Jahangir v Minister For Immigration & Border Protection

AND: MINISTER FOR IMMIGRATION & BORDER PROTECTION

JUDGE: KATZMANN J DATE OF ORDER: 14 MARCH 2014 WHERE MADE: SYDNEY

1. The appeal be dismissed.
2. The first appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2558 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AURIL NOOR AKHAND BY HIS LITIGATION REPRESENTATIVE SHOEB MUHAMMED JAHANGIR

AND: MINISTER FOR IMMIGRATION & BORDER PROTECTION

JUDGE: KATZMANN J DATE: 14 MARCH 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This appeal relates to the so-called time of application criteria in the provisions of the Migration Regulations 1994 (Cth) ("Regulations") which deal with skilled visas and, in particular, "Skilled - Independent" visas. 2 The appellants are Bangladeshi nationals. The visa in question is a Skilled (Residence) (class VB) subclass 885 (Skilled - Independent) visa ("subclass 885 visa"). 3 The Minister is required to grant a visa if he is satisfied that certain criteria have been met and, if not, must refuse to do so: Migration Act 1958 (Cth), s 65. The criteria for the grant of a subclass 885 visa are contained in Part 885 of Schedule 2 to the Regulations. Part 885 includes both primary and secondary criteria. The primary criteria are divided into two categories which appear as headings to the various clauses: "criteria to be satisfied at time of application" and "criteria to be satisfied at time of decision". 4 The first appellant, Mr Jahangir, is the primary visa applicant. The second and third appellants are respectively his wife and son, the success of whose applications rested on their being members of the same family unit as Mr Jahangir and his capacity to satisfy the primary criteria. 5 A delegate of the Minister refused the applications because Mr Jahangir was found not to have satisfied cl 885.211 of Schedule 2 to the Regulations. The decision turned on whether Mr Jahangir satisfied the "2 year study requirement" (as defined in reg 1.15F) in the six-month period ending immediately before the day on which the application was made, as required by subcl 885.211(2). 6 The appellants applied to the Migration Review Tribunal for a review of the delegate's decision. At the Tribunal, Mr Jahangir supported his visa application on a different basis, relying on a different subclause of the Regulations. Nevertheless, the Tribunal affirmed the delegate's decision. The appellants applied to the Federal Circuit Court to have the Tribunal's decision set aside for jurisdictional error but that application was also unsuccessful.

The visa application 7 The application was lodged with the Department of Immigration electronically on 24 April 2009. At the time Mr Jahangir was the holder of an "eligible student visa" within the meaning of subitem 1136(4)(a)(i) of Schedule 1. On 4 May 2009 he was granted a subclass 485 (Skilled - Graduate) visa, which was a temporary visa that was valid for 18 months. 8 The application form for a subclass 885 visa invites the applicant to select the condition that applies to him (or her). The condition Mr Jahangir selected was that he met the two-year study in Australia requirement in the six months before the date of application. This is a reference to a criterion in subcl 885.211(2) of Schedule 2. In his application form, Mr Jahangir stated that between March 2006 and November 2007 he completed a Diploma of Hospitality management at the Sydney International College. A copy of the diploma and his academic transcript, both issued on 22 January 2008, were submitted with the application. 9 At this point it is convenient to set out the relevant parts of the Regulations. Clause 885.211 of Schedule 2 is in the following terms: 885.21 Criteria to be satisfied at time of application 885.211 (1) The applicant meets the requirements of subclause (2), (3) or (4). (2) The applicant met the requirements of subitem 1136(4) of Schedule 1, and: (a) the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made; and (b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant's nominated skilled occupation. (3) The applicant met the requirements of subitem 1136(5) of Schedule 1, and: ……. (4) The applicant met the requirements of subitem 1136(6) of Schedule 1, and: … 10 Subitem 1136(5) of Schedule 1 relevantly states: The following requirements must be met: (a) the applicant must be: … (i) the holder of a Subclass 485 (Skilled - Graduate) visa 11 The delegate found that Mr Jahangir could not satisfy the requirements of either subcl 885.211(3) or 885.211(4) of Schedule 2. This was because Mr Jahangir did not hold a visa that would allow him to satisfy either subitem 1136(5) or 1136(6) of Schedule 1 at the time that he lodged his visa application. Hence, the delegate assessed Mr Jahangir's visa application against the requirements of subcl 885.211(2) of Schedule 2. The delegate refused the application because Mr Jahangir's diploma had been completed more than a year before the day on which the application was made.

The Tribunal proceeding 12 The appellants were invited to attend a hearing and did so on 20 March 2013. At the hearing Mr Jahangir was represented by a migration agent. The Tribunal member asked Mr Jahangir why he thought he met the 2-year study requirement in subcl 885.211(2)(a), although his visa application had been made more than six months after he had completed his hospitality management course. According to the Tribunal's decision record, the agent's response was that Mr Jahangir had made a "mistake" because he had applied for the subclass 485 visa and that was granted a few days after he had applied for permanent residence. Holding a subclass 485 visa would have allowed him to satisfy subitem 1136(5) of Schedule 1 and therefore the alternative criterion for a subclass 885 visa contained in subcl 885.211(3) of Schedule 2. 13 The Tribunal noted that, as Mr Jahangir made the application more than six months after he met the course requirements, he did not appear to meet the six-month requirement in subcl 885.211(2)(a). Through his migration agent Mr Jahangir conceded as much, but he asked the Tribunal to "make a recommendation to the Minister". 14 The agent then referred the Tribunal to the High Court's decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [201] HCA 8 ("Berenguel"). Berenguel was concerned with cl 885.213 of Part 885 of Schedule 2, which, like cl 885.211, appears under the heading "885.21: Criteria to be satisfied at time of application". Clause 885.213 requires an applicant to have "vocational English" or "competent English" by satisfying the Minister that he or she has achieved a minimum test score in the language. In Berenguel, the visa application was lodged on 21 April 2008 but the English language test could not be administered until 10 May 2008 (although Mr Berenguel had booked the test nearly two months before he had lodged his application). For this reason, Mr Berenguel did not satisfy the Minister that he had vocational or competent English at the time of his application. But the High Court held that he could satisfy cl 885.213 by lodging the test results with the Department after the date on which he lodged his application. In other words, the Court did not read down the meaning of the words in the clause by reference to the heading. Its reasons were fourfold. 15 First, the Court considered (at [24]) that the evident purpose of the criteria in cl 885.213 was to ensure that, at the time the Minister or his delegate decided whether to grant a visa, the applicant would have demonstrated recent competency in the English language. The Court said that it did not follow that the criterion could only be satisfied by evidence provided to the Minister at the time the application is submitted. Their Honours contrasted the requirements of cll 885.214 and 885.215, both of which required the application to be accompanied by certain evidence. 16 Second, the Court held (at [25]) that it was open to construe the requirement in reg 1.15B that the test be conducted "not more than 2 years before the day on which the application was lodged" to mean that it must be conducted "no earlier than 2 years before the application was lodged". On this construction, it was unnecessary that the test be conducted before the application was lodged. 17 That left the heading. The Court accepted (at [26]) that, as the heading was part of the Regulations, it could inform the construction of cl 885.213. But their Honours noted that the heading did not "connect grammatically to its terms". They held that the text of Part 885 did not support any general conclusion that the criteria in Part 885 "speak exclusively to satisfaction at the time of application". By way of example, the Court referred to cl 885.212 which refers to the Minister being satisfied that the applicant has applied for an assessment by a relevant assessing authority of his or her skills for the nominated skilled occupation. 18 Finally, the Court held (at [26]) that the alternative construction for which the Minister contended led to "such plain unfairness and absurdity" that it was not to be preferred. Their Honours continued: The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information. The Act specifically provides that the minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose. 19 The agent argued that, if the reasoning in that case applied to Mr Jahangir, he would have "met the requirements of subitem 1136(5) of Schedule 1", as required by subcl 885.211(3) of Schedule 2, because he was granted the subclass 485 visa only ten days after he had applied for the subclass 885 visa and he met all the other requirements of the subclause. 20 The Tribunal did not accept that the reasoning in Berenguel was applicable and for this reason did not go on to decide whether Mr Jahangir met the other requirements in subcl 885.211(3). It said (at [24]): The Tribunal notes that this requirement is contained in Schedule 1 (which affects the validity of the application) and is also an express part of the requirement in cl. 885.211. The Tribunal finds that at the time when the applicant made the application, he did not have the subclass 485 visa or the visa prescribed in this clause. Accordingly, the Tribunal is not satisfied that he met the requirements of Item 1136(5)(a) and item 1136(6)(a). The Tribunal is not satisfied that the applicant meets cl. 885.211(3) and (4). 21 The Tribunal declined Mr Jahangir's request that his case be referred to the Department for consideration by the Minister under s 351 of the Act. Section 351 gives the Minister a discretion to substitute a more favourable decision for a decision of the Tribunal if he thinks it is in the public interest to do so. The Tribunal noted, however, that it was open to Mr Jahangir to make a request directly to the Minister. No such request appears to have been made.

The judgment of the Federal Circuit Court 22 The primary judge held that Berenguel was not authority for the proposition that all the criteria in cl 885.211 did not have to be satisfied at the time of the application. Her Honour took the view that the reasoning in that case did not apply in Mr Jahangir's case. Hence, she rejected Mr Jahangir's argument that it was sufficient to satisfy cl 885.211 that he held a subclass 485 visa 10 days after he lodged his application for a subclass 885 visa. She also rejected Mr Jahangir's argument that the Tribunal could have considered the date of Mr Jahangir's application to be 4 May 2009, rather than 24 April 2009, simply because Mr Jahangir satisfied the requirements for a valid visa application on both 24 April 2009 (when he held an "eligible student visa") and 4 May 2009 (when he held a subclass 485 visa).

The issues on the appeal 23 There are two grounds of appeal, which raise the following issues: (a) whether the primary judge erred in finding that the requirement in subcl 885.211(3) that the "applicant met the requirements of subitem 1136(5) of Schedule 1" (relevantly, by holding a subclass 485 visa) was a "time of application" criterion; (b) whether the primary judge erred in finding that it was not open to the Tribunal to regard 4 May 2009 (in lieu of 24 April 2009) as the date of the application.

Was the primary judge wrong to find that subcl 885.211(3) relevantly required the applicant to hold a subclass 485 visa at the time of application? 24 The question at the heart of the first issue is whether it was necessary that Mr Jahangir hold a subclass 485 visa at the time he made his application or whether it was sufficient that he held one before or at the time the Minister considered his application. The answer to this question turns on the proper construction of subcl 885.211(3) of Schedule 2. 25 The principles that apply to the interpretation of statutes also apply to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 398. The Court must begin with the text, though the meaning of the text is to be considered in its context. Context must be considered at the outset, not merely in the event of ambiguity in the text: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 ("CIC Insurance") at 408. 26 Context includes the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 47. It also includes other provisions in the same enactment. A court may decide that the result of giving words their literal meaning may be so inconvenient or so improbable that an alternative construction which is reasonably open is to be preferred as it more closely conforms to the legislative intent: CIC Insurance at 408. 27 Context in the case of a regulation includes the Act under which the regulation was made: One Tel Limited v Australian Communications Authority (2001) 110 FCR 125 at 141. 28 Unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) applies as if the Regulations were an Act and as if each provision of the Regulations were a section of an Act: Legislative Instruments Act 2003 (Cth), s 13(1)(a); Berenguel at 420-1. It was not suggested here that the contrary intention is apparent. The application of the Acts Interpretation Act has some important ramifications in the present case. 29 First, a construction that would best achieve the purpose or object of the Regulations is to be preferred to every other interpretation: Acts Interpretation Act, s 15AA. 30 Second, the Schedules to the Regulations, including the notes within them, form part of the Regulations, and so, too, the headings to the parts, divisions and subdivisions into which the Regulations are divided: Acts Interpretation Act, s 13. Consequently, the criteria designations appearing as headings, not otherwise defined, in Schedule 2 of the Regulations are to be taken as part of the Regulations: Berenguel at 421. They may therefore be taken into account in ascertaining the meaning of subcl 885.211(3). 31 Here, the text is arguably not ambiguous. It simply stipulates: The applicant met the requirements of subitem 1136(5) of Schedule 1… 32 Subitem 1136(5) of Schedule 1, extracted above at [10], relevantly included a requirement that the applicant hold a subclass 485 (Skilled - Graduate) visa. 33 But the text does beg the relevant question. Must the applicant hold a subclass 485 visa at the time of application or is it sufficient that the applicant holds such a visa before or at the time the Minister comes to make his decision? 34 One indication that the requirement be met at the time of application is provided by the heading to cl 885.211. Naturally enough, the Minister placed considerable emphasis on the heading. He submitted that it gave rise to a presumption (albeit a rebuttable one) that the requirement was to be met at the time of application. 35 Mr Jones submitted on behalf of Mr Jahangir, however, that the heading should not constrain the meaning of subcl 885.211(3). He argued that there is no relevant grammatical difference between the requirement in subcl 885.211(3) that the applicant "[is] the holder of a Subclass 485 (Skilled - Graduate) visa" (see subitem 1136(5) of Schedule 1) and the requirement in subcl 885.213(a) that the applicant "has vocational English" (which was considered in Berenguel). He further argued that, unlike cll 885.214 and 885.215, which the High Court used as a contrast in Berenguel, there is no requirement that the application be accompanied by evidence that the applicant holds a subclass 485 visa. 36 The Minister pointed to the use of the past tense in the opening words of subcl 885.211(3) and argued that this was an indication that the provision was a time of application requirement. There is, however, no reason why the mere use of the past tense takes the matter any further. It could just as easily refer to the situation leading up to the Minister's decision. 37 Nevertheless, for the following reasons I am satisfied that Berenguel is distinguishable and that the construction for which the Minister contends is to be preferred. It follows that the primary judge was not wrong to hold that the requirement in subcl 885.211(3) that the "applicant met the requirements of subitem 1136(5) of Schedule 1" relevantly required Mr Jahangir to hold a subclass 485 visa at the time of application. 38 It is first necessary to consider the purpose of the requirement in subcl 885.211(3) that the "applicant met the requirements of subitem 1136(5) of Schedule 1". 39 In the written submissions filed on his behalf, Mr Jahangir asserted (without elaboration) that the evident purpose of the criterion in subcl 885.211(3) is that the applicant will be found to hold the relevant visa "when the Minister or delegate decides upon the application". When pressed during oral argument, Mr Jones contended that the purpose of subclass 885 visas was to encourage the migration into Australia of people who would be of economic benefit to the country. He submitted that it would be contrary to that purpose for the Minister to take "purely formal or procedural" points that would "arbitrarily exclude" qualified and experienced people. Doubtless, the purpose of skilled visas is to attract skilled migrants. Doubtless, too, expanding the skills base is of economic benefit to the country. But these truisms say nothing about the purpose of the requirement in subcl 885.211(3) that the "applicant met the requirements of subitem 1136(5) of Schedule 1". Nor does it follow from these truisms that the objects of the skilled migration program would be thwarted by requiring applicants for skilled visas, including the subclass 485 visa, to satisfy certain criteria at the time of application. And there is nothing arbitrary in a condition that applies to all applicants. 40 The Minister's written submissions were silent on this question. In oral argument, however, he contended that the evident purpose of the requirement in subcl 885.211(3) that the "applicant met the requirements of subitem 1136(5) of Schedule 1" was to discourage speculative applications, that is to say, applications from people who were hopeful that they would meet the relevant criteria by the time the Minister considered their applications. Otherwise, the Minister would be inundated with "hopeless applications". This argument has some force. It is true that there is a screening process at the time of decision, but this does not mean that there is no public interest in screening out hopeless applications at a preliminary stage. That Mr Jahangir did in fact meet the relevant criterion ten days after his application is neither here nor there. 41 Importantly, there is also a textual reason to prefer the Minister's construction. 42 Section 45 of the Act requires a non-citizen who wants a visa to apply for a visa of a particular class. Section 47 states that the Minister is to consider "a valid application for a visa" and, for the avoidance of doubt, also states that he is not to consider an application that is not a valid application. Section 46 sets out the conditions for a valid visa. Subsection (1) relevantly provides that subject to subss (1A), (2) and (2A), an application for a visa is valid if, and only if, it is for a visa of a class specified in the application and it satisfies the criteria and requirements prescribed under s 46. Subsection (2) provides that, subject to subs (2A) (which is presently irrelevant), an application for a visa is valid if: (a) it is an application for a visa of a class prescribed for the purposes of subs (2); and (b) under the Regulations, the application is taken to have been validly made. 43 Regulation 2.07 provides that: (1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1: (a) the approved form (if any) to be completed by an applicant; (b) the visa application charge (if any) payable in relation to an application; (c) 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. 44 Schedule 1 to the Regulations is entitled "Classes of visas". The note to the Schedule reads: This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47. 45 Part 1 of Schedule 1 lists the conditions for permanent visas. Part 2 lists the conditions for temporary visas (other than bridging visas). Part 3 lists the conditions for bridging visas. Part 4 lists the conditions for protection, refugee and humanitarian visas. Item 1136 appears in Part 1. 46 It follows that Part 1 of Schedule 1 contains the validity conditions for permanent visa applications and item 1136, the validity conditions for applications for Skilled (Residence) (Class VB) visas, a subclass of which is "885 (Skilled - Independent)". Item 1136 requires, amongst other things, that the applicant be the holder of one of several classes or subclasses of visa. One of those subclasses is the subclass 485 visa: subitem 1136(5). That evinces an intention that the requirement in subcl 885.211(3) that the "the applicant met the requirements of subitem 1136(5) of Schedule 1" be satisfied at the time of application. It also demonstrates that, unlike cl 885.213 (which requires the applicant to have vocational or competent English, and was considered in Berenguel), there is here a "grammatical connection" between the heading and the text. Subclause 885.211(3) read in its statutory context reveals an intention that the relevant requirement be met at the time of application. 47 No manifest unfairness or absurdity results from the construction advanced by the Minister. 48 In the present case, while Mr Jahangir's plight is unfortunate, his misfortune was of his own making. As his migration agent submitted before the Tribunal, he made a mistake in his application. He could not satisfy the 2-year study requirement in the six-month period before his application was made, which was the criterion upon which he relied. He should have waited until his subclass 485 visa was granted. Even so, he could have submitted another visa application, once he received notification of the grant. Still, it is desirable that, in a case such as this, where an applicant clearly cannot satisfy a criterion upon which he relies but may satisfy another, that the Minister brings the matter to the applicant's attention. In the present case, it would have been preferable if, when the Minister made his decision to grant Mr Jahangir a subclass 485 visa, he advised him that on that account he might be eligible to apply for a permanent visa.

Was the primary judge wrong to find that it was not open to the Tribunal to treat 4 May 2009 as the date of the application? 49 The short answer to this question is no. 50 The fact that Mr Jahangir satisfied the criterion in subcl 885.211(3) by holding a subclass 485 visa on 4 May 2009 does not make this date the date of the application. 51 The date of a visa application is the date it is lodged, provided that at that time it was a valid application: Minister for Immigration and Citizenship v Chan (2008) 172 FCR 193 ("Chan"). The question arose in Chan because one of the criteria to be satisfied at the time of application for a subclass 573 (Higher Education Sector) visa, for which Mr Chan had applied, was that the application had been made within 28 days after his last visa had expired. Mr Chan had lodged his application within the 28-day period but had failed to pay the visa application charge or provide evidence of his enrolment in an eligible course of study - both conditions of a valid application. Nearly five months later, he lodged another application, this time with the visa application charge and evidence of his enrolment. A federal magistrate held that the lodgement of the second application perfected the first, thereby making Mr Chan's visa application a valid one as at the date of the first application. The Full Court (by majority) held that the federal magistrate was right to find that the second application perfected the first, but that Mr Chan's visa application did not become a valid application until the second application had been lodged. 52 In the present case, it is common ground that the application Mr Jahangir lodged on 24 April 2009 was a valid visa application under the Act. The primary judge made a finding to that effect. She did so on the basis that Mr Jahangir held a subclass 471 visa on that day. She was mistaken in this respect, but nothing turns on the error. On the date of his application, Mr Jahangir held an "eligible student visa" within the meaning of item 1136(4) of Schedule 1 of the Regulations, which the parties agreed was a subclass 573 visa. His visa application was therefore a valid one. On 4 May 2009 Mr Jahangir was granted a subclass 485 visa and so satisfied the criterion in item 1136(5) of Schedule 1. But that did not mean that 4 May 2009 could be taken to be the date of his visa application. It merely provided a basis for lodging a new application, something Mr Jahangir never did. 53 Mr Jones argued, however, that there was nothing in the language of Schedule 1 to prevent an application that satisfies one validity requirement on a particular date from satisfying another validity requirement on a later date. That is true, but it says nothing about when the application is made for the purposes of the Act. 54 To succeed on this ground, Mr Jahangir needs to show that the Tribunal's failure to consider whether 4 May 2009 should be taken to be the date of the application was a jurisdictional error. Mr Jones submitted that it was. The point was said to be supported by Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 ("SZIAI"). As far as I can tell, this was not an argument that was put to the primary judge. It was conceded that the argument that the application should be taken as having been made on that date was never put to the Tribunal. 55 In SZIAI, the applicant had been refused a protection visa and his application for review to the Refugee Review Tribunal was dismissed. On his application for judicial review in the Federal Magistrates Court (as the Federal Circuit Court was then known), he argued unsuccessfully that, before finding against him, the Tribunal should have made inquiries of the signatories of certain documents, which had purportedly corroborated his claim, by contacting those signatories using the telephone numbers appearing on the documents. A single judge of this Court allowed his appeal but the High Court ruled against him. The plurality said (at [25]) that there was no general duty to inquire. The plurality emphasised that the Tribunal's duty was a duty to review, and found that there had been no failure to review and so no jurisdictional error. Their Honours acknowledged (at [25]), however, that "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review", and if so, "such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction". 56 SZIAI is of no assistance here. Mr Jones never identified what inquiry should have been made or of whom. Moreover, SZIAI is concerned with situations in which there is insufficient information or material before a decision-maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error. In this case, there is no suggestion that the Tribunal had insufficient information or material before it to make a decision. The Tribunal was aware that Mr Jahangir was granted a subclass 485 visa on 4 May 2009. 57 The real question is whether the Tribunal failed to conduct a review and therefore failed to exercise its jurisdiction by failing to consider whether 4 May 2009 (the date the 485 visa was granted) could have been taken as the date of the application. It did not. Mr Jones submitted that the Tribunal had failed to consider the entirety of the case before it. But it was never part of Mr Jahangir's case before the Tribunal that his application had been made on 4 May 2009. 58 In any event, even if the Tribunal had considered the question, for the reasons given above, there could only have been one answer: the application was made on the date it was lodged, it being a valid application on that date. In these circumstances, the failure to consider the question could have had no material effect on the outcome and the primary judge would have been bound to dismiss Mr Jahangir's application: Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at [124] (Moore and Lander JJ).

Conclusion 59 Mr Jahangir has been unable to make out either ground of appeal. The appeal must therefore be dismissed. Costs should follow the event. There will be orders accordingly. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.