Malik v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 878

Clause 485.223 of Schedule 2 to the Migration Regulations 1994 requires that, when your visa application was made, it was accompanied by evidence that you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority. Giving more than a statement or answer in your visa application form about this is required. Your application for the visa was refused because it was not accompanied by evidence of this.

You are now invited to give information or evidence about whether your visa application was accompanied by evidence that you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority. Please note that information about a skills assessment applied for after the date of your visa application may not satisfy this requirement.

Information or evidence about this should be given at or prior to the hearing. Any documents or written arguments sent to us should be in English or be accompanied by a translation from a qualified translator.

1. On 18 March 2019, a new registered migration agent (the "second representative") contacted the Tribunal (by email and on behalf of the applicant) and advised that the applicant was "unable to attend the hearing as he [was] suffering from a medical condition" (CB 69). A medical certificate, a completed "Appointment of Representative" form and a completed "Response to hearing invitation form" were also provided to the Tribunal (CB 70-76).
2. The applicant did not attend the scheduled hearing on 19 March 2019 (CB 77-79).
3. On 20 March 2019, the Tribunal notified the applicant (through his second representative) that the request for a postponement of the hearing had been granted and the hearing had been rescheduled to take place on 21 March 2019 (CB 80-83).
4. Later that same day (also on 20 March 2019), the applicant's second representative contacted the Tribunal requesting a further postponement on the basis of the applicant's ill health and providing a further medical certificate and medical referral (CB 84-88).
5. On 21 March 2019, the Tribunal advised the applicant (through his second representative) that the request for a further postponement of the hearing had again been granted and notified him that the hearing had been rescheduled to take place on 29 March 2019 (CB 89-92).
6. On 29 March 2019, the applicant appeared at the Tribunal hearing to give evidence and present arguments (CB 97-99). The applicant's second representative did not attend that hearing (CB 97). The applicant also provided the Tribunal with a letter from the Institute of Public Accountants confirming that the applicant had been "assessed as suitable for the ... nominated occupation" of Accountant (General) (CB 100).
7. On 29 March 2019, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 107-109).
8. On 3 May 2019, the applicant filed an application for judicial review of the Tribunal's decision in the then Federal Circuit Court of Australia (the "FCCA") (CB 110-115). That application was supported by an affidavit (affirmed by the applicant on 1 May 2019) which annexed a copy of the Tribunal's decision (CB 116-121).

1. The application for judicial review was filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is three pages long and spans 22 paragraphs (CB 107-109).
3. The Tribunal outlined that the applicant had applied for the visa on 29 August 2018 and that a delegate of the Minister had refused to grant the applicant the visa on 31 October 2018. The Tribunal noted the delegate had refused to grant the applicant the visa because the applicant did not satisfy cl 485.223 in Schedule 2 of the Regulations requiring the applicant to have been subject to a skills assessment for the proposed occupation and the relevant qualification at the time of application (at [1]-[3]).
4. The Tribunal confirmed that the applicant had appeared at a hearing before it on 29 March 2019 to give evidence and present arguments. The Tribunal acknowledged that the applicant was represented in relation to the review by the second representative and that the applicant had sought two hearing postponements (supported by medical certificates). The Tribunal explained that the applicant had confirmed (at the hearing) that he had read the delegate's decision and understood its contents (at [4]-[8]).
5. The Tribunal explained that the applicant was required to satisfy the requirements for the visa in the "Graduate Work stream" which included cll 485.223 and 485.224 in Schedule 2 of the Regulations, noting that those criteria were concerned with the applicant's skills in relation to the nominated skilled occupation. The Tribunal confirmed that the issue before it was whether the applicant met those requirements (at [10]).
6. The Tribunal recorded that the applicant gave evidence that "his agent had applied for the incorrect visa" and confirmed that he had neither sought a skills assessment nor provided evidence of that assessment at the time of his visa application. The applicant also told the Tribunal that he "did not know that he was required to have a skills assessment at the time of application for the class of visa" he had sought and that his agent "had not informed him of the implications relating to the visa application that was submitted" (at [11]-[15]).
7. The Tribunal explained that the applicant's visa application was required to be accompanied by evidence that the applicant had applied for an assessment of his skills for the nominated skilled occupation. The Tribunal acknowledged that the applicant had provided a skills assessment at the hearing before it (on 25 March 2019) but ultimately determined that, on the evidence before it, the applicant had not undertaken a skills assessment at the time of the visa application and thus did not satisfy the requirements set out in cl 485.223 in Schedule 2 of the Regulations or the criteria for the grant of the visa (at [16]-[21]).
8. The Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (at [22]).

1. The application for judicial review (filed in the then FCCA by the applicant on 3 May 2019) contained two "grounds of review" as follows (CB 113):

(a) Is affected by an error of law;

(b) Denied the applicant procedural fairness.

(c) The tribunal erred by rejecting the applicant's contention that it was not an intentional to not follow the rules strictly but a mistake which should be seen objectively. The tribunal did not appreciate the evidence rendered by the applicant and did not apply the relevant provisions objectively as per circumstances of the case. The applicant has never breached his visa conditions and had never intended to breach the rules. The application was made by an agent who applied for the wrong visa resulting in refusal of the application. The applicant could do nothing as the circumstances were beyond his reasonable control.

(d) The applicant submits that the tribunal did not appreciate the evidence that applicant's fault has resulted in irreparable loss and applicant has been penalised for a fault of someone else.

1. I have made an application for Judicial review of the decision and I am waiting for a hearing and decision in this matter.

1. The applicant also filed an affidavit (affirmed by the applicant on 1 May 2019) in support of the judicial review application. That affidavit annexed a copy of the Tribunal's decision (CB 116-121).
2. On 8 September 2021, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any supplementary Court Book and written submissions.
3. The applicant appeared before this Court (by video link) on 26 March 2025 without legal representation but with the assistance of an Urdu interpreter. Mr Gianluca Rossi from Mills Oakley Lawyers appeared on behalf of the Minister (also by video link). The Court asked the applicant to confirm that he had received copies of the CB and the Minister's written submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 3 May 2019 (the applicant's affidavit being taken as read and in evidence at the hearing on 26 March 2025), a CB numbering 121 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 25 February 2025.
5. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
6. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 ("SZRUI") at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant told the Court that he was "not given a full opportunity to have [his] say because [he] was only allowed to respond to a limited number of questions that were asked" and that it seemed to him that the Tribunal member had already made up their mind and did not actually review the entire content of the application.
3. The applicant also told the Court that he was asked whether he had "the document" when he made his visa application and that the reasons that were given to him when his application was rejected were not very clear.
4. The applicant also explained that his application was lodged by his agent and that the applicant himself was not familiar with the requirements for making the visa application. He also stressed that "anyone can make a minor mistake" and this was a mistake made by his agent. The applicant said that his concern was that the Minister had agreed that the Tribunal had made a mistake in its reasons and said "that was part of the procedure", whereas the mistake made by his agent "will affect [his] future so badly".
5. Finally, the applicant explained that document that the Tribunal said was not attached to his visa application should not have been required because his degree was obtained in Australia and not overseas. The applicant explained that there were "two types" or subclasses under the 485 visa - one application that is lodged by someone who studied overseas and one for those who studied in Australia. He stressed that the mistake made by his agent was that "he put it under the wrong category of overseas, rather than an Australian degree".
6. The applicant's concerns, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.

1. It is useful to set out some of the legislative provisions relevant to this matter. The Court notes that the relevant provisions set out below are those that were in effect as at the date of the applicant's visa application (being 29 August 2018).
2. As explained by this Court in Obinwa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 884 ("Obinwa"), s 29 of the Act explained that the Minister may grant a non-citizen permission to either travel to and enter Australia or to remain in Australia by way of the grant of a visa: s 29(1) of the Act.
3. Section 31 of the Act detailed that there were "prescribed classes of visas" and that the Regulations may "prescribe criteria for a visa or visas of a specified class". It is further noted 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": s 31(5) of the Act.
4. Section 45 of the Act explained that a non-citizen must apply for a "visa of a particular class" (s 45(1) of the Act) and s 46 of the Act explained the criteria that needed to be satisfied for a non-citizen to make a valid visa application. In particular, s 46 specified that a visa application was only valid if "it [was] for a visa of a class specified in the application" and if it "satisfie[d] the criteria and requirements prescribed" under s 46 of the Act: ss 46(1)(a) and 46(1)(b) of the Act.
5. Section 46 of the Act also provided as follows:

(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.

1. When a valid application for a visa has been made, the Minister must consider that application. Further, the Minister is not able to consider an application that is not a valid application: ss 47(1) and 47(3) of the Act.
2. Regulation 2.07 of the Regulations further clarified what was required in order to apply for a visa of a specific class and relevantly provided as follows:

(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.

Note: An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).

(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.

Note 1: For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.

Note 2: Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.

1. Regulation 2.01 of the Regulations also outlined what were "prescribed classes of visas" and relevantly provided as follows:

Classes of visas prescribed by section 31 of the Act

(1) For the purposes of section 31 of the Act, the prescribed classes of visas are:

(a) such classes (other than those identified by an item in the table in subregulation (2)) as are set out in the respective items in Schedule 1; and

(i) transitional (permanent); and

(ii) transitional (temporary)

1. Regulation 2.02 of the Regulations explained that Schedule 2 of the Regulations was divided into "Parts" which were identified by the word "Subclass" and included a three-digit number which correlated to the subclass of visa to which it related. Further, where a particular Part of Schedule 2 of the Regulations was referenced in Schedule 1 of the Regulations for a particular class of visa (and was listed under the subitem "Subclasses"), that Part was relevant.
2. Regulation 2.03 of the Regulations provided further clarity in relation to criteria relevant to particular classes of visas (including in circumstances where the Regulations identified different visa "streams"). Regulation 2.03 of the Regulations relevantly provided as follows:

2.03 Criteria applicable to classes of visas

(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the primary criteria set out in a relevant Part of Schedule 2; or

(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

(1A) However, if one or more criteria are set out in a Subdivision of a Part of Schedule 2 as a 'stream':

(a) the primary criteria mentioned in paragraph (1)(a) are taken to be:

(i) the primary criteria described as that stream; and

(ii) all primary criteria that are not described as a stream; and

(b) the secondary criteria mentioned in paragraph (1)(b) are taken to be:

(i) the secondary criteria described as that stream; and

(ii) all secondary criteria that are not described as a stream.

Example: Part 188 of Schedule 2 sets out the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The Part includes a Subdivision setting out common primary criteria and several Subdivisions setting out primary criteria that are described as streams, including a Business Innovation stream. The primary criteria mentioned in paragraph (1)(a) are taken to be the Business Innovation stream and all primary criteria that are not described as a stream.

(1B) If one or more criteria are set out in a Subdivision of a Part of Schedule 2 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]'.

Example: A visa whose criteria are set out in Part 188 of Schedule 2, and include criteria in the Business Innovation stream, may be described as a Subclass 188 visa in the Business Innovation stream.

1. The Subclass of visa relevant to the matter before this Court is a Subclass 485 visa (noting that the applicant here applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa). The eligibility criteria for the grant of a Subclass 485 visa were set out in Part 485 in Schedule 2 of the Regulations.
2. Part 485.2 in Schedule 2 of the Regulations set out the primary criteria for the grant of a Subclass 485 visa. It was explained that the primary criteria for the grant of a Subclass 485 visa "include[d] criteria set out in streams". It was also explained that if a Subclass 485 visa was applied for in the "Graduate Work stream", then the criteria in Parts 485.21 and 485.22 in Schedule 2 of the Regulations were considered primary criteria. However, if an applicant applied for a Subclass 485 visa in the "Post-Study Work stream", the primary criteria was instead set out in Parts 485.21 and 485.23 in Schedule 2 of the Regulations.
3. Each of the Parts referenced above (being Parts 485.21, 485.22 and 485.23) included headings and notations as set out below:

Note: These criteria are for all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.

...

485.22 - Criteria for Graduate Work stream

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.

...

485.22 - Criteria for Graduate Work stream

Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream.

1. Schedule 1 of the Regulations set out what was required to make a valid visa application for each of the visa classes. Item 1229 in Schedule 1 of the Regulations provided the validity criteria for the grant of a Skilled (Provisional) (Class VC) visa.
2. Of particular relevance in this matter was Item 1229(3)(j) in Schedule 1 of the Regulations, which relevantly provided as follows:

(j) 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.

1. As outlined above, the applicant in this matter applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa on 29 August 2018 (CB 1-13). In that visa application, he selected the "Graduate Work stream" and listed his nominated occupation as "Accountant (General)" and did not include any details of any skills assessment (CB 1 & 12). He also answered "no" to the question of whether he had "applied to a relevant assessing authority for an assessment of [his] skills" (CB 1).

Issue raised by the Minister as model litigant - whether the Tribunal misunderstood the effect of cl 485.224 in Schedule 2 of the Regulations

1. Before reviewing the applicant's grounds of review (as outlined in his application for judicial review filed in the then FCCA on 3 May 2019) or his oral submissions (made to this Court at the hearing of this matter on 26 March 2025), the Court will first address an issue raised by the Minister (at [16]-[18] in written submissions filed in this Court on 25 February 2025).
2. Relevantly, the Minister submitted as follows:
   1. As a model litigant, the first respondent raises that the Tribunal did appear to have misunderstood clause 485.224, which is met if there is evidence that "[t]he skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority for the occupation as suitable to that occupation."
   2. As opposed to clause 485.223, there is no requirement for clause 485.224 to have been met "[w]hen the application was made" and it is therefore to be assessed at the time of the decision. In this case, the Tribunal had before it evidence from the Institute of Public Accountants that the applicant had been assessed as suitable for the nominated occupation of Accountant (General) dated 25 March 2019, which was clearly "during the last 3 years" of the Tribunal's decision dated 29 March 2019.
   3. The first respondent submits that this error was not material because there was a separate independent basis for the Tribunal's decision, being that the applicant did not satisfy clause 485.223, and that finding is not affected by error.
3. The Court agrees with the Minister's submissions.
4. The Tribunal referenced cll 485.223 and 485.224 in Schedule 2 of the Regulations in its written reasons as follows (emphasis added):
   1. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant's skills in relation to their nominated skilled occupation. The issue in the present case is whether the applicant meets those requirements.

...

1. Clause 485.223 requires that when the visa application was made, it was 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'.

...

1. On the evidence before the Tribunal, the applicant, at the time of application declared that he had not undertaken a skills assessment, however, a skills assessment was provided at hearing and dated 25 March 2019, which was issued by the Institute of Public Accountants for the occupation of Accountant (General) as provided in ANZSCO 221111, given that the applicant has a Bachelor of Business (Accounting) from the Cambridge International College.
2. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant does not satisfy the requirements of cl.485.223.
3. It follows that the applicant does not meet the requirements of cl.485.224.

1. As can be seen from the Tribunal's reasons above, the Tribunal found that because the applicant had not satisfied the requirements set out in cl 485.223 in Schedule 2 of the Regulations (being the requirement to have provided evidence that he had applied for a skills assessment with his visa application), the applicant did not meet the requirements set out in cl 485.224 in Schedule 2 of the Regulations. This is incorrect.
2. The applicant in this matter had confirmed that he had not sought a skills assessment and had not provided evidence of that assessment at the time of his visa application (see the Tribunal's reasons at [13]). The applicant therefore could not meet the requirement set out in cl 485.223 in Schedule 2 of the Regulations.
3. While there was an objective temporal test incorporated in cl 485.223 in Schedule 2 of the Regulations, there was no such temporal test incorporated in cl 485.224 in Schedule 2 of the Regulations. That is, by providing the Tribunal with evidence of a skills assessment from the Institute of Pacific Accountants (dated 25 March 2019), the applicant was able to satisfy the requirements of cl 485.224 in Schedule 2 of the Regulations (being the requirement that the skills of the applicant be assessed during the previous three years). The Tribunal thus erred in finding that the applicant had not met the requirements set out in cl 485.224 in Schedule 2 of the Regulations.
4. However, as correctly submitted by the Minister, that error was not material and, had the error not been made, the Tribunal's decision could not have been different. That is so because the applicant still could not satisfy the requirement of cl 485.223 in Schedule 2 of the Regulations because he did not provide evidence that he had applied for an assessment of his skills at the time of his visa application.
5. In this regard, the Court notes the comments made by the Full Court of the Federal Court in relation to the structure and function of cl 485.223 in Schedule 2 of the Regulations in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 ("Khan") as follows (emphasis added):
   1. The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
   2. The test is objective. Clause 485.223 is one of a number of "time of application" criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person's readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
   3. The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
   4. Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The Regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign. The present case is on point. The appellant's subjective reason for applying for the visa on the day that he did was that his student visa would expire on that day, and the expiry of the visa may have had the consequence that he could not apply for a new substantive visa without first leaving Australia. Nothing in the text, context or purpose of cl 485.223 contemplates considerations of that kind to give effect to the inquiry as to whether, objectively, the application was accompanied by the evidence. Ground 1 has not been made out.
6. Clause 485.223 in Schedule 2 of the Regulations required that the visa application made by the applicant be accompanied by the necessary evidence. Here, it was not. As can be seen by the passages from Khan (set out above), the legislative test is objective and there was no scope for the consideration of why the visa application was not accompanied by that evidence (it was "either accompanied by the necessary evidence or it [was] not"): Khan at [15]).
7. On that basis, even if the Tribunal had (correctly) found that the applicant had satisfied cl 485.224 in Schedule 2 of the Regulations by providing evidence of a skills assessment to the Tribunal (dated 25 March 2019), there was no such evidence which accompanied the visa application when made (on 29 August 2018) and the applicant could not satisfy cl 458.223 in Schedule 2 of the Regulations and thus could not be granted the visa.
8. No jurisdictional error arises in this regard.

1. As outlined above, particulars (a) and (b) of ground one relevantly provided as follows:

(a) Is affected by an error of law;

(b) Denied the applicant procedural fairness.

1. To the extent that the applicant suggested that the Tribunal's decision is affected by an error of law, as outlined above, the Tribunal did err in finding that the applicant could not meet cl 485.224 in Schedule 2 of the Regulations. However, for the reasons set out above, that error was not material.
2. Insofar as the applicant suggested that the Tribunal denied him procedural fairness, the Court disagrees for the reasons that follow.
3. As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal's decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
4. The Court has considered whether the Tribunal did so in this matter and notes as follows:

(a) the Tribunal invited the applicant to attend a hearing before it and the applicant did so (CB 58-68 & 97-99). The applicant gave evidence at that hearing in support of his review application. Accordingly, the Tribunal complied with s 360 and s 360A of the Act;

(b) there were no matters or adverse information that the Tribunal was required to disclose to the applicant in accordance with ss 359A or 359AA(b) of the Act;

(c) the dispositive issue before the Tribunal (being whether the applicant had provided evidence that he had applied for a skills assessment with his visa application as required by cl 485.223 in Schedule 2 of the Regulations) the same as the issue before the delegate. Further, the Tribunal invited the applicant to provide information or evidence about whether his visa application was accompanied by the necessary evidence in its hearing invitation letter sent to the applicant (CB 60-61). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and

(d) the Tribunal questioned the applicant, listened to his responses and actively sought information from him about whether he had sought a skills assessment or provided evidence of that assessment at the time of his visa application (see, for example, paragraph [13] of the Tribunal's reasons). There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.

1. The Court also notes that, as outlined above, the applicant gave evidence to the Tribunal that "he had not sought a skills assessment nor provided evidence of that assessment at the time of [his visa] application" (see paragraph [13] of the Tribunal's reasons). The Tribunal also granted the applicant multiple adjournment requests on the basis of the applicant's ill health and there is no evidence before this Court to suggest that the applicant sought additional time to provide any further information or evidence to the Tribunal or that he was not able to properly present his case to the Tribunal.
2. The Court is satisfied that the Tribunal afforded the applicant procedural fairness and that the decision made by the Tribunal was open to it on the evidence before it.
3. No jurisdictional error arises in this regard.

(c) The tribunal erred by rejecting the applicant's contention that it was not an intentional to not follow the rules strictly but a mistake which should be seen objectively. The tribunal did not appreciate the evidence rendered by the applicant and did not apply the relevant provisions objectively as per circumstances of the case. The applicant has never breached his visa conditions and had never intended to breach the rules. The application was made by an agent who applied for the wrong visa resulting in refusal of the application. The applicant could do nothing as the circumstances were beyond his reasonable control. > > (d) The applicant submits that the tribunal did not appreciate the evidence that applicant's fault has resulted in irreparable loss and applicant has been penalised for a fault of someone else.

2. To the extent that the applicant suggested that the Tribunal did not take into account his evidence that his agent had mistakenly applied for the wrong visa, this fails on a factual level. The Tribunal expressly referenced this evidence in its written reasons, as follows:
   1. The applicant gave evidence that his agent had applied for the incorrect visa, given that he is a graduate from studies undertaken in Australia.

...

1. The applicant advised the Tribunal that he did not know that he was required to have a skills assessment at the time of application for the class of visa he was seeking. The applicant stated that the agent representing him had not informed him of the implications relating to the visa application that was submitted.

1. Unfortunately, that evidence could not assist the applicant. The Tribunal did not have any discretion when applying the requirements set out in cl 485.223 in Schedule 2 of the Regulations. In this regard, the Court references the comments made by the Full Court of the Federal Court in Khan, as follows (emphasis added):
   1. In the present case, however, the Tribunal did not have any discretion as to whether or not to apply the criterion in cl 485.223 to the appellant. Whether or not a visa application is accompanied by the necessary evidence may involve an evaluation of evidence but it does not involve the exercise of a discretion of the kind that would attract the principles in Li.
   2. The Tribunal correctly construed cl 485.223 and correctly applied the provision to the facts before it. Having done so, there was no evidence that the appellant could provide so as to satisfy the Tribunal that the "time of application" criterion had been fulfilled. Evidence that he had subsequently applied for a skills assessment and subsequently obtained a favourable skills assessment could not assist him. The appellant's complaint that the Tribunal had exercised its powers unreasonably amounted to a complaint that the law operated harshly in the circumstances of his case.
2. The principles outlined in Khan apply equally in this case. The Tribunal had no discretion as to whether or not to apply the requirements set out in cl 485.223 in Schedule 2 of the Regulations to the applicant's case: Khan at [20]. In this case, the applicant's own evidence given to the Tribunal (at the hearing before it) confirmed that his application was not accompanied by the necessary evidence that he had applied for or obtained a skills assessment (see paragraph [13] of the Tribunal's reasons). Further, the fact that the applicant subsequently obtained a favourable skills assessment (and provided evidence of that assessment to the Tribunal) could not assist him: Khan at [21].
3. In the circumstances, the Court is satisfied that the Tribunal had regard to the applicant's evidence that he was unaware of the requirement to provide a skills assessment and that his agent had applied for the incorrect visa. It simply did not have any discretion to waive the requirement for the applicant to have complied with cl 485.223 in Schedule 2 of the Regulations: Khan at [20].
4. No jurisdictional error arises in this regard.

1. Ground two provides:
   1. I have made an application for Judicial review of the decision and I am waiting for a hearing and decision in this matter.
2. Ground two is simply a statement of fact and does not outline any issue of jurisdictional error of the sort that this Court can address.
3. No issue arises in this regard.

Whether the applicant was given a "meaningful" opportunity to appear before the Tribunal

1. As outlined above, the applicant told the Court (in oral submissions) that he was "not given a full opportunity to have [his] say because [he] was only allowed to respond to a limited number of questions that were asked".
2. An applicant must be given a "real and meaningful" opportunity to attend and participate at a hearing before the Tribunal. In this context, the Tribunal's invitation cannot be seen to be a "hollow shell" or an "empty gesture": Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
3. On 28 February 2019, the Tribunal extended an invitation to the applicant (through his first representative) to appear at a hearing before it on 19 March 2019 (CB 58-68). Relevantly, the invitation letter also notified the applicant of the issue it would be required to determine and evidence required, as follows (CB 60-61):

Clause 485.223 of Schedule 2 to the Migration Regulations 1994 requires that, when your visa application was made, it was accompanied by evidence that you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority. Giving more than a statement or answer in your visa application form about this is required. Your application for the visa was refused because it was not accompanied by evidence of this.

You are now invited to give information or evidence about whether your visa application was accompanied by evidence that you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority. Please note that information about a skills assessment applied for after the date of your visa application may not satisfy this requirement.

Information or evidence about this should be given at or prior to the hearing. Any documents or written arguments sent to us should be in English or be accompanied by a translation from a qualified translator.

1. That invitation letter put the applicant on notice about what would be assessed by the Tribunal and what information was required of him.
2. After seeking (and being granted) two hearing adjournments (due to illness), the applicant ultimately appeared at a hearing before the Tribunal on 29 March 2019 (CB 97-99). At that hearing, the applicant provided the Tribunal with a letter from the Institute of Public Accountants confirming that the applicant had been "assessed as suitable for the ... nominated occupation" of Accountant (General) (CB 97 & 100).
3. It is noted that, at the hearing, the Tribunal assessed whether the applicant met the requirements for the visa including, relevantly, whether the applicant had provided evidence of any skills assessment or application for an assessment with his visa application (as required by cl 485.223 in Schedule 2 of the Regulations). As outlined above, the applicant gave evidence at the hearing that he had not sought a skills assessment nor provided evidence of that assessment at the time he made his visa application.
4. It cannot be said here that the applicant was denied an opportunity to participate in the hearing or to present his case. Further, there is no evidence before the Court to suggest that there was any additional evidence that the applicant wanted to provide to the Tribunal (but was not permitted to do so) or that he requested that the Tribunal provide him with further time to be able to do so.
5. No jurisdictional error arises in this regard.

Whether the Tribunal's decision was affected by bias

1. As outlined above, the applicant also suggested (in oral submissions before this Court) that it seemed to him that the Tribunal member had already made up their mind and did not actually review the entire content of the application.
2. To the extent that the applicant suggested that the Tribunal's decision was affected by bias, the Court disagrees for the reasons that follow.
3. As explained by this Court recently in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616, it is well established that an allegation of bias is one that must be distinctly made and clearly proven.
4. To prove bias, it is for the applicant to establish that:

(a) the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

(b) the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].

1. There is nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case.
2. The Tribunal invited the applicant to attend a hearing, gave the applicant an opportunity to provide additional documents before the hearing (and informed him of the type of evidence that it required) and asked questions of the applicant and assessed his responses when considering whether he met the criteria for the grant of the visa.
3. The Tribunal assessed the information before it (including the skills assessment that the applicant provided to it on the day of the Tribunal hearing and the applicant's oral evidence given at the Tribunal hearing).
4. Ultimately, the Tribunal found that the applicant did not meet the criteria for the grant of the visa and affirmed the delegate's decision refusing to grant him the visa.
5. The Court is satisfied that the Tribunal was not biased in its review and no jurisdictional error arises in this regard.

Whether the conduct of the applicant's agent amounted to fraud on the Tribunal

1. In oral submissions before this Court, the applicant raised concerns with the conduct of his "agent", claiming that mistakes made by his agent in applying for the wrong visa type would "affect [his] future so badly".
2. The applicant told the Court (and the Tribunal) that his agent had incorrectly applied for the wrong visa stream and that he had trusted his agent to properly assist him.
3. As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]- [81]), when assessing an agent's conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a "fraud" on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
4. In effect, in order to constitute a "fraud on the Tribunal", it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal's decision-making process.
5. The Court notes that there is no evidence before the Court to suggest that the applicant had any assistance in making his visa application. Indeed, in his visa application, the applicant answered "no" when asked if he "receive[d] assistance in completing [the] form" (CB 6).
6. On the material before this Court, it cannot be said that the conduct of the applicant's agent (if, in fact, any agent assisted him with his visa application) amounts to fraud. Further, negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
7. An applicant's recourse for negligence, incompetence or bad advice (and the Court makes no findings about any agent who may have assisted the applicant with his visa application in that regard, though none is apparent on the materials before this Court) is to the appropriate regulatory authority - the Office of the Migration Agents Registration Authority - or, in some circumstances, via a civil claim filed elsewhere.
8. No jurisdictional error arises in this regard.

Whether the Tribunal ought to have considered the applicant's visa application against both the Graduate Work stream and the Post-Study Work stream

1. The applicant raised concerns about the incorrect visa category or stream being selected in his visa application.
2. As outlined by the Court above, at the time that the applicant applied for the visa, Subclass 485 visas could be applied for in two separate streams - the "Graduate Work stream" and the "Post-Study Work stream".
3. To the extent that the applicant suggests that the Tribunal ought to have considered his visa application against both visa streams, the Court disagrees for the reasons that follow.
4. Justice Rangiah considered this issue in relevantly similar circumstances in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 774 ("Singh") and determined as follows:
   1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 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.
   6. 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.)

1. 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...

1. As outlined previously by this Court in Obinwa (and above), the Minister's power is limited to considering whether the criteria for the grant of a particular visa (that was the subject of a valid application) are satisfied. The Minister must then either grant or refuse to grant that visa: Singh at [67].
2. The applicant in this matter applied for a Subclass 485 visa in the "Graduate Work stream". He did not apply for a Subclass 485 visa in the "Post-Work Study stream". The Minister has no power to grant a visa that was not applied for: Singh at [67].
3. The Tribunal is in no better position than the Minister in relation to a decision under review. On that basis, the Tribunal in this matter only had authority to review the decision made by the Minister and was not able to consider a visa other than that which was validly made to and determined by the Minister: Singh at [68]. In the circumstances of this matter, that visa application was made in relation to a Subclass 485 visa in the "Graduate Work stream". Hence, the Tribunal was only able to review the application for that visa.
4. Here, as in Singh, the Minister could not have granted a visa to the applicant in the "Post-Work Study stream" (because no valid application for such a visa was ever made by the applicant). The Tribunal had no greater power on review and was required to affirm the Minister's decision because the applicant did not satisfy cl 485.223 in Schedule 2 of the Regulations.
5. No jurisdictional error arises in this regard.

1. The application for judicial review and the applicant's oral submissions to this Court have not identified any jurisdictional error on the part of the Tribunal. The Court has (with the assistance of the Minister) identified an error in the Tribunal's decision, however, as outlined above, that error was not material.
2. The application is, accordingly, dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.