Federal Court of Australia

Mohammed v Minister for Immigration and Citizenship [2026] FCA 501

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

OWENS J:

1    The appellant’s application for a Skilled (Provisional) (Class VC) Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream was refused by a delegate of the Minister on the basis that his qualification was completed more than six months prior to the date of the visa application.

2    The reason that mattered was because, at the time, one of the criteria required to be satisfied for the grant of such a visa (see section 65 of the Migration Act 1958 (Cth)) was found in clause 485.231 of Schedule 2 to the Migration Regulations 1994 (Cth), and it provided as follows:

(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.

3    The term “Australian study requirement” was then (and remains) defined in regulation 1.15F of the Regulations as follows:

(1)    A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

(a)    that are registered courses; and

(b)    that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total of at least 2 academic years study; and

(d)    for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

…

(2)    In this regulation:

completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note:    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

…

4    The appellant completed his relevant course of study on 24 November 2016. It followed that, in order for clause 485.231(3) to be satisfied, his application for a visa needed to be lodged by 24 May 2017. His application, however, was lodged on 31 May 2017 (I have assumed this date in favour of the appellant, although there may be some uncertainty about it).

5    The appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal, though, affirmed the decision not to grant the visa.

6    The appellant subsequently applied, unsuccessfully, to the Federal Circuit and Family Court of Australia (Div 2) for judicial review of the Tribunal’s decision. He now appeals from that decision: Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 836.

7    The grounds of appeal set out by the appellant in the notice of appeal were as follows, with the addition of a notation that the appellant was self-represented and sought permission to articulate further grounds:

1.    The primary judge erred in his Honour’s construction of the Second Respondent (Tribunal’s) reasons in dismissing ground 1-6 of my application to the Federal Circuit and Family Court.

2.    It is submitted that Schedule 2 Clause 485.231(3), does not have the word ‘Must’ and therefore, it is discretionary. The Tribunal should have exercised its discretionary power to consider applicant’s particular situation. Therefore, it is submitted that the Tribunal decision is unreasonable.

3.    It is further submitted that Sch 2 Clause 485.231(3)(a) provides that the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. It does not mention the months and not days. Therefore, it is submitted whether six months period calculation includes calendar days or it excludes weekends when calculating the days. Therefore, it is submitted that the Tribunal failed to engage in genuine and realistic consideration of applicant's information.

8    Ultimately, I understood the appellant’s case to be that the primary judge erred in the following respects:

(a)    That the primary judge erred in dismissing grounds 1-6 of the appellant’s application for judicial review (I will set out those grounds below, but they reduce, I think, to a contention that the appellant was denied procedural fairness by the Tribunal).

(b)    That the primary judge erred in failing to find that the criterion in clause 485.231(3) is not a mandatory criterion, and incorporates a degree of discretion (at least as to the time period within which the Australian study requirement may be satisfied).

(c)    That, in consequence of (b), the primary judge erred in failing to find that the Tribunal’s failure to consider the particular circumstances of the appellant’s failure to lodge his visa application within six months of completing his course of study involved jurisdictional error.

(d)    That the primary judge erred in failing to find that clause 485.231(3) left open the precise manner in which the six month period that it prescribes is to be calculated (and may permit, for example, weekends or other non-business days to be excluded).

9    The appellant did not apply to augment those grounds in any way in his oral submissions.

the tribunal’s decision

10    The appellant lodged his application for review with the Tribunal on 14 July 2017. On 20 August 2018, the Tribunal invited the appellant to attend a hearing, noting that it was unable to make a favourable decision on only the material before it. The appellant responded to this invitation and attended a hearing before the Tribunal on 25 October 2018.

11    The Tribunal found that the qualification the appellant was relying upon to satisfy the Australian study requirement was a Master of Technology (Enterprise Systems), for which the appellant had provided evidence that reflected a completion date of 24 November 2016. The Tribunal held that as the qualification was completed on 24 November 2016 and the visa application was made more than six months after that date, the Australian study requirement was not satisfied in the period of six months ending immediately before the day the application was made. As the appellant therefore did not satisfy clause 485.231, the Tribunal affirmed the decision not to grant the visa.

12    The Tribunal noted that the appellant had raised with the Tribunal that he had made a prior visa application but withdrew that application as he did not have the necessary English results and subsequently reapplied. The appellant also raised with the Tribunal that his mother was ill and he was depressed, so he could not get the required English results, and provided his mother’s medical certificates. With respect to the withdrawn application, the Tribunal explained that it could not consider it, and similarly acknowledged that the Tribunal could not use the medical evidence to waive the statutory requirements.

THE DECISION BELOW

13    The grounds upon which the appellant sought judicial review in the Court below were as follows:

1.    I came to Australia on 29/12/2014 to study Master’s in Enterprise systems.

2.    I completed my Master’s on 24/11/2016.

3.    I applied for my 485 Visa on 5/06/2017 which was subsequently refused on 27/06/2017.

4.    I lodged paper application on 29/05/2017 which was sent to the department. However, my visa was refused by Department of Immigration and Border Protection on 27/06/2017 based on the fact that I did not meet the requirements of clause 485.231 in schedule 2 to the Regulations.

5.    After this decision, I appealed to Administrative Appeals Tribunal (AAT) wherein I provided various reasons and evidences to support grant of visa application.

6.    I believe that while making the decision on my application DIBP did not follow a procedural fairness.

14    The primary judge recorded that the appellant raised additional arguments in his oral submissions (at [14]):

In his submissions to the Court today, Mr Mohammed sought some leniency or flexibility from the Court in the application of the six month visa criterion. He spoke of incorrect advice he had been given by his migration agent prior to the lodgement of the application. He also said that his visa application had been late because he did not sit his English language test earlier than May. He told the Court that he had had to travel to India because his mother had been unwell.

15    The primary judge correctly observed that the role of the Court on an application for judicial review precluded the possibility of the Court exercising a discretion in relation to the merits of the visa application. The primary judge thus correctly identified that the essential issue raised on the appellant’s case concerned the proper construction of clause 485.231(3). In that regard, his Honour said this (at [16]-[17]):

In broad terms, the relevant criterion required the applicant:

(a)    to have met the academic requirements for the award of an Australian degree that met certain criteria that are not material to present considerations; and

(b)    to have done so within the six months period prior to the application for the subclass 485 visa the subject of the review.

The evidence makes it clear that Mr Mohammed met the academic requirements for the award of his Australian degree on 24 November 2016. The six month period prescribed by cl.485.231(3) of sch.2 to the Regulations expired at the end of 23 May 2017 but the visa application the subject of this proceeding was not lodged within that 6 month period. In the circumstances, the Tribunal’s hands were tied and it had no option but to reach the decision it reached.

16    The primary judge also dealt with the contention, raised in the appellant’s written grounds of review, that he had been denied procedural fairness. His Honour said this (at [18]):

Mr Mohammed also alleged a denial of procedural fairness, which seems to be directed at the Delegate, but I will take it to be directed at the Tribunal. No particulars of the allegation were provided and so it lacks material substance. However, even if the allegation had had more substance that would be of no account because, on the facts, the Tribunal could not have reached a different decision. For that reason, no practical injustice has been demonstrated in connection with any denial of procedural fairness and remittal would also be futile.

consideration

Ground One

17    To the extent that the appellant’s first ground of appeal involves a contention that the primary judge adopted an erroneous construction of the Tribunal’s reasons, I do not accept it. No particulars were provided in relation to such a contention, and no submissions were developed in relation to it. I cannot see anything in the primary judge’s reasons that involve a misreading of the Tribunal’s decision.

18    As a matter of substance, it seems to me that this ground of appeal was concerned with the primary judge’s rejection of the appellant’s argument below that he had been denied procedural fairness. I am not persuaded, however, that the primary judge’s reasons reveal any error in that regard.

19    The Tribunal notified the appellant that it was unable to make a favourable decision solely on the information available to it before the hearing, and invited the appellant to appear, give evidence, and make submissions. That notification was provided on 20 August 2018, over two months before the hearing on 25 October 2018. On any view, that was ample notice.

20    It is not necessary to address the primary judge’s finding that, even if there had been a denial of procedural fairness, it could not have affected the outcome. That was an additional reason supporting the primary judge’s conclusion that jurisdictional error had not been demonstrated, but was not an essential part of the reasoning sustaining it.

21    It follows that the first ground of appeal fails.

Ground Two

22    The issue at the centre of the second ground of appeal is the proper construction of clause 485.231(3). The appellant relies on the absence of the word “must” in that provision to support his argument that it was not mandatory for that criterion to be satisfied before a Subclass 485 visa could be granted to him.

23    The Minister submitted that this was not an argument made before the primary judge, and thus that leave was required. I am not convinced that that is so. It does seem to me that the appellant raised, even if only in general terms, the proper construction of clause 485.231(3), and whether it permitted any discretionary flexibility in its application. I am satisfied, therefore, that the appellant is entitled to advance his second ground of appeal without leave.

24    Clause 485.231(3) must be read in the context of (at least) clause 485 as a whole (which is the part of the Regulations that prescribes the conditions for the grant of a Subclass 485 visa). Clause 485.231(3) is found, in turn, within clause 485.2 which is entitled “Primary criteria”. The notes at the beginning of clause 485.2 included (at the time) the following statements:

If an applicant applies for a Subclass 485 visa in the Post-Study Work stream, the criteria in Subdivisions 485.21 and 485.23 are the primary criteria.

The primary criteria must be satisfied by at least one member of a family unit.

25    The notes in the Regulations form part of the Regulations (see Acts Interpretation Act 1901 (Cth), sections 2(1) and 13(1), and Legislation Act 2003 (Cth), section 13(1); Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 at [33] (Kiefel CJ, Bell, Gageler and Keane JJ)). They make explicit that which I would find to be implicit in the text and structure of clause 485 generally in any event; namely, that a Subclass 485 visa could only be granted where the relevant criteria (which, for the appellant, included the criterion in clause 485.231(3)) are satisfied. So much has been held in previous decisions of this Court: see Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 570 (Collier J).

26    It follows that the premise for the other contention contained within ground two, that the Tribunal ought to have exercised a discretion to consider the appellant’s particular circumstances, has not been established. Necessarily, therefore, the Tribunal’s failure to do that does not involve any error of law, or legal unreasonableness.

27    For those reasons, the appellant’s second ground of appeal must fail.

Ground Three

28    By his third ground of appeal the appellant raised a different question of construction in relation to clause 485.231(3) relating to the manner in which time should be calculated for its purposes. It certainly appears that no argument precisely on these terms was put below. Perhaps it could be argued to be a new facet to the general argument put below about the flexibility permitted under clause 485.231(3). In any event, it is not useful to spend too much time debating this point. For the reasons that follow, the argument clearly fails. If leave is required, I would refuse it on that basis.

29    The fundamental flaw in the appellant’s argument in this respect is that it leaves out of account the provisions of the Acts Interpretation Act in relation to the calculation of time. In particular, section 2G(2) provides:

(2)    In any Act, a reference to a period of 2 or more months is a reference to a period:

(a)    starting at the start of a day of one of the calendar months (the starting month); and

(b)    ending:

(i)    immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or

(ii)    if there is no such day—at the end of the calendar month that is that number of calendar months after the starting month.

Example 1:    A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.

Example 2:    A reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).

30    I have already referred above to the provision of the Legislation Act that has the effect of making the Acts Interpretation Act provisions expressed in relation to “Acts” apply equally to legislative instruments such as the Regulations.

31    Section 2G(2) makes pellucid that the reference to a period of six months in clause 485.231(3) does not exclude weekends or non-business days, or, indeed, admit of any other method of calculation other than that there specified. It follows that when the primary judge said, at [17], that the six month period prescribed by clause 485.231(3) in relation to the appellant expired at the end of 23 May 2017, his Honour was unarguably correct.

32    It follows that the Tribunal cannot be said to have failed to engage in a genuine and realistic consideration of the appellant’s information, and ground three must be dismissed.

conclusion

33    For the foregoing reasons, I am not persuaded that the primary judge erred in dismissing the appellant’s application for judicial review.

34    The appeal must be dismissed with costs.

Associate:

Dated:    24 April 2026