised with the parties the question whether leave ought be granted in respect of grounds of appeal on which the appellant sought to rely, noting that:

     the Minister was plainly in a position to address all grounds on their merits;

    the appellant was a litigant in person who may not have understood that leave was required to rely on issues not raised before the primary Judge; and

    it was desirable from the perspective of both parties that all grounds be determined on their merits if possible.

19    Mr Cunynghame for the Minister submitted that while the Minister did not agree that leave should be granted, he would not discourage the Court from assessing the grounds of appeal on their merits.

20    The issues raised in the grounds of appeal in the Notice of Appeal are essentially:

    The appellant’s qualifications satisfied the requirements for the grant of a Skilled Visa, and the Tribunal and primary Judge erred in failing to recognise the requisite state of satisfaction (grounds 1, 2 and 5);

    The Tribunal and the primary Judge should have recognised that the appellant misunderstood or was unaware of the time limits referable to the filing of her Skilled Visa application (grounds 2, 3, 4 and 5); and

    The appellant had good reason for failing to file within the time limits, namely her father’s serious medical condition (grounds 3 and 5).

21    I further note that, although not specifically pleaded as a ground of appeal, the appellant also claimed at the hearing that her failure to apply for a Skilled Visa within the prescribed statutory time limits was largely attributable to the fault of the migration agent to advise her of those time limits.

22    Plainly, the grounds of appeal on which the appellant seeks to rely are intertwined. In the interests of justice, and noting the absence of prejudice to the Minister, to the extent necessary I am prepared in the circumstances of this case to grant the appellant leave to rely all grounds of appeal.

23    Having made that determination, I am satisfied that all grounds of appeal lack merit.

24    The key problem with all of these grounds of appeal is that they are founded on a fatally flawed premise – namely that the delegate or the Tribunal had any discretion within the terms of the legislation to approve a Skilled Visa application made by the appellant after the expiration of six months from the date of completion of her qualification.

25    The criteria for a Skilled Visa as specified in cl 485.231 are that:

(1)    The visa applicant holds a relevant qualification or qualifications;

(2)    The qualification was conferred or awarded by a relevant educational institution; and

(3)    The visa applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

26    I further note cl 485.2 of Sch 2 to the Regulations which relevantly provides:

…

All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.

27    There is no dispute that the appellant satisfied the first and second criteria for a Skilled Visa. There is also no dispute that she failed to satisfy the third criterion.

28    The authorities are unanimous that a failure by an applicant for a Skilled Visa to file the application within the prescribed statutory six month period means that the visa application is not valid.

29    In the matter of Sapkota v Minister for Immigration and Citizenship [2012] FCA 981, Cowdroy J held that there was no error by a Federal Magistrate where a Skilled Visa application was filed more than six months after the assigned completion date by the relevant academic institution as conveyed by letter. His Honour found as follows:

27.     In these proceedings, a letter from Holmes Institute states that the appellant completed the course on 28 September 2008. This letter clearly shows that this was the date at which the university determined that it was satisfied that the appellant had completed the course requirements. This is the date upon which the six calendar month period for filing a visa application commences. Accordingly, the appellant’s application was filed out of time. The Court therefore agrees with the approach of Cameron FM and finds no error in the learned Federal Magistrate’s decision.

(emphasis added)

30    In Venkatesan v Minister for Immigration [2008] FMCA 409 the learned Federal Magistrate noted that it was common cause that the relevant application, to be valid, needed to have been made within six months of completion of the course.

31    This position was accepted as correct in other cases including Kumar v Minister for Immigration [2016] FCCA 3332 at [23-24].

32    It may well be that the appellant had good reason for failing to make her Skilled Visa application within six months of the completion of her degree. Unfortunately, the terms of the criteria in cl 485.231 are mandatory. There is no room for finding that a Skilled Visa application made outside the six month period can be validated by any order of the Tribunal, or indeed the Courts.

33    It may also be that the appellant had difficulties with her migration agent, although there is very little admissible evidence supporting that contention. I note that the primary Judge at [24]-[26] of his Honour’s reasons observed that the alleged advice or conduct of the migration agent rose no higher than possible negligence, or incompetence or inadvertence, but did not establish fraud on the Tribunal or jurisdictional error on the part of the Tribunal. No submissions have been put to me which could support a finding that his Honour was incorrect in so finding.

34    No error in the decision of the primary Judge has been substantiated. The appropriate order is that the appeal be dismissed.

35    Finally, no argument of substance has been put to support a finding other than that costs should follow the event. The Minister has sought an order that the appellant pay his costs, fixed in the amount of $4,500.00. In my view an order to that effect is appropriate.

Associate:

Dated:    29 May 2024