Federal Court of Australia

Mohammed v Minister for Immigration and Multicultural Affairs [2025] FCA 555

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    The Minister’s name be amended to “Minister for Immigration and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    Introduction and background

1    This case has a long genesis.

2    As long ago as July 2015, the first appellant, Mr Mohammed, applied for a visa to work in the nominated skilled occupation of “Computer Network and Systems Engineer”. Both Mr Mohammed and his wife, the second appellant, who was included in the application, appeared before the Court today.

3    In September 2015, a delegate of the Minister refused Mr Mohammed’s application for the visa on the basis that he failed to meet cl 485.221 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevantly, in doing so, the delegate said as follows:

The applicant has not provided any evidence that they had satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made therefore the applicant does not meet Clause 485.221.

As the applicant does not meet the requirements of Clause 485.221, therefore they do not meet the requirements for the grant of a Temporary Graduate (Graduate Work) visa.

Decision

As clause 485.221 is not met by the applicant, I find the criteria for the grant of a Temporary Graduate visa in the Graduate Work Stream are not met by the applicant, and thus the applicant does not meet the criteria for the grant of a Temporary Graduate visa. I therefore find the criteria for the grant of a Temporary Graduate visa are not met by the applicant.

Therefore, I refuse the application by the applicant for a Subclass 485 Temporary Graduate (Graduate Work) visa.

As the application has been assessed as not meeting the requirements of clause 485.221, I have not assessed the application further against the requirements of this subclass.

4    In October 2015, the appellants applied to the second respondent (Tribunal) for review of the delegate’s decision. At the time of making the application for review, the appellants provided further information, including documents from the Austech Business Institute which revealed that Mr Mohammed undertook a Diploma of Management and an Advanced Diploma of Management in the period from May 2014 to May 2015 (that is, within six months of the relevant visa application in the case of the Advanced Diploma).

5    It is worth pausing here to note that four qualifications have been obtained by Mr Mohammed.

6    The first was a Diploma of Information Technology (Networking) from the Australian College of Commerce and Technology Pty Ltd, which was conferred on 10 December 2010 and the second was a Master of Information and Communications Technology (Networking) conferred by the University of Western Sydney, and which was completed on 1 December 2013 (together, the IT courses).

7    The third and fourth were the two management diploma courses to which reference has already been made – the first issued on 2 December 2014, and the advanced diploma on 12 June 2015 (together, the management courses).

8    Returning to the chronology, in February 2017, the appellants were invited to attend a hearing before the Tribunal and, following a hearing on 9 May 2017, the Tribunal affirmed the decision under review on 30 May 2017.

B    Tribunal decision

9    The Minister’s submissions accurately set out the nature of the Tribunal’s decision in the following way:

10.     The Tribunal observed the procedural history of the matter, including the delegate's decision and the requirement in cl 485.221 of Sch 2 to the Regulations: AB 130 at [1]-[7].

11.     The Tribunal noted the definition of Australian study requirement in reg 1.15F(1) of the Regulations and the evidence provided by the Appellant about his study history in Australia: AB 130-131 at [8]-[12].

12.     The Tribunal accepted that the Appellant had undertaken study during the period of May 2014 to May 2015: AB 131 at [13]. On that basis, the Tribunal was satisfied that the Appellant had met the Australian study requirement in the six months preceding the day the visa application was made and therefore satisfied cl 485.221 of the Regulations: AB 131-132 at [14]-[15].

13.     The Tribunal turned to consider whether each of the courses undertaken by the Appellant were closely related to the nominated skilled occupation, as required by cl 485.222 of Sch 2 to the Regulations: AB 132-134 at [16]-[30].

14.     The Tribunal referred to the judgments in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 and Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 and noted that to satisfy cl 485.222, the relationship between the nominated occupation and the Appellant's education must be more than complementary. It also noted that in assessing that, it was not confined to the description of the nominated occupation at the lowest level of the ANZSCO code, but rather that it was necessary for the Tribunal to have regard to any information that was relevant in the higher ANZSCO groupings: AB 133 at [22]-[23].

15.     The Tribunal accepted that the Appellant's Diploma of Information Technology and Master of Information and Communications Technology were closely related to the nominated skilled occupation: AB 134 at [26]. However, the Tribunal was not satisfied that the Appellant's Diploma and Advanced Diploma of Management related to the highly specialised and technical duties of Information and Communications Technology Professionals. The Tribunal considered the submissions made for the Appellant regarding his future plans, however, it focused on whether the management courses as a whole were related to the nominated skilled occupation: AB 134 at [27].

16.     The Tribunal concluded that the Appellant's Diploma and Advanced Diploma of Management were not closely related to the nominated skilled occupation. As such, it found that the Appellant did not satisfy cl 485.222 of Sch 2 to the Regulations and affirmed the decision under review: AB 134-135 at [28]-[31].

10    From the above, it can be seen the Tribunal did consider, on the basis of the information it had before it, whether Mr Mohammed met the “Australian study requirement” in the six months immediately before the day the visa application was made (and hence, considered whether the requirements of cl 485.221 were met).

11    The decision was affirmed, however, by reason of the analysis set out above, relating to cl 485.222.

12    It will be necessary to return to the difference between the delegate’s and the Tribunal’s decision below.

C    Federal Circuit Court of Australia Decision

13    The appellants sought judicial review of the Tribunal’s decision, which took over four years to proceed through the then Federal Circuit Court of Australia.

14    The two grounds before the primary judge reflect the arguments that were advanced before me on appeal.

15    Although strictly speaking, they only identified jurisdictional error in the Tribunal’s decision, and my task is to detect and correct any errors identified in the primary judge’s judgment, I have taken those grounds as being contentions that the primary judge fell into error in not finding that the Tribunal had erred in the manner identified in the grounds of appeal.

16    It is convenient to deal first with ground two before turning to the legal argument encapsulated by ground one.

C.1    Ground Two

17    Ground two as outlined by the appellants in their Notice of Appeal is as follows:

Ground 2

The Tribunal erred by applying an unduly narrow and legally erroneous approach to the assessment of whether the courses undertaken by the Applicant to make up the Australian study requirement were “closely related” to the nominated skilled occupation.

Particulars

The Tribunal failed to compare the whole of the First Applicant's Australian studies with the whole of the nominated occupation.

18    I have carefully gone through the chronology of the courses undertaken by Mr Mohammed.

19    Following that analysis, it is apparent to me that the primary judge did not fall into error in failing to find that the Tribunal had committed jurisdictional error.

20    The Tribunal’s reasoning is clear. The member attached the relevant ANZSCO groupings to the decision and, the reasons make clear, referred to, and considered, the content of that attachment. The Tribunal accepted that Mr Mohammed had undertaken study which met the Australian study requirement in the six months prior to the date of the visa application (in contrast to the delegate). The Tribunal then turned to the management courses.

21    The Tribunal member accepted that there may be some leadership elements required in the nominated skill occupation. However, having considered the whole of the details as to the nominated occupation, the Tribunal was not satisfied the nominated occupation was properly characterised as a management role. It followed that Mr Mohammed’s Diploma and Advanced Diploma of Management were not considered “closely related” to the nominated occupation. Put another way, the Tribunal determined that the skills acquired by the management courses were merely complementary to the nominated occupation.

22    This process of reasoning is culminated in [26]–[30] of the Tribunal’s reasons, which it is convenient to set out below.

26.    The Tribunal has had regard to the applicant's courses. Having regard to the applicant's Diploma of Information Technology the Tribunal is satisfied it is closely related to his nominated skilled occupation because it relates directly to determining, installing and configuring networks, matching IT needs to strategic direction, and building and configuring a server. The Tribunal is also satisfied the applicant's Master of Information and Communications Technologies is also closely related to the nominated skilled occupation given its focus on various aspects of networking technologies and management, and systems security.

27.     The Tribunal has had regard to the skills acquired in the applicant's Diploma and Advanced Diploma of Management. These relate to managing people and teams, document design and development, recruitment, risk, budgets and finances, customer service, projects, organisational change, strategic, business and marketing planning, and knowledge and information. Considered overall, and having regard to the ANZSCO descriptions confirming the nominated occupation is of a specialised, highly technical nature, the Tribunal is not satisfied the applicant's Diploma and Advanced Diploma of Management courses are closely related to the nominated skilled occupation. While the Tribunal appreciates that employers might expect their employees to have some management competencies, the Tribunal is of the view that the skills acquired by the management courses are merely complementary. The Tribunal also accepts the applicant might apply these skills if and when he starts his own IT company. However the Tribunal is focusing on whether the management courses, considered as a whole, are related to the nominated skilled occupation, not the applicant’s future plans to run his own business. The Tribunal is not satisfied that the Diploma and Advanced Diploma of Management courses relate to the highly specialised, technical duties of ICT Professionals including network and support professionals, and computer network and systems engineers.

28.     Considering the whole of the applicant's Australian studies and the whole of the nominated skilled occupation, the Tribunal is not satisfied the applicant's Diploma and Advanced Diploma of Management are qualifications that are closely related to the nominated skilled occupation of Computer Network and Systems Engineer.

29.     As the applicant's qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

30.     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 will be affirmed.

23    In my view, the primary judge was correct in reaching the conclusion that the above evaluative assessment of the courses completed by reference to the ANZSCO descriptions or groupings was one that was open to the Tribunal.

24    Accordingly, there is no substance in ground two.

C.2    Ground One

25    Ground one advanced by the appellants in the Notice of Appeal is as follows:

Ground 1

The Tribunal erred by considering a criterion which had not been considered by the delegate in the decision under review.

Particulars

The delegate's decision was based solely on a finding that the First Applicant did not satisfy the criterion in cl 485.221. The delegate expressly declined to consider any other criteria for the visa. The Tribunal found that the First Applicant did satisfy cl 485.221 but did not satisfy cl 485.222.

The Tribunal should have considered itself bound by the judgment or Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 and should have remitted the matter for reconsideration in accordance with an appropriate direction, pursuant to s 349(2)(c) of the Act.

26    The different approaches adopted by the Tribunal and the delegate have already been summarised.

27    In the primary judge’s decision, this ground was dismissed as being “without merit and without substance” (see Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1838 at [17]–[24] per Street J).

28    This is perhaps a somewhat peremptory dismissal of the argument, given the reliance placed before the primary judge and before me on the reasons of Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033.

29    As I understood Mr Mohammed’s argument, he sought to develop an argument that the scope of the review before the Tribunal was confined by the ground upon which the delegate had made the decision. In this regard, the argument identified by Mr Mohammed (but not articulated or developed in the submissions) appears to be very similar to the argument in Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652 before Shariff J.

30    It would be an exercise in subrogation for me to repeat the detailed analysis undertaken by Shariff J in relation to CPJ16. With respect, it seems to me that the analysis of Shariff J (in section B.2 of the judgment (at [26]–[55])) as to the difficulties in extracting a broad and correct statement of principle from CPJ16 is compelling.

31    Having said that, it is unnecessary for me to decide this case on the basis of whether I should follow CPJ16. It is distinguishable, given that in CJP16, the delegate was considering whether the applicant satisfied the character test provided for in s 501 of the Migration Act 1958 (Cth). Here, the question for the delegate was whether Mr Mohammed satisfied the criteria in sch 2 of the Regulations for the grant of a visa.

32    Accordingly, irrespective as to whether one can confine CJP16 to its facts, I do not believe that there is substance in ground one.

D    Conclusion and orders

33    It follows from the above that the appeal must be dismissed with costs.

34    During oral argument today, both appellants not unnaturally stressed two points.

35    The first was that, irrespective of the timing of undertaking study, Mr Mohammed had completed the IT courses, that is, the Diploma of Information Technology and the Master of Information Communication Technology.

36    Further, Mr Mohammed’s wife has provided me with helpful submissions regarding the contributions she has made to the Australian community through her work as a childcare educator.

37    I have explained to the appellants that it is not my place to substitute a decision in relation to any type of visa simply because of what I subjectively might consider to be fair and reasonable.

38    Although it was not matter for the Court, I suggested to them that they might consider taking advice as to what steps may be open to them to make any representations as to the possible favourable exercise of a ministerial discretion. Of course, I make no comment about the merits or otherwise of the possible exercise of any such discretion.

39    I have delivered these reasons immediately because I think the case is a clear cut one, and I think it is in the interest of the appellants to have certainty in relation to their position in this very long delayed matter.

40    Having said that, I will arrange for revised reasons to be provided to them as soon as practicable. Given my other commitments, this may take a period of a couple of weeks, and accordingly, I direct that the orders that I make not be entered until I have prepared revised reasons.

Associate:

Dated: 27 May 2025