Mughal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background and statutory framework 3 Mr Mughal is a citizen of Pakistan. He came to Australia on a student visa in 2010 and obtained two diplomas from the Perth Institute of Business and Technology and a Master of Professional Accounting from Edith Cowan University. He attained the latter degree in December 2015. 4 On 14 March 2016 Mr Mughal applied for the Graduate Visa. He nominated 'Accountant (General)' as the relevant occupation for the purposes of the application. The online application form said at the beginning: To be eligible to be granted a subclass 485 visa through the Graduate work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or be granted a visa. 5 One of the questions, under the heading 'Skills assessment', asked 'Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled application?'. To this, Mr Mughal answered 'no'. 6 That question and answer were relevant because of cl 485.223 of Schedule 2 to the Migration Regulations 1994 (Cth), which required of an application that: When the 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. 7 This requirement applied to Mr Mughal's application in the following way. Section 31(3) of the Migration Act 1958 (Cth) provides that the regulations may prescribe criteria for a visa or visas of a specified class. Regulation 2.03(1) of the Regulations provides that for the purposes of that subsection, the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria and any secondary criteria set out in a relevant Part of Schedule 2. Regulation 2.03(1A)(a)(i) provides, however, that if one or more criteria are set out in a subdivision of a Part of Schedule 2 as a 'stream', the primary criteria are taken to be the primary criteria described in that stream. Mr Mughal's application was for a Graduate Visa in the 'Graduate Work' stream. By reason of the regulations just described, subdivision 485.22 of Schedule 2 is taken to set out primary criteria for the grant of a Graduate Visa in that stream. Clause 485.223, set out above, is found in subdivision 485.22. If the Minister is not satisfied that the criteria for a visa have been satisfied, the Minister must refuse to grant the visa: see s 65(1)(a)(ii) and s 65(1)(b). 8 It appears that Mr Mughal did not apply for the relevant skills assessment until 27 May 2016, which is the date of a receipt for the application fee he received from the assessing authority, CPA Australia. So that application was more than two months after he lodged his visa application. At the hearing of the appeal, Mr Mughal confirmed that he had not applied for the skills assessment at the time he made his visa application. 9 On 15 June 2016 the delegate of the Minister wrote to Mr Mughal informing him that because he had not provided evidence of having applied for the relevant skills assessment before lodging the application for the Graduate Visa, the visa was refused. 10 On 1 July 2016 Mr Mughal applied to the Tribunal for review of the delegate's decision. On 29 August 2016 his migration consultant sent a letter written by Mr Mughal to the Tribunal which said: After completing my studies, I and few of my class mates applied for same subclass visa and did not apply for their skill assessment prior to lodging their visa application. They all are granted a visa and my application was refused for above mentioned reasons. When I find out about this pre-requisite, it was too late as my application was already lodged. But, I applied for assessment before the decision and I have received positive outcome (Outcome attached). As I did not consult any migration agent and was unaware the fact that I must apply skill assessment before lodging visa application if I hold first student visa before 05 Nov 2011. Even though I obtained positive skill assessment, My application was still refused. It is to bring in to your attention that there was no deliberate attempt not to apply for skill assessment and I was not aware about pre-requisites of relevant visa. It is an innocent error and may be allowed not to meet this condition for rejection. The letter attached a notice from CPA Australia dated 1 July 2016 to the effect that Mr Mughal was academically suitable for the Graduate Visa. 11 Mr Mughal attended a telephone hearing with the Tribunal on 21 December 2016. The Tribunal made an oral decision on that day affirming the delegate's decision. Mr Mughal requested written reasons and they were given on 16 February 2017. While the Tribunal recorded the matters set out in the letter quoted above, it found that the application for the Graduate Visa was not accompanied by any evidence that Mr Mughal had applied for the skills assessment at the time the application was made, so that the relevant visa criterion was not met.

The Federal Circuit Court proceeding 12 Mr Mughal applied to the FCC for judicial review of the Tribunal's decision on 13 January 2017. It was necessary for him to invoke that court's jurisdiction under s 476 of the Migration Act to grant constitutional writs because the Tribunal's decision was a 'migration decision' within the meaning of that section. Hence he needed to demonstrate jurisdictional error in the decision of the Tribunal. 13 Mr Mughal represented himself in the FCC. His grounds of review were: 1. The decision of the tribunal dated 21/12/2016 is affected by jurisdictional error because the tribunal failed to take in to account a relevant consideration. 2. The tribunal failed to determine that the appellant does not meet [sic] the requirements of cl.485.224 [sic]. 14 In the primary judgment, his Honour noted that the FCC made orders on 12 April 2017 fixing the matter for hearing and made orders giving Mr Mughal the opportunity to put on an amended application, affidavit evidence and submissions. Mr Mughal did not file any documents pursuant to those orders. 15 The primary judge heard the application for judicial review of the Tribunal's decision on 12 November 2019 and gave ex tempore reasons dismissing the application. After recounting the facts set out above, his Honour noted a submission that Mr Mughal made to the effect that the application form should not have permitted him to answer 'no' to an essential requirement. The primary judge said there was some force in that criticism but it did not reveal any relevant error on the part of the Tribunal. His Honour noted that the form did explain the consequences for the applicant of not having applied for a skills assessment. His Honour also noted submissions that had been made about the hardship that the applicant and his family had undergone in relation to obtaining the Graduate Visa, but his Honour said that the court had no power to determine the matter on compassionate or discretionary grounds. 16 In relation to ground 1, the primary judge held as follows: 17. In relation to ground 1, the assertion of jurisdictional error without further and proper particulars is incapable of identifying any relevant error. 18. On the face of the material before the Court, the Tribunal complied with its statutory obligations and the applicant had a real and meaningful hearing. There is no relevant consideration identified which the Tribunal failed to take into account. The Tribunal did not have power to determine the matter on compassionate or discretionary grounds and the Tribunal was bound by the mandatory criteria which the applicant had to meet. 19. No jurisdictional error is made out by ground 1. 17 In relation to ground 2, his Honour's reasons were: 20. In relation to ground 2, this reflects disagreement with the mandatory criterion which does not identify any jurisdictional error. 21. The Tribunal correctly identified the want of the mandatory criteria being a skills assessment prior to the making of the application. The Tribunal was correct to hold that the requirements of cl.485.223 of the Regulations were accordingly not met. 22. No jurisdictional error is made out by ground 2.

The appeal in this court 18 Mr Mughal lodged the notice of appeal in this Court on 10 December 2019. The hearing of the appeal was delayed due in part to the circumstances of the COVID-19 pandemic. The Court attempted to hold the hearing on 8 December 2021, at which time Mr Mughal was in Pakistan and could only attend via audio link. The quality of the audio link was such that Mr Mughal was impossible to understand, so it was necessary to adjourn the hearing to a time when he would be in Australia and was able to attend in person, which he did at the reconvened hearing on 4 May 2022. 19 Mr Mughal has represented himself throughout the appeal to this court. His sole ground of appeal said that the grounds were set out in an affidavit accompanying the notice of appeal. The notice of appeal did, however, assert under the 'Orders sought' heading 'I believe my case was not addressed properly and decision for not granting me the visa to be quashed'.' 20 Mr Mughal did swear an affidavit that was filed along with the notice of appeal. After setting out the factual background, it said (all errors in original): 19. My review application was refused on 23rd Dec 2016 and my visa refusal was affirmed by the Tribunal. 20. After that, I further applied for review of my application in Federal Circuit Court where I tried presenting my documents and evidence stating that I deserve grant of the visa. 21. My application was unsuccessful in Federal Circuit Court and I was notified on 12th Nov 2019. 22. I believe that the Department of Home Affairs and Administrative Appeals Tribunal followed by Federal Circuit Court have not accessed my application, and thus assessment of my application lacks procedural fairness. 21 Mr Mughal has filed no written submissions. He made oral submissions at the hearing of the appeal. He submitted that the online form he used to lodge the visa application permitted the application to proceed even when he had selected 'no' to the question about whether he had applied for a skills assessment, which he appeared to imply was unfair. He asserted (without evidence) that giving negative answers to other questions would have meant that the application did not proceed. Mr Mughal also referred to changes in the law, before which other students he knew did not need to have applied for a skills assessment in order to obtain a visa. But he did not suggest that the law as it previously stood applied to his application. He also said that he should have been given the opportunity to withdraw the application and apply again. Mr Mughal informed the court that he had spent many years and much money in Australia to obtain the qualifications to practise as an accountant, and because of what he described as an innocent mistake, he would not now be able to obtain a professional job in Australia without the visa. I told Mr Mughal in the hearing that I read paragraph 22 of his affidavit (quoted above) to say that the FCC had not assessed his application. When I asked him why he said that the process in the FCC lacked procedural fairness, his response was the submissions I have just described, which do not address anything that occurred in the FCC. 22 The Minister submits that, to the extent that the ground appearing in the affidavit asserts a want of procedural fairness on the part of the FCC, it cannot be made out in circumstances where: (1) Mr Mughal commenced proceedings in the FCC on 16 January 2017; (2) by virtue of orders made on 12 April 2017, he had the opportunity to put on an amended application, affidavit evidence and written submissions, but did not take that opportunity up; (3) the hearing was held on 12 November 2019 and Mr Mughal attended it in person; (4) at the hearing in the FCC the primary judge explained the nature of the hearing to Mr Mughal, who confirmed that he understood; (5) Mr Mughal made oral submissions at the hearing; and (6) the primary judge recorded the oral submissions and his reasons for decision show that he considered them, but his Honour correctly determined that the submissions demonstrated no jurisdictional error on the part of the Tribunal. 23 At the hearing of the appeal, counsel for the Minister referred to Khan v Minister for Immigration and Border Protection [2018] FCAFC 85. In that decision, Tracey J (Charlesworth and Derrington JJ agreeing) referred to Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562, a decision in which Katzmann J was prepared to read some temporal flexibility into a requirement in a different part of the Regulations that a visa application be accompanied by certain evidence. In Khan at [15]-[17] Tracey J said: 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. 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. 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. 24 The Minister therefore submitted that even though Mr Mughal's 'mistake' may have been an innocent one (something the Minister did not dispute), its innocence or otherwise was irrelevant to cl 485.233.

Consideration 25 I accept the Minister's submissions. The history of the matter as set out in those submissions appears on the face of the primary judgment and Mr Mughal did not give any reason why it should not be accepted as correct. That history shows that the appellant had two opportunities to put his case to the FCC. He chose not to take up the opportunity to do so in writing, but he did put his case orally. The primary judge's reasons display an engagement with that case. 26 The reasons were brief but there was no need for them to be long; the unfortunate reality for Mr Mughal is that he did not comply with an essential criterion for the grant of the visa he was seeking. The primary judge was correct to proceed on that basis. That appears clearly from the statutory framework set out above. The Full Court confirmed the inflexibility of the rule in Khan and explained why it is consistent with the objectives of the Regulations to construe it that way. Whether or not Mr Mughal has good reason to be dissatisfied with the way the application form worked or the similar matters of which he complains, it is not the role of this Court to rule on such matters. Neither this Court nor the FCC nor the previous decision makers have or had any power to remedy Mr Mughal's dissatisfaction by waiving or modifying the effect of cl 485.223. 27 The primary judge was also correct to apprehend the submissions the appellant made to him as seeking merits review. There is no reason to think that the appellant was denied a fair opportunity to make his case, or that the primary judge denied him procedural fairness by failing to consider that case properly (as to which see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]). The reasons of the primary judge as described above display an appropriate level of engagement with the matters Mr Mughal put to the FCC, none of which were capable of establishing jurisdictional error on the part of the Tribunal. 28 To the extent that Mr Mughal claims that the delegate or the Tribunal denied him procedural fairness, he would need leave to put that to this Court as a ground of appeal, because he did not put it to the FCC. I would deny leave because there is no merit in the ground. The application for judicial review in the FCC was for review of the decision of the Tribunal. Mr Mughal gave information to the Tribunal in the course of the review proceeding and participated in an oral hearing with the Tribunal member. While the hearing was conducted by telephone, Mr Mughal does not point to any reason why that made it unfair. The reasons of the Tribunal, like the reasons of the primary judge, display engagement with the matters put by Mr Mughal.

Conclusion 29 There is no basis apparent in the evidence or the decision of the primary judge for Mr Mughal's claim that he was denied procedural fairness at any stage in the process. Nor is there any reason to think that the decisions of the delegate, the Tribunal or his Honour were incorrect. The appeal must be dismissed, with costs. 30 The Minister submitted at the hearing that if the appeal is dismissed then the amount of costs should be in the sum of $4,000. When Mr Mughal was given an opportunity to comment on that he indicated acceptance that, if he was unsuccessful, he would have to pay costs, and he did not dispute the amount. $4,000 is an appropriate lump sum award for a case of this kind and the costs will be fixed in that amount. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.